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The End of Constitutional Democracy? Challenges to the Fundamental Ideals of Contemporary Political Systems

Published online by Cambridge University Press:  21 May 2009

Carla M. Zoethout
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Extract

During the last few years, constitutional democracy has again become a hotly debated issue among constitutional scholars, political scientists and philosophers in Europe and the United States. Several scholars have written profound comments on the ideals of constitutionalism and democracy, and their place in contemporary political systems. While many proclaim the enduring validity of constitutional democracy, others make a plea for a radical redefinition of the concept.

Type
Research Article
Information
Netherlands International Law Review , Volume 44 , Issue 2 , August 1997 , pp. 209 - 223
Copyright
Copyright © T.M.C. Asser Press 1997

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Footnotes

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Assistent-Professor of Public Law, Erasmus University Rotterdam. This article is a further development of my doctoral thesis, defended in November 1995, at the Erasmus University Rotterdam, and entitled: Constitutionalisme, Een vergelijkend onderzoek naar het beperken van overheids macht door het recht (Arnhem, 1995) 360 pp.

References

1. See, for example: Elster, J. and Slagstad, R., eds., Constitutionalism and Democracy (Cambridge, New York, Melbourne, Norway, 1988);CrossRefGoogle Scholar Greenberg, D., Katz, S.N., Oliveiro, M.B. and Wheatley, S.C., eds., Constitutionalism and Democracy (New York, Oxford, 1993);Google Scholar Hesse, J.J. and Johnson, N., eds., Constitutional Policy and Change in Europe (Oxford, 1995);Google Scholar Franklin, D.P. and Baun, M.J., eds., Constitutionalism and Political Culture, A Comparative Approach (New York, London, 1995);Google Scholar Lane, J.-E., Constitutions and Political Theory (Manchester, New York, 1996).Google Scholar

2. Fukuyama, , ‘The End of History’, in The National Interest (Summer 1989) pp. 3–18Google Scholar is probably the most well-known. In The End of History and the Last Man (New York, 1992) Fukuyama elaborated upon his ideas.Google Scholar

3. The concept of liberal democracy and constitutional democracy are used interchangeably. In European literature the term ‘liberal’ is often used somewhat reluctantly, because of its connotations with specific political parties.

4. Compare van Wissen, G., ‘Einführung in die Thematik “Rechtsstaatliche Entwicklungen in Ost-Europa”’, in: Emerging Constitutionalism in Eastern Europe, Rechtsstaatliche Entwicklungen in Osteuropa, a report of the Conference of7 May 1991(Amsterdam, 1991) pp. 9–14;Google Scholar Kolarska-Bobinska, L., ‘The Role of the State: Contradictions in the Transition to Democracy’, in Greenberg, et al. , eds., op. cit. n. 1, pp. 300–311;Google Scholar W. Osiatynski, ‘Perspectives on the Current Constitutional Situation in Poland, in ibid. pp. 312–320.

5. ‘CSCE Charter of Paris for a New Europe’, in 30 ILM (1991) pp. 193–208.Google Scholar

6. In Africa, constitutional democracy was the model for ‘good governance’ for many newly independent countries. But according to many (African) constitutional and political scientists, this experiment has proved to be largely unsuccessful. H.W.O. Okoth-Ogendo, ‘Constitutions without Constitutionalism: Reflections on an African Political Paradox’, in Greenberg, et al. , eds., op. cit. n. 1, pp. 65–82Google Scholar and S.C. Nolutshungu ‘Constitutionalism in Africa: Some Conclusions’, ibid. pp. 366–378.

7. Louis Henkin has focused attention on the disputable combination of international law and constitutionalism: ‘In earlier days the title of this panel [‘International law and Constitutionalism’] would have been considered an oxymoron. What has international law to do with constitutionalism? It would also have been seen as the grossest invasion of what we used to call sovereignty since international law is not supposed to pay any attention to constitutional systems. Things have changed though’, L. Henkin, ‘International Law and Constitutionalism: the Contributions of Lawyers and Judges’, in Contemporary International Law Issues, Opportunities at a Time of Momentous Change, Proceedings of the Second Joint Conference of the American Society of International Law/Nederlandse Vereniging voor Internationaal recht, held in The Hague,July 22–24, 1993(Dordrecht, Boston London, 1993) p. 398.Google Scholar See also: Watson, G., ‘Constitutionalism, Judicial Review, and the World Court’, 34 Harvard ILJ (1993) pp. 1–45.Google Scholar

8. Murphy, W. F., ‘Constitutions, Constitutionalism and Democracy’, in Greenberg, et al. , eds., op. cit. n. 1, p. 3.Google Scholar

9. The counter-majoritarian dilemma, as it is labelled – the tension between constitutionalism and democracy – is a major subject of debate, especially among American constitutional scholars. See: Tribe, L. in American Constitutional Law (Mineola, 1978) p. 9;Google Scholar Holmes, S., ‘Precommitment and the Paradox of Democracy’, in Elster, and Slagstad, , eds., op. cit. n. 1, pp. 195–240.CrossRefGoogle Scholar

10. Fuller, L., The Morality of Law, rev. edn. (New Haven, London, 1969) p. 347;Google ScholarTen, C.L., ‘Constitutionalism and the Rule of Law’, in Goodin, R.E. and Pettit, P., eds., A Companion to Contemporary Political Philosophy (1993) p. 397.Google Scholar

11. An example of this is the Netherlands. Art. 120 of the Dutch Constitution reads that the constitutionality of statutes and treaties shall not be reviewed by the courts. (However, since 1953 the courts have been empowered to leave aside any national legal regulation – including constitutional provisions – if incompatible with self-executing international law. In that case, the courts are even obliged not to apply the national regulation). See further Zoethout, C.M., ‘Reflections on Constitutionalism in the Netherlands’, in Zoethout, C.M., van der Tang, G., Akkermans, P.W.C., Control in Constitutional Law (Dordrecht, Boston, London, 1993) pp. 153–163;Google Scholar and van Roermund, B., ed., Constitutional Review, Theoretical and Comparative Perspectives (Zwolle, 1993).Google Scholar

12. Compare Holden, B., Understanding Liberal Democracy, 2nd edn. (New York, London, Toronto, etc., 1993) p. 3.Google Scholar

13. ibid. p. 8.

14. As a matter of fact, the rule of the majority is a choice for the least dangerous method. Abraham Lincoln expressed this conviction in his First Inaugural Address, when he underlined that democrats had no other choice than to rule by majority: ‘A majority … is the only true sovereign of the people. Unanimity is impossible; the rule of a minority as a permanent arrangement is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left’. Lincoln, A., ‘First Inaugural Address’, March 4, 1861, Abraham Lincoln, Great Speeches (Toronto, New York, London, 1991) p. 58.Google Scholar Lincoln's statement demonstrates that decisions of the majority cannot be equated with decisions of the people. In effect, it means that direct democracy cannot exist. Compare Holden, , op. cit. n. 12, p. 44.Google Scholar

15. Bobbio, N., The Future of Democracy, A Defence of the Rules of the Game (Oxford, 1987) p. 25 (originally published under the title Il futuro della democrazia (1984).Google Scholar

16. Kommers, D.P. and Thompson, W.J., ‘Fundamentals in the Liberal Constitutional Tradition’, in Hesse, and Johnson, , eds., op. cit. n. 1, p. 38.Google Scholar

17. ibid. p. 24; Holmes, , loc. cit. n. 9, pp. 195–240.Google Scholar

18. This stance was also taken by Murphy, who makes the following remark about constitutional democracy: ‘Although the strain between the two theories is always real and often serious, one must not exaggerate their differences. Both accept the centrality of human dignity; they differ on how best to protect that value. By limiting legitimate governmental action, constitutionalism tries to lower the stakes of politics, to restrict the risks to liberty and dignity of being a member of a political society. Democratic theory attempts to limit those risks by protecting the right to share in governmental processes’, loc. cit. n. 8, p. 6.

19. As it is presented by the so-called ‘counter-majoritarian dilemma’. This dilemma was formulated by Laurence Tribe as follows: ‘In its most basic form, the question … is why a nation that rests legality on the consent of the governed would choose to constitute its political life in terms of commitments to an original agreement… deliberately structured so as to be difficult to change’. Tribe, L., American Constitutional Law (Mineola, 1978), p. 9.Google Scholar

20. Murphy, , loc. cit. n. 8, pp. 3–25.Google Scholar

21. Holmes, , loc. cit. n. 9, pp. 195–240.Google Scholar

22. Holmes, , loc. cit. n. 9, pp. 216–218.Google Scholar

23. Tully, , Strange Multiplicity, Constitutionalism in an Age of Cultural Diversity (Cambridge, 1996).Google Scholar A prominent advocate of the recognition of cultural minorities is Charles Taylor. See, e.g., his ‘The Politics of Recognition’, in Gutmann, A., ed., Multiculturalism, Examining the Politics of Recognition (Princeton, 1994) pp. 25–73.Google Scholar

24. The two main opposing factions – both of whom published a report on the subject – were the ANC on the one hand, and the Olivier Committee, on the other. On this discussion, see Haysom, N., ‘Constitutionalism, Majoritarian Democracy and Socio-Economic Rights’, South African JHR (1992) no. 8, pp. 451–463Google Scholar and Mureinik, E., ‘Beyond a Charter of Luxuries: Economic Rights in the Constitution’, South African JHR (1992) no. 8, pp. 464–474.Google Scholar Both protagonists and antagonists acknowledged that, for a constitution to have a meaningful place in the hearts of the citizenry, it must address the pressing needs of ordinary people. The ANC in particular underlined that a constitution cannot just institutionalize and guarantee civil and political rights – it must promise both bread and freedom. For that reason, the ANC report proposed to incorporate three different types of social and economic rights into the constitution, depending on their justiciability. First of all, the ANC proposed enforceable ‘minimum’ rights, such as the right to primary school education; secondly, ‘framework rights’, capable of expanding content through statutory amendment, but contingent upon resources; thirdly, aspirational goals. Haysom, ibid.. pp. 453–454.

25. In short, it is argued that Third World and socialist constitutions which have asserted the primacy of economic rights, have done so at the expense of political rights. Haysom, loc. cit. n. 24, p. 452. About the process of constitutional change in Eastern Europe, see Preuss, U.K., ‘Patterns of Constitutional Evolution and Change in Europe’, in Hesse, and Johnson, , eds., op. cit. n. 1, pp. 95–126;Google Scholar Hendrych, D., ‘Constitutionalismand Constitutional Change in Czechoslovakia’, in Hesse, and Johnson, , eds., op. cit. n. 1, pp. 278–295.Google Scholar

26. Hayek, F.A., The Constitution of Liberty (Chicago, 1960) pp. 258–260.Google Scholar Another difficulty with social and economic rights – which has caused much criticism – is that they are not justiciable. However, at the moment, a discussion is taking place in human rights doctrine about the possibilities to reinforce the second generation rights by redefining them into different State obligations.

27. Osiatynski, , loc. cit. n. 4, p. 318.Google Scholar

28. According to Preuss, the ‘concentration of all political, economic, social, and cultural aspirations in a document which claims unconditional and unqualified legal force may well entail a normative devaluation, just as any inflation is only a particular expression of depreciation. This, then, would render the constitution a political manifesto and hence fail to meet the requirements of constitutionalism’. Preuss, , loc. cit. n. 25, p. 104.Google Scholar

29. Possibly the best explanation for this statement emanates from Barry Holden who makes the following observation about the legitimacy of liberal democracy: ‘It is because of the rational validity of the arguments for liberal democracy that they are not simply the manifestation of a particular culture; and it is because of their generality that they are applicable to more than a particular set of conditions’, op. cit. n. 12, p. 219.Google Scholar

30. Okoth-Ogendo, , loc. cit. n. 6, p. 80.Google Scholar

31. In his article on the process of reconstruction in Africa, Okoth-Ogendo states that ‘the design for alternative paradigms of governance, is erected on the theory that a constitutional can be built even though there be no written constitution; that constitutionalism is possible without constitutions’. Okoth-Ogendo, H.W.O., ‘Constitutionalism without Constitutions: The Challenge of Reconstruction of the State in Africa’, in Zoethout, C.M., Pietermaat-Kros, E.M. and Akkermans, P.W.C., eds., Constitutionalism in Africa, A Quest for Autochthonous Principles (Arnhem, 1996) pp. 60–61.Google Scholar