Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system.
Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.
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Constitutional Law
Axel Tschentscher
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Constitutions and the Rule of Law in Asia
Victor Ramraj, Maartje De Visser, and Arun Thiruvengadam
In the modern world, formal constitutions are ubiquitous as the legal foundation of the state, standing at the apex of the legal order. As they emerged in a North Atlantic context, constitutional law and the ideal of constitutionalism came to be associated with a liberal model of government in which the state, composed of its leaders and public officials, was limited by law. This model of a constrained government became encapsulated in the ideal of “rule of law”—distinguishing between autocratic systems that were ruled by “men,” on the one hand, and systems in which political leaders were constrained by law, on the other hand. In this model, the courts typically play a critical institutional role in keeping state power within constitutional boundaries. Although this “liberal” model of constitutionalism and the rule of law continue to dominate legal and political thought, the proliferation of postcolonial legal and political regimes, and competing understandings of government and the role of the state, have challenged the dominant liberal understanding of constitutions and the rule of law. Many of these challenges come from Asia, which encompasses a stunning variety of political regimes that shape the environment in which constitutionalism and the ideal of the rule of law acquire meaning. This makes Asia an ideal site from which to explore the contested notions of constitutions, constitutionalism, and the rule of law as powerful explanatory tools and, in some cases, important normative correctives to the liberal model.
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Constitutions in Latin American Politics
Jonathan Hartlyn and Alissandra T. Stoyan
Constitutions have been an important part of Latin America’s history since independence. While exhibiting frequent change, there have been continuities primarily regarding their republican form and presidentialism. Extensive scholarship exists on the origins of constitutions, their evolving design, and their effects concerning democratic stability and rights, particularly with regard to trends and patterns since the third wave of democratization in the late 1970s. Large-scale “refounding” constitutional reforms have gained traction with citizens and civil society groups, and populist leaders have promoted them as a solution for socioeconomic and political exclusion. Politicians have also favored both large- and small-scale changes as ways to continue in office, concentrate power, gain or maintain support, or defuse crises. With frequent changes and longer and more complex texts, sharp distinctions between constitutional moments defining the rules and ordinary politics occurring within the rules have blurred. The research on these issues regarding constitutions confronts challenges common to the analysis of weak institutions in general, including particularly endogeneity to existing power distributions in society and thus seeking to understand when and why key actors respect constitutional rules of the game. Some scholarship advances actor-centered linkage arguments connecting the origin, design, and effects of constitutions in a causal progression, on topics such as presidential powers, unequal democracies emerging from authoritarian regimes, or judicial independence. These arguments differ regarding the direct impact they ascribe to constitutions compared to other factors, particularly with more extended time horizons. They typically examine the narrow strategic interests of the key players while also considering when they may contemplate broader goals, especially when no one player is dominant. Though diffusion has played a role in constitutional process and design in the region, most scholars downplay its relative importance. Since the 1990s, there has been a significant expansion in a unidirectional, path-dependent fashion in the incorporation of social, economic, and cultural rights, as well as decentralization and participatory mechanisms. Unlike presidential re-election and presidential powers, which have seen more frequent and sometimes mixed evolution, once these rights and mechanisms are granted they are not formally reversed in subsequent reforms. Yet, their effective realization has been partial and uneven, typically requiring some combination of societal mobilization and institutional activation. Thus, other endogenous or exogenous factors are typically incorporated into explanations regarding their possible effects. Future research in many areas of constitutionalism could be enhanced by a more systematic cross-national multidimensional data collection effort, facilitating further quantitative and multi-methods empirical work. This will assist scholars in addressing the theoretical and methodological challenges in this field common to institutional research generally. At the same time, it is critical not to lose sight of the normative dimension of constitutionalism, given its symbolic and aspirational value as well as practical importance for democracy.
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Courts in Latin American Politics
Ezequiel Gonzalez-Ocantos
In the aftermath of the third wave of democratization, Latin American courts left behind decades of subservience, conservatism, and irrelevance to become central political players. They now serve as arbiters in struggles between the elected branches, and increasingly affirm fundamental rights. Indeed, some rulings champion highly controversial rights and have huge budgetary implications, sending shock waves across these new democracies. What explains this unprecedented expansion of judicial power? In trying to answer this fundamental question about the functioning of contemporary democracies, scholars of Latin America have developed a truly vibrant and theoretically dynamic body of work, one that makes essential contributions to our knowledge of judicial politics more generally. Some scholars emphasize the importance of formal judicial reforms initiated by politicians, which resulted in more autonomous and politically insulated courts. In so doing, they address a central puzzle in political science: under what conditions are politicians willing to accept limits to their power? Inspired by rational choice theory, other authors zoom in on the dynamics of inter-branch interactions, to arrive at a series of propositions about the type of political environment in which courts are more capable to assert their power. Whereas this approach focuses on the ability of judges to exercise power, a third line of scholarship looks at how ideas about the law and judicial role conceptions affect judges’ willingness to intervene in high-stakes political struggles, championing some values and interests at the expense of others. Finally, more recent work asks whether assertions of judicial power make a difference in terms of rights effectiveness. Understanding the consequences of judicial decisions is essential to establishing the extent to which more assertive courts are actually capable of transforming the world around them.
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Democratic Backsliding in the European Union
Nick Sitter and Elisabeth Bakke
Democratic backsliding in European Union (EU) member states is not only a policy challenge for the EU, but also a potential existential crisis. If the EU does too little to deal with member state regimes that go back on their commitments to democracy and the rule of law, this risks undermining the EU from within. On the other hand, if the EU takes drastic action, this might split the EU. This article explores the nature and dynamics of democratic backsliding in EU member states, and analyses the EU’s capacity, policy tools and political will to address the challenge. Empirically it draws on the cases that have promoted serious criticism from the Commission and the European Parliament: Hungary, Poland, and to a lesser extent, Romania. After reviewing the literature and defining backsliding as a gradual, deliberate, but open-ended process of de-democratization, the article analyzes the dynamics of backsliding and the EU’s difficulties in dealing with this challenge to liberal democracy and the rule of law. The Hungarian and Polish populist right’s “illiberal” projects involve centralization of power in the hands of the executive and the party, and limiting the independence of the judiciary, the media and civil society. This has brought both governments into direct confrontation with the European Commission. However, the EU’s track record in managing backsliding crises is at best mixed. This comes down to a combination of limited tools and lack of political will. Ordinary infringement procedures offer a limited toolbox, and the Commission has proven reluctant to use even these tools fully. At the same time, party groups in the European Parliament and many member state governments have been reluctant to criticize one of their own, let alone go down the path of suspending aspect of a states’ EU membership. Hence the EU’s dilemma: it is caught between undermining its own values and cohesion through inaction on one hand, and relegating one or more member states it to a second tier—or even pushing them out altogether—on the other.
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The EU Migration Crisis: A Crisis Analysis Case Study
Peter Slominski
The European Union (EU) migration crisis has been part and parcel of a conglomerate of crises that have affected the EU since the late 2000s, as have the financial and sovereign debt crisis, “Brexit,” the Russia–Ukraine conflict, as well as tensions within transatlantic relations. Scholarship on the EU has devoted much attention in assessing what the migration crisis means for EU integration at large. In particular, EU scholars are interested why the migration crisis has led to political gridlock and a renationalization of border controls rather than a deepening of integration. While they differ in their explanations, these explanations shed light on different aspects of the crisis and are far from mutually exclusive.
Scholars who are more interested in the area of EU Justice and Home Affairs (JHA) largely agree with EU theorists that the field suffers from an incomplete governance design, the dominance of EU member states, and weak supranational capacities. Their analysis also focuses on intra-EU dynamics but offers a more nuanced empirical assessment of relevant EU institutions and decision-making in the course of managing the migration crisis. This growing body of research produces valuable insights and largely confirms existing scholarship, including that on the growing securitization and externalization of EU asylum and migration policy. The EU’s understanding as a norm-based power is particularly challenged by the migratory movements in the wake of the crisis. A small but growing scholarship analyses how the EU is balancing its non-entrée policy with its legal obligation, and what kind of governance arrangements result from that.
While this scholarship has enriched our understanding of the EU migration crisis, it has not generated a major refinement of the standard approaches of EU theorists and JHA scholars. To further enrich the literature on the migration crisis, scholars should go beyond studying the dynamics of EU decision-making and the role of EU institutions. Such an approach should engage more systematically with international actors and institutions that have the capacity to influence EU migration policy. At the same time, global phenomena such as war, poverty, or climate change should also be taken into account in assessing the EU’s room for maneuver in handling migratory pressures. Future research on the migration crisis as well as on migration challenges should thus not only connect with other subfields of political science, such as policy analysis or international relations, but also open up to other disciplines such as law, demography, or environmental studies.
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Europeanization
Søren Dosenrode
Europeanization refers to the mutual influence of the European Union (EU) and its member states, to interactions within and between member states driven by the EU, and to the effect of the EU on EU applicant states. It affects domestic politics, policy, and polity and therefore is relevant for citizens and businesses. Europeanization effects also raise an issue of legitimacy: who bears responsibility, the member states or the European Union?
In the broadest sense, analysis of Europeanization began with the theories of regional integration in the 1950s, which explained what was to become the early 21st-century EU and how it began and developed—the making of a polity. In the narrow and more common use of the concept, studies of the effect of what was then known as the European Community began at the end of the 1980s and the beginning of the 1990s under the name of “adaptation.” It was not until 1994 that Robert Ladrech used and defined the term “Europeanization” for analyzing the effect of the European Community on its member states. Thus, in its most encompassing sense, a complete typology of Europeanization includes five types, each with its own primary mechanisms at work: (a) meta-Europeanization, the processes whereby the member states that have created the EU have set the overall frame, that is, the EU; (b) downloading, which implies a pressure on EU member states’ policies and governmental structures to adapt to EU standards (but this does not lead to “uniformity,” as the member states have diverse histories and traditions); (c) uploading, whereby the member states contribute to the EU’s further development by making policy suggestions to the EU and its institutions; (d) cross-loading, whereby the EU creates frames for the member states to exchange best practices and experiences, with little or no involvement from the institutions; and (e) export Europeanization, whereby the EU makes potential members comply with the Union. In a narrow sense, Europeanization is about downloading, uploading, and cross-loading.
Studies on Europeanization have contributed greatly to our understanding of how the EU works and how it influences its member states and vice versa (not to mention its influence on subnational actors as well as on interest organizations and neighboring countries). In the early 21st century, Europeanization studies expanded to policies that were previously not sufficiently considered: for instance, the Common Foreign and Security Policy, the Common Security and Defence Policy, and social movements.
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Europe’s Supranational Courts and LGBT Rights
M. Joel Voss
Europe has some of the most powerful human rights legal institutions in the world including two supranational human rights courts—the Council of Europe’s European Court of Human Rights and the European Union’s Court of Justice (hereafter, together—the Courts). After decades of relative quiet, the Courts have begun hearing more cases concerning LGBT rights. Judgments of the Courts have advanced some facets of LGBT rights like anti-discrimination in the workplace while disappointing gay-rights advocates in other areas, for example family life and asylum.
Scholarship on European courts and LGBT rights is not as developed as scholarship on norm advocacy or policy diffusion within states in Europe. The research that does exist looks at how decisions by the European Court of Human Rights and the European Court of Justice deal with current European law, how the institutions are designed, or how the supranational courts may act as agents of change or status quo institutions in shaping wider European behavior. This lack of newer research on the Courts presents ample opportunity for new avenues of research that examines not only how decisions are made at the Courts but also how states implement decisions and how states view the legitimacy of each Court.
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Future Scenarios of the European Union
Brigid Laffan
Debate on the future of the European Union (EU) never abates because the Union is a polity characterized by considerable change in its internal and external environment. Scenarios are an important tool in mapping possible futures for the Union as they bring underlying trends into focus. Four scenarios on the future of the EU are presented: disintegration, piecemeal adjustment, functional federalism, and a United States of Europe. The political and policy battle concerning the future of the Union is between scenario piecemeal adjustment, the dominant response to the crisis and to events on Europe’s borders, and functional federalism, defined as more integration but in defined fields. Piecemeal adjustment represents a Union that muddles through, incremental reform, whereas functional federalism represents a Union that garners sufficient political capacity to be more strategic in particular functional areas. Systemic disintegration is regarded as unlikely, but partial disintegration may occur because of the exit of the United Kingdom, challenges to a number of EU regimes, and the threats to the Union’s normative order from some member states. A united states of Europe, is highly unlikely as the member states are not in favor of transforming the Union into a state-like federation. The degree of contestation about the future of the EU precludes a transformation of the system at this juncture. Three intervening factors will have a major impact on the future of the EU: the profound changes in the global environment, turbulent politics in the member states, and the Franco-German relationship as a source of leadership in the Union.
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Justice and Home Affairs in the European Union
Florian Trauner and Ariadna Ripoll Servent
Justice and home affairs (JHA) is one of the most salient policy fields at European Union (EU) level. It deals with issues closely related to the sovereignty of member states including immigration, borders, and internal security. This article takes stock of the policy’s development and current academic debates. It argues that EU justice and home affairs is at a crossroads. Most EU actors underline the value added of European cooperation to tackle transnational threats such as terrorism and organized crime as well as the challenge of international migration. Indeed, the EU has increased its operational cooperation, data-sharing and legislative activities. The EU home affairs agencies, notably the European Police Office (Europol) and European Border and Coast Guard Agency (Frontex), have been substantially empowered. Yet JHA has also become a playing field for those attempting to politicize the European integration process. Therefore, recent years have seen major conflicts emerge that risk fragmenting the EU. These include controversies over the distribution of asylum seekers within the EU and the upholding of rule of law standards in some Eastern European states. Scholars have followed these developments with interest, contributing to a multifaceted and rich literature on aspects such as the dynamics of EU decision-making and the policy’s impact on the member states’ respect for fundamental rights and civil liberties. Promising avenues of further research include the implications of the politicization of the field and the consequences of ever more interconnected internal security databases and technologies.
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Land-Related Conflict and Electoral Politics in Africa
Catherine Boone
Land-related disputes and land conflicts are sometimes politicized in elections in African countries, but this is usually not the case. Usually, land-related conflict is highly localized, managed at the micro-political level by neo-customary authorities, and not connected to electoral competition. Why do land conflicts sometimes become entangled in electoral politics, and sometimes “scale up” to become divisive issues in regional and national elections? A key determinant of why and how land disputes become politicized is the nature of the underlying land tenure regime, which varies across space (often by subnational district) within African countries. Under the neo-customary land tenure regimes that prevail in most regions of smallholder agriculture in most African countries, land disputes tend to be “bottled up” in neo-customary land-management processes at the local level. Under the statist land tenure regimes that exist in some districts of many African countries, government agents and officials are directly involved in land allocation and directly implicated in dispute resolution. Under “statist” land tenure institutions, the politicization of land conflict, especially around elections, becomes more likely. Land tenure institutions in African countries define landholders’ relations to each other, the state, and markets. Understanding these institutions, including how they come under pressure and change, goes far in explaining how and where land rights become politicized.
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The Lisbon Treaty
Jacques Ziller
The expression “the Lisbon Treaty” (LT) is a shortcut to the treaties upon which the European Union (EU) has been based since December 1, 2009. During the “reflection period” that lasted from June 2005 to December 2006 three options were available: remaining with the European treaties as amended by the Nice Treaty; starting new negotiations in order to adopt some changes deemed technically necessary; or trying to get “the substance” of the Constitutional Treaty (CT) of 2004 approved in the form a new treaty. Most member states and the EU institutions were in favor of the third option. The negotiations that led to the adoption of the LT in December 2007 departed from the usual treaty amendment scenarios. The content of the LT is to a large extent similar to that of the CT, as most of the novel provisions of that treaty have been taken over as they were written in the CT and introduced in the existing European Community (EC) and EU treaties. Apart from a few institutional innovations such as the Permanent President of the European Council and the new voting system in the Council, most innovations with regard to the European communities are to be found in the details. The ratification process of the LT was difficult, as it was slowed down by the necessity to hold two referenda in Ireland, and to overcome the resistance of the President of the Czech Republic, an overt Euroskeptic. The negotiations of 2007–2009 shed some light on the importance in EU policy-making and especially in treaty negotiations of the epistemic community of legal experts and, more precisely, of experts in EU law. Events in the years 2010 and 2011 led to minor treaty amendments, shaping the present content of what is usually referred to as the LT. Whether Brexit and the EP elections of 2019 will lead to important changes remains unknown.
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Revolutions and Constitutional Crisis
Johannes Vüllers
Revolutionary actions and constitutional crises are closely linked. However, research mainly looks at the two phenomena as distinct from each other. While studies on revolutionary actions are interested in the agency and the impact of the actions on the country’s institutions, legal research focuses on the constitution itself. The separation of the two strands leads to a limited understanding of their dynamics and complexity. What do we know about the relationship between revolutionary actions and constitutional crisis, and vice versa? The first question is how revolutionary actions trigger constitutional crisis, defined as a moment in which decision makers are unwilling or unable to manage the societal conflicts within the confinement of the constitutionally provided boundaries. Different types of revolutionary behavior—such as elite-led military coups, civil wars, and nonviolent resistance movements—trigger constitutional crises in many cases. They can lead to a new constitution with diverse implications for the political system. Whether the opposition or the old regime prevails in the constitutional crisis is a question of the power resources of both parties to the conflict. In some cases, the opposition movements succeed in making the political system more democratic. However, there are also cases where the constitutional crisis ultimately leads to more power for the ruling class.
The relationship also works vice versa: a constitutional crisis can trigger revolutionary actions. Constitutional coups, and processes of democratic backsliding and constitutional rot, can trigger violent and nonviolent revolutionary actions. Political elites can try to change constitutional norms for their own benefit, such as extending the presidential term of office. This often leads to a storm of public protest and can become a real threat to the regime’s survival. A constitution can enter a crisis phase for a long time if it no longer serves the needs of parts of society. The injustices that thus arise within society can be a strong motive for revolutions. The combination of agency and constitutional processes is a promising avenue for future research that could help analyze the complex relationship between constitutional crises and revolutionary actions. In addition to innovative theoretical approaches, new empirical data is needed to examine the process of constitutional negotiation in more detail.
