Measuring Success of Constitutional Reforms: Evidence from Territorial Reforms in Eight Western Democracies

Abstract

Studies of constitutional reforms so far have equated formal ratification with a successful reform. The paper goes beyond this narrow focus by adding substantive success as a second dimension based on two indicators: degree of agenda fulfilment and degree to which the reform contributes to solve the constitutional problem. Analysing territorial reforms in unitary or federal states, we distinguish two types of problems—group and efficiency problems. The comparative analysis of formal and substantive success demonstrates that first, reforms can be at least partly successful in terms of substance, although they may have failed formally; second, fulfilling the reform agenda seems to be a necessary but not a sufficient condition for solving the constitutional problem at stake; third, cases with group problems score higher on both indicators, thus being more successful than cases with efficiency problems. Furthermore, the characteristics of the two most successful cases suggest that opportunities for participation, open dialogue and consensus building play an important role in explaining the results.

Keywords:

• Constitutionalism
• territorial reform
• comparative case studies
• measuring reform success

Acknowledgements

The research presented here was conducted within a research project funded by the German Research Foundation (DFG), see http://www.constitutional-change.de. We wish to thank the anonymous reviewer for the thoughtful and elaborate comments as well as the two editors of this issue for their recommendations which contributed substantively to the improvement of our paper.

Notes

Recent research on federalism tends to soften the dichotomy between federal and central states, introducing instead the notion of higher or lower levels of subnational authority (Marks et al., 2008). This differentiation is especially useful when comparing Western European reform processes, where we can find different degrees of subnational authority in formerly centrally organized states (e.g. Belgium, Spain, UK, but also France and Italy).

For a sound terminological discussion, see Behnke and Benz (2008), for example. For our purposes here, however, we use the notions of ‘reform' and ‘amendment' interchangeably for deliberate alterations according to particular rules, whereas ‘change' refers to more informal ways.

This is valid even for the British cases, where no written document has been altered, yet the devolution legislation that has been passed is agreed to have altered the constitutional status quo.

This definition excludes the possibility of evaluating the maintenance of the status quo as successful reform, even though this may be a result very much in the interest of some of the actors involved.

An additional possibility of evaluating reform success would be to take into account population surveys. We ruled out this option, however, because in our experience federal reforms are essentially of elite interest.

Based on the detailed operationalization of the two indicators, we documented the rationale of our judgements in short case descriptions for every case. Those descriptions were then discussed intensely within our research group, until we reached a high level of inter-coder-reliability and agreed on the assignments as they are represented in Figure 1 and in the Appendix.

To give an example: in France, the initial agenda (see Senate proposal no. 432, 22 June 2000, Le Lidec, 2009) was to constitutionally entrench fiscal autonomy of the subnational units and financial compensation for newly assigned administrative competences as well as granting the Senate a veto for legislation concerning subnational units. In the course of the reform process, however, the agenda broadened considerably, finally also including regulations for overseas territories and local democracy. In that case, we trusted our experts who identified the first document as defining the ‘real' agenda. Later distortions are then regarded as part of the negotiation process.

There, the initial task as formulated in 1994 was to disentangle legislative competences and design a more efficient equalization scheme (EFD, 2004: 4). In subsequent documents these two tasks were specified by determining the number of competences (about 30) and allocating roughly half of them to a specific level of government. This is an instance of agenda specification which does not diminish the success of a reform in terms of substance.

For a treatment of this topic, see also the contribution by Angustias Hombrado in this issue (Hombrado, 2011).

Of course, a proxy is by definition only an approximation for the fact that was intended to be measured. However, it is a better way than not to try to assess such complex situations at all. And, finally, we based our assessments not only on the proxy, but on our own knowledge about the single cases, on expert opinions, newspaper reports and secondary literature. Taken together, proxies help to get at a much better grounded judgement of a complex situation.

Information on the reform processes was gained in the first step by document analysis and internet research, then validated and deepened in expert interviews. A further, most important, source for getting comparable in-depth information on almost all of our cases were written expert reports. For each case, we commissioned up to three country experts (academic scholars or higher civil service) with the elaboration of written reports based on an extensive questionnaire that we had prepared for them. Those expert reports mostly lie at the heart of the qualitative judgements we make in the following sections.

The so-called ‘orientation framework ‘92' presented by the conference of cantonal ministers of finance contained basically those measures and instruments which reappeared in all later publications (Freiburg haus, 2009).

Interview with Gareth Hughes, 2 December 2009.

For a discussion of the role of interaction orientations in negotiations, see also Astrid Lorenz (2011, this issue).