Page 1

Forthcoming in: G. Delanty and S. Turner (eds), The Handbook of Contemporary Social and Political Theory, Routledge.

Modern Constitutionalism and the Challenges of Complex Pluralism Paul Blokker The abstract idea of a written constitution as the foundational basis of modern democratic societies is a largely undisputed element in much of social, political, and legal theory. At the same time, the nature, form, and distinct functions of the constitution in - and increasingly also beyond - modern democratic societies is an evermore frequent object of dispute. As will be discussed in this chapter, this is not least because of the profound changes that affect constitutional democracies and constitutionalism as a result of processes of globalization, sub-state empowerment, as well as internal transformations of the modern polity and democratic politics, and related diversification of democratic imaginaries. In the two centuries of ‘reign’ of modern constitutionalism, a general, minimal consensus has emerged on the nature and functions of the constitution. As Michel Rosenfeld argues, '[t]here appears to be no accepted definition of constitutionalism but, in the broadest terms, modern constitutionalism requires imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights' (Rosenfeld 1992: 497). Modern constitutionalism corresponds largely with the Westphalian idea of a state system of separate and homogeneous nation-states, and, in this, it comprises a tendency to ‘presuppose the uniformity of a nation state with a centralised and unitary system of legal and political institutions’ (Tully 1995: 9). In a slightly different formulation, the 'understanding of a constitution and its assigned role as the guardian of the political process is commonly associated with modern constitutionalism and builds on institutionalised and mythical links with statehood that had been forged over centuries' (Wiener 2008: 23). In this, modern constitutions tend to share a number of generic features (the following list is not meant to be exhaustive). First, a modern constitution is regarded a 'structure of law' that is in important ways separate from its subjects. Whereas the modern constitution is ultimately dependent on the people for its legitimation, once constituted, it becomes a relatively autonomous set of meta-norms and rules that constitutes social and political interaction. James Tully calls this relative autonomy or externality the 'formality' of modern constitutions (Tully 2008). Second, one of the essential ideas behind the constitution is to channel and express popular sovereignty. In this, popular sovereignty has been widely understood in a monist way, i.e., as the expression of a singular people. At any rate, the act of the constitution transfers this sovereignty from the pouvoir constituant to the pouvoir constituée. Third, the singular understanding of the people presupposes a shared civic or 1


ethno-cultural identity, which is symbolically reflected in the constitution, either implicitly or explicitly so (cf. Weiler 2003). Fourth, modern constitutions are understood as coherent and non-contradictory, contractual structures, in which 'constitutional essentials are unambiguously settled and made binding into the future' (Chambers 1998: 149). Fifth, while most of the dimensions noted above invoke a pre-political, limitative, and foundational perception of constitutions, constitutions also provide for a positive democratic dimension, including positive civil and political rights which enable citizens and political actors to act set their own rules, even if within the limits set by the very same constitution. Modern constitutionalism is, however, increasingly under strain. Notwithstanding the global trend, of the last half century or so, of convergence to an 'amplified' form of modern constitutionalism around a form of ‘judiciary’ or ‘new constitutionalism’ (Arjomand 2003; Stone Sweet 2008), more recent trends of pluralization seem to provoke profound changes and a transition of modern constitutionalism. Constitutionalism appears now increasingly contested, and anachronistic in some of its key features. One way of describing and evaluating such changes is by focussing on the two imperatives or legitimatory principles of modern constitutionalism, which in a way condense the five generic features. The two imperatives are popular sovereignty (democracy) and the limitation of sovereignty (constitutionalism) (Loughlin and Walker 2007: 1; cf. Tully 2008: 91-92). The first principle is that of constitutionalism or the rule of law. In the light of this principle, the constitution, in order to be legitimate, ‘requires that the exercise of political power in the whole and in every part of any constitutionally legitimate system of political, social and economic cooperation should be exercised in accordance with and through the general system of principles, rules and procedures, including procedures for amending any principle, rule or procedure’ (Tully 2008: 92). The emphasis is on order and the provision of an orderly process of politics. A second principle is the principle of democracy, which ‘requires that, although the people or peoples who constitute a political association are subject to the constitutional system, they, or their entrusted representatives, must also impose the general system on themselves in order to be sovereign and free, and thus for the association to be democratically legitimate’ (Tully 2008: 93). The second principle is then about (collective) autonomy or self-rule, in which people give themselves their own laws, rather than being subject to some form of ‘heteronomy'. The rest of the chapter will engage with recent pluralistic trends that put modern constitutionalism under strain. After a brief discussion of the post-Second World War, reinforcing trend of modern constitutionalism in the form of legal, 'new constitutionalism', I will argue that the significance of this trend needs to be qualified by a range of pluralistic tendencies that, while in some ways amplifying legalistic and monistic tendencies in constitutionalism, also involve strong corrosive and diversifying implications for the modern constitutional template. These pluralistic tendencies comprise the fragmentation of sovereignty, cultural pluralism, and substantive or interpretative pluralism. The argument is 2


that the challenges of complex pluralism undermine many of the constraining features of modern constitutionalism, but, while in some cases forms of autonomy and democratic participation are strengthened, in many others, constitutional pluralism tends to further compromise the democratic dimension of constitutionalism. In a normative sense, the chapter critically discusses a number of theoretical reflections on these challenges, and in particular emphasises those approaches that search for the potential reinforcement of participatory, open-ended, and inclusive dimensions in the current constitutional predicament. New Constitutionalism Since the Second World War, and more prominently so since the end of the 1980s, the modern constitutional form has not only enjoyed its finest hour in terms of its widespread adoption in ‘new democracies’ (cf. Haberle 1992), or even elicited a 'global enthusiasm' (Koskenniemi 2007), but has also experienced a distinct turn in terms of a re-interpretation and rebalancing of some of its key dimensions, particularly so in the context of democratic transition. By the early twenty-first century, this ‘new constitutionalism' (Arjomand 2003; Stone Sweet 2008, 2009) has allegedly become predominant, even if not uncontested. The emphasis is on written constitutions with an entrenched 'catalogue of rights’, and a ‘system of constitutional justice to defend those rights' (Stone Sweet 2008: 219). The novelty is that the constitutional court as an independent institution is not only the ultimate guardian and interpreter of the constitution, but equally so of fundamental rights. In terms of the generic features of modern constitutionalism, new constitutionalism prioritizes the higher law status of the constitution and of bill of rights, as well as normative coherence and legal certainty, and takes an amplified understanding of the rule of law. The latter is part of post-authoritarian and post-totalitarian transitions to ‘new democracies’, such as those in Central and Eastern Europe. It includes a constitutional politics that comprises both the ‘judicialization of politics’ – which encompasses the reconstruction of the normative basis of the state - and the political activism of judicial actors (Arjomand 2003). The emphasis in democratic transition is on legal formalism and coherence, and constitutionally entrenched democratic preconditions, while democratic participation is largely confined to 'normal politics'. In this, the shift is towards legal constitutionalism, while, ‘’[w]ith very few exceptions, legislative sovereignty has formally disappeared. The new constitutionalism killed it, paradoxically perhaps, in the name of democracy’ (Stone Sweet 2008: 218). If new constitutionalism amplifies some of modern constitutionalism’s main dimensions, it at the same time seems difficult to deny that a number of its key features have become increasingly untenable (in a normative, democratic sense), and unrealistic or anachronistic (in terms of correspondence with political, social, cultural, and economic reality). Below, I will argue that with regard to at least three recent pluralistic tendencies, modern 3


constitutionalism – including its new, amplified form - is subject to a variety of corrosive trends that seem difficult to reverse, and that are bound to fundamentally change its nature. The Fragmentation of Sovereignty Even if 1989 has entailed modern constitutionalism’s finest hour, Westphalian-type constitutionalism is at the same time increasingly confronted with powerful, corrosive trends, in an empirical sense, and critical contestation and reinterpretation, in a theoretical sense. Constitutional and legal, as well as social and political theory increasingly attempt to deal with the (contested) observation that modern, state-centred constitutionalism is subject to modification, and even marginalization, in the context of a complex set of trends regarding globalization and particularization. These include the emergence of alternative (transnational, international, non-state) authorities that claim constitutional capacity and some hold of sovereignty, beyond or parallel to the traditional sovereign nation-state; the European Union is the most significant and evolved example of this (other such phenomena include the World Trade Organization and human rights charters). But constitutionalization beyond the state equally includes private, economic actors that engage in the production of 'self-validating contracts' and 'closed circuits' that differ from state legal orders not only in terms of geographical site but also in terms of the novel, self-referential quality of the norms themselves (cf. Teubner 1997). A concomitant, but not altogether overlapping, trend is that of a devolution and differentiation of democratic sovereignty towards sub-state levels. This trend is related to processes of post-state constitutionalization, but is much more importantly inspired by political resistance to imposed, Western forms of majoritarian constitutionalism and by political projects for cultural recognition, regional autonomy and self-government.1 While the move away from the traditional state order in terms of post-national constitutional norms creation challenges the monistic, unitary, and exclusionary nature of modern constitutionalism, post-state constitutionalism does not in any obvious way resolve pressing normative problems of a ‘democratic deficit’, or disputed trends of the juridification of politics and legal constitutionalization. To the contrary, it can often be argued that many of the alleged forms of constitutionalization beyond the state tend to rely on closed, expert-based, juridical, and self-contained understandings of constitutionalism (cf. Cohen 2004), in which democratic or civic-participatory dimension are of less or no concern. The emerging post-state constitutional regimes bind modern states in many ways, but mostly without being subject to any type of significant democratic control, i.e., control by those that are affected by these new constitutional structures. With regard to the substate level, shifts away from the traditional level of national sovereignty tend to further weaken an overall sovereign capacity within formally sovereign states, even if shifts to the local level potentially offer prospects for the democratic enablement of local actors. 1

Below, cultural diversity and its implications for understandings of constitutionalism are discussed more at length.

4


In social and political theory, much attention is on the constitutionalization of an emerging European polity as a potential answer to increased fragmentation and democratic erosion, and the implications of such a supranational constitutional form for social integration, collective identity, and civic participation. One of the more prominent normative appraisals of a potential European polity can be found in Jürgen Habermas’s work, who proposes a polity grounded in post-national ‘constitutional patriotism’ (e.g., Habermas 2001). The upshot is clearly that it is in principle possible to overcome fragmentation by reconstructing a political community on the European level. But others point to the difficulties of such a move, and the impossibility of lifting specific dimensions of constitutional democracy to the supranational level. Well-known forms of critique include the democratic dimension the absence of a European demos (indicating the lack of a constituent people that might constitutionally ground the new European polity), a European-wide public sphere, and elitist, closed forms of politics, and the symbolic or cultural dimension - the conundrum of how to reflect the plurality of cultural traditions in a singular European identity (cf. Priban 2007; Weiler 2001). A promising attempt to overcome some of these problems is suggested in the theory of ‘reflexive constitutionalism’, which is explicitly formulated against the problem of juridification or legal domination, and proposes a novel understanding of constitutionalism (Bohman 2004). Significantly, the reflexive constitutional order is to include multiple demoi (rather than a European People-As-One), which might hold a plurality of substantive perspectives, and is to be based on ongoing (constitutional) deliberation, rather than on a foundational moment. In legal and political theories of 'constitutional pluralism' (Walker 2002; for a recent overview, see Avbelj & Komarek 2008) and 'legal pluralism' (Teubner 1997; Stone Sweet 2009), the focus is on a range of post-state constitutional experiences, firstly on the European, but also on the global level. The focus is on an emerging plurality of constitutionally relevant sites and actors, with distinct (territorial, functional, sectoral, multi-functional) pretensions to sovereignty that 'escape the template of the state'. This plurality is taken to imply that the 'homology of territory, community and political capacity which was the historical project of the national or plurinational state of the Westphalian state has come to an end' (Walker 2002: 320). Overall, there is no consensus then on the classificatory status of post-state constitutional developments, nor on their normative implications. In the expanding literature, two approaches are particularly worth mentioning, one legal-taxonomic, the other politicalnormative. Both engage with normative vicissitudes but also explicitly use a sociological lens to analyse post- and sub-state legal pluralism. One of the more comprehensive legal approaches is the above-mentioned ‘constitutional pluralism’ (Walker 2002; 2008). In Neil Walker’s understanding, constitutional pluralism entails as a way of ‘charting the postWestphalian order’ (2002: 348). To this end, he suggests an elaborated set of criteria (i.e. constitutive, governance, as well as societal criteria) that are to provide us with a conceptual grasp of a variegated range of constitutional experiences, as well as with a 5


structural grasp of the practical significance of, and relationships, conflicts, and overlaps between, novel constitutional forms (Walker 2002: 339-340). In this, constitutional pluralism - even if acknowledging a potentiality for emancipation in pluralism’s antimonolithic thrust - is primarily concerned with providing a taxonomy of new phenomena. In 'democratic constitutionalism', in contrast, a critical, radical-democratic dimension is at the forefront. On James Tully’s view, contemporary state and global legal forms, despite their fragmentary and pluralistic nature, can nevertheless be understood from within their common basis in the logics and biases of ‘modern constitutionalism’. Rather than an erosion of modern constitutionalism’s significance in a novel and fragmented post-state order, Tully observes its continuation in ‘informal imperialism’. The latter refers to the diffusion and imposition of modern constitutional forms – including state-based ‘constitutional democracy’ and ‘systems of law beyond the state’ - over the globe (Tully 2008: 199). Democratic constitutionalism consists then of a critical, normative suggestion of how to radically rebalance the legal and democratic dimensions in the contemporary situation in favour of the democratic-participatory dimension. The approach builds on a rehabilitation of non-modern, alternative experiences of constitutionalism (such as those of aboriginal communities) and grass-roots struggles ‘in the most effective forums’ against inequalities and heteronomy that are continued through informal imperialism (Tully 2008: 103). Cultural Pluralism In recent decades, various disciplines in the social sciences have shifted attention to issues of collective identity, multi-cultural society, and cultural plurality in constitutional democracies, and struggles for recognition and sub-national self-government. In political theory, the issues of multi-national democracy, multi-culturalism, and recognition have become salient foci of debate (cf. Kymlicka 2001; Taylor 1994; Tully 2001), while in social theory, nationalism, and collective identity and its constructed nature have (re-)turned to prominence (Calhoun 2007). Recently, also legal studies and constitutional law have incorporated collective identity and sub-national self-government as core problématiques of constitutionalism (cf. Rosenfeld 1992; Priban 2007; Tierney 2004). The emerging concern is that traditional 'monistic' ideas of a singular collective identity, a supposed neutrality of liberal-democratic polities towards cultural identity, and allegedly 'thin' forms of collective identity are deeply problematic. The general idea is that the strong affinity of modern constitutionalism with an idea of ‘national identity’ has become difficult, if not impossible, to uphold in increasingly pluralistic democratic societies. The homogenizing logic of modern constitutionalism can be seen to imply that – even if put here in somewhat strong terms - ‘human experience must be decontextualized and diverse personal identities extirpated in order to create a single national legal identity for each State’ (MacDonald 2005: 2). 6


The relation between national identity and constitutional democracy is now commonly understood as less straightforward and unproblematic than in the past. As aptly put by Stephen Tierney, in a discussion on the recent return of attention for nationalism in political philosophy, liberal philosophers over the past two decades have found the relationship between the state and the nation to offer very fertile soil within which to cultivate wide-ranging and fundamental challenges to widely held assumptions about the nature of the democratic state and the nature of the demos within the state: assumptions which for centuries have underpinned – it now seems in many respects mistakenly – so much grand theorising about the nature of the polis and the relationships of identity and loyalty between citizens and their respective states (Tierney 2008: 130).

Tierney goes on: 'these stateist assumptions came to be characteristic also of constitutional ideology, with states presenting their constitutions as neutral on cultural and societal matters when in fact they reflect, and serve to entrench, cultural particularisms'. In a cultural-sociological vein, then, the liberal idea of state neutrality is not only considered a myth, but the explicit recognition of some kind of common cultural identity is deemed indispensable in order for modern law to be integrative. The idea is that a modern constitutional order cannot merely be a formal structure, independent of society, but would need to reflect a symbolic dimension which encourages cohesion and allegiance for legal subjects. Rosenfeld claims that '[i]ndeed, without some predominant identity such as that of the sovereign nation or of the constitutional self, it is difficult to imagine how one could justify the imposition of a constitutional order' (Rosenfeld 1992: 498-499). A symbolic dimension or shared identity is then often understood as grounded in some notion of commonality, referring to a common language, ethnicity, and/or religion. In the case of, for instance, the new constitutional democracies in Central and Eastern Europe, the constitution-making process also reflected the new political identity of the emerging democratic nations. In this sense, constitution-making was a process of self-reflection, clarification and codification of what constitutes a sovereign people. The process of constitution-making significantly contributes to the symbolic creation of the people as one nation (Priban 2007: 72).

The theorization of modern constitutionalism, if not necessarily the practice of constitutional democracies, can then largely be said to have been exposed as insensitive to questions of cultural identity and diversity, not least because of an implict assumption of a majority identity. Traditional notions of constitutional democracy have been shown to be largely indifferent to, assimilationist towards, or even unaware of, cultural diversity within its borders (cf. Tierney 2004; Tierney 2008: 130-131). There is thus a clear need to rethink modern constitutionalism, in that the current historical period, in which cultural plurality and sub-state demands for recognition are evermore prominent (the most discussed cases are Canada, Spain, the United Kingdom, and Belgium), increasingly shows the problematic nature of assumptions of neutrality regarding issues of culture, religion, gender, and 7


ethnocultural identity, as well as the failing nature of modern constitutionalism to provide cohesive force on its basis. But the explicit recognition of a cultural-sociological dimension to constitutionalism is evidently in tension with cultural plurality. Three problems stand out with regard to cultural pluralism: first of all, the monistic, statist view of constitutional democracy or 'monistic demos thesis'; second, the definition of cultural identity, and related assumption of its decreasing relevance in modern constitutional democracy; and, third, the understanding of the relation between collective identities and democracy. Different resolutions to cultural plurality in modern constitutional democracies have been offered. In the probably most well-known reconceptualization of constitutional democracy in the light of cultural pluralism – 'liberal nationalism' – the (constitutional) recognition of multiple nations is made explicit. Stephen Tierney's work (2004) on constitutionalism and national pluralism builds on this view, showing that constitutional solutions are increasingly the focus of substate nationalists, whose search for constitutional change involves increased recognition of multiple nations, increased representation on the central state level, and calls for higher levels of autonomy. There is, however, a risk in liberal nationalist approaches that cultural pluralism is understood in a rather narrow and static sense, and, consequently, that the emphasis in constitutional reform is largely on formal-constitutional arrangements and accommodation. From a more radical-democratic and pluralistic view, as in the earlier mentioned 'democratic constitutionalism', a more drastic shift in perceptions of constitutionalism would be needed. While the focus here is equally on forms of 'multinational democracy' and constitutional resolution, the argument goes against the search for definitive, formal solutions and favours ongoing 'struggles of recognition' as an intrinsic part of modern politics, and as enhancing legitimacy and stability. On this view, constitutionalism needs to endorse 'the freedom of the members of an open society to change the constitutional rules of mutual recognition and association from time to time as their identities change' (Tully 2001: 5, 6).2 Substantive or Interpretative Pluralism In addition to the tensions caused by post-state constitutional pluralism, and by sub-state nationalism, modern constitutionalism is exposed to increasing forms of substantive, interpretative pluralism or ‘pluralism-in fact’ (Rosenfeld 1998; 2008). The fact of an increasingly prominent ideational pluralism in modern democratic societies, and the equally increasing acknowledgement of different (national) constitutional traditions, as well as legal pluralism within national legal orders (in particular as emerged in the debate on the European Constitution), have invoked significant attempts at rethinking some of the main principles of modern constitutionalism. 2

The archetypal case is that of Canada, see Tully 2001; Chambers 1998.

8


Arguably, the main debate in the context of interpretative pluralism is that regarding the nature of the relationship between constitutionalism and democracy. Here, a first distinction can be made between those that endorse a form of 'legal constitutionalism' (Dworkin 1995; Rawls 1993), and continue to estimate the modern constitutional tradition as the only answer to questions of increasing ideational and value pluralism, and those that are in favour of some form of 'political constitutionalism', 'democratic liberalism', or 'democratic constitutionalism' (Bellamy and Castiglione 2000; Bellamy 2007; Tully 1995; 2008; Waldron 1999; Colon-Rios 2009), in which irreducible value pluralism is allowed to democratically emerge through political participation. The legal-constitutionalist view in principle endorses liberal constitutionalism, i.e., 'as a normative framework that sets limits on and goals for the exercise of state power' (Bellamy and Castiglione 2000: 172). On this view (akin to ‘new constitutionalism’), the constitution is seen as providing the preconditions for democracy. Democracy can only function as such if democratic politics abides to the constitutional limitations set to it. The constitution, and increasingly so the idea of an included set of entrenched fundamental rights, provide then an independent and superior law that secures the working and outcomes of democracy. One of the key assumptions of legal constitutionalism is that it is in principle possible to reach a reasonable consensus on what such preconditions of democracy ought to be, and how to translate them into a language of rights and fundamental law (Bellamy 2007: 3). In other words, it is possible to arrive at a set of 'essential preconditions for democracy', the 'right' abstract principles (Dworkin 1995) or 'best answers' (Bellamy 2007). One of the most well-known formulations of such an idea is that of an 'overlapping consensus' (Rawls 1993). The idea is further that once a higher law with the right basic norms is formulated, it should be regarded as a 'constitutional structure that a majority cannot change' (Dworkin 1995: 2). Since a consensus on the right norms has been found, there is no need to change such norms in the future, only to ensure the correct implementation of such norms. The view of the constitution emerging is a static, permanent framework, which is only to a very limited extent open to amendment. In this, the legal-constitutionalist view in essence understands the constitution as a 'meta-norm', which is not implicated in, as it transcends, substantive views on the common good, and in this provides a 'neutral framework that rests on a separation of the right from the good' (Bellamy and Castiglione 2000: 174-175). The type of societal and substantive pluralism that is guaranteed through such a consensus is, however, best designated as one of 'limited pluralism', in that only those views that ultimately are compatible with liberal individualism are included (Rosenfeld 1998). The political-constitutionalist conception takes a wholly different view of the role and substance of the constitution, and its relation to democratic politics. Its dispute with legal constitutionalism is based on the observation that the

9


need for [an] alternative and more political approach arises from the contested nature of rights. Despite widespread support for both constitutional rights and rights-based judicial review, theorists, politics, lawyers and ordinary citizens frequently disagree over which rights merit or require such entrenchment, the legal form they should take, the best way of implementing them, their relationship to each other, and the manner in which courts should understand and uphold them (Bellamy 2007: 16).

Rather than understanding the constitution as a 'right basic norm', it is understood as providing a basic framework for resolving disagreements over the right and the good. This also means that foundational norms should always be subject to reconsideration and reformulation. In other words, the constitution is not seen as an entrenched set of fundamental principles, but rather as the framework for the articulation of and deliberation over conceptions of self-government and the common good. As Bellamy aptly expresses it: 'we could see constitutions not as constraints imposed upon democracy but as the limits that a mature democracy places upon itself' (Bellamy 2007: 91). Political constitutionalism starts from the idea that reasonable disagreement is part and parcel of democracy. The critique of legal constitutionalism is that a 'failure to acknowledge the disagreements that surround constitutional values, and the resulting need for political mechanisms to resolve them, can itself be a source of domination and arbitrary rule that impacts negatively on rights and the rule of law' (Bellamy 2007: 145; cf. Waldron 1999). The attempt is then not to transcend pluralism, but to include the widest range of substantive views possible. Political constitutionalism points to a continuously evolving process of politics, including constitutional politics, in terms of political debate grounded in the principles of mutual recognition and audi alteram partem. The political view of the constitution arguably endorses a more comprehensive and inclusive view of pluralism, in that it emphasizes the negotiation of differences and a continuous quest for mutually agreeable conditions. In sum, political constitutionalism does not attempt to sever democratic politics from questions of justice and right, but, in full acknowledgement of the impossibility of settling constitutional questions and rights issues once and for all, it makes the relation between politics, and rights and legality visible by means of a continuous political engagement with acceptable interpretations. But theoretical pluralism does not end here. The shift towards a re-evaluation of democratic politics in political constitutionalism goes quite some way, but, according to more critical and radical-democratic constitutionalists, it falls short of obtaining its own, self-set ultimate aim. From one point of view, it can be argued that political constitutionalism supports the status quo ante of liberal representative democracy. A radical democratic view of constitutional democracy, in contrast, claims that democracy would need to entail a more direct and substantive participation of citizens in the democratic process, including constitutional politics. This second challenge to legal constitutionalism (but in part also to political constitutionalism) has been identified variously as 'democratic constitutionalism' (Tully 1995, 2008), 'weak constitutionalism' (Colon-Rios 2009), or 'participatory constitutionalism' (Hart 2003). Here, I will refer to this broad strand as 'civic constitutionalism'. 10


Civic constitutionalism shares with political constitutionalism an emphasis on the openendedness of the democratic process, and the ultimately open-ended nature of rights. But for civic constitutionalism this means the nature of the constitution itself is understood in a radically different way from modern constitutionalism's foundationalism. That is, whereas modern constitutionalism understands 'constitution making as an “act of completion”, the constitution as a final settlement or social contract in which basic political definitions, principles, and processes are agreed, as is a commitment to abide by them', civic constitutionalism entails a 'conversation, conducted by all concerned, open to new entrants and new issues, seeking a workable formula that will be sustainable rather than assuredly stable' (Hart 2003: 2-3; cf. Chambers 1998).3 While the foundational nature of modern constitutionalism is not dissolved completely, the idea of a 'final act of closure' is replaced by one of flexibility and a 'permanently open process' (Hart 2003: 3). This derives from an unwillingness to tie down democracy to choices made by previous generations, the recognition of the continuously changing nature of society and identity, as well as the realization of the ultimate impossibility of grounding foundational principles once and for all. Civic constitutionalism departs significantly from political or republican constitutionalism in that it judges representative constitutional politics as insufficient. Indeed, according to the latter, the 'democratic arrangements found in the world's established working democracies are sufficient to satisfy the requirements of republican non-domination' (Bellamy 2007: 260). Instead, civic constitutionalism endorses a more open democratic settlement which aims at the 'extension of democratic process to include, free, open, and responsive discussion of the constitutional settlement’.4 The latter provides the framework under which ‘diverse and disagreeing groups can live, while continuing to engage in a freely accessible debate about that settlement itself' (Hart 2003: 5, 3). If then both political and civic constitutionalism understand the constitution not as fully entrenched and prepolitical, but as an outcome of the continuous political process itself, it is only in the latter that democratic politics is understood in its radical sense as the ‘rule of people extended to all matters…, including the creation and recreation of the fundamental laws’ (Colon-Rios 2009: 23). In civic constitutionalism, the democratic dimension of constitutional democratic legitimation clearly has the overhand, even if the constitutional ordering type of legitimacy is not abandoned. To this effect, civic constitutionalism is potentially open to a much wider range of pluralistic influences.

3

Some dimensions of the afore-mentioned reflexive constitutionalism – deliberation, participation, conversationalism – clearly fall within this participatory strand. 4 Important institutional innovations to this regard can be found not only in established democracies, but also in some more recent Central and Latin American as well as African constitutions (see Colon-Rios 2009; Hart 2003).

11


Conclusion The argument of the chapter has been that while a longer trend of 'new constitutionalism' indicates a global convergence on legal understandings of constitutionalism - in this, amplifying distinct aspects of modern constitutionalism - the three pluralistic trends outlined problematize convergence as well as some of modern constitutionalism's key features. The trend of a fragmentation of sovereignty menaces the core of modern constitutionalism, i.e., the idea of sovereignty as rooted in a singular, central site of authority, and the coincidence of jurisdiction, sovereignty, and constituent power. The trend of cultural pluralism and diversity, in particular in multi-national democracies, problematizes modern constitutionalism’s alleged neutrality and the background assumption of a singular identity. In this, it problematizes the formalistic reading of constitutionalism in much of legal and political theory, and shifts attention to the constitution’s sociological, symbolic dimension. The trend of interpretative pluralism further reveals the deeply problematic nature of an understanding of constitutionalism as an uncontested and politically neutral concept, and the impossibility of formulating incontestable meta-norms. It suggests that democratic politics needs to comprise its own foundations if pluralism-in-fact is to be included comprehensively. Modern constitutionalism is evidently in flux, and, in this, the post- and sub-state pluralization of constitutional orders, and proliferation of multiple layers and segments, seem inarrestable trends. But while the theoretical evaluations of the three pluralistic trends illustrated in this chapter indicate, on the one hand, the undeniable erosion of modern constitutionalism’s centralizing, homogenizing, legalistic and exclusionary dimensions, on the other, the possible openings for more inclusionary, pluralistic and democratic forms of constitutional politics and constitutionalisms – identified in particular by critical, radicaldemocratic accounts - seem much less assured. Acknowledgement The author acknowledges a three-year post-doctoral fellowship provided by the Provincia Autonoma di Trento, held at the department of Sociology, University of Trento, Italy. References Arjomand, S.A. (2003). ‘Law, Political Reconstruction and Constitutional Politics’, International Sociology, 18 (1) 7-32. Avbelj, M. & J. Komarek (2008). 'Four Visions of Constitutional Pluralism – Symposium Transcript', European Journal of Legal Studies, 2 (1) 325-370. Bellamy, R. (2000). 'Dealing with Difference: Four Models of Pluralist Politics', in: Parliamentary Affairs, 53 198-217. Bellamy, R. (2007) Political constitutionalism: a republican defence of the constitutionality of democracy, Cambridge: Cambridge University Press. 12


Bellamy, R. and D. Castiglione (2000) 'Democracy, Sovereignty and the Constitution of the European Union', in Z. Bankowski and A. Scott. (eds.) The European Union and Its Order: the Legal Theory of European Union Integration, Oxford: Basil Blackwell 169200. Bohman, J. (2004). ‘Constitution Making and Democratic Innovation. The European Union and Transnational Governance’, European Journal of Political Theory, 3 (3) 315-337. Calhoun, C. (2007) Nations matter: culture, history, and the cosmopolitan dream, London/New York: Routledge. Chambers, S. (1998). ‘Contract or Conversation? Theoretical Lessons from the Canadian Constitutional Crisis’, Politics & Society, 26 143-172. Cohen, J. (2004). 'Whose Sovereignty? Empire Versus International Law', in: Ethics & International Affairs, 18 (3) 1-24. Colon-Rios, J.I. (2009). 'The End of the Constitutionalism-Democracy Debate', CLPE Research Paper, 03/2009, 5(1). Dworkin, R. (1995). 'Constitutionalism and Democracy', European Journal of Philosophy, 3 (1) 2-11. Haberle, P. (1992). 'Verfassungsentwicklungen in Osteuropa - aus der Sicht der Rechtsphilosophie und der Verfassungslehre', Archiv des öffentlichen Rechts, 117(2) 169-211. Habermas, J. (2001). 'Why Europe Needs a Constitution', New Left Review, 11 5-26. Hart, V. (2003). ‘Democratic Constitution Making’, Special Report, United States Institute for Peace, available at: http://www.usip.org. Koskenniemi, M. (2007). 'The Fate of Public International Law: Between Technique and Politics', Modern Law Review, 70 (1) 1-30. Kymlicka, W. (2001) Politics in the Vernacular. Nationalism, Multiculturalism, and Citizenship, Oxford University Press. Loughlin, M. and N. Walker (2007) 'Introduction', in M. Loughlin and N. Walker (eds.) The Paradox of Constitutionalism. Constituent Power and Constitutional Form, Oxford University Press 1-8. MacDonald, R.A. (2005) ‘Legal Republicanism and Legal Pluralism: Two Takes on Identity and Diversity’, in M. Bussani and M. Graziadei (eds.) Human diversity and the law, Brussels: Bruylant 43-70. Priban, J. (2007) Legal Symbolism. On Law, Time and European Identity, Aldershot, UK/Burlington, USA: Ashgate. Rawls, J. (1993) Political Liberalism, Columbia University Press. Rosenfeld, M. (1992). ‘Modern Constitutionalism as Interplay Between Identity and Diversity’, Cardozo Law Review, 14 497-531. Rosenfeld, M. (1998) Just Interpretations: Law Between Ethics and Politics, Berkeley: University of California Press. 13


Rosenfeld, M. (2008). ‘Rethinking Constitutional Ordering in an Era of Legal and Ideological Pluralism’, International Journal of Constitutional Law, 6 (3/4) 415 – 455. Stone Sweet, A. (2008). ‘Constitutions and Judicial Power’, in D. Caramani (ed.) Comparative Politics, Oxford University Press 217-239. Stone Sweet, A. (2009). ‘Constitutionalism, Legal Pluralism and International Regimes’, Indiana Journal of Global Legal Studies, 16 (2) 621-645. Taylor, C. (1994). Multiculturalism: examining the politics of recognition, edited and introduced by Amy Gutmann, Princeton, N.J: Princeton University Press. Teubner, G. (1997). ‘Global Bukowina: Legal Pluralism in the World Society', in G. Teubner (ed.) Global Law Without a State, Dartmouth: Aldershot, 3-28. Tierney, S. (2004) Constitutional Law and National Pluralism, Oxford University Press. Tierney, S. (2008). 'Review Article. Beyond the Ontological Question: Liberal Nationalism and the Task of Constitution-Building', European Law Journal, 14 (1) 128-137. Tully, J. (1995) Strange multiplicity: constitutionalism in an age of diversity, Cambridge/New York: Cambridge University Press. Tully, J. (2001) 'Introduction', in A-G. Gagnon and J. Tully (eds.) Multinational Democracies, Cambridge University Press 1-34. Tully, J. (2008) Public philosophy in a new key, Cambridge: Cambridge University Press. Waldron, J. (1999) Law and Disagreement, Oxford: Clarendon Press. Walker, N. (2002). 'The Idea of Constitutional Pluralism', in: Modern Law Review, 65 (3) 317-359. Walker, N. (2008). 'Taking Constitutionalism Beyond the State', Political Studies, 56 519543. Weiler, J.H.H. (2001) 'In defence of the status quo: Europe's constitutional Sonderweg', in J.J.H. Weiler and M. Wind (eds.) European Constitutionalism beyond the State, Cambridge University Press 7-26. Weiler, J.H.H. (2003) Un’Europa cristiana. Un saggio esplorativo, Milano: BUR Saggi. Wiener, A. (2008) The Invisible Constitution of Politics. Contested Norms and International Encounters, Cambridge University Press.

14

Modern Constitutionalism and the Challenges of Complex Pluralism  

Book chapter

Read more
Read more
Similar to
Popular now
Just for you