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Overall, therefore, democratic institutions work because they combine formal constitutional rules with informal patterns of behaviour and expectation. Democracy is perceived to be particularly effective where both the formal and informal rules are widely understood and accepted across the polity. Conversely, where the formal institutions are relatively new, informal norms and customs may still be under development or negotiation and may not have the same high level of recognition. In these circumstances, the informal norms that oil the wheels of democracy are absent, posing challenges for its effective operation.
Challenges in making democratic institutions work
There are clearly many external variables that may affect Council of Europe interventions regarding democratic institutions: these might include levels of education, economic conditions, social conflict, demographic developments and so on. Our concern here is with the challenges that arise out of the very character of democratic institutions.
First, it is important to recognise that democratic institutions are nested within complex institutional environments – political and non-political – over which institutional designers may have very little control. Institutional arrangements that may be targeted by a particular Council of Europe intervention – local councils, regional assemblies, national governments – are nested within wider institutional frameworks that exist above, below and alongside them. Local democratic institutions, for example, are shaped by rules that emanate from higher tiers of government, including national legislation. National governments, on the other hand, are influenced by “institutional templates” that may not be specifically political but circulate in the wider society and economy through the media, education and business channels (inspired by, for example, commercial management styles, models of corporate governance, ideas about the “IT revolution”, or campaigns against sleaze or corruption). Democratic institutions are also shaped by locally-specific cultures and conventions (“how things are done around here”), whether at the national, regional or local level.134 The rise of new public management across OECD countries and beyond, the focus on e-government, and other such developments, are all examples of institutional templates that not only shape government institutions but which are also adapted to be locally specific.
Second, power relationships shape the way that institutions develop over time. Institutions are inherently political, because rules create patterns of distributional advantage.135 Institutional change is never a purely technical matter, because any challenge to existing institutional settlements is likely to be met by resistance. Indeed, shifting power relations may be one of the goals of institutional reform (such as empowering legislatures vis-à-vis executives, local vis-à-vis national government, NGOs vis-à-vis business lobbies, or simply citizens vis-à-vis bureaucrats and politicians). The Parliamentary Assembly’s interest in other forms of citizen engagement, coupled with its continued assertion of the primacy of parliaments, is one example of its awareness of how power relations may change with new democratic practices. Purposive attempts at institutional change are hard to achieve. New rules may be hijacked by powerful actors and adapted to preserve their interests. New rules may exist in name only while the old rules retain their hold at an informal, but no less effective, level.136 For reformers, de-institutionalisation may present an even greater headache than the crafting of new rules, although it is an issue rarely discussed. Interestingly, Paul Kirby, a former high-ranking official with the British Audit Commission, recently argued for greater attention to be paid to undoing old practices and conventions. He captures this in the slogan: “Stop is the new Go”.137
Third, history matters when we look at making democratic institutions work. The “soft” version of this argument is simply that democratic institutions are influenced by their “inherited world”.138 Current practice and perceptions of future possibilities are constrained by the traditions that are expressed in both formal rules (constitutions and terms of reference, for example) and informal conventions (of paternalism, or deference, for example). History is a source of diversity as well as uniformity within democratic institutions, as traditions vary across places. Indeed, the very different democratic structures in place across Europe can be treated to this historical dimension to explain not only difference in process but, also, why they are appropriate and effective in each context.
The “hard” version of the argument concerns “path-dependence”. The basic idea is that, once institutional designers have started down a particular path (however arbitrary the initial choice), the costs of changing direction are high. Path dependency rests upon a conception of increasing returns or positive feedback. The relative benefits of sticking with one design compared with switching to another option increase over time; the costs of exit rise.139 Path dependency creates a powerful cycle of self-reinforcing activity. The cycle, however, may be virtuous or vicious. There is no reason to assume that the option which becomes “locked in” is superior to the alternatives that were foregone. In fact, over time, this becomes progressively less likely, given the barriers that are produced to innovation and to adaptation to changing environments. Positive feedback effects are particularly powerful in political institutions, given the legally binding nature of the rules that delineate a chosen path, and the absence of a competitive market mechanism to stimulate learning and reward risk-taking.140
Given that much of the Council’s work is seeking to change democratic institutions, to make existing ones more effective or, more radically, to introduce new institutional forms, an understanding of institutional constraints is essential. It is only by considering these challenges that the Council can hope to make democratic institutions work better.
Principles for good institutional design
In the context of these constraints, what principles are best pursued in seeking to influence the functioning of democratic institutions?
Interventions should be seen more in terms of redesign than design, and as indirect rather than direct mechanisms for securing change.141 Redesign is important because reformers are inevitably constrained by past inheritances and the pull of path dependency. An indirect approach is important because reformers need to steer or frame the interventions of dispersed political actors, rather than seek to impose a single set of rules. Goodin counsels against “The Myth of the Intentional Designer” and argues that the goal should be “designing schemes for designing institutions”142 – that is, setting boundaries within which the “everyday makers” of political institutions can operate.143 We can only seek to make democratic institutions work through influencing the behaviour of reflexive political actors on the ground. Interventions in institutional design need to exploit rather than frustrate the creative efforts of those who make and remake democratic practice on a daily basis.
Conventionally, good design is regarded as guaranteed by a combination of internal consistency and “goodness of fit” with the external environment. It may be more helpful, however, to see good design as secured by clear values rather than functional necessities, and by a capacity for learning and adaptation rather than environmental “fit”. Because institutions inevitably embody values and power relationships, institutional design is inescapably a normative project. There needs to be clarity about the values being promoted (and challenged) within institutional reform programmes. Shifting “old” values is one reason why institutional change is hard to effect; at the same time, it is this normative dimension that makes institutional design so important – and so alluring to every generation of politicians.144 In institutional design, guiding values should not only be clear but “publicly defensible” – that is, legitimate in the eyes of the wider citizenry.145 The values that inform institutional design need to be understood and critically debated amongst the citizenry. As John Dryzek has argued: “No institution can operate without an associated and supportive discourse”.146
A “one-best-way reflex” in institutional design should be avoided; rather than seeking the universal application of a particular model, or the maximum spread of “best practice”, it is important to sustain a “variety engine” within institutional design.147 Tolerating, even promoting, variability within institutional design is a way of building in a capacity for innovation and adaptation to changing environments. But democratic institutions need to be flexible, not “brittle”: they need to be able to adapt to new circumstances, without being destroyed by them. As Goodin notes: “We want to have the capacity, sometimes, to bind ourselves to a certain course of action and to ensure that we (or our successors) resist any temptations to deviate from it”.148
Indeed, it is a defining characteristic of all institutions that they are “triadic” – that is, “established and enforced by “third parties” who are not part of the institutionalised interaction”.149 The role of third party enforcers is to supply “arguments as to why an institutionalised status order is to be held valid and hence deserves to be adhered to”.150 The sophistication of these arguments is an important contribution to institutional robustness. Goodin argues that institutional design must be “sensitive to motivational complexity”. The most effective enforcement mechanisms may be those that cultivate trust and embody “a direct appeal to moral principles”, rather than those that seek simply to control the behaviour of actors assumed to be self-interested and prone to “defection”.151 The success of institutional design depends as much upon the “institutional software” of persuasive arguments and convincing discourses, as upon the “hardware” of rules, rights and operating procedures.152 This message is particularly important to the monitoring activities of the Council, which can have the most impact in this area. Good institutional design should, therefore, be both robust and revisable.153
Robustness can be operationalised in relation to two criteria: first, the clarity of the values informing institutional design; and second, the nature and effectiveness of “third party enforcement”.
Because institutionalisation is an ongoing process (institutions are not once-and-for-all creations), it is not sufficient to examine the values and enforcement approach embodied in the original design. We need also to look at the extent to which value clarity is maintained over time, and at the ongoing development of enforcement strategies. By “enforcement” we mean ensuring that new institutional designs “stick” - that they shape actors’ behaviour in desired ways and give rise to new and specific “logics of appropriateness”. Approaches to enforcement may rely more or less on direct control or on commitment building among actors.
Revisability can be operationalised in relation to two further criteria: first, flexibility, meaning the capacity within institutional designs for adaptation over time, and for capturing the benefits of “learning by doing”; and second, variability, meaning the extent to there is tolerance (even encouragement) of different design variants in different locations.
In short, revisability seeks to ensure that institutional arrangements can operate in different local environments and changing circumstances, and that there is a capacity for innovation and learning.
Much of the argument set forth in this chapter is already implicitly recognised in the various activities of the Council. Its formal treaties give scope for variation in the way different member states develop democracy. Its adopted texts seek to reinforce principles while, at the same time, allowing a degree of reflection upon various issues. Monitoring of democratic developments adds to both the revisability and robustness of various national and local institutions. However, there is also a danger that, in its desire to respond to contemporary problems, rise to specific democratic challenges and grasp potential opportunities, the Council may ignore both the forces of institutional inertia and the need for sensitive institutional design.
In seeking to make democratic institutions work more effectively, the Council needs first to establish the values that it is seeking to articulate through particular institutional forms. The principles set out in the previous chapter begin that process by clarifying the different principles that are embedded in the acquis and by highlighting the possible tensions that exist within and across them. It is only by “surfacing” these values that the current rules of the game can be clarified and the embedded positions of different actors understood. Second, in making recommendations for institutional reform, the Council must remain sensitive to the complexities of democracy in different member states, the power relationships that are embedded in particular institutional forms and the influence of history in shaping existing institutional structures. There is little value in making recommendations or establishing commitments to institutional practices that do not reflect these issues and allow institutional variation accordingly. Third, the Council should not approach institutional design from the perspective of a perfect or ideal-type model, but should seek to realise its democratic values and ambitions through a combination of different institutional forms that can be adapted to suit different political and cultural circumstances.
Perhaps the biggest contribution of the Council of Europe to the development of democracy across its members states lies in its role as a third party enforcer. Because it is not part of the institutionalised interaction it is able to offer reforms that reflect an awareness of competing power relationships but which are not part of them. Through both its powers of initiation of institutional reform (treaties, recommendations and so forth) and its monitoring and support activities, the different organs of the Council are able to encourage and enforce institutions that are both robust and revisable. They can be robust in so far as they can reflect the core values of European democracy and articulate a consensus across the continent. They can also be revisable in so far as they can be flexible, allowing learning across countries and institutions, and allow for variation in institutional form and practice. Finally, the Council is in a unique position to make the institutions of democracy extendable to other tiers and policy areas. It is only by consciously focusing upon institutional design procedures that the Council can hope to have an impact upon the institutional development of democracy in Europe.
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