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Zoltán Fleck Law under the Mafia State Whether in principle, or on the level of institutional praxis, the rule of law proscribes mafia-like ways of functioning. Effective barriers in the framework provided by the rule of law deter mafia-style operations from coming to influence decision making, dictating norms, or effecting the formation of political will. It follows from the above that the institutionalization of a mafia-like power structure requires a systematic dismantling of the liberal constitution and constitutional establishment. The Internal Logic of the Regime The sequence of events that dispensed with the state grounded in the rule of law has been widely followed; all institutional segments have been grievously undermined since the parliamentary elections of 2010. The independent institutions that—in various ways and to varying degrees—checked the exercise of power have lost their independence or relevance in a variety of ways. Radical curtailment of the jurisdiction of the Constitutional Court, the election procedure for the Constitutional Court judges being adapted to the principle of majority rule, and the consequent election of politicians with government leanings and cadres with proven records of loyalty—though lacking any background in the norms of fundamental rights—was in itself a drastic blow to the constitutional apparatus established after the change of regime. This is particularly so because it had been i6 Maffia II 00 book.indb 69 2016.12.07. 15:47 70 TWENTY-FIVE SIDES OF A POST-COMMUNIST MAFIA STATE grounded in the principle of direct constitutional control of the legislature, in line with the traditions established in the second half of the twentieth century in continental Europe. It is no coincidence that the earliest, most determined political attack upon the system was concentrated on this area, essentially deciding at that juncture that the legislature would be laid open to political transformation. No attempt was even made to reshape the apparatus of public law and governance in keeping with the traditional constitutional barriers. The chosen course of action could not have solely been determined by past experiences of right-wing governments; the will to wield power that is in principle incompatible with limitations on that power also played a role. The foundations of the regime built on public law are now firm, and this makes it plainly apparent that the rule of law based on the principle of checks and balances of power has fractured irreparably. Not only the institutional pillars of the constitution, but the very intellectual , ideological, and symbolic grounds of constitutionality have been left in ruins. This state of affairs necessitated the Fundamental Law, with a row of murky ideological concoctions giving it a tense backdrop, relieved by laughable attempts to propagate them. It does not matter if the latter is a failure, or if the system of national cooperation will never be able to effect notable changes, or show up in the behavioral preferences of social groups. Its mission was complete by having violently brought to consciousness the demise of the past, the end of a constitutional culture whose social base of support was weak though built on rights. The main goal was to free the legislature, to ensure its political accessibility to the autocratically structured party with a two-thirds majority in parliament. The rest of the elements of public law that are usually considered a counterweight to power, including judicial independence, are secondary. What is significant is that it did not take an electoral term for everyone to become conscious of the fact: there is no room for autonomy, and any limitations to the will of those in power are not acceptable. It became clear in every segment of the public law system, irrespective of its structure in principle, whether of a political or apolitical, government or independent status, from the bureaucracy to the offices of the judiciary that the regime, run by decisions from the center, and built practically on a single person, could not be substantially curbed. Somewhat similarly to how a mafia boss at the peak of his powers would publicly and spectacularly humiliate the law enforcement authorities, so everyone can see who is in charge, whose lead must be followed. i6 Maffia II 00 book.indb 70 2016.12.07. 15:47 71 Law under the Mafia State The increase of efficiency, which legitimized, among others, the structural reorganization of the judiciary, has filtered through as the legitimation of the government as a whole and become an all-consuming expectation. It has trumped the observance...


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MARC Record
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