Crafting Constitutions Notes
Crafting Constitutions
Readings
Gryzmala-Busse CH 1-2
Guiding Questions
How did constitutional crafting in Central/Eastern Europe vary from Western Europe?
What constitutional (and political) challenges faced the region in the 1990s?
What is state exploitation?
How does robust competition shape state exploitation?
How does the EU shape state exploitation?
What constitutional (and political) challenges face these states today?
Introduction
Constitutions communicate relationships between political institutions AND lay out the relationship between the government and the governed (Jones and Norton 2014).
Constitutional crafting in East-Central Europe (ECE) differed from the West (Batt and Wolczuk 1998):
States were formed in the recent past. This meant that new states had to define their fundamental principles and structures, often without a clear historical precedent.
Required delineating territorial borders. The redrawing of borders post-communist era led to complex negotiations and, in some cases, conflicts.
Triggered conversation on “who constitutes the demos”. Defining who belongs to the nation and is entitled to political participation became a central question.
Required dealing with citizenship and minority rights. Addressing the rights of ethnic and national minorities was essential for ensuring social cohesion and preventing discrimination.
Had to decide how to deal with communist era constitutions. The legacy of communist constitutions had to be addressed, either by amendment, repeal, or complete replacement.
Political authority vested in the party, not the people. The transition required shifting power from the communist party to democratically elected institutions.
“Restoring Normality”
Goal of constitutional process: “restore normality” as part of a broader attempt to “return to Europe” (Batt and Wolczuk 1998; Zielonka 1994). This involved adopting Western European norms and standards of democracy and governance.
Establish checks and balances, define balance of power, guarantee civil rights, preserve accountability, etc. These measures were intended to prevent the abuse of power and ensure government responsiveness.
Widespread agreement on the need to protect civil rights united pro-democracy forces. Human rights were seen as a universal value and a foundation for democratic societies.
Relatively straightforward. The protection of civil rights was often seen as a non-controversial aspect of constitutional reform.
Statements on human rights were easy to “download” from Western Europe, BUT there was no “one size fits all” approach to crafting political institutions in Western Europe (Batt and Wolczuk 1998; Zielonka 1994).
Westminster logic of the British system. The British model emphasizes parliamentary sovereignty and a fusion of executive and legislative powers.
Semi-presidential nature of the French system. The French model combines a directly elected president with a prime minister responsible to parliament.
Consensus-based democracy in Germany. The German model emphasizes power-sharing, federalism, and the protection of minority rights.
Questions regarding the relationship between the executive, the legislature, and the judiciary arose as crafting became politicized. Disagreements over the distribution of powers between these branches of government became a source of political conflict.
Legislators were responsible for creating institutions they would inhabit. This created a potential conflict of interest, as legislators could design institutions to benefit themselves or their parties.
In many instances, key institutional questions were “glossed over” (Batt and Wolczuk 1998; Zielonka 1994). Important decisions were sometimes avoided or left ambiguous due to political expediency.
Institutions were left “half baked”. This resulted in institutions that were weak, ineffective, or prone to political manipulation.
The strength of a constitution lies in its ability to work when the state is stressed. A robust constitution should be able to withstand political crises and protect fundamental rights.
Can “channel and constrain the struggle for power” when crafted correctly. A well-designed constitution can provide a framework for resolving political conflicts peacefully and fairly.
Can exacerbate political and institutional challenges if crafted incorrectly. A poorly designed constitution can lead to instability, gridlock, and even authoritarianism.
Crafting and State Exploitation
Parties are crafting states AND economies from scratch, creating opportunities to shape who wins/loses politically (Gryzmala-Busse 2007).
Separation of powers, electoral systems, representation in parliament, etc. These institutional choices can have a significant impact on the distribution of power and resources.
Facilitates or prevents state exploitation. The design of political and economic institutions can either promote or prevent corruption and rent-seeking.
Exploitation: the degree to which governing parties can obtain private benefits from public assets. This includes corruption, patronage, and the misuse of state resources.
Transition is a time of uncertainty for parties/elites (Gryzmala-Busse 2007). Political and economic transitions create opportunities for elites to enrich themselves at the expense of the public.
Uncertainty and State Exploitation
Parties have incentives to preserve political longevity (Gryzmala-Busse 2007).
No real social base. Parties often lack deep roots in society and are therefore more vulnerable to political shocks.
Lack an activist base to serve as volunteers. Parties may struggle to mobilize volunteers to support their campaigns and activities.
Lack a supporter base to provide consistent electoral support. Parties may have difficulty attracting and retaining loyal voters.
No real financial base; campaigns are expensive. Parties may rely on illicit or unsustainable sources of funding.
Winning elections is crucial to a political career, but it is risky. The stakes of elections are high, and parties may be tempted to use unethical or illegal tactics to win.
Parties are pulled in two directions: reinforce democracy vs. exploit the state. Parties face a trade-off between building legitimate institutions and using state power for private gain.
Influences decisions over electoral systems, structuring the balance of power, developing executive oversight, campaign finance laws, etc. These decisions can either strengthen or weaken democratic institutions.
Robust Competition
“Robust competition” is critical to “reinforc[ing] democracy” (Gryzmala-Busse 2007). Competition forces parties to be more responsive to the needs of the public.
Characterized by the presence of an “identifiable, plausible, critical, governing alternative”. Voters must have a realistic option to vote for a different party or coalition.
If parties know they can be replaced, they will limit exploitation. The threat of losing power deters parties from engaging in corruption or abuse of power.
Oversight committees, economic regulations, anti-corruption laws, campaign finance limits, transparency laws, etc., are adopted to ensure opposition parties can monitor governing parties. These measures help to hold governing parties accountable.
Governing parties cannot “stack the deck”. The rules of the game must be fair and impartial, and governing parties should not be able to manipulate them to their advantage.
Initially characterizes: Estonia, Hungary, Lithuania, Poland, Slovenia. These countries were relatively successful in establishing competitive democracies in the 1990s.
Absence of robust competition is key to explaining the decision to exploit the state (Gryzmala-Busse 2007). Parties that face little or no competition are more likely to engage in corruption and abuse of power.
Characterized by the “absence of an identifiable, plausible, critical, governing alternative”. Voters have no realistic option to vote for a different party or coalition.
If parties doubt they can be replaced, they will exploit the state. Parties that are confident of staying in power have little incentive to restrain themselves.
Safeguards dismantled (or never created) to prevent oversight and monitoring as governing parties “stack the deck” against the opposition to prevent alternation in government. This can lead to a gradual erosion of democracy.
Can make the consolidation of democracy more difficult. The lack of competition can entrench authoritarian tendencies and make it harder to establish a stable democracy.
Initially characterizes: Czech Republic, Bulgaria, Latvia, Slovakia. These countries faced greater challenges in establishing competitive democracies.
Characterizing Democracy: The “Bottom Line”
1989 revolutions triggered interest in constitutionalism. The collapse of communism led to a wave of constitution-making across Central and Eastern Europe.
Sought to not only create liberal democracies but also create documents that represented “who they are”. Constitution-making was seen as an opportunity to define national identity and values.
Decisions made during the transition impact politics today. The choices made during the transition period continue to shape the political landscape of the region.
Observe different levels of democratization throughout the region.
Visigrad, Baltics, Eastern Balkans democratized. These countries have generally been more successful in consolidating democracy.
Hungary has “backtracked”. Hungary has experienced a decline in democratic standards in recent years.
Western Balkans are “partly free”. The Western Balkans still face significant challenges in consolidating democracy.
At various levels of transition. Different countries in the region are at different stages of democratic development.
Post-Soviet states are “partly free” or have not transitioned. Many post-Soviet states have struggled to establish stable democracies.
Consolidation remains a challenge. Many countries in the region still face significant challenges in consolidating democracy.
Failing to “solidify the rules of the game” in the 1990s has important repercussions today. The failure to establish strong democratic institutions in the 1990s has made it more difficult to consolidate democracy in the long run.
Conclusions: State Exploitation and Robust Competition
Concerns over the vitality/future of democracy as well as combating corruption are frequently raised throughout the region. Corruption and democratic backsliding are major concerns in many countries in the region.
Especially given the Hungarian experience. The Hungarian case has raised concerns about the resilience of democracy in the region.
Robust competition at the time of transition is often linked to the ability to democratize AND to limit corruption and backsliding. Countries that had strong competition at the time of transition have generally been more successful in consolidating democracy and fighting corruption.
But if robust competition evaporates, incentives to exploit the state return. The decline of competition can lead to a resurgence of corruption and authoritarianism.
Not foreseen by Gryzmala-Busse. Gryzmala-Busse did not anticipate the extent to which democratic backsliding would occur in some countries in the region.
Robust competition is NOT the only explanation for explaining democratization and anti-corruption efforts in ECE; EU aid conditionality and accession are also frequently credited. The EU has played an important role in promoting democracy and fighting corruption in the region.
Conclusions: Europeanization and State Exploitation
EU members:
Where robust competition is maintained: Corruption is more contained + Pushback against illiberal democracy. In countries where democracy remains competitive, the EU has been able to help contain corruption and resist authoritarianism.
Where robust competition is absent: Corruption is more pervasive + Push for illiberal democracy. In countries where democracy has weakened, the EU has had less success in combating corruption and promoting democracy.
In the Visigrad, Baltics, Eastern Balkans, Slovenia, Croatia, the EU can:
Assist development via cohesion funds. The EU provides financial assistance to help these countries develop their economies and infrastructure.
Or deny funding under “Rule of Law” mechanism. The EU can withhold funding from countries that violate the rule of law.
Provide expertise to reform/revamp institutions. The EU provides technical assistance to help these countries strengthen their institutions.
Incentivize via additional funding. The EU can provide additional funding as an incentive for countries to adopt democratic reforms.
Investigate/fine state violating liberal democratic norms. The EU can investigate and punish countries that violate liberal democratic norms.
May also introduce Article 7 proceedings. The EU can initiate Article 7 proceedings against countries that pose a serious threat to the rule of law.
EU applicants:
In the Western Balkans, the EU can:
Use association agreements and pre-accession to provide expertise. The EU uses association agreements and pre-accession assistance to help these countries prepare for EU membership.
Use CFSP funding + CSDP planning to promote state building and peacekeeping. The EU uses its Common Foreign and Security Policy to promote state building and peacekeeping in the region.
Use accession negotiations to ensure the development of democratic norms. The EU uses accession negotiations to ensure that these countries adopt democratic norms and standards.
In Post-Soviet states, the EU can:
Use association agreements to boost trade and development. The EU uses association agreements to promote trade and development in these countries.
Political + economic reforms are critical for applicants to join the EU. Countries that want to join the EU must undertake significant political and economic reforms.
The credibility of offer is critical for the EU to exert leverage. The EU's leverage depends on the credibility of its offer of membership.
The EU can play a strong role in democratization AND consolidation… But it has to remain actively involved. The EU's involvement is essential for promoting democracy and stability in the region.
NOTE: leverage is stronger BEFORE accession. The EU has more leverage over countries before they become members.
Begs the question: does robust competition or EU involvement “matter more”?