Taking “The Dark Side” Seriously: Constitutionalism and the Question of Constitutional Progress

It is an obvious point that the global history of constitutionalism cannot plausibly be told as a simple progress narrative. The French and American Revolutions did not trigger an ineluctable steady march of progress. And the end of the Cold War did not bring about the realization of a world made up of liberal constitutional democracies integrated by a global rule of law. Yet it is worthwhile to pause and think more closely about the different ways in which progress narratives might be misguided and in which ways they might not be. This might not only lead to a richer understanding of how constitutionalism relates to some of the calamities of the present, it might also point to a critical role that constitutional scholarship might play, and an apologist role that it should avoid playing.

To begin with, let me state briefly what “constitutionalism” refers to here and what gives progress narratives prima facie plausibility. The eighteenth-century revolutions in France and the United States brought into the world the emancipatory idea of free and equals governing themselves through law. The commitments to human rights, democracy and the rule of law – what I call the trinitarian grammar of the constitutionalist project – has over time become a globally dominant paradigm for contesting and justifying law and its implicit claim to legitimate authority. Liberal constitutional democracies have become a global, even if clearly not universal or uncontested, phenomenon, having spread to every inhabited continent. Their foundational principles are effectively requirements laid down by international human rights law. Furthermore, there is a widespread recognition of a deep link between a commitment to liberal constitutional democracy and the idea of a rule-based international legal order, which was first analysed in Kant´s Perpetual Peace and became subject to a considerable number of empirical studies by international relations scholars since the late 1990s.

Constitutionalism understood in this way is not just the disinterested study of the structures of organized power as Aristotle understood it, or of formal written documents in a positivist sense. It is the study of the idea of self-government of free and equals, developed as a constitutional commitment to human rights, democracy and the rule of law, as it is interpreted and specified across jurisdictions. The study of constitutionalism is likely to be theoretically informed, comparative and integrate the international in some way.

If the following is a critique of progress narratives, it is nonetheless written from the perspective of a believer in constitutionalism and of the possibility of progress. If anything, that is what might make this contribution interesting. If one believes that all universal claims are best understood as masking particular interests and that there are no standards by which to assess progress, then obviously the idea of progress narratives remains anathema to you and there is little else to say. But what are the different ways in which constitutionalist progress narratives can go wrong, when taken seriously, from an internal point of view, the normative commitments underlying the constitutionalist tradition? And what does this imply for understanding the present and the role of constitutional scholarship?

One way in which progress narratives tend to obscure rather than illuminate is the following: If we have a move from point A to point B and we can plausibly characterize that move as progress from an enlightened constitutionalist point of view, then we should not be too quick to assume that genuine moral learning has taken place. A more skeptical account may insist that other factors account for the change: What may appear as constitutional progress might thus be accounted for just as or more plausibly as responsiveness to economic or military imperatives. Constitutional progress may often turn out to be the result of a “dubious coalition” of factors. Progress is not pure. We should be careful not to be too confident about its stability, once the underlying economic or military imperatives change. This way of critique of progress narratives introduces some level of skepticism about the claim that progress is the result of collective moral learning, emancipation or enlightenment.

Another way in which progress narratives tend to go wrong is that they leave out too much or inappropriately underemphasize what does not fit. Note how this is not just a question of historical craftsmanship, it is a question of judgment on what matters and what does not, what deserves emphasis and what can be relegated to the background. That is to a large extent a moral question. Nationalism, Empire and World War I are inaptly described as stepping stones to the reformist progressive era of the Inter-War Period. Fascism and the Holocaust are not simply a waystation on the way to European integration, the construction of the United Nations and the global recognition of human rights. The Cold War may be over, if we think of it as a series of proxy-wars between two superpowers with conflicting ideologies. But its depraved nuclear posture of mutual annihilation is not something that has been genuinely overcome: we still live in the shadow of threats of mass atrocities that are built into military doctrines, weapons programs and budgetary apportionment of major powers. No nuclear power has a doctrine governing its use that would stand scrutiny before an impartial and independent international criminal tribunal. Finally, although the calamities of the present have not (yet?) given rise to the kind of conflagrations that characterized the low points of the twentieth century, the list of recent development is depressing (even if the recent Paris agreement on Climate Change also provides a ray of hope): the disintegration of major parts of the Middle East and the millions of casualties in terms of deaths, refugees and displaced persons; the slipping back or strengthening of authoritarianism and neo-imperial ambitions of powers like Russia, Turkey or China; the failures of the European Union and its delegitimizing implications following its poor performance in the aftermath of the financial crisis and the refugee crisis; the electoral triumphs and sympathies for the hard right parties and candidates not only in Eastern and Middle Europe but also in the traditional Western heartlands like France and the US, and the list could go on. One would have to be a Pangloss or a Pollyanna to describe these calamities as the necessary birth pangs of a brighter future.

But progress narratives are not only insufficiently attuned to “the dark side” and its lingering presence in actual legal and political relations, they also tend to misrepresent the relationship between constitutionalism and “the dark side”. Constitutionalism as a concrete historical practice is often implicated with practices of domination and injustice. The pathologies of constitutionalism are often a contributing cause for resentment that breeds support for counter-constitutionalist political movements. The relationship between constitutionalism and those forces that are aligned against it are not plausibly described simply as the struggle between an enlightened educated citizenry and the misguided culturally and intellectually backward hoi polloi who struggle with the demands of modernity. The problem is not just that a part of the population has difficulties adjusting culturally and economically to genuinely open societies and competitive processes of globalization, problems that political entrepreneurs then exploit. This is a deeply complacent view and doesn´t get to the roots of the problem. In most actual circumstances where constitutionalism is in crisis, people are not just facing economic and cultural adjustment problems. They have good reasons to be concerned and have a plausible intuitive grasp that the system is skewed against them. And constitutional practices often play a central role in loading the dice, legitimating and entrenching structural pathologies.

Here are three contemporary examples (the list could be extended indefinitely), showing how constitutional doctrines, institutions or arguments are connected to the perpetuation and legitimation of structural injustices. 1. Think of the US Supreme Court case of Citizens United v. Federal Election Commission and campaign finance in the US. The amount of money a candidate raises is followed nearly as closely as the latest poll numbers, and candidates generally spend more time speaking to the super-rich raising money than either on the stump or participating in legislative activity. 2. Think of the strange fact that within six months in 2008 during the financial crisis the European Commission, according to Commission statistics, authorized 4.5 trillion Euros in state aid to banks – that is roughly 30% of the EU´s annual GDP in a context where the whole of the EU´s budget is effectively frozen at roughly 1% of European GDP. And then think of the energy used to ensure that struggling states, after having nearly bankrupted themselves bailing out banks, are subjected to a “structural adjustment” and austerity regimes affecting disproportionally those worse off. Here the EU functioned as a flexible enabler when it came to rescuing banks and as a hardhearted (and some would argue, softheaded) proverbial Swabian housewife when it came to budgetary austerity. The intergovernmental structure of the political process as well as other constitutional constraints made it politically impossible to articulate competing European agendas that could marry serious financial market and banking regulation reform with budgetary rules and European solidarity through some level of tax and spending measures. Is it surprising that more citizens are becoming Eurosceptics and think the EU is a scam of the privileged, against which ordinary citizens need to protect themselves? 3. There is little doubt that ISIS would not exist in anything resembling its current form if the failed war of a mostly Western coalition of the willing against Iraq had not taken place (or, alternatively, if the Iraqi army had not been disbanded or if the Obama administration had been happy to further extend non-negligible US troop presence in Iraq). The strong position of ISIS in Libya, too, has been made possible by NATO´s military intervention there. In both cases, humanitarian or democracy based arguments played a central role in justifying these actions, enabling powerful actors to wreak havoc without any legal means to hold them accountable for their failures or require sustained engagement.

In all of these cases constitutional doctrines, constitutional structures or constitutionalist arguments played a central role in strengthening “the dark side” – the “other” of human rights, democracy and the rule of law. Constitutionalism in practice, then, is not always on the side of progress. It is sometimes complicit in the concrete injustices and forms of domination it more abstractly claims to want to abolish.

I do not share the view according to which the problem is somehow inherent to constitutionalism as a universalist project. Of course, constitutional norms, like any norms (not just universal norms) are susceptible to being abused, self-interestedly misinterpreted or otherwise misunderstood. That danger becomes more serious when powerful actors stand to gain or lose from different interpretations or specifications of abstract norms and capture the process of their interpretation or their specification in political processes. But unless one is willing to embrace the intellectually dubious and psychologically juvenile position (apologies to Nietzsche and Foucault) that law is all about power anyway, the fact that there is such a danger merely calls for vigilance in the form of an appropriately critical attitude. Such a critical attitude takes an internal point of view with regard to the commitments of principles inherent in the constitutionalist tradition. It insists on critically reflecting on whether the specifications and concretization in the form of specific norms and actions are in fact justifiable under the best understanding of these principles, as they apply in the relevant context. In other words: all of the examples referred to above can and have been criticized drawing on the resources the constitutionalist tradition makes available. Constitutionalism, as a normative practice, has considerable capacities for self-reflection and self-correction in virtue of its foundational commitments to human rights, democracy and the rule of law. If Joseph Raz is right and law makes a claim to authority, in the constitutionalist tradition law itself provides the critical standards for assessing whether such claims are justified in concrete circumstances. Once those reflexive capacities are recognized, constitutionalism can serve not only the purposes of doctrinal reconstruction, but also reveals its potential for a principled critical orientation. In a world where constitutionalism has effectively gone global, constitutionalism becomes a general critical theory of law that is internal to the law.

A longer version of this post has originally been published as an editorial in the International Journal of Constitutional Law 13, no. 4 (2015): pp. 777-785.
Access to the editorial is available here.

Written by

Mattias Kumm holds the Research Professorship "Global Constitutionalism" at the WZB Berlin Social Science Center and the Research Professorship "Rule of Law in the Age of Globalization" at the Law Faculty of Humboldt-Universität zu Berlin. He is also the Inge Rennert Professor of Law at New York University School of Law.
Website at the WZB

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