Consistency in constitutional design and its effect on democracy

Abstract. It is a commonplace of comparative politics that the democratic performance of the established democracies of the West is both uniform and superior to that of other democracies across the globe. This commonplace both reflects and reinforces the mainstream measures of democracy, like those of Freedom House or Polity III, that fail to differentiate the democratic performance of the West. This article examines this commonplace by deploying the measures of democratic performance contained in the newly constructed Database of Liberal Democratic Performance, and uses descriptive statistics (means and variance) to compare the performance of individual Western democracies, as well as the West overall with the ‘rest’. The Database is designed to capture a wider normative range of performance than the mainstream measures, and shows that the performance of the West is neither uniform nor superior in every respect, especially with regard to civil and minority rights. These findings are explored and confirmed by comparative case studies of minorities in the criminal justice systems of those Western democracies that tend to perform worst in this respect. In conclusion, it is suggested that the findings may begin to change the way we view the relationships between economic growth and democracy, political culture and democracy, and even constitutional design and democracy.

‘Transitology’ and ‘consolidology’ have only rarely emphasized the importance of defining democracy in a normatively and theoretically sophisticated manner. Almost without discussion they accepted the parsimonious definition and elegant but simple concepts of Schumpeter, Dahl and Przeworski. 1 They reduced democracy to the question of free and general electoral competition, vertical accountability and the fact that the most powerful political and social actors played the political game according to democratically institutionalized rules. At least implicitly, democracy was conceived as an elitist electoral democracy. Neither the structural question of prerequisites for democracy 2 nor the conditions for sustainable legitimacy 3 played and could play a relevant role within this minimalist concept of the sustainability of democracy. But not only the external ‘embedding’ of democracy, but also the ‘internal’ embeddedness of the democratic electoral regime was neglected. Rule of law, civil rights and horizontal accountability were excluded from the concept of democracy. Guillermo O’Donnell (1993) 4 was the first to criticize that conceptual flaw of the mainstream of transitology and consolidology. Thirty years after the beginning of the third wave of democratization empirical evidence revealed the theoretical shortcomings of the minimalist ‘electoralists’. It became evident that it is misleading to subsume Denmark, Sweden or France under the same type of regime – an electoral democracy – as Russia, Thailand or Brazil. Political science ran the risk of even falling behind the analytical capacity of daily newspapers in differentiating between different types of democracy. It became clear that the majority of new democracies could not be labelled ‘liberal democracies’. General, competitive and free elections turned out to be insufficient in guaranteeing the rule of law, civil rights and horizontal accountability. Between elections many of the electoral democracies were not government by, of or for the people. It became obvious, again, that democratic elections need the support of complementary partial regimes, such as the rule of law, horizontal accountability and an open public sphere in order to become ‘meaningful’ elections. Democratic theory has once again met up with research on democratization. Since the mid-1990s studies

In order to evaluate the democratic performance and qualitative maturity of Korean democracy, this study analyzed the cases that were at the center of controversy during the 000 government by methods that focused on sub-systems of the multi-dimensionality of democracy. For the case analysis, four sub-systems (Electoral Integrity, rule of law, vertical accountability, and horizontal accountability) were each assumed. As a result of the analysis, it can be said that democracy in Korea has developed significantly over the past 30 years, but during the recent 000 government, by confirming the degenerative phenomenon of democracy in all areas of the applied sub-systems, it did not reach beyond the consolidation of democracy to the deepening of the quality of actual democracy. The analysis showed the stagnation or decline of democratic performance during the time of the 000 government. The rule of law and the democratic mechanisms to check the president who privatized power did not work as intended. Contrary to the many advances made in inter-procedural democracy, it confirms that there are still many shortcomings in effective checks and monitoring of the powers wielded by the president.

In this chapter, I taxonomize constitutional provisions that reference political parties thematically according to their function. Constitutional provisions that refer to political parties fall into six categories: (a) basic function, (b) the right to form political parties, (c) militant democracy, (d) access to public resources, (e) legislative design, and (f) the separation of party and state. I examine these provisions to answer two questions: (1) How do constitutions rely on political parties to discharge their regulative function? (2) Can we develop a constitutive account of the role of political parties in constitutional democracies? Provisions on the basic function of political parties serve the constitutive function of codifying their roles in integrating and mobilizing citizens, interest aggregation, formulating public policy, simplifying political participation, structuring the popular vote and enabling political competition, representation, and accountability. The right to form political parties furthers the same functions in a regulative sense. Constitutional provisions regarding legislative design further the goals of structuring the popular vote and enabling political competition, accountability, recruiting leaders for public office, government selection, and enabling the enactment of legislation. Constitutional design also reveals an acute concern with the negative risks posed by political parties. Militant democracy provisions serve the constitutive function of conveying the nature of the existential risk that might pose a threat to the constitutional order, and the regulative function of checking that risk. The provisions on the separation of party and state check the risk that parties can capture the state by prohibiting party membership for the courts and security services.

The article examines the relationship between constitutional design and democratic performance. To do so, it draws on a new data set, containing measures of eight core values of liberal democratic government (accountability, representation, constraint, participation, political rights, civil rights, property rights, minority rights) for 40 country cases over 29 years. It uses pooled cross section time-series regressions to explore the effects of executive-legislative relations, electoral rules and federal-unitary government, while controlling for the contextual conditions of economic wealth, political culture, and the longevity of democratic government itself. The article reviews previous attempts to explore the relationship in order to sharpen the definition of democratic performance, explore key aspects of the research design, and compare the statistical results with the present state of our knowledge. Overall the results tend to support the superior performance of parliamentary over presidential systems, and, in lesser degree, of unitary over federal systems. The performance profiles of proportional representation and plurality electoral systems, on the other hand, appear as distinct but quite evenly matched. But reasons are given for exercising some care with causal inferences, and for applying the results to closer-focus comparative institutional analysis.

The rule of law is a traditional concept much used but little examined in its current magnitude. It is a cornerstone of contemporary constitutional democracy as underscored by its paramount role in cementing all of the transitions from authoritarian or totalitarian regimes to constitutional democracy. Moreover, rule of law is one of the three essential elements of modern constitutionalism with protection of human rights and limitation/separation of government powers. However it is not clear what precise characteristics the rule of law must possess to ensure a working constitutional democracy. Thus there is no consensus on what rule of law stands for, even if it is fairly clear what it stands against. In order to determine how the rule of law might contribute to establishing the legitimacy of constitutional democracy in a contemporary pluralistic society, I shall first focus on the essential jurisprudential characteristics of the conception of rule of law in three different legal traditions German, French and Anglo-American and then on the contrast between procedural and substantive safeguards. Secondly I will try to point out the apparent convergence which has occurred between these different traditions. Finally I will describe how rule of law could reconcile the need for predictability with that for fairness in its “globalized” formula, which has been recently shaped by sovranational hard law and soft law rules with particular reference to the Venice Commission activity . The idea of the rule of law as the foundation of modern states and civilizations has recently become even more talismanic than that of democracy, but what does it actually consist of? So far, on one hand scholars have ascertained that, in the broadest terms, the rule of law requires that the state only subject the citizenry to publicly promulgated laws, that the state’s legislative function be separate from the adjudicative function and that no one within the polity be above the law. Moreover, that rule of law is one of the three essential elements of modern constitutionalism with protection of human rights and limitation/separation of government powers. We’ve also realized that in absence of the rule of law constitutional democracy would be impossible and that the rule of law is a cornerstone of contemporary constitutional democracy as underscored by its paramount role in cementing all of the transitions from authoritarian or illiberal regimes to constitutional democracy1. Still, on the other hand we’ve found a paradox at the heart of the rule of law, since that ideal demands certainty and condemns ambiguity in the law, but the ideal itself appears unclear and somehow uncertain. As a matter of fact “there is no consensus on what the rule of law stands for even if it’s fairly clear what it stands against”2. Like the concepts of equality or liberty the descriptive meaning of the rule of law is dependent on the prescriptive meaning one ascribes to it. Consistent with this, the rule of law has come to mean different things within different legal traditions, even within a single tradition it is often not clear whether the rule of law ought to be largely procedural or substantive and a few constitutional texts make express reference to the concept German, Turkish, Spanish and some of the new East-European constitutions . Then, in order to determine whether and how the rule of law might contribute to establish the legitimacy of constitutional democracy in the contemporary pluralistic society it is necessary to deal with the following issues. Firstly we have to observe the connection between rule of law and constitutional democracy and modern concept of the rule of law in three different legal traditions. Secondly we will explore the progressive convergence which has occurred between these notions during the 20th century due to the increasing internationalization and transnationalizations of the rule of law. Thirdly we will evaluate the usefulness of addressing the rule of law as a practical legal concept still able to guide and to constrain the exercise of democratic power.

1. Introduction--Democracy, Parties, and Performance The Contemporary Democracies Political Parties and the Democratic Order Standards of Political Performance 2. Political Performance--The Initial Comparison Citizen Voting Participation Stable and Effective Government Maintaining Political Order Compatibility of the Performance Dimensions 3. The Social and Economic Environment Population Size Modernization and Economic Development Social Cleavages Economic Divisions A Brief Multivariate Consideration 4. The Constitutional Setting Constitutional Design Constitutional Design and Political Performance Constitution and Culture Socioeconomic and Constitutional Effects 5. Party Systems and Election Outcomes Attributes of Party Systems Fractionalization Parties and Social Groups Extremist Parties Volatility of Party Strength Party-System Dynamics Party Systems and Democratic Performance 6. Citizen Involvement I Participation or Turmoil Getting Citizens to the Polls A Causal Model of Voting Participation Turmoil and Its Containment 7. Government Performance / Executive Stability Parliamentary Systems: Government Formation Parliamentary Systems: Durability of Governments Presidential Government 8. Managing Violence and Sustaining Democracy Elite Bases of Deadly Violence Organized Violence: Strategic Objectives and Consequences How Democracies Are Replaced: Military and Executive Coups 9. Democratic Performance--Liberty, Competition, Responsiveness Civil Liberties Political Competition Policy Responsiveness 10. Conclusion--Constraint and Creativity in Democracies Relationships among the Dimensions of Performance Executive Control and Economic Manipulation Institutionalizing Compromise: Consociational Practices Requirements for Performance and Survival Comparative Analysis: Limits and Directions Appendix Notes Index

Constitutional design – Constitutional degradation – Power sharing – The rule of law – Constitutionalism – Constitution making – Constitutional transition – Divided societies – Role of internal diversity – Bosnia-Herzegovina – Inherent degradation – Dynamic degradation – European Court of Human Rights – Sejdić and Finci – Constitutional Court of Bosnia-Herzegovina – Compliance issues with court judgments – Repression of the public sphere – Electoral discrimination of national minorities – High Representative – Lack of local ownership

This article attempts to describe and review how the characteristics of Taiwan's political regime would have been formed since it has not only been inherited a tradition of the rule of human, but also been encountered the modem democratic requirement of the rule of law. Furthermore, this article also tries to analyze the ideal configuration of Taiwanese constitutional design based upon the plausible hybrid system between rule of law and rule of human. In accordance with rule of human's cultural background, this paper considers that political leaders, especially those who occupy the highest position in the Constitution such as the President, should easily fall into the strongman category. This paper therefore proposes that the composition of leadership under Taiwan's hybrid context should embody three elements: authoritativeness, rule by law and benevolence both at heart and as a strategy. This paper then reviews the history of Taiwan's constitutional development since 1950 based upon this theoretical construct of leadership, and finds that it indeed is able to enrich our understanding of several critical moments in this historical process. This paper then suggests that the element of ”benevolence” should be included in the design of the constitutional system, which implies that the ”semi-presidential system” will lead to a ”presidential system” while taking into account how to avoid the role of president falling into a didactic struggle. The relevant design includes a bi-cameral system and a single-member district with a two-vote electoral system. This paper eventually expects that this kind of design may be able to utilize the ”benevolence” in leaders which causes them to be above all kinds of political struggles, and to deliver benefits to the people as many as possible.

Abstract: This paper provides a definition of semipresidentialism and identifies the set of semipresidential countries in the world. It aims to isolate the independent impact of semipresidentialism on democratic performance. The conclusion is that countries should avoid highly presidentialised semipresidential systems, whereas semipresidential systems with ceremonial presidents and strong prime ministers have performed well. In semipresidential systems where both the president and the prime minister have significant powers, the situation is more complex. Many such countries have democratized successfully, but only despite the institutional crises caused by this particular form of semipresidentialism. So, a balanced form of semipresidentialism is a risky choice for newly-democratizing regimes.

The principle of separation of powers, as the cornerstone of constitutional government and the rule of law, faces significant practical challenges within the federal system of Iraq, particularly in the relationship between the central government in Baghdad and the Kurdistan Regional Government (KRG). The Iraqi Constitution formally recognizes the federal system. It grants various competences for implementing federalism and, based on the principle of division of powers and responsibilities, establishes coordination and balance between the federal government and local governments. This article examines the constitutional framework established by the 2005 Iraqi Constitution, which recognized Kurdistan as a federal region with legislative, executive, and judicial powers, and analyzes the ongoing disputes between federal and regional authorities. Through the study of key constitutional provisions, Federal Supreme Court rulings, and practical governance issues, the research demonstrates how the theoretical guarantees of the Constitution have been undermined by political, economic, and legal conflicts. The analysis focuses on critical areas such as oil and gas governance, revenue distribution, electoral procedures, and judicial independence, showing how ambiguity in constitutional provisions has led to competing interpretations and institutional disputes. The findings reveal that while the Iraqi Constitution theoretically establishes a framework for federal governance based on separation of powers, its practical implementation has been obstructed by centralizing tendencies, judicial overreach, and the lack of effective mechanisms for resolving federal–regional disputes. This study contributes to understanding the broader challenges faced by federal systems in post-conflict states and the complex relationship between constitutional design and political reality.

Sovereignty and the National Interest Erik Jones (bio) Much of the world today is torn between national populists and liberal democrats. The national populists put the nation first; the liberal democrats argue for something closer to multicultural multilateralism. In doing so, they offer distinct visions of how sovereignty and the national interest interact. For national populists, sovereignty is an expression of the national interest; whoever wields sovereign authority should ensure that the national interest is served. For liberal democrats, sovereignty is the responsibility to determine what is in the nation's best interests and then to reconcile competing claims and distribute scarce resources accordingly. The two groups also offer contrasting views of world order. The national populists focus on self-help and mutual respect. The liberal democrats emphasise integration, cooperation, and solidarity. Viewed side-by-side, the two worldviews present irreconcilable differences in the constitution of political authority and the structure of international relations. Hence it is tempting to argue that the interaction between national populists and liberal democrats should be limited, particularly when national populism threatens to descend into authoritarianism. But there is a narrow path along which interaction between national populists and liberal democrats can be beneficial, when national populists promise to reconnect members of society who have lost representation within liberal democratic politics. Reconnecting those who fall away from politics is essential to the stability of liberal democracy over the longer term. Indeed, the same point applies for populists from all parts of the political spectrum, and not just the nationalist right that is so prominent in Europe, Turkey, Brazil, India, and the United States today. The question is whether and how populists can effectively represent their constituents while at the same time adapting to liberal democratic norms for reconciling competing interests. That question has not received much attention in the scholarly literature.1 We know a lot more about the origins [End Page 392] and nature of populism, and about how populism can lead to authoritarianism by undermining democratic norms and institutions, than we know about how populists become something closer to mainstream liberal democrats. Research on populists in power is still in its infancy.2 The key to striking a beneficial relationship between national populists and liberal democrats lies in reinforcing the formal and informal institutions that underpin the liberal democratic connection between sovereignty and the national interest. The 'rule of law' debate in Europe and the United States is about protecting those institutions that frame the exercise of sovereignty and ensure that the national interest is defined within the context of liberal democratic politics. So long as those institutions are resilient, national populists will have little choice but to learn how to exercise sovereignty to identify the interests of the nation, rather than bending sovereignty to the service of a national interest they take as given. A study in contrast This relationship between sovereignty and the national interest seems abstract when presented at the start of an essay, but it comes across concretely when laid out in political speeches. Consider the contrast between Donald Trump and Barack Obama. When Donald Trump gave his first address to the General Assembly of the United Nations in September 2017, his message was simple. True patriots everywhere should invest their sovereignty – a word he used twenty-one times during the speech – in the pursuit of the national interest. As Trump explained, 'if we do not invest ourselves, our hearts, and our minds in our nations, if we will not build strong families, safe communities, and healthy societies for ourselves, no one can do it for us'. His only qualification to this notion of self-help is that 'in fulfilling our obligations to our own nations, we also realize that it's in everyone's interest to seek a future where all nations can be sovereign, prosperous, and secure'.3 Trump left open the question how those sovereign nations should reconcile competing claims with one another. Trump's UN speech was different from any given by a United States president to the General Assembly. When Barack Obama spoke at the United Nations the year before, he never mentioned the term sovereignty. There is no question for Obama that the...

Why did the unified government led by Taiwan's president Ma Ying-jeou experience gridlock? In this article, I answer this question by modifying the veto player theory to explain how policies are made in Taiwan's semipresidential system, in which the president can unilaterally appoint a premier who is accountable to the national legislature. Given this constitutional design, the premier represents the president rather than the legislature, so the agenda setter is either the legislature or the president. A veto player model shows that the legislature, as a collective veto player, has the last-mover's advantage when it sets the agenda and that the two executive heads are more likely to be incongruent if a policy has to be deliberated by the legislature. The president sets the agenda only if he can discipline the legislators in his party and the legislature is not allowed to amend an executive proposal. This theory explains why policies involving lawmaking give Taiwan's Legislative Yuan considerable bargaining powers, even to the disadvantage of the president. These theoretical arguments are confirmed by hypothesis-based case studies and can be generalized to study other semipresidential regimes.

Although the principle of separation of powers in Serbia has been regulated following the parliamentary model in the span of three decades, it has in practice functioned most often as a semi-presidential system. This paper analyzes two groups of factors that are the cause of presidentialization. Institutional factors that systematically create an environment suited for presidentialization include shortcomings in the constitutional design, the proportional electoral system and oligarchic tendencies in the party system. Direct election gives the President of the Republic strong legitimacy, and by retaining the position of party leader, in an electoral system with closed electoral lists and weak intra-party democracy, the head of state can easily control the parliamentary majority, the government and the parliament, thus upsetting the balance of power. Another group of factors that strongly affect the action of the aforementioned institutional aspects are a political culture with a strong authoritarian tradition and a lack of respect for the constitution and the democratic tradition. The consequences are strong authoritarian and populist tendencies and a departure from the liberal concept of democracy. The options proposed by the academic and political public as a solution to the situation blocking the consolidation of democracy in Serbia include the normativization of the incompatibility of office of the head of state and party leader, the abolition of direct elections, and a semi-presidential system.

The article is devoted to the study of the essence of the political function of the state, as the modern world is a dynamic environment in which political challenges are constantly changing. The political function of the state in the context of these challenges is analyzed, and it is understood how the state adapts the political function to the new realities. The main mission of the political function of the state is to establish a democratic society and ensure its consolidation. In its activities, the state acts as a mediator in conflicts between different social groups, guaranteeing the protection of human rights for the common good. The political activity of the state is the basis for the effective fulfillment of all its other functions, since they all have a political character. Various institutions operate in the political sphere, which in one way or another affect social relations, ensuring democracy. The political function of the state is fundamental for the establishment of democracy and the effective functioning of the state as a whole. It covers a number of internal and external aspects aimed at ensuring the rights of citizens, protecting sovereignty and developing a democratic society. It ensures the stability and efficiency of the entire state mechanism, using both legal and organizational forms of implementation. It is proved that the political function of the state is basic, since it creates the conditions for the effective implementation of all other state functions. It fills all spheres of public life, because all functions of the state have a political character. The central place of this function is occupied by ensuring democracy. The content of the political function of the state unites: ensuring democracy, protecting human rights and freedoms, ensuring state sovereignty, forming the political system of society, creating democratic conditions for self-organization, forming state policy, protecting the constitutional order and territorial integrity. Today, in Ukraine, which is resisting aggression, the political function of the state is of particular importance. It is designed to ensure the consolidation of society, its ability to self-organize and effectively resist external threats, so a comprehensive analysis of this function is extremely necessary, especially in the context of modern challenges facing the Ukrainian state. It is argued that the successful implementation of the political function of the state is the key to strengthening Ukraine’s position in the international arena, ensuring its security and sustainable development, as well as achieving the strategic goal of European integration. Thus, Ukraine continues its European path. This involves not only adapting to European norms, but also promoting its own interests, as well as contributing to common security and prosperity. The rule of law is a universal principle of regulating social relations in a democratic state and covers all spheres of social existence. The development of doctrinal ideas about the rule of law is closely related to the development of state-legal reality, and, accordingly, the evolution of social institutions. In Western democracies, this principle has always served as the basis of public law and order. Key words: political function, state, state sovereignty, rule of law, modern challenges, democratic development, democracy, human and civil rights and freedoms.