It is worth repeating this at the beginning. Social-liberal constitutional democracy is based on fundamental principles and rules, which are moral and normative in nature and therefore represent a value. We can speak of a social-liberal constitutional democracy as a value, especially if we understand the CONSTITUTION to be structured in three parts. Firstly, as a supreme document that has been drawn up and whose provisions can be amended (modified). Then as a supreme document with provisions that should not be changed if their amendment would destroy the internal structure of the Constitution (and thus the model of social-liberal constitutional democracy – the foundational model of constitutional democracy; see B. Ackerman: We the People 1. Foundations, 1992). And finally, as a set of provisions reflecting fundamental supra-constitutional principles (supra-constitutional: democracy, the rule of law, the social – Welfare – state, right to life, freedom, security, dignity – all concepts that are both concepts and constitutional values in the broadest sense of the term; see Kommers, Currie, and others on the German constitutional order, or Schmitt, Habermas, Breillat, Stone Sweet, and others on the modern constitutionalism). At the same time, we must understand that constitutionality must be exercised at the horizontal and vertical levels of the system (see the drittwirkung and positive obligations of the State doctrine).
From an organizational point of view, Slovenia is a “parliamentary democracy”. Constitutionally, such a definition of Slovenian democracy is only partial. The Slovenian Parliament is the highest representative and legislative body elected in a democratic electoral process, and at the same time, it is also the body responsible for amending the constitution. Slovenia is first and foremost a “parliamentary democracy”. On the other hand, such a definition is constitutionally sparse and somewhat misleading because it represents a false institutional or qualitative emphasis on the essential (theoretical, normative, qualitative) Slovenian model of democracy. However, a lack of institutional or qualitative emphasis in law (similar to that in political science and philosophy) all too often has negative practical consequences.
Social (Welfare) constitutional democracy
Slovenian democracy, as enshrined in the Constitution of the Republic of Slovenia, is first and foremost a “constitutional democracy”. The qualitative and formal emphasis should therefore be on the “constitutionality” of Slovenian democracy and not on its “parliamentarism”. At the same time, it is a welfare constitutional democracy, because the three most important constitutional principles are democracy, the rule of law, and the welfare state.
Slovenian Parliament is not an omnipotent body, but it is also bound by what is written in the Constitution and what necessarily, logically, or meaningfully follows from the provisions of the Constitution, from the highest, even fundamental, constitutional principles and from the sense and spirit of constitutionality. It is also bound by the common European minimum standards for the protection of fundamental human rights and freedoms and by other minimum legal standards laid down by historically established and consolidated international law. Finally, Parliament is also limited and bound by what the modern European constitutional theory understands by the term “new European Constitutionalism.” It is first and foremost a set of highest moral and ethical values that have emerged and consolidated in our civilizing environment (commonly referred to as neo-Kantian values, including the tradition and spirit of the Enlightenment) and that reflect the idea of a functional coexistence of morality, ethics (these two words are not synonymous) and reason (also rationality; these two words are not synonymous either). And all this encompasses the concept of constitutional democracy.
One of the most important ideas of constitutional democracy is the idea of preventing the excessive accumulation of power as institutionalized power in one place and preventing its abuse, arbitrariness, arrogance, self-sufficiency, etc. Apart from the variability and uncertainty of the more or less “wisdom” and, in particular, the will, emotions, and interests of the people, there is a more permanent, rationally recognized, and morally justified, and therefore “legally and politically predictable” character of the basic rules, values, and principles of the political process and legal order. It is therefore extremely important for a democratic social order that its qualitative emphasis on the “parliamentary” emphasis is more often replaced or at least supplemented by a qualitative emphasis on the “constitutional” emphasis.
Democracy and “democratic character” are words that emphasize a certain “content” more than the way society is formally organized and functions. The value. In the phrase “constitutional democracy”, the word “constitutional” is not, as has already been said, merely a “decorative adjective”. It conveys certain values, principles, and rules of content. In fact, a constitutional democracy has become a value in itself. Constitutionality presupposes the existence of values and principles that are considered the highest, also (secular, civil) “sacred” in our civilizing environment. Supreme. Constitutional democracy is conceived as a social order in which the so-called fundamental human rights and freedoms, basic democratic principles, such as the rule of law (understood in terms of content as “rule of law”, not only formally, as the rule “by law” and other legal regulations), the principle of the welfare state, the principle of constitutionality, the principle of separation of powers, etc., are respected. These principles are sovereign – there is nothing above them that is higher and would exceed them. Not in the modern global society, not in our civilizing environment, not secular.
The system would not be democratic simply because decisions are made by all people, or because the present will of the present majority is always respected and fulfilled, or because the principle of popular sovereignty, i.e. the people as not only the original power holder but also as the supreme decision-maker in all social issues, i.e. as sovereign, would be formally determined by the Constitution, or because the legally binding decisions of the authorities would be confirmed in referendums that could affect all issues. On the contrary, more referendums may mean less democracy. And referendums can be unconstitutional so that they can and should be banned on issues that should not be decided in referendums. Especially regarding the fundamental human rights and freedoms and legally protected interests of minorities.
The essence of “democracy” is the constitutional limitation of the “will and supremacy of the majority,” it’s contemporarily will, emotions, passions, aspirations, etc.
The ruling government (governing parliamentary coalition – the Government -, including the parliamentary opposition) must not abuse the institution of the referendum. Abuse occurs when the responsibility for decision making is transferred from the National Assembly to the voters when it should be doing its job responsibly. The same applies if it does so too often, especially if it does so despite very low participation in referenda. Also when the Parliament does it on issues which, because of the difficulty of the subject or the complexity of the issues, are simply not suitable for decision making by all the people (the general public, voters) or interested groups of people (interest groups) or by voters with daily-political, party-political passions. Above all, each time an attempt is made to make decisions that are not in accordance with the Constitution and its content (which are laid down in the Constitutional Courts decisions and explained in more detail in the official Commentary on the Constitution). However, taking decisions in a referendum on rights and freedoms is constitutionally unacceptable. The majority may not decide on the rights of the minority.
The essence of constitutional democracy is not the will of any majority, but the constitutional limitation of that will. That is the essence of constitutional democracy. This is also the essence of the constitutional principle of checks and balances. The protection of the minority from the arbitrariness and supremacy of the majority is the essence of modern constitutional democracy – as content and as value. Therefore, a fundamental characteristic of modern constitutional democracy is not a matter of “trust” (trusting the authorities, rulers), but a matter of “limitation and control.”
Criterion “good enough for all”
Something very different is the so-called “participation of the people without direct decision making” (which reminds us of Habermas and others). This belongs to the so-called deliberative and debatable theories of democracy. In this viewpoint (in its ideal form) all political decisions and legally binding decisions must be well thought out and considered, be based on the power of the best argument (not on the argument of power), reflect good, noble ideas and goals, be for the benefit of all people, be a reflection of a common denominator, which can be “equally good for all” and therefore suitable for “generalization” (or “universalization”). (Note: I have written about this in detail in the monograph Theory of Legitimacy and Modern Constitutionalism, 2014). On the other hand, the government must “desire, want and know how” to listen to the people, their good and well-thought-out proposals, noble ideas, well-founded criticism, etc. Authority is at the service of the people. Conversely, the people are not “useful” or “abusive” objects for the rulers. Constitutional democracy is the rule of the constitution, basic constitutional principles, and a system in which the elected people make decisions at work and for the good of the people. All people (as it is written in the Preamble to the Constitution and its Article 5).
Democracy has both its formal and its material, substantive aspects. Both are equally important. And no aspect should be neglected, pushed aside or subordinated to another. They form a closed circle, a whole.
The social order, the political system, and the legal system are democratic if the decisions taken are in accordance with the highest principles and values mentioned above. The content of these principles and values evolves over time and with the general development of our civilizing environment. Decisions that are democratic in nature and content must be taken in accordance with pre-determined procedures. These procedures are also designed to reflect these principles and values, while at the same time enabling decisions to be taken that embody and implement these principles and values. For example, it is not democratic if every election is not free, universal, and secret, if there are no free media if there is no political pluralism, freedom of expression and of the media, the autonomy of universities and science, etc. These basic principles and concepts must be fully guaranteed and exercised. It is not democratic if a random majority of voters in a referendum adopts or approves a decision that denies fundamental rights or freedoms to a minority. Apart from the form, the external facade, there is nothing truly democratic where the state shifts the responsibility for decision-making onto the shoulders of the citizens or uses referendums to fuel political passions and political divisions, polarize the electorate, create conflicts, strife, hatred, internal divisions of the Nation, conflicts, contradictions, struggles between different social groups, etc. And there is very little democracy in the fact that certain organized groups of people use referendums as a tool to impose on the state decisions that they like (so-called neo-corporatism). So in these cases, democracy either remains a mere written political promise, or does not go beyond its formal aspects, or is subject to abuse. It is the content of actions and decisions that makes a formally declared democracy truly democratic.
Constitutional democracy therefore always depends on the people who live in it and who live it, on their character, their values, their culture, not least honesty, morality, ethics, and conscience. It depends above all on those individuals and groups who form the democratic elite with the levers and mechanisms of power and decision-making in their hands. Its negative qualities and shortcomings may not be attributed by people to the character of necessity and inevitability, but it is necessary and inevitable that it reflects the qualities of the people who choose democracy.
Basic normative values of modern constitutional democracy
The Slovenian model of constitutional democracy is a democracy of fundamental human and constitutional rights and freedoms and of fundamental constitutional principles. In order to understand it, it is not enough just to think something about it. It is necessary to know how to think about it and to try thinking about it. Thinking is based on knowledge, good information, and intellect – generally and emotionally. On empathy, solidarity, thoughts, and care for other people, for the Other. Finally, it is a matter of respect – respecting each other and the Other. The prerequisite for this is self-respect. Which in turn is something quite different from self-love. Thus “arrogance” is something completely different from “vanity” and the opposite of discouragement (according to Aristotle).
Above all, constitutional democracy, where FREEDOM and DIGNITY granted to everyone are and must be fundamental obligations, values, goals …, is not compatible with any form of violence: physical, psychological, and/or systemic. This last form of violence against people (which e.g. prof. Žižek refers to so often) is the most frequent, least perceptible, hidden, grounded, implicit, and too often unnoticed. And resistance to systemic violence is the most difficult, exhausting, all too often the most brutal, risky, and dangerous thing one can do – for the individual.
The optimal quality of the social constitutional democracy of fundamental rights and freedoms (foundational constitutional democracy) depends above all (from which I do not deviate) on the fact that NO INDIVIDUAL is forced or left to LIVE IN POVERTY!
And people in such a democracy also have a basic human RIGHT to the PROTECTION GAINST FEAR!
All of this has not gone well enough for us as a nation for far too long. We seem to be getting worse. And that is a cause for great concern. Especially in the living times after the official 2020 Coronavirus Covid-19 pandemic.
It is unsure and fogy what awaits us in the nearest future. But it is becoming quite obvious that the minimum standards for the protection of fundamental rights and freedoms that have already been won and established will have to be fought for again.