Thesis defence by Théo Fournier

• Department of Law

This dissertation by Théo Fournier compares two democratic transitions which were negotiated between the opposition and wielders of the authoritarian regimes: Hungary in 1989 and South Africa in 1993. The objective of the comparison is to reveal a constitutional architecture of such democratic transitions. It aims at proving that democratic transitions have specific legal and constitutional dynamics which can bend political choices.

This thesis examines the constitutional architecture of two negotiated democratic transitions. It aims at providing a better understanding of the legal and constitutional dynamics at stakes during such transition, throughout a comparison of the Hungarian transition of 1989 and the South African transition of 1993. The dissertation proposes a typology of democratic transitions in order to isolate negotiated democratic transitions from other types of democratic transition. Most of the legal works on democratic transitions fail to analyse the specificities of negotiated democratic transitions, as opposed to political sciences and transitology scholars. The inclusion of transitology studies in the literature review narrows the research to the following question: How does negotiation structure the transition from an authoritarian constitutional identity to a democratic constitutional identity?

The dissertation first proves that, for both countries, a liberalisation period preceded the beginning of the democratic transition. The liberalisation period consisted in a deconstruction of the authoritarian constitutional identity. Despite being central to the advancement of the democratic transition, it remained, until this work, relatively understudied. The second finding concerns the importance of constitutional transitions in carrying out negotiated democratic transitions. In both cases, key features of the future democratic regime were settled during the constitutional transitions. The third finding concerns the influence of procedural choices – mainly constitutional continuity – on the content of the interim and final constitutions.

Another input of the thesis is to apply a rigorous methodology of comparative law. Two equal parts of the thesis are dedicated to the case studies. Each part is subdivided in three chapters: a chapter on the liberalisation period, one on the interim constitutional system and one on the final constitution. This division fuels a final and comparative chapter of the thesis which draws one analytical report for each case study. This final chapter answers the research question and explores two hypotheses for further research on the topic. The first one is on the anticipation of constitutional compromises during the constitution-making process. The second one is on the role of constitutional adjudication in the consolidation of constitutional democracy.