Vol. 16 No.5 (May, 2006), pp.344-348
BORROWING CONSTITUTIONAL DESIGNS: CONSTITUTIONAL LAW IN WEIMAR GERMANY AND THE FRENCH FIFTH REPUBLIC, by Cindy Skach. Princeton: Princeton University Press, 2005. 192pp. Cloth. $29.95/£18.95. ISBN: 0-691-12345-4.
Reviewed by Amalia D. Kessler, Stanford Law School. Email: AKessler [at] law.stanford.edu
Cindy Skach’s BORROWING CONSTITUTIONAL DESIGNS: CONSTITUTIONAL LAW IN WEIMAR GERMANY AND THE FRENCH FIFTH REPUBLIC is a well-argued and important book, which is likely to help set the terms of debate concerning constitutional design for years to come. Examining a form of government that a growing number of countries around the world have borrowed from the French Fifth Republic—namely, semi-presidentialism— Skach inquires into its capacity to promote stable democratic regimes and concludes that there is reason for concern.
In contrast to other scholars, who have claimed either that there is no single type of semi-presidentialism, or that semi-presidentialism is best understood as a form of government that alternates between presidential and parliamentary phases, Skach asserts that semi-presidentialism does indeed constitute a single type—and one that is clearly distinct from the more familiar presidential and parliamentary models. In her view, semi-presidential regimes are all characterized by two features: (1) the head of state is a president chosen for a fixed term through popular election; and (2) the head of government is a prime minister responsible to the legislature. Within this single type of government, however, she identifies three distinct sub-types: (1) consolidated majority government (in which the prime minister has a legislative majority, and the president is from this majority); (2) divided majority government (in which the prime minister has a legislative majority, but the president is from a party in opposition); and (3) divided minority government (in which neither the prime minister nor the president has a legislative majority).
Semi-presidential regimes of all three sub-types are potentially unstable, Skach suggests, because they allow for two executives (a president and a prime minister). Because the precise division of powers between the two executives tends to be unclear, and because the president, unlike the prime minister, is not directly accountable to the legislature, the president has the incentive to act independently. Thus, to the extent that the constitution grants the president emergency powers to be exercised in moments of national crisis, there is significant risk that the president will be tempted to use these to govern independently of the legislature—possibly resulting in constitutional dictatorship.
While semi-presidentialism as a type is generally susceptible to the risk of constitutional dictatorship, Skach argues [*345] that not all subtypes are equally at risk. There is, instead, a spectrum of susceptibility. Consolidated majority governments are the least susceptible to the serious institutional conflicts that might foster severe popular dissatisfaction and thus dictatorship, while divided minority governments are the most susceptible. Institutional conflicts are minimized in a consolidated majority government because the existence of a legislative majority promotes stable governments (thus permitting the government time to address crises) and because a president and a prime minister who are members of the same party or coalition are more likely to cooperate. The risk of institutional conflict is greater in a divided majority government because the president is from an opposition party and thus less likely to work cooperatively with the prime minister. According to Skach, a divided minority government is the most susceptible to institutional conflict, because without a legislative majority, governments are unstable, and the president, faced with legislative immobility, has the maximal incentive to intervene by invoking his emergency powers.
Skach proposes three factors that are likely to determine whether a semi-presidential government takes the form of a consolidated majority or, instead, of either of the two more problematic subtypes. These factors are: (1) whether the party system has been institutionalized; (2) the nature of the electoral system; and (3) whether the president is a “party man.” To the extent that the party system is institutionalized—such that citizens view the system as legitimate, party organization is stable, and patterns of party competition are regularized—the kinds of information needed to bargain and build coalitions is more readily available, and thus legislative majorities are more likely to arise. As concerns the electoral system, Skach suggests that there is a range of factors that contribute to the likelihood of legislative majorities, including the relative timing of presidential and legislative elections and, most importantly, voting rules that are majoritarian, rather than based on proportional representation. Finally, she asserts that a president who is supported by a party, and in turn, supports that party (and the party system generally), is more likely to engage in the kinds of cooperative behavior that promote the building of non-conflictual legislative majorities.
After setting forth her hypothesis, Skach tests it by undertaking two case studies of semi-presidential government: the Weimar Republic (1919-1933) and the French Fifth Republic (from its formation in 1958 through 2002). As concerns the Weimar Republic, she rejects the view of many scholars that the only reason that it survived as long as it did was that it was semi-presidential, rather than purely parliamentary. According to Skach, it was precisely semi-presidentialism that led (or at least contributed greatly) to its downfall. For nearly half of its relatively brief existence, the Weimar Republic had divided minority governments, and for another quarter, divided majority governments. That this was so, she suggests, followed from the fact that (as revealed by a variety of [*346] indicia) the party system was poorly institutionalized, the electoral system was an almost pure form of proportional representation, and the president from 1925 onward (Hindenburg) prided himself on being above (and indeed against) the party system. Thus, the final years of the Weimar Republic were characterized by the increasing instability of its minority governments and great legislative immobility. This, in turn, she argues, encouraged Hindenburg (and his increasingly technocratic cabinet) to step in and act where the Reichstag could not—leading ultimately to the rise of the Nazis and the collapse of the Republic.
As for the French Fifth Republic, Skach asserts that semi-presidentialism has resulted in a much greater strain on institutional stability than is usually acknowledged. Until 1962, France experienced divided minority government, during which there was extensive conflict between President de Gaulle (who then viewed himself as being above the party system) and the prime minister, resulting in significant legislative immobility. This legislative immobility, she suggests, was broken only when, in 1961, during the peak of the Algerian crisis, de Gaulle (illegitimately) opted to use his emergency powers for five months—well beyond the brief four-day period of army insurrection. Thus, Skach claims, it was far from certain in these early years that the Republic would survive. A number of factors, however, thereafter combined to lead to the election of a consolidated majority government in 1962, and to ensure that the Republic would continue to have such governments for most of its existence (and especially during its key formative years). As a result of changing demographic patterns, among other factors, the party system became increasingly institutionalized over the course of the 1960s, and de Gaulle came to support it. In addition, the Fifth Republic, unlike the Weimar Republic, opted for majoritarian electoral formulas. The end result, Skach concludes, was greater stability in government and a decline in conflict, both of which led to a growing faith in the system’s longevity. Significantly, however, she observes, France has experienced a number of divided majority governments since the 1980s, leading to a 2002 revision of the Constitution aimed at promoting consolidated majorities. This, in turn, suggests that even in France, semi-presidentialism is not without its problems.
Based on these findings, Skach persuasively concludes that semi-presidentialism—while very popular in many newly democratizing countries (including Russia and Ukraine)—may be a poor choice. Many of these countries do not have institutionalized party systems, presidential candidates who identify themselves as “party men,” and electoral rules that promote the formation of majorities. Thus, she argues, they are more likely to follow the path of Weimar than that of the Fifth Republic. For those countries that nonetheless adopt a semi-presidential system, she proposes that their constitutional law be structured so as to increase the chances that consolidated majority governments will be formed. [*347] Accordingly, rules prohibiting presidents from being party members should be rejected outright and, to the extent possible, majoritarian electoral formulas should be chosen.
As this brief overview suggests, Skach has produced a compelling and important book. Combining theoretical discussion with sustained historical analysis, BORROWING CONSTITUTIONAL DESIGNS is a well-written and -executed example of the “new institutionalism” that seems to have swept across the social sciences in recent years. And given the extent to which semi-presidentialism has lately been embraced by democratizing countries, her book has very significant real-world implications. Moreover, even aside from Skach’s specific prescriptions regarding semi-presidentialism, the methodology that she has so successfully deployed is in itself quite promising. It suggests how important it is that those who provide advice on constitutional design pay attention to the lessons of history—to the ways that the effects of a particular constitutional framework ultimately hinge on the institutional context (and underlying socio-economic and cultural conditions) in which that framework is deployed.
That said, it is striking that party-system institutionalization—the factor in her model that is perhaps the most contingent on particularities of historical context (and thus the least susceptible to scientific measurement and design)—seems to play such a driving role. According to Skach, the likelihood of consolidated majority government, and thus of avoiding the pitfalls of semi-presidentialism, hinges greatly on such institutionalization—on the extent, in other words, to which the party system has attained a degree of stability and legitimacy. But is it not the case that all types of democratic regime require some minimal level of party-system institutionalization (Mainwaring & Scully, 1995)? And if this is so, then to what extent does Skach’s narrative about Weimar and the Fifth Republic really hinge on the unique features of semi-presidentialism, as opposed to the more universal problem of stabilizing and legitimating the party system?
Moreover, the question of how party systems become institutionalized is one that, as Skach herself admirably recognizes, hinges on “a multitude of socioeconomic and cultural conditions” (p.127). What then is to be done? To the extent that we take seriously the notion that the effects of an institution are ultimately determined by the social and cultural soil in which it is planted, then there is, in my view, no escaping in-depth, historical analysis. Skach does undertake some of this historical work. To give but one example, she emphasizes the important, contingent role that industrialization during the 1950s and 1960s played in mitigating cleavages within the French party system. Skach’s primary focus, however, is on such metrics of party-system institutionalization as electoral volatility and opinion polls. And, while these metrics have the virtues of being easily measured and quantified, they convey a relatively thin portrait of what is, in fact, a far more complex reality. This is, no doubt, however, partly a matter of taste, and in the end, little more [*348] than a quibble with what is an excellent piece of work—one that greatly deserves (and will no doubt enjoy) a wide readership among political scientists, legal scholars, and historians alike.
Mainwaring, Scott, and Timothy R. Scully. 1995. BUILDING DEMOCRATIC INSTITUTIONS: PARTY SYSTEMS IN LATIN AMERICA. Stanford, CA: Stanford University Press.
© Copyright 2006 by the author, Amalia D. Kessler.
Back To LPBR Home