As in my previous blog post I tried to make a brief comment about some of the different views (or progress) of the rule of law principle/value, in that article, I did not write about the French system since it has a separate set of values at its foundation: Constitutionalism. So, in this article, I am going to review what constitutionalism is, how the French system is built up, and what type of challenges constitutionalism has to deal with nowadays, thereto I will also make a summary of the Polish crisis since this comparison duly illustrates the conflicts on the Global North (used as a term of reference describing a complex social, economic and democratic “coalition”) about such principles as the rule of law and constitutionalism. Articles about Poland are getting more actual these days since there will be elections soon this year, where a core question will be whether and if so how they can restore Poland’s rule of law.
Constitutionalism has had its own, serious challenges in the last decade (just like the rule of law and democracy), both globally and on a regional level. In this short article, I cannot thematize all of them, but I would highly recommend Nóra Chronowksi’s book about the constitutional challenges in the 21st century, in which the author presents numerous challenges, such as the interconnection of constitutionalism with globalization, with particular reference to the conflicts of the relation between the human rights and business, to the European processes we went/are going through right now, and with special focus on the Hungarian system.
It is important to have such a discussion about these fundamental principles like the rule of law or constitutionalism, since in the second half of the 20th century – after the two world wars – these values were meant to be strengthened, but now at the beginning of the 21st century, we can observe a stagnation and a decline. This statement is supported, among others, by the 2020 Freedom House report which states that 75% of the world’s population detects a deterioration or decline in democratic processes, a democratic erosion that has been observed since approximately 2006 according to this report. This duly illustrates the crisis of the perception of the democracy that has dominated Western societies in recent decades.
For starters, I define what I mean when I talk about the concepts of constitution and constitutionalism, and how they connect to my research topic: the rule of law. The literature on constitutionalism often looks at this value from a positive legal standpoint. From this view, the constitution is a legal norm that regulates the essentials of the state’s political and constitutional structures and apparatus and provides for constitutional rights and the basics of states’ social and economic system or even less. However, I think it is to include much more than only that. The same applies to the rule of law and constitutionalism. We cannot look at important principles only in a formalistic approach. Formalism is not enough, since these principles shape our everyday lives and the functioning of our countries. Constitutionalism is not only about form, but it does also have a material aspect as well. Just like the rule of law, constitutionalism has its own fundamental principles (some of them are common and interconnected) and it does have to prevail in the legal system. When we are talking about the constitution we must think about a piece of legislation that is (i) capable of limiting and effectively checking the exercise of public power, (ii) to defend and respect the citizens and their human and other constitutional rights, equally. We cannot talk about constitutionalism without such principles as the rule of law, nor can we talk about constitutionalism without democracy or the popular sovereignty, and last but not least, it is a basic guarantee in a system of parliamentarism.
These essential principles I just listed above, need to prevail together, since if just one of them is (not) able to function on its own, then we risk falling short of living in a traditional “liberal democracy”, which should be a main purpose as “civilized societies”. These societies and countries are often described in the literature and the politics as well, as the Global North, which do not form a monolithic bloc, but have conflicting (economic and political) interests and perceptions, but there is something, that keeps them together, which is nothing more than maintaining the status quo they created under the centuries.
One of the most powerful countries of the Global North is France and since I already introduced briefly the British and German systems, I am going to do the same with the French and the Polish systems since they are on two different sides of the conflict between constitutional democracies and illiberal ones, which I hope will help facilitate and understanding of what kind of persistent constitutional differences there are.
The French solution, the French Constitutionalism
The notion of the rule of law does not appear normatively in the French Constitution, so it follows that the public law basis of the French system is not the Rule of Law, but constitutionalism. Under French absolutism, contrary to the British constitutional monarchy, by the very nature of the absolutistic governing, the courts in France – during the ancient regime – did not have the power to constrain the monarchy in any meaningful way but were instead integrated into the institutional system of an absolute monarchy. Which, unlike in England, was held together by an extensive bureaucratic state apparatus. The fact that judicial jobs that could be bought by a narrow elite of the bourgeoisie and the concomitant spread of judicial corruption created animosity between the establishment and the later revolutionaries, who (following the Great French Revolution of 1789) were already constrained by Montesquieu’s principles regarding activist judicial lawmaking.
Nowadays in the French system, the Constitutional Council (Conseil Constitutionnel) is responsible for adjudicating on constitutional matters, which includes ex ante review or even the monitoring of the fairness of the elections. The Conseil Constitutionnel (under Article 56 of the French Constitution) has nine members each appointed for nine years by the President of the Republic (3), by the President of the National Assembly (3), and by the President of the Senate (3). Although this structure of the institution has had a lot of criticism over the decades, mostly of its direct connections with the politics. At the end of 1986, Michael H. Davis already questioned if it could be even called a court or not, because of its nature. He said that “despite the superficial similarities between the U.S Supreme Court and the French Conseil Constitutionnel the American system of judicial review ‘can have no counterpart in the French system’ that French legal and political theory is inconsistent with an effective supreme court, that there is ’no possibility’ in the French and the American systems can surmount this ‘major difference’ and that the Conseil is simply not a ‘true court’”. On the other hand, since then, the Conseil vindicated more power to itself with a constitutional amendment in 2008, which created a new procedure of ex-post review adding to the pre-existing, mostly ex-ante review powers. Today, the Conseil Constitutionnel has the competence to review cases referred with priority to it (QPC).
The Constitutional Council was institutionalized by the Constitution of the Fifth Republic in 1958 with the new Constitution (also known as the Constitution of Charles De Gaulle). President De Gaulle, in fact, wanted to limit the power of the National Assembly with the Conseil Constitutionnel, but the National Assembly, by a decision in 1971, made the text of the 1789 Declaration of the Rights of Man and Citizen part of the Constitution (as a so-called “constitutional block”, bloc de constitutionnalité, as clarified by the 1946 Constitution, which allowed it to them to exercise considerable fundamental rights jurisdiction. It is important to note here that Article XVI of the 1789 Declaration states that the separation of executive and legislative power is a fundamental requirement of constitutionalism, which, as I have said, is the basis of the French public law system.
The Polish Illiberalism: A Polished System of Constitutionalism?
Shortly my answer to the question above is: No. The illiberal twist that Poland (and also Hungary) went through in the last decade created several constitutional questions so let’s look at the Polish crisis which usually appears as a counterpart of Western-style constitutional democracies (such as France), since, as I have said, they are main characters of those rule of law disputes that dominates the European Union.
It is quite well-known that the origin of the constitutional crises in Poland is the conflict surrounding the appointment of judges of the Constitutional Tribunal, but as Tomasz Tadeusz Koncewicz pointed out that a purely institutional approach won’t be enough to rebuild the country’s situation with rule of law, mainly because this decline is linked to an on-going public disengagement and indifference with the principle.
After 1989, just like the other Eastern European countries, the main goal was to dissociate from their communist past, although Poland had a more symbolic role during the regime change period in this region since the well-known Solidarity Movement was the first legally functioning opposition party (which had 10 million members at the time). In 2015, Poland changed the system it created at the beginning of the ‘90s, by stepping on a new path defined as illiberal democracy or populist constitutionalism (Zoltán Szente thinks that this is the most accurate term to use because it refers specifically to the situation in Poland and Hungary.). Surprisingly, these EU members, Hungary and Poland are often paralleled with countries such as China, or Russia, whose constitutional systems are very different from theirs, therefore making these comparisons obviously exaggerated. It is therefore very difficult for legal scholars and political scientists to define or classify these systems and their changes, such as electoral authoritarianism, stealth authoritarianism, and hybrid regimes. But there are some points that are common, like the way in which the ruling elites got into power and their relationship with constitutionalism and the rule of law. This legal transformation is also described in different ways by others such as “counter-constitutionalism” or “autocratic legalism”.
The main problem that is often criticized in this region, including Poland, is that the Polish people have never really experienced learning the principles of liberal democracy and accepting their responsibilities to the community. As Tomasz Tadeusz Koncewicz wrote: “50 years of Communism were not conducive to building participation and trust in the state and the law, not to mention the short 20-year (1918 – 1939) interwar period (…) Meanwhile, the virtues of liberal democracy in the form of tolerance, respect for difference, and pluralism, never became part of the daily life and practice of Poles”.
Challenges of Constitutionalism
Several problems have emerged in the recent decades which one by one possibly could not be strong enough to erode such basic fundaments like the rule of law and constitutionalism, but together they present a huge challenge regionally for the European Union and in a wider sense for the Global North as well. In the last decade, we have been through financial-economic crises, migration, Brexit, and several constitutional crises in Central-Eastern Europe (branded as illiberal twists). These problems cannot be separated from the processes that European public law went through in the meantime, since if we look at the last crisis I mentioned (the “illiberal” twists in Hungary and Poland) triggered several EU-level mechanisms and procedures, not least because they were a reaction to the systematic erosion described above. The first instances of the Article 7 TEU proceedings – along with their dysfunctions – and the appearance of several new instruments such as the rule of law mechanism or the rule of law Conditionality Mechanism (Regulation 2020/2092) are all of those issues that should be mentioned here, but their analysis in detail requires further posts for many reasons. On the one hand, they were multiplied in the last couple of years, and on the other hand because all of these procedures suffer from at least partial dysfunctions, which can and must serve as a valid source of criticism against the current operation of the European Union. This is an essential period, in which we need to restore and protect the values and principles that started eroding in the last decade(s).
Soma BÁCSFALVI is a Msc student of law at the Faculty of Law and Political Sciences of the University of Szeged, Hungary, and a scholarship student of the Aurum Foundation. As a former intern with the presidential cabinet of the Hungarian Constitutional Court, his research focuses on the interconnections of national constitutional law and European public law, in particular on the rule of law and its manifestations in the European Union.