V.J. Chalupa

On Post-Modern Politics

CHAPTER 6

 DOMESTIC POLICY  I -- DEMOCRACY: RULE OF THE CITIZEN

People Know Best

Democracy is the form of government in which those on whom the law imposes duties decide about the use of the legislative power, i.e., the formation of the will of the state is arranged according to the principle of autonomy. Members of a democratic state are citizens and are guaranteed by the constitution the right to share in the formation of the will of the state provided they comply with pertinent legal norms.

Democracy is commonly justified by the assertion that people know best what is good for them. This justification while true, is incomplete. Democracy rests on the assumption that people know best what is good -- good not only for themselves as individuals or members of a certain group, but good also for society as a whole and good absolutely. The community of citizens who reason on the basis of the diversity of their lives' experience using their common sense and with assistance of tradition and religion arrives by its majority conclusions at a more correct recognition of what is absolutely good and just than minorities distinguished from others by this or that ontological property: origin, race, class, education, wealth, power or some other characteristic.

In modern society, this means assigning to experts a supportive and advisory role. It means rejection of a system, in which experts would decide: eugenicists  who may marry and have children and what strains of genes may continue and which ones must be eliminated, demographic experts how many people may be born and where, who may live and who may not; nutritionists what food is to be grown, prepared and consumed; sexologists the relation between sexes and the use of sex; ecologists when and where and how people use nature; educationists what and how children must be taught, a national endowment for arts would decide what art is to be promoted, a national endowment of sciences would determine which sciences and which scientific theories or discoveries are to be pursued, a medical board would allocate resources according to its conclusions as to which type of citizen is to be cured and which type is to be provided only with palliatives or "death with dignity," and so on wherever a group of specialists or experts brings their specialty to bear on the lives of others -- a system of total lack of freedom. Democracy is based on the premise that those who would have to obey the experts' precepts have the final word whether they want to accept such duties or not or to what extent.

According to a commonly accepted assertion, in a democracy all power proceeds from the people, not from individuals. This means that the decisions on the formation of the state's will are made by the citizenry as a whole, not by each inhabitant of the state as an individual. The individual's freedom is limited in two respects: under specific circumstances he is subject to the will of others even if he disagrees with it, and his own will has a legal effect only if expressed in a manner defined by the law. Laws issued without the prescribed participation of citizens are not legally binding; this, however, does not entitle each and every citizen to decide which legal norms he will consider as valid and which not; a system in which everyone would decide if he is or is not bound to observe this or that law would be anarchy. In democracy, the population of the state is the object of the state's care and individual citizens while empowered to share in the formulation of the state's will according to their goals of happiness, have the duty to obey the law whether their agree or disagree with this or that particular legal norm. (As subjects of will, i.e. of freedom, they have the ability to refuse to comply with the law, which is not the same thing as denying its validity.) For those who do not have the right to vote, and whose votes did not comply with legal provisions delineating the way of participation in the formulation of the state's will, or whose representatives were legally excluded from norm-giving, the norms issued by the state are not autonomous, but heterogeneous, imposed from the outside, an expression of someone else's will.

The Road from the Will of the Citizen to the Will of the State

Citizens entitled to share in the formulation of the will of the state are voters.  The constitution determines the way in which they exercise their empowerment.

A voter who will become a subject of duty under a new law, shares in its issuance in three possible ways:

1. voters  themselves issue laws -- direct democracy,

2. voters decide on proposals (drafts) of laws -- referendum,

3. voters decide on who will have legislative power -- representative democracy.

In a representative democracy, by casting his vote the voter shares in the decision who will be a legislator as well as what the contents of the laws will be, because he votes for persons as well as for programs they propose.

Voters have the right to assemble in groups on the basis of their opinions on the best arrangement of society, i.e., on the basis of political programs, and strive to influence the legislation. Democracy is characterized by institutions which protect this free formation of the political will of the people. The constitution allocates to citizens a certain sphere in which they are free, i.e., in which the state is prevented from imposing any duties, and should a norm interfering with this sphere be issued, it is legally invalid. This sphere of citizen's freedom is commonly called "fundamental liberties." Recent developments of international law tend to extend the protection of certain rights to every inhabitant of the state, citizen or not, on the basis of the theory that certain rights are innate to every human being, are "inalienable human rights" and therefore must be granted to every human being everywhere regardless of citizenship. The extent of such "inalienable human rights"  is not firmly established and has the tendency to expand.

The rights  of a citizen may become illusory unless his person and livelihood are protected. Therefore the first and main civil liberties are personal liberty which protects him from coercion by power, and material independence which protects him from economic coercion. Joined to these two basic liberties are liberties that secure his participation in public affairs by protecting the emergence of new opinions: freedom of thought, religion, scientific research; the dissemination of opinions: freedom of talk, press and expression; and the pursuit of opinions: freedom of assembly, of association and of petition.

Democracy secures the observance of civil liberties through law. Democracies are lawful states, i.e., punishment (harm of otherwise protected values: life, health, freedom and property) may be inflicted only on a person who violated a legal provision. Such violation as well as the pertinent punishment must be clearly stated in the respective law: this is the requirement of specificity of law. A law stating "Everyone who commits a wrong will be punished" is not sufficient, because such a law permits arbitrary interpretation, thus ceases to be an instrument of justice and may become a convenient instrument of political persecution.

Civil liberties are secured by legal certainty:

-- the commands of the governing political organization or organizations must be issued in  a specific manner, normally by way of a law, otherwise they are not binding and are legally invalid;

--  punishment may be inflicted only if the bearer of a legal duty violated it in a way described in the law: it is prohibited to inflict punishment without a violation of the law (the principle '"nulla poena sine lege");

-- only a punishment specified in the law may be imposed so that the violator knows beforehand what harm to expect for the violation; this principle invalidates retroactive laws;

--  punishment can be imposed only after a court of law has determined or confirmed that the punished violation did truly take place; this determination takes place before independent judges and/or juries; in instances of minor violations the law may entrust the imposition of punishment to organs of the executive branch, always subject to judicial review;

--  retroactive laws cannot be enacted; no one can be punished for actions that represent the infraction of a law that did not exist at the time of the action.

Elections

The legally binding expression of the will of the voter in the legislative process is his vote, the legally binding and according to legal provisions exercised expression of the will of citizens is voting, the right to express relevantly one's will is the right to vote. All voters have the same (equal) right to vote and the right to vote is the rule, i.e., it belongs to everyone who is considered by the law as mentally mature and morally responsible and meets special requirements established by the state (registration, a certain duration of residence, citizenship). Mental maturity is commonly determined by age, in certain legal systems also the ability to read and write, as prerequisite for inclusion in voters' registers. Moral integrity is determined from the standpoint of the law, i.e., by absence of certain criminal acts and a deprivation of the right to vote by a decision of the court or some other legally valid norm; otherwise, personal morality of the voter is irrelevant to his right to vote.

Because of the equality of votes, the number of votes is the determining factor in the formation of the state's will.  This does not necessarily mean that a majority of the population or even a majority of voters has a decisive share in the direction of public affairs. The will of persons authorized to vote who failed to vote does not count; nor do invalid votes. The equality of votes is vouchsafed and enforced by the executive power of the state, a power exceeding the power potential (economic, social, intellectual, organizational) of other subjects  to such an extent that they are unable to use it legally to influence voting. Democracy excludes from the decision making process, at least theoretically, any component of power except numerical relationships; political organizations whose purpose is to win votes are called political parties. Actually, other elements of power also make their impact felt: political parties representing the interest of well organized groups, especially those ready to use force or violence, as well as political parties representing groups yielding great economic power have in practice a greater share in the management of public affairs than warranted by the number of their votes and elected legislators.

Electoral Systems

An electoral system is the total of regulations determining the manner in which voting becomes a legally valid and binding part of the legislative process.

Modern technology makes possible and more frequent the use of direct democracy in the form of referendums especially in smaller (autonomous) territorial units, and laws mandate that state organs hold public hearings (personal) or invite comments (in writing) prior to issuance of legal norms. Comments and hearings increase the participation of citizens in the management of public affairs; yet they are not the same as democracy. In the first place, legislative organs are not bound by the opinions so expressed; in the second place, these procedures increase disproportionally the influence of well organized opinion and interest groups which arrange an avalanche of comments in favor of their positions, thus distort public opinion and one-sidedly impress or even intimidate the legislators.

Because modern states are large, the number of voters great and state activities complex, representative democracy is the prevailing form of democracy. The voting performed according to legal provisions takes the form of elections,  persons entitled to vote - the electorate - elect, i.e., choose (the possibility of choice is the substance of electing) the person they entrust with the legislative power and/or other functions (judicial or executive) in public life. The right to elect is active electoral right, the right to be elected is passive electoral right. Electoral systems usually prescribe more stringent conditions for the right to be elected than for the right to participate in elections; the strictness of the conditions is usually commensurate with the importance of the office to be filled. 

For practical reasons, the national territory is divided into electoral districts. Such districts are independent entities for the purpose of nominating candidates and counting votes. Electoral systems that emphasize the personal character of candidates and their relationship with the voters provide for election of persons, voters choose between individual candidates; electoral systems emphasizing programs provide for election of ballots listing candidates of identical opinions and program, voters choose between lists of candidates. Elected candidates are said to have received the mandate to represent the electorate and to create the state's will on its behalf.

Electoral systems are evaluated on the basis of two criteria: how accurately they reflect the opinions of the electorate and how they create conditions for a firm and efficient governing of the state. At first glance, these two criteria are mutually exclusive: the more accurately the composition of a legislature reflects public opinion, and the more accurately the activities of the legislature correspond to the various trends of the citizenry, the more complicated, difficult and volatile is the formulation of the state's will; firm, effective and steady directing of public affairs demands that the legislative body be composed so as to produce a state's will which is consistent and steady.

Electoral systems belong to two general groups according to the provision as to what type of majority they require for the election of a candidate.

Majority electoral system

The system of majority representation is, in its pure form, a system in which a relative majority is sufficient for the election of a candidate: the candidate who or the list of candidates which received the greatest number of votes, is/are elected; the other candidates are not and the voters who voted for them have no representation (their votes are forfeited). As a mechanical consequence of this system, the voting power of the victors is increased and that of the losers is decreased (actually: lost): the proportion of the representation of the victors in the legislative bodies is greater than the proportion of their voters in the electorate; for the losers, the effects are the opposite.

The majority system has the tendency to provide the political organization that gained the most votes (relative majority) with an absolute majority in the legislature, which meets the requirement for a firm, consistent and steady governing of the state. This, however, is not always the case.  If three or more political organizations present candidates or lists, there is the possibility that none of them prevails in the majority of electoral districts, and the need for a coalition government arises. Also in the event that only two political organizations present their candidates or lists, in a certain distribution of voters, the less numerous votes can elect a majority of candidates (7).

The overvaluation of the votes of the victorious party underscores the direction in which public opinion is changing; this keeps democracy vital; the voter realizes that he can affect the outcome of elections exactly because a relatively small shift in votes is magnified by the overvaluation and undervaluation respectively of the winning and losing votes, and causes significant shifts in the relationship of the mandates.

Because of the importance of the overvaluation of votes in favor of the victorious party it is relevant to determine whose votes are overvalued. Overvalued are the votes of voters who switched to the victorious party. The votes of party faithfuls and of extremes tend to offset each other; victory is decided by the fluctuating center. This fact affects the character of the entire political process: political parties orient themselves in action and propaganda towards gaining the votes of the center.  Consequently the majority system is centripetal, it does not divide the citizenry into diametrally opposed blocks; the overvaluing of the center has a  calming effect and the center, albeit not having its own political organization, influences the policies of all parties. Political parties must pay attention to all streams of public opinion because the omission of any one of them could, by gain or loss of one single vote, cause the victory or defeat of a candidate or list. Therefore, political organizations submit to the electorate a clear program in currently important matters, but in other questions they represent a conglomerate of an entire scale of opinions whose supporters seek accommodation within the political organization. The result is an election program of generalities and compromises with the exception of what is perceived as the crucial question or questions of the day. ("It's the economy, stupid!") If such compromises and accommodations of various trends within the political organization cannot be reached, the factions enter the elections separately with the risk that none of the splinter groups will be represented in the legislation even if together they have the majority of votes. On the other hand, under certain circumstances the majority system gives a key role to a well organized ideologically uncompromising minority which even if unable to switch to the adversary political party, may still, by threatening to withhold the votes of its adherents and thus to cause it to lose the elections, impose its demands on the ideologically closer party.

The principle of overvaluing the votes for the victor and undervaluing the votes for the loser gives the mandate to the relative majority in each electoral district. Because adherents of ideologically close political movements prefer to concentrate their votes on an acceptable candidate rather than to split them among several candidates of a similar attitude, and thus to contribute to the election of a candidate of an ideologically opposite political party, the polarization of voters leads gradually to the survival of only two relevant political parties in each district. The pressure towards consolidation of political organizations into two is effective nationwide in each electoral district, but not necessarily in favor of the same two political parties. Where the electorate is homogeneous to such an extent that its needs find expression in nationwide (state-wide) political movements, the two resulting political parties are also state-wide, nationwide. If the electorate is diverse, the system results in forming territorial parties according to the special needs of local electorates, and the overall result is a system of entrenched particularist political parties, rather than a two-party system.

Proportional electoral system

The system of pure proportional representation reflects most accurately the actual opinion of the electorate. In its pure form, votes delivered nationwide in favor of individual political parties are totalled up and mandates for the legislative assembly are allocated according to the percentage of the total of valid votes cast. The mechanical sensitivity of this system results in the multiplication of political parties because it preserves the existing ones and facilitates and encourages creation of new ones. In a large political body such as the electorate of a state, almost any political program can find enough adherents to obtain representation in the legislature. (In a legislature of 300 members, a party has to obtain only one third of one percent of the electorate in order to qualify for a mandate. To gain one third of one percent of a large group of people for almost any opinion is practically certain.) The tendency to create new parties is reinforced by the rigidity of existing parties whose inertia funnels innovative ideological or political movements towards the organization of new parties even for small ideological or personal differences.

The system of proportional representation is based on the principle that the outcome of elections, i.e., number of elected candidates should correspond to the numbers of votes cast for them. Because it is impossible to divide physical persons according to the percentages of votes cast, this system is constrained to use party lists; from each party ballot is elected the number of candidates corresponding to the percentage of votes cast for it. Because this system prevents the loss of almost any single vote, it encourages psychologically the emphasis on differences of secondary importance and their elevation to important issues, thus to the atomization of the electorate; its effects are centrifugal. Proportional representation reflects properly the distribution of votes, but it also distorts the true picture of public opinion by obscuring its fundamental division on substantive issues, emphasizes real as well as artificially provoked differences, fractures the political expression of an articulate public opinion into intolerant splinters.

In the system of majority representation, the decisive element in elections is the fluid center of the voters; in proportional representation it is just the opposite: the decisive role lays with the steady cadres of party faithful -- members and voters; the impact of the fluctuating votes is minimal. Voters who switch party allegiance are usually relatively few, and when divided among a large number of political parties, their action achieves at best the shift of a few mandates, which has hardly any influence on the overall direction of politics. The proportional system takes no cognizance of trends and dynamics of the population's thinking.

Combination electoral systems

In order to overcome the shortcomings of the two basic systems, there exist various combinations of them. The most important ones are:

a. the majority principle is applied in each electoral district only if a candidate or a list of candidates receive the absolute majority; if not, there takes place a second round of voting in which the voters can choose only between the two leading candidates (or lists):

b. the electoral district is assigned more than one mandate. The available mandates are allocated to candidates in order of the highest numbers of votes;

c.   each voter has more than one vote which he may give to one candidate or split among several candidates;

d. voters have the right to write in candidates, cross them out or change their order on lists;

e.  political organizations must obtain a certain percentage of votes nationwide and/or in a number of districts in order to qualify for a mandate; if this qualification threshold is not reached, its candidates are not given a mandate and votes cast in their favor are forfeited or rather accrue to the qualifying parties according to the relationship of votes cast for them; the requirement of such a qualifying minimum can result in a situation where a minority of qualified voters attains the right to form the state's will to the exclusion of the (splintered) majority, and reinforces the tendency towards a two-party system by eliminating chances of survival of small and new parties.

Selection of Candidates

Provisions regulating the selection of candidates are no less important than those regulating the exercise of the right to vote. 

The fullest empowerment is granted to the voter by systems which allow write-in of names on the ballot. By writing in a name of his preference, the voter performs both the act of nominating and selecting (voting for) his nominee.

Close to this alternative is the right to set up so-called independent candidates, i.e., candidates who do not belong to or at least do not represent any established political party. To qualify as an independent candidate, the nominee for candidacy must submit to the authorities a certain minimum number of  voters' signatures supporting the candidacy either nationwide, in an electoral district or in a certain territory (in local elections).

In most instances, candidates are presented by political parties according to their internal selection procedures. The most populist form are so-called open primaries. Primaries consist in selecting candidates for elections by the membership of the party  from ballots showing the names of persons who qualified as candidates. In open primaries, any one who declares himself to be a party member, is empowered to vote; no additional identification and/or condition is required. If such primaries permit also write-in of nominees, they approach closely the system allowing write-ins on the election ballots. It allows voting in party primaries to members of no party or even members of another political party ("cross-over" voting).

While this approach is the rule in the United States, in other countries the participation in primaries is contingent upon  proof of party membership by a membership card and depends frequently on membership dues having been paid, and the list of nominees is composed by certain organs of the pertinent political party enlarged by those who have obtained the support of a number of members or some important part of the party's organization. A strong voice in selection of candidates is granted to members also if local or county party organizations have the right to nominate candidates.

In order to safeguard a party's coherence, its statutes may guarantee to its leadership the right to "filter" or screen nominees proposed for primaries or for candidacy, or to reserve to the leadership the right to compose the list of candidates either directly or in cooperation with high-level territorial or national meetings of delegates. Another method to preserve the traditions and continuity of a party is automatic candidature of certain party functionaries, for instance members of the presidium or chairmen of its larger segments, former elected representatives (incumbents) and members of the government.

The method of selecting candidates is related to the type of electoral system in that the majority system favors more influence of local membership while the proportional system tends to strengthen the power of higher organs of a party. In general, the mode of nominating candidates for election reflect the degree of internal democracy of a political party.

Governing a Democracy through  Separated Powers

The preservation of civil liberties is protected in a democracy also organizationally by a system of mutual checks and balances of the state powers and by the obligation of their holders to preserve the legality of their actions.

Legislature

In a representative democracy, the sovereignty of the state resides with the highest representative organ (parliament, national assembly, congress) which in principle possesses the exclusive right to issue laws as the only norms hierarchically immediately subordinated to (immediately derived from) the constitution, and further legal norms (regulations and provisions of the executive power as well as court decisions and judgements) derive their validity from laws. The power of the state, this greatest existing concentration of power, may be directed only against those who violate the law, and laws must not violate the constitution and the civil liberties and human rights there incorporated.

Legal transfer of the power to issue laws to some other organ of the state (to the president or the government) or granting other norms the same legal status as to laws (presidential decrees, government resolutions, regulations issued by bureaucracies) indicates that autocratic elements are intruding in the democratic system.  The same effect have laws that leave a wide power to interpret and specify resulting duties to organs not constitutionally entrusted with norm-giving, i.e., organs of the administration or the judiciary.

The primary originator of the state's will in a democracy is the legislature. The constitution of the state determines whether the state gives preference to its stability, its efficiency or prefers sensitivity to changes in public opinion, i.e., mainly to the results of the most recent elections.

The stability of the state is enhanced by a bicameral system provided that the composition of each of the legislature's two bodies is based on different election criteria, such as different requirements for passive and active right of vote (usually different age limits), different terms of office, and/or a different voting system. The effect of this arrangement is to prevent sudden and transitory changes in public opinion from becoming equally sudden and transitory changes in the policies of the state. This is important especially in societies where the media exert great influence on the population, can whip up a transitory, but strong, emotional wave of criticism or enthusiasm, and thus destabilize the state.

Another variation of enhancing the stability of the state is the division of jurisdictions between the two legislative bodies. Some constitutions reserve legislative initiative to one body, the one most responsive to public opinion, and give to the other body the power to disapprove (delay, return) it. The most frequent is the requirement that a legislative proposal becomes law only if approved by both chambers; if one of the chambers fails to approve the draft voted by the other chamber, the draft does not become law or its validity is postponed until additional procedural steps are taken (referral to a reconciliation committee and a vote on the reconciled version, in the United States).    

The main justification for a unicameral legislature is the recourse to the principle that the legislature should reflect as closely as possible the composition of the electorate and its will and opinions, otherwise it will alienate those whose will it is supposed to represent, express and implement. The stability of the state's will in a unicameral system is strengthened by a provision that elections to it are staggered so that only a portion, like a third, of its members, is elected at the same time. Radical and abrupt fluctuations of state policies are thus moderated and the next elections confirm whether previous changes in the attitude of the electorate were transitory or enduring.

The stability of the state can be protected by provisions which give the head of the state (president, monarch, in some cases the military) the right to postpone or deny validity to a law, sometimes combined with the authorization to dissolve the legislature and to initiate new elections under certain constitutionally specified circumstances, especially the legislature's inability to form a governing majority or to overcome a gridlock between the legislature and the executive power.

The Executive

The efficiency (and accountability) of the government (in the widest sense of the word) depends in a democracy on the voting system: whether it ensures or at least promotes the formation of a legislative majority necessary for the formation and formulation of the state's will. In this regard, the most incisive impact is exerted by the influence voting systems have on the number of political parties.

 Majority government.

The majority electoral system increases the accountability of the parties. Achieving absolute majority in the legislature in a proportionate electoral system is practically impossible; but a majority system usually brings about such result. In the interest of its election victory a party must satisfy a scale of political movements; therefore the debate about a program of their potential government takes place inside political parties and precedes the elections. If a party achieves absolute majority of the norm-giving body, its responsibility for the success (or failure) to implement its election program and for concrete and visible achievements of its rule is clear. The tendency to credit or blame the party for all results  mean that the next election voters will decide clearly about the direction of the state's will in the following term and about the persons who will govern it: the leaders of contending parties are known and the voters take them into consideration when casting their ballots; this limits and/or makes superfluous behind-the-scenes deals between political parties and pressure groups regarding the government program or personal composition of the government; the outcome of the elections determines it directly.

Coalition government

A coalition government becomes necessary if no political party has, in the legislature, a majority to implement its program (and, in a parliamentary system, to form a government).  Such a situation is exceptional in a state with a majority electoral system and the rule in states with a proportional electoral system. Then the program and personal composition of the government must be decided by a compromise between several political parties and their goals. This struggle which in a majority system takes place within the parties prior to elections, takes place under a proportional system in the legislature after elections and creates a crisis of the state. Because the proportional system favors creation of political parties representing material interests, the necessary compromises are formed mainly on the basis of mutual concessions of an economic nature: each party must give up a part of its program in exchange for the support of other parts of its program by other parties, and vice versa.

The whole of political parties associated for the purpose of implementing identical or complementary portions of their respective programs is called a coalition of parties. The coalition parties articulate a common program as a joint purpose whose unity is given by the material solidarity of its secondary purposes furnished by the programs of the participating parties. The relationship in which their programs are included is based on the power relationship of individual coalition parties and influenced by the power relationship between the individual groups ("objects of care") represented by the coalition and the opposition parties, in which calculation the power of the state apparatus is mostly to the credit of the parties representing the majority.

There is one exception. The necessity to find a majority for the creation of a program and the establishment of a government deforms the formulation of the will of the state by giving small parties needed for attaining the majority an influence exceeding their numerical strength among the voters, and grants the power of veto to each coalition party willing to leave the coalition and thus to reduce its representation in the legislature to a minority. Under such circumstances, small coalition parties can have a disproportional influence and can dictate their conditions to much larger parties, because they hold the key to the survival or fall of the government and the stability of the state. Governments of states with a proportional electoral system are thus paralyzed in their formulation of programs and in their actions, incapable of pursuing systematically long term measures to solve problems, and unstable, because the governing majority breaks apart each time when any one of the governing coalition parties reaches the conclusion that a switch to the opposition would permit the opposition to become the new majority in the legislature and would grant the switching party more influence in the new coalition than it had in the previous one.

The instability of coalition governments is enhanced by the fact each political party enters elections on its own and competes implicitly or explicitly also with its coalition partners. This cleavage between the election campaign and the necessity of a post-election coalition causes insincerity of cooperation, difficulty in forming a coalition and its instability. The jealousy of coalition partners and leaving the coalition for propaganda purposes are consequences of this cleavage. Rather than concentrating on the implementation of its program, each coalition party is intent more in preventing others from implementing their program. This policy is possible as long as its departure from the coalition would mean, for other partners, a loss of the necessary majority, and such loss would cause them a greater harm than the sabotage of the implementation of parts of their programs.

As a result, states governed by the practice of coalition building are seldom capable of effecting deep changes of society no matter how urgent and critical they might be. This applies especially to social problems and to such matters which would demand significant sacrifices from all citizens. It is the reason why such democracies are at a disadvantage when faced by non-democratic political actors, domestic or foreign. A large part of citizens loses interest in the defense of a state whose system consistently proves it incapable to act because each of its governing political organizations watches jealously that none of them achieves a significant progress. This dissatisfaction is augmented by the fact that in the system of coalition government, a citizen is unable to distinguish which of the coalition parties is really responsible for successes or failures of the state's policies. Each of them claims all credit for progress, each blames other partners for failures and justifies its participation in the coalition by claims of preventing even greater failures. Because the society drifts or stagnates, voters cannot make a judgement whether this or that program is good or bad, remain faithful to their respective parties and ascribe its incompetence to other parties because only the implementation of a program can bring proof of its value. If a political party has no opportunity to implement its program, the public has no way of judging the quality of an individual party's programs and representatives.

The coalition system promotes irresponsibility both among the governing parties and in the opposition. Because no party is able to implement fully its program and be held responsible for its consequences, programs of all parties acquire the nature of propaganda and demagoguery: the parties know in advance they will be able to realize them only in part, at best. This reinforces the negative attitude of citizens towards politics in general and undermines their faith into the democratic political system.

The legislative power creates the will of the state; it is the task of the executive to implement it. This means that, conceptually, the executive power is subordinated to the legislative power. If this relationship is reflected in the organization of the state, the state is a parliamentary democracy; if not, it is a presidential democracy.

The substance of parliamentary democracy is the organizational dependence of the highest organ of executive power -- the government (in the narrower sense of the word, in the United States the "administration") -- on the parliament which means that the government must not be in disagreement with the parliament. When such a disagreement occurs and is identified by the legally provided manner (usually by loss of majority support of the government in the legislature, vote of nonconfidence), the government must resign and be replaced by one that has the confidence of the parliament expressed by a majority vote. According to some constitutions, the harmony between the legislature and the government is renewed by a recourse to the electorate, i.e., by new elections. The newly elected parliament is superior to the government like the dissolved parliament was. The superiority is expressed either by the fact that the composition of an existing government is subject to the parliament's approval or by the fact that a new government is selected by the legislature. Consequently, legislature has a decisive say also about the personal composition of the government. In parliamentary democracies, the parliament frequently also elects the head of the state (president).

The substance of presidential democracy is organizational equality of the executive headed by the president (often elected by popular vote or a body of electors, not by the legislature) with the legislative body. The executive must execute the state's will as expressed by laws, and to that extent it is subordinated to the legislature, but its composition and existence does not depend on the agreement of the parliament. The legislative power can enforce its will or oppose the will of the executive by controlling the funding of the administration's activities through denying or allocating funds for certain purposes, but cannot overrule it: the result is a gridlock. The mutual relationship of the legislative and executive powers is determined by the constitution, and the judicial power, independent of the legislature as well as of the executive, decides whether either of the other branches (legislative or executive) violated its provisions.

The Judiciary

In view of the importance of by whom and how it is established whether a violation of the law took place and which penalty is attached to it, a certain arrangement of the judiciary is inseparable from a democracy. The judiciary has a final word in the question if, how and against whom the the machinery of the state is to be activated. Therefore, the institution of the judiciary in a democracy generally observes several principles:

--     Independence of judges. In the performance of his office, a judge is bound by the wording of the law, but only by the wording of the law. Special organs composed of judges (disciplinary commissions) determine whether a judge violated the law in the performance of his office, and the impeachment and/or removal of judges for malfeasance in office is often reserved to the highest organs of the legislature or the administration. A party to a litigation has the right of appeal and the decision belongs only to a higher court (appellate court, supreme court or constitutional court), not to the legislature or the administration.

--     Customary jurisdiction. Everyone must be judged by the court of his jurisdiction, i.e., everyone must be judged only by those courts under whose jurisdiction they belong according to the law. The state is prohibited from selecting, for political reasons,  a court which it expects to condemn an innocent person, or a court which would free a guilty person. This principle includes the prohibition of establishing exceptional courts which could be used for encroachment of civil liberties or human rights, as well as the prohibition of transferring judicial power to other organs of the state, especially to organs of the executive power.

--   "No plaintiff -- no judge." Courts may act only on the basis of an accusation or complaint. This principle is the opposite of the principle of inquisition when a court may initiate proceedings (investigation and sentencing) without an accusation or complaint by an authorized person, but it does not prevent an organ of the executive power from having a right and/or duty to prosecute certain violations of the law they have become cognizant of, i.e., to submit an accusation or complaint to a court.

--     Courts have the duty ex officio to handle every matter brought before them by a proper party in a proper way and to treat all parties equally in investigating the subject matter and in sentencing. It is a duty of the judiciary to prosecute very violation of the law, no matter by whom committed.

--   The court may pass judgment only on the basis of material truth as ascertained by it during its own proceedings. It must not take for granted results of investigation by other organs, nor a confession of the accused; even if there is a confession, the court must determine that such confession corresponds to reality, is materially true. The principle of material truth is the opposite of the principle of formal truth when the court decides on the basis of compliance with or violation of some procedural rules by the parties to the dispute. If formalities are violated, the violator is subject to punishment, but the violation must not protect a guilty party from punishment .

--   The principle of immediacy and oral presentation prohibits sentencing on the basis of only written documents. A court may decide only on the basis of its own, immediate and direct experience gained during the court proceedings from examination of witnesses, of the plaintiff and of the defendant and/or their legal representatives. The defendant (the accused) must be given full opportunity to defend himself personally and through his attorney.

--     Generally, the court must conduct hearings and pronounce its findings publicly to facilitate control and criticism of any violation of the law or favoritism towards either contending party.. This principle is the opposite of sentencing in camera, secretly and with the exclusion of the public.

Exceptions to the above enumerated principles must be based on law which, in turn, must respect the constitutionally guaranteed civil liberties and human rights. While the independence of the judiciary protects democracy from the violation by the legislature and the government, it leaves it open to the undermining by arbitrariness of the judiciary.

The decisions of the courts consist in transformation of abstract legal norms of the laws, rules, regulations and decrees into concrete norms; a court determines in given concrete circumstances what the concretely identified subject of duty must concretely do (or suffer). The jurisdiction of courts includes also the right to instruct organs of the state to perform a punishment of concrete person or persons. Therefore, the performance of the judicial power is a link of the chain of normgiving; it differs from legislating in that the court acts and decides not on the basis of what a judge or judges believe should be, but on the basis of what the legislature has determined that should be. Between these two opinions there can be and in practice sometimes is a difference which produces a tension and can lead the court to observe the formal requirements of the law while replacing, in concrete decisions and pronouncements, the intent of the law by the court's or judges' own opinion. In this way, the judiciary can arrogate to itself the role of the legislative and/or executive power and substitute the will of judges for the will of the  state as duly expressed by the processes of elections and norm-giving.

This tendency is reinforced by three circumstances. First, there is the principle of independence of the judiciary which guarantees that court decision may be changed only by other organs of the judiciary. If these higher organs have a concept of justice different from that of the legislators, it is very difficult to prevent the judiciary from intruding in the sphere of the legislative or executive powers. Second, the judiciary has usually the authority to decide about the constitutionality of legal norms. This means that a court can pronounce any legal norm including laws as not in accordance with the constitution, and therefore as invalid. The decision on such a pronouncement lies normally with a higher instance of the judiciary, and if its highest instance (Supreme Court or Constitutional Court) confirms it, there may be no further appeal from such a decision, no matter how arbitrary is the Court's interpretation of the constitution (the principle expressed by a U.S. Supreme Court Justice then applies: the Constitution is what the Court pronounces the Constitution to be). Third, if the legal system is built less on the letter of the law than on precedent, any such pronouncement of a court, unless successfully challenged, creates a precedent which permeates the decisions of the entire judiciary and thus has the power to transform the entire society. The principle of precedence deviates from the principle that the judiciary is empowered only to issue concrete norms, i.e., norms dealing with one particular case, and circumvents such restriction: the judiciary has then the power to create abstract norms which have the validity not only of law, but even of the constitution itself.

This process is defended in legal theory by the so-called activist understanding of the role of the judiciary, namely, that it is not the role of the judiciary to apply the "dead letter" of the law, but to "promote justice" whenever the legislature fails to do so. Because "justice" is in this connection only a different designation for the "betterment of the situation of a certain group of people", the activist concept of the judiciary transfers in fact the power of legislation and of imposing a constitution to the judiciary which can by its decisions and the preferences of independent judges expand, restrict, change or render ineffective even fundamental civil rights. Since the judiciary is exempt from controls by the citizenry, this development is detrimental to democracy: elected organs are reduced to deciding trivia while fundamental changes are made via judicial pronouncements.

In order to prevent the expansion of the judiciary at the expense of the legislative power, constitutions include various provisions: judges are elected by the citizens in the same way as legislators, their tenure is limited, legislatures have the power to exempt certain issues from the jurisdiction of courts and reserve them to central or local normgivers, to impeach and recall judges under certain circumstances.

Dividing the State

A political organization in power usually tries to fill positions within the executive and judicial branches with its own members,  authorized to do it by the law or via facti. The organs of the executive implement purposes whose contents are determined by legal norms, and organs of the judiciary evaluate certain facts according to the appropriate legal norm; nevertheless, the decisions of both are influenced to some extent by the opinions and the purposes of happiness of the persons performing these tasks. A political party (or parties) dominating the legislative branch and formulating the will of the state in accordance with its ideology and program, assumes correctly that the organs of the executive and judicial powers will perform their functions in its intent more faithfully if they are occupied by its own members and adherents of the same political or ideological movement. The same applies to the opposition: if it manages to keep the possession of important positions in the administration and the judiciary in the hands of its adherents and to prevent the victorious political organization from replacing them with its own people, it may be able not only to sabotage the will of the majority party, but even to implement the minority's objectives.

The occupation of positions of the non-legislative powers by adherents of the governing party (parties) or the opposition party (parties) does not in itself change the nature of the state as long as adherents of political parties observe the legal norms governing their duties. The lawfulness of the state, however, is diminished if the personnel of these branches implement the will of their favorite political parties or movements rather than the will of the state. Such is the case especially in democracies with a proportional electoral system and the practice of coalition government. Because the mechanics of coalition government impede the implementation of their respective political programs political parties endeavor to dominate normgiving not only in the legislature (where they are paralyzed by other parties), but to substitute, in the non-legislative portions of the state structure under their control, their respective programs for the purpose of the state.

The responsibility of the government (administration) to the legislature, i.e., representatives of political parties, is a means by which political parties can and do widely influence the personal composition of the judicial and executive apparatus. In a parliamentary democracy, this influence is apparent already in the composition of the government which is completely or prevailingly constituted from representatives of the governing political party or governing coalition according to agreements reached during preceding negotiations. In the same manner, the entire bureaucracy of the state is then modified: each party fills positions and promotions with its adherents in the sector of the state administration assigned to its ministers. Because in this process, loyalty to a political party plays a stronger role than professional qualifications, the efficiency of the state administration suffers and its growth and cost flourish.

Bureaucrats who owe their positions to a certain political party, follow in the performance of their duties the party's objectives rather than the objectives of the state. This undermines in reality the equality of citizens because political appointees in the state administration favor members of their political party in comparison to non-members. Various sections of the state administration become a domain of various political parties especially if certain ministries are in the hands of the same party for a long period of time. This disrupts the unity (material solidarity) of the state's purpose, the will of the state loses consistency, activities of the state's organs cannot be deduced from the primary purpose (legislated program) of the state, the state's organs act at cross-purposes with each other and with the state's will expressed by its legal order. From the actions of its organs it is no more possible to determine the state's primary purpose, because it would have to be logically concluded that the state promotes and opposes  at the same time identical objectives. The state splinters. (8)