Reversing the Decline of Constitutional Democracy in Europe

Constitutional democracy is a system of government in which all powers are exercised under a constitution which grows out and is dedicated to the protection of equal human dignity. The latter requires that each and every individual is recognized an equal right to self-fulfilment within the scope of the same right recognized and exercised by others. By making equal human dignity a point of departure as well as the ultimate objective of its functioning, a polity characterized as a constitutional democracy is necessarily permeated by pluralism. Equal human dignity is namely a licence for diversity. It is founded on the right to lead one’s life in pursuit of one’s own conception of the good. And, as there are many individuals with different conceptions of the good, the society made of these individuals is per force marked by plurality. Once this plurality is recognized as a social fact and normatively accepted as something valuable, we have arrived at a pluralist society. Only pluralist societies can be constitutional democracies and, vice versa, only constitutional democracies with their institutional framework, in particular a dense network of checks and balances, can ensure the existence, indeed thriving of pluralism.

In the last decade, but especially after the break out of the economic crisis, the system of constitutional democracy in Europe (and, indeed, across the West) has come under a great strain. Pluralism, as the sine qua non of constitutional democracy, has lost its appeal. First of all, the economic crisis accentuated the need for efficiency. As the output legitimacy declined tremendously, something needed to be (urgently) done. Diversity and plurality, the building blocks of pluralism which in good times are easily, at least, tolerated have now increasingly become perceived as an obstacle to quick and effective solutions. However, the fact that in the present unprecedented global constellation, whereby a plethora of private and hybrid transnational actors significantly affect and undermine the ‘sovereign’ powers of the state, no such quick and easy solutions might even exist, turned pluralism into a useful pretext for concealing the growing weaknesses of the states.

Under a typical and historically confirmed scapegoating scenario, the diversity in the societies, the differences among ourselves, both the existing and the imaginary, have increasingly been blamed for the unfulfilled expectations that any crisis is defined by. The political opponents have, gradually, been turned into enemies. The insular minorities have started to play the role of a fifth column. The external influences, migrations, international and supranational law, the overall process of globalization, have been portrayed as an existential threat: as the factors of corrosion of our identity, which need to be clamped down and eliminated before it is too late.

Pluralism as a virtue in good times has thus evolved into a vice in bad times. In so doing, the normative ethos of constitutional democracy has been lost. The institutional reconstruction, known as constitutional backsliding, which has resulted in a gradual, but definite removal of the dense network of check and balances, has started. It has been done in the name of and for the sake of democracy. It is being done for our people, of the right kind, not marred by differences and diversity that are irreconcilable with our identity. This denial of pluralism, as Jan-Werner Müller has argued incessantly, is the essence of populism. Populism, which is not limited to Central and Eastern Europe only, but can be found in the West too—including in the cradle of democracy: the United Kingdom. While the actual consequences, the scope of the crisis, the extent of the decline of constitutional democracy in the East and in the West of Europe might be different, most notably due to the prior, historically denser institutionalization of constitutional democracy in the West, the underlying pluralism undermining process is exactly the same.

The question is how to stop and reverse this process? The answer, ultimately, lies in the sphere of the political. The decline of pluralism has been accelerated by pragmatic decisions of the political class in power or of those striving to get there. In pursuing a strategy of ‘what works’ with the electorate, what will bring us more votes, the political class, both on the right and on the left, started to play a clamping-down-on-pluralism card. This has typically been done not to address the pluralism related concerns of the people, some of which are objective and justified, but to use and abuse these concerns for the gaining, consolidating and, finally, cementing one’s political power. The speak of the right people, the employment of demagogy, which offers easy and simple solutions to the most complicated problems, are in fact the most brutal demonstration of political hypocrisy, of doing politics exclusively for political self-aggrandizement sake.

Of course, one might object that this is what any politics has always been about. True, the will to power is what lies at the heart of the political, but in good times it is usually self-restrained and exercised at least under an ostensible commitment to the constraints posed and imposed by pluralism. In bad times, these constraints tend to get gradually looser, until a point at which a critical mass of the political actors has won enough support to be able to get rid of pluralism. Europeans, despite prouding themselves to be the source of civilization, have been there, sometimes even unintendedly, too many times before. The consequences of writing off pluralism have been disastrous, but due to the sheer weakness of the historical memory, indeed due to historical forgetfulness, the vows ‘never again’, usually born out of shocking denials of civilization, have quickly echoed away.

When the commitment to pluralism is lost, constitutional democracy can no longer be defended and upheld, especially not by legal means. For the existence and flourishing of constitutional democracy is namely not dependent on the law, but on the social predicaments of pluralism. Law as a system of rules and principles can be bent in favour of any imaginable policy objective. Its intrinsic value, that could in and of itself foster order that would simultaneously be substantively just, is marginal, perhaps even inexistent. Law needs to be permeated by pluralism to perform its venerable social role, while pluralism must be defended by the law to be meaningful and ensured in practice. However, the two, eventually, in any given polity depend on the social attitudes of the people, or at least the majority of them. If the people, under the impact of objective and subjective concerns, are willing to give up on pluralism and therefore also on the law, constitutional democracy is lost. If the opposite is the case, constitutional democracy sustaining conditions will be generated.

Ultimately, the answer to the crisis of constitutional democracy rests in its social foundations. The constitutional democracy is inherently dependent on popular support. What is therefore needed, is a popular, rather than populist constitutionalism. Constitutionalism which will listen and be responsive to the anxieties of the people; which will provide the solutions that will make a real difference in people’s life, while simultaneously staying faithful to the essential values of constitutional democracy. The strengthening of popular constitutionalism could take the winds away from European populists, win the people back from them and, while recognizing that the history is not over, make sure that it is not repeated again.


References:

  1. Müller, Jan-Werner (2017): What is Populism? University of Pennsylvania Press.
  2.  

  3. Habermas, Jürgen (2001): Constitutional Democracy: A Paradoxical Union of Contradictory Principles. Political Theory 29:6.
  4.  

  5. Jakab, András and Kochenov, Dimitry (eds.) (2017): The Enforcement of EU Law and Values. Oxford University Press.
  6.  

 
A German version of this article appeared in:
WZB Mitteilungen, Heft 157, September 2017, S. 9-11.

Written by

Matej Avbelj is Associate Professor of European Law at the Graduate School of Government and European Studies in Kranj, Slovenia. He was a Visiting Researcher at the WZB Center for Global Constitutionalism on a Humboldt Research Fellowship for Experienced Researchers of the Alexander von Humboldt Foundation between May and July 2017.
Website at the Graduate School of Government and European Studies

One comment on “Reversing the Decline of Constitutional Democracy in Europe

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