Clearly, liberal democracy is at a crossroad. Many are dissatisfied with the state of political affairs in their national countries. The news is filled with stories of uprisings in Chile or Bolivia, riots in Hong Kong or Paris, or mass movements in Catalonia or England. People take up the streets for the cause they believe in, may it be climate change, global inequality and poverty, national identity, political corruption and so on… All these various social movements share a common belief that the current democratic arrangements do not work. As most recent elections in Western democracies have shown, the political landscape is fragmented at an unprecedented scale. In France’s 2017 presidential elections, four candidates each obtained roughly one fifth of the total votes. In Spain, after four elections in as many years, no party is yet again able to claim an absolute majority in the lower Chamber. The situation is hardly different in Canada or the US. In the first case, the liberals led by Trudeau were forced to form a minority government after the autumn general election. In the second case, although political life is still structured around the binary division between democrat and republican, an increasingly patent sub-division emerges, between progressive and centrists within the Democratic Party, and Trumpist or not Trumpist within the Republican Party. We could also bring in the examples of Italy, famous for its theatrical political life, and Israel, unable to form a government since April 2019.
The issue with such fragmentation is that each group is unable to claim a majority, and thus is unable to properly govern. Without a “strong and stable” majority, no party enjoys sufficient legitimacy to impose its agenda on other political groups. The liberal democratic system was built on the assumption that a political community is divided between a ruling majority on the one hand and a minority on the other that, being out of power, needs guarantees and protections. The fundamental idea at the heart of liberal democracy is that today’s majority might be tomorrow’s minority. Yet, what if society, instead, is divided in four groups of roughly equal strength? What if there are only minorities?
The 20th century saw a similar challenge, albeit for different reasons. The introduction of a parliamentary system in continental Europe in the 1920s led to a great political instability, in no small part because continental Europeans lacked the political culture that had made this system work in Britain for two hundred years. To attest it, Carl Schmitt wrote, and was not alone in thinking, that a liberal democracy was merely an organised way to compete for the right to violate the Constitution. It is a fact that at that time, either in Weimar or in the III République, (European) parliamentary democracies were indeed unstable.
To solve the problem of instability, constitutional lawyers turned their attention towards institutional design. They claimed that, if framed somewhat differently, parliamentary democracy could offer a stable government. Boris Mirkine-Guetzévitch, a Russian academic exiled in France, argued first that rationalised parliamentarism implied codifying “good” political practices in two different ways : limiting Parliament’s powers over the Government on the one hand, and adapting the electoral system on the other. His ideas became very popular and were included into newer European constitutions. Concerning check and balances, the German Basic law of 1949 for example states that no vote of confidence can be passed if an alternative chancellor has not yet been identified. This procedure, described in article 67, is called a ‘constructive vote of no confidence’. In France, article 49 of the Constitution considerably hinders Parliament’s ability to pass a vote of no confidence. Thanks to procedural requirements that are difficult to meet in practice, there has been no successful such vote since 1962.
Today, many still turn their eyes towards institutional design with the hope it can fix democracy. Some argue for the adoption of a new Constitution – something that was proposed by Jean-Luc Mélenchon and Benoit Hamon, both unsuccessful candidates to the French presidency in 2017. Emmanuel Macron, who won, himself tried to pass a constitutional bill tellingly entitled “For a renewal of democratic life” [Pour un renouveau de la vie démocratique]. We see similar calls associating constitutional change to political and democratic change in Algeria, Italy, Belgium or Spain – to name but a few.
Others call for a reform of the electoral system, as did some Labour behemoths during the leadership contest. Depending on what they seek – representativity or clear majorities – the calls may go in opposite directions : either proportionality or first-past-the-post systems.
Although the appeal is rather clear, reforming the institutions of liberal democracies or their electoral processes is unlikely to bridge the gaps between the different factions that now compose contemporary political life. Reforming elections might seem like a plausible solution; it could lead to starker majorities, the story goes or, the other way around, to greater representation. But there is no reason to be particularly optimistic concerning the results of such reforms.
Firstly, if one, like Italy in 1993, is considering moving towards an election system similar to that of the UK (a “first-past-the-post” system whereby the candidate with the highest numbers of votes wins the elections in one single round, even though she obtains significantly less than 50% of the total share) then one is allegedly considering a trade-off between efficiency and democratic representativity. Such system might lack legitimacy to govern and opposition might move from Parliament to the streets. In the context of a fractured political landscape, it is paramount that a substantial part of the electorate supports public policies, or else governments may face unprecedented protests, as seen in France with the ‘Gilets-jaunes’ or in the UK against Brexit. Thus, an electoral system may at the same time produce starker majorities and make governing more difficult. In which case, such electoral reforms might actually worsen the disease it was supposed to cure, dividing even more an already divided society.
Secondly, the link we have all come to think true since the 1960s, between electoral systems and political majorities, is increasingly put into question. The UK, despite having a system extremely favourable to clear majorities, has known two hung parliaments in the last ten years. On the contrary, Germany, despite its mixed proportional system, has enjoyed stable coalitions throughout the decade. In both cases, in the UK and Germany, no party could claim absolute majority of the seats in Parliament. Yet, there has been a greater representation of smaller political units in the Bundestag than in Westminster. Therefore, is there actually a trade-off at play between representativity and majorities? What is certain, though, is that if electoral systems do play a part in creating majorities, it is neither the sole nor the biggest factor.
Since 1993, Italy has gone through four electoral reforms, from an essentially majoritarian system to an essentially representative one in 2005 and, in the end, chose a mixture of both in 2017. Yet, during the same period, there has been no obvious correlation between governmental instability and electoral system, as Berlusconi’s stable government exemplifies during the second half of the 2000s. The Italian example also shows that proportional representation by itself is unlikely, either, to “save democracy”, unless it is associated with a change in political culture. This is especially obvious if we compare Italy’s recent political history to that of Germany — in the former, the victory of populist parties over mainstream ones indicates Italians’ clear dissatisfaction with their democracy. No such thing has yet happened in Germany, ruled by its historical “grand coalition”. It seems again that the electoral system, be it proportional or majoritarian, matters little in the end.
As for changing the Constitution, it is doubtful institutional design will bear any fruit in that respect either. Not that it does not matter at all. It does matter, but its importance is very relative next to the prevalence of political conventions. The French Constitution of 1958 contains many elements of rationalised parliamentarism, for example, and yet most are now obsolete because political life has made them redundant. Under article 41 of the Constitution, the Government can ask the Conseil Constitutionnel to declare invalid a bill or an amendment to a bill that would not respect the domaine de la loi. In other words, a constitutional court can invalidate a legislation if it is passed ultra vires. In practice, this is seldom used for the simple reason that Government and Parliament are hardly ever opposed anymore. Since the emergence in France in the 1960s of both stable majorities and party discipline, the structuring of political life around political parties means institutional tools to coerce either government or parliament are unnecessary in most situations. An instrument at the disposal of an organ of the State is of no use unless there is a will to use it. And such will is dependent on both a political context and a political culture. Therefore, reforming the Constitution may only be useful if the amendments follow a shift in either context or culture.
In conclusion of these shorts remarks, the tendency to see constitutional law and its mechanics thereof as a solution to political problems is overall quite misleading. There is a place for institutional design. Depending on how power is devolved, different outcomes may be attained or encouraged. Yet, what matters more, and it has always mattered more, is how political actors and citizens alike understand and live their institutions. The fragmentation of political landscapes is, above all else, a political problem, and thus law can only play a supplementary role in fixing it. To quote Jennings “no constitution will work unless the people concerned want it to work : if they want it to work they can work any system”.
Lucien Carrier, PhD student at McGill University/Université de Bordeaux
(Suggested citation: L. Carrier, ‘The Problems with Institutional Reform in Fragmented Political Landscapes’, U.K. Const. L. Blog (27th May 2020) (available at https://ukconstitutionallaw.org/))