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Fontana on Government in Opposition

By Lawrence Solum

David Fontana (George Washington University Law School) has posted Government in Opposition (Yale Law Journal, Vol. 119, p. 548, 2009) on SSRN. Here is the abstract:

In the past generation, in all countries in all parts of the world, using all different forms of constitutional government, a new form of separation of powers has emerged, what this Article calls ?government in opposition.? After democratic elections are held, power to govern is granted to the winner of those elections - but substantial power to govern is also granted to the loser of those elections as well. This Article first discusses how this emerging regime of separation of powers differs from other major forms of separation of powers, and in doing so introduces a new way of understanding the major systems of separated power that the world?s constitutional democracies have created. After providing some examples and illustrations of how this new, government in opposition system of separated powers operates - and why it has proven to be so consequential in so many countries - this Article then discusses how government in opposition rules have much to offer constitutional designers around the world. In fragile democracies and stable democracies alike, government in opposition rules can better constrain power and stabilize the core elements of constitutional democracy, better prepare all parties to govern effectively, more fairly involve all interests in the process of governing - and can do all of this at minimal cost. To illustrate this point, this Article closes with a discussion of how government in opposition rules might work in the United States, and how they might remedy some of the current political and constitutional problems that we face.

And from the text:

One of the results of government in opposition rules not being studied as their own, distinctive, separately important phenomenon is that the many forms and types of government in opposition rules have been ignored. Before the emergence of government in opposition rules is presented, and the normative virtues of these rules are discussed, we must first understand the various forms of government in opposition rules. As the next two Parts will discuss, some aspects of government in opposition rules are more redeeming than others.

One type of variation in government in opposition rules is the degree of legal or other coercion involved in the exercise of winners? powers by losing coalitions. Consider the first type of rule, the mandatory government in opposition rule. This sort of rule means that, regardless of the preferences of the winning political coalition, losing political coalitions must exercise winners? powers.

The exact nature or legal source of the mandatory part of these rules might vary. For instance, the interim constitution that South Africa adopted in 1994 required that parties receiving a certain percentage of the vote be granted executive deputy president positions.42 Some of the powers that the losing political coalition enjoys in Britain derive from a series of statutes enacted over the years, or from internal rules adopted by the legislature.43 The mandatorypart of the mandatory government in opposition rule might also stem from an informal?albeit practically binding?convention. In Argentina, the losing political coalition receives a certain percentage of committee chair positions, not by the command of a formal constitutional, statutory, or legislative rule, but as a matter of informal convention.44

In contrast to mandatory government in opposition rules are rules which merely permit losing political coalitions to exercise winners? powers. Contrast, for instance, the rule in the South African interim constitution requiring losing parties to be given executive deputy president positions with the situation in Great Britain during World War II. During World War II, Great Britain formed a ?war cabinet,? meaning a cabinet composed of members of many different political coalitions, including the chief opposition party of Prime Minister Winston Churchill?s Conservative government, the Labour Party, and its leaders.45 Churchill was under no obligation to appoint these opposition leaders, but did so of his own volition.

Interesting and highly recommended!

Full post as published by Legal Theory Blog on December 18, 2009 (boomark / email).