Vol. 6, No. 1 (January, 1996)

CONSTITUTIONAL POLICY AND CHANGE IN EUROPE by Joachim Jens Hesse and Nevil Johnson (eds.). New York: Oxford University Press, 1995. 403pp. Cloth $59.

Reviewed by Jeffrey Seitzer, DePaul University

CONSTITUTIONAL POLICY AND CHANGE IN EUROPE is a diverse collection of essays on constitutional democracy in Europe, the United States, and several former English Commonwealth countries. The convergence of short- and long-term trends in European law and politics, the editors argue, supply the impetus for examining the implications for constitutional government of the changing nature of the state at the national and regional levels. The countries of Central and Eastern Europe look to established West European democracies for guidance in building their own constitutional systems, and yet many West European countries are themselves changing. The need to adapt national institutions to the evolving structure of the European Union, along with political disputes over the role of the state, have either singly or in combination produced fundamental changes in the basic structure and function of many West European states. Moreover, it is not clear where these changes will lead, making the West European countries the constitutional model equivalent of moving targets. So in order to determine whether West European models are appropriate for the peculiar conditions of the newly democratic countries of Central and Eastern Europe, it is necessary to gain a better sense of the dynamic character of constitutional government in Western Europe.

The volume begins with two efforts to identify the core principles of liberal constitutionalism as a baseline for evaluating postwar developments. Both essays criticize the postwar tendency toward judicial protection of an ever expanding range of constitutional rights at the expense of representative institutions, but they do so through quite different methodologies. Donald Kommers' and W. J. Thompson's understanding of liberal constitutionalism is drawn from classic works in American political theory, whereas Nevil Johnson develops his through an examination of legal and political practice in Europe and the United States. Kommers and Thompson provide an elegant summary of classic American constitutional thought, but the principles they use to critique postwar developments have an almost ideal typical character which reduces the force of their criticisms. Johnson's focus on legal and political practice, by contrast, enables him to better address the consequences of these changes. Johnson argues, for example, that giving effect to political programs through ordinary law has the advantage of not hindering future legislative experimentation as much as substantive constitutional provisions. This is especially important in Eastern European countries, according to Johnson, because they must establish through legislation much of the institutional infrastructure necessary for a well-functioning democracy.

Ulrich Preuß also recognizes the need for substantial state action to lay the foundations of democratic government in Central and Eastern Europe, but he reaches quite different conclusions regarding the role of constitutions in these efforts. A procedural understanding of constitutions, according to

Page 10 follows:

Preuß, is inappropriate for the Central and East European countries. The American Constitution could be one of negative liberty, he argues, because in the U.S. there already was an established civil society to protect from the state. But the absence of a viable private sphere in Eastern Europe means that the state must actively work to establish a civil society. The myriad cultural, economic, and social rights of these constitutions represent a distinctive understanding of the role of the state in constitutional democracy, one, moreover, which does not center around traditional concerns for achieving balance among institutions.

Preuß rightly stresses the positive role of the state in laying the foundation for effective constitutional government in Central and Eastern Europe. In making his case, however, he overstates the negative character of American constitutionalism. The 14th Amendment, for example, is analogous to programmatic rights provisions in that it assigns the Congress the task of establishing and maintaining a particular form of social order. Preuß' discussion of the Eastern European countries is also rather two-dimensional in that it centers around analysis of constitutional provisions. Granted, his conclusions are put forth as hypotheses. Nonetheless, one would expect an essay stressing the positive role of the state to focus more on actual state action.

The reliance on textual analysis by Kommers and Thompson and to a lesser degree Preuß borders on what Wojciech Sokolewicz terms "constitutional nominalism," a form of inquiry in which one assumes an identity between terminology and actual conditions. Cheryl Saunders echoes Sokolewicz's concerns in her analysis of the way flaws in the British constitutional system do not become apparent until one examines their adaptation in countries like the Australia, Canada, New Zealand, and the United States. The ever present possibility of a disjunction between principle and practice is also illustrated by Geoffrey Marshall and Michiel Scheltema, who examine how complex institutional and political changes converged to facilitate the development of judicial review of administrative action in Britain and the Netherlands, respectively. All these essays demonstrate the need to examine carefully the actual practice of constitutionalism in selecting models for constitutional reform and applying these models to particular countries.

There are two other essays focusing on particular East Europe countries besides Sokolewicz's examination of constitution-making in Poland. Dusan Hendrych traces the deep historical roots of the breakup of Czechoslovakia, whereas Attila Agh discusses how Hungarian politicians seek to achieve narrow political goals through the constitution-making process. Like Ascensión Elvira Perales in her treatment of Spain, both Hendrych and Agh provide good discussions of the historical background to and current issues in the efforts to construct effective constitutional systems in these countries. For nonspecialists, however, Agh's essay is perhaps of greater interest, because it addresses more general issues, such as the different levels at which institutional borrowing may occur and the increasing power of the government at the expense

Page 11 follows:

Guy Carcassonne and Dieter Grimm identify procedural defects in the French and German systems, respectively, which hinder constitutional change. Both authors see various means of direct democracy as correctives to these procedural defects. Carcassonne's and Grimm's concerns for the democratic legitimacy of these systems is echoed by other contributors. Of course, it is difficult to argue against subjecting governmental action to direct popular approval, particularly in countries making a transition from nondemocratic government. The important question, however, is what are the long-term consequences of particular procedural mechanisms? Initiatives, plebiscites, and referenda may provide detours around political parties and other institutional roadblocks to popular sentiment. But at what cost? The either/or form of initiatives, plebiscites, and referenda, for example, does not lend itself to compromise. And reliance on these mechanisms often increases the role of the mass media in politics, "dumbing down" political debate. These considerations do not alone compel rejection of direct popular approval of constitutions or legislation, but they do suggest that the question of democratic legitimacy cannot hinge solely on the degree of directness of democratic control.

Gunnar Folke Schuppert's treatment of the controversy over the European Union's status as a state suggests a useful approach to the question of democratic legitimacy. A recurring complaint against the European Union is that it suffers from a democratic deficit. Such complaints, according to Schuppert, do not take account of the European Union's dynamic, process-oriented character. The legitimacy of the European Union, in other words, should not be evaluated strictly according to the degree of democratic control at any particular point. As the Union takes on more extensive social and political functions, those organs with a firmer democratic basis will play an ever more prominent role. The important issue is whether the Union effectively handles the problems at each stage of its development. For to demand the Union be evaluated by exacting standards of democratic control too early in its development would threaten to derail the process altogether.

This dynamic understanding of constitutionalism is applicable at the national level as well. Many of the countries of Central and Eastern Europe still operate with some communist era institutions. Considering the bad odor surrounding these institutions, the felt need for completely revamped systems with unqualified democratic approval is understandable. Of course, such wholesale change is difficult to achieve, which explains why most constitutional systems contain residues of discredited predecessors. A more realistic approach is to reform and replace particular organs and practices as conditions permit. Eventually, the entire system might be transformed in piecemeal fashion. With time, moreover, some holdovers might even prove useful, making their replacement unnecessary. The point is to address the issue of democratic legitimacy of particular institutions or the system generally with a view to what is reasonably possible in a particular context.

CONSTITUTIONAL POLICY AND CHANGE IN EUROPE offers not only

Page 12 follows:

informative treatments of law and politics in particular countries and the European Union, it also suggests promising approaches to reconceptualizing constitutional democracy in light of the changing nature of the state. Unfortunately, due to space considerations, my review cannot convey much of the richness of the various contributions. The volume is especially strong, for example, in examining the impact of the evolving European Union on particular national systems. In combining scope of coverage with attention to detail, moreover, the volume is suitable for use in courses in comparative law, such as comparative legal systems.