The Normality of Constitutional Politics: an Analysis of the Drafting of the EU Charta of Fundamental Rights

Constitutional politics is often contrasted with normal politics as being more deliberative and so able to produce a principled consensus rather than a compromise. This article qualifies this view. The authors argue that the potential exists for reasonable disagreement even over such basic constitutional principles as rights. As a result, a constitution can only be agreed by employing the art of compromise typical of normal politics. Indeed, a prime role of constitutional politics lies in showing how conflicts can be normalised. The authors illustrate their argument via a detailed analysis of the various political compromises employed by the convention to draft the EU Charter of Fundamental Rights.constitution building; EU Charter of Fundamental Rights; fundamental/human rights

Political Constitutionalism and Referendums: The Case of Brexit

The UK's political constitution rests on the checking and balancing operations of a representative system in which parliament is sovereign. By contrast, referendums are often considered instances of popular sovereignty. Critics condemn them as populist appeals to a singular will of the people that risk majority tyranny, supporters believe they allow citizens to check and balance the elitism of politicians. Such arguments lay behind the criticism and praise of the Brexit referendum. This article argues that while the criticism is justified when referendums form an alternative to representative democracy, they can usefully supplement such a system provided they are embedded within and constrained by it. So conceived, the Brexit referendum can be regarded as consistent with political constitutionalism. Yet, this conception challenges claims that it represented the sovereign will of the people. The result remained subject to ratification by a sovereign parliament and could be legitimately overturned by that body

Political constitutionalism and populism

Criticisms of political constitutionalism's relationship to populism point in two opposed directions. Legal constitutionalists consider it too open to, and even as legitimating, populist politics, whereas radical democrats consider it too closed to popular participation, prompting an anti-system politics of a populist character. I dispute both these views. Underlying these contrasting assessments are differing conceptions of populism and constitutionalism. This article distinguishes right- from left-wing populism, and limited government from non-arbitrary rule, as constitutional ideals. Legal constitutionalism typically embraces the first ideal. However, that can be a driver of both right- and left-wing populism, and allow types of arbitrary rule that democratic backsliding and illiberal regimes can (and do) exploit. By contrast, political constitutionalism involves the second ideal and is antithetical to right-wing populism while potentially friendly to the legitimate demands of left-wing populism. Nevertheless, the practical reality of political constitutionalism in the United Kingdom (and elsewhere) often falls short of its ideal theoretical potential. Addressing these shortcomings, however, requires strengthening democracy rather than the legal constitution, not least through electoral reform

The Democratic Constitution

Abstract: Understanding of the relationship between constitutionalism and democracy among legal and political philosophers reflects an idealised account of the US constitution and the nature of judicial review. This view is normatively and empirically flawed. The US constitution is built on pre-democratic assumptions and its countermajoritarian checks and balances are largely regressive, benefiting privileged minorities over the underprivileged. By contrast, 'actually existing democracy', involving competing parties and majority rule, is constitutional in its process and effects, treating all with equal concern and respect, upholding rights and maintaining the rule of law. Judicial review undermines these beneficial qualities. Key words Democracy, constitutions, judicial review, rights 2 Running head: The democratic constitution Does democracy need a constitution? The increasingly dominant view is that it does. Constitutions are said to enshrine and secure the rights central to a democratic society. According to this account, a constitution is a written document, superior to ordinary legislation and entrenched against legislative change, justiciable and constitutive of the legal and political system (Raz, 1998: 153-4). It is the constitution, not participation in democratic politics per se, that offers the basis for citizens to be treated in a democratic way as deserving of equal concern and respect (Dworkin, 1996: 24, 32-35). The electorate and politicians may engage in a democratic process, but they do not always embrace democratic values. The defence of these belongs to the constitution and its judicial guardians. This view has been neatly summarised by Cherie Booth, speaking as a distinguished QC rather than the wife of Tony Blair. As she puts it: 'In a human rights world … responsibility for a value-based substantive commitment to democracy rests in large part on judges … [J]udges in constitutional democracies are set aside as the guardians of individual rights … [and] afforded the opportunity and duty to do justice for all citizens by reliance on universal standards of decency and humaneness … in a way that teaches citizens and government about the ethical responsibilities of being participants in a true democrac

Political concepts

Written by a powerful international team of theorists, this book offers a sophisticated analysis of the central political concepts in the light of recent debates in political theory. All political argument employs political concepts. They provide the building blocks needed to construct a case for or against a given political position. To address such issues as whether or not development aid is too low, income tax too high, or how to cope with poverty and the distribution of wealth, citizens must develop views on what individuals are entitled to, what they owe to others, and the role of individual choice and responsibility in these areas. These matters turn on an understanding of concepts such as rights, equality and liberty and the ways they relate to each other. People of different political persuasions interpret such key political concepts in different ways. This book introduces students to some of the main interpretations, pointing out their strengths and weaknesses. It covers a broad range of the main concepts employed in contemporary political and theoretical debates. Separate chapters look at liberty, rights, social justice, political obligation, nationalism, punishment, social exclusion, legitimacy, the rule of law, multiculturalism, gender, public and private, democracy, environmentalism, international justice and just war. This book is perfect for students of political theory and political ideology, and indeed anyone approaching political theory for the first time

How the EU can counter democratic backsliding in its member states

The issue of democratic backsliding in the EU’s member states has received substantial attention in recent years, but it is far from clear how the EU’s institutions should respond. Richard Bellamy and Sandra Kröger set out a framework for understanding and tackling the problem, built on the principle of ‘value differentiated integration’. Recent developments in ... Continue

Truthfulness, pluralism and the ethics of democratic representation

It is sometimes suggested that even democratic politicians need to dirty their hands in ways that render hypocrisy, lying and deception unavoidable and even justified. By contrast, we draw on John Rawls’ Political Liberalism to argue that the ‘reasonable disagreements’ occasioned by the ‘fact of pluralism’ that make democratic politics necessary can only be resolved in ways congruent with democratic norms if politicians are truthful in Bernard Williams’ sense, and adhere to the related virtues of ‘sincerity’ and ‘accuracy’. Supplementing Eric Beerbohm’s ‘relational model’ of campaign ethics with Suzanne Dovi’s account of the ‘good representative’, we argue that these both entail the virtues of truthfulness. We contend the contemporary crisis of representation associated with the rise of technocracy and populism can be linked to the ways both undermine these virtues through their common rejection of pluralism and the related need for truthfulness. Consequently, both involve deformations of ‘good’ democratic representation

Political concepts

Written by a powerful international team of theorists, this book offers a sophisticated analysis of the central political concepts in the light of recent debates in political theory. All political argument employs political concepts. They provide the building blocks needed to construct a case for or against a given political position. To address such issues as whether or not development aid is too low, income tax too high, or how to cope with poverty and the distribution of wealth, citizens must develop views on what individuals are entitled to, what they owe to others, and the role of individual choice and responsibility in these areas. These matters turn on an understanding of concepts such as rights, equality and liberty and the ways they relate to each other. People of different political persuasions interpret such key political concepts in different ways. This book introduces students to some of the main interpretations, pointing out their strengths and weaknesses. It covers a broad range of the main concepts employed in contemporary political and theoretical debates. Separate chapters look at liberty, rights, social justice, political obligation, nationalism, punishment, social exclusion, legitimacy, the rule of law, multiculturalism, gender, public and private, democracy, environmentalism, international justice and just war. This book is perfect for students of political theory and political ideology, and indeed anyone approaching political theory for the first time

Party Views on Democratic Backsliding and Differentiated Integration

Both political parties and differentiated integration (DI) play an ambivalent role in regard to democratic backsliding. Parties’ positioning towards democratic backsliding has not always been straightforward, and DI has been seen as facilitating it. We analyse whether party actors view democratic backsliding as a problematic issue for the EU, if they think DI facilitates it, and how they consider the EU should respond to it. Drawing on thirty-five interviews and a survey of forty-two party actors in seven member states, we show that many do view backsliding as problematic. Moreover, around half worried that DI could facilitate backsliding, though others did not link the two. Finally, almost all considered it legitimate for the EU to address democratic backsliding. Although centre-of-left actors are most likely to worry about democratic backsliding and favour EU intervention, actors across the political spectrum are sceptical about accepting DI in matters pertaining to Article 2

Party views on democratic backsliding and differentiated integration

Both political parties and differentiated integration (DI) play an ambivalent role in regard to democratic backsliding. Parties’ positioning towards democratic backsliding has not always been straightforward, and DI has been seen as facilitating it. We analyse whether party actors view democratic backsliding as a problematic issue for the EU, if they think DI facilitates it, and how they consider the EU should respond to it. Drawing on 35 interviews and a survey of 42 party actors in seven member states, we show that many do view backsliding as problematic. Moreover, around half worried that DI could facilitate backsliding, though others did not link the two. Finally, almost all considered it legitimate for the EU to address democratic backsliding. Although centre-of-left actors are most likely to worry about democratic backsliding and favour EU intervention, actors across the political spectrum are sceptical about accepting DI in matters pertaining to Article 2