Constitutional Politics in Post-Westphalian Europe
Country cases
The CoPolis case-studies - Iceland, Italy, Hungary, and the United Kingdom - have been selected on the basis of their relevance: enduring
constitutional claims-making and constitutional critique within a context of
European-wide and domestic pressures for change. All cases selected portray
significant public constitutional debates that are ‘meta-political’ in nature in that
they focus on the principles and overall nature of the polity, as well as
significant political projects of constitutional revision, in the context of a similar
range of pressures for constitutional change. In a number of cases, debate has
already resulted in implemented reforms that have changed national repertoires (most visibly in the cases of the UK and Italy). Despite similar
pressures, the cases manifest significant variation in terms of which
pressures are seen to have most relevance, how these pressures are dealt
with, and the types of actors that play important roles in constitutional politics.
In a substantive sense, the case-studies provide significant cases of forms of
what will be labelled as constitutional anomie (a significant gap between the formal, constitutional order and societal interaction).
Hungary
The case-study analyzes the Hungarian constitutional developments from 1989 on. It comprises two main phases, that is, the identification of the Hungarian constitutional model up until 2010, and the major changes brought by the Fundamental Law.
The 1989 Constitution that was new but its name (Act XX of 1949) and the further amendments in 1990 became the constitution of Hungary's transition to democracy by introducing a multi-party system, parliamentary democracy, and a market economy. It recognized the existence of the inalienable fundamental human rights and set up the Constitutional Court. The Hungarian transition was peculiar in that the Constitutional Court was playing an important role in the revision of the legal system.
Despite all these substantial changes, the idea occurred frequently to replace the 1989 Constitution with a fully legitimate one which is not the revision of the 1949 document and which, as some argued, once for all conclude the period of the political transition. The 1989 Constitution required the votes of two-thirds of the MPs for an amendment. So far it happened only twice that the government was supported by two-thirds of the parliamentary seats.
First in 1995-1996 an attempt were made to bring the post-communist constitution-making process to a conclusion. This attempt was failed, so the basic structure of the state remained untouched until 2010. That year the conservative Fidesz-Christian Democrat coalition gained a majority of 68 % of the parliamentary seats. It was a majority sufficiently large to amend the 1989 Constitution and even to adopt a new one. Both were to happen. The 2010 flow of constitutional changes were only the first steps in a greater development. On 1 January 2012 a new constitution called the Fundamental Law entered into force. The manner in which the Fundamental Law was framed and several aspects of its content were disputed widely. The second phases of the case study aims to describe how the Fundamental Law and its implementation have changed the characteristics of the basic structure of the state and thereby the Hungarian constitutionalism.
Iceland
The Icelandic case-study will be divided into two steps. The first step involves a careful examination of the constitutional model that emerged from the 1944 Icelandic Constitution and major revisions. An attempt will be made to analyze the difference between text and interpretation, and how the Constitution has been viewed by different groups. The second step will focus on the attempt to rewrite the constitution by a specially appointed Constitutional Council in 2010. The participatory nature of the process with the involvement of the public, will take precedence in the analysis.
During the economic crisis of 2008-2009 the Constitution became one of the focal points of the new revolutionary social movement that protested in front of Alþingi. It was seen as a relic of the old Danish kingdom, a text that neither supported public political participation, nor protected the public from political mismanagement and economic collapse. The revisory process began with a National Forum, where a thousand people, randomly selected from the electoral registry, argued that Justice, Wellbeing, and Equality were the founding values of the nation. The Forum also argued for a new constitution as a means of enhancing social solidarity. These values were the cornerstone of the work of the Constitutional Council, a group of 25 individuals selected to revise the Icelandic Constitution. The group decided to write a completely new constitution which would fundamentally change the political system in Iceland. The draft includes several noteworthy articles that would drastically increase the publics ability to influence politics, for example through referendums. It also addresses the public ownership of natural resources, a subject of intense political debate over the last decades in Iceland.
It seems unlikely that the Council’s draft will be approved by Althingi as the new Icelandic Constitution. This project will examine why that happened, since the draft had much popular support, and a majority of MP’s that supported at least certain changes. Still the process has had great influence on Icelandic political debate. This can be seen in the number of political parties running for the General elections in 2013, with more members of the public willing to run for office. The participatory nature of the process, and the continuos discussion about the need for public involvement in politics, is also likely to have a lasting effect.
Italy
The case-study of Italy will analyze constitutional change and constitutional claims-making over the last two decades. The analysis comprises two main phases, that is, the identification of the Italian constitutional model up until the 1990s, and the major changes as well as political claims in favour or against change since the early 1990s. The Italian Constitution of 1948 was enacted by a Constituent Assembly (made up of elected parliamentarians) and signified a rupture with the preceding fascist regime. The 1948 Constitution can be understood as a 'revolutionary constitution' in its marking a clear break with the past and indicating a blue-print for the future. The Constitution enshrines the idea of a 'constitutional democracy', which is protected by a written and rigid legal framework. The latter comes through inter alia in the amendment rule (art. 138). A Constitutional Court plays an active role in guarding explicit (and implicit) fundamental principles of the Constitution. Prior to 1989, only few significant amendments have occurred, whereas in the 1990s, and in particular 2000s, important changes have been made, including one (failed) attempt at a major overhaul of the second part of the Constitution. The first step in the case-study is an engagement with the formal as well as 'living' Italian Constitution up until the 1990s, while the second step of the case-study consists in the exploration of the most significant changes, and more particularly the articulations of constitutional discourses that explicitly endorse change (in rather different directions and including minor or more comprehensive revision) or that rather articulate the need for the full implementation of the 1948 Constitution. An important focus is on extra-parliamentary forces.
United Kingdom
This case study of constitutionalism in the UK will inquire into the trends over the last twenty years that led to the late revisions of the British constitutions. The research design is two-pronged. The first inquires into the substance of the British constitutions before these revisions. This is not an easy task, for the lack of a written text that may be called ‘the constitution’ necessitates its reconstruction from Acts of Parliament, jurisprudence, secondary sources (e.g. Blackstone, Dicey, Bagehot), taking account of informal conventions as well (e.g. the Salisbury Convention; and Queen’s forbearance to use her veto). My analysis has established that, starting as far back as Magna Carta, constitutional developments have for centuries been intended to limit the power of the Crown. ‘Parliamentary sovereignty’ became the core tenet of this intent. A second phase of constitutionalism, however, began in the 1800s with a shift toward greater inclusion and democratisation, accelerated after 1900, and became consolidated in the wake of World War Two. Since the 1960s, elite norm entrepreneurs of the ideological Left have launched a third phase with calls for more radical changes, especially electoral reform. But the public and the majority of ordinary politicians, satisfied with existing constitutions, have not responded. The second research prong will critique the resulting constitutional revisions of the last twenty years, the most important of which have taken place since 1997 under the Labour government. The significance and indeed the ultimate aim of these reforms is contested. Parliamentary sovereignty seems to have survived all efforts to reduce it under a higher, "constitutional" law. Currently I am in process of inventorying the discourses for and against constitutional revisions.
24 April, 2013 |Project
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