Abstract
This article puts in the centre the increasingly notable discrepancy between constitutional democracy as a form and its actual practice in Central Europe, with a particular focus on Slovenia. It does so by following Martin Krygier who has long insisted with regard to the rule of law that “we would do well to explore […] the sociology of the rule of law.” As he has noted, “this is a social science that does not quite yet exist”. As a result, especially lawyers have satisfied themselves with studying the rule of law in conceptual terms, limiting themselves to drawing a laundry list of formal requirements that an ideal concept of the rule of law should meet here and there, indeed everywhere. What has been too often neglected, however, by academics and institutional actors alike, is a social dimension of the rule of law. The formal legal-institutional architecture of the rule of law has too often ignored the broader social context, wherein, rather than in the legal institutions themselves, lies “a great deal that matters most to whether law can rule.” The same conclusion as to the rule of law can be applied to a wider notion of constitutional democracy. Lest we are left with a partial, superficial or even flawed understanding of the concept, our focus must be centred on the constitutive social considerations of constitutional democracy. The latter’s sociological dimension shall not remain outside legal theory, as it has been too often the case so far. To prevent that this article explores the following question: what is it in the Central European societies, such as Hungary, Poland and Slovenia, that inhibits the formal infrastructure of constitutional democracy to deliver its intended effects in practice? In pursuit of the answers, the article will be broken down into three parts. First, we are going to explain the concept of constitutional democracy as it has developed both in the Slovenian constitutional practice and in theory. Having passed the conceptual threshold, the next part will outline the main elements of the sociology of constitutional democracy, as applied to the Slovenian case. Of course, due to the space constraints the discussion will be necessarily schematic and will be used to respond to the main research question of this article, which boils to the identification of the main social factors that hinder the actual emergence of constitutional democracy in Slovenia. Finally, the article will close down with some normative proposals for improving the state of constitutional democracy in Central Europe in the not so distant future.
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Notes
The name could be literally translated as the Bad Cave. http://www.rtvslo.si/news-in-english/a-number-of-victims-still-in-the-mine-shaft-six-years-after-discovery-of-huda-jama/359601.
Alić (2013).
Case U-I-109/10.
Avbelj (2011), p. 17–19.
Case U-I-109/10, para 10.
See Wackenheim v France, Communication No 854/1999.
For an overview, see, Jakab and Kochenov (eds) (2017).
Krygier (2008), 46.
Ibid.
For example by the European Commission in the accession process, whereby the compliance with EU standard for membership has been measured largely formally, without reviewing the actual meeting of the enlargement conditions in practice. For a critique, see Kochenov (2008).
Krygier (2014), pp. 77–98.
Ibid.
See, for example, Tuebner (2013).
Ibid.
Brunkhorst (2014).
For a pioneering work see Sciulli (1992).
Kjaer (2014).
Teubner in Blokker, Thornhill: » Ubi societas, ibi constitutio – wherever in society certain social formations develop – be these function systems, formal organizations, or transnational regimes – these formations give rise to their own constitutions, which challenge the claim of state constitutions to assume a monopoly of all constitutionality. « See, also, Teubner (2012).
Ibid.
Priban (2012), pp. 464 who has wondered whether constitutional sociology actually amounts to a sociological theory of legitimacy.
Scheppele (2003).
Skapska (2011).
Priban (2009).
Case U-I-111/04, 8.7. 2004, para 26.
See, cases U-II-1/09; U-II-2/09 and U-II-1/10.
Case U-I-109/10.
Ibid.
Avbelj (2011), pp. 17–19.
Case U-I-109/10, para 7.
Ibid.
Ibid., para 10.
Ibid., para 10.
Ibid, para 10.
Habermas (2001), pp. 766–781.
In practice this question has been expressed through questioning the legitimacy of the unelected judiciary to interfere with the decisions of the elected parliamentary majorities or even with the decisions taken directly by the people at the referenda. It has been known as a counter-majoritarian difficulty.
For an excellent overview of these reconciling strategies, see Tully (2017).
Habermas, p. 767.
Rosenfeld (2001), p. 1351.
Habermas (1995), pp. 109–131.
Rawls (1995), pp. 132–180.
Tully (2017).
Ibid., p. 206.
Ibid., p. 207.
Habermas (2001), pp. 766–781.
Tully (2017).
Ibid., p.208.
Ibid., p. 209.
Ibid., p. 210.
Ibid.
Habermas (2001), p. 768.
Ibid, p. 779.
Ibid., p. 780.
Habermas (2001), p. 780.
Ibid.
Halik and Havel.
On the importance of constitutional culture as a precondition of modern democratic societies, see Münch (1984), p. 311.
Ibid.
Havel (1989), p. 45.
Ibid., p. 45.
Hart (1963).
Ibid, p. 116.
Ibid., p. 116.
Ibid., p. 117.
Ibid.
Have (1989), p. 9.
Hart (1989), p. 116.
Ibid.
As Gudkov noted: » The totalitarian regime never reached the position of a monolithic society, even during the times of great terror. « , see Gudkov (2010), p. 59.
Gudkov (2008), p. 6–28: » A life of forced poverty (or “modesty”) and moderate demands on the part of the population, are translated into a sly serf-type mentality that shows outward loyalty to the regime and a belief in its slogans but actually prefers the values of private family life. « .
Ibid.
Havel (1989), p. 44.
Ibid., p. 44.
The Munich court decision in the Perković case; http://www.dw.com/en/munich-court-convicts-ex-yugoslav-spies-in-1983-killing/a-19446792.
For a detailed analysis of these practices, see the interview with mag. Rado Pezdir, available at: https://4d.rtvslo.si/arhiv/intervju-tv/174479889.
Djilas (1957).
Gudkov (2008), pp. 6–28.
Ibid., p. 22.
Ibid.
Ibid., p. 16.
See, for example, Special Eurobarometer 461, p. 6 whereby with the exception of Hungary and Estonia, all other post-communist member states' trust in their government is below the EU-28 average. In Slovenia, in particular, it is strikingly low, as only 17% of Slovenian citizens trust their government. However, only 16% of Slovenians trust the country’s judicial system.
Gudkov (2008), p. 16.
Ibid., p. 15.
Tully (2017), p. 210.
Ibid.
Ibid.
More than 80% of surveyed find political engagement not important or not very important. See, World Value Survey, Slovenia 2011.
More than 79% of surveyed believe that one should be careful in trusting other people. See, World Value Survey, Slovenia 2011.
See, for example, Special Eurobarometer 461 (April 2017), p.6 according to which the trust of national government among the EU member states is the second lowest in Slovenia, while the trust prevails among the Northern and Western member states, and declines toward the East and the South.
It follows from the EBRD survey that 82% of Slovenes would trade political freedom for economic growth; moreover only 56% of Slovenes believe that democracy is preferable to any other political system, available at: http://www.ebrd.com/publications/life-in-transition-iii-slovenia.pdf.
Habermas (2001), p. 769.
Bugarič and Kuhelj (2015), p. 274.
Ibid.
For a critical account of the use and abuse of the national interest in the Slovenian economy see Burger, Kunčič (2014).
Adam and Tomšič (2000), p. 38.
Bugarič and Kuhelj (2015), p. 275.
Ibid., 277.
Kuhar and Crnic (2015) report on a growing apathy and passivization among the Slovenian youth.
According to official statistical data of Slovenia (SURS) The number of young, typically better educated, people (between 15–34) leaving Slovenia has almost trippled between 2011 (1466) and 2015 (3689).
Only 51, 73% of the eligible voters cast their votes in 2014, which was almost 15% less than in 2011 and 10% less than in 2008.
There has been a growing aversion to established political parties in Slovenia in the recent years. Freedom House, Nations in Transit 2017 - Slovenia, 31 May 2017, available at: http://www.refworld.org/docid/5938fc0c26.html. [accessed 24 September 2017].
Balkin (1992), p. 1968.
See, for example, the Slovenian Report on the National Integrity system – assessment and analysis reporting: » One of the study's main findings is that there is a significant gap between the existing legal framework and actual functioning of the institutions in the fight against corruption. These differences suggest there is a lack of appropriate control over the implementation of the legislation. As a result, the system encounters many cases of inappropriate, unethical and unacceptable behaviour of key decision-makers and members of political parties. The causes can be found in low personal integrity, attitude towards public interest and many opportunities to abuse the system. « http://nis.integriteta.si/images/pdf/sporocilo_za_javnost_nis_eng.pdf.
Branko Masleša, http://www.sodisce.si/vsrs/predstavitev/2017021509364798/#kaz.
Zvonko Fišer, http://www.dt-rs.si/biography.
Mr Masleša has, however, repeatedly refuted these allegations as false and malicious.
See, for example, the 2017 report by Freedom House: » In September, media revealed that Janez Zemljarič, who served as a head of the secret police under the communist regime, enjoyed privileged access as a lobbyist to the Minister of Economy, Zdenko Počivalšek (SMC). « available at: https://freedomhouse.org/report/nations-transit/2017/slovenia.
Havel (1989), p. 45.
Hence the Square of the Republic in front of the National Assembly in Ljubljana still prides itself with a monument dedicated to the Revolution where one can read the following dedication (as translated by this author): » We have written into the Constitution: that workers, peasants and working intelligence as well as all the progressive people of Slovenia, united in the comprehensive popular organization of the Liberation Front headed by the Communist Party, in their fight in the war of popular liberation and socialist revolution destroyed the old social order, which was based on the exploitation, political suppression and national inequality, and started to create a society in which a man and his labour will be free of exploitation, arbitration and in which the conditions for a free and unhindered development of the Slovenian nation will be created. « .
Avbelj et al. (2013).
Gudkov (2008), p. 25.
Bugarič and Kuhelj (2015), p. 275.
Ibid., p. 276.
According to Eurobarometer 2016 only 14% of Slovenian citizens trust the Parliament, 17% trust the Government and 21% trust the Judiciary. http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/ResultDoc/download/DocumentKy/77025.
Bugarič and Kuhelj (2015), p. 276.
This is confirmed by the global competitiveness index. Among 138 evaluated states, Slovenia is ranked 105 for its public sector performance; it is ranked 125 for the wastefulness of the government spending; 116 is the ranking which reflects the burden of government regulation etc, available at: http://www3.weforum.org/docs/GCR2016-2017/05FullReport/TheGlobalCompetitivenessReport2016-2017_FINAL.pdf.
Šorli (2013).
Zobec and Letnar Cernic (2015).
Avbelj (2016).
See, the Politbarometer (2014), p. 13–14 which confirms the trend of deligitimization of the central instititutions of the state.
Fukuyama (1996).
This is taken from as Avbelj (2013).
This legacy is still extremely strong in Slovenia, which ranks 97th for its economic freedom, being regarded as economically mostly unfree country like Benin and Nicaragua, http://www.heritage.org/index/ranking.
Djilas (1957).
Not unsurprisingly, more than 70% of Slovenians according to 2014 surveys supported the state ownership of the economy. See, Politabarometer (2014), p. 32.
The elites in Slovenia in general do not consider themselves to be ideologically pluralist, see Tomšič (2006), p. 82.
Bugarič and Kuhelj (2015), p. 274.
Massimo d'Azeglio: “We have made Italy. Now we must make Italians.”.
Habermas (2001), p. 774.
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Avbelj, M. The Sociology of (Slovenian) Constitutional Democracy. Hague J Rule Law 10, 35–57 (2018). https://doi.org/10.1007/s40803-017-0064-z
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DOI: https://doi.org/10.1007/s40803-017-0064-z