Published online by Cambridge University Press: 24 August 2011
This article analyses the process of party constitutionalization in post-war Europe. It explores the temporal patterns of party constitutionalization and reveals their connection with moments of fundamental institutional restructuring. It discusses the different modes of party constitutionalization, and addresses what these convey about the underlying conceptions of party democracy. It argues that the constitutional codification of political parties has consolidated the empirical reality of modern party government as well as its normative foundations of modern party government, thereby transforming political parties from socio-political organizations into integral units of the democratic state. Finally, it suggests that the constitutionalization of the democratic importance of political parties might reflect an attempt to legitimize their existence in the face of their weakening as agents of democratic representation.
1 Indeed, Schattschneider's oft-cited observation that ‘the political parties created democracy and modern democracy is unthinkable save in terms of the political parties’ has become a conventional wisdom among party scholars. See Schattschneider, E. E., Party Government (New York: Holt, Rinehart and Winston, 1942)Google Scholar, p. 1.
2 Including the Lisbon Treaty, which places political parties prominently in Part II (Provisions on Democratic Principles), stipulating that ‘Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.’ (art. 8 A.4)
5 Avnon, Dan, ‘Parties Laws in Democratic Systems of Government’, Journal of Legislative Studies, 1 (1995), 283–300CrossRefGoogle Scholar, p. 286. For a recent exception, see Karvonen, Lauri, ‘Legislation on Political Parties: A Global Comparison’, Party Politics, 13 (2007), 437–455CrossRefGoogle Scholar.
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20 Other (organic) laws which might have constitutional status have thus been excluded.
21 One might, for example, disagree with King's conclusion that the extension of the franchise to women in the United Kingdom, desirable and fundamental as the change may have been, was not a constitutional change because ‘[t]he character of the relations between governors and governed … remained substantially unaltered.’ See King, Anthony, Does the United Kingdom Still Have a Constitution? (London: Sweet & Maxwell, 2001)Google Scholar, p. 2.
22 The current Swedish constitution consists of four fundamental laws; parties are included in ‘The Instrument of Government’. On the 1974 constitution, see Ruin, Olof, ‘Sweden: The New Constitution (1974) and the Tradition of Consensual Politics’, in Vernon Bogdanor, ed., Constitutions in Democratic Politics (Aldershot, Surrey: Gower, 1988), pp. 309–327Google Scholar.
23 The new integrated Finnish constitution of 1999 is based on four older constitutional acts (the Constitution Act, the Parliament Act and two acts on ministerial liability). The Parliament Act has included a reference to political parties since 1991.
24 For the purpose of this research, ‘democracy’ has been operationalized as a country classified as ‘Free’ by the Freedom House at the end of 2007, with the exception of small states with a population under 100,000.
25 More detailed information on the coding of the constitutions can be found in the Appendix. A catalogue of all cases of post-war European party constitutionalization, including subsequent amendments, is available online in a searchable database at www.partylaw.leidenuniv.nl. This database also contains details of party regulation through party laws and party finance laws.
26 Unless otherwise noted, all translations are from Flanz, Gisbert H., ed., Constitutions of the Countries of the World (New York: Oceana Publications, 2004)Google Scholar.
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28 This in contrast with the Provisional Constitution (Vorläufige Verfassung) adopted on 1 May 1945, where, in line with their leading role in the reconstruction of the Second Republic, parties were given a much more prominent position. This document, however, was suspended when the current constitution was reinstated. See Hans-Wolfram Wilde, ‘Die Politischen Parteien im Verfassungssystem Österreichs’ (doctoral dissertation, Kiel, 1984).
30 Kommers, Donald P., The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd edn (Durham, N.C.: Duke University Press, 1997), pp. 217–224Google Scholar.
32 Article 49 of the Italian constitution states: ‘All citizens shall have the right to associate freely in political parties in order to contribute by democratic means to the determination of national policy.’
33 Dimitris Th. Tsatsos, ed., 30 Jahre Parteiengesetz in Deutschland: Die Parteiinstitutionen im Internationalen Vergleich (Baden-Baden: Nomos, 2002).
35 The first sentence of article 6 of the Spanish constitution reads: ‘Political parties are the expression of political pluralism, they contribute to the formation and expression of the will of the people and are an essential instrument for political participation.’
38 For more details, see ‘Proposition de Revision portant creation d'un article 32bis nouveau de la Constitution’, outlining the official positions of the Government, the Council of State and the Committee for Constitutional Reform, on www.chd.lu/archives/ArchivesPortlet, Chambre des Députés, 22 February 2007; 31 August 2007; 13 November 2007; 29 November 2007.
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41 Most countries in Central and Eastern Europe enacted new constitutions following the establishment of the new democratic states, although in some cases not before revising the existing constitution to meet the requirements of democracy. Poland first adopted a provisional ‘small constitution’ in 1992, repealing part of the Communist Constitution, before adopting a new constitution in 1997; Latvia originally reinstated its pre-Second World War constitution in 1991 before adopting a new constitution in 1998; Ukraine initially amended the Communist Constitution in 1990 before replacing it with a new version in 1996. Only the Hungarian Constitution, first revised in 1989, continues to be a heavily amended leftover from the communist period. See McGregor, James P., ‘Constitutional Factors in Politics in Post-Communist Central and Eastern Europe’, Communist and Post-Communist Studies, 29 (1996), 147–166CrossRefGoogle Scholar.
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57 Issacharoff, Samuel, ‘Fragile Democracies’, Harvard Law Review, 120 (2007), 1405–1467Google Scholar, p. 1407. Issacharoff bases this notion on Fox, Gregory H. and Nolte, Georg, ‘Intolerant Democracies’, Harvard International Law Journal, 36/1 (1995), 1–70Google Scholar. Another often used term is ‘militant democracy’ (from the German streitbare Demokratie).
59 Issacharoff, ‘Fragile Democracies’, p. 1445.
60 Janda, ‘Adopting Party Law’.
62 Robert Michels, (1911). Zur Soziologie des Parteiwesens in der Moderne Demokratie, English translation by Eden and Cedar Paul (1915). Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy (New York: The Free Press, reprint 1962).
68 Ingrid van Biezen, Peter Mair and Thomas Poguntke, ‘Going, Going, … Gone? Party Membership in the 21st Century’ (European Journal of Political Science, 2011 (Early View Online) at the ECPR Joint Sessions, Lisbon, 2009).
70 Bartolini, Stefano and Mair, Peter, ‘Challenges to Contemporary Political Parties’, in Larry Diamond and Richard Gunther, eds, Political Parties and Democracy (Baltimore, Md.: Johns Hopkins University Press, 2001), pp. 327–343Google Scholar.
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78 Cf. Hesse, who points out that the role of political parties as defined by the German Basic Law is confined to their contribution to the process of willensbildung. See Hesse, Konrad, Die Verfassungsrechtliche Stellung der Politischen Parteien im Modernen Staat (Berlin: de Gruyter, 1959)Google Scholar.
80 Cf. Epstein on the notion of political parties as public utilities, defining them as ‘agencies performing a service in which the public has a special interest sufficient to justify governmental regulatory control, along with the extension of legal privileges, but not governmental ownership or management of all the agency's activities’. See Epstein, Leon, Political Parties in the American Mold (Madison: University of Wisconsin Press, 1986)Google Scholar, p. 47. See also van Biezen, ‘Political Parties as Public Utilities’.
82 Leibholz, Gerhard, Strukturprobleme der Modernen Demokratie (Karlsruhe: Müller, 1958)Google Scholar, esp. pp. 78–93.
83 Katz and Mair, ‘Changing Models of Party Organization and Party Democracy’.
84 Van Biezen and Kopecký, ‘The State and the Parties’.
86 Nevil Johnson, for example, notes that parties in Germany have adapted their internal structure and behaviour the requirements deduced from the Basic Law. Moreover: ‘All parties have been keenly alive to the normative implications of Article 21 in respect of their public attitudes both to the constitutional order itself and to the formulation of specific policies within it.’ See Johnson, Nevil, ‘Law as the Articulation of the State in Western Germany: A German Tradition seen from a British Perspective’, West European Politics, 1 (1978), 177–192CrossRefGoogle Scholar, p. 188.
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