Political Parties in Constitutional Theory

42 Pages Posted: 11 Dec 2019 Last revised: 18 Feb 2020

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Melbourne - Law School; University of Oxford - Faculty of Law; NYU Law School; Berkeley Center on Comparative Equality Law

Date Written: November 24, 2019

Abstract

In this paper, I first provide an idealized functional account of political parties. Here, I argue that parties are difficult to regulate constitutionally because of their Janus-faced public-private character. The key function they perform, when functioning as they ought to function, is to facilitate a mutually responsive relationship between public policy and popular opinion by acting as an intermediary between a state and its people. When they perform this function effectively, political parties significantly reduce four key information and transaction costs which would otherwise make democratic governance impossible.

I then argue, in Section 3, that democratic states should respect and optimize four distinct, and sometimes conflicting, political principles in relation to political parties:
i. They should support political parties to function as efficient intermediaries between the state and its people (the ‘party support principle’);
ii. They should encourage the total number of serious political parties to be large enough to broadly represent every major (non-factional) ‘voter type’, but not so large that the information costs on judicious voters is too high (the ‘party optimality principle’);
iii. They should ensure a separation of parties and the state (the ‘party-state separation principle’); and,
iv. They should discourage the factionalization of political parties (the ‘anti-faction principle’).

These political principles are drawn from the value of democracy itself. They are likely to bring real world political parties closer to their idealised form, thereby improving and deepening democratic governance.

In Section 4, I propose some design solutions preferred by these principles in relation to the fundamental freedoms of political parties, the separation of the partisan and non-partisan state, opposition rights, electoral systems, and campaign finance. I remain open to the possibility that even if we accept the aforementioned principles as legitimate, no design formula can do them justice and, in some contexts, may even be counterproductive. Having said that, it is also important to remember that constitutional silence on parties is as much a regulatory choice as any other, and also carries the risks of unintended consequences. In other words, constitutions—as the chief organizational tool for public power in democracies—simply do not have the option of remaining agnostic about the nature and functioning of political parties, which are the primary wielders of public power in most democracies. The question is not so much whether to regulate parties, but why and how. I further note that the preferred solutions outlined in this section may not be found desirable after an all-things-considered judgment is made about them in particular contexts, and in light of all the other principles, values, histories, and path dependencies that constitution framers normally have to contend with.

Keywords: Political Parties, Constitutional Theory, Factions, Democratic Theory, Electoral Voting System, First Past the Post, Proportional Representation, Party Funding, Party Discipline, Political Participation, Freedom of Association

Suggested Citation

Khaitan, Tarunabh, Political Parties in Constitutional Theory (November 24, 2019). Available at SSRN: https://ssrn.com/abstract=3492467 or http://dx.doi.org/10.2139/ssrn.3492467

Tarunabh Khaitan (Contact Author)

University of Melbourne - Law School ( email )

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University of Oxford - Faculty of Law ( email )

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NYU Law School ( email )

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Berkeley Center on Comparative Equality Law

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