Political Parties in Constitutional Theory

Abstract

Political parties appear to be in crisis. The recent wave of democratic deconsolidation in several established democracies has been accompanied by the collapse, authoritarian takeover, or external capture of mainstream political parties, the partisan capture of state institutions, and a rise in hyper-nationalistic and exclusionary partisan rhetoric.¹ While political parties have long been a central object of study in political science, constitutional theory scholars have, by and large, ignored this key democratic institution.² In part, this has been due to the influence of the American and the British constitutional traditions which, unlike their European continental counterparts, are largely silent on political parties. This silence is largely a feature of big-C constitutional codes in the anglophone world. Small-c constitutional statutes, conventions, and judicial precedents in these states do, admittedly, engage extensively with political parties.³ But the large-C textual silence is nonetheless indicative of the level of salience this key constitutional institution has been given, both in constitutional practice and constitutional scholarship. More substantively, big-C codes largely design key state institutions in a democracy. Parcelling off considerations about political parties to small-c statutes and conventions has the effect that the party system has to take the design of key state institutions as a given. As this paper argues, however, bringing parties to the forefront of the constitutional imagination has very important implications for how we ought to think of fundamental institutions and offices of the state. Furthermore, big-C constitutional change tends to require the buy-in of opposition parties, whereas small-c changes can usually be made by the ruling party/coalition alone. It is simply bad design to let one of the competing players unilaterally change the rules of the game. It is no surprise that continental big-C codes, led by Germany after the Second World War, are far more explicit in their attention to parties and their relationship with democracy. Even so, the Anglophone silence is mimicked in comparative constitutional studies scholarship, dominated as it is by American constitutional discourses. It is almost impossible to properly understand the functioning of different institutional arrangements without a close attention to the party system in which they operate.⁴ Constitutional scholarship that confines itself to institutional analysis alone, without understanding how they are conditioned by political parties, is looking at a seriously distorted picture of constitutional practice.