Constitutions and party democracy

The central questions that constitute the focus of this article are the following: first, how are political parties described in contemporary constitutions in European liberal democracies, and what are the different modes and underlying dimensions of party constitutionalization? The answers to these questions give us an indication of the nature and intensity of party constitutionalization, as well as the possible variation between countries. In addition, they allow us to assess the extent to which the constitutionalization of political parties should be understood as an example of increased public control of party activity through public law (the constitution), and the degree to which it should be seen as indicative of the strengthening of the linkage between parties and the state.Footnote 9 Secondly, what does the constitutionalization of parties suggest about the different, and changing, conceptions about the place of political parties in representative democracy? By evaluating how the constitutional regulation of parties should be understood in the light of particular conceptions of parties and democracy, this article aims to address the common indifference of the literatures on political parties and normative democratic theory towards each other.Footnote 10 This, in turn, might allow us to gain a better understanding of the nature of the problems of democratic legitimacy that political parties face today, and how these can be addressed in practice.

The relevance of the national constitution for our understanding of modern party democracy is at least threefold. First of all, the constitution is an important source for investigations into the character of modern party democracy. At the broadest level, this contention builds on insights in the party literature that have emerged from the study of the ‘official story’ of party organizations,Footnote 11 although in this case the formal documents under investigation are the national country constitutions rather than the internal party statutes. Like the official rules that govern the internal organization of a party, the formal constitution of a national political system offers a fundamental and indispensable guide to the character of a given polity. Constitutions comprise a set of fundamental values, however incomplete and unrealistic, and outline the procedural rules that allow for the exercise of power. As Sartori has argued, it is in the constitution in particular that the organizational base of the state can be found.Footnote 12

In most liberal democracies, constitutions aim to ‘regulate the allocation of power, functions and duties among the various agencies and officers of government, and to define the relationships between these and the public.’Footnote 13 Constitutions thus define the composition and scope of authority of the organs of the state and the institutions in the public sphere, as well as the distribution of power between them. Furthermore, premised on the liberal model of constrained government, they define the relationship between the institutions of the state and the citizen, imposing injunctions on public authority and identifying a private sphere that requires protection vis-à-vis the state. From this perspective, the constitutional codification of political parties thus provides an indication of their place within the institutional architecture of the democratic polity, as well as their relationship with the citizens within it. Constitutions may tend to define political parties in opposition to the state, for example, and identify them primarily as private associations. Conversely, they may describe them as part of the essential institutional apparatus of the democratic state and thus primarily identify them as public entities. A systematic comparative analysis of the constitutional position of political parties will therefore further our understanding of the extent to which parties in contemporary democracies are better understood in terms of their linkages with the state or with society, a debate that has acquired momentum in particular since the influential contribution of Katz and Mair on the subject,Footnote 14 and hence contribute to our understanding of the changing nature of political parties in modern democracies.

Secondly, in addition to the empirical dimensions, the constitution is an important source for an investigation into the underlying normative ideas about the place of political parties in modern democracy. As few, if any, institutional preferences are politically neutral, choices about the substance of the rules are themselves not above politics.Footnote 15 Decisions on the regulation of party activity, organization and behaviour follow from particular conceptions of party and democracy, and different norms and conceptions of democracy may lead to divergent prescriptions about the appropriate legal regulation of parties.Footnote 16 The constitution thus not only reflects a particular vision of what the distribution of power actually is, but also of what it should be. An analysis of the position of political parties within the democratic framework with specific reference to the national constitution, therefore, will provide insight into the underlying normative ideas about political parties and democracy. It will shed light on a number of what Issacharoff has called the ‘most vexing questions in the legal regulation of politics’,Footnote 17 ranging from inquiries into to how parties should be understood in terms of normative democratic theory, to how they are to be financed.

Finally, because constitutions define the set of supreme rules of the game, the constitutional codification of political parties implies that the constitution acquires prominence as the explicit legal foundation and point of reference for the judicial adjudication of issues about the operation of political parties. This may involve questions about the admissibility of certain forms of party behaviour or the compatibility of certain ideologies with the fundamental principles of democracy and the constitutional order. This is evidenced, for example, by the increasingly prominent role of constitutional courts in the outlawing of anti-democratic or insurrectionist parties. It can also be seen from the rulings by constitutional courts such as the German Bundesverfassungsgericht on the constitutionality of certain forms of party financing. From a legal perspective, therefore, the constitutional codification of parties implies that the constitution has become an important source of party law. For party scholars, and political scientists more generally, it implies that the constitutional position of parties has become an important ‘independent variable’, as it may have important direct or indirect consequences for the functioning of the parties and the party system. Indeed, from a new-institutionalist perspective, the constitutional ‘rules of the game’ are important as they may influence, determine or constrain what actors do, and may shape their identities and opportunity structures. As Shapiro and Stone Sweet have argued in their essay on the judicialization of politics, the advent of new institutionalism overlaps in part with the political jurisprudence agenda and a renewed interest in the importance of the law: ‘If the rules really matter, then law and courts must really matter.’Footnote 18 Although topics related to the law have traditionally received scarce attention from comparative political scientists, a ‘new constitutionalism’ has recently swept across Europe, which makes it increasingly difficult for scholars to research issues of government and governance without also running into public law, and the constitution.Footnote 19

This article examines the place of political parties in the contemporary constitutions of European liberal democracies in the post-war period, addressing which different dimensions of party constitutionalization can be distinguished, and what the particular modes of party constitutionalization convey about the underlying conceptions of political parties and party democracy. The first section analyses the temporal sequence of post-war party constitutionalization and demonstrates that this process has been closely connected to waves of democratization and the making of new constitutions. The second section explores the underlying dimensions of party constitutionalization in European democracies and examines the variation between countries in terms of the nature and intensity of party constitutionalization, focusing in particular on the differences between the longer established democracies and those newly established or re-established after authoritarian and totalitarian rule. The third section discusses the implications of the patterns that can be observed for our understanding of modern party democracy and for the question of how contemporary political parties should be understood in terms of their linkages with society and the state.

The origins of post-war party constitutionalization

Even though there might appear to be a reasonable degree of consensus about what a constitution is, disagreement may exist over the actual form it may take. Most countries have a fundamental law that regulates the most important rules of the game, while others have a set of laws that is collectively referred to as the constitution. In yet other countries unwritten customs and conventions are also seen to form part of the constitution. Written constitutions, moreover, can usually be distinguished from ordinary legislation because they require more stringent amendment procedures, but this need not necessarily be the case. In principle, constitutions can thus be written or unwritten, and may be contained in a single document or be dispersed over a larger set of laws.

For the purpose of this article, the constitution is taken to be that law which is called or commonly referred to as the constitution or the basic law, and which is codified in a single document.Footnote 20 In the absence of such a document, there are no objective instruments to determine where the boundaries are to be drawn, and any assessment of what laws, customs and conventions would constitute the ‘most important’ rules, and thus form part of the constitution, would be a matter of judgement and therefore involve an element of arbitrariness.Footnote 21 The operationalization employed here effectively excludes the United Kingdom because it does not possess a written constitution codified in a single text. Furthermore, the constitutions of Sweden and Finland are taken to be the texts that resulted from the integration of the various fundamental laws with constitutional status, which occurred in Sweden in 1974,Footnote 22 and in Finland in 1999.Footnote 23

The countries covered in this research include all thirty-two post-war European democracies with a written constitution,Footnote 24 including the current member states of the European Union (except the United Kingdom), candidate member states Croatia and Iceland, as well as Serbia, Norway, Switzerland and Ukraine. Recorded for all countries were the year in which parties were first codified in the democratic constitution, as well as the year, number and type of subsequent amendments and revisions. A content analysis, the details of which are discussed below, was carried out for all constitutional provisions.Footnote 25

Table 1 provides a first overview of the extent of party constitutionalization in post-war Europe, listing for each country the year in which political parties were first incorporated in the national constitution, together with the Freedom House status for the newer democracies. The table demonstrates that the large majority (N = 28 or 87.5 per cent) of post-war European democracies now acknowledge political parties in their constitutions. It is only in four countries that parties receive no mention in the constitution (i.e. Belgium, Denmark, Ireland and the Netherlands). All of these, not coincidentally, belong to the group of longer established liberal democracies. The first observation to be made is that the earliest constitutionalization of political parties in post-war Europe occurred in Iceland in 1944. Previously under Danish rule, Iceland formally became independent in 1944 following a popular referendum on the questions of whether to abolish the union with Denmark and to adopt a new republican constitution, both of which received an overwhelming majority of the votes in favour. The republic of Iceland came into being on 17 June 1944. It instituted its first constitution on the same day, with article 31 stating that:

Table 1

Constitutional Recognition of Political Parties in Post-War Europe

* Year of approval (rather than promulgation).

^† Freedom House rankings are available from 1973. In some countries, the period with ‘Free’ status is not uninterrupted: following the Turkish invasion, Cyprus was classified as Partly Free between 1974 and 1980; Estonia was Partly Free in 1991; Latvia was Partly Free in 1992 and 1993, and Slovakia was Partly Free in 1996 and 1997. In parentheses: year of independence for countries emerging from the break-up of larger states.

^‡ Czechoslovakia (1990–92).

^§ Yugoslavia (1990–2003), Serbia and Montenegro (2003–06).

n/a = not applicable (independent democratic states throughout the post-war period).

The reference to political parties in the Icelandic Constitution appears only incidental, to the point that the allusion to their existence is almost implicit. To be sure, elections rather than parties are the actual subject of constitutional regulation here, as the main purpose of this constitutional provision is to enshrine a principle of proportional representation for national parliamentary elections rather than describing the role of parties within the political system. Nonetheless, even though couched in implicit terms, the Icelandic Constitution presented a constitutional novelty at the time, being the first to create an unequivocal association between political parties and elections and thus effectively acknowledging the institutional relevance of parties in the context of a modern representative democracy.

The subsequent case of post-war party constitutionalization is Austria. The Austrian Constitution of 1945, adopted in the wake of the restoration of democracy following the Second World War, reinstated the pre-war 1929 federal constitution (which had first been adopted in 1920 following the collapse of the Austro-Hungarian monarchy after the First World War), while at the same time rescinding the Austrofascist Constitution of 1934. The Austrian Constitution has since been revised on numerous occasions, currently containing around fifteen provisions referring to political parties, but, as Pelinka points out, it does little to elaborate on the significance of political parties for the democratic decision-making process.Footnote 27 In fact, it seems to take their existence more or less for granted.Footnote 28 Moreover, parties are barely recognized or acknowledged as institutions in their own right, as the constitution usually refers to them in their manifestation as parliamentary groups, or in their electoral capacity (Wahlparteien). The only reference in the Austrian Constitution to political parties per se is a negative one: persons who hold office in a political party cannot be members of the Constitutional Court (art. 147.4). The Austrian Constitution does illustrate, however, that the constitutionalization of parties is not exclusively a post-war phenomenon, as it incorporates a number of provisions from the earlier pre-war constitution. Moreover, the case of Austria echoes the 1919 constitution of Weimar Germany, in which the reference to political parties involved a requirement for the political neutrality of public officials, stipulating that ‘civil servants are servants of the public as a whole, not of a party’ (art. 130).

This particular provision from the Weimar Constitution is indicative of the attitude towards political parties in the early days of mass democracy, when the dominant democratic ideologies did not allow for intermediaries between the individual and the general will. As a consequence, parties were often seen as a threat to the supposedly neutral and long-term transcendental general interest and the common good.Footnote 29 As the size of democratic polities expanded with the consolidation of modern large-scale nation-states, however, direct links between the state and the individual became increasingly unfeasible. This, coupled with a gradual shift in the dominant meaning of ‘democracy’, from a historical conception inspired by direct forms of democracy in favour of representative government in the broader polity of the nation-state, legitimized the status of parties as intermediary institutions between individual citizens and the state. As parties in the post-war era underwent an ideational transformation by which they gradually came to be seen as procedurally necessary as well as democratically legitimate for democracy, the notion of parties changed also in terms of their constitutional codification.

This is perhaps best illustrated with the example of the Federal Republic of Germany, where article 21 of the 1949 Basic Law regulates issues such as the freedom of political parties, their role in the formation of the political will, intra-party democracy, and the duty of parties to account for their assets. Furthermore, the German Constitution does not tolerate political parties with purposes or activities antithetical to the democratic constitutional order, a provision that has subsequently provided the foundation for a constitutional ban on the descendants of Nazi and Communist parties.Footnote 30 More specifically, article 21 of the Basic Law, as amended in 1984, states:

Article 21 thus constitutionalizes political parties, and ‘formally acknowledges that they have a genuine and legitimate function to perform in modern democratic government.’Footnote 31 Together with a similar, but less detailed, article on political parties, which had previously appeared in the Italian constitution of 1947,Footnote 32 the German Basic Law was one of the earliest cases of what could be called the positive constitutional codification of political parties in post-war Europe, attributing to political parties a constructive role in the democratic system. In contrast to the Italian Constitution, moreover, in the German Basic Law political parties, rather than the citizens, are the subject of constitutionalization. By assigning a key role to parties in the formation of the political will of the people, the German Constitution associates one of the key principles of democracy with the institution of the political party and invests parties with the status of institutions under constitutional law. At a time when political parties had been constitutionally codified in only a handful of European democracies, the German Basic Law represented the most comprehensive set of constitutional rules on political parties.Footnote 33

The Italian and German Constitutions both signal a positive appreciation of the role of political parties. As Pelizzo notes, they thus ‘represent a novelty in the history of formal constitutional texts as they explicitly recognize the constitutional role and relevance of political parties in the functioning of democratic polities.’Footnote 34 Moreover, and perhaps more importantly, both constitutions establish that the constitutional relevance of political parties is not confined to the role they perform in elections. This stands in sharp contrast to the earlier cases of party constitutionalization in Iceland and Austria, as well as some later examples such as in Sweden, Norway and Finland, where the constitutional relevance of political parties is essentially linked to their electoral functions.

The practice of party constitutionalization has since been followed in constitutional revisions in many other countries, with many taking their cue from the German model. A strong impulse in the diffusion of the process of party constitutionalization emerged from the third and fourth waves of democratization in Southern Europe in the mid-1970s and Central and Eastern Europe in the early 1990s. The 1978 Spanish Constitution, for example, echoes the German Basic Law in enshrining a positive role for political parties in the formation of the popular will, while also recognizing political parties as important vehicles of electoral participation.Footnote 35 Moreover, although the Italian and German Constitutions accept political parties in the plural, and thus by implication the existence of a multiparty system,Footnote 36 Spain is the first post-war European democracy to explicitly identify parties as key instruments for the expression of political pluralism.

In the most recent case of party constitutionalization in Luxembourg, parties are explicitly identified with the realization of fundamental democratic values and principles such popular sovereignty, participation and democratic pluralism. In 2008, it was approved that a new article, 32bis, was to be added to the Luxembourg constitution, stipulating that:

This amendment was apparently motivated by the perceived need to modernize the constitution in line with the political reality of representative democracy and a desire to underscore the importance of political parties for a healthy functioning of the democratic system.Footnote 38 In reality, however, the constitutional codification of their democratic importance seems to have been partly driven by the need to enhance the legitimacy of the provision of direct state subsidies to political parties.Footnote 39

Waves of party constitutionalization

In order to highlight the causal pathways, the chronology of party constitutionalization is represented schematically in Figure 1. The pattern displayed here shows that the process of post-war party constitutionalization was not gradual or linear, but appears to have occurred in clusters. On this view, Iceland, Austria, Italy and Germany form part of the first wave of post-war party constitutionalization. This coincides with the first wave of post-war constitution-writing, as the end of the Second World War witnessed an outburst of written constitutions, symbolizing newly acquired statehood and independence or recasting political power in the light of past authoritarian experiences.Footnote 40 This wave also coincides with Huntington's second wave of democratization and the restoration of democracy in the immediate post-war period. A next wave of post-war constitution-making was connected with the break-up of the French and British colonial empires. Corresponding cases of party constitutionalization are France (the establishment of the Fifth Republic in 1958), and Malta and Cyprus (on acquiring independence in 1960 and 1964, respectively). A further wave of constitution-making and party constitutionalization corresponds to the third wave of democratization in Southern Europe (Greece, Portugal and Spain) in the mid-1970s, while in a fourth wave the post-communist democracies in Central and Eastern Europe adopted new constitutions after the fall of communism in the late 1980s and early 1990s, with Ukraine as a relative latecomer in 1996.Footnote 41

Fig. 1

Waves of post-war party constitutionalization

The clusters of party constitutionalization thus correspond closely to the waves that Huntington has observed for democratization processes and which Elster has identified as waves of constitution-making.Footnote 42 This suggests, first of all, that there is a link between processes of regime change, or institutional restructuring more broadly, and constitution-writing. This relationship is well known: new constitutions are nearly always related to major social upheavals such as revolutions, wars, regime collapse or the creation of a new state.Footnote 43 In addition, the evidence presented here also reveals a pattern that is less familiar, i.e. that these processes of democratization and constitution-writing are also closely related to the constitutionalization of political parties. This suggests that processes of democratization and state formation in post-war Europe always went accompanied by the incorporation of parties in the newly written constitutions.

In the post-war European democracies, we can broadly identify four such types of institutional restructuring and corresponding cases of party constitutionalization. The first is independence as a result of liberation from colonial rule, as in the case of Iceland discussed earlier, as well as Cyprus and Malta. In a second group, encompassing democracies across all post-war waves of democratization, the constitutionalization of parties can be seen as a product of the establishment or the restoration of democracy. In some of these cases, a new constitution was adopted with the (re-)establishment of the democratic regime (Italy, Germany, Greece, Portugal, Spain, Bulgaria, Romania), the non-democratic constitution was revised to suit the procedural and institutional requirements of democracy (Hungary, Poland), or a previously democratic constitution was reinstated (Austria). In a third group of (post-communist) countries, the constitutionalization of political parties followed a dual process of democratization and the (re-)establishment of independent nation states, two key dimensions of what Offe has called the ‘triple transition’.Footnote 44 This includes the disintegration of Czechoslovakia into the Czech and Slovak Republics, the break-up of Yugoslavia resulting in the establishment of the independent republics of Slovenia, Croatia and Serbia; and the creation of independent states after the collapse of the Soviet Union in the Baltic states (Lithuania, Estonia and Latvia), as well as Ukraine. A fourth type of institutional restructuring and party constitutionalization is particular to the established democracies in Western Europe. In countries such as Sweden and Switzerland, the constitutional codification of political parties was arguably the result of something of a re-constitutive moment, albeit occurring under rather undramatic circumstances. Both constitutions are the product of a comprehensive process of constitutional reform, which did not, however, alter the fundamental institutional infrastructure of the regime. In the case of France, the constitutionalization of parties followed the establishment of the new institutional framework of the Fifth Republic in 1958. This was prompted, however, more by fear of regime collapse rather than actual regime change.

The constitutional codification of political parties, therefore, is usually a product of a (re)constitutive moment, which often occurs in a context of institutional flux. Conventional amendments, on the other hand, are a rather unusual mode of party constitutionalization. In the post-war European context, there are only three such cases, i.e. the established democracies of Norway (constitutional codification of political parties in 1984), Finland (1999), and, most recently, Luxembourg (2008). The temporal clustering of party constitutionalization in post-war Europe is a product of its connection to the waves of democratization and regime restructuring, which were themselves contingent upon a combination of domestic and international factors and snowballing effects,Footnote 45 and the writing of new constitutions with which processes of regime restructuring are intimately related. That political parties, without exception, were incorporated in the very first constitutions adopted by the newly established democratic states is indicative of the ways in which party democracy is understood, be it in normative or empirical terms, by the actors involved in the democratization and constitution-writing processes. It suggests, as Kopecký has observed in the context of the post-communist democracies, that among the designers of these constitutions a conception of democracy prevailed, whether conscious or unconscious, in which political parties are the core foundation of a democratic polity.Footnote 46

Dimensions of party constitutionalization

As the various examples cited in the sections above suggest, significant variation exists in the ways in which constitutions have codified the role of political parties. While some constitutions define political parties essentially in terms of key democratic values and principles, others mainly emphasize the parties’ electoral or parliamentary roles. Moreover, constitutions vary enormously in the intensity with which they regulate political parties. This section examines in more detail how the actual substance of constitutional regulations varies across European democracies. It investigates the ways in which political parties are described by the constitutions of the liberal democracies in post-war Europe, as well as the underlying dimensions of party constitutionalization. It examines the variation between countries, with a special emphasis on the differences between the older liberal democracies and those that were established more recently following a period of non-democratic experience.

The analytical framework for the content analysis of the constitutional codification of political parties is loosely based on the comparative analysis of constitutions made by Frankenberg, who argues that the architecture of modern constitutions represents a layered narrative with four main elements:Footnote 47

1. (1) Principles and values: democratic constitutions appeal, often in a preamble, to the fundamental principles and values upon which the polity is based. These may include values such as social justice, human dignity, the rule of law, or indeed democracy. Included within this category (‘democratic principles’) are constitutional references to political parties that define the democratic system and/or key democratic principles and values, such as participation, popular sovereignty, equality or pluralism, in terms of political parties.

2. (2) Rights and duties: placing the individual as the central and sovereign agent of the body politic, constitutions usually contain a catalogue of liberal rights and freedoms, guaranteeing private and political autonomy to the citizens of the state. Some constitutions complement these with social rights. While this emphasis on rights originally constituted a novelty in the history of constitution-writing, today it has become increasingly common for constitutions to imagine the political subject in terms of positive and negative liberty.Footnote 48 Within this domain, one category (‘rights and freedoms’) encompasses constitutional provisions that outline the position of political parties in terms of basic democratic liberties, such as the freedom of association, the freedom of assembly, or the freedom of speech. Two further categories (‘activity/behaviour’ and ‘identity/programme’) include the duties of parties to abide by certain rules on permissible forms of party activity and behaviour, on the one hand, or ideological and programmatic identity, on the other. These typically entail restrictions on the parties’ basic democratic rights and freedoms.

3. (3) Institutional structure: constitutions also contain regulations concerning the institutional organization of the polity. Broadly speaking, these deal with the rules for the ‘establishment, transfer, exercise and control of political power’.Footnote 49 They outline the structure of the political system, sketch out the selection, composition and powers of the various state organs, and describe the various hierarchical vertical and horizontal relationships between them. Hence, this domain encompasses constitutional provisions that position political parties within the broader structure of the political system. Because parties are not monolithic entities but can be disaggregated into various interconnected components or ‘faces’,Footnote 50 this domain has been broken down into various sub-categories, including constitutional rules that apply to the extra-parliamentary organization, or the political party as a whole (‘extra-parliamentary party’), parties in their electoral capacity (‘electoral party’), parties as parliamentary groups (‘parliamentary party’) and the party in public office (‘governmental party’). A further category within this wider rubric pertaining to the organizational structure of the political system (‘public resources’) refers to constitutional provisions that entitle political parties to public resources, such as state funding or free time on state-owned broadcasting media.

4. (4) Meta-rules: constitutions contain meta-rules, or rules of constitutional interpretation and adjudication, which deal with ‘questions of constitutional validity, amendment and change’ and outline the conditions for the revision and interpretation of the constitution.Footnote 51 These may include provisions on the establishment and prerogatives of a constitutional court, for example, or general procedures for judicial review. Within this domain, the category of ‘judicial oversight’ corresponds to the rules that establish external judicial control on the lawfulness and constitutionality of party activity and identity. Furthermore, these rules often determine the hierarchy within the legal order by defining the constitution as the ‘supreme law’ vis-à-vis ordinary legislation and by stipulating that the latter be in conformity with the constitution. The category ‘secondary legislation’ therefore encompasses constitutional provisions that reflect the hierarchical legal order and dictate the enactment of further legislation on political parties.

We thus arrive at eleven different categories within four broader dimensions. Table 2 indicates the dimension(s) along which political parties are codified by the different national constitutions currently in force, as well as the relative importance of each of the categories per country. One crucial observation that can be made on the basis of the figures presented in Table 2 is that the constitutions of the more recently established democracies (in Southern Europe and Central and Eastern Europe), as well as those reconstituted in the wake of a crisis of the democratic regime (such as Austria, Italy and Germany), tend to regulate parties significantly more extensively than the older liberal democracies in nearly all domains, including democratic principles, rights and duties, the extra-parliamentary organization and judicial oversight. In the older democracies, on the other hand, the constitutional regulation of parties tends to concentrate primarily on their electoral role. This is corroborated by Anova significance tests, which confirm that the differences between old and new democracies are significant (sig. < 0.05) for both the magnitude and range of constitutionalization, as well as for the majority of categories, with the exception of democratic principles, the parliamentary party, the governmental party and public resources.Footnote 52

Table 2

Dimensions of Party Constitutionalization

Notes: Figures denote the relative importance of the different dimensions of party constitutionalization in a country's current constitution (in percentages). In parentheses: raw frequency counts. N = number of countries. Reading example: the constitution of Austria contains one reference to parties in their extra-parliamentary capacity, which amounts to 4.3 per cent of the total number of provisions in the Austrian constitution, eight references to parties in their electoral capacity, amounting to 34.8 per cent of the total number of constitutional provisions in Austria, and so on.

The evidence presented in Table 2 shows that just over half of the countries identify political parties in terms of essential democratic principles (e.g. participation, pluralism, popular sovereignty). With only a few exceptions, this type of constitutional codification tends to exist primarily in countries with an authoritarian or totalitarian past. This suggests that a preceding non-democratic experience is a powerful driving force, although not a necessary or sufficient condition, behind the identification of basic democratic values with the presence of political parties. The legacy of non-democratic regimes is even more forcefully manifest with regard to the identification of political parties with the freedoms of association, assembly and speech. This category is almost exclusively made up of newly established or re-established democracies. Hence, in democracies with an authoritarian or totalitarian past, a legacy of the non-democratic experience is reflected in the new constitutions insisting on maintaining a clear separation between parties and the state by underlining the private character of party organization and ideology, and by primarily associating parties with basic democratic liberties.

In part, this may be a consequence of the growing importance that the constitutional bill of rights has now acquired as the essence of democracy.Footnote 53 In addition, it follows from the way in which the constitutional design of the newer democracies, and the post-communist ones in particular, tended to position the state and society vis-à-vis one another in the wake of democratization: the corollary of the liberalization of formerly non-democratic polities was often the constitutional establishment of an explicitly private sphere of social life, guaranteed by a judicially enforceable bill of rights.Footnote 54 The constitutional recognition of political parties in terms of fundamental democratic liberties in the post-nondemocratic regimes can thus be understood, at least in part, in light of the desire to identify and strengthen a private sphere which is free from state intervention.

At the same time, and seemingly paradoxically, these are also the kinds of regimes that appear most likely to constrain party ideology or behaviour, as is shown by the high incidence of provisions in the ‘activity/behaviour’ and ‘identity/programme’ categories. Many constitutions in the newly established and re-established democracies prohibit political parties that are adverse to the fundamental values of the democratic constitutional order. In an attempt to safeguard the democratic regime from insurrectionary and separatist parties, these constitutions thus demand that parties respect democratic principles, as well as the national sovereignty and territorial integrity of the state. In doing so, they follow a general pattern whereby post-war constitutions typically reaffirm human rights in general, but also make efforts to restrict these rights in such a way as to make them unavailable to the enemies of constitutional democracy.Footnote 55 This suggests that political parties are only qualified bearers of the democratic freedoms of association and speech: parties retain their rights only ‘to the extent that they are the essential servants of the democratic process.’Footnote 56

Banning parties or impeding their activities touches upon the problem of ‘democratic intolerance’, i.e. ‘the intolerance that democratic governments exhibit toward antidemocratic actors in the name of preserving the governments’ fundamental democratic character.’Footnote 57 The idea of ‘intolerant democracies’ appears an increasingly forceful notion, the relevance of which has also been reiterated at the supra-national level. Article 11 of the European Convention of Human Rights, for example, guarantees basic rights of association and assembly, including the right to form political parties, but also establishes that these can be restricted in the interest of national security or public safety. Thus, democratic rights of tolerance and freedom ‘should not be stretched so far as to allow the overthrow of those institutions that guarantee them’. A threat to the ‘unalterable, substantive core of liberal-democratic values may call for the invocation of procedures that might, paradoxically, require these basic democratic rights to be overridden.’Footnote 58 The European Court of Human Rights, in its adjudication on the banning of the Welfare party in Turkey, has further affirmed ‘the power inherent in democratic states to take preemptive action against threats to pluralistic democratic rule’, without necessarily demanding ‘proof of the imminence of democracy's demise’.Footnote 59 Although controversial from the perspective of some normative theories of democracy, intervention in the internal affairs and external activities of parties is thus justified with a view to protecting the very survival of the democratic system.

Constitutions not only impose limits and constraints on party activity and behaviour, or their ideological and programmatic profile, they also tend to regulate internal party organizational structures. Many of the newer European democracies in particular appear to follow what Janda has called a ‘prescription model’ of party regulation,Footnote 60 seeking to legally mould parties to correspond to a certain ideal type and privileging the – arguably outdated – mass party model over other styles of party politics. As can be seen from Table 2, nearly two-thirds of the democratic European constitutions contain provisions which regulate the structures and functioning of the extra-parliamentary organization. One common provision within this domain relates to the incompatibility of party membership with certain elected or public offices, such as the judiciary, the law enforcement and security services, or the presidency of the republic. Typical of post-communist democracies in particular, the intention here evidently has been to maintain clear boundaries between political parties and the institutions of the state. The Slovakian Constitution in fact explicitly requires as much, by stipulating that ‘political parties and political movements … shall be separate from the State.’ (art. 29.4) By demanding the political neutrality of public officers, such provisions not only echo the sentiments found earlier in the Weimar Constitution, but also reflect an attempt to distance the democratic system from the past regime, in which the Communist parties exercised a more or less complete control rule of the institutions of the state.

Various constitutions demand, furthermore, that the internal structures and organization of political parties are democratic. This requirement was first made explicit in the German Basic Law and has since been adopted in a number of other countries as well. In doing so, they effectively take the ‘democratic intolerance’ argument a step further by demanding that the parties themselves must reflect a commitment to democratic principles if together they are to form a democratic polity. On this view, efforts to guarantee that parties will not disrupt or destroy democratic government should not be confined to the constitutional control over their aims and behaviour but also over the party organization itself. Gardner, for example, argues in favour of ‘broadly inclusive internal procedures’, which may counteract the potential of parties to become dominated by a largely unaccountable leadership.Footnote 61 Internal party democracy thus may alleviate concerns which arise from the inevitable predisposition towards oligarchization of large and complex organizations such as parties, as famously described by Michels's ‘Iron Law’.Footnote 62 In the same vein, Mersel argues that political parties must be held to the core conditions of democracy, both externally in their goals and internally in their organizational structures, and that a lack of internal democracy should be considered sufficient grounds to ban a party because it ‘may be seen as evidence of external nondemocracy.’Footnote 63 This was also the perspective advocated by the German Constitutional Court at the time, arguing in its ruling on the constitutionality of the neo-Nazi Sozialistische Reichspartei that a logical relationship exists between the concept of a free democratic order and the democratic principles of party organization.Footnote 64 The rationale for imposing a duty of internal democracy on party organizations thus centres on a substantive rather than procedural conception of democracy, according to which key democratic values such as representation and participation cannot be realized in the absence of internally democratic parties.Footnote 65

From an alternative perspective, however, it can been argued that, because parties are not the state, the need for certain democratic values to be realized within the political system does not necessarily require the same values to be realized within all of the existing parties. It is, in fact, far from evident that democracy at the system level requires, or is indeed furthered by, parties that are democratic with regard to their internal structures and procedures. As Sartori has famously put it, ‘democracy on a large scale is not the sum of many little democracies’.Footnote 66 While internal democracy may be indispensable from the perspective of certain participatory theories of democracy, there is a significant body of democratic theory that takes an opposite view.Footnote 67 Internal party democracy might produce policy choices that are further removed from preferences of the median voter, for example. Given the continuous decline of party memberships in modern democracies, party members constitute an increasingly unrepresentative group of citizens, socially and professionally if not ideologically.Footnote 68 This makes the outcome of internally democratic procedures restricted to party members less and less likely to represent ‘the will of the people’. Furthermore, from a conception of democracy, which centres primarily on the maximization of voter choice and political competition, there are no compelling reasons to impose internally democratic structures upon the parties as long as the system guarantees, in Hirschman's terms, sufficiently meaningful ‘exit’ options (for example, membership exit or electoral defeat).

From this perspective, it is difficult to identify the interest of the state in so tightly controlling the internal governance of political parties. Such attempts, Issacharoff argues, bring ‘the force of state authority deep into the heart of all political organizations’, and raise serious concerns about the relationship between political parties and the state. More fundamentally, such impositions threaten to compromise the political integrity of the parties and their organizational independence from the state. ‘Political parties play a key role in providing a mechanism for informed popular participation in a democracy precisely because they are organizationally independent of the state.’Footnote 69 However, as the internal life and the external activities of parties become regulated by public law and as party rules become constitutional or administrative rules, the parties themselves become transformed into semi-state agencies or public service entities, with a corresponding weakening of their own internal organizational autonomy.Footnote 70 In addition, the primary locus of accountability is shifted from the internal organs of the party towards external state institutions.

This is also suggested by the category of ‘judicial oversight’, comprising countries that establish that the constitutionality and lawfulness of the programmes or activities of parties are to be monitored by the courts. Well over 40 per cent of European democracies have constitutionally enshrined this form of external judicial control over the political parties. This corresponds to one of the significantly discernible trends in post-war European constitution-writing, i.e. the gradual erosion of the historical doctrine of parliamentary supremacy. After the war, the idea of making the courts rather than the legislative or executive authorities the guardian of the constitution took hold in continental Europe to an unprecedented extent.Footnote 71 In the restored democracies of Germany and Italy, constitutional courts were established as a mechanism of ex post judicial review of legislation, while in France a constitutional council was set up with the purpose of ex ante control of legislative action. The model of judicial review has since been followed by many of the polities established in more recent waves of democratization,Footnote 72 making the courts unique among the democratic organs of government today in having been accorded legitimacy by virtue of the fact that they are not political, and therefore presumably neutral servants of the law.Footnote 73 Our evidence shows that these patterns also apply to the political parties. The judicialization of party politics is reflected in the mechanisms that many of the contemporary – mostly post-authoritarian and post-communist – democracies have established for monitoring party activity and behaviour, by assigning this prerogative, as well as the power to dissolve or ban parties, to the (constitutional) courts.

The concerns that may arise about this phenomenon are similar to those emerging from the diffusion of constitutional review and the expansion of opportunities for judicial activism more generally: these processes arguably undermine fundamental principles of democracy by effectively transferring powers from representative to non-representative institutions.Footnote 74 Although the courts might sometimes act as a powerful constraint on the possibly undemocratic or anti-competitive behaviour of political parties, the legal regulation of parties not only evokes anxieties about the state centralization and control of political participation and public life, but also about the democratic legitimacy of transferring the ultimate decision-making authority on their behaviour and organization from the responsible organs of the party to a non-elected body of judges.Footnote 75 This externalizes the channels of accountability from the party leadership to the courts, thereby creating a greater distance from the ordinary party membership in the process.

Private associations versus public entities

From the perspective of normative democratic theory, the legal regulation of political parties raises serious questions and concerns. The presence of laws specifically targeted at political parties implies that, in comparison to other types of organizations, the law either imposes greater restrictions on political parties or confers special privileges upon them. This raises the question as to whether parties should in fact be regulated differently from other types of organizations, and whether the special regulation of parties can be reconciled with basic democratic freedoms, such as the freedom of speech and association. Much of the jurisprudence in the United States, for example, is concerned with this fundamental question: under which conditions should the organizational autonomy of parties be preserved and in which circumstances do they serve as state actors?Footnote 76 As private associations, on the one hand, parties should be largely free from state intervention. In their capacity as state actors, on the other hand, parties become legitimate objects of state regulation, which also implies that they more closely resemble public utilities than private associations.Footnote 77 This section explores the existing conceptions about the place of political parties within modern democracy that lie beneath the constitutional codification of political parties, with a special emphasis on the consequences of their position vis-à-vis civil society and the state.

The first observation to be made is that, within modern democratic constitutions, we find different, and competing, conceptions of party democracy. Political parties seem to occupy a somewhat ambiguous space in the political system at the interstices of government and civil society, as few constitutions have been able to develop a coherent framework for defining the relationship between the parties, the state and the individual. On the one hand, parties may be identified as private subjects with corresponding democratic rights and freedoms, while many constitutions also attempt to keep them separate from those state institutions which are meant to be neutral and non-partisan (such as the bureaucracy, judiciary, head of state). In addition, parties are rarely assigned any influence on functions that fall within the domain of government or executive power.Footnote 78 At the same time, however, their position as autonomous agents of society is clearly compromised by a significant amount of state intervention in their external activities and internal organizational structures. Furthermore, as a result of their constitutional relevance as key components of the political system, accompanied by a uniquely privileged position in terms of state support, political parties have effectively become incorporated into the public realm.

In addition, it should also be noted that the qualitative and quantitative content analysis of the national constitutions suggests that various distinct modes of party constitutionalization can be distinguished. In some countries, most notably in the established liberal democracies such as Iceland, Finland, Norway and Sweden, the constitutions primarily associate parties with their electoral capacities. While parties in this sense might not necessarily be acknowledged as institutions in their own right, this mode of constitutionalization signals that political parties are a functional necessity for democratic elections, and thus reflects the unequivocal connection that exists between political parties and some of the democratic structures fundamental to modern representative democracy.

In other countries, and particularly in newly established or re-established democracies, the constitutionalization of parties reveals a concern with the continued survival of the new constitutional democratic order. Germany constitutes an illustrative example in this regard. Here, parties are seen essentially as extra-parliamentary rather than electoral, parliamentary or governmental organizations. In addition, this mode of constitutionalization tends to rigorously curtail the conduct of political parties in an attempt to safeguard democracy, requiring that their activities, behaviour and organizational structures are not adverse to the fundamental democratic principles. From this perspective, the state emerges as the guardian of democracy, with corresponding prerogatives to intrude upon the parties’ associational freedoms and their behavioural autonomy.

A third mode of constitutionalization, which is discernible in many of the democracies that emerged out of the third and fourth waves of democratization, suggests that political parties are primarily understood as public utilities. On this view, political parties are the crucial mechanisms for the realization of democratic values and principles, such as participation, representation and the expression of the popular will. As a consequence, they are endowed with special constitutional privileges in terms of democratic liberties. This explicit association between political parties and the realization of substantive democratic values implies an especially close relationship between parties and the state, as these values ‘reside in a realm beyond the disposition of the individual and call for their authoritative enforcement from above – usually by the state’.Footnote 79 In order that parties perform their unique democratic services effectively, therefore, parties are to be supported by the state, which is reflected in the constitutionally enshrined availability of public resources, as in Portugal or Greece for example, while a legitimate role is conferred upon the state in the regulation and monitoring of their activities and behaviour, through secondary legislation and external judicial oversight by the (constitutional) courts.Footnote 80 The conception of party democracy signalled by this mode of constitutionalization is one in which parties are quasi-official agencies of the state because of the critical functions they perform in a modern democracy, and in which the democratic importance of political parties justifies a privileged status in public law and the constitution.

More generally, the constitutional codification of political parties has strengthened both their material and their ideational position within the political system. Their constitutionally enshrined position not only implies that, in comparison to other organizations, parties are bound by tighter restrictions but also that they have been endowed with special privileges. The parties’ constitutional relevance not only justifies state support, but also effectively gives them an official status as part of the state: by giving them a constitutional status, political parties are granted explicit recognition with respect to the institutional importance of democracy.Footnote 81 Indeed, according to the German constitutional lawyer and former Constitutional Court Justice, Gerhard Leibholz, the constitutional codification of political parties signalled a revolutionary change, both from an empirical and a normative point of view, which ultimately reflects a fundamental transformation of the nature of democracy itself, from representative liberal democracy to a party state (Parteienstaat), which is built on parties as the central institutional mechanisms of political integration. Already in the late 1950s, Leibholz argued that the constitutionalization of political parties effectively legitimizes the existence of party democracy and transforms political parties from socio-political organizations into institutions that form part of the official fabric of the democratic state.Footnote 82

This clearly resonates with a more recent argument advanced by Katz and Mair, i.e. that recent processes of party organizational transformation and adaptation reflect not just a weakening of their linkages with society but also a concomitant strengthening of their relationship with the state.Footnote 83 On this view, parties in modern democracies no longer act as the representative agents of civil society, as in the age of the mass party, or as autonomous brokers between civil society and the state, as in the age of the catch-all party, but become instead absorbed by the state and begin to act as semi-state agencies. This has implied the emergence of the cartel party, which is characterized by the interpenetration of parties and the state as well as by a pattern of inter-party collusion rather than competition. In the era of the cartel party, the main parties work together and take advantage of the resources of the state to ensure their collective survival.

In addition to the increasing dependence of parties on public subsidies, which was given a pre-eminent position as a key indicator of cartelization in the original cartel article, van Biezen and Kopecký have argued that the management of party organization, activity and behaviour through public law and the constitution forms an equally important dimension of the party–state relationship.Footnote 84 Indeed, both the public subsidization and regulation of political parties can be interpreted as the two principal forms by which the modern state tends to intervene in contemporary party politics.Footnote 85 Together these processes have contributed to an ideational transformation of political parties from voluntary and private associations, which developed within society, into the equivalent of public utilities, which are justified by appealing to a conception of democracy that sees parties as an essential public good.