Systems of government
Systems of Government
The term 'government' refers to the process by which collective decisions are made and put into action within a community by designated individuals or groups. These decision-makers are known as 'rulers,' while the community members are 'the governed.' Governance involves directing or influencing people's conduct through rules, institutions, and sanctions. In contemporary democracies, state power is exercised through this process.
People are governed by various entities at different levels. 'Systems of government' are the diverse arrangements through which these institutions interact and cooperate in law-making and enforcement. These systems are shaped by factors like the level of democracy, political parties, electoral systems, wealth distribution, and the degree of power decentralization. Constitutional law primarily focuses on the decision-making processes of state institutions, particularly legislatures, executives, and courts. Since the late eighteenth century, the state has governed in unprecedented ways, notably through extensive legislation and a specialized bureaucracy.
This chapter offers an introductory overview of the main systems of government in democratic nations that uphold the rule of law.
Preliminary questions
Law, government, and politics
While government encompasses more than just law, law is pervasive throughout the modern state. Government is often equated with law-making (statutes, regulations, international treaties) and the administrative structure that enforces laws. Courts oversee the application of laws, as their application may be complex or subject to interpretation.
The emphasis on law-making has led lawyers to equate the state with law-making and implementation, setting aside issues of power and politics. From this perspective, political scientists study 'government' through positive facts, while lawyers focus on 'positive law'.
However, politics is pervasive, involving collective decision-making, individual and group preferences, pressure on decision-makers, appointments and dismissals, policy-making, and bargaining. Constitutions provide the framework for organizing political activity by expressing values, outlining decision-making procedures, and establishing institutions to shape political action and manage conflict.
Constitutions do not always function as intended. For example, France's Fourth Republic (1946) was seen as hindering development due to political instability and the Algerian decolonization conflict. Likewise, in 2011, the US faced constitutional challenges when a Democratic President and a Republican-majority House struggled to reach a debt deal.
Constitutional arrangements may vary in effectiveness across different contexts. The parliamentary system, successful in the UK, failed in many former African colonies due to differing political contexts. Even small variations in the political environment can lead to significant differences in how formally similar systems operate. For instance, executive-Parliament relations differ significantly between the UK and South Africa. Similarly, Germany has maintained stable coalitions, while Belgium has faced government formation challenges.
Constitutional processes and institutions influence politics, and vice versa. Ignoring this relationship can lead to misunderstandings of both law and politics.
'Governance' in a changing world
The term 'governance' has been revived to encompass a broader understanding of government beyond formal rules, covering changes arising from globalizing social, economic, and technological developments.
Modern governance is largely a universal phenomenon. States, regardless of their systems (parliamentary, presidential, etc.), face similar challenges (environment, economic policy, multiculturalism, law and order) under similar constraints (resource scarcity, demands for rights protection), and often find similar solutions through cross-fertilization. 'Governance' is increasingly transnational, with regional courts (e.g., the European Court of Justice) and international institutions (e.g., the UN, WTO, NAFTA, SADC, EU) playing influential roles. International obligations, including human rights, constrain a country's constitutional choices and law-making, as illustrated by the replacement of governments in Italy and Greece during the 2011 financial crisis under EU pressure.
The classic framework
Comparative government, at the intersection of political science and law, seeks to understand how countries are governed through constitutions and institutionalized politics. It uses terms like 'systems,' 'structures,' and 'regimes' to lend rationality to its approach, though this can be challenged by the changing nature of political action. Some political scientists suggest using terms like 'situations', 'fields', or 'games' instead of 'system'.
Categorizing systems of government has been difficult, often producing categories rather than explanations. However, this standard categorization remains robust and provides a common language.
The categories of governmental systems are best suited for Western liberal democracies. They do not easily apply to non-Western political regimes, such as China. Additionally, the use of Western constitutional categories in non-Western contexts does not guarantee Western-style outcomes. While India's parliamentary system may resemble a Western model, countries like Thailand and the Philippines have vastly different cultures and values that significantly impact their systems' functioning.
The standard categorization distinguishes between parliamentary and presidential forms of government, while acknowledging other forms like the Swiss system or the EU institutions.
The parliamentary/presidential categorization is based on the concept of separation of powers, which aims to translate this principle into working institutions. Separation of powers is a principle of political morality that seeks to secure political liberty by preventing the concentration of state power in a single institution. The way countries distribute state competences differentiates their systems of government. These models are products of history and power struggles. The British parliamentary government evolved from practice and political thought, while the US presidential system developed through formal constitution-making. The French system shares executive power between a directly elected head of state and a Prime Minister from Parliament.
Separation of powers is closely associated with the US, where it defines the relationship between Congress, the President, and the Courts. However, functions are not entirely separated, as executives make regulations, legislatures appoint court members, and courts review laws, with the power to make law.
The description 'separation of powers' is even less evident in parliamentary regimes where executive members are often members of Parliament. Nonetheless, functions are separated to some extent, with the bureaucracy separate from the legislature and courts independent from executive or parliamentary control.
Parliamentary government
'Parliamentary government' is a common form of democratic government, characterized by a collective executive accountable to an elected legislative chamber. This accountability is expressed through 'votes of confidence.' A 'vote of no confidence' leads to the executive's resignation. Key features can include a separate head of state, and the executive's power to dissolve Parliament.
In parliamentary systems, the largest party or coalition forms the government, with its leader becoming Prime Minister and choosing a cabinet. The executive generally has Parliament's support, reflecting a positive political relationship. The parliamentary majority approves of the cabinet's political intentions and supports their legislative implementation.
Cooperation between Parliament and the executive keeps the executive in office. Rejecting legislation deemed a confidence issue can signal the cabinet's defeat.
Parliament's role is not to make ultimate political decisions but to ‘advise and consent’ on policies and statutes devised by the executive. The executive acts with Parliament's 'confidence.' This system has often led to a decline in the power of heads of state, leaving them with formal powers but limited political influence. Political decision-making by an unelected head of state can be problematic.
In continental Europe, the British model has been praised for its stability. Written constitutions have attempted to reproduce its features, formulating British conventions into entrenched clauses and developing new rules. The German and Austrian Constitutions of 1919-1920 furthered this process, 'rationalizing' parliamentary government through specific rules and procedures.
(a) Executive's internal functioning: Rules limit the head of state's power and extend the Prime Minister's prerogatives. Requiring ministerial countersigning of the head of state's acts ensures ministerial accountability in Parliament.
(b) Ministers' appointment and dismissal: Modern constitutions emphasize Parliament's 'elective function,' such as preliminary votes of confidence or direct election of the Prime Minister by Parliament. Dismissal can also be structured to ensure stability, as seen in Germany's 'constructive vote of no confidence'.
(c) Dissolution: Rationalization has constrained the dissolution power, conditioning its use on certain circumstances, such as a vote of no confidence or failure to appoint a Chancellor. Time restrictions may also apply.
There are many variations on the Westminster-style parliamentary regime. Ministers may be appointed from outside Parliament or may not be members of Parliament at all. In South Africa, the National Assembly elects the President from its members, but the President must leave Parliament upon election. Despite these variations, the accountability of the executive to the legislature remains a basic feature.
The French system, followed in Francophone African countries and Eastern Europe, is a significant variation. While often called 'presidential' or 'semi-presidential,' it is an instance of parliamentary government with a head of state elected by universal suffrage. The cabinet is accountable to Parliament. In France, if the parliamentary majority aligns with the President, it is 'the President's majority,' supporting the cabinets appointed by the President. In 'cohabitation' phases, where the President and parliamentary majority differ, the system functions as a classic parliamentary government, with the Prime Minister setting the political agenda.
These regimes are sometimes called 'presidential' because the head of state appears to hold significant power, appointing and dismissing ministers. However, they are parliamentary regimes with a strong President elected by universal suffrage.
The American 'presidential' model
The American system is the classic presidential system built upon the separation of powers, where the legislative, executive, and judicial functions are divided among Congress, the President, and the Supreme Court. This vesting of powers is not absolute because functions overlap to prevent any one branch from monopolizing power. The system is built on 'checks and balances', such as the presidential power to veto laws and the Senate's involvement in executive appointments.
The branches of government have independent legitimacy. The President cannot dissolve Congress, and Congress cannot force the President to resign through a vote of no confidence. The President can only be removed through impeachment by Congress for 'Treason, Bribery, or other high Crimes and Misdemeanors.' Impeachment is a specific instance of political accountability, protecting the constitutional system against egregious behavior that imperils the constitutional edifice.
Presidentialism outside the US
About 30 countries have adopted 'presidential democracy,' often deviating from the US model. In South America and Africa, Presidents often have greater powers and weaker checks and balances, including substantial law-making powers. Emergency powers can also grant Presidents the power to suspend rights, sometimes with legislative oversight. Additionally, legislative approval for cabinet appointments may not be required, and the judiciary may be weakened if the President controls judicial appointments. Some Presidents also have the power to dissolve the legislature.
These variations can affect the operation of the separation of powers. Terms like 'hyper-presidentialism' and 'imperial presidency' describe cases with few democratic checks. The poor record of presidential regimes in South America has sparked debate about their relative merits compared to parliamentary systems.
Systems that are neither parliamentary nor presidential
The standard analysis must acknowledge exceptions to the parliamentary/presidential divide, such as Switzerland. In Switzerland, the Federal Council, the federal executive, is elected by the Federal Assembly, which also elects a Federal President annually from the Council's members. The Council operates collectively but is not subject to the Assembly's confidence. Thus, the Swiss system is 'non-parliamentary' and 'non-presidential'.
The Swiss system also highlights the limitations of formal descriptions in explaining government processes. The Federal Council includes a coalition of four parties reflecting their representation in the legislature. The system is characterized by consensus, with political decisions reached through negotiation and compromise.
Government systems in flux: pathologies, cures, and 'fit'
Pathologies
Parliamentary and presidential governments face challenges like instability, insufficient accountability, and a 'crisis in governance'. Each model is prone to specific pathologies; parliamentary government is often seen as unstable and powerless, while the presidential system is associated with immobilisation.
Presidentialism has been considered detrimental to countries adopting it, especially in Latin America, coinciding with regime instability. Juan Linz argues this is due to 'mutual independence' between the executive and the legislature, leading to irresolvable conflicts. However, other scholars argue that presidential systems may not be inherently less stable than parliamentary systems and that instability may stem from other factors such as military dictatorships.
Cures?
Political reforms to address these pathologies are not specific to any one model. To improve 'good governance' and accountability, state competences have been devolved to independent agencies. Newer constitutions have also established 'independent institutions' as additional branches of government, such as Central Banks, Electoral Commissions, and Human Rights Commissions.
Critiques often focus on the shortcomings of the classic separation of powers model. In Europe, initial fascination with the Westminster model has been replaced with attempts to incorporate features of the US presidential system. In France, the 2008 overhaul of the Constitution aimed at creating a greater balance between the executive, courts, and parliament.
In the face of perceived failures of presidential government, especially in South America, a plea has been made for 'constrained parliamentarism'. Constrained parliamentarism would involve parliamentary government while constraining law-making through a greater involvement of the people and increased judicial review of higher 'substantive political principles'.
Fitness issues: adjusting governmental systems to political realities
Debate continues on which system of government is 'better.' The choice of system is critical for constitutional designers in new states or those emerging from authoritarian rule or contemplating constitutional change.
Abstract discussions about the virtues and vices of government systems can be misleading. Understanding how constitutional engineering can fix political problems depends on a closer look at national contexts and their interaction with system design. Juan Linz argues that presidential systems are unsuitable for societies deeply divided by ethnic or other differences.
The discussion of what system is best in ethnically divided societies is framed by Arend Lijphart and Donald Horowitz's debate. Lijphart argues that 'majority rule in plural societies spells majority dictatorship and civil strife', advocating for 'consociational democracy' where as many people as possible are involved in decision-making. Consociational systems involve autonomy for different groups, power-sharing, and civil service distribution. Lijphart prescribes 'executive power sharing in broad multi-party coalitions' and 'executive-legislative balance of power.' Examples include the Swiss system and Kenya's 'grand coalition' government.
Horowitz believes consociational systems will not work when most needed, proposing a 'centripetal' approach that provides incentives for ethnically based parties to appeal to voters beyond their own group. The goal is to encourage accommodation before elections. Horowitz emphasizes the importance of electoral systems and prefers a specially designed presidential system, such as Nigeria's requirement for presidential candidates to secure votes in a majority of states.
Conclusion
A nation's system of government is the backbone of its constitutional system. Ineffective systems jeopardize elections, rights, and resource distribution. Small changes in design, political context, or socio-economic factors can have unpredictable consequences. The 'choice' of system is frequently driven by history and the short-term interests of those making the choice.
Paying attention to systems of government, their relationship to constitutionalism and the rule of law, and their design and implementation may improve our understanding of their strengths and weaknesses. The theory of governmental systems is a necessary tool for constitution drafters, even if it does not provide ready-made blueprints.
Systems of Government
The term 'government' refers to the process by which collective decisions are made and put into action within a community. 'Systems of government' are the diverse arrangements through which these institutions interact and cooperate in law-making and enforcement. Constitutional law primarily focuses on the decision-making processes of state institutions. Since the late eighteenth century, the state has governed in unprecedented ways.
Preliminary questions
Law, government, and politics
Government is often equated with law-making and the administrative structure that enforces laws. Courts oversee the application of laws. Constitutions provide the framework for organizing political activity by expressing values, outlining decision-making procedures, and establishing institutions to shape political action and manage conflict.
'Governance' in a changing world
'Governance' encompasses a broader understanding of government beyond formal rules, covering changes arising from globalizing social, economic, and technological developments. 'Governance' is increasingly transnational, with regional courts and international institutions playing influential roles.
The classic framework
Comparative government seeks to understand how countries are governed through constitutions and institutionalized politics. Categorizing systems of government has been difficult. The categories of governmental systems are best suited for Western liberal democracies. The standard categorization distinguishes between parliamentary and presidential forms of government. Separation of powers is a principle of political morality that seeks to secure political liberty by preventing the concentration of state power in a single institution. The way countries distribute state competences differentiates their systems of government.
Parliamentary government
'Parliamentary government' is characterized by a collective executive accountable to an elected legislative chamber. This accountability is expressed through 'votes of confidence.' Key features can include a separate head of state, and the executive's power to dissolve Parliament. Cooperation between Parliament and the executive keeps the executive in office. The executive acts with Parliament's 'confidence.'
(a) Executive's internal functioning: Rules limit the head of state's power and extend the Prime Minister's prerogatives.
(b) Ministers' appointment and dismissal: Modern constitutions emphasize Parliament's 'elective function.'
(c) Dissolution: Rationalization has constrained the dissolution power, conditioning its use on certain circumstances.
Despite these variations, the accountability of the executive to the legislature remains a basic feature.
The American 'presidential' model
The American system is the classic presidential system built upon the separation of powers. The system is built on 'checks and balances'. The branches of government have independent legitimacy. The President cannot dissolve Congress, and Congress cannot force the President to resign through a vote of no confidence. The President can only be removed through impeachment by Congress.
Presidentialism outside the US
About 30 countries have adopted 'presidential democracy,' often deviating from the US model. Some Presidents also have the power to dissolve the legislature. Terms like 'hyper-presidentialism' and 'imperial presidency' describe cases with few democratic checks.
Systems that are neither parliamentary nor presidential
The standard analysis must acknowledge exceptions to the parliamentary/presidential divide, such as Switzerland. In Switzerland, the Federal Council operates collectively but is not subject to the Assembly's confidence. The system is characterized by consensus.
Government systems in flux: pathologies, cures, and 'fit'
Pathologies
Parliamentary and presidential governments face challenges like instability, insufficient accountability, and a 'crisis in governance'.
Cures?
Political reforms to address these pathologies are not specific to any one model. Newer constitutions have also established 'independent institutions' as additional branches of government.
Fitness issues: adjusting governmental systems to political realities
The choice of system is critical for constitutional designers in new states or those emerging from authoritarian rule or contemplating constitutional change.
Conclusion
A nation