Abstract
Are de jure constitutional rules significant for constitutional practice? We pose this question with regard to de jure and de facto protection of constitutional rights in post-socialist countries of Europe and Asia. While, after 1989, these countries enacted broad catalogues of rights and freedoms, they are by now often regarded as electoral, not liberal democracies, i.e. they generally allow for political competition and fair elections but witness considerable violations in civil and minority rights. We use various econometric techniques to determine whether, and under what conditions, de jure rights originating from texts of post-socialist constitutions matter for de facto protection of rights in these countries. Our results reveal no such significant unconditional effect, with the exception of freedom of assembly/association. We do, however, find a positive significant effect conditional on judicial independence, democratization level, and robustness of civil society. The conclusions allow to propose guidelines for post-socialist legislators and bring a contribution to the broader debate on the role of de jure constitutional rules for their de facto equivalents, which has so far been essentially inconclusive.
Highlights
Economic literature interested in constitutions and constitutional change systematically confirms the significance of constitutional frameworks for policy decisions and various economic outcomes
We demonstrate the results of ordinary pooled OLS estimation for our panel, Column II reports the results with fixed effects (FE), and Column III—for the Hausman–Taylor (HT) approach
Such negative significant effect is found in all three columns of Table 4 for presence of an armed conflict, age of the constitution measured by the number of years since its adoption, and population size
Summary
Economic literature interested in constitutions and constitutional change systematically confirms the significance of constitutional frameworks for policy decisions and various economic outcomes (see surveys by Voigt 2011, 2020a). The discrepancy between de jure and de facto constitutions became the focus of studies in this field, relating in particular to the so-called constitutional underperformance (Law and Versteeg 2013) or de jure–de facto constitutional gap (Metelska-Szaniawska 2020; Voigt 2020b) If, based on these studies, one aims at formulating recommendations with regard to desired constitutional change, the crucial question concerns whether and, if so to what extent, the text of the constitution impacts constitutional practice. If such impact is confirmed, one can speak of indirect relevance of de jure constitutions for policy decisions and economic outcomes, even if, as argued above, their direct effects may be questionable. In this paper we pose such question with regard to the protection of civil rights in post-socialist countries of Europe and Asia, i.e. we aim to determine whether, and under what conditions, de jure rights originating from texts of post-socialist constitutions matter for de facto protection of rights in these countries
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