Constitutional Resilience and the Role of Courts

The present special issue of the Global Jurist offers a carefully selected collection of case-studies showing how constitutional courts can react to adverse circumstances. The three editors and the authors, all of them eminent and internationally recognized scholars in the field, are succeeding in explaining the complex nature of the challenge that constitutional courts are facing nowadays. The nuanced picture that they are drawing here is helpful for researchers of erosion phenomena all around the world, both comparative constitutional lawyers and political scientists.

Constitutional resilience is usually defined as the capacity of a constitutional system to withstand attempts aimed at changing or violating its core elements.^[1] The expression is used mostly in the context of protecting democracy and the rule of law. Resilience depends on the interaction of the constitutional design, including adaptation through constitutional amendment, ordinary legislation and case-law (in the terminology of the present special issue: ‘the institutions’)^[2] and the political-social-cultural context in which a constitution operates (in the terminology of the present special issue: ‘the structure’). Challenges can be sudden external shocks (e.g., coups) or, especially in recent decades, slow gradual degradations (often called erosions).

In general, although constitutional law has an important role to play for its own resilience,^[3] on its own, it is not decisive for the outcome.^[4] Constitutional law is only ever meaningful in combination with certain domestic and international social and political factors.^[5] This can be illustrated by Art. 48 of the Weimar Constitution on the emergency decrees of the Reich’s president, which has been widely blamed – and rightly so – for contributing to the erosion of the Weimar Republic. This clause is very similar to the still existing Art. 16 of the 1958 Constitution of France, which, however, has so far not brought about erosion in France. Likewise, the 1853 Constitution of Argentina was an almost verbatim translation of the Constitution of the 1787 US Constitution, without, however, resulting in democracy, but in a presidential dictatorship instead. One can even mention the 1920 Federal Constitutional Law of Austria, which has already failed once, in 1933, and may only be considered a success story since the end of World War II. The 1922 Constitution of the Republic of Latvia has had a history similar to that of Austria, falling prey to erosion in 1934; yet since the end of socialism in 1990 it has proved to be a democratic success story. All these examples can be explained by the fact that constitutional rules operate in context; that is, they work in combination with social and political factors.

Written formal (legal or constitutional) rules can be best understood if they are viewed in interaction with their particular social and political context. This approach is referred to as the institutionalist or neo-institutionalist paradigm.^[6] This paradigm is particularly apt to analyse the erosion of liberal democracy, as a key erosion phenomenon is exactly the demise of the normativity of constitutional law, i.e., the growing gap between the constitutional norms (Verfassung) and constitutional reality (Verfassungswirklichkeit). This growing gap is difficult to analyse with the help of traditional doctrinal (black letter) scholarship. Most of the contemporary erosion tends to happen in the de facto behaviour and in the narrative; changes in formal legal rules (or via constitutional amendments) are usually just the tip of the iceberg, facilitating informal deteriorations or institutional capture.^[7]

To be sure, having an organizationally and financially independent judicial system (ordinary courts and constitutional courts) with ample competencies is helpful for constitutional resilience.^[8] But the actual effectiveness of the rules regarding judicial independence is actually more dependent on public support,^[9] effective competition between political parties, and political fragmentation^[10] than on the precise formulation of these rules.^[11] A number of empirical in-depth studies conducted in Argentina, Japan, Mexico, and Korea substantiate this correlation in respect of judicial independence.^[12] We have always viewed courts as guardians of democracy, but we should be more aware of the reverse causality: democratic rotation is very effective in guaranteeing the de facto independence of courts.

Courts by themselves are unable to protect democracy, but they may be helpful in preventing erosion in combination with social and political factors. Ultimately, what every political community needs is a democratic, rule of law-oriented political culture (a democratic, rule-of-law-oriented political culture means the internalized support for key elements of democracy and the rule of law, which is more than just lip-service support for these noble words).^[13] Liberal democracy needs to be defended in the political process, both by the average citizen and the political elite.^[14]