Constitutional Democracy

Constitutional Democracy

János Kis
Copyright Date: 2003
Edition: NED - New edition, 1
Pages: 342
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  • Book Info
    Constitutional Democracy
    Book Description:

    Constitutional Democracy addresses the widely held belief that liberal democracy embodies an uneasy compromise of incompatible values: those of liberal rights on the one hand, and democratic equality on the other. Liberalism is said to compromise democracy, while democracy is said to endanger the values of liberalism. It is these theses that János Kis examines and tries to refute. Making the assumption that the alleged conflict is to be resolved at the level of institutions, he outlines a new theory of constitutional democracy. A wide range of problems encountered in constitutional democracy are discussed, such as the popular vote, popular sovereignty, and non-elected justices. The volume is composed of three parts. Part One, "Public Good and Civic Virtue", revisits the debate between liberals and democrats on how to interpret the democratic vote. In Part Two, "Liberal Democracy", the author proves that on the level of principles there is no incompatibility between liberalism and democracy and that liberal theory can demonstrate that democratic values follow from fundamental liberal values. In Part Three, "Constitutional Adjudication in a Democracy", the compatibility of democracy and judicial or constitutional review is analyzed and a theory of constitutionalism is outlined.

    eISBN: 978-615-5053-88-7
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Introduction
    (pp. ix-xvi)
    The Author

    Let me begin with a terminological question. The title of this book is “Constitutional Democracy”. That of one of its studies is “Liberal Democracy”. What does the different choice of words refer to?

    Liberalism is a set of political values and principles: values such as liberty and equality, and principles such as everyone’s right to make sovereign decisions about their own lives. The term “democracy”, too, when combined with the adjective “liberal”, refers to political values and principles, to everyone’s equal right to participate in the conduct of public affairs, to collective self governance, and so forth. Thus, to talk...


    • 1. Liberalism and republicanism
      (pp. 3-8)

      Liberalism came to dominate political philosophy in the early 19th century. From hindsight, it long appeared as though it had dominated the two preceding centuries as well. Fresh developments in the history of ideas have shown, by contrast, that this image is false. During the centuries of its inception, liberalism had to share its theoretical influence with a rival trend of thought that is now called republicanism.¹

      The republican doctrine constituted a specific interpretation of the political tradition of Antiquity. Its central thought was furnished by two theses: first, the aim of any political community is to promote the common...

    • 2. The preference-aggregating model
      (pp. 9-10)

      The preference-aggregating model conceives democratic politics after the image of the market. Voters play here a role analogous to that played by consumers; they seek their share in the goods distributed by politics. Political programs among which voters may choose represent the supply. Not unlike decisions of consumption, voters’ decisions are governed by selfinterest. Citizens rank the offered programs according to the benefit they may expect for themselves and for their immediate families from their realization. They give preference to the program from which they expect the largest private gain. Their votes reveal the demand that the totality of individuals...

    • 3. The ethical model: the responsible voter
      (pp. 11-16)

      The ethical model rejects the market analogy. It does not necessarily reject the market itself; that is, it does not necessarily reject the idea that the market lets the individuals pursue their private interests and treats their preferences as given. It allows to take that to be acceptable in the market, where everyone decides for oneself and only for oneself. If there are such decisions that it is better for them to be made independently, each for oneself, then the institution of the market is ethically defensible. The question then becomes what it is reasonable to let market mechanisms decide,...

    • 4. The ethical model: the relation between private and communal preferences
      (pp. 17-20)

      We have seen that in the ethical model voters may not rest content with ranking the offered alternatives according to their own interests only; they have to take into account the interests of the community as well. However, we have not examined yet the way they should relate the two orderings in making their decisions.

      The preference-aggregating model suggests the following solution. Voters do not simply order their private and communal preferences separately, but order the two rankings with regard to one another as well. This makes it possible for them to decide in each case which is the better;...

    • 5. The ethical model: public debate and voting
      (pp. 21-24)

      Earlier, I have written that making a statement on the common good implies the claim that others should share the same view. In case an agreement is actually reached, the vote will be unanimous. The coincidence of votes, however, is not a source of the agreement: it only registers it. A convergence of views is reached through different channels. It might have a number of sources, such as adjustment to the majority opinion, manipulation, conformism, the rapprochement of lifestyles, and so forth. The ethical model, on the other hand, privileges one of the many possible causes of convergence, i.e. rational...

    • 6. On the relation of the two models
      (pp. 25-28)

      What the ethical model does is first and foremost to highlight the deficiencies of the criteria of evaluation furnished by the preference-aggregating model. Its main normative claim is that it is not sufficient to judge democratic voting by the sole measure of efficiency in satisfying the contingent multitude of (individual) preferences. The common good is not simply that which the majority actually prefers but rather that which it is reasonable for it to prefer.

      At the same time, the model shows that people’s motives do not render it impossible for democratic decision making to realize the thus conceived common good....

    • 7. Liberalism and the descriptive claims of the ethical model
      (pp. 29-34)

      Should the fundamental theses of the liberal theory be found to be contradictory with the descriptive assumption of the ethical model, the program of “correction” would be bound to fail; one would have to choose between liberalism and the ethical model. Therefore, we have to see first whether or not liberalism is compatible with these assumptions.

      Let us begin with the thesis that—at least in the sphere of politics—individual decisions are not governed solely by self-regarding preferences. No doubt Jeremy Bentham, the father of the preference-aggregating model, believed that people are driven almost exclusively by selfish motives.19 Furthermore,...

    • 8. Virtue in politics
      (pp. 35-38)

      There is no work left for moral sentiments in Adam Smith’s theory of the market. In the world of laissez-faire, the outcome is the realization of the maximum of common good, even if each person pursues her own interests. But such a removal of moral requirements is tied to unrealistically strong conditions. Some of these were discussed explicitly by Smith himself, others being made explicit by later economic theory.

      Here are some of these conditions; every market actor must be perfectly well informed, and the acquisition and processing of information must be costless; no one should be able to influence...

    • 9. The politics of virtue and personal autonomy
      (pp. 39-42)

      In his influential work called A Theory of Justice, John Rawls makes a distinction between ideal and non-ideal theory. He calls a theory ideal if it makes ideal assumptions about circumstances and conduct, if it assumes, for instance, strict compliance with the requirements of morality. A non-ideal theory, by contrast, takes it into account that such ideal assumptions are not satisfied in the real world. Thus, non-ideal theory assumes partial compliance, i.e., it assumes that, even though most people are motivated to do what is morally right, they tend to give priority to non-moral considerations even in the absence of...

    • 10. Concluding remarks
      (pp. 43-50)

      Liberalism’s commitment to the principles of ethical individualism, of liberty and rights, and of economizing on virtue is sustainable and worthy of being sustained. Its traditional conception of representative democracy, however, is in need of revision. Revision is necessitated by any defensible interpretation of the basic liberal principles themselves.

      According to such a revised picture of democracy, the preferences of the citizens do not serve as external parameters for the political process; as they do not express brute desires but are dependent on (true or false) beliefs and value judgments they may be subjected to rational debate. An acceptable model...


    • 1. Introduction
      (pp. 53-56)

      According to a widespread belief, liberal democracy tries to reconcile mutually exclusive values. No political regime can be both perfectly liberal and perfectly democratic, or so the claim has it; liberalism and democracy cannot be made compatible unless society makes concessions either from what it holds to be valuable about liberalism, or from what it values in democracy—or from both. What makes democracy attractive is that it realizes the rule of the majority, and what makes liberalism attractive is that it protects individual liberty; however, the majority tends to sacrifice individual liberty each time it can enhance its own...

    • 2. The conflict
      (pp. 57-60)

      A collective decision does not raise any difficulty if it is made completely unanimously. Assume that a multitude of people has to decide about two alternatives, a and b. Assume, furthermore, that each person intends to vote for a; moreover, they intend to do so regardless of the voting intentions of the others. In this case the decisions are made in consensus, and no one would be justified in making objections against them. The main question of political theory—how can a binding collective decision and the duty to obey it be justified to disagreeing individuals—does not even arise....

    • 3. Constitutional constraints, constitutional review
      (pp. 61-64)

      The provisions protecting liberal principles are commonly said to depart from democratic decision making in two important ways. First, in constitutional democracies majority rule has no universal application to collective decisions. The rule of the majority means that support by the smallest possible majority is sufficient for an option to be declared the winner. In cases of binary choices, majority rule holds that the choice that receives at least one vote more than the half of all votes is to be the choice of the community. The constitution exempts the liberal principles from the scope of this rule. It makes...

    • 4. Political equality and rule by the majority
      (pp. 65-70)

      In the previous section I have been characterizing the putative conflict between democratic and liberal principles, in accordance with the traditional picture, as a conflict between majority rule and individual liberty. However, majority rule was not mentioned in my earlier characterization of democracy; I called those regimes democratic that satisfy the requirements of popular sovereignty and political equality. No doubt, this characterization departs from the usual view. Ever since the inception of modern democracy, the belief that democracy is identical with majority rule has been prevalent. John Locke claimed, in his Second Treatise on Civil Government, that the original contract,...

    • 5. Equality of votes and equality of voters
      (pp. 71-74)

      But is it really the case that for a voting system to treat participants of the voting process as equals it must always grant one and only one vote to all of them and weigh the votes equally when it comes to aggregation? In what follows I will argue that this is not the case. It is only under special circumstances that equality of votes satisfies the requirement of equal treatment.

      Let me begin with the requirement of anonymity. Assume that the community is divided into two distinct and well-recognizable groups, the Blue and the Pink (‘Blue’ and ‘Pink’ may...

    • 6. Contractarian theory: the selection of voting rules
      (pp. 75-80)

      The insights of the previous section are close to the results the theory of collective decisions reached by way of studying constitutional choices. In what follows, I will briefly summarize the arguments of James Buchanan and Gordon Tullock, who outlined the theory in its classical form.24 My hope is that such a summary will make the above claims about equal treatment of voters more exact and at the same time prepare the ground for discussing our second problem, the one that concerns the relation between constitutional review and popular sovereignty.

      Suppose, goes the argument Buchanan and Tullock suggest, that the...

    • 7. A weakness of contractarian theory
      (pp. 81-84)

      Thus, one of the two pillars of the compromise thesis has been removed. Since rules that are more demanding than simple majority do not in principle violate democratic equality, the latter does not prohibit the application of liberal constraints. Yet the second pillar is yet to be considered. If it is true that the liberal principles of equal treatment may be enforced against encroachments by the legislature only through judicial activism, and if it is true that an activist conception of constitutional review is incompatible with the principle of popular sovereignty, then it will still be the case that liberal...

    • 8. The typology of preferences
      (pp. 85-90)

      Call preferences such rankings of possible states of affairs where the ranking shows what, other things being equal, the person who made the ranking is disposed to choose. Call the person who makes the ranking the subject of preferences. Suppose that for this person, A, there are two possible states of affairs; he obtains either an apple or a pear. Then, A may prefer either obtaining the apple to obtaining the pear or obtaining the pear to obtaining the apple, or he may be indifferent to the two outcomes. Yet, such statements do not provide us with exhaustive descriptions of...

    • 9. Filtering the preferences of the contracting parties
      (pp. 91-96)

      The above typology is rather rudimentary, and it does not account for a number of factors that are relevant for human preferences.36 Yet it is sufficient to give an overview of what the idealization of preferences of the hypothetical constitution makers may and may not involve.

      First of all, it may involve excluding raw preferences. It is always better to make a decision on the basis of considered preferences than making decisions while we are not entirely clear about what we in fact prefer. The longer the time-span of a decision the more important it is that the preferences taken...

    • 10. Moral discussion before the contract
      (pp. 97-102)

      Let us assume that in ordinary life people are divided by enduring disagreements in questions of a moral nature, such as the right of religious people to be protected against public speech that hurts their sensibility or the right of pregnant women to have an abortion on demand. Contractarianism proposes to the disagreeing parties to settle their controversies by examining whether—among idealized conditions, and considering nothing but their own long-term utility—they would favor granting such rights or not. Suppose the hypothetical constitution makers would unanimously approve of the right to be protected against statements that hurt religious sensibilities...

    • 11. The mandate of the guardians of the constitution
      (pp. 103-108)

      The fact that the only acceptable answer is the right answer does not imply either that the right answer coincides with one of the positions actually represented during the debate, nor that the available evidence would necessarily settle the question concerning the right answer compellingly. The thesis that questions concerning the liberal constraints require pursuing the right answer is compatible with the claim that at a given moment none of the participants are aware of the right answer or that none of them possess conclusive arguments that would make adopting their position compelling for others. Thus, even though it may...

    • 12. Summary and restrictions
      (pp. 109-116)

      In the introduction I have written that the refutation of the compromise thesis is interesting not in its own right but in what it shows us about liberal democracy. In the conclusion I would like to sum up this lesson.

      First of all, we have gained criteria for the proper understanding of democratic equality. Democracy is usually described as a decision making procedure, where the outcome is legitimated by the procedure within the rules of which it was produced. Therefore, it comes naturally to think that the standards for selecting the appropriate procedure from the many available alternatives are such...


    • 1. Introduction
      (pp. 119-132)

      The Hungarian Constitutional Court is the offspring of the 1989 transition. Its creation and the fundamental principles of its operation were agreed upon at the national round table.¹ Its objectives, competences and procedural rules were specified by the constitution amended on October 18, 1989 and by the law on the Constitutional Court adopted on the following day.² The first five justices were elected in the course of the following month, while six justices were delegated by the new Parliament in June 1990. The mandate of the first members of the Court expired by the end of November 1998.³ In June...

    • 2. Interpreting the constitution
      (pp. 133-182)

      In the introductory chapter I have characterized the ideal of parliamentarism as the thesis that holds that only popular representatives are authorized to make such rules that bind the state and its citizens; all other government agencies must act within the constraints of the laws made by the parliament, and no one might make rules that bind the representatives themselves. This is a very influential thought, because it appears to be the direct heir of one of democracy’s basic normative ideas, the principle of popular sovereignty. In the next two chapters I try to show that the ideal of parliamentary...

    • 3. Striking down legislation
      (pp. 183-246)

      Constitutional justices are not elected representatives but are merely authorized by elected representatives; the mandate of this body is derived from the constitution makers, while the judges’ own personal mandates derive from the lawmakers. Usually, ordinary judges, too, are not elected representatives; their authority is derivative as well. Yet there is a fundamental difference between constitutional justices and ordinary judges.

      We have seen (in Section 2.1) that the principle of popular sovereignty demands that those authorized should act within the framework of rules set up by those who authorized them. The upshot of the previous chapter was that the judges...


    • 1. The interpretive practice of the Constitutional Court
      (pp. 249-302)

      This study examines the interpretive practice of the first Hungarian Constitutional Court in the light of the general conception of constitutional review, developed in the previous study. I will show that the collective stance of the Constitutional Court included the claim to substantive constitutional interpretation; that the judges saw it justified to resort to substantive interpretation primarily in cases that require the moral reading—that is, in rights adjudication. It will be shown, furthermore, that initially they saw the critical—natural rights oriented—revision of the text as permissible. The fact that the judges soon retreated behind the confines of...

    • 2. Summary and a glance to the future
      (pp. 303-320)

      In 1989, at the outset of the third republic, the legal as well as the political community in Hungary were thinking about the new democratic institutions in terms of the traditional conception of parliamentary Rechtstaat. This conception allows only for a very limited room for constitutional review. In this view, the Constitutional Court must establish only the straightforward violations of the constitution, those that might not in good faith be questioned. If the Court strikes down a law by relying on such an interpretation that divides the public, then in this conception it inevitably violates the principle of the separation...

  8. Index
    (pp. 321-324)
  9. Back Matter
    (pp. 325-325)