Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic [Course Book ed.] 9781400832620

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Borrowing Constitutional Designs

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Borrowing Constitutional Designs CONSTITUTIONAL LAW IN WEIMAR GERMANY AND THE FRENCH FIFTH REPUBLIC

Cindy Skach

PRINCETON UNIVERSITY PRESS PRINCETON AND OXFORD

Copyright © 2005 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 In the United Kingdom: Princeton University Press, 3 Market Place, Woodstock, Oxfordshire OX20 1SY All Rights Reserved Library of Congress Cataloging-in-Publication Data Skach, Cindy Borrowing constitutional designs : constitutional law in Weimar Germany and the French Fifth Republic / Cindy Skach. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-691-12345-5 (cl: alk. paper) ISBN-10: 0-691-12345-4 (cl : alk. paper) 1. Executive power. 2. Democracy. 3. Constitutional history. 4. Democracy—Germany—History. 5. Democracy—France—History. I. Title. JF251.S53 2006 320.943'09'042——dc22

2005043019

British Library Cataloging-in-Publication Data is available This book has been composed in Sabon Printed on acid-free paper. ∞ pup.princeton.edu Printed in the United States of America 10 9 8 7 6 5 4 3 2 1

For Jens

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Contents

Tables and Figures

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Preface

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INTRODUCTION

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CHAPTER 1 Constitutional Frameworks and Constitutional Law

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CHAPTER 2 Parties, Leaders, and Constitutional Law in Ebert’s Republic

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CHAPTER 3 Divided Minorities and Constitutional Dictatorship in Weimar Germany

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CHAPTER 4 Parties, Leaders, and Constitutional Law in de Gaulle’s Republic

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CHAPTER 5 Consolidated Majorities and Constitutional Democracy in the French Fifth Republic

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CONCLUSION

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Bibliography

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Index

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Tables and Figures

TABLES 2.1 PR Influence on the “Effective” Number of Political Parties in the Reichstag (1920–1930)

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3.1 Semi-presidential Subtypes in the Weimar Republic

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4.1 Majority Influence on the “Effective” Number of Parties in the French National Assembly (1958–1967)

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5.1 Semi-presidential Subtypes in the French Fifth Republic

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FIGURES 1.1 Semi-presidentialism’s Electorally Generated Subtypes

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1.2 The Dynamics of Constitutional Subtypes

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2.1 The Weimar Republic in the Subtypes of Semi-presidentialism (Days)

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2.2 Cleavages in Weimar’s Party System

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2.3 Seats-Votes Relation in the Weimar Republic

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2.4 Party Distribution of Ebert’s Cabinets, 1919–1925

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2.5 Comparative Party Distribution of Cabinets, Ebert versus Hindenburg

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3.1 The Causal Mechanisms of Divided Minority Governments in Weimar

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4.1 The French Fifth Republic in the Subtypes of Semi-presidentialism (Days)

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4.2. Self-Identification of the French Electorate, December 1962

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4.3 Comparative Electoral Volatility in Democratizing Countries

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4.4 Comparative Electoral Volatility in Postwar Europe (1960s–1980s)

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4.5 Electoral System Bias in the French Fifth Republic

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4.6 UNR Cabinet Members under de Gaulle’s Governments C.1 Semi-presidentialism’s Subtypes: The French Fifth Republic and the Weimar Republic Compared

89 123

Preface

THIS BOOK GREW OUT of a project that was first conceived at Columbia University, thought out and researched at the University of Heidelberg, defended at the University of Oxford, rethought again at Columbia, and finally revised at Harvard University. I am grateful for the many, sometimes contradictory, influences these varied academic atmospheres have had on my work. In navigating the winding path, Alfred Stepan’s devoted instruction and encouragement have been invaluable. I am also grateful to the many individuals who offered constructive criticisms of the material and fruitful discussions along the way, especially Giovanni Sartori and Louis Henkin, at the very beginning, and Stanley Hoffman, at the very end. I sincerely thank David Blackbourn, Archie Brown, David Collier, Tim Colton, Trisha Craig, Jorge Dominguez, Grzegorz Ekiert, Tom Ertman, Anna Grzymala-Busse, Peter Hall, Sam Huntington, Robert Kaufman, Michael Laver, Jonah Levy, Nancy Leys Stepan, Juan Linz, S. Neil MacFarlane, Ben Margo, Jens Meierhenrich, Hans Mommsen, Andy Moravcsik, Roger Myerson, Pasquale Pasquino, Liz Perry, Paul Pierson, Anne Sa’adah, Ken Shepsle, Jack Snyder, Ezra Suleiman, and Anton Troianovski. At Princeton University Press, I am indebted to Chuck Myers and Terri O’Prey for their enthusiastic and expert guidance. I also thank Paul Olchvary, Jennifer Nippins, Marsha A. Kunin, and Carolyn Sherayko for their support with the production and design of the book. Any remaining errors in the book, of course, remain my own. I am indebted to those who provided financial support over the years. The Department of Political Science and the Graduate School of Arts and Sciences at Columbia University generously provided me with a President’s Fellowship from 1991 to 1996, which funded part of my research in France. A scholarship from the Fulbright Commission and the Deutscher Akademischer Austauschdienst funded fieldwork in Heidelberg during 1993 and 1994. In Germany, I thank Christa and Friedel Meierhenrich, and Helene Brokmann, who generously and patiently shared their home and family with me during a crucial stage of my writing. Also in Germany, Dieter Nohlen and colleagues at the Institut fu¨r Politische Wissenschaft of the University of Heidelberg welcomed me into their research team. I owe particular thanks to Catarina Clemente, Martin and Luca Lauga, Bernhard Thibault, and Carmen Toma´s y Valiente. A conference at the Max-Weber-Kolleg in Erfurt in August 1999, sponsored by the Wissenschaftskolleg zu Berlin, the Social Science Research Council, and the German American Academic Council, provided an excellent

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forum for me to present my research. I would like to thank the members of this conference, particularly Wolfgang Schluchter, Peter E. Quint, M. Rainer Lepsius, and Klaus von Beyme, for their constructive discussions of my work. In Paris, numerous scholars and practitioners took time during a particularly busy period in French politics to meet with me. Ezra N. Suleiman and Jean-Luc Parodi deserve very special thanks. The kind and knowledgeable staff at l’Insitut Charles de Gaulle provided guidance, documents, and a quiet space to work. A constant source of critical support, in Paris and beyond, has been Sidonie Mehler. Archie Brown welcomed me to St Antony’s College at Oxford and set me to thinking about postcommunist constitutional development. I could not have asked for a more supportive mentor on this important subject. A postdoctoral fellowship at the Harriman Institute, Columbia University, enabled me to rethink the manuscript and carve out a future research agenda on constitutions in postcommunism. Robert Legvold, Steven Solnick, and Mark von Hagen were particularly supportive. A fortunate collaboration with Tim Colton at Harvard further advanced my understanding of constitutional development in postcommunist societies. At the Kellogg School of Management, Daniel Diermeier and the Department of Managerial Economics and Decision Sciences provided a stimulating environment in which to complete a penultimate draft of the manuscript. My colleagues and the staff at the Minda de Gunzburg Center for European Studies at Harvard provided a congenial atmosphere for final revisions. In 2001, parts of the manuscript were presented to members of the Merriam Laboratory for Analytic Political Research at the University of Illinois at Urbana-Champaign. I thank participants in this seminar, and particularly Robert Muncaster, Dina Zinnes, Henry Brady, Brian Gaines, and Doug Stinnett, for a stimulating engagement of my work. My academic aspirations would not have been possible without the unconditional love and encouragement of my mother, Josephine Skach, and my late father, Frank C. Skach. My parents unselfishly provided me with the means to study. My brothers, Pat, Frank, and John Skach, provided excellent humor and helped me to keep perspective throughout. Many friends also helped in numerous ways. I would particularly like to thank Alexandre Carin, Miche`le and Jerry Cohen, the late Peggy Freund, Carol Fuhrman, Patricia de Groot, Charles Klimicek, Irka Kuleshnyk, Lydia MacLean, Alison Shapiro, Wilfried Swenden, Mark Ungar, Bridget Welsh, and Jackie Willcox. Last, and most important, I would like to thank my partner, Jens Meierhenrich, to whom I owe a great debt for sacrifices incurred along the way. Jens’s unquenchable passion for knowledge has also been the source of

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inspiration for me over the years. His precise critiques and sharp insights, and his insatiable search for perfection, have made my work infinitely better than it otherwise would have been. Most crucially, Jens has shown me over these years that life is beautiful. It is to Jens, with all love and gratitude, that I dedicate this book.

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Borrowing Constitutional Designs

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INTRODUCTION

AFTER THE COLLAPSE of communism, some thirty countries scrambled to craft democratic constitutions. Surprisingly, the modal constitution chosen in these countries was neither the pure parliamentary model found in most of Western Europe at the time, nor the presidential model found in the Americas. Rather, the modal constitution chosen after communism’s collapse was semi-presidentialism—an unknown model known more generally as the “French type.”1 This constitution combined elements of pure presidentialism and pure parliamentarism in one type. Specifically, semipresidentialism combined a popularly elected head of state with a head of government who was responsible to a legislature. Throughout the 1990s, scholars and practitioners considered semipresidentialism, in spite of its awkward name, its confusing structure, and its rareness as a constitutional type, a prudent choice for the new democracies. The constitutional specialist Giovanni Sartori, for example, suggested that some troubled democracies might benefit from “radically switching to semi-presidentialism.”2 Gianfranco Pasquino, a noted scholar of European government, similarly suggested that, “on the whole, under most circumstances, semi-presidential systems appear endowed with both more governmental capabilities and more institutional flexibility than parliamentary and presidential systems.”3 And along with these scholarly endorsements, semi-presidentialism moved rapidly across Europe, Asia, Africa, and even to Latin America.4 In fact, in addition to the eleven former Soviet Republics that are now semi-presidential, three of 1 Countries choosing semi-presidentialism at this time included Armenia, Azerbaijan, Belarus, Bulgaria, Croatia, Georgia, Kazakhstan, Kyrgyzstan, Lithuania, Macedonia, Moldova, Poland, Romania, Russia, Slovenia, Ukraine, and Uzbekistan. Seventeen of the postcommunist states chose semi-presidentialism. See the classification in Robert Elgie, ed., Semi-Presidentialism in Europe (Oxford: Oxford University Press, 1999), which provides a discussion of the regimes he calls “semi-presidential,” and calls for more comparative work on semi-presidential systems. 2 Giovanni Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives, and Outcomes (New York: New York University Press, 1994), p. 137. 3 See Gianfranco Pasquino’s “Semi-presidentialism: A Political Model at Work,” as part of the Nominations and Reflections on Maurice Duverger’s 1980 article, in European Journal of Political Research, vol. 31 (1997), pp. 128–37, quote from pp. 136–37. 4 A study of the debate in Brazil can be found in Alfred Stepan and Cindy Skach, “Quadros meta-institucionais e consolidac¸a˜o democra´tica,” in Dieter Nohlen and Bolivar Lamounier, eds., Presidencialismo ou Parlamentarismo: Perspectivas sobre a Reorganizaca˜o Institucional Brasileira (Sa˜o Paulo: IDESP, 1992).

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the newest members of the European Union—Poland, Lithuania, and Slovenia—are also semi-presidential, as are two of the candidate countries for European enlargement—Bulgaria and Romania. Eight of the twentysix NATO member countries are now semi-presidential as well. Constitutional drafters in Brussels, led by the French, have been recommending a semi-presidential constitution for the European Union. And eleven African states, and five Asian and Middle Eastern states, are now among the forty-two semi-presidential systems in the world.5 Why the recent and increasing attraction to this model? The influential constitutional lawyer Maurice Duverger first sparked this attraction to semi-presidentialism decades ago. He pointed to France’s positive semipresidential experience during the Fifth Republic, differentiating it from France’s turbulent and unstable parliamentary experience during the Fourth Republic. Using the example of France’s volte-face, Duverger maintained that semi-presidentialism was “a viable” constitutional system with built-in mechanisms for ensuring political stability in hard times.6 The key to this constitution’s success, according to Duverger and those who followed him, was the French model’s flexible ability to alternate between pure “parliamentary and presidential phases” of government. By the time the Berlin Wall had come down in 1989, this conception of semi-presidentialism as an alternation between presidential and parliamentary phases had become, in the words of Arend Lijphart, “the most widely accepted concept of semi-presidential democracy.”7 But analytically, as Lijphart also noted, this acceptance of semi-presidentialism as a simple alternation between pure presidential and pure parliamentary phases meant that “the semi-presidential category becomes a nearly empty cell.”8 Concretely, with the semi-presidential category “empty,” the numerous countries with a constitution like that of the French Fifth 5

See Elgie’s counting, Semi-Presidentialism in Europe. Maurice Duverger, La monarchie re´publicaine (Paris: Robert Laffont, 1974), p. 122. Also see his “A New Political System Model: Semi-Presidential Government,” European Journal of Political Research, vol. 8, no. 2 (June 1980), pp. 165–87. 7 See Arend Lijphart’s introduction to his edited volume, Parliamentary Versus Presidential Government (Oxford: Oxford University Press, 1992), p. 8. 8 See Arend Lijphart, “Trichotomy or Dichotomy,” in European Journal of Political Research vol. 33, no. 1 (February 1997), pp. 125–28, quote from p. 127; Armel Le Divellec, “Die dualistische Variante des Parlamentarismus—Eine franzo¨sische Ansicht zur wissenschaftlichen Fata Morgana des semipra¨sidentiellen Systems,” Zeitschrift fu¨r Parlamentsfragen, vol. 27, no. 1 (January 1996), pp. 145–51; and John T. S. Keeler and Martin A. Schain, who claim that “there is no single ‘semi-presidential model’ for the Fifth Republic,” in Keeler and Schain, “Institutions, Political Poker, and Regime Evolution in France,” Kurt von Mettenheim, ed., Presidential Institutions and Democratic Politics: Comparing Regional and National Contexts (Baltimore: Johns Hopkins University Press, 1997), chapter 4, quote from p. 86. 6

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Republic can at best be analyzed as, and compared to, either pure presidential systems or pure parliamentary systems. Undeniably, the new institutionalist literature has developed along these very lines, classifying France and other semi-presidential countries as either “presidential” or “parliamentary,” and analyzing political phenomena, such as the divided party control of national government, the frequency of assembly dissolution, and the performance of coalition government, from these traditional, alternate lenses.9 One recent example is the influential work on veto points by George Tsebelis, who states that “France is a case of a parliamentary system.”10 At the same time, recent, important work in political economy by Alberto Alesina and Howard Rosenthal states the opposite, namely “that the similarities between the French and the American cases . . . are more striking than the differences,” and thus, these authors lump France with the presidential, not the parliamentary, democracies.11 Some scholars have attempted to redefine the semi-presidential type, and bring it back to the debate over institutional performance. For example, Matthew Soberg Shugart and John M. Carey divide semi-presidential countries into two separate types of their own creation: premier-presidentialism, and president-parliamentarism. For Shugart and Carey, the key difference between these two types is the president’s constitutional power vis-a`-vis the prime minister. Shugart and Carey’s analysis has contributed to our thinking about these systems by encouraging us to pay more attention to the amount of constitutional power held by executives. Yet their analysis has one stunning limitation, since they miss the crucial fact that a 9 The plentiful examples include Kaare Strøm and Stephen M. Swindle, “Strategic Parliamentary Dissolution,” American Political Science Review, vol. 96, no. 3 (September 2002), pp. 575–91; Michael Laver and Kenneth A. Shepsle, “Divided Government: America Is Not ‘Exceptional,’ ” Governance, vol. 4, no. 3 (July 1991), pp. 250–69; Arthur Lupia and Kaare Strøm, “Coalition Termination and the Strategic Timing of Parliamentary Elections,” American Political Science Review, vol. 89, no. 3 (September 1995), pp. 648–65; John D. Huber, “How Does Cabinet Instability Affect Political Performance? Portfolio Volatility and Health Care Cost Containment in Parliamentary Democracies,” American Political Science Review, vol. 92, no. 3 (September 1998), pp. 588–91; and Huber, Rationalizing Parliament (Cambridge: Cambridge University Press, 1998); Jean-Louis Thie´bault, “The Political Autonomy of Cabinet Ministers in the French Fifth Republic,” in Michael Laver and Kenneth A. Shepsle, eds., Cabinet Ministers and Parliamentary Government (Cambridge: Cambridge University Press, 1994), pp. 139–49; and various chapters in Wolfgang C. Mu¨ller and Kaare Strøm, eds., Coalition Government in Western Europe (Oxford: Oxford University Press, 1999). 10 See his Veto Players: How Political Institutions Work (Princeton: Princeton University Press, 2002), quote from p. 73. 11 Alberto Alesina and Howard Rosenthal, Partisan Politics, Divided Government, and the Economy (Cambridge: Cambridge University Press, 1995), p. 257. Also see Laver and Shepsle, “Divided Government: America Is Not ‘Exceptional,’ ” and Robert Elgie, ed., Divided Government in Comparative Perspective (Oxford: Oxford University Press, 2001).

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president in semi-presidentialism who does not enjoy a legislative majority finds his actual power severely limited, especially vis-a`-vis a prime minister who does enjoy a majority. Thus, their classification, based on static measures of presidential power, fails to capture the dynamics of actual countries, such as France, where power shifts over time have led to varying patterns of governance.12 Consequently, the current default has been to return to Duverger’s “presidential and parliamentary phases” conception. That the semi-presidential type has eluded scholarship is no mystery, for even Duverger’s own thinking on this constitutional type changed dramatically as he watched the Fifth Republic evolve. Writing at the beginning of the Fifth Republic, for example, Duverger was originally concerned about the democratic deficit of the new constitution. Just after its adoption in 1958, Duverger cautioned against it in an opinion piece in Le Monde, claiming that “a great opportunity has just been lost.”13 One of Duverger’s early concerns with the constitution was that, of the five major institutions of the Fifth Republic’s new governing system in 1958, only one (the National Assembly) was elected by direct universal suffrage. This changed, and after 1962, presidents of the Republic were also elected by direct universal suffrage. Writing then in 1978, once the Fifth Republic had been working well under semi-presidentialism for two decades, Duverger became more optimistic. He coined the term “semi-presidential,” placed France in this category, and defined it simply as “the coexistence of a parliamentary-type government with a presidential-type head of state.”14 Duverger selected two criteria according to which he organized his classic analysis of semi-presidentialism: the “consistency” of the parliamentary majority, and the president’s relationship to this majority. This elegant (if vague) division notwithstanding, Duverger then suggested that from these two criteria, seventeen subtypes were possible. With this scheme, almost no semi-presidential country needed to approximate another, and probable statements regarding semi-presidentialism and democracy became nearly impossible. By 1980 (in English) and 1986 (in French), Duverger then moved in a more parsimonious direction and simplified his analysis by suggesting that all countries with semi-presidential constitutions would function politically, depending upon the president’s relationship to the parliamentary majority, and the nature of that majority, simply like presidential or parliamentary systems of government.15 12

See Matthew Soberg Shugart and John M. Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics (Cambridge: Cambridge University Press, 1992). 13 Maurice Duverger, “Le nouveau “syste`me,” Le Monde, August 5, 1958. All translations from foreign language sources are, unless indicated otherwise, my own. 14 Maurice Duverger, E´chec au roi (Paris: Albin Michel, 1978), p. 18. 15 Maurice Duverger, ed. Les re´gimes semi-pre´sidentiels (Paris: PUF, 1986), esp. 12–17.

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Writing now at the beginning of the twenty-first century, not only do we lack clarity regarding the classification of an important member of our transatlantic alliance, France, we also have many more cases of semipresidentialism in the world—as many as forty-two countries by one recent counting—and we still lack a clear, agreed-upon, up-to-date conceptual framework for analyzing these countries.16 In spite of semi-presidentialism’s recent and growing popularity in the world, there is still very little theoretical work and almost no comparative historical work concerning the structure of semi-presidentialism, the reasons for its varied performance across time and space, or its implications for constitutional law and democracy.17 To make matters worse, the variation within each of these countries over time is even greater than the dichotomous “presidential or parliamentary phases” shading that Duverger found in the French Fifth Republic.18 In the six East Central European countries that chose semi-presidentialism after the fall of Communism, for example— Poland, Slovenia, Bulgaria, Romania, Croatia, and Macedonia—majority cabinets, in which the prime minister headed a coalition supported by a legislative majority, occurred only half the time during the 1990s. A substantial portion of these majorities were not full majority governments, as in pure parliamentary democracies, but rather, complex “cohab16

See Elgie, ed, Semi-Presidentialism in Europe, p. 14. No existing monograph systematically discusses semi-presidentialism’s relationship to democracy. See, for example, Maurice Duverger’s edited volume, Les re´gimes semipre´sidentiels, his E´chec au roi, and his important English-language article, “A New Political System Model: Semi-Presidential Government”; also see Werner Kaltefleiter’s chapter on what he refers to as the “bipolar” executive, in his Die Funktionen des Staatsoberhauptes in der Parlamentarischen Demokratie (Ko¨ln and Opladen: Westdeutscher Verlag, 1970), esp. pp. 129–97. Kaltefleiter’s major variable for the functioning of semi-presidentialism is the nature of the party system and the president’s relationship to it, but he unfortunately does not distinguish the divided minority government subtype, as I do here; also see Giovanni Sartori, “Neither Presidentialism Nor Parliamentarism,” in Juan J. Linz and Arturo Valenzuela, eds., The Failure of Presidential Democracy (Baltimore: Johns Hopkins University Press, 1994), pp. 106–18; and Sartori, Comparative Constitutional Engineering, especially chapters 7 and 9, for a more optimistic view of semi-presidentialism; Stefano Ceccanti, Oreste Massari, and Gianfranco Pasquino, Semipresidenzialismo: analisi delle esperienze europee (Bologna: Il Mulino, 1996); Horst Bahro, Bernhard H. Bayerlein, and Ernst Veser, “Duverger’s Concept: Semi-Presidential Government Revisited,” European Journal of Political Research, vol. 34, no. 2 (October 1998), pp. 201–24; the empirical contributions in Elgie, ed. Semi-Presidentialism in Europe; and the discussion of “premier-presidentialism” in Shugart and Carey, Presidents and Assemblies, pp. 55–75. Shugart and Carey limit their discussion of semi-presidentialism’s “perils” to a few pages concerning cohabitation, missing the crucial phenomenon I call divided minority government, which is more likely to occur in new democracies. 18 In this sense, I am more critical of Duverger than is Elgie. While Duverger was concerned with identifying the variation in constitutional practice, he has strongly influenced our conception with his “alternation” argument. 17

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itation” periods, in which the presidents of these countries and their prime ministers came from different (often opposing) political parties. Consequently, the heads of state and heads of government in these new democracies, each with a separate political agenda and substantial executive power, were often in conflict with one another. Most important, these countries spent the other half of their first democratic decade in situations in which neither the president nor the prime minister controlled a legislative majority. Practically, this meant that countries spent at least half of their first democratic decade in the hands of leaders representing a minority of the population. This tendency for there to be minority presidents and minority prime ministers marks a drastic difference with the “model” in the French Fifth Republic, which enjoyed majority governments for most of its life span. Moreover, France did not have to confront a solid decade of “minority politics” while it was reequilibrating its democracy, as much of the postcommunist world did. The question thus remains, how should we best analyze these semipresidential systems? Can we move toward probabilistic statements concerning semi-presidentialism—as the world’s third governing framework—and democracy? For example, under what conditions is semi-presidentialism most (or least) likely to function in a way that is supportive of democracy within a particular country? When does semi-presidentialism enable leaders to govern with efficacy (the capacity to find answers to problems facing the system) and effectiveness (the capacity to implement policies with the desired results)?19 When does this constitution enable leaders to democratically solve the distributive conflicts that affect new democracies, and when does it not? Is there more to the type than the “presidential or parliamentary phases” conception led us to believe? These questions are more important than ever, and a reconceptualization of the semi-presidential constitution, investigating semi-presidentialism’s relationship to democracy, is therefore urgently needed.20 My book begins to provide this theory and evidence. The book has three parts. I begin with a conceptual cleaning of semi-presidentialism, establishing it as a single, unique constitutional type by showing that its incentive structure is radically different from both pure presidentialism 19 On these distinctions between government efficacy and effectiveness, and their impact on the quality of a country’s democracy, see Juan J. Linz, The Breakdown of Democratic Regimes: Crisis, Breakdown, and Reequilibration (Baltimore: Johns Hopkins University Press, 1978), pp. 16–23. 20 Any discussion of constitutions and their inherent incentive structures almost inevitably borrows some basic premises from rational choice theory. But the normal caveats regarding the assumptions inherent in this approach apply. For a discussion that disentangles and problematizes, in more depth, the assumption of instrumentally rational decision-making, see my The “Rational” Choice of Party Democracy, in progress.

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and pure parliamentarism. I then present a simple typology of semi-presidentialism that builds upon, but also offers us greater analytic power than, the previous conceptions. Borrowing insights from American politics and comparative politics, I go on to show that the performance of semi-presidentialism is highly contingent upon the interaction effects between semi-presidentialism and a country’s party system. In this first part of the book, I then detail which party system combinations work well, and which work poorly because they, together with the constitution, provide incentives for presidents (and other actors) to transgress democratic boundaries.21 Analyzing whether, and when, democratically elected leaders have incentives to govern democratically under a particular constitution is crucial, for “if freely elected executives . . . infringe the constitution, violate the rights of individuals and minorities, impinge upon the legitimate functions of the legislature, and thus fail to rule within the bounds of a state of law, their regimes are not democracies.”22 More specifically, I distinguish three, qualitatively different, electorally generated, subtypes within semi-presidentialism: consolidated majority government, divided majority government, and divided minority government. I argue that with respect to the consolidation of democracy the most critical of these subtypes is divided minority government. Divided minority government is logically more likely to be characterized by legislative immobilism and cabinet instability, on the one hand, and simultaneously, by continuous presidential dominance, on the other hand. I suggest that divided minority government combines the gridlock of presidentialism’s divided government with the cabinet instability of parliamentarism’s minority government. This unique combination of legislative gridlock and governmental instability can put excessive pressure on governments, presenting strong incentives for independently elected presidents to govern alone. How is democracy then affected by the semi-presidential type, and particularly, by a country’s placement in these various subtypes of semi-presidentialism? In order to examine this, one needs to observe how governments go about the day-to-day business of accomplishing their political 21 In this sense, my book raises important caveats to the current debate on constitutional structures as coordination devices, found, for example, in Barry R. Weingast, “The Political Foundations of Democracy and the Rule of Law,” American Political Science Review, vol. 91, no. 2 (June 1997); and his “Constitutions as Governance Structures: The Political Foundations of Secure Markets,” Journal of Institutional and Theoretical Economics, vol. 149, no. 1 (March 1993), pp. 286–311; on the idea of commitment, also see Russell Hardin, “Why a Constitution?” in Bernard Grofman and Donald Wittman, eds., The Federalist Papers and the New Institutionalism (New York: Agathon Press, 1989), pp. 100–20. 22 Juan J. Linz and Alfred Stepan, “Toward Consolidated Democracies,” Journal of Democracy, vol. 7, no. 2 (April 1996), pp. 14–33, quote from p. 15.

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programs, whether they do so in ways that suggest to their societies that the most urgent distributive conflicts are being regulated effectively and efficiently, and whether they convince society’s current losers in these conflicts that there is a decent chance they will be tomorrow’s winners.23 Adapting the work on American constitutionalism by Robert Dahl, I therefore ask how well semi-presidentialism—as a constitutional arrangement—helps a country to: 1. 2. 3. 4.

establish a democratic regime protect fundamental rights ensure mechanisms for participation and contestation encourage the formation of governments that are effective in solving problems24

In this book, I am also concerned with the consolidation of democracy, which has attitudinal and behavioral dimensions in addition to procedural ones. A democracy is consolidated behaviorally when no significant political group tries to overthrow the regime or promote violence as a means of secession. Attitudinally, democracy is consolidated when the majority of citizens firmly believe that political change must take place according to democratic procedures, even in cases of severe crisis. Constitutionally, democracy is consolidated when the laws, procedures, and institutions governing the democratic process are respected by leaders and subjects alike.25 To actually begin to see these effects on democracy and democratic consolidation empirically, one needs to examine and compare governments under the three subtypes. But in addition, one must peer into the parliamentary debates on legislation, study the type and amount of conflict between and even within branches of government over this legisla23 Adam Przeworski states that “[d]emocracy is a system of processing conflicts . . . but no single force controls what occurs.” This is the conception, along with Robert Dahl’s eight institutional guarantees for polyarchy, and Linz and Stepan’s dimensions of consolidated democracy, that is used throughout this book. See Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (Cambridge: Cambridge University Press, 1991), quote from p. 12; and Dahl, Polyarchy: Participation and Opposition (New Haven: Yale University Press, 1971). I note that this differs from other proxies for “performance.” On the difficulty of pinning down and analyzing “performance,” see Kaare Strøm, Minority Governmanet and Majority Rule (Cambridge: Cambridge University Press, 1990). 24 See Dahl’s analysis of the American constitution with respect to these criteria in his How Democratic Is the American Constitution? (New Haven: Yale University Press, 2003), esp. pp. 92–93. 25 See Juan J. Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe (Baltimore: Johns Hopkins University Press, 1996).

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tion, and also observe and try to understand how citizens perceive the quality of government over time. My method in this book is thus to compare what took place with respect to distributive conflicts during periods of consolidated majority government, divided majority government, and divided minority government across cases and over time. In order to do so, I have chosen two countries that for better or worse have been among the most influential countries for European politics in the twentieth century: the Weimar Republic from 1919 to 1933, and the French Fifth Republic from 1958 until 2002. Using the typology I present and discuss in the first chapter of this book, I classify all governments in the Weimar and French Republics as either consolidated majority, divided majority, or divided minority. The fourteen German years and forty-four French years fall into one of the subtypes of semi-presidentialism. This provides a total of fifty-eight years of semipresidential governments to analyze. Granted, the pre–World War II and post–World War II units, from which these countries are chosen, are significantly different from one another in many respects. However, should we see the patterns associated with certain subtypes in one period then recur across these space and time units, the generalizations made here would accordingly gain strength.26 Therefore, one case from each of these historical periods seems necessary. Why these two countries? Weimar was one of the first historical experiments with semi-presidentialism, a fact that has been almost completely absent from the minds of semi-presidentialism’s advocates. Interestingly, many of the newer semi-presidential democracies have institutional and social characteristics that bear a relatively strong resemblance to Weimar—not France. And Weimar, unlike France, also spent more than half its life span in the subtype of semi-presidentialism I call divided minority government. Shouldn’t Weimar’s experience with the various patterns of semi-presidentialism be revisited and brought back to the discussion and attention of constitutional engineers? Duverger claims that without semipresidentialism, “with a conventional parliamentary government, the Weimar Republic would probably have collapsed sooner than it did.”27 26 A further note on case selection and methodology: Each is treated as a single-case study, measuring changes over time, with longitudinal comparative analyses to control for intervening factors within the same case. See Gary King, Robert O. Keohane, and Sidney Verba, Designing Social Inquiry: Scientific Inference in Qualitative Research (Princeton: Princeton University Press, 1994), pp. 209–12. Also see Harry Eckstein, “Case Study and Theory in Political Science,” in Fred I. Greenstein and Nelson W. Polsby, eds., Handbook of Political Science, vol. 7 (Reading: Addison-Wesley, 1975); and Giovanni Sartori, “Comparing and Miscomparing,” Journal of Theoretical Politics, vol. 3, no. 3 (July 1991), pp. 243–57. 27 See his “A New Political System Model,” p. 173.

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Sartori concurs, noting that, “had Germany adopted in 1919 a parliamentary type of constitution, I believe that Weimar would have collapsed much earlier than it did.”28 In chapters 2 and 3 of this book, I challenge Duverger’s and Sartori’s analyses of Weimar, and bring this early and quite devastating case back to bear on the analysis of semi-presidentialism as a potential governing framework for fragile democracies. In chapters 4 and 5, my typology of semi-presidentialism, and the insights from the Weimar case, are then used to structure a new exploration of the French Fifth Republic. Duverger’s classic work on semi-presidentialism was motivated by the experience of the Fifth Republic. Almost every new democracy choosing semi-presidentialism has claimed to take its inspiration from the “French model.” Newspapers and radio programs, as well as constituent assembly debates, in Russia, Poland, Taiwan, Argentina, Nigeria, the EU, and many other countries, document this widespread perception. And yet, what is really known about the French experience? The assumption is that French semi-presidentialism has never been problematic, and rather, has helped solve the problems that plagued the institutional turbulence of the Fourth Republic. But a recent revision of the French constitution confirms that semi-presidentialism undeniably has been a source of strain. Duverger’s landmark English-language piece, published in 1980, did not take into account any of the real challenges to democracy posed by French semi-presidentialism. One of the most crucial of these challenges, as I detail in this book, surfaced between 1958 and 1962, when French democracy was nascent and the Algerian question presented serious shocks to the entire democratic system. What was the critical push from this turbulent period to uninterrupted decades of consolidated majority governments in France? Did these consolidated majorities help French democracy weather the turbulent period of 1968 without a constitutional crisis? What were the negative, exclusionary aspects of this long period of consolidated majorities? This crucial story needs to be told in order to shed greater light on, and nuance, the Fifth Republic’s constitutional experience, which the existing literature simply casts as positive. During the respective periods studied, both countries in this book were facing “end of empire” situations that exacerbated the problems of democratic stability. And yet each country had a qualitatively different experience with constitutional law, and with democracy, over time. Together these countries, as analyzed by this new framework, offer us an analytically useful picture of the possible, varied patterns of semi-presidentialism, and their relationship to democracy in the modern and contempo28

Sartori, Comparative Constitutional Engineering, p. 129.

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rary world. One of my central points in this book is that semipresidentialism, qua type, is conceptually and analytically distinct from presidentialism and parliamentarism, and thus must be brought into the debate on constitutional law, constitutional frameworks, and democracy in its own right. So far, our failure to do this has impeded our understanding of this increasingly important constitutional framework, a framework that already structures political and economic outcomes across the European continent. One of my other, more general points in this book is that comparative historical analysis must be brought back to the theory and practice of constitutional law. For, as J. M. Balkin and Sanford Levinson caution, the current study of constitutional law in the United States lacks comparative and historical perspective. Importantly, “this tendency is revealed whenever American constitutional lawyers eagerly offer advice to emergent political systems struggling with the task of constitution writing. Like all too many of their professors, students rarely grapple with the possibility that there are other ways of dealing with the problems of democratic institutions.”29

29 J. M. Balkin and Sanford Levinson, “The Canons of Constitutional Law,” Harvard Law Review, vol. 111, no. 4 (February 1998), pp. 964–1022, quote from p. 1004.

CHAPTER 1

Constitutional Frameworks and Constitutional Law

THE RATHER HEATED debate over constitutional design and democracy has almost exclusively concerned two constitutional types: parliamentarism and presidentialism. This chapter examines the structure of these two types and differentiates semi-presidentialism from both of them. In so doing, the chapter brings constitutional frameworks back to the study of constitutional law. Presidentialism and parliamentarism are conceptual opposites. Parliamentarism is a system of mutual dependence between the executive and the legislature: through legislative support, governments remain legitimate and viable. Legitimacy and viability are in turn necessary for the effective, democratic formulation and implementation of government policies. Governments in parliamentary systems may be single-party or coalition governments, and they may also have majority or minority status.1 The most viable governments in parliamentary systems seem to be majority governments, the least viable minority governments.2 1 Kaare Strøm, Minority Government and Majority Rule, suggests a conceptual differentiation between formal minority governments, which receive external (legislative) support and thus approach majority status, and substantive minority governments, which still remain minority governments even when external support is counted. 2 Michael Laver and Norman Schofield, Multiparty Government (Oxford: Oxford University Press, 1990), p. 142; and Paul V. Warwick, Government Survival in Parliamentary Democracies (Cambridge: Cambridge University Press, 1994), p. 97. Also see John D. Huber, “How Does Cabinet Instability Affect Political Performance? Portfolio Volatility and Health Care Cost Containment in Parliamentary Democracies,” American Political Science Review, vol. 92, no. 3 (September 1998), pp. 577–91, for the argument that minority governments have increased portfolio changes across parties, limiting governmental effectiveness. A similar argument is found in Vernon Bogdanor, ed., Coalition Government in Western Europe (London: Heinemann, 1983), esp. p. 270. Nouriel Roubini and Jeffrey Sachs, “Fiscal Policy,” Economic Policy, vol. 4, no. 8 (April 1989), pp. 99–132, demonstrate a strong relationship between a higher number of government coalition partners (or minority governments), and lower success in macroeconomic management (mainly budget deficit reduction) in OECD countries, due to a lack of political consensus. Also see Alberto Alesina and Nouriel Roubini with Gerald D. Cohen, Political Cycles and the Macroeconomy (Cambridge: MIT Press, 1997); Daniel Diermeier and Randy T. Stevenson, “Cabinet Survival and Competing Risks,” American Journal of Political Science, vol. 43, no. 4 (October 1999), pp. 1051–68; and Michael Laver, “Government Formation and Public Policy,” PS: Political Science and Politics, vol. 33, no. 1 (March 2000), pp. 21–23. Laver argues that neither coalition nor minority governments need be weak and unstable. However, this literature on

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Presidentialism, contrariwise, is a system of mutual independence: the legislative and executive powers have separate and fixed electoral mandates. Mutual independence and separated legitimacies are the cornerstone of this system, and such a structure inherently involves potential tensions between presidential and legislative legitimacy.3 These tensions are maximized under divided government when the president does not enjoy a majority in the legislature, and minimized under unified government.4 We can try to fit all the consolidated democracies, near democracies, and transitional states into either of these two constitutional types. For some countries, this is very easily and quickly done. For example, the United States and Chile fit neatly into presidentialism, while Germany and Hungary fit neatly into parliamentarism. Yet many countries, such as France, Russia, and Poland, meet one of the defining criteria for presidentialism (a popularly chosen president with a fixed term), while also meeting one of the defining criteria for parliamentarism (a prime minister who is subject to a vote of no confidence in parliament). In short, there are many countries in the world that have the following constitutional characteristics in common: 1. The head of state is a popularly elected president with a fixed term of office. 2. The head of government is a prime minister who is responsible to the legislature.5 No pure presidential or pure parliamentary system combines these two characteristics. These will be our two defining characteristics of the semipresidential constitution. The outstanding feature of semi-presidentialism is the existence of two executives. Executive power is shared between the president and prime coalition and minority governments has almost exclusively concerned itself with consolidated democratic systems and has ignored their performance in transitional democracies. 3 Alfred Stepan and Cindy Skach, “Constitutional Frameworks and Democratic Consolidation: Parliamentarianism versus Presidentialism.” World Politics, vol. 46, no. 1 (October 1993), pp. 1–22. Bernard Thibaut and Cindy Skach, “Parlamentarische oder pra¨sidentielle Demokratie? Zum theoretischen Grenznutzen einer institutionellen Dichotomie in der Regierungslehre,” in Rolf Hanisch, ed., Demokratieexport in die La¨nder des Su¨dens? (Ham¨ bersee-Institut, 1996), pp. 541–75. burg: Deutsches U 4 See Gary W. Cox and Samuel Kernell, eds., The Politics of Divided Government (Boulder: Westview Press, 1991); Morris Fiorina, “Coalition Governments, Divided Governments, and Electoral Theory,” Governance, vol. 4, no. 3 (July 1991), pp. 236–49; his Divided Government (New York: Macmillan, 1992); Charles O. Jones, The Presidency in a Separated System (Washington, D.C.: The Brookings Institution, 1994); and John J. Coleman, “Unified Government, Divided Government, and Party Responsiveness,” American Political Science Review, vol. 93, no. 4 (December 1999), pp. 821–35. 5 On the merits of this concise definition, see Elgie, ed., Semi-Presidentialism in Europe.

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minister, and sharing by definition excludes a neat division of power, leading to ambiguity.6 Moreover, the legitimacy, accountability, and responsibility of the two executives are fundamentally different. The prime minister emanates from the legislature and is responsible to it, whereas the president has greater autonomy from the legislature and can survive without its approval. This autonomy sets up incentives for the president to push his own agenda, even if it means invading the prime minister’s domain. The shared power, but unequal legitimacy and accountability, structure theoretically predictable and empirically verifiable tensions into the semi-presidential type. For instance, in times of disagreement between the president and the prime minister, it is not always clear which executive has final decision authority. The president almost always has constitutionally granted emergency powers and a very important power vis-a`-vis the military and the intelligence community. In crisis situations, it is possible that the president and the legislature issue conflicting orders to the military, but the military may decide against the majority and in favor of its chief commander— the president. The unintended consequence may be extended military rule and the suspension of democracy, especially in countries with a history of military intervention in politics. The greater the president’s scope—particularly of decree, veto, and emergency powers—and the lower the limitations on these powers, the greater the possibility he will govern without the prime minister. Presidents who rely extensively on these powers over an extended time move the regime out of semi-presidentialism into nondemocratic constitutional dictatorship.7 In constitutional dictatorship, the extended use of emergency and decree powers violates the democratic principles of inclusion and contestation. It concentrates decision-making in a small, opaque group of individuals under the tutelage of the president, and thus violates Robert Dahl’s eight institutional guarantees for polyarchy, particularly guarantee number eight, “institutions for making government policies depend on votes and other expressions of preference.”8 One observable 6 See Yves Me´ny, Le syste`me politique franc¸ais (Paris: Montchrestien, 1996), p. 98, who notes that in the French Constitution, “[t]he powers of Head of State are indefinable, literally indefinite, without end. . . . [w]ho could in fact resist such a temptation?” 7 In 1963 the scholar of American institutions, Clinton Rossiter, warned those of us interested in the promotion of democracy to “be more knowledgeable and tough-minded about this recurring phenomenon of constitutional government called, for want of a milder and less controversial label, constitutional dictatorship.” I adapt his term here, a discussion of which is found in Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (New York: Harcourt, Brace & World, 1963). 8 See his Polyarchy: Participation and Opposition (New Haven: Yale University Press, 1971), esp. pp. 235–36.

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A Consolidated Majority Governemnt

A Divided Majority Government

A Divided Minority Government

President and PM have the same majority in the legislature

PM has the majority, President does not

Neither the President nor the PM has the majority

Figure 1.1 Semi-presidentialism’s Electorally Generated Subtypes

characteristic of constitutional dictatorship is the packing of the cabinet with nonparty, technocratic specialists rather than political party representatives. This technocratization of the cabinet distances it even further from parties in the legislature. The legislature may try to veto a technocratic cabinet and presidential decrees, but the president in the semi-presidential type usually retains dissolution power with which she can threaten a noncooperative legislature. THREE SUBTYPES OF SEMI-PRESIDENTIALISM These tensions between the president, the prime minister, and the legislature are inherent in the structure of semi-presidentialism, and are therefore permanent. However, the presence of a legislative majority, and an amicable relationship between the president and that majority, can minimize the probability that these tensions emerge as serious institutional conflict. Here I introduce three qualitatively different, electorally generated subtypes within semi-presidentialism. Consolidated Majority Government The best subtype for minimizing institutional conflict in semi-presidentialism is that in which the prime minister has a legislative majority, and the president is also from this majority. I call this consolidated majority government. See figure 1.1. A legislative majority increases the chances that governments will be more stable, which in turn lends governments a greater time horizon for accomplishing their agendas. The chances that the president and the prime minister will have the same policy agenda, and will cooperate to accomplish their joint agenda, are maximized.

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This subtype is not immune to the kind of political conflict that can impede effective and efficient policy-making, and make governments unstable; if the president and prime minister are from different parties or factions within the majority, conflict may still develop.9 Because the tensions are structured into the semi-presidential constitution by the division of the executive into two heads, there is always potential for conflict. Personality differences between the president and the prime minister may lead to increased disagreements over policy and over who should direct government.10 Or, a president’s particular beliefs about his leadership role and separate legitimacy may lead him to completely dominate his prime minister, who in turn might resist this domination, setting off a spiral of powerdemonstrating moves. Alternatively, a president may decide to dominate because he loses confidence in his prime minister and doubts his capacities.11 After forty years of experience with semi-presidentialism, French political and constitutional scholars admit that “even in times of habitation [consolidated majority government] it’s difficult to know who makes the decisions, and things don’t always work out that well.”12 Yet this type of conflict is still logically more likely to emerge and have greater consequences for government legitimacy and effectiveness when there is no legislative majority, or when the presidential and legislative majorities do not coincide. The consolidated majority is thus the least riskprone for democratic breakdown because the potential for institutional conflict is minimized, and so then is the system-blame that could accompany such conflict. In this vein, my argument differs from Shugart and Carey’s analysis of semi-presidentialism, since there is always variation in the president’s use of his constitutional powers over time, and this is a function of the majority status of the government and the president’s relationship to it. The measure of constitutional power of the president alone cannot explain the varied use and abuse of power by a president over time. Moreover, I am suggesting that it is often out of presidential 9 That is why Franc¸ois Mitterrand altered the structure of his Socialist Party in an attempt to eliminate various factions within it. See Philip Cerny, “Democratic Socialism and the Tests of Power,” West European Politics, vol. 6, no. 3 (July 1983), pp. 188–202. 10 To avoid such disagreements, French presidents have most often chosen prime ministers who either assisted in the presidential campaign and demonstrated loyalty, or had discreet personalities and no independent source of political clout except that bestowed upon them by the president. See Jean-Claude Colliard, “Que peut le pre´sident?” Pouvoirs, no. 68 (1994), pp. 15–29. 11 This was the case with Georges Pompidou and his prime ministers Jacques ChabanDelmas and Pierre Messmer, respectively. See Colliard,“Que peut le pre´sident?” p. 18. 12 Didier Maus, Comment at Round Table discussion of the 40th Anniversary Colloquium, “Lectures et Relectures de la Constitution de la Ve Re´publique,” Paris, October 7– 9, 1998.

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impotence in the wake of a legislative minority, not out of a position of power per se, that presidents begin pushing beyond constitutional limits.13 Divided Majority Government In divided majority government, there is a stable and coherent majority in the legislature, made up of either a single party or a coalition, but the president is from a party that opposes the majority.14 The divided majority is often referred to in the French literature as cohabitation, conveying the idea that two noncompatible fellows are forced to live together.15 Since there is a legislative majority to support the government, some continuity and government viability can be expected. Yet this subtype is more prone to conflict than consolidated majority government. If the president has her own agenda and is not willing to yield to the prime minister, as is most probable when the ideological (or other) cleavage separating the legislative majority and the president is deep, or when the president is determined to exercise her powers fully, the tensions in the type may lead to conflict. In this case, the president often retains access to decree and emergency powers and direct command of the armed forces. A president may use these powers to counterbalance the prime minister’s legislative majority. Divided Minority Government Finally, I come to what I argue is semi-presidentialism’s most conflictprone subtype. Here, neither the president nor the prime minister, nor any party or coalition, enjoys a substantive majority in the legislature.16 The absence of any clear majority in semi-presidentialism can predictably lead to an unstable scenario, characterized by shifting legislative coalitions and government reshuffles, on the one hand, and continuous presidential in13

See Shugart and Carey, Presidents and Assemblies, esp. 281–87. A majority is stable when it lasts for the duration of the legislature, and coherent when “the parties, groups and individuals which compose [the majority] are in agreement concerning essential political trends,” Duverger, E´chec au roi, p. 91. Theoretically, either the prime minister or the president can enjoy the legislative majority during cohabitation. Empirically, it is usually the prime minister, due to constitutional stipulations or convention, according to which the president chooses a prime minister from the largest party or coalition in the legislature. 15 Marie-Anne Cohendet, La Cohabitation: Lec¸ons d’une expe´rience (Paris: PUF, 1993). 16 I follow Strøm’s distinction between formal and substantive minority governments, counting formal minority governments as the functional equivalent of majority governments. 14

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tervention and use of reserved powers, on the other.17 It can be a vicious cycle: The greater the legislative immobilism, governmental instability, and cabinet reshuffling resulting from the minority position of the government, the more justified or pressured the president may feel to use his powers beyond their constitutional limit, for a prolonged period of time. This is particularly true when a country’s economic situation demands rapid legislation to solve crises, as in postcommunist Russia, where failed legislative majorities through the 1990s prevented important legislation from being democratically drafted, passed, and implemented, and instead resulted in domination by the president.18 The president in this situation is impotent in the face of failed majorities, even though he enjoys constitutional power. It is from this impotence that presidents often attempt to push their constitutional limits, as a substitute for a legislative majority, at the expense of the political parties that are attempting to establish themselves as effective channels between citizens and government. This is why divided minority government, more than the other subtypes of semipresidentialism, has greater risk for democratic breakdown. This risk may be exacerbated when pressure from international funding agencies for economic restructuring, which meets with resistance from the potential losers within political and civil society, pushes a president to use emergency powers and decrees to pass laws that pacify international pressures. If the president victimizes political parties in order to govern, parties that are predisposed to antisystem behavior may in turn begin to question not only the legitimacy of this president, but also the validity of the institutions, and even of the regime. When the regime is questioned by a significant part of the political system, a disloyal opposition emerges, and democracy is at risk.19 I call this most volatile subtype of semi-presidentialism divided minority government. This subtype is, in effect, the combination of the poten17 Strøm’s and Laver’s arguments that minority government “need not be feared” with respect to democracy are not applicable here. First, their analyses concern parliamentary, and not semi-presidential, systems. Second, they assume (among other things) stable political institutions, and well-organized and resourceful political parties, whereas I am interested in how minority governments fare in situations of uncertainty when political institutions are neither stable nor well developed (i.e., in democratic transition and reequilibration). 18 Scott Parrish, “Presidential Decree Authority in Russia, 1991–95,” in John M. Carey and Matthew Soberg Shugart, eds., Executive Decree Authority (Cambridge: Cambridge University Press, 1998), pp. 62–103. 19 Juan J. Linz, Crisis, Breakdown, and Reequilibration, pp. 27–38. As Linz (p. 27) states, “Changes in regime occur with the transfer of legitimacy from one set of political institutions to another. They are brought on by the action of one or more disloyal oppositions that question the existence of the regime and aim at changing it.”

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tially most problematic subtype of presidentialism, divided government, with the potentially most problematic subtype of parliamentarism, minority government. A president is frozen into this scenario for his full term, or until a majority in the legislature can be formed. The president can usually call early elections in an attempt to get a majority, but there is no guarantee that a majority will be formed if the party system is not amenable to majorities or coalitions, and especially if the president has recently victimized the parties. Reinserting semi-presidentialism into a comparative discussion of constitutional types, how does an executive in each type wind up in a situation in which she does not have a legislative majority? Importantly, the answer is different for each type. In presidentialism, the outcome results from the interaction of the constitutional rules and the voters’ choices. That is, the constitution stipulates the power structure among the branches of government, and the fixed duration of legislative and presidential terms. The voters, in turn, make their choices for the executive and legislative powers, but only in election years that are fixed. In parliamentarism, however, the minority situation of the executive can result from the interaction of the constitution, and the voters’ choices, plus the government’s decision to form coalitions or not, and the legislators’ decision to support that government or not. That is, the constitution stipulates the division of power and the rules, the voters choose legislators, and the legislators then try to form a government. But then this government decides whether or not to form a minority or majority government, and whether it will be a single-party or a coalition government, based on a variety of incentives and constraints. In turn, the legislators decide whether or not to support that government, and so on. See figure 1.2. In semi-presidentialism, the strategic landscape gets even more complex. Here the outcome can result from the interaction of: the constitutional rules, the voters’ choices, the government’s coalition decision, the legislators’ support or lack thereof, and the president’s unilateral decision power. That is, the same strategic interactions of parliamentarism occur, but the president often has dissolution and decree powers—which can be exercised or used as “threats,” and which also become part of the strategic interaction in the formation and duration of governments. The government that results each time from this process may be more fragile, but it can last because it is much like a seating pattern in an auditorium. “The seating pattern is in equilibrium if, considering where everybody else is sitting, nobody [who is able to move] is motivated to move to another seat.”20 In semi-presidentialism, therefore, the increased number of sig20 Thomas C. Schelling, Micromotives and Macrobehavior (New York: Norton, 1978), p. 27.

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Outcomes where Executive controls