Political Parties in Constitutional Theory

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. The chief of political parties is to as between the state and its This a of party the in a to be with a of in the relationship between the party and the is that parties have a level of relationship with the and institutions are the people to popular and are usually the state to influence state no in they can have a relationship with their as and can often have influence on state political parties are a very of intermediary between the state and its people for the and the of their intermediary by parties is in as as they both of popular and state are in the and institutions of the (at least have to the This is to the democratic that parties can to state institutions and In the state offices and these are of that are by a of of their and of This is for with the and But a the of offices and institutions to with the and of understanding and on the their the and of least at their This of them to their key to and influence popular on the one and to and their on the The relationship between popular and is a they to and a The central of political parties is to this relationship between popular and they popular and them they and public to While this that parties are a that that parties are a to the that they are a In part, to the is on of have as the of public to the people as of popular This the democratic for the state to its to the to with the and the role that parties in and The feature of the role that parties between the state and its people is their In the as as the of the people are to be as as pose a to the of the state to public that be to its The of in which different and is that the of with most of its they a for the state by of as the of the people of a state a with their The be often the of and It a of that to the between the and the and to and The of the of a political party the party can that its has a in it the of which is at least with as of state can to have a on for Even its silence or on will to a which it be to As the of serious political parties with on a of their with the and to them to the people as a In so, they their to to made with their and long as the to make the of their to are to their in a of The of a party is in a it is one that is by the of the people on the will on this feature when the it will to that a party itself to the that the of people in a state can it to have the of the people in a But a party is to to the of the people in its can to these and some will of be or for But parties should the of the political that a the of of the as to its considerations or its is no to the of the and is a a parties have a as they are more most political in democracies to have and are to more about the of the the of parties usually over a long parties about the that is their It is for parties to in over the parties have As and have that of and to the that they a of they are more of of and more the most This feature a to the of parties. In this and between the state and its political parties key and for possible. make for a when they are the and a party system is the system of the system in on the of parties to on how party is a the of the parties and or to the are to the about to in party to a in the that possible. by the of the parties they have and the of the between be more or at these will they make their party and parties more at the parties in party the of political for Even in a an on almost to take political as a to have of a of to state or will have to that a political party to some political by to the of political for for for in a are to some party that their and most and be their of when a of political political can be for a democracy. a without In a one have to make or without the political parties a of to can their of political without parties this is to be or Furthermore, of their parties can a of to are to in a democracy. by the political has to be by the the is to as a democracy. or that is the political their is changes the very of the This is in a party parties will be to without a itself without a political party the of a party to will be in a parties In is of to of it is usually to have that most are with the for party of different them with of about their political and thereby their that of and to for parties are at this that the of parties in the system are and their for a to make without But can be in it is parties that for their about their parties. system both parties and or is to to the It is to take the of by parties for in we a the of is the serious implications can have on the of it is to that the to a to a is more a a without the to public to a While a has a to democratic with due it is the state to that the on a to is of this is that the should be parties for democratic state institutions by to them of will be to of the parties that on this to state institutions, they or parties, in state institutions about the that a a people are to at least This can be and and state be the and of the that parties these and the The of the for state institutions should be It them to be to the people in a that is to the least of with different a the of to they are they they a of This is key to the of the to its The that the are by political parties their to popular and to the the as as democratic of partisan state parties, is simply no for state institutions to this can the level of popular for the that to a of is the and the that a political party can In in a the are parties for political parties as as for state and institutions by to them which are to be political can be for and are to when they are parties the of key will the of a of and it take to their and political parties the with political is a political or and the in political are of in a democracy. parties, will to the of will be the political will to be and in a system will have the to the can for whereas the make these has the will, after be with of the The of will be and state will the can can the important role parties can in these key and these will be to the functioning of a democracy. for democratic as that these and the role that political parties in them and them are the key vehicle for a between public and public the very of democratic the intermediary role that parties them for for public and on and as a vehicle for and The of a with the party a party in an or a political by party a a parties can an to for that the of a in is a that and and the In this we have that political parties are to the functioning of democracies in and as between the state and its on the one popular to state institutions that the to it and on the state and them to the This role a to as a private to the people in to popular and state to be in the institutional of the state to popular to them and to them which in they will to the parties in party the of by the and the political and the for the and the and for state This functional of political parties has their to the functioning of a democracy. This should to that as are and parties While a of the of parties in a is the state and its can a can the of parties to their important between the state and its people as as the party system in that the of parties to democracy. are more to this they in constitutional The an of parties in a democratic This is in between parties and party that that are It should be that parties that to their intermediary and are bad for democracy. party system can a parties, long as most of the key players are In this we will attention to that ought to in to parties that will make it more that parties and party are or are parties in the system can or their To so, will that should in to the autonomy the party system the and the should that for of this paper take the of more that the of these of that will be in In this will that democratic states their 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 should the of political parties As constitutional they the state. the ruling which the to state power, is to be in have a in some of to be as by the state. to to this take to In it be to a constitutional as a constitutional constitutional let as a an institutional that is most to that be be the most design a can be in its in a big-C constitutional one of of judicial statutes, and constitutional The to be should be least at a the big-C constitutional that the institutional arrangements of the state are its party The will, to be to the small-c statutes, conventions, and The key in a in the be and The will of these in and their to and political parties in the of their and intermediary role between the state and its that they are to the key and that make democratic In to so, parties private as as is their and the for the in has long to the This is on about the of public and private are the autonomy to they are very and for their on the at they have and for This has long been with some scholars for its whereas have that the be the between the public and the private should be In a have that the is as a The is both and the public of the the state a or in its the a in in is as the of a the has this and more of as to with the that the is a Constitutional is to this It on the to the private with constitutional and public with constitutional This is an important that be are to properly political parties without their them as state institution is to seriously their to engage with the people While be about political parties they their private they should about constitutional and that to their constitutional for political parties will attention to to the in this it will them it will in them the and which will them to their and it will duties on parties that are to their public a which their that they be public at the To that we to with parties The private of parties autonomy for the and of political parties. But their public a of their unlike political parties in a be to their with them a political party in a democratic party system is their public of in to control of the of state power for of and to by as between the state and the This is of a political party in a It is at a level of with an of more that parties But it is with as a party insufficiently or it for parties to or with the and To their private should autonomy for the or by an and of political parties, by the by their public of state power in by as between the state and its the autonomy the autonomy to parties to that are to the of one in a democracy. The that parties should be to and and to or The to their should be parties or opposition parties be of political are bad for parties, for established an political political that are partisan to capture an established party or the system The autonomy of political parties is key to the political in a the to their autonomy and duties the of this without the to the of a political In parties the of and political that have to in a they of their autonomy over and are are to to the fundamental to them to be to and with the people and to and political to and these a political party be at key democratic constitutional of party autonomy are to opposition parties by the ruling While their a of their their public them to and as as make them for duties that are to as state for political or for made in can a level between political parties and of them to their democratic This be for parties in a or a party Even the party is itself the party system In to the political of a of state to parties be it be to these to serious political parties. is a of the to the intermediary role between the state and its party which or for has a public parties as the British and a of parties as the often to to be when they their to the on an ignored can often be for a parties can largely be as private to enjoy the autonomy that political parties without the public or they have their political While in is a of it is a to it on in the or the most recent alone. state be to party that at least of the popular in the or to party which a in the in at least one of the these are is and that has been parties and parties should one with is that it between serious and parties. the autonomy to parties to public to be to parties to the public duties on serious parties, with in after they have in The public of parties some public will some of them the to be in this But some duties their role in the political and the are to the political is a of their institutional and of their institutional parties have the to these that and can on them and parties parties are to the as the democratic they a in their parties be to and (at least on a of the key of of the as health and in their a to to them public the the autonomy to the of political parties that is to their role in democratic parties autonomy to and parties. the at least serious political parties state and that their to the democratic The autonomy the of the to party and on serious parties. But public duties on parties to be with to their public of one in a democracy. we of the for it is a of the autonomy The political parties in the of the political will of the be Their to democratic

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