Exploring the Role of Ideas in Constitutionalism: Constitutionalism
and the Paradox of Constitutional Development.
Michael W. Dowdle
National University of Singapore
I.
OVERVIEW
This international workshop on “Exploring the Role of Ideas in Constitutionalism”
seeks to examine how “taking ideas seriously” can help overcome certain paradoxes
that impede our efforts to understand processes of constitutional development (cf.
Loughlin and Walker 2006). As will be explained below, “ideas” in this context
refers to particular kinds of epistemic devices, independent of any particular contents
(see Gadamer 2004; Berger and Luckman 1965). This backgrounder seeks to show
how appreciating the epistemic structure of ideas as they operate within the particular
context of modern constitutionalism can give us purchase for understanding processes
of constitutional development that are currently obscured by more traditional
perspectives of constitutionalism.
II.
THE ISSUE: THE PERVASIVE EVOLUTIONALITY OF CONSTITUTIONISM
Today, discussions of comparative constitutionalism are dominated by a particular
conception of constitutionalism that we might call the “liberal-structural” model. This
conception is “liberal” because it sees the defining element of constitutionalism as
being one of limiting or constraining state power (Maddox 1989; see also Holmes
1995: 13-41). It is structural because it sees constitutions as limiting governments
through the construction of particular organizational architectures, such as electoral
democracy, separation of powers, and procedures of judicial (constitutional) review
(see, e.g., Henkin 1994).
This liberal-structural vision derives principally from the tropes that evolved in the
United States in the process of makes political sense of the American Constitution of
1789. Because that constitution was developed within the context of an already well
established and well functioning governmental system, it was conceptualized as
restraining and limiting a state power that effectively predated the new constitutional
order itself (cf. Arendt 1977: 139). The Preamble of that Constitution makes this
explicitly clear: the American Constitution of 1789 was created “in order to make a
more perfect union.” In other words, the American Constitution of 1789 was to be
inserted into a union (i.e., a state) that already existed and that – as per the antiFederalists – already functioned quite effectively (cf. Amar 1991; Gay 1996.)
Also like the American Constitution of 1789, comparative constitutional discourse
sees a constitution as a device that is concerned with and defined by particular
structural attributes. These most commonly include electoral democracy, separation
of powers, transparency, an independent judiciary, rule of law, and procedures of
judicial (constitutional) review (Henkin 1994, Holmes 1995). They also are often said
to include a particular writing – a constitution tends to be associated with a particular
piece of extraordinary legislation. Again, this particular vision of constitutionalism
dates directly from the American constitution of 1789. Prior to the drafting of that
document, the idea of a constitution was not particularly associated with a particular
writing or a particular governmental architecture, but primarily with a particular set of
moral principles that attached to the behavior of government. In fact, the American
Constitution of 1789 was directly intended to supplant this earlier, moral-principle
based constitutional discourse, which was beginning to be used by some postrevolutionary Americans to contest the legitimacy of domination by the new
independent American state in the same way that pre-revolutionary Americans had
contested the legitimacy of English domination (Wood 1993; see also Lienesche
1993).
Of course, the liberal-structural notion of constitutionalism has worked quite well for
the United States and also for many other nations. But his is likely to be in part
because these nations did indeed construct their liberal-structural constitutions on top
of socio-political orders that were already robust, stable, and effective prior to the
introduction of a new liberal-structural constitutional document. When this is not the
case, however, this particular vision becomes problematic. (See generally Dowdle
2006.)
The limits of the liberal structural vision are particularly manifest in two kinds of
situations. One is that of state building. In many places and histories,
constitutionalism is associated with state building, not state limiting. A vision of
constitutionalism that defines a constitution solely in terms of limiting state power is
going to have little to say about how constitutionalism might actually be able to gain
meaningful purchase in an environment in which the driving concern is one of
creating rather than limiting state power (Amar 1991). And yet many effective
constitutions have emerged precisely out of such conditions. Indeed, it is arguable
that even the American Constitution of 1789 was actually itself ultimately an exercise
more in state building than in state limiting (Wood 1993; Holmes 1995; see also
Arendt 1977). Certainly for the first couple of generations of post-independence
American society, that Constitution was celebrated precisely for its effectiveness in
creating a strong state, rather than for its effectiveness in constraining a state that was
threatening to become too strong (Kammen 1986).
The other situation in which we see the limits of the liberal-structural vision is in what
we might call the phenomenon of “constitutional evolution”. Simply put, it is well
recognized that a constitutional system is constantly evolving in ways that are not
foreseen by the founders of that system, in way that are not foreseen by
contemporaries living in the system, and even in ways that run counter to the
intentions of both founders and current elite (see, e.g., Wood 1993; cf. Ackerman
1991). In other words, it evolves in ways that are “spontaneous” — i.e., beyond the
reach of human intentionality.
Such evolution subtly contradicts the structural predicates of the liberal-structural
constitutionalism (see Sciulli 1992, see also Dworkin 1997). Liberal-structural
constitutions claim to work by assigning and locking-in particular articulations of
state power to particular state and non-state structures. Key to the success of this
scheme is the ability to strategically control this thing called power: to be able to
2
intentionally disaggregate it and assign it and limit it to some particular constellation
of institutional sites. The constitutional evolutions mentioned above, on the other
hand, can and often do involve significant rearrangements of state power. But their
spontaneous character shows that even in the most mature and robust of constitutional
systems, state power is in fact able to flow around and redistribute itself within the
constitutional architecture in ways that ignore these design constraints (see, e.g.,
Wood 1993). This is particularly problematic because structural-liberal visions of
constitutionalism see such power is innately corrupting and dangerous (Holmes 1995;
Henkin 1994; Maddox 1989). The fact that this power can and does escape its
institutional controls threatens to suggest that constitutionalism is itself ultimately
impossible (Dworkin 1997).
Again, none of this is to argue that the liberal-structural vision is wrong. It is simply
to point out that there are notable constitutional dynamics that it works to obscure.
When these dynamics come into play, this model can become dysfunctional. This is
particularly the case with emergent and developing constitutional systems,
particularly those of the Global South—systems whose constitutional potential lie
precisely in dynamics of constitutional evolution and building state power rather than
simply in a capacity to constrain such evolution and restrict such building. By
obscuring developmental and evolutionary dynamics, the liberal-structural vision can
easily shine a very pessimistic light on the future possibilities of these systems—
confusing transient imperfections for irredeemable corruptions (see, e.g., Pei 2006;
Zakaria 1997). It also threatens to misinform international developmental programs,
by obscuring and mislabeling ersatz yet developmentally promising constitutional
dynamics that these programs might be better advised to work with and through rather
than against and around (see, e.g., Pasuk and Baker 2000). In extreme case, as was
the case (I would argue) with the 2005 vote on the European Constitution, it can
mislabel a constitutional success, i.e., a polity rejecting a formal constitution because
it feels the need to identify itself as a truly democratic polity first, as a constitutional
failure, i.e., a reactionary protectionist rejection of liberal integration (Christodoulidis
2003; Wilkinson 2003).
III.
SOME RESPONSES AND THEIR PROBLEMS
This particular problem with the liberal-structural vision has been well recognized in
the literature. Four kinds of responses can be identified. These are (1) writings
relating to what has been Martin Loughlin and Neil Walker (2007) have termed “the
paradox of constitutionalism”, including most prominently those of Hannah Arendt
(see, e.g., Wilkinson 2011); (2) the ‘critical legal studies’ of Roberto Unger (1983),
which has been more recently developed in the work of Michael Dorf and Charles
Sabel (1999) on “democratic experimentalism”; (3) the “pre-commitment” literature,
as reflected for example in the works of Stephen Holmes (1995), Martin Shapiro and
Alex Stone Sweet (2002), and Tom Ginsburg (2003); and (4) discourse-based
responses, most notably Bruce Ackerman’s (1991) germinal work on “constitutional
moments” and Gary Jacobsohn’s recent book on Constitutional Identity (2010). All
of these represent important contributions to constitutional thought. But each retains
critical aspects of the liberal-structural paradigm, in particular its emphasis on remedy
through institutional design. And for this reason, none really overcomes the
conceptual conundrum, described above, of the phenomenon of constitutional
evolution and development.
3
Perhaps the first widely known articulation of this limitation in the liberal-structural
vision, at least in the post-War world, was that of Hannah Arendt (see generally
Wilkinson 2011). But because Arendt retained the liberal definition of
constitutionalism, she ultimately remained pessimistic regarding constitutionalism’s
conceptual capacity to overcome its developmentalist limitation. To her,
constitutionalism seems forever resigned to simply perpetuating a static status quo. A
similar skepticism attaches to the recent investigation into the “paradox of
constitutionalism” initiated by Martin Loughlin and Neil Walker (2007). Like
Arendt, they define constitutionalism as an innately structural phenomenon, and end
up questioning whether is has the democratically adaptive capacities liberals
reflexively attribute to it.
In the early 1980s, Roberto Unger (1983) issued a similar critique of liberal
constitutionalism’s tendency to enshrine the status quo, in his articulation of the
“critical legal studies movement”. In contrast to Arendt, however, Unger’s critique
included a recommended response to this problem: what he called “destabilization
rights”, which were intended to catalyze a kind of continuous revolution that would
prevent any particular power hierarchy from using the constitution to insulate itself
from future challenge. Some 15 years later, Michael Dorf and Charles Sabel (1999)
further developed this notion of “destabilization rights” through their model of
democratic experimentalism. Democratic experimentalism described a particular
institutional architecture that worked to promote constitutional adaptability and
learning by destabilizing entrenched hierarchies and opening decisionmaking routines
to a greater diversity of sources of useful information and (local) knowledge (see also
Sabel and Simon 2004).
Both destabilization rights and democratic experimentalism provide useful insights
into the problem of constitutional development. But both are quite limited in their
reach, in significant part because neither really addresses the fundamental conceptual
conundrums that prevent us from coming to grips with the idea of a “constitutional
development” per se. Unger’s ideas are innately liberal – they are ultimately
concerned with limiting the state so as to prevent its capture by social hegemonies
(see also Cui 1997, but see Holmes 1993). For this reason, it offers little to
developing polities whose principal developmental obstacles lies in a lack of state
power rather than in the hegemonic capture of that power. In addition, Unger’s sees
destabilization rights as institutionalized rights, and therefore fails to explain or
account for the more evolutionary processes of constitutional development explored
above. Dorf and Sabel’s democratic experimentalism is more successful in moving us
beyond liberalism, and for this reason does suggest a possible way of thinking about
constitutionalism within the context of state building (in fact, it has been criticized
precisely for it failure to address the need for limiting governmental power, see, e.g.,
Wilkinson 2007). But it is still ultimately a structural model, and thus offers little
insight into how polities that lack such institutions and that lack the capacity to decree
such institutions, nevertheless have been able to develop and evolve effectively (but
see Dowdle 2002).
From within the liberal tradition, the dominant response to the problem of
constitutional emergence and evolution is found in what is sometimes referred to as
the pre-commitment literature (see especially Shapiro and Stone Sweet 2002;
4
Ginsburg (2003); see also Holmes 1995). As probably germinally represented in the
work of Martin Shapiro and Alex Stone Sweet, this literature argues that the
emergence and evolution of constitutionalism can be explained by the evolutionary
utility of having competing political factions agree and commit themselves to
following particular routines for dispute-resolution in cases of political disagreement
or competition. It is the recognition of the mutual benefits of such pre-commitments,
they argue, that causes constitutions to get started (see also Ginsburg 2003), and it is
in the need to constantly update these pre-commitments to take account of unforeseen
developments that constitutions evolve (see especially Shapiro and Stone Sweet 2002,
55-89).
But at the end of the day, the pre-commitment argument does not really resolve the
conceptual dilemmas of development and evolution. At best, it simply pushes these
dilemmas further back along the developmental trajectory. This is because the very
idea of a constitutional pre-commitment presumes a pre-existing constitutional order
of sorts (see also Ginsburg 2003). It presumes, for example, that there already exists a
sufficient balance of power among competing factions such that domination, which
liberal theory itself suggests would be preferred to pre-commitment if it were an
option, is in fact no longer a realistic option. It presumes the existence of neutral fora
in which factions can come together to bargain and detail the agreed upon routines
and procedures. It presumes that factions are organized enough to have an
identifiable and coherent leadership that can meaningfully control the rest of its
members.
Nor does pre-commitment explain the distinctly spontaneous evolutionary dynamic of
constitutionalism. Pre-commitment is fundamentally a product of intention and
foreseeability. One cannot commit to an action unknowingly; one cannot commit to
an action if one does not know what that action is. But as suggested above,
constitutional evolution frequently provokes changes that are neither intentional nor
foreseen. The Jacksonian Democracy that emerged in American in the 1820s was in
many ways directly contrary to that which the framers of the American Constitution
sought to “pre-commit” themselves to just thirty years earlier in 1789 (Wood 1993).
The idea of pre-commitment does not help us understand how a constitutional system
could survive such spontaneous revolution in constitutional dynamics.
Perhaps the most widely referred to work on the dynamics of constitutional evolution
and development, at least in the United States, has been Bruce Ackerman’s We the
People (1991), with its famous explication of what he terms “constitutional
moments”. Ackerman’s notion of a “constitutional moment” stems from an express
recognition that constitutional systems can evolve spontaneously, outside of that
system’s own architecture for channeling political change and political power, and
that constitutionalism needs to be able to make sense of this phenomenon. Along
these lines, his constitutional moments describe punctuated episodes of pronounced,
spontaneous constitutional evolution. Looking at American constitutional history, he
argues that these episodes are driven by markedly intensified public deliberation
about the nature and meaning of the constitution, a deliberation that grows to escape
the formal architecture of the constitution per se. Eventually, however, this
deliberation is recaptured by the constitutional structure and integrated into the formal
constitutional system, transforming that system in the process.
5
Ackerman’s moments do indeed move us closer to understanding constitutional
change and evolution, particularly in that it acknowledges and tries to account for the
fact that that such evolution can be institutionally spontaneous. But his articulation of
the dynamics of these moments is still too limited for our purposes. At the end of the
day, Ackerman’s account is still primarily about institutions: the evolutionary
effectiveness of his constitutional moments is still ultimately and vitally dependent
upon the presence of a particular and well-designed constellation of mature
constitutional institutions that is able to convert spontaneous public deliberation into
new constitutional architecture. For this reason, his account ends up again begging
the question as to why and how constitutions can spontaneously evolve and develop
in situations in which these institutions are not present, as they often are not. (See,
e.g., Dhavan 2008.)
Like Ackerman, Gary Jacobsohn’s recent book, Constitutional Identity, is also
expressly interesting in explaining constitutional change. And also like Ackerman,
Jacobsohn locates the dynamic for such change in the mechanism of discourse. But
Jacobsohn locates the driving force behind that discourse in its subject rather than in
its processes of institutionalization. In Jacobsohn’s model, this transformative
discourse involves the continual search for what he calls “constitutional identity”.
This identity is closely associated with history, which provides a stabilizing force
independent of structure.
But Jacobsohn seems to push us too far in the other direction. His reduction of
constitutionalism’s developmental dynamics wholly to discourse about identity
threatens to deny the import of structure entirely. But structure seems to be important
to constitutionalism in its own, distinctive right. To conflate it to discourse-byanother-name removes from analytic view whatever it is that makes this component
distinct. This is not to deny that what we are calling structure – constitutional form –
might not ultimately be itself discursive in character. But to the extent it is, it is
nevertheless represents a distinctive and unique form of discourse: a distinctiveness
that Jacobsohn’s analysis itself obscures. The paradox of constitutional development
therefore remains.
If the critique of Jacobsohn presented above bears significant resemblance to Jürgen
Habermas’s critique of Max Weber (compare Habermas 2004: 278-295), it may be
because the approach that motivates this workshop similarly parallels the approach
that Habermas advocated in his response to Weber (see Habermas 2004: 295-337).
Jacobsohn clearly gets us started in the right direction. But getting to the heart of the
constitutional paradox requires that we unpack the dynamics of discourse, so as to
identify how discourses of structure interact with other kinds of discourses of identity.
As will be examined below, we can do this by focusing, not on discourse per se, but
on the constituent stuff of discourse—namely ideas.
IV.
CONSTITUENT POWER AND TAKING IDEAS SERIOUSLY
A. [Constitutent power]
6
B. Evolution and ideas
Where might we look to gain analytic purchase on those developmental and
evolutionary dynamics of constitutionalism obscured by the liberal vision? One place
might be to evolving constitutional polities themselves. Consider the following story
of constitutional evolution in Communist Poland in the early 1950s, as described by
Andrzej Rapaczynski (1991: 596-598). In the early part of that decade, Poland was
effectively a vassal state of the Soviet Union. In 1952, the Soviets had imposed on
Poland a constitution that was actually quite impressive from a liberal perspective.
But of course, this constitution was “a fiction in nearly every respect, and the
authority treated it essentially as propaganda for foreign consumption” (Rapaczynski
1991: 596). It bore no resemblance to how government actually operated.
The death of Stalin and a slight easing of Soviet control bequeathed a certain bit of
autonomy to the Polish state. And one of its first acts was to amend the 1952
Constitution to bring it closer in line with reality:
Surprisingly perhaps, . . . the constitutions of Eastern Europe became
somewhat less liberal as the Stalinist terror relaxed. The ‘leading role’ of the
communist parties was written into these documents, as was the special role of
the Soviet Union in the countries’ affairs. The litany of unenforceable social
and economic rights expanded with time, while American-style political rights
were scaled down . . . .
Paradoxically, however, the act of implementing a more realistic and more expressly
authoritarian constitution triggered a countervailing liberalization and
constitutionalization of Poland’s actual political environment:
In a somewhat perverse way, . . . the reforms reflected a movement
toward the rule of law. . . . . [A]t least in Poland and Hungary, the leadership
also tried to present a certain façade of legitimacy to the population at large.
The regime made clear that it would tolerate no fundamental assaults on its
core powers, but it permitted a certain amount of freedom at the margin.
Therefore, the regimes returned in part to legality: at the very least a paper
record was left of official action, and the increased publicity deterred most
instances of purely personal exercise of power by the lower echelons of the
party and the state bureaucracy.
To implement such a system, however, legal norms had to become
somewhat more realistic; they had to give the leadership the right to suppress
opposition to the fundamental principles on which communist authority was
based, and with time these changes had to reach the constitutional level. The
amendments concerning the ‘leading role’ of the Communist party, for
example, removed most legal grounds from the potential political claims of the
opposition. Similarly, the codification of the dominant position of the Soviet
Union and the unassailable status of the Warsaw pact expressed a formal
limitation on Eastern European countries’ sovereignty, and thus marked a
relatively clear boundary (set by the Brezhnev Doctrine) of all possible
internal reforms. At the same time, however, these changes signified that
constitutions were beginning to mean something. In Poland, the government
even took some steps to introduce a watered-down version of judicial review.
7
This dynamic has also been well described in other literatures. Jon Elster (1998: 109112) has termed it “the civilizing force of hypocrisy” – and explains it as the product
of the fact that political effectiveness ultimately depends at some level on keeping
one’s word. Writing some hundred and fifty years earlier, Alexis de Tocqueville
(1998) identified a similar dynamic, what Mark Barenberg (1994: 833-34) has more
recently termed “runaway legitimation”, driving the progression of the French
Revolution (see also Baker 1990).
All this introduces us to an important corrective to the liberal-structural vision. This
is the recognition, obscured by the liberal-structural emphasis on structure, that “ideas
matter” (see also Habermas 2004: 279-295). In other words, it is the recognition that
ideas can constrain independent of any particular structural design. They can
constrain by constraining cognition: by subjecting the definition of power to the
constantly churning evolutions of social meaning (cf. Lessig 1995). And since the
construction of social meaning is an innately spontaneous phenomenon, this makes
“ideas” a good candidate for that non-structural motor for spontaneous constitutional
evolution that we here are here searching for.
In claiming that “ideas matter”, it needs to be emphasized that what matters is the idea
as an epistemic phenomenon, and not as a bearer of some particular content (see
Gadamer 2004; Berger and Luckman 1966; contrast with Holmes 1995; Dworkin
1997). The ideas that matter can be liberal, but they do not need to be—they can just
as well be non-liberal or even anti-liberal, as the above example of Poland in the
1950s demonstrates. They can be fictitious, as was that of the “Norman Yoke” in
English constitutional history (see Vann 1958) if not blatantly and unapologetically
false (see Braithwaite et al. 2010). What matters is the idea’s capacity to shape the
construction of cognition.
As I have described elsewhere (see Dowdle 2005), the modern, post-Aristotelian
understanding of constitutionalism in part grew out of a new kind of political
epistemology brought about by the Enlightenment (Dowdle 2005; cf. Gay 1996).
This was an epistemology that saw political truth – political authority – as being
grounded in universal reasons that were cognitively accessible to all persons, as
contrasted against an earlier epistemology that saw political knowledge as being
limited to a particular class of the population. In his germinal analysis of the French
Revolution mentioned above, Tocqueville (1998) expressly identified this new
political epistemology, this new way of constructing political ideas, as the
spontaneous motor that drove that revolution unprecedentedly (to his mind) beyond
the reach of human intentionality (see also Baker 1990, Hunt 1984).
C. But what ideas?
But what ideas? Here, again, history suggests an answer. Today, it is often forgot
what a complicated and problematic metaphor “the state” is (Skinner 1989). Early
modern constitutionalism was borne out of efforts to locate the authority and character
of the English “state” in someplace other than in the physical person of the King. The
defining articulation of this is found in Edward Coke’s adaptation of Fortesque’s
“ancient constitution” as a way of articulating limits on the authority of King James I
(Pocock 1957: 30-55; see also Vann 1958). From Coke, it was passed to Lord
Bolingbroke, who used it to explain how a criticism of the King’s government was
8
not the same as a criticism of the King himself (Kramnick 1968). Bolingbroke’s ideas
directly informed the political-legal thinking of both Montesquieu (Shackleton 1949)
and the pre-revolutionary Americans (Liddle 1979).
From there, three distinct visions of modern constitutionalism would emerge, each
with a different answer as to where the metaphorical character, or persona, of the state
would be located. Ultimately, the English would locate their constitutional metaphor
of the state in the teleological progression of history. The Americans would locate it
in the Lockean idea of a theoretical, negotiated agreement. And the French would
adapt a more Rousseauian vision that saw constitutionalism as an expression of
democratic construction of the state rather than simply as a limitation on the state
(Baker 1990). In fact, well into the 20th century, it was primarily the French vision of
constitutionalism would drive constitutionalism’s diffusion through the rest of
continental Europe (Elkins 2010), and from there outward into the Middle East
(compare Devereux 1963; Hairi 1975) and Asia (Jenco 2010, Akita 1967; see also
Xiao-Planes 2009). Following the ending of the Second World War, however,
American political dominance would cause the American vision to largely eclipse
these other alternatives. Nevertheless, manifestations of these alternative, stategenerative visions of constitutionalism continue to resonate. They appear quite
clearly, for example, in the emergent constitutional development of a postWestphalian ‘Europe’ (Wilkinson 2003, Christodoulidis 2003; see also Weiler 2003);
of a modern Islam (Hallaq 2003); of China (Dowdle 2011b); and of many of the postcolonial polities of South and Southeast Asia (Mehta 2010; Jayasuriya 1998).
D. Ideas and constituent power
The seminal importance of ideas to constitutionalism has perhaps been most
thoroughly explored in Loughlin and Walker’s edited volume on The Paradox of
Constitutionalism (2007), in which what we are here calling “ideas” takes the term
“constituent power”. But I would argue, however, that their analysis is still hampered
by a virtually universal tendency within modern constitutional scholarship to
conceptualize “constituent power” as something residing outside of the “constitution”
– or “constitutional form”, in Loughlin and Walker’s terminology – rather than as
being a component of that constitution. This is because locating constituent power as
a counterbalancing force outside of the constitution obscures the particular nature of
this counterbalancing relationship, and the details of this relationship are in fact
critical to the functionality and survival of that constitutional system (cf. Sciulli
1992). In other words, what I argue here is that it is precisely in the balancing of
ideas (aka constituent power) and (constitutional) form that constitutionalism works
its magic. I argue that it is precisely in this balancing that the evolutionary forces of
constitutionalism obscured by the liberal-structural vision lie.
We can better appreciate why this is so by examining this relationship through the
lens of Gunther Teubner’s (1993) “regulatory trilemma.” Teubner used the notion of
a regulatory trilemma to explore what happens when the particular social
presumptions that are juridically encoded in a particular regulatory system come to
diverge from the way society actually perceives itself working. It says that when this
happens, there are three possible responses: socialization (or what Teubner himself
calls “over socialization”), in which societal perceptions spontaneously reconfigure
the law, but at a cost to the law’s internal legitimacy, since the law rejects the
9
legitimacy of spontaneous change; juridification, in which society itself adjusts to
accommodate these legalist presumptions, but at a cost to the potential vitality of the
social system; and decoupling (what Teubner refers to as “mutual indifference”), in
which law and society become disassociated from each other, resulting, invariably in
the death of the legal system as living law.
The argument being advanced here is that a constitution is best seen as a regulatory
device, one that includes and communicates between the otherwise epistemically
incompatible subsystems of both constitutional form and constitutional ideas (see also
Collier 1992; cf. Teubner 2004; compare Teubner 1989). When these two subsystems
diverge, as they invariably will, constitutionalism is faced with a regulatory trilemma.
This is how we can explain the three distinct models of post-Aristotelian
constitutionalism that arose in the late 18th century –the English, the American, and
the French. In fact, each reflects a different response to the regulatory trilemma. The
Madisonian, legalist strand of post-revolutionary American constitutional can be seen
as an effort to make society conform to the constitutional ideal (cf. Wood 1993), and
in this way parallels that of juridification. In revolutionary France, we see a
Rousseauian rejection of (juridical) constitutionalism precisely because the
revolutionaries believed that the innately constraining dynamics of constitutional form
were incompatible with that revolution’s on-going pursuit of pure democracy (Baker
1990; see also Schama 1989: 579-580, 890). This is consistent with the dynamic of
decoupling. And in England during the same period, you have what the contemporary
radical publisher T.J. Wooler called the “popular constitutionalism” of the early
industrial English working class, which transformed English constitutional by making
it conform to the new social expectations of England’s now industrialized society
(see, e.g., Epstein 1994; see generally Thompson 1980).
As noted above, contemporary investigations into comparative constitutionalism tend
to proceed from an American, Madisonian perspective—one that, consistent with a
juridified response to the regulatory trilemma, sees constitutional form as shaping
society. But insofar as thinking of constitutional evolution and development, we can
see that it is actually the English perspective – that of popular constitutionalism – that
is the most useful. This perspective exposes a dynamic of spontaneous constitutional
change (“spontaneous” from the perspective of formal constitutional law): that of
socialization (or “over-socialization”, from the perspective of the constitutional
lawyer). For convenience, we might name this last strand of constitutionalism, the
one corresponding to Teubner’s idea of socialization, “ideational constitutionalism.”
Thus, it is in the regulatory interaction between ideas and form – not in their
antagonism – that the evolutionary adaptive capacities of constitutionalism are
founded (cf. Sciulli 1992). It is in this interaction, I propose, that the solution to
Arendt’s and Loughlin and Walker’s ‘paradox’ might be found: since social meaning
is a kind of ‘constituent’ force that is constantly being created and shaped by
continuant power independent of any structural design (Lessig 1995; cf. Berger and
Luckman 1966). It is here that a real-life motor for constitutional “destabilization”
(a’la Unger) might be found (see, e.g., Tussman and tenBroek 1949, Dowdle 2002:
152-161). And it is here that the true creative force that can channel the inherently
destructive preambles of constitutional moments into new constitutional arrangements
(a’la Ackerman and Jacobsohn) without need for some nevertheless transcendent
10
institutions superstructure might be identified (see also Tushnet 2008). This is the
interaction that this workshop looks to explore.
(It might also be pointed out that this notion of an ideational constitutionalism not
necessarily “antiliberal”, at least as that term is described, for example, by Stephen
Holmes (1993). Nothing in the regulatory perspective outlined above is meant to
deny the utility of liberalism as a normative model. The critique herein focuses on the
use of liberalism as a descriptive model – i.e., as a claim of how the universe actually
works rather than of how it should work (see, e.g., Fukuyama 1992). The point here
is that the universe is a much more complex phenomenon than liberalism per se is
able to portray (and of course, this is a critique that can be leveled against all
descriptive models, not simply liberalism), and that occasionally, this complexity gets
in the way of – sometimes even to the point of corrupting – the explanatory and
prescriptive power of that model. One of the situations in which this happens is in the
understanding of processes of constitutional emergence, development and evolution.
Developing such understandings – which is the ultimate goal of this project – thus
requires us to venture outside the liberal vision. But this is not the same thing as
denying liberalism altogether.)
V.
OVERVIEW OF THE VOLUME
The volume is divided into three parts. After an introductory chapter outlining the
focus and structure of the book, the first part explores why it is necessary to enlarge
one’s constitutional perspective beyond that of the straightforward limitation of state
power. It begins with a chapter by Martin Loughlin (Chapter 2) on the principal
conceptual blindspot of the liberal vision, the paradox of ‘constituent power’. Chapter
3 by Gunther Teubner then further elaborates on this paradox, showing how an
interdependent dynamic between constitutional structure and constitutional ideas
embedded within it (but obscured by the metaphors of liberalism), propels
constitutional evolution. Chapter 4, by Chad Hansen, on the experiences of classical
China shows, however, that Teubner’s mapping might be incomplete. Hansen shows
how, although classical Chinese thought also recognizes the same general form-idea
paradox, it triggered no constitutional evolution of the kind predicted by Teubner’s
model because it lacked certain substantive presumptions regarding human equality
and autonomy. This suggests that constitutional development is not driven simply by
the interaction between structure and ideas, but by an interaction between structure
and particular ideas that stress equality and autonomy. Does this bring liberalism
back into the core of constitutional discourse?
In Chapter 5, Michael Dowdle responds, “not necessarily”. Charting the evolution
through Europe’s long 18th century of what he calls ‘self-consciously constitutional’
constitutional discourse – i.e., political-legal discourse that expressly portrays itself as
engaged in and with that larger human project of “constitutionalism” –, Dowdle
shows that Hansen’s caveat is indeed well reflected in constitutionalism’s formative
European experiences. But he also argues that the equality that founds and drives
constitutional evolution refers to an epistemic rather than a straightforwardly political
or social equality – a kind of equality he terms ‘open political epistemology’, in which
it is recognized that every person has autonomous capacity to distinguish true from
false claims. Through that history, he shows that while this kind of equality is
consistent with liberalism, it is not coterminous with it, in the process providing a
11
framework for identifying how meaningful ‘constitutional’ discourses form in less
typical and more exotic political and cultural terrain.
Part Two examines the relation between structure and ideas developed by Dowdle and
Teubner in specific contexts. It starts with a chapter by Michael Wilkinson that
explores what constitutions look like in the absence of a self-consciously
constitutionalist ideology premised on equality and autonomy. The development of a
European constitution, he shows how the reduction of constitutionalism to depoliticized, free-standing constitutional structures that in many ways replicate those of
liberal constitutionalism but are technocratic rather than ideological in their
foundation effectuates a sterile constitutional form which threatens to become
decoupled from social life. It is only through the presence of a self-consciously
constitutional ‘ideology’ that a structural constitution might become a dynamic, living
constitution.
The rest of this part explores different instances of structural-ideational interaction in
the context of constitutional development. The first is a chapter by Hugh Corder that
looks at constitutional development in post-apartheid South Africa (Chapter 7). It
shows how constitutional structures which originated from orthodox liberal
understandings of constitutionalism evolved and absorbed alternative functions as the
result of contestation over constitutional ideas. Chapter 8, by Kevin Tan, looks at the
constitutional evolution of Singapore, and explores, conversely, how constitutional
structures which were originally designed for authoritarian purposes are increasingly
adopting liberal social functions. In chapter 9 Andrew Harding, detailing the
interplay of meaning and structure in the constitutional evolution of Malaysia, shows
how constitutionalism is shaping the perceived functionality of the Sultanate,
Malaysia’s traditional theocratic monarchs that under the original constitutional
agreement had been consigned to a merely symbolic role in political society.
The theoretical explications of Dowdle and Teubner argue, and the chapters in Part
Two serve to confirm, that the evolutionary potential of a constitutional regime
resides primarily in the interaction between its ideas, its social meaning and its
structure rather than in its structure alone. Part Three then proceeds by looking as the
possibilities inherent in a number of a-liberal visions of constitutionalism that selfconsciously engage with this larger discourse. Perhaps the most familiar of these
alternative discourses is the radical democratic vision first articulated by Rousseau,
which focuses on how constitutionalism works to reify the democratic will of the
polity (Christoph Schönberger, Chapter 10). In fact, it was this vision, much more
than the liberal one, that served as a catalyst for the diffusion of constitutional
discourse into non-European environs during the 19th and early part of the 20th
century. Also relatively familiar is the socialist discourse on constitutionalism that
has emerged among certain scholars in present day China, which emphasizes the role
of the constitution in underlining the state’s responsibility to provide the minimal
material conditions of citizenship (Baogang He, Chapter 11).
Somewhat more alien to our traditional constitutional understanding are Islamic
discourses on constitutionalism, as explicated in Chapter 12 by Clarke Lombardi,
which, while expressly locating constitutionalism in secular European understanding
of the limits of state power and authority, locates these limits in external forms of
sacred authority (i.e., God’s law) rather than the internal forms of secular-humanist
12
authority endorsed by liberalism (i.e., popular sovereignty) — while at the same time
still recognizing a defining role for a particular conceptualization of constituent power
that was adapted from Rousseau. Finally, this part concludes with an exploration of
the constitutional thought of Mahatmas Gandhi – what we are calling Gandhian
constitutionalism (Uday Mehta, Chapter 13). Combining both secular with sacred and
liberal with Rousseauian discourses, Gandhian constitutionalism emphasizes the
constitution’s contribution to the social, material and civilizational conditions
necessary for collective moral self-government.
13
References:
Ackerman, Bruce. 1991. We the People, Vol. 1, Foundations. Cambridge (MA):
Belknap Press.
Akita, George. 1967. Foundations of Constitutional Government in Modern
Japan, 1868-1900. Cambridge: Harvard University Press, 1967.
Amar, Akhil Reed. 1991. “Some New World Lessons for the Old World.”
University of Chicago Law Review. Vol. 58: 483-510.
Arendt, Hannah. 1977. On Revolution. London: Penguin.
Baker, Keith Michael. 1990. Inventing the French Revolution: Essays on French
Political Culture in the Eighteenth Century. Cambridge: Cambridge
University Press.
Barenberg, Mark. 1994. “Democracy and Domination in the Law of Workplace
Cooperation: From Bureaucratic to Flexible Production.” Columbia Law
Review. Vol. 94: 753-983 (1994).
Beeson, Mark. 2004. “Multilateralism, American Power and East Asian
Regionalism.” Hong Kong: City University of Hong Kong Southeast Asia
Research Centre [SEARC] Working Paper Series, No 64 (May 2004).
Berger, Peter L., and Thomas Luckmann. 1966. The Social Construction of
Reality: A Treatise in the Sociology of Knowledge. Garden City [New York]:
Anchor Books.
Braithwaite, John, Valerie Braithwaite, Michael Cookson, and Leah Dunn. 2010.
Anomie and Violence: Non-truth and Reconciliation in Indonesian
Peacebuilding. Canberra: ANU E Press.
Christodoulidis, Emilios. 2003. “Constitutional Irresolution: Law and the
Framing of Civil Society.” European Law Journal. Vol. 9: 401-432.
14
Collier, Charles W. 1992. “Intellectual Authority and Institutional Authority.”
Inquiry. Vol. 35: 145-181.
Cui Zhiyuan. 1997. “Introduction.” In Roberto Mangabeira Unger, Politics: The
Central Texts, ed., Zhiyuan Cui. New York: Verso. v-xvi.
Devereux, Robert. 1963. The First Ottoman Constitutional Period: A Study of
the Midhat Constitution and Parliament. Baltimore: The Johns Hopkins
University Press.
Dhavan, Rajeev. 2008. “Book Review: Sarbani Sen, Popular Sovereignty and
Democratic Transformations: The Constitution of India.” Indian Journal of
Constitutional Law. Vol. 2: 204-220.
Dorf, Michael C. and Charles F. Sabel. 1998. “A Constitution of Democratic
Experimentalism.” Columbia Law Review. Vol. 98: 267-473.
Dowdle, Michael William. 2002. “Of Parliaments, Pragmatism, and the
Dynamics of Constitutional Development: The Curious Case of China.” New
York University Journal of International Law and Politics. Vol. 35: 1-200.
Dowdle, Michael W. 2005. “Of ‘Socialism’ and ‘Socialist’ Legal
Transformations in China and Vietnam.” In John Gillespie & Pip Nicholson,
eds., Asian Socialism and Legal Change: The Dynamics of Vietnamese and
Chinese Reform. Canberra: Asia-Pacific Press. 21-44.
Dowdle, Michael W. 2006. “Public Accountability in Alien Terrain: Exploring
for Constitutional Accountability in the People’s Republic of China.” In
Michael W. Dowdle, ed., Public Accountability: Designs, Dilemmas and
Experiences. Cambridge: Cambridge University Press. 329-357.
15
Dowdle, Michael W. 2010. “Constitutional Listening.” Paper Presented at
conference on “East Asian Perspectives on Legal Order.” Singapore:
National University of Singapore, 26-28 August.
Dowdle, Michael W. 2011a. “Constitutional Monocropping.” International
Journal of Constitutional Law. Forthcoming.
Dowdle, Michael W. 2011b. “Popular Constitutionalism and the Constitutional
Meaning of Charter 08.” In Jean-Philippe Béja, Fu Hualing and Eva Pils, eds.,
Charter 08 and Challenges of Constitutional Development. Hong Kong:
Hong Kong University Press (forthcoming).
Dowdle, Michael W, and Stéphanie Balme. 2009. “Introduction: Exploring for
Constitutionalism in 21st Century China.” In Michael W. Dowdle and
Stéphanie Balme, eds., Building Constitutionalism in China. New York:
Palgrave Macmillan. 1-21.
Dworkin, Ronald. 1997. “In Praise of Theory.” Arizona State Law Journal. Vol.
29: 353 353-376.
Elkins, Zachary. 2010. “Diffusion and the Constitutionalization of Europe.”
Comparative Political Studies. Vol. 43 (8/9): 969–999.
Elster, Jon. 1998. “Deliberation and Constitution Making.” In Jon Elster, ed.,
Deliberative Democracy. New York: Cambridge University Press. 97-122.
Epstein, James A. 1994. Radical Expression: Political Language, Ritual, and
Symbol in England, 1790-1850. Oxford: Oxford University Press.
Frank, Jason. 2010. Constituent Moments: Enacting the People in
Postrevolutionary America. Durham, NC.: Duke University Press.
Fukuyama, Francis. 1992. The End of History and the Last Man. New York:
The Free Press.
16
Gadamer, Hans-Georg. 2004. Truth and Method, 2nd rev. ed. Trans., Joel
Weinsheimer and Donald G. Marshall. London: Continuum.
Gay, Peter. 1996. The Enlightenment: An Interpretation, vol. 2: The Science of
Freedom. New York: W.W. Norton.
Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional
Courts in Asian Cases. New York: Cambridge University Press.
Habermas, Jürgen. 2004. The Theory of Communicative Action, Vol. 1, Reason
and the Rationalization of Society. Trans., Thomas McCarthy. Cambridge:
Polity Press.
Hairi, Abdul-Hadi. 1975. “European and Asian Influences on the Persian
Revolution of 1906.” Asian Affairs. Vol. 6 (2): 155-164.
Hallaq, Wael B. 2003. “‘Muslim Rage’ and Islamic Law.” Hastings Law
Journal. Vol. 54: 1705-1720.
Henkin, Louis. 1994. “A New Birth of Constitutionalism: Genetic Influences and
Genetic Defects.” In Michael Rosenfeld, ed., Constitutionalism, Identity,
Difference, and Legitimacy. Durham: Duke University Press. 39-53.
Henley, David, and Jamie S. Davidson. 2007. “Introduction: Radical
Conservatism — the Protean Politics of Adat.” In Jamie S. Davidson and
David Henley, eds., The Revival of Tradition in Indonesian Politics: The
Deployment of Adat from Colonialism to Indigenism. New York: Routledge.
Holmes, Stephen. 1993. The Anatomy of Antiliberalism. Cambridge: Harvard
University Press.
Holmes, Stephen. 1995. Passions and Constraint: On the Theory of Liberal
Democracy. Chicago: University of Chicago Press.
17
Hunt, Lynn. 1984. Politics, Culture, and Class in the French Revolution.
Berkeley: University of California Press.
Jayasuriya, Kanishka. 1998. “Understanding ‘Asian values’ as a form of
Reactionary Modernization.” Contemporary Politics. Vol. 4 (1): 77-91.
Jacobsohn, Gary Jeffrey. 2010. Constitutional Identity. Cambridge: Harvard
University Press.
Jenco, Leigh K. 2010. Making the Political: Founding and Action in the Political
Theory of Zhang Shizhao. Cambridge: Cambridge University Press.
Jennings, Jeremy. 1996. “From ‘Imperial State’ to ‘l' Etat de Droif: Benjamin
Constant, Blandine Kriegel and the Reform of the French Constitution.”
Political Studies. Vol, 44: 488–504.
Kammen, Michael. 1986. A Machine That Would Go of Itself: The Constitution
in American Culture. New York: Knopf.
Kramnick, Issaac. 1968. Bolingbroke and his Circle: the Politics of Nostalgia in
the Age of Walpole. Cambridge, MA: Harvard University Press.
Lessig, Lawrence. 1995. “The Regulation of Social Meaning.” University of
Chicago Law Review. Vol. 62: 943-1045.
Li, He. 2009. “China’s New Left.” East Asian Policy (EAP). Vol. 1 (1): 30-37.
Liddle, William D. 1979. “‘A Patriot King, or None’: Lord Bolingbroke and the
American Renunciation of George III.” The Journal of American History.
Vol. 65: 951-970.
Lienesche, Michael. 1993. “Reinterpreting rebellion: the influence of Shays’s
Rebellion on American political thought,” In In Debt to Shays: The
Bicentennial of an Agrarian Rebellion, ed. Robert A Gross, 161-182.
Charlottesville: University Press of Virginia.
18
Loughlin, Martin, and Neil Walker (eds.). 2007. The Paradox of
Constitutionalism: Constituent Power and Constitutional Form. Oxford:
Oxford University Press.
Maddox, Graham. 1989. “Constitution.” In Terence Ball, James Farr and Russell
L. Handon, eds., Political Innovation and Conceptual Change. Cambridge:
Cambridge University Press. 50-67.
Mehta, Uday S. 2010. “Constitutionalism.” In Niraja Gopal Jayal and Pratap
Bhanu Mehta, eds., The Oxford Companion to Politics in India. Oxford:
Oxford University Press. 15-27.
Nadeau, Jean-Benoît, and Julie Barlow. 2004. Sixty Million Frenchmen Can’t Be
Wrong: What Makes the French so French. London: Robson Books.
Pankaj Mishra. 2006. “China's New Left calls for a Social Alternative.”
International Herald Tribune. 13 October.
Pasuk Phongpaicht and Chris Baker. 2000. Thailand’s Crisis. Singapore:
Institute of Southeast Asian Studies.
Pei, Minxin. 2006. China's Trapped Transition: The Limits of Developmental
Autocracy. Cambridge: Harvard University Press.
Pocock, J.G.A. 1957. The Ancient Constitution and the Feudal Law: A Study of
English Historical Thought in the Seventeenth Century. Cambridge:
Cambridge University Press.
Rapaczynski, Andrzej. 1991. “Constitutional Politics in Poland: A Report on the
Constitutional Committee of the Polish Parliament.” University of Chicago
Law Review. Vol. 58 (1991): 595-631.
19
Sabel, Charles F., and William H. Simon. 2004. “Destabilization Rights: How
Public Law Litigation Succeeds.” Harvard Law Review. Vol. 117: 10151101.
Schama, Simon. 1989. Citizens: A Chronicle of the French Revolution. New
York: Vintage Books.
Sciulli, David. 1992. Theory of Societal Constitutionalism: Foundations of a
Non-Marxist Critical Theory. Cambridge: Cambridge University Press.
Scott, James. 1998. Seeing Like a State: How Certain Schemes to Improve the
Human Condition Have Failed. New Haven: Yale University Press.
Shackleton. Robert. 1949. “Montesquieu, Bolingbroke, and the Separation of
Powers.” French Studies. Vol. 3 (1): 25-38.
Shapiro, Martin, and Alex. Stone Sweet. 2002. On Law, Politics and
Judicialisation. Oxford: Oxford University Press.
Shearing, Clifford, and Michael Kempa. 2004. “A Museum of Hope: A Story of
Robben Island.” The ANNALS of the American Academy of Political and
Social Science. Vol. 592 (1): 62-78.
Skinner, Quentin. 1989. “The State.” In Terence Ball, James Farr and Russell L.
Handon, eds., Political Innovation and Conceptual Change. Cambridge:
Cambridge University Press. 90-131.
Teubner, Gunther. 1989. “How the Law Thinks: Toward a Constructivist
Epistemology of Law.” Law and Society Review. Vol. 23: 727-758.
Teubner, Gunther. 1993. “Substantive and Reflexive Elements in Modern Law.”
Law and Society Review. Vol. 17: 239-85.
Teubner, Gunther. 2004. “Societal Constitutionalism: Alternatives to StateCentered Constitutional Theory?” In Christian Joerges, Inge-Johanne Sand
20
and Gunther Teubner, eds., Constitutionalism and Transnational Governance.
Oxford: Oxford University Press. 3-28.
Thompson, E.P. 1980. The Making of the English Working Class. London:
Penguin Books.
Tocqueville, Alexis de. 1998 [1856]. The Old Regime and the Revolution, eds.
François Furet and Françoise Mélonia, trans. Alan S. Kahan. Chicago:
University of Chicago Press.
Tushnet, Mark. 2008. “The Constitutional Politics of Emergency Powers: Some
Conceptual Issues .” In Victor V. Ramraj, ed., Emergencies and the Limits of
Legality. New York: Cambridge University Press. 145-155.
Tussman, Joseph, and Jacobus tenBroek. 1949. “The Equal Protection of the
Laws.” California Law Review. Vol. 37: 341–381.
Unger, Roberto Mangabeira. 1983. The Critical Legal Studies Movement.
Cambridge [MA]: Harvard University Press.
Vann, Richard T. 1958. “The Free Anglo-Saxons: A Historical Myth.” Journal
of the History of Ideas. Vol. 19: 259-272
Weiler, Joseph H. H. 2003. “In the Defence of the Status Quo: Europe's
Constitutional Sonderweg.” In Joseph H.H. Weiler and Marlene Wind, eds.,
European Constitutionalism Beyond the State. Cambridge: Cambridge
University Press. 7-25.
Wilkinson, Michael A. 2003. “Civil Society and the Re-imagination of European
Constitutionalism.” European Law Journal. Vol. 9: 451-472.
Wilkinson, Michael. 2007. “Review Article: Between Constitutionalism and
Democratic Experimentalism? New Governance in the EU and the US.”
Modern Law Review. 70: 680–700 (reviewing G. DeBurca and J. Scott, eds.,
21
Law and New Governance in the EU and the US (Oxford: Hart Publishing,
2006)).
Wilkinson, Michael A. 2011. “Between Freedom and Law: Hannah Arendt on
the Promise of Modern Revolution and the Burden of ‘the Tradition’.” In
Marco Goldoni and Christopher McCorkindale, eds., Hannah Arendt and the
Law. Oxford: Hart Publishing, forthcoming
Wood, Gordon S. 1993. The Radicalism of the American Revolution. New York:
Vintage Books.
Xiao-Planes, Xiaohong. 2009. “Of Constitutions and Constitutionalism: Trying
to Build a New Political Order in China, 1908-1949.” In Stéphanie Balme and
Michael W. Dowdle, eds., Building Constitutionalism in China. New York:
Palgrave Macmillan. 37-57.
Zakaria, Fareed. 1997. “The Rise of Illiberal Democracy.” Foreign Affairs. Vol.
76 (November-December): 22-43.
22