The Venice Commission’s “new democracies” and the mental map of European constitutionalism

Edinburgh Centre for Constitutional Law Seminar

About this event
The Venice Commission is known to differentiate its constitutional advice depending on whether a state is considered a ‘new’ or an ‘established’ democracy. This has become an increasingly frequent point of contention raised with particular glee by the supporters of PiS’ judicial reforms attempting to discredit the Commission’s criticisms as an example of ‘double standards’. To the extent that the differentiation has become a rhetorical boon for abusive constitutionalists in Central and Eastern Europe, it deserves our attention. This article traces the origin and extent of the distinction between new and established democracies in the Venice Commission’s work. Its origins lie in the Commission’s conception of ‘European constitutional heritage’, which confines the sources of that heritage to states with an established democratic tradition. The result is a mental map of European constitutionalism that draws sharp contrasts between ‘core’ states with and ‘peripheral’ states without such traditions, as well as contingent institutional development and rational institutional design, and runs the risk of leaving little space for further gradation and nuance. Furthermore, the extent to which a ‘lack of constitutional traditions’ can be remedied through law and institutions is questionable. Consequently, I will question whether the distinction deserves the centrality in the Venice Commission’s constitutional advice which it has so far enjoyed.

About the speaker
Julian Scholtes (University of Glasgow)

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