29 November 2024 – Pázmány Péter Catholic University and Andrássy University Budapest
The event was organised as part of the Central European Professors’ Network, coordinated by the
Central European Academy.
The aim of the international conference was to reflect on the crisis phenomena of modern (representative) democracy (e.g. the rise of voter apathy, the decline of trust in politicians and parties, the decline of voter turnout, the emergence of opinion bubbles and growing political polarisation). The approach is to look behind the crisis phenomena for ways in which the democratic system can be better adapted to changing circumstances and further developed. The conference participants approached these questions from a historical and comparative perspective, focusing on basic concepts such as the state, the functions of the state, popular sovereignty, citizen participation and innovative forms of political participation.
The conference was organised in cooperation with Andrássy University and Pázmány Péter Catholic University, Faculty of Law and Political Sciences.
The presentation entitled „Functions of the Contemporary State and Citizen Participation” sought to answer the question of the place of the people and citizen participation in our understanding of the state, especially in the contemporary image of the functioning of the state and the necessary limitation of state power.
The opening remark was that the concept of the rule of law and its development is moving in the direction of increasing the importance of popular participation in decision-making processes, and that popular participation is becoming an increasingly necessary source of legitimacy for these decisions.
The concept of the rule of law grew out of the desire to limit the otherwise unlimited power of the state by means independent of it. Within this framework, the rule of law certainly means the binding of power, the limitation of power by law, the guarantee of equality before the law, the possibility of exercising freedoms and, linked to this, a complex system of institutions, headed by the courts and constitutional courts, which exercise control over state power.
Law and institutions have been essential to the concept of the rule of law, while the people have had only an exceptional say in this dynamic. In the usual framework, this participation usually took the form of elections, i.e. the periodic selection of representatives and some other officials. Sometimes the people took back power and expressed their opinion through a referendum. Meanwhile, in the usual way of functioning, those who wielded significant power did not gain this power and authority directly from the people, but through elected representatives.
However, the evolution of the concept of the rule of law has brought new elements and new perceptions to this dynamic. If we look at the issues around which the so-called rule of law debates revolve, whether through the European Union’s annual rule of law reports or through the opinions and reports of the Venice Commission, for example, we see that a greater distrust has come to the fore, both of state actors, institutions and even of the law itself. In this vacuum,
The event was organised as part of the Central European Professors’ Network, coordinated by the
Central European Academy.
new solutions and expectations have emerged. One such trend is the involvement of non-state actors in various decision-making processes.
There are traditional forms of this involvement through the institution of elections and referendums. Through elections, the composition of the legislative and executive branches is influenced by the people, but this does not directly influence the decisions taken by these actors. On the other hand, accountability is ensured, albeit periodically. In between, referendums, although exceptional, ensure participation. They are not only a means of transferring power, but also of enforcing decisions and shaping the law. In all these cases, however, what we really see is that the exercise of power and influence by the people is exceptional and rare, and that on the whole the institutions and the exercise of power by them are unhindered by popular intervention.
A more direct link may be the exercise of the right of petition. However, this does not imply any obligation on the part of the recipient to act. We are therefore talking about instruments that are provided for by law but are not systematically part of decision-making procedures.
At the next level are instruments that are guaranteed by law and systematically incorporated into decision-making processes. Here we can see that decisions are not taken in a way that affects people without their participation, but together with them. Within these solutions, we can talk about soft and hard instruments in terms of the impact that the absence or presence of participation has on the decision-making process itself. For example, if a major construction project is to be built on the outskirts of a community, the decision to go ahead with the project and the relevant permits may be granted without the local population being involved in the process. In this version, theoretically, there should be no legal problem if all the relevant bodies and authorities do their work in accordance with the law. But it is also possible to carry out this decision-making process with the involvement of the local population, for example through social consultation. This can also take different forms, because it can be a legal requirement, but it can also take place without a legal requirement.
If it is required by law and it is not carried out, this may be an infringement in the light of legislation and case law, which does not affect the merits of the case, but it may also invalidate the decision. A more complicated case is where no such consultation is expressly provided for, because it is then questionable whether the outcome of such a consultation, or the failure to hold such a consultation, can affect the decision. An example of this would be the closure of a school.
These instruments are typically used on a case-by-case basis, i.e. their impact is not generally far-reaching.
The event was organised as part of the Central European Professors’ Network, coordinated by the
Central European Academy.
A specific solution is to involve participation in the legislative process rather than in individual decisions. A well-known example of this is the possibility of public consultation on draft legislation. Either by making it available to the public on an electronic platform or by invitation. This element of the legislative process is also regulated by law, but, as mentioned above, it depends on case law whether there are legal consequences (e.g. invalidity under public law) for failing to do so. This is also linked to the possibility of challenging the content of the law in judicial or constitutional proceedings.
Lobbying has also become more widespread in recent times and is now regulated by law in a growing number of countries.
Another typical area of legally regulated participation is the procedural rights of NGOs. A typical area is environmental protection, where NGOs can participate in administrative procedures and can also bring and participate in litigation, representing the interests of environmental protection.
All these instruments are legally regulated solutions, i.e. they have a defined scope of action. However, there is also a wide range of non-regulated solutions. In the case of legally regulated instruments, it can be seen that public participation generally takes place at an advanced stage of the decision-making process, i.e. when the authorisation procedure is already underway, when the draft text of the legislation has already been prepared. However, in my view, the most meaningful involvement of the people in decision-making and in the exercise of public functions occurs when the involvement of the people is ensured before the procedure is initiated or when the concept is drawn up, i.e. long before the specific provisions are drafted. In the case of legislation, it is already after the codification impulse, in the case of the construction example mentioned above, when a decision is taken to support the construction, rather than at the stage when permits are already being issued.
These solutions, in the form of consultations, provide a flexible way of working between public authorities and the community, both locally and nationally. Technological developments are also making them easier to implement, allowing online campaigns or expressions of opinion, and the collection and collation of information via a dedicated platform.
Overall, then, a developmental arc is emerging, leading from the rare and exceptional occurrence of citizen participation to its increasingly widespread and legally regulated participation, which also represents a paradigm shift in thinking.
This shift is linked to the expansion of the state’s functions and the notion of the state as a service provider and partner of its citizens. Central to this understanding is the need to ensure the direct expression of the will of the people. While the classical conception focused on constitutional and rule-of-law guarantees and respect for procedural rules, the current
| Name of the event: Conceptions of the State: Between Tradition and Future Date: 29 November 2024 Venue: Pázmány Péter Catholic University and Andrássy University Budapest, Hungary Type of the event: international conference | Research group: Reversed Rule of Law Organiser: Lilla Berkes |
The event was organised as part of the Central European Professors’ Network, coordinated by the
Central European Academy.
conception also includes the demanding and meaningful participation of society in decision-making processes.
This approach has brought with it not only the possibility of channelling the opinion and will of the people and the community in a regulated way, but also the emergence of unregulated, more flexible forms of participation. The result is greater confidence in and legitimacy of decisions.
