Department of Legal Studies

The fall of the Berlin Wall– and the wave of new constitutions

The 20 years since the CEU was established coincide with the period after the fall of the Berlin Wall, and the superseding of the East-West divide. Throughout this period most consequential tasks and opportunities have emerged within the realm of law. We have witnessed a critically important shift, and new constitutions became a hallmark of this shift. In the nineties, practically all former socialist countries enacted new constitutions, which were supposed to reflect the change, and to establish the foundations of the rule of law. As the wave of changes unfolded, András Sajó initiated a program at the CEU in 1992 devoted to comparative constitutional law. Many students of this program played a role in the process of drafting constitutions (and discussing drafts) in their respective countries. After András  Sajó was elected judge of the European Court of Human Rights in 2008,  Renáta Uitz continued as Chair of the Comparative Constitutional Law Program. 


A shift from slogans towards reality in Central-Eastern Europe

During the past two decades we have witnessed a critically important shift  from rhetoric and slogans to reality. The move away from slogans towards reality posed further challenges. Every CEU student was aware of the change, but many were not aware of the depth of the change. During the first decade in particular, we had to face (and to contest) the continued phenomena of slogan-based thinking, slogan-based arguments, exams and papers. The only difference was that instead of replacing thoughts with one set of magic words (like “socialist democracy”, “fight for peace”, “worker’s self-management”), new magic words (like “market economy”, “sustainable development”, “European values”) endeavored to replace substance. The realm of law has been one of the major arenas of the conflict between slogan-based thinking and critical thinking. The challenge is still ongoing, but our professors have had success in focusing critical thinking on our present environment, and demonstrating that slogan-based thinking is not just an episode of the past.


Coping with ethnic conflicts and enforcing human rights

Ethnic conflicts – particularly those emerging within the countries of the former Yugoslavia - have also left a consequential mark on the past two decades. One of the responses of the Legal Studies Department (LSD) was to introduce courses on minority rights, and to make at least one of them mandatory for all legal studies students. Tibor Várady has also introduced a new subject “Law and Ethnicity”, endeavoring to propose legal solutions to emerging ethnic problems. 

Ethnic conflicts were one of the inspirations behind another important development in the area of human rights protection - the trend to end impunity for gross human rights violations through international criminal prosecution. After the establishment of the International Criminal Court for the former Yugoslavia (ICTY) and the International Criminal Court for Ruanda (ICTR), and after adoption of the International Criminal Court (ICC) Statute in 1998, the CEU Department of Legal Studies became on of the first departments to offer a course on the permanent international criminal court. (This course was taught by Károly Bárd, who had participated in the negotiations at the Rome Conference, and had taken part in drafting the Court’s Rules of Procedure and Evidence.) Furthermore, major actors of the international fight against impunity – such as Richard Goldstone, former chief prosecutor of the ICTY – accepted an invitation to teach in our Human Rights Program. The CEU degree with specialization in international justice, which may develop into a cross-departmental master's degree is, a clear indication of CEU faculty's competence in the area.

One of the most important developments in the area of human rights during the last two decades has been the spread of the individual complaint mechanism.  Critically important pillars of this mechanism are the European Convention on Human Rights (ECHR) and the European Human Rights Court's (ECtHR). Also, the number of states recognizing individuals’ right under the First Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) to petition the Human Rights Committee 

Committee has increased, and more and more countries provide individuals access to the specialized treaty bodies, such as the Committee on the Elimination of Discrimination against Women (CEDAW) or the Convention against Torture (CAT). An important book analyzing the Strasbourg jurisprudence was written by Károly Bárd (Fairness in Criminal Proceedings). The department is providing an introductory course on the operation of the ECtHR, which includes a thorough discussion of the preparation of individual applications to these treaty bodies, and it has also started to offer clinical courses. In addition to these courses, students are being engaged in clinical work with human rights NGOs (such as the Hungarian Helsinki Committee and the Polish Helsinki Foundation) and assist them with preparing applications to the ECtHR or national constitutional courts. Toward the end of their studies, students may put their theoretical knowledge about the individual complaint procedure into practice: Training in Persuasive Argumentation (Moot Court) gives them a unique opportunity to cooperate with external trainers, prepare submissions on a real life case to the ECtHR, and defend their arguments in front of a panel composed of faculty members. Since the Department of Legal Studies has the honor of having a member of the European Committee on Social Rights on the permanent faculty (Csilla Kollonay-Lehoczky), the collective complaint procedure under the European Social Charter is also examined in-depth in one of the courses offered to human rights students.

Endeavoring to cope with phenomena and problems that gained importance and visibility during the past decades, the Human Rights Program introduced courses covering rights of sexual minorities and the problems of sexuality in the contemporary human rights law.


Shaping courses from a newly emerging transnational perspective

During the past 20 years, important developments have also taken place in areas that are not specifically linked to the history of Eastern Europe or to human rights and ethnic conflicts. Some areas of law outside the realm of (public) international law have acquired a strong transnational character, and it has become possible to teach some courses, (such as those on international commercial arbitration, letters of credit and bills of lading) in a transnational perspective. National legislation remains relevant, of course, but teaching in a transnational perspective has now become possible. The emerging situation may be compared to that within the US less than a century ago, when Harvard and Yale started to teach American law instead of Connecticut or Massachusetts law. Connecticut law and Massachusetts law still exist, of course, but teaching American law became a realistic (and preferable) option. CEU presented an ideal setting for the introduction of transnational courses beyond the traditionally established area of public international law. In fact, the first transnational casebook on a world-wide scale in the area of international commercial arbitration was written by department faculty member Tibor Várady (together with Arthur Von Mehren from Harvard and John Barcelo from Cornell). This casebook, International Commercial Arbitration—A Transnational Perspective (West), is in its fourth printing and has been used on all continents.


Coping with newly emerging corporate structures and types of transactions — and problems

One of the hallmarks of the past two decades has been the emergence of new types of transactions (particularly within financial markets) and new variants of corporate structures, which have been conducive to both success and crisis. Our department has responded by introducing a number of new courses, such as those on secured transactions, securities regulations and the (new) environment of international business transactions. The newly shaped corporate environment also, however, brought with it new human rights violations, and for this reason, we introduced a course, Human Rights in Corporations (taught by Richard Buxbaum, former dean of Berkeley Law School), in our International Business Law program.


Enhancing the relevance of judicial practice

Before the fall of the Berlin Wall, one of the comparative disadvantages of the legal systems of Central and Eastern Europe was the limited relevance of judicial practice. Court decisions were not regularly published, and if they were, it was generally in the form of very short abstracts.  Judicial decisions were rarely discussed within the context of legal education, which limited public discussion and constructive criticism and deprived judges of an important resource for their decisions.

The awareness of this shortcoming was one of the considerations that prompted our department to base our teaching within all three programs on the Socratic method (case method). Our department also offers students the opportunity to do comparative studies of cases that are not readily available (or that are available in languages that are not widely spoken). With the able translation assistance of department students and alumni, who come from a great variety of countries, the department published several collections of important judicial decisions from Eastern Europe and Central Asia (The Case Law of Central and Eastern Europe, European University Press, 2007; two books, two volumes each, edited by Stefan Messmann and Tibor Tajti).

The Department of Legal Studies remains committed to taking the lead in teaching and research and in helping students face new challenges.


the wave of new constitutions


CEU is 20 years old, and at the same time Hungarian democracy came of age. We have been living under the 1989 post-Communist constitution for more than 20 years now. Instead of reflecting on or celebrating the two decades of constitutionalism however, a new, already much criticized document takes over the place of the old foundational legal instrument. In April 2011 the Hungarian Parliament adopted a so-called basic law, i.e. a new constitution effectively axing the rule of law, abusing democracy and curtailing human rights. Even the formalities leave much room for improvement: the authors of the document are unknown, it has been adopted in a rush, virtually without public involvement, without a public demand. The lack of a constitutional moment is however the tiniest among the problems. The constitution makers adopted a Preamble cherry picking historical periods from Hungarian history, emphasizing some, while downplaying others; it abolished large parts of constitutional review, which had a longstanding tradition in Hungarian law; restricted the scope of action for further governments; foreshadows more restrictive abortion laws; precludes marriage between persons of the same sex; prevents a finding of the unconstitutionality of real life imprisonment, etc. Both the Council of Europe and the European Union expressed their worries concerning the new basic law. 

Some contend, there was nothing wrong with the 1989 constitution (officially Act XX of 1949, which underwent major revisions in 1989 and 1990, furthermore also subsequently has been modified substantially) and lobbied for it to remain in force. I believe - apart from the issues which could have been remedied through amendments - there was one major problem that should have been thought of by the constitution makers during the political changes: how will the document protect itself against those who are using its own wording for abusing it? What militant democracy elements should have been included to avoid the degrading of the rule of law? Could it have been avoided? Is it realistic to demand from those participating in the regime change to foresee that in the not so far future the rule of law and human rights will effectively be cut back? Do international organizations or does the European Union possess tools for protecting Member States against themselves?