Liberal Constitutional Democracy Research Articles

Liberal democratic accountability standards and public administration

AbstractThis paper serves as a renewed call for public management scholars and public leaders in liberal democracies to be the champions of accountability standards that are explicitly and implicitly inherent to liberal democratic forms of governance. This call is particularly salient amid increasing populism, polarization, and democratic backsliding. Drawing from the historical and contemporary political and legal philosophies of small‐l liberalism and democracy advanced throughout the ages, we define a set of seven liberal democratic accountability standards focusing on matters of authority, rights, tolerance, truth claims, and professional deference. We then consider how these standards relate to some of public administration and management's ongoing considerations of the politics‐administration dichotomy, citizen engagement, and network governance, and make the case for more explicit focus on liberal democratic accountability standards in public management scholarship.

Is There a ‘Constitutional Moment’ in Israel and Hungary?

AbstractThis article addresses the concept of ‘constitutional moment’ in contemporary Israel, where an illiberal constitutionalisation process is in progress, and in Hungary, where the illiberal constitutional system has been in place since 2010. After discussing the judicial overhaul of the current Israeli government and the widespread protest movement against it, the article raises the question of whether the moment to adopt a written constitution has arrived. In Hungary, where a semi-electoral autocratic constitutional regime has been entrenched, the question is what are the perspectives on a return to a liberal democratic constitution.

Understanding layered dominance of political dynasties in India: A de-hyphenated reading of dynastic representation and dynasty-led parties

India has witnessed the dominance of a plethora of political dynasties, both at the national as well as the state level, since independence. The post-colonial Indian state adopted a liberal constitutional democracy premised upon modern representative institutions. However, the primordial principle of hereditary succession of power resiliently co-existed in the form of powerful political families that have continued to impact the nature of Indian democratic political discourse till today. The political parties are an instrumental driver of political life in all modern representative democracies including India. Hence, it is crucial to study how the Indian party system has consolidated the prominence of political dynasties especially from the 1970s onwards, in the realm of both party organisation and the representative institutions. In this context, the article attempts to problematise the nature of dynastic politics in India and offers a framework to analyse the causes of its dominance to understand how it impacts the right to equal political opportunity and electoral competitiveness. The article makes three arguments. First, to better understand the amorphous nature of dynastic politics, two elements – dynastic representation in elected institutions and dynasty-led parties – need to be studied distinctively, despite some commonalities. Second, dynastic representation is largely ubiquitous in most political parties (in both dynasty-led and non-dynasty-led parties) due to the party's preference for legacy candidates and their higher chances of electoral winnability. Third, the article offers two typologies of dynasty-led parties, explaining why the dynasties’ grip over their parties, particularly in recent times, appears to be mostly performance-immune and in what circumstances some dynasty-led parties not only perform better in electoral contests than others but also face tough competition for retaining their dynastic control over the party. Lastly, the article concludes with some reflections on how dynastic representation and dynasty-led parties impact the form and substance of the Indian party system and democratic politics.

The Post-Soviet as Post-Colonial: A New Paradigm for Understanding Constitutional Dynamics in the Former Soviet Empire by William Partlett and Herbert Küpper (review)

Reviewed by: The Post-Soviet as Post-Colonial: A New Paradigm for Understanding Constitutional Dynamics in the Former Soviet Empire by William Partlett and Herbert Küpper W. E. Butler Partlett, William and Küpper, Herbert. The Post-Soviet as Post-Colonial: A New Paradigm for Understanding Constitutional Dynamics in the Former Soviet Empire. Elgar Monographs in Constitutional and Administrative Law. Edward Elgar, Cheltenham and Northampton, MA, 2022. xii + 269 pp. Notes. Bibliography. Index. £95.00. Unlike the American experience where the Constitution has remained in force since 1789 with infrequent amendments, the first ten coming rather quickly, Russia in the twentieth century experienced several generations of constitutions between 1905 and 1993, all linked expressly or otherwise to fundamental changes in societal development and held out as a model for other state systems to emulate. Western political science and comparative constitutional law have found it instructive to view such constitution-making through the prism of 'authoritarian' models as juxtaposed with 'democratic', usually acknowledging that pure versions of either did not exist. The present volume offers an alternative reading to the authoritarian/post-authoritarian perspectives that have dominated comparative constitutional discourse by [End Page 187] suggesting a post-colonial lens be superimposed on constitutional-making processes. The category of 'post-colonial' is seen as an additional, not a replacement, perspective which the authors hope will improve our perceptions of 'constitutional dynamics'. The (former?) colonial power is Russia in their analysis, which acquired 'colonies' that fell into two groups: the former Soviet republics within the USSR, the 'inner Empire'; and the satellite States, formally independent but under Soviet domination (Central Europe, Mongolia and the Baltic States), here styled as the 'outer Empire'. Hungary is singled out as a case study of constitution-formation and given a separate chapter. Omitted from consideration are areas where the Soviet authorities exercised 'soft power' — Yugoslavia, Albania, China, North Korea, Vietnam, Kampuchea, Laos, Cuba — and others once classified as countries 'of a socialist orientation'. From the outset the authors avoid the key issue of what differentiates a 'post-authoritarian' and a 'post-colonial' jurisdiction as being beyond their scope. They do suggest that 'post-authoritarian' implies a progressive transition towards liberal democratic constitutionalism, a limited State, a strong judiciary, and an emphasis on individual, rather than collective, rights. One immediate problem is that 'colonial' is a pejorative term that engages multiple (two or more) subjects of international law, whereas 'authoritarian' is a domestic law term confined to a single jurisdiction. There is no definition of 'colonial' in international law; usually it is explained by examples. On a broad reading, every historical situation in which a state exercises, or claims to exercise, influence or authority over a people, nation, or state outside its boundaries is eligible for possible classification as a 'colony'; often the term is associated with flows of migration and settlement. Self-awareness may also be a factor. Russia until 1917 declared itself to be an empire and from at least Petrine times forward was widely so regarded — a self-perception that some would regard as automatically making Russia a colonial power. The authors concentrate on the dissolution of the former Soviet Union but do not really address the Russian Federation as a colonial or post-colonial entity. Modern Russia is said to contain one hundred or so ethnic groups, some more or less concentrated geographically, others dispersed throughout the land. The Russian Constitution recognizes, as of October 2022, eighty-nine subjects of the Federation (or should some or all be designated as 'colonies'). All eighty-nine have a constitution or equivalent constitutive document and are bound together by international treaty. An authoritarian paradigm treats Russia as a single entity for these purposes; a colonial paradigm, if applicable, would take a different perspective. Within the limited scope of this study, the authors work with a very broad brush. They are no doubt correct that the colonial/post-colonial paradigm [End Page 188] offers insights into constitution-formation and collateral issues not readily observable through alternative paradigms. All of which enriches the discipline of comparative law. Omitted from their study and virtually all others in this field is a consideration of the twenty-one-volume verbatim...

The Risks to Judicial Independence in Latvia: A View Eighteen Years Since EU Accession

The European Union (EU) is in the midst of what could be deemed the biggest threat to its current order since its inception: Member States backsliding on EU founding values. Indeed, the EU is showing no sign of having the rule of law backsliding crisis under control in states such as Hungary and Poland, a decade since the first signs of populist takeovers emerged. Since the foundational values of liberal constitutional democracy were first challenged in these two Central Eastern European (CEE) countries, similar issues in other Member States have also come to light, such as in the Czech Republic and Malta, amongst others. However, little information is available about the democratic stability of other States that also acceded to the EU in 2004. This paper is a stocktaking exercise which aims to address this gap in relation to the fidelity of Latvia to the founding EU value of the rule of law 18 years since it became an EU member. It will examine the state of judicial independence in Latvia during the past few years. Attacks on judicial independence are the main battleground on which the EU is fighting Hungary and Poland, and a value that is considered central to the EU’s understanding of the rule of law. It is important to understand Latvia’s current state of judicial independence in order to build a broader picture of the status of the rule of law in all Member States. This knowledge will help to fight the EU’s rule of law crisis and the rise of populism. This is something that needs to be achieved sooner rather than later so that the EU can stand united against an ever more aggressive Russia to the East. Keywords: Latvia, European Union, democracy, rule of law, backsliding, judicial independence. DOI: https://doi.org/10.3935/cyelp.18.2022.482 This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: B Monciunskaite, ‘The Risks to Judicial Independence in Latvia: A View Eighteen Years Since EU Accession’ (2022) 18 CYELP 129.

What is constitutional interpretation?

Abstract Constitutional interpretation is usually assumed to be a particular kind of legislative interpretation—particular, because constitutions have characteristics of their own, yet legislative interpretation all the same, because constitutions are written laws enacted by a (supreme) political authority. This article argues that the legislative paradigm is ill-suited to constitutional interpretation, for it represents an encroachment of the ontology of legality on the realm of constitutionality. Making sense of an object as a constitutional norm presupposes the a priori category of the constitution, understood as a substantive category in its own right, as intimated in the tradition of liberal democratic constitutionalism. It is this presupposition that makes constitutional meaning possible and justifies considering constitutional interpretation as something peculiar to itself, seriously downplaying the significance of contingencies of form, language, structure, and history in constitutional argument.

Mandatory vaccination requirements and the green Covid-19 certificate: a fundamental rights perspective in Italy

Since the Covid-19 pandemic outbreak in March 2020, governments worldwide have resorted to various measures to manage and contain the spread of the virus. In Italy, for example, severe restrictions on freedom of movement were enforced from the very beginning, and they lasted until the vaccination campaign picked up in Spring 2021. At that point, the executive started to lift the most severe measures progressively, and, at the same time, it began to use other legal instruments. For instance, besides progressively enforcing a compulsory vaccination requirement for some categories of people only, the executive introduced a novelty in the Italian legal system: the Green Covid-19 Certificate (or ‘Green Pass’), which not only became a condition to access venues and make use of services, but it also became a condition for the enjoyment or exercise of fundamental rights, including the rights to education and work. The aim of this paper is to assess the Italian Government’s decisions through the lenses of liberal democratic constitutionalism, reflecting upon the balance that was struck between public health and individual fundamental rights. This kind of assessment is especially important in times of emergency, as they are typically defined by fast-tracked and temporary decisions which may, nevertheless, “inadvertently” become embedded in the constitutional legal order.

Correction to: Executive aggrandizement in established democracies: A crisis of liberal democratic constitutionalism

Correction to: Executive aggrandizement in established democracies: A crisis of liberal democratic constitutionalism

What is democratic backsliding?

What is democratic backsliding?

Liberal Constitutional Democracies in Times of Crisis

Liberal Constitutional Democracies in Times of Crisis

The “Era of the City” as an Emerging Challenge to Liberal Constitutional Democracy

AbstractExtensive urbanization is one of the most significant demographic and geopolitical phenomena of our time. Yet, with few exceptions, constitutional theory has failed to turn its attention to this crucial trend. In particular, the burgeoning constitutional literature aimed at addressing phenomena such as democratic backsliding, constitutional retrogression, and populist threats to judicial independence and the rule of law has failed to respond to the significance of place as an emerging cleavage in contemporary politics. An alarming disconnect has emerged between constitutionalism's overwhelmingly statist (or Westphalian) outlook and the reality of geographically localized concentration of worldviews, policy preferences, and political identities. In this essay, I identify urban agglomeration and the accompanying resurgence of the urban-rural divide as posing a critical challenge to liberal constitutional democracy, and argue that the time is ripe to pay closer attention to the spatial dimension of constitutional governance and its impact on the rise of anti-establishment political resentment. To that end, in the essay's final part I identify several areas of constitutional law and theory that appear to hold some intellectual promise in thinking creatively about mitigating the urban-rural divide, and about the mounting urban challenge more generally.

K odrazu premien súčasnej európskej spoločnosti v živote kresťana

The majority population of the Slovak Republic professes Christianity. It has been a part of the Slovak statehood and society since the existence of Nitra Principality to the present. The Christianity accompanied the Slovaks through the Great Moravian Empire, the Kingdom of Hungary, Austrian Empire, Czechoslovakia. However, the qualitative parameters of the clergy and finally the position of Christians are changing more and more in the current Slovak society integrated into the European Union. Especially under the pressure of the aggressively promoting so-called liberalism. This raises the question of whether it is better to prioritize the authoritarian and Christian-based functioning of the state or to favor a liberal-democratic constitution with a growing dictatorship that tends to have full control over European nations and resigns in the interests of European civilization. The ideology of Islam thus stealthily creeps into the Christian states of Europe. Convergent to this state, we drafted the text of the paper. Based on an analysis of the current state of European society, the contribution concludes with the hypothesis that changes in contemporary European society have a significant impact on the lives of Christians in the Slovak Republic and in the European Union.

COMMISSIONS OF INQUIRY AS A RESPONSE TO CRISIS: THE ROLE OF THE JALI COMMISSION IN CREATING PUBLIC AWARENESS OF CORRUPTION (PART 2)

When the government of a liberal constitutional democracy is confronted by some or other existential crisis that threatens a major institution of state or the very foundations of the democracy itself, it will often appoint a high-level judicial commission of inquiry as part of its response to the crisis. South Africa is no exception to this tendency, as is evidenced in recent years by the appointment of no fewer than four such commissions in response to a series of crises related to ongoing corruption within state institutions – commonly referred to by ordinary South Africans as “state capture”. This has raised questions as to the alleged benefits of such commissions when viewed in relation to their considerable costs. This article seeks to contribute to this general debate by focusing on one of the purported benefits of such commissions that may be somewhat under appreciated. This is the creation of public awareness, during the life of the commission itself, about the nature and extent of the particular grave threat that confronts the society in question. It is contended that, mediated by a free and vibrant press, the public narrative that emerges during the operation of a commission of inquiry may serve to make a liberal democratic society more resilient in the face of threats to that society’s continued existence. This article seeks to support this contention by focusing on an important precursor to the more recent commissions of inquiry on corruption in South Africa – that is, the Jali Commission of Inquiry into corruption within the South African penal system, which sat in the early years of the new millennium. By analysing the many articles and reports that appeared in a range of South African newspapers during the initial hearings of the Jali Commission, this article documents the emergence of an important public narrative on corruption within South Africa’s prisons, and reflects upon the ultimate significance. This article is divided into two parts: the first part deals with the initial hearings of the Jali Commission in KwaZulu-Natal, and the second part with subsequent hearings in the Free State.

The reference to constitutional traditions in populist constitutionalism – The case of Hungary

AbstractThe paper aims to highlight the nature and the relevance of the reference to constitutional traditions in the building of populist constitutionalism, with special regard to the Hungarian case. In Hungary the goals and effects of this reference – especially the references to the achievements of the historical constitution – must be discussed at the level of the constitutional text and with regard to the formation of the new constitutional jurisprudence and, furthermore, to the creation of the constitutional identity. Outstanding political theories have been built about the elements of national populism and all include a political emphasis on a nation's pride in its culture, history and traditions. This paper examines the normative legal consequences of this in a state where the populist political forces have consecutively gained a majority in the Parliament which enables them to adopt and amend a constitution and decide on the personal make up of the constitutional court. It examines the role of the reference to constitutional traditions in the transformation of the constitutional system. The illustrative case studies from Hungary show one element of the alternative to mainstream liberal constitutional democracy: a constitutional perception of the sovereign people with a strong common constitutional heritage, this latter to be respected by all state organs and by domestic, European and international law. The paper offers an understanding of this constitutional concept and assembles disclaimers and serious legal concerns that must be taken into account, at least in Hungary, but probably in many other national populist regimes as well.

Legislative resistance to illiberalism in a system of coalitional presidentialism: will it work in Brazil?

ABSTRACT Illiberal governments typically attempt to undermine representative democracy by adhering to a single comprehensive doctrine sustained through a majoritarian account of legitimacy that is suspicious of the rationality of liberal constitutional democracies. But perhaps there is hope for a system of coalitional presidentialism, such as Brazil. It has been argued that coalitional presidentialism may be in a better position to resist an illiberal project to erode democracy because of its centripetal and conservative forces, which might constitute a firewall against the concentration of powers in the executive branch. The legislature can either slow the pace of authoritarian measures or subject the government to relevant political defeats, raising the chances of democratic reconstruction. Should we expect success for legislative resistance to illiberal populism? What can the Brazilian experience under the first eighteen months of Bolsonaro's government teach us about it? Even though it might be too early for a conclusive assessment of these matters, we try to offer in the following sections a moderately optimistic response to the first question based on our assessment of the second.

Commissions of Inquiry as a Response to Crisis: The Role of the Jali Commission in Creating Public Awareness of Corruption (Part 1)

When the government of a liberal constitutional democracy is confronted by some or other existential crisis that threatens a major institution of state or the very foundations of the democracy itself, it will often appoint a high-level judicial commission of inquiry as part of its response to the crisis. South Africa is no exception to this tendency, as is evidenced in recent years by the appointment of no fewer than four such commissions in response to a series of crises related to ongoing corruption within state institutions – commonly referred to by ordinary South Africans as “state capture”. This has raised questions as to the alleged benefits of such commissions when viewed in relation to their considerable costs. This article seeks to contribute to this general debate by focusing on one of the purported benefits of such commissions that may be somewhat under-appreciated. This is the creation of public awareness, during the life of the commission itself, about the nature and extent of the particular grave threat that confronts the society in question. It is contended that, mediated by a free and vibrant press, the public narrative that emerges during the operation of a commission of inquiry may serve to make a liberal democratic society more resilient in the face of threats to that society’s continued existence. This article seeks to support this contention by focusing on an important precursor to the more recent commissions of inquiry on corruption in South Africa – that is, the Jali Commission of Inquiry into corruption within the South African penal system, which sat in the early years of the new millennium. By analysing the many articles and reports that appeared in a range of South African newspapers during the initial hearings of the Jali Commission, this article documents the emergence of an important public narrative on corruption within South Africa’s prisons, and reflects upon the ultimate significance of this narrative. This article is divided into two parts: the first part deals with the initial hearings of the Jali Commission in KwaZulu-Natal, and the second part with subsequent hearings in the Free State.

Participation and legitimacy in Chinese environmental politics: a realist approach

ABSTRACT Recent empirical literature suggests that some of the most prominent environmental policies that the Chinese government has pursued have involved at least some measure of participation from citizens. These findings suggest that at least some political authorities in China believe that effective environmental policies will require more participation. However, since the accounts of political legitimacy promulgated by the Chinese government have been developed in order to downplay the need for greater participation (at least in a liberal-democratic form), it is unclear whether these accounts of legitimacy can allow space for the kind of participation that successful environmental politics demands. In this article, I use a realist approach to political legitimacy to address this question. I argue that the dominant legitimation narratives in Chinese politics provide the government with legitimacy-related reasons to allow greater citizen participation in environmental politics, but also provide it with other legitimacy-related reasons to restrict participation.

The Myth of the Illiberal Democratic Constitution

This chapter argues that the category of the illiberal democratic constitution is a very unstable one. It tends to collapse, in different ways, into two other categories: the liberal democratic constitution and the authoritarian constitution. In theory, an illiberal democratic constitution would be based on popular will and would thus hold free and fair elections, but without including the separation of powers and rights to check majority will. But in practice, the design of illiberal constitutions draws heavily on liberal democratic constitutionalism, containing rights, courts, and other counter-majoritarian institutions. No distinctive illiberal constitutional design has emerged, and illiberal, anti-democratic impacts are instead achieved by subverting or abusing liberal democratic designs. In another sense, the illiberal democratic constitution tends to collapse into authoritarianism. This is because liberalism and democracy have a strong tendency to erode together – attacks on liberal concepts like rights and courts also usually tilt the electoral playing field heavily in favor of incumbents, making elections increasingly problematic tests of popular will. Crediting the claims of would-be autocrats that they are actually (illiberal) democrats thus buys into a dangerous myth. It grants a specious imprimatur of majoritarian democracy, while allowing them to reject “western” liberal baggage that is in fact crucial for protecting democratic constitutionalism.

The Institutional Role of the Judiciary in Israel’s Constitutional Democracy

Since Israel became a constitutional democracy in the 1990s, following the passage of human rights basic laws, the Judiciary had faced growing criticism pertaining to its role in the constitutionalization process. While some of the criticism leveled against the Judiciary is warranted, one should be mindful of the unique institutional role of the Judiciary in the Israeli democracy due to two background factors: the vulnerability of Israel’s system of human rights protections and the weak state of other potential checks and balances. Under these particular circumstances, the Supreme Court plays a pivotal role in preserving Israel as a liberal constitutional democracy. It fulfills such a role both directly, through upholding human rights via judicial review it exercises in defense of politically marginalized groups, and indirectly, through influencing the political discourse on human rights taking place within the other branches of government. Still, the Supreme Court has shifted in recent years towards a more restrained stance vis-a-vis the political system, offsetting thereby much of the earlier criticism directed against it for overreaching.

BREXIT, democracy and the rule of law

AbstractThis article employs the image of the antisyzygy, the yoking of opposites, as an analytical tool to understand the dynamic and unresolved tensions built into the very idea of the European Union. It describes the EU as a forming a supranational constitutional space which does not supersede nation states, but instead seeks to preserve their specific identities while promoting and protecting the fundamental values they are called upon to embody as liberal constitutional democracies. The article then critically examines constitutional developments in the UK subsequent to its decision to leave the European Union and suggests that, paradoxically, it may have been the European Union which held the post‐War post‐imperial United Kingdom together and, without it and outside it, we may anticipate the UK's imminent dissolution into its original constituent nations – Brexit leads inexorably to BreUK‐up.