[Elster, Jon (1996), The Role of Institutional Interest in East European Constitution-Making - Explaining legislative dominence, East European Constitutional Review, 5 (6):63-65]
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The Role of Institutional Interest in East European Constitution-Making - Explaining legislative dominence
Jon Elster
To explain constitution-making in Eastern Europe-and elsewhere-one has
to proceed in three steps. First, one has to identify the constraints
(if any) that limit the freedom of choice of the constitution-makers.
Usually these constraints are weak or non-existent because constituent
assemblies tend to have (or to arrogate for themselves) what the Germans
call Kompetenz-Kompetenz-the power to determine their own powers. In
Eastern Europe, the main constraints were the agreements reached at the
Roundtable Talks. Yet as the case of Hungary shows, these constraints
were not always binding (see EECR, "Bargaining over the Presidency",
Vol. 2/3, Nos. 4/1, Fall/Winter 1993/1994).
Second, one has to identify how the feasible options are ranked by
the constitution-makers, on the basis of their goals and motivations.
Roughly speaking, these may be subdivided into reason, passion, and
interest. By reason I mean any kind of impartial concern for individual
rights and the common good. By passion, I mean either standing passions
such as religious or ethnic animosities or sudden, impulsive ones.
Interest, finally, may refer to the personal interest of the
constitution-makers, to interests of groups (territorial subunits or
political parties) or of institutions. The last is the focus of this
article.
Third, one has to identify the mechanism by which these
preferences are aggregated to yield the final decision. We may
distinguish among three mechanisms. First, there is rational
argumentation. Second, there is bargaining based on credible threats and
promises. And third, there is voting. Actually, the constitution-making
process does not turn only on the aggregation of preferences. To the
extent that genuine rational argument takes place, there may also occur
a transformation of the initially given preferences. Also, each
aggregation mechanism-arguing, bargaining, and voting-creates incentives
for the misrepresentation of preferences.
In the literature on constitution-making one sometimes reads that
when (but only when!) a choice of institution affects neither individual
interest nor group interest, the decision will be made by impartial
reasoning about the common good. The East European experience suggests
that institutional interest may also be an obstacle to impartiality.
Suppose that a political institution is both a participant in the
constitution-making process and is among the institutions to be
regulated by the constitution. The interest of that institution will
then be to enhance its own position in the constitutional framework, at
the expense of the other organs of state.
If one believes, as I do, in the doctrine of methodological
individualism, talk about "group interest" or "institutional interest"
can only be shorthand for individual motivations. If challenged, one has
to be able to explain how individuals are moved to promote the political
fortune of the group or institutions to which they belong. If members of
a parliamentary caucus, for instance, do not follow the party line, they
may fail to get renominated or reelected, or suffer financial sanctions.
Similarly, if members of parliament systematically favor a strong
parliament at the expense of the other branches, they must be motivated
to do so. In some cases, this may reduce to simple personal interest. If
framers intend to stay on in political life as legislators, beyond the
constituent parliament, their desire to enhance their own power may
induce them to promote the power of the legislature. In other cases,
legislators seem to identify with the institution to which they belong.
Independently of reelection, they tend to feel pride in their
institution, because of a need for cognitive consonance ("this must be
an important institution since I am a member of it"), through
socialization, or as the result of other mechanisms.
I shall test four implications of the hypothesis that
constitution-makers are motivated by institutional interest. The first
implication is that constituent assemblies that also serve as ordinary
legislatures will tend to give preponderant importance to the
legislative branch at the expense of the executive (president and
government) and the judiciary. With regard to the new constitutions in
Eastern Europe, this implication is reasonably well borne out. Except
for Poland, the presidents are not strong. That exception does not
however count as evidence against the hypothesis, as the presidency in
that country was an artifact of the Roundtable Talks (see "Bargaining
over the Presidency") rather than created by a democratic assembly.
Except for Hungary, no country has adopted the constructive no-
confidence vote that would strengthen the position of government vis
vis parliament. The strong role of the constitutional courts in the
region counts to some extent against the hypothesis. Note, however,
that in Romania and Poland, decisions by the constitutional court can be
overridden by parliament.
A second implication of the hypothesis is that constituent
parliaments will tend to make parliament central in the amendment
process, at the expense of referenda or other forms of extra-
parliamentary ratification. This implication, too, is reasonably well
confirmed. Only Romania has a mandatory referendum over constitutional
amendments where Parliament, if it so wishes, can always change the
constitution by the "backdoor" method of first adopting an
unconstitutional law and then overriding any ruling by the
Constitutional Court declaring it unconstitutional.
On balance the new East European constitutions tend to favor
parliament more than other recent European constitutions, such as the
1949 German Constitution, the 1958 French Constitution, and the 1978
Spanish Constitution. I have suggested that institutional self-interest
may be the explanation. A second possible explanation lies in the legacy
of Communism. In theory, at least, the communist constitutions invested
all power in parliament. This is why, for instance, the Polish
Parliament can override the rulings of the Constitutional Court. The
"Little Constitution" adopted in 1992 does not include a reform of the
judiciary, which is still regulated by the communist constitution. The
Romanian constitution-makers, too, may have been in the grip of the
communist legacy when they adopted a similar provision. A third
explanation is that parliamentary supremacy, rather than being a
continuation of Communism, is a reaction against the centralizing power
structure of Communism. Yet although each of the alternative accounts
may have some force, the hypothesis of institutional interest is more
parsimonious and more comprehensive.
A third implication of the hypothesis is that unicameral and
bicameral constituent assemblies will create, respectively, unicameral
and bicameral constitutions. This prediction is very largely born out.
Bicameral assemblies in Poland and Romania created bicameral
constitutions; unicameral assemblies in Hungary, Slovakia and Bulgaria
created unicameral constitutions. Poland might seem to be an exception,
since here the Senate was originally created in the Roundtable Talks.
Yet when the Little Constitution came to be adopted, the existence of
the Senate made its perpetuation a certainty. When I asked Polish
constitution-makers why they should have a Senate, I first got pious
replies about the advantages of bicameralism and the fact that all great
European powers have bicameral systems. When pressed, they acknowledged
that the bargaining power of the existing Senate was the decisive
factor. The Czech Republic is the only exception to the pattern, and
even that exception is only a partial one. In 1992, the Czech National
Council created a bicameral Constitution to bribe the Czech members of
the Upper House of the Czechoslovak Federation to vote for the
dissolution of the country, by promising them seats in the upper house
of the Czech Republic in exchange. Once they had done that, they
conveniently forgot their promise. Elections to the Senate were not
called, and its functions were carried out by the Lower House. Only now
have elections to the Czech Senate been scheduled (for November 1996).
A fourth implication is that to the extent that the president is
involved in the constitution-making process, he will tend to promote a
strong presidency. Lech Walesa inherited a strong presidency from the
Roundtable Talks, and used the powers it gave him to maintain then in
the Little Constitution. Havel tried several times, unsuccessfully, to
strengthen the Czechoslovak presidency; later, with equally little
success, to create a strong presidency for the Czech Republic. One might
want, perhaps, to explain their behavior in terms of personal rather
than institutional interest. Yet it appears to me that Walesa and Havel,
in their efforts to strengthen the presidency, have not simply been out
to enhance their own power. Rather, I believe that from their
perspective the advantages of a strong presidency, which can prevent
chaos and ensure efficiency in the difficult transition period, have
seemed obvious and overwhelming. The same was true of de Gaulle in 1958.
From a normative perspective, the obvious implication is that
constitutions ought to be written by specially convened constituent
assemblies rather than by institutions that will be involved in ordinary
post-constitutional politics. This is what happened in Philadelphia in
1787 and in Bonn in 1949. Yet, in general, a country does not have two
full sets of political elites, one to run the country and one to write
the constitution. (Remember that in 1949 the Allied powers were running
Germany.) This would be even less affordable in times of crisis and
turbulence such as those in which constitutions tend to come into being.
The East European experience nevertheless shows that a constituent
parliament may be able to overcome its self-serving bias. The Hungarian
Parliament of 1989 to 1990 created a strong cabinet, a strong
Constitutional Court, and allowed enough power for the president to
resist attempts of the cabinet to use force against the population and
of the ruling party to monopolize power. The provisions spelling out the
president's powers were, however, ambiguous and were sorted out later by
the Constitutional Court in favor of the cabinet of the day. The
Hungarian framers abdicated a great deal of their powers to other
institutions, even though they did not have to. The crucial difference
was perhaps that, unlike the other East European countries, Hungary
never elected a constituent parliament. The Hungarian Constitution was
made chaud, from day-to-day, by a parliament elected before the
transition. Because the institution was in ill-repute, and the deputies
demoralized, institutional interest had no purchase on the outcome.
[Elster, Jon (1996), The Role of Institutional Interest in East European Constitution-Making - Explaining legislative dominence, East European Constitutional Review, 5 (6):63-65]
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