Year: 2020
Type: article
Abstract: Political parties appear to be in crisis. The recent wave of democratic deconsolidation in several established democracies has been accompanied by the collapse, authoritarian takeover, or external capture of mainstream political parties, the partisan capture of state institutions, and a rise in hyper-nationalistic and exclusionary partisan rhetoric.1 While political parties have long been a central object of study in political science, constitutional theory scholars have, by and large, ignored this key democratic institution.2 In part, this has been due to the influence of the American and the British constitutional traditions which, unlike their European continental counterparts, are largely silent on political parties. This silence is largely a feature of big-C constitutional codes in the anglophone world. Small-c constitutional statutes, conventions, and judicial precedents in these states do, admittedly, engage extensively with political parties.3 But the large-C textual silence is nonetheless indicative of the level of salience this key constitutional institution has been given, both in constitutional practice and constitutional scholarship. More substantively, big-C codes largely design key state institutions in a democracy. Parcelling off considerations about political parties to small-c statutes and conventions has the effect that the party system has to take the design of key state institutions as a given. As this paper argues, however, bringing parties to the forefront of the constitutional imagination has very important implications for how we ought to think of fundamental institutions and offices of the state. Furthermore, big-C constitutional change tends to require the buy-in of opposition parties, whereas small-c changes can usually be made by the ruling party/coalition alone. It is simply bad design to let one of the competing players unilaterally change the rules of the game. It is no surprise that continental big-C codes, led by Germany after the Second World War, are far more explicit in their attention to parties and their relationship with democracy. Even so, the Anglophone silence is mimicked in comparative constitutional studies scholarship, dominated as it is by American constitutional discourses. It is almost impossible to properly understand the functioning of different institutional arrangements without a close attention to the party system in which they operate.4 Constitutional scholarship that confines itself to institutional analysis alone, without understanding how they are conditioned by political parties, is looking at a seriously distorted picture of constitutional practice. To some extent, however, big-C constitutional silence on political parties is explained by the serious conceptual and functional challenges they pose to (liberal democratic) constitutionalism. Conceptually, as the primary holders of real public power in most democracies (at least when in government), political parties should be apt for constitutional regulation. But, as the chief vehicle for organising democratic will, the level of autonomy that political parties enjoy is one of the markers of the health of a democracy. Like private clubs, their membership is voluntary, and often informal. The control they have over their members is limited.5 Their role as an intermediary between the state and its people make them insufficiently public to be burdened with the normal duties of state institutions, and inadequately private to be treated on par with rights-bearing citizens.6 Functionally, parties organize popular will and thereby make democratic functioning possible. But as wielders of concentrated state power, they have as a key to the and the very to a between their to organize and popular will the they pose to democratic is in constitutional democracies to and parties, to democratic in the that the party over In this will an functional of political parties and party The in parties when they as they should in a party system of a democracy. As this is a conceptual and a will that parties are to of their The key they when functioning as they ought to is to a relationship between public and popular by as an intermediary between a state and its they this political parties key and which make democratic political and of this be that an is far how parties in in the real the is that it parties and will this to that should to in to political parties, with a to or these in that democratic states their should and and political in to political should autonomy for the and of political parties, by the by their of state power in by as between the state and its people autonomy should to the party system that the of serious political parties is to that the on are system should a of parties and the state and should the of political parties political are the of are to real political parties and party to their as in thereby and democratic As they political and constitutional fundamental constitutional design the of parties the small-c after key design have been made in the big-C a constitutional silence on parties is as a as and of In big-C the chief for public power in have the of about the and functioning of political parties. The is to parties, and important to the more that can be should it of the implications of the in this paper are are of political that a is a of is to that is we can about its can make it more that political will be are design they simply the In different and with to the in of constitutional have serious implications for the health of a parties and its party and are largely the the design implications of the in this paper are at in the The of this paper are largely and more of implications are to take these seriously will be in a In this will that political parties, when they as political parties ought to the key democratic of as an intermediary between the state and its people in a democracy. make this intermediary of parties the of their and the of political parties. party system with functional parties of key and political and these a as a of of these of a party system with functional parties to them party and parties. by the of the people a the for a political we in the But is the we as and to between and will the about the and of the for the of this that constitutional practice in democracies to that the of political power be largely in institutions that the on the to of some to are several of the of a popular a that is the one that is the with the usually in and democracies have for at least some political offices that can and in the of the by political in by is the more Political parties have as the for democratic in is an functional of political parties in a democracy. parties will no of these the that we an is a to on to them as far as possible. 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Source: Current Legal Problems
DOI: 10.1093/clp/cuaa004
Author: Tarunabh Khaitan
Institution: University of Oxford
Language: English
Topic: Law and Political Science
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W3140062383