Post-socialist “illiberal democracies”: do de jure constitutional rights matter?

Abstract

Are de jure constitutional rules significant for constitutional practice? We pose this question with regard to de jure and de facto protection of constitutional rights in post-socialist countries of Europe and Asia. While, after 1989, these countries enacted broad catalogues of rights and freedoms, they are by now often regarded as electoral, not liberal democracies, i.e. they generally allow for political competition and fair elections but witness considerable violations in civil and minority rights. We use various econometric techniques to determine whether, and under what conditions, de jure rights originating from texts of post-socialist constitutions matter for de facto protection of rights in these countries. Our results reveal no such significant unconditional effect, with the exception of freedom of assembly/association. We do, however, find a positive significant effect conditional on judicial independence, democratization level, and robustness of civil society. The conclusions allow to propose guidelines for post-socialist legislators and bring a contribution to the broader debate on the role of de jure constitutional rules for their de facto equivalents, which has so far been essentially inconclusive.

Post‐socialist constitutions: The de jure–de facto gap, its effects and determinantsa

“…Some authors search for factors explaining both types of rules, others are interested in determining whether text matters for de facto operation of constitutional rules (see, e.g. Chilton & Versteeg, 2016, 2020; Metelska‐Szaniawska & Lewkowicz, 2020). The gap itself however—its potential effects and determinants—has not been subject to detailed analysis.…”

Academic freedom, institutions, and productivity

“…13 13 Making a distinction between de jure and de facto institutions is in accordance with an established literature—see, for example, Foldvari (2017), Hayo and Voigt (2019) and Metelska‐Szaniawska and Lewkowicz (2021)—where a de jure institution is a rule that is legally coded and where a de facto institution is a social rule, typically a convention. The two may overlap perfectly, in which the social rule is identical to the legal rule; but they may also differ quite a bit, not least if enforcement is lax. …”

Constitutional overperformance: an empirical study of de facto protection of rights with no de jure equivalents

“…More and more literature aiming to identify the factors explaining both types of rules has also emerged, including studies interested in finding whether the text of constitutions matters for de facto operation of constitutional rules (e.g. Elkins et al, 2013;Melton, 2013;Metelska-Szaniawska and Lewkowicz, 2021). The de jure-de facto gap, its potential effects and determinants, have also recently received some attention (e.g.…”