Constitutional Democracy: Assessment Method

By Victor Catalin

Many modern regimes measure their evolution by whether they are democracies, but how do we assess these forms of government?

In Constitutional Democracy, Victor Catalin explores how to evaluate the level or stage of democratization of various nations. His method is based on constitutional democracy, in other words, on measurement of the democracy level that a state disposes by its constitution.

In proposing how to assess forms of democracy, he examines past forms of government, from the Athenian democracy that evolved in the fifth century B.C., which marked the first appearance of direct democracy, to ancient Rome where important decisions were made by plebiscite, up to modern times.

By furthering a comprenehsive discussion of the history and development of democracies throughout the world, including those that make up the member states of the European Union, he reveals similarities and differences between today’s world democracies—and how we can use this knowledge to improve governments.

• Language: English
• Publisher: Lulu Publishing Services
• Release date: Aug 18, 2017
• ISBN: 9781483471853

Book preview

CONSTITUTIONAL

DEMOCRACY

Assessment Method

With application to the Member States

of European Union

VICTOR CATALIN

Copyright © 2017 Victor Catalin.

All rights reserved. No part of this book may be reproduced, stored, or transmitted by any means—whether auditory, graphic, mechanical, or electronic—without written permission of the author, except in the case of brief excerpts used in critical articles and reviews. Unauthorized reproduction of any part of this work is illegal and is punishable by law.

ISBN: 978-1-4834-7186-0 (sc)

ISBN: 978-1-4834-7185-3 (e)

Library of Congress Control Number: 2017910802

Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

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Lulu Publishing Services rev. date: 08/04/2017

FOREWORD

Now two millennia and half Greek sophists attracted the attention on the absence of "political art" in governance of the state and lack of the governance rules.

G.W.F. Hegel, in History of Philosophy, reproduces the opinions in this regard, of two great sophists. Socrates believed that: "People who possess political art can not at all transmit to others. Protagoras confirms this point of view with the remark: That’s why when they want to build, the Athenians ask advice architects, and so when it comes to another issue, they is aimed at people who have experience with it, but when they take decisions and orders on matters that interest the state, they listen on each".

These findings are perfectly valid today, when many believe that to lead the country must have just ideas. It is inevitable to ask the question: Why for all trades practiced by man it requires an attestation, only for practicing the political science is not required a qualification?

It is easy to see that the current political life tends towards a form of Dadaism, the lack of political education brought the hazard to the forefront of political life, fact which is best seen in the drafting the constitutions of the various states.

Ignoring political science finds through totally different solutions, sometimes opposite which have found to solve the same problem. The best example at hand is the principle of separation of powers, for which each state has original ideas.

Although the constitution must be a political-legal act, nowhere specify that the drafting, amendment or checking the constitutionality of laws must be made by qualified persons in political science. The only exception is the Constitution of Greece (which should not go unnoticed), which provide that half the members of the Constitutional Court must be skilled in political science.

More then two centuries, the constitutions leave a written trace of the evolution of political science and democracy, without to have any method of assessing the level of the democracy. In other words, democracy has become in its evolution, the unit of measurement of regimes, which means that an assessment method has become strictly necessary.

Currently the state of a country’s democracy (real) is determined based on test „of double alternation in power of the opposition". The test, simplistic and erroneous, represent the reality only very vague, because states with democracy enshrined fail this test, while in some states passing the test, the changes in government proved to be regime change.

Those presented above leads to the conclusion that there should be a method of evaluating the level or stage of democratization of a state and that this assessment is represented best by the constitutional democracy.

This valuation method can not be general valid for all existing forms of democracy. For countries that build the consensus model of liberal constitutional democracies, such as the European Union and the States that compose it (except Britain), it is possible to design and implementation a method for evaluating constitutional democracy, as we shall see.

Britain, which has a majoritarian model of democracy, and a customary constitution, can not be measured with the same method.

Therefore, the aim of this book is to develop a system of evaluation of liberal constitutional democracy and consensus indicating, besides its level, the possible mitigation measures. Also, this assessment could be a starting point if will like the political harmonization of EU states.

The idea from which we started was that the implementation of a European federal constitution not possible without harmonization prior of the application of democratic principles and rules of governing.

This book invites to a deeper thinking on how in which constitutions treats and respects the principles and rules of political science and determinants of constitutional democracy.

To the developing of the valuation method of constitutional democracy, as throughout this book, I took over the terms, classifications, concepts of the democracy and of political science that Arendt Lijphart outstanding personality of political science, has used.

I would like that my work, to be a modest tribute, brought prestigious political scientist.

In some cases, I dared to update some classifications and concepts, in view of developments of the political science, especially after the fall of the Soviet empire, which marked the beginning of a period of reconsideration of many notions of political science, altered by „precepts" of Marxism – Leninism.

CHAPTER I

DEVELOPMENT OF DEMOCRACY- COMPENDIUM

Democracy is a word multifaceted, whose meanings are generated by its accompanying attributes. Etymologically derived from the Greek words: demos = people and kratos = power (authority), which suggests a first definition - the possession and exercise of power by the people.

Meaning of the word democracy has changed over time, depending on the evolution of the social system, characteristic of each stage of historical development.

The first form known is the Athenian democracy that evolved since the 5th century BC and marked the appearance of direct democracy, in which citizens have adopted laws and actions, by direct vote.

The first democratic measures were due to the laws of Solon, who have taken the first steps toward rule of law, succeeding in imposing the idea of subjecting of citizens before the law, not in front of the leaders.

Pericles brought new improvements to the Athenian democracy, distinguishing between: governance of the minority over the majority (tyranny) and governance of the majority over the minority (democracy), which has imposed.

The Athenian democracy had a number of limitations, which have started from the very definition of people, from who were excluded from important segments of the population: slaves, women, and certain categories of free people. Another important limitation was the choice by lot of some civil servants, including the judges, because this system does not ensure competence.

With all its shortcomings, Athenian democracy (slavery era) transmitted to posterity its democratic principles, still valid today.

The democratic ideas of Solon and Pericles opposed Licurg’s constitution, which generated the Spartan totalitarianism. The outcome of this confrontation is best played by Indro Montanelli in Greek history book. We quote: "Sparta is today a village devoid of personality whose museum, extremely poor, there have not any statue or column showing the existence of a Spartan civilization". In contrast, Athenian civilization lasted over the centuries by the remaining vestige, is sufficient to recall Acropolis that, besides the greatness and the inestimable value, it is one of the most visited tourist monuments in the world.

Later, in ancient Rome, important decisions were taken by plebiscite, which represent the consultation by vote of the entire nation or a certain part of the population, notion that later we meet as the referendum.

Middle Ages, dominated by feudal and ecclesiastical institutions, represent a black hole for almost a millennium in the history of democracy.

Hardly in the late Middle Ages appear timidly first liberal ideas, beginning was marked by Magna Carta Libertatum (Great Charter of Freedoms), issued in 1215, which limited the power of the monarch, in order to eliminate abuses committed by him and its representatives and give some rights to all citizens.

The evolution of liberal ideas was quite slow. The consolidation of parliament was done only in 1689, when was installed the supremacy of the legislative on royal power, through the Bill of Rights. This document put the foundation of parliamentarianism in England and marks the beginning of representative democracy.

Basically, liberal ideas that underlie modern democracy were imposed by the first half of the eighteenth century, with the emergence of ideas of economic and political freedom of the individual in relation to the state.

The theoretical foundations of liberal democracy were laid by John Loke and Charles de Secondat (Baron de Montesquieu), parents separation of powers, principle which is today one of the basic pillars of democracy and should underpin its immune system. This principle, with the four rules (laws) of his, is today one of the determinants of constitutional democracy.

In the same period (first half of eighteenth century) English Henry Bolingbroke and William Blackstone they formulated the principle of "checks and balances", principle pair with that of the separation.

Coupled these become the principle of separation and balance of powers: legislative, executive and judicial, by which should countered the abuse of power of the authorities and sits to the base of architecture of democratic constitutions. At the late of eighteenth century and early nineteenth century they were known democratic principles: the rule of law and independence of the justice from political power. With the advent of the Declaration of the rights and freedoms of man and citizen in France of the year 1789 are sufficient elements to lay the foundations of liberal democratic constitutions.

The first written constitutions: that of the United States in 1787, followed by that of the Poland in 1791 and of the France in the same year, marks the beginning of constitutional democracy. Towards the middle of the nineteenth century perfecting electoral system bring still a wave of new architectural elements and also a wave of new constitutions. Europe will be comprised of a periodic fever of "constitutionalism", the most of European countries will tend to have a democratic constitution or to update towards democratization, existing constitutions. Thus the Dutch Constitution of 1814 was revised in the same century in 1815, 1840, 1848, 1884, and in following centuries has been revised for 13 times, the last dating from years 1999, 2002 and 2005. These revisions, which occurred with different frequencies depending on the conditions existing in each country, have targeted at updating the constitutions with the ideas and liberal principles evolving, mainly in 1848, the year of the revolutions of liberal and democratic inspirational which included almost all Europe. During this period, distinguish very clear bi-univocal link between democracy and the written constitution, through which regulates the exercise of power through political and legal rules, underlying the state organization and the relationship between state and citizens.

Constitutions contain regulations that may be in the form of: common law constitutions (not written) or written constitutions. The common law constitution (not written) represents rules, usages and customs, sanctioned by long practice. States that have not written constitution are few (Great Britain, Israel, New Zealand) and finally will probably they give up, though if the UK case is what we call the English conservatism.

There are cases of countries that, besides constitution written, are recognized and customs with constitutional status, such as the United States, which through decision the Supreme Court, in the Marbury versus Madison (1803), Justice John Marshall opened a path of paramount importance, subsequently adopted by some Western countries. It is about control by way of exception whereby the US Supreme Court asserted its right to control the constitutionality of laws, although the US Constitution did not give this right to justice.

Depending on the closeness by the justice, the written constitutions can be classified into two categories: political-legal and political. This classification explain itself why some constitutions supports and guarantees the democratic way of the state, while others leaves open doors to non-democratic regimes, by treating legal responsibilities as policy responsibilities.

The emergence of political pluralism has generated political doctrines, whose influence on democracy can not be ignored, but that did not bring significant changes in relation to liberal democracy.

Conservative political doctrine foresee at the beginning, democracy as an achievement of elite society, bourgeois aristocracy, ignoring the people’s sovereignty. Keeping the status quo, for the power and accumulations made by elites, push the conservative doctrine to the right of the political spectrum. Consequently, conservatives do not bring anything new to the doctrine of liberal, and democracy is not enhanced with new principles.

Social-democratic doctrine brings one single completing, the idea of fairness, social justice and social protection, but fails to settle the practical realization of these principles. Throughout history, especially after the fall of communism, both doctrines were aligned of principles of liberal doctrine, retaining certain features which do not modify the concept of liberal democracy.

Returning to the definition of democracy, the most common is: "Democracy is a form of organization and political leadership of society, that proclaim sovereignty of the people, we find that the notion people can be understood in different ways, that which makes possible the existence of a set of attributes intended for qualification of this word. Athenians have considered people a subset of citizens which had a certain status. Nazism and fascism authorized the supreme leader empowered to represent the people and declared themselves enemies of democracy. Communists considered that the people consists of working class, plus sometimes the peasantry and, less commonly, the intelligentsia. In post-socialist democracies the people" is consisting from civil society and the masses of maneuver neo communist etc.

Those who lived in a popular democracy know that although it has the same definition as the liberal democracy (possession and exercise of power by the people) is diametrically opposed to it. Popular democracy based on teaching of Marxism-Leninism, which is named and "dictatorship of the proletariat, mimics the participation of the people" to the government, do not accept private property and the political pluralism, mimic free elections and violate in various ways the rights and freedoms of men and citizen.

There are other kinds of democracy that practice "in behalf of the people the totalitarianism or other forms of authoritarianism. The original democracy is an ideology of the Left that, declarative, accepts democratic rules, but in fact practice undemocratic rules. The sovereign democracy, in vogue nowadays, is a more advanced stage of the original democracy in which a despot wise" practice sovereignty on behalf of the people.

In conclusion, when we use the term democracy, we refer only to liberal democracy, which opposes to the authoritarianism, all other being false democracies. Therefore, it should be avoided the using the word democracy without be accompanied by attribute, although it should use other terms to refer to false democracies. If, during the book will be used the term democracy without attribute, convention is that we refer to liberal democracy, which has the following characteristics: political pluralism, free elections and universal suffrage, rule of law and judicial independence, separation and balance of powers, guaranteeing private property, respect for fundamental rights and freedoms.

Sovereignty of the people had the first form of exercise of representative governing, in which citizens delegate the power of elected representatives. Thus was born representative democracy, from the need to reduce royal power by transferring an important part of the power held by the monarch, of parliament. This type of democracy had deficiencies, from the beginning, because of the way it was thought and implemented.

John Locke, English philosopher and politician of the seventeenth century, foresee as civil government is provisional and has limited powers. His solution to prevent excess power of government was the separation of powers, principle which was only enunciated, without developing it. Although the next century, Charles de Secondat, Baron de Montesquieu, has developed the principle of