The Sociology of (Slovenian) Constitutional Democracy

Abstract

This article puts in the centre the increasingly notable discrepancy between constitutional democracy as a form and its actual practice in Central Europe, with a particular focus on Slovenia. It does so by following Martin Krygier who has long insisted with regard to the rule of law that “we would do well to explore […] the sociology of the rule of law.” As he has noted, “this is a social science that does not quite yet exist”. As a result, especially lawyers have satisfied themselves with studying the rule of law in conceptual terms, limiting themselves to drawing a laundry list of formal requirements that an ideal concept of the rule of law should meet here and there, indeed everywhere. What has been too often neglected, however, by academics and institutional actors alike, is a social dimension of the rule of law. The formal legal-institutional architecture of the rule of law has too often ignored the broader social context, wherein, rather than in the legal institutions themselves, lies “a great deal that matters most to whether law can rule.” The same conclusion as to the rule of law can be applied to a wider notion of constitutional democracy. Lest we are left with a partial, superficial or even flawed understanding of the concept, our focus must be centred on the constitutive social considerations of constitutional democracy. The latter’s sociological dimension shall not remain outside legal theory, as it has been too often the case so far. To prevent that this article explores the following question: what is it in the Central European societies, such as Hungary, Poland and Slovenia, that inhibits the formal infrastructure of constitutional democracy to deliver its intended effects in practice? In pursuit of the answers, the article will be broken down into three parts. First, we are going to explain the concept of constitutional democracy as it has developed both in the Slovenian constitutional practice and in theory. Having passed the conceptual threshold, the next part will outline the main elements of the sociology of constitutional democracy, as applied to the Slovenian case. Of course, due to the space constraints the discussion will be necessarily schematic and will be used to respond to the main research question of this article, which boils to the identification of the main social factors that hinder the actual emergence of constitutional democracy in Slovenia. Finally, the article will close down with some normative proposals for improving the state of constitutional democracy in Central Europe in the not so distant future.

Keywords: constitutional democracy, crisis, sociology, rule of law, homo sovieticus