Informal Institutional Elements as Both Preconditions and Consequences of Effective Formal Legal Rules: The Failure of Constitutional Institution Building in Hungary

2021 ◽  
Author(s):  
András Jakab
Keyword(s):  
Public Discourse ◽  
Political Action ◽  
External Pressure ◽  
Political Community ◽  
The Political ◽  
Institution Building ◽  
The European Union ◽  
The Law ◽  
The Individual ◽  
Formal Rules

Abstract Institutions are made up of the interplay of three components: (i) formal rules, (ii) actual practices, and (iii) narratives (the last two are referred to jointly as informal institutional elements). However, lawyers in post-socialist countries do not see law through institutionalist lenses, but often nurture a false and simplistic idea of the law: they consider it to be the sum of rules, often disregarding the actual practices of the rules’ addressees and the narratives attached to the law (encompassing everything from the raison d’être and goal of the institution, its symbolism, the public discourse surrounding it, to social attitudes toward the institution). This restricted view makes Hungarian lawyers blind and to a certain extent also defenceless against recent authoritarian tendencies. Institution building has been a moderately successful feat in Hungary. To put it more pessimistically, it has partially failed since the end of socialism, in particular when it comes to actual practices and narratives. In the Hungarian context, consideration of the problems of institution building suggests two general conclusions: on the one hand, the lack of unison among the individual elements (rules, practices, narratives) renders institutions less stable and consequently less capable of inducing compliance with the law; on the other, the institutions that have been established have failed to deliver prosperity to the political community. This Article describes the constitution making of 2010–2011 from the perspective of institution building. This institutionalist view of the law yields two main specific findings: First, historical experience shows that in addition to honest determination, a swift, radical institutional overhaul of a complete legal system can only be sustainable in the presence of an external pressure, the effect of which has unfortunately decreased with Hungary’s accession to the European Union. That is, institution building should go hand in hand with effective international and EU obligations undertaken in more sober political moments to guarantee that the political community will not later enter into a self-destructive mode. Second, if they took more consciously into account elements beyond mere rules, such as actual practices and narratives in the realm of legislation, the application of the law and legal training would ideally result in the gradual reinforcement of substantive cultural elements. This, however, requires political action, more precisely the adjustment of formal rules. Since this is not in the interest of the incumbent decision makers, overcoming the impasse seems unlikely for the time being.

scholarly journals El fracaso en Hungría del fortalecimiento institucional constitucional: los elementos institucionales informales como precondiciones y como consecuencias de la eficacia formal de las normas jurídicas

2019 ◽  
pp. 161
Author(s):  
András Jakab
Keyword(s):  
Public Discourse ◽  
Political Action ◽  
External Pressure ◽  
Political Community ◽  
The Political ◽  
Institution Building ◽  
Cultural Elements ◽  
The Law ◽  
The Individual ◽  
Formal Rules

Las instituciones se elaboran como la interacción, de los siguientes tres componentes: reglas formales, practicas reales y narrativas (los dos últimos, las prácticas y las narrativas, se configuran conjuntamente como los «elementos informales»). Sin embargo, los juristas en los estados postsocialistas no ven la ley a través de la lente institucional, y a menudo alimentan una idea falsa y simplista de la ley: en tanto que la consideran como la suma de reglas, normalmente disociadas de su práctica real, de las normas y de las narrativas adjuntas (acompasando todo desde la razón de ser y la finalidad de la institución, su simbolismo, el discurso público que las rodea y las actitudes sociales respecto de la institución). Esta visión restrictiva hace a los juristas húngaros ciegos y en ciertas situaciones los deja indefensos ante las actuales tendencias totalitarias. El fortalecimiento institucional ha alcanzado un logro moderado en Hungría. Por decirlo de forma más pesimista, ha fallado parcialmente desde el fin del socialismo, particularmente en relación con las actuales prácticas y narrativas. En el contexto húngaro, las consideraciones sobre los problemas del fortalecimiento institucional sugieren dos conclusiones generales: de una parte, la falta de coherencia entre los elementos individuales (normas, prácticas y narrativas) conduce a unas instituciones menos estables y consecuentemente menos capaces de inducir a la observancia del Derecho; de otra parte, las instituciones que se han establecido han fallado en la tarea de brindar prosperidad a la comunidad política. Este trabajo describe la elaboración de la Constitución del 2010/2011 desde la perspectiva del fortalecimiento institucional. Esta aproximación institucionalista de carácter general ofrece dos conclusiones: (1) La experiencia histórica muestra que, más allá de una honesta determinación, una reforma institucional radical de todo el sistema jurídico legal solo puede tener éxito si existe presión internacional que, lamentablemente en este caso, ha disminuido desde la entrada Hungría en la Unión Europea. Esto es, el fortalecimiento institucional debe ir de la mano de las obligaciones tanto de la Unión Europea como internacionales, que han sido adoptadas en los momentos políticos más solemnes, a fin de garantizar que la comunidad política no pueda entrar posteriormente en un modo autodestructivo. (2) Es preciso tener en cuenta y de forma consciente aquellos elementos que están más allá de las reglas formales —como son las prácticas reales y las narrativas— tanto en el ámbito de la legislación, como en de la aplicación del Derecho o en el de la formación jurídica, ello dará como resultado un fortalecimiento paulatino de los elementos culturales sustantivos necesarios para el Estado de Derecho y la democracia. Esto requiere, sin embargo, de una acción política, más concretamente del ajuste de las reglas formales. En tanto que esto no forme parte del interés de los legisladores a quienes esta tarea incumbe, será poco probable superar el punto muerto en que nos encontramos.Institutions are made up of the interplay of three components: (1) formal rules, (2) actual practices and (3) narratives (the two latter ones are referred to jointly as informal institutional elements). However, lawyers in post-socialist countries do not see law through institutionalist lenses, but often nurture a false and simplistic idea of the law: they consider it to be the sum of rules, often disregarding the actual practices of the rules’ addressees and narratives attached to the law (encompassing everything from the raison d’etre and goal of the institution, its symbolism, the public discourse surrounding it, and social attitudes towards the institution). This restricted view makes Hungarian lawyers blind and to a certain extent also defenceless against recent authoritarian tendencies. Institution-building has been a moderately successful feat in Hungary. To put it more pessimistically, it has partially failed since the end of socialism, in particular when it comes to actual practices and narratives. In the Hungarian context, consideration of the problems of institution- building suggests two general conclusions: on the one hand, the lack of unison among the individual elements (rules, practices, narratives) renders institutions less stable and consequently less capable of inducing compliance with the law; on the other, the institutions that have been established have failed to deliver prosperityto the political community. This paper describes the constitution-making of 2010/11 from the perspective of institution-building. This institutionalist view of the law yields two main specific findings: (1) Historical experience shows that besides honest determination, the radical institutional overhaul of a complete legal system can only be successful in the presence of external pressure, the effect of which has unfortunately decreased with Hungary’s accession to the EU. That is, institution-building should go hand-in-hand with effective international and EU obligations undertaken in more sober political moments to guarantee that the political community will not later enter into a self-destructive mode. (2) Taking elements beyond mere rules more consciously into account, such as actual practices and narratives in the realm of legislation, the application of the law and legal training would ideally result in the gradual reinforcement of substantive cultural elements. This, however, requires political action, more precisely the adjustment of formal rules. Since this is not in the interest of the incumbent decision-makers, overcoming the impasse seems unlikely for the time being.

scholarly journals The Nineties: Establishment of Polity

2021 ◽  
Vol 102 (3) ◽  
pp. 40-71
Author(s):  
S. I. Kaspe
Keyword(s):  
Public Discourse ◽  
Political Action ◽  
Radical Change ◽  
Political Community ◽  
Political Order ◽  
Stable Set ◽  
The Political ◽  
Freedom Of Association ◽  
The Status ◽  
Territorial Organization

In the 1990s, after the collapse of the USSR, was established the Russian polity, which continues to exist to this day. In this paper polity is understood as a macro-social community, united by a certain political order i.e., by a stable set of institutions and actors, as well as normative standards for organizing their interactions, both formal and informal. Establishment is understood as a series of events that establish these most fundamental frameworks for political action, as well as a repertoire of its scenarios, behavioral stereotypes, strategies, and tactics. The negative myth about the nineties, which has dominated the Russian public discourse in the recent years, describes the 1990s as a time of catastrophe and degradation. It certainly has its reasons, but this myth almost completely ignores the fact that the same decade was also a time of creation. Thus, the current state of Russia cannot be understood without paying attention to the circumstances of its establishment. The article describes some of the key features of the modern Russian polity that emerged in the 1990s — the “main takeaway” of the constituent era. They are the following: the electoral legitimacy of the supreme political power; non-partisan presidency; capitalism as the economic foundation of the political order; federalism as a principle of territorial organization of political space; freedom of association; freedom of religion; open borders. This list is not exhaustive: there are other elements of the design of the Russian polity that can claim the status of constitutive ones. However, a radical change in all these institutions together or in any one of them individually would mean another re-establishment of the political community as a whole.

Conclusion—Rousseau’s paradox

2003 ◽  
Author(s):  
Duncan Kelly
Keyword(s):  
Political Thought ◽  
Political Community ◽  
The Political ◽  
History Of Political Thought ◽  
Social Democrat ◽  
The Social ◽  
Adequate Understanding ◽  
History Of ◽  
The Individual ◽  
The Relationship

This chapter binds the book together, recapitulating its general argument, and offering pointers as to how the study relates to some contemporary questions of political theory. It suggests that a classification that distinguishes between Weber the ‘liberal’, Schmitt the ‘conservative’ and Neumann the ‘social democrat’, cannot provide an adequate understanding of this episode in the history of political thought. Nor indeed can it do so for other periods. In this book, one part of the development of their ideas has focused on the relationship between state and politics. By learning from their examples, people continue their own search for an acceptable balance between the freedom of the individual and the claims of the political community.

From Liberties to Liberty

2020 ◽  
pp. 105-130
Author(s):  
Charlotte Epstein
Keyword(s):  
Seventeenth Century ◽  
Common Law ◽  
The State ◽  
Natural Rights ◽  
The Political ◽  
Habeas Corpus ◽  
House Church ◽  
The Law ◽  
The Individual ◽  
Individual Body

This chapter studies how liberty in the law evolved from being attached to a collective, metaphorical body—the medieval corporation—to being rooted instead in the individual body across a range of practices in seventeenth century Europe. It analyses the early modern forms of toleration that developed from the ground-up in Protestant Europe (Holland and Germany in particular), including the practices of ‘walking out’ (auslauf) to worship one’s God, and the house church (schuilkerk). These practices were key to delinking liberty from place, and thus to paving the way to attaching it instead to territory and the state. The chapter also considers the first common law of naturalisation, known as Calvin’s Case (1608), which wrote into the law the process of becoming an English subject—of subjection. This law decisively rooted the state-subject relation in the bodies of monarch and subject coextensively. Both of these bodies were deeply implicated in the process of territorialisation that begat the modern state in seventeenth-century England, and in shifting the political bond from local authorities to the sovereign. The chapter then examines the corporeal processes underwriting the centralisation of authority, and shows how the subject’s body also became—via an increasingly important habeas corpus—the centre point of the legal revolution that yielded the natural rights of the modern political subject. Edward Coke plays a central role in the chapter.

scholarly journals The Indian Republic as Governance Guru to the European Union: Does the Subcontinent Offer the Continent a Model for Managing Diversity?

2016 ◽  
Author(s):  
Malcolm MacLaren
Keyword(s):  
Political Community ◽  
The Political ◽  
The European Union ◽  
Constitutional Treaty ◽  
Post Colonial ◽  
Political Actors ◽  
Colonial India ◽  
Managing Diversity ◽  
Unity In Diversity ◽  
The Common

The development and working of governance in post-colonial India provides insights into and lessons for the actual European project of integration. The Republic’s founders coined the slogan ‘unity in diversity’, and their creation has enjoyed considerable (unexpected) success in managing linguistic, religious, ethnic, and territorial diversities. In contrast, the Union’s leaders are still struggling to constitute a political community, as the failure of the draft constitutional treaty made clear.Considering wider dimensions of managing cultural diversity, the paper follows the thesis that in political integration projects, law matters and politics does too, but that the political culture prevailing matters most. The success (or failure) of such attempts is ultimately determined not by the framework rules, institutions, and procedures but by the common (or divergent) values, attitudes, and goals of the political actors involved.

Comedy in Callipolis: Animal Imagery in the Republic

1978 ◽  
Vol 72 (3) ◽  
pp. 888-901 ◽  
Author(s):  
Arlene W. Saxonhouse
Keyword(s):  
Social Life ◽  
Political Community ◽  
The Political ◽  
Political Society ◽  
Animal Imagery ◽  
Animal Images ◽  
The Republic ◽  
The Individual ◽  
The City ◽  
The Ideal

The political society founded by Socrates in the Republic has been seen by many as Plato's conception of the ideal political community, his Callipolis. However, a study of the language used by Socrates as he builds his perfect city reveals an unusually heavy concentration of animal images. This language seems to undercut the ostensible perfection of Socrates' city and illustrates rather its connections to the comic world of Aristophanes, whose comedy the Birds offers the model according to which the Republic is built. It is suggested that the city of the Republic is comic and ugly, indicating the limitations of politics rather than its potentialities. The Republic argues for the need to reorient the concept of justice away from social life and towards the individual. Ultimately, the Republic suggests that the notion of social justice is laughable and fit for the comic Stage.

Public and Private Citizenship: From Gender Invisibility to Feminist Inclusiveness

1998 ◽  
Vol 60 (1) ◽  
pp. 84-104 ◽  
Author(s):  
Raia Prokhovnik
Keyword(s):  
Political Participation ◽  
Specific Activity ◽  
Political Community ◽  
The Political ◽  
Public Realm ◽  
Social Citizenship ◽  
Public And Private ◽  
The Public ◽  
Private Realm ◽  
The Individual

Conceptions of citizenship which rest on an abstract and universal notion of the individual founder on their inability to recognize the political relevance of gender. Such conceptions, because their ‘gender-neutrality’ has the effect of excluding women, are not helpful to the project of promoting the full citizenship of women. The question of citizenship is often reduced to either political citizenship, in terms of an instrumental notion of political participation, or social citizenship, in terms of an instrumental notion of economic (in)dependence. The paper argues for the recognition of citizenship as gendered, and as an ethical, that is non-instrumental, social status which is distinct from both political participation and economic (in)dependence. What unites us as citizens, in our equal membership of the political community, need not rely on a conception of us as ‘neutral’ (abstract, universalized, genderless) individuals undertaking one specific activity located in the public realm, but can take account of the diverse ways in which we engage in ethically-grounded activities on the basis of our different genders, ethnic and cultural backgrounds and other differences, in both the public and private realms. A convincing feminist conception of citizenship necessarily involves a radical redefinition of the public/private distinction to accommodate the recognition of citizenship practices in the private realm. The paper builds on the observation that the concept of ‘citizenship’ is broader than the concept of ‘the political’ (or ‘the social/economic’), and contends that feminism provides us with the emancipatory potential of gendered subjectivity, which applies to both men and women. The recognition of gendered subjectivity opens the way to the recognition of the diversity of citizenship practices. It is not that women need to be liberated from the private realm, in order to take part in the public realm as equal citizens, but that women – and men – already undertake responsibilities of citizenship in both the public and the private realms.

Collusion and convergence in 18th‐century English political action

1966 ◽  
Vol 1 (4) ◽  
pp. 511-528 ◽  
Author(s):  
George Rudé
Keyword(s):  
Interest Groups ◽  
Political Action ◽  
18Th Century ◽  
Social Protest ◽  
The Political ◽  
Leaders And Followers ◽  
The Individual ◽  
Parliamentary Politics ◽  
The Way

It is now more than thirty-five years since Sir Lewis Namier gave his famous shot in the arm to the study of the parliamentary politics of the 18th century. Under his impact, the great Tory and Whig monoliths have been effectively dethroned and their places taken by ‘connections’ and ‘groups’, by ‘ins’ and ‘outs’ – and among the ‘outs’ the ‘loyal’, or sometimes ‘factious’, opposition. But Namier's preoccupations, and the enthusiasm they inspired, far from stimulating research into the whole field of political action, have rather had the effect of confining its operation to Parliament alone. Hence, the unofficial opposition – that of the ‘political nation’ without-doors – has tended to be neglected. Yet, in this more spontaneous, unofficial opposition from ‘without doors’, it is instructive to see the way in which different actions, starting in different quarters of the community converge for more or less brief periods and exert a common pressure. Anomic and associational movements, social protest and political demands, well-organized and clear-sighted interest groups and ‘directaction’ crowds, leaders and followers come together in a chorus of united opposition, in which, however, the individual parts can still be distinguished and identified.

THE EASTERN PARTNERSHIP PROGRAM IN THE POST-COVID PERIOD. KEY FEATURES AND FUTURE PROSPECTS

2021 ◽  
pp. 28-37
Author(s):  
Boris P. Guseletov ◽  
◽  
Keyword(s):  
European Union ◽  
Economic Consequences ◽  
The Political ◽  
The European Union ◽  
Future Prospects ◽  
Eastern Partnership ◽  
The Social ◽  
The Individual ◽  
Partnership Program ◽  
The Eu

The article is dedicated to the analysis of the European Union’s Eastern Partnership program in the post-COVID period. It considers the main features of that program in modern conditions and further prospects for its de- velopment, taking into account the consequences of the COVID-19 pandemic for the European Union and the countries participating in this program. The author analyzes the EU leadership attitude to the individual participants of the program and identifies priorities in relation to the various countries represen- ted in it. To overcome the social and economic consequences of the COVID-19 pandemic, the European Commission decided to provide financial assistance to the participating countries, but the amount of the assistance for individual countries depended on the state of relations between the European Union and the leadership of those countries. It is proved in the article that the European Union currently has the most favorable relations with three countries parti- cipating in the program: Georgia, Moldova and Ukraine, which have openly declared a policy of rapprochement with the European Union in the political and economic fields. The author outlines positions of all the countries and their expectations of participating in the program in the nearest future as well as in the longer term.

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