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Liberal Constitutionalism, Rule of Law and Revolution by Other Means

Siniša Rodin

L’autore reagisce a una linea di critica alla democrazia liberale secondo cui verità naturali ed evidenti dovrebbero sostituire l’ideologia generata da un élite sociale per perpetuare il dominio della minoranza sulla maggioranza. Rispondendo alla critica, l’autore sostiene che le cose evidenti e naturali possono esistere solo all’interno di una specifica tradizione. Facendo una distinzione tra neutralità costituzionale e liberale, l’autore suggerisce che quest’ultima è specifica della tradizione e possibile fintanto che le istituzioni liberali agiscono come custodi dello stato di diritto, compreso come separazione dei poteri, controllo giurisdizionale e protezione dei diritti fondamentali. Rispettando la narrativa del liberalismo costituzionale, le istituzioni liberali agiscono come agenti di una visione del mondo liberaldemocratica.

 

 

 

The author reacts to a line of critique of liberal democracy according to which natural and self-evident truths should replace ideology generated by a social elite in order to perpetuate the domination of minority over majority. Responding to the critique, the author contends that things self-evident and natural may exist only within a specific tradition. By making a distinction between constitutional and liberal neutrality author suggests that the latter is tradition-specific and possible as long as liberal institutions act as guardians of the rule of law, understood as separation of powers, judicial review and protection of fundamental rights. By catering to the narrative of constitutional liberalism liberal institutions act as agents of a liberal democratic worldview.

Keywords

Liberal Constitutionalism – Democracy – Rule of Law – Separation of Powers – Judicial Review – European Union

Sommario:

I. Introduction - II. Methodology of the Critique - 1. Natural and self-evident order: a) Which point of reference? – b) Useful effect of law - 2. Cultural hegemony - 3. War of position - III. Policing the order - 1. Constitutional and liberal neutrality - 2. Judicial independence, impartiality and neutrality: a) Independence and impartiality. – b) Neutrality - IV. Final Remarks - NOTE


I. Introduction

In my earlier writing I explained how the European Union is based on certain ontological identities, “… which define the Legal Basis, the Act, the Agent, and the Legitimacy of the social arrangement under which constitutional interpretation operates” [3] and how the Court of Justice of the European Union, when interpreting EU law, in order to secure coherence, creates and perpetuates a justificatory narrative, l’économie générale of European integration. [4] Those ontological identities and that justificatory narrative define the cultural ecosystem of the European Union, the playing field within which EU law, as interpreted by the Court of Justice makes sense. That cultural ecosystem is not fortuitous but based on a deliberate constitutional choice of liberal democracy, government limited by law, separation of powers and protection of individual and minority rights. Yet, this ecosystem has become an object of critique, both internal, claiming that institutional arrangements based on liberal democracy do not deliver on their own right, and external, proposing an alternative worldview and an agenda for its accomplishment. In a nutshell, present-day critique of liberal democratic order revolves around two basic propositions. The first one suggests that values constitutive to the worldview being advocated are determined by nature, self-evident, commonsensical and confirmed by scientific evidence. Conversely, any worldview or understanding that is different from what is claimed to be natural, self-evident or commonsensical, amounts to an ideological social construct. The second proposition submits that such unnatural social constructs are imposed and perpetuated by social and political elites who impose their particular worldview. That worldview is complained not to be neutral but biased in favour of the elite. [5] Accordingly, it is not only inadequate but creates a structure of oppression. [6] From these propositions critics infer the conclusion according to which, to overcome the described inadequacy, and to re-establish the natural order, the worldview reflecting the latter must be translated into rules of everyday life by political means, specifically, by means of majoritarian democracy and by establishing unity between the worldview and rules of conduct. Being inimical to alternative worldviews, including liberal democracy, the described critique questions the position and operation of the [continua ..]

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II. Methodology of the Critique

The target of the critique I am looking to debunk is liberal constitutional order and its objective is its obliteration. The scheme of the attack comprises three elements; an assertion of absolute truth articulated as natural and self-evident order, dismissal of the liberal socio-political narrative as ideological and being imposed on the majority by minority elites, and a claim for replacement of the liberal narrative with the natural order by means of cultural transformation and majoritarian rule.

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1. Natural and self-evident order: a) Which point of reference? – b) Useful effect of law

At the outset I would like to address the proposition that there exist things natural, self-evident or commonsensical. Refuting that proposition is by no means an easy task since it undertakes to disprove a claim that, apparently, requires no proof at all. It therefore seems appropriate to grab the bull by the horns and start from a prominent example – the Declaration of Independence of the United States the Preamble of which reads: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” There are different theories about sources that inspired Jefferson when drafting the Declaration. In any case, at the time of its drafting John Locke’s treatises on government [7] were well read and the idea about government limited by law was widespread among intellectuals of the enlightenment. The idea which resonated among scholars of the period was that government is created by a social contract concluded among citizens and for limited ends, namely, to protect life, liberty, and property or, in Jefferson’s version, pursuit of happiness. Legitimacy of government depends on its respect of the social contract, that is, the respect for fundamental rights that were entrusted to it to protect. [8] The Declaration of Independence cannot be seen in isolation from the Constitution of the United States and its Bill of Rights, which, in line with ideas explained in the Federalist Papers, devises a system of separation of powers, including independent judiciary the main objective of which is to curb the ambition of a majority faction. [9] That is what was self-evident to the people of the United States at time of the birth of nation. However, there was little agreement about what kind of life, liberty and happiness was protected under the social contract as death penalty was practiced as a matter of routine, and so was slavery. [10] Also, the context of the Declaration, particularly its Part III, presenting the indictment of King George for twenty-seven specific grievances against the colonies, suggests that life, liberty and pursuit of happiness were juxtaposed to the monarchist rule and instrumental to independence of the American people. By the same token, common sense pursued by Thomas Paine was clearly instrumental to independence of the States, in an attempt to make any [continua ..]

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2. Cultural hegemony

The second prong of the critique seeks to delegitimize philosophy on which an existing liberal constitutional order is based. Philosophical thought of the Enlightenment channelled into liberal constitutions, articulated as government limited by law and policed by counter-majoritarian forces, notably judiciary, central banks, schools, universities, and ombudsman, cultivated an environment in which majoritarian agendas became increasingly structurally restrained by concerns that escape majoritarian regulation, such as human rights and the language of political correctness as well as rationalities of market, free trade and international finance. Prompted by those developments an argument emerged, according to which social elites, acting through counter-majoritarian institutions, to secure legitimacy and, ultimately, political control, perpetuate certain social constructs and project them on the entire society in defiance of natural and self-evident truths. According to the argument, social elites generate a culture, that is, a set of social artifacts resulting from a repetitive stabilized practice or a tradition, within which political power operates, making it impossible for participants of that tradition to live in accordance with their particular identities or, worse, even to imagine an alternative. The emphasis on culture is not new. Rather, it resuscitates revolutionary communist thought, notably the writing of Antonio Gramsci and his understanding of cultural hegemony. And, while his understanding according to which political power can be won and perpetuated by means of culture may be useful for analysis of social dynamics, it should be noted that the idea is in its essence totalitarian, requiring unity between a worldview and norms of conduct. In that sense Gramsci sees a little difference between religion, ideology, and politics. [60] If there is such unity, then the idea behind ideology, whichever it is, does not leave space for diverging views. Worldview and conduct must be in harmony, and all discrepancies between the two are considered unacceptable. Gramsci distinguished two levels of social superstructure: civil society of the private sphere and political society of the State. Through these two dimensions the dominant minority group exercises its hegemony over majority. Cultural hegemony of the dominant group is exercised through the civil sphere to secure the consent of the masses while the State is an instrument of direct [continua ..]

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3. War of position

This brings me to discussion of the third element of the critique which is a strategy of attack against liberal order which, based on the abovementioned arguments, has its thrust in the proposition that an ideological and unnatural cultural domination of the minority needs to be undone by means of cultural transformation, the main targets in that shift being minorities and counter-majoritarian agents, notably the courts and education, but not excluding other components of civil society. Taking control from counter-majoritarian agents by changing the way that citizens understand the world and what values they stand for would be the ultimate victory in what Gramsci called a war of position. As he pointed out, “… in politics the “war of position”, once won, is decisive definitively.” [67] In this picture courts play a double role: as a repressive branch of state authority, but also as authors of justificatory narratives. [68] Certainly, Gramsci understood the courts as being an instrument of state repression, distinct and separate from education, the cultural agency of which can be easily appreciated. He did not see courts being a part of civil society nor having an educational role that could contribute to the formation of cultural hegemony. However, writing about justice at times of fascism, Maura E. Hametz pointed out that legal practice at the time was connected to “…the constant certainty of socially-determined efficient practice.” [69] While the cultural impact that courts were able to generate can not be dismissed, at the time of Gramsci’s writing, access to judicial decisions was limited and did not reach far beyond parties to the dispute and narrow professional audiences. [70] Today, judicial decisions of a host of national, supranational, and international courts are publicly accessible. They are widely read and commented. They communicate narratives and perform an educational function too. [71] Indeed, the operation of courts transcends their repressive function. They have acquired capacity to “… strongly influence the values, norms, ideas, expectations, worldview and behavior of the rest of society.” [72] They have acquired capacity to become agents of what Gramsci called cultural hegemony. All this should be born in mind when thinking about the role of the judiciary as a counter-majoritarian force and the defender of liberal democratic [continua ..]

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III. Policing the order

After having explained the strategy behind the illiberal critique of liberal constitutionalism, let me turn to a defence. Admittedly the defence is staged from within liberal democratic thought and is not neutral. Accordingly, it is not taking a relativist stance that would juxtapose liberal constitutionalism to other forms of governance but rather an absolute view that there are existential constitutional choices and values that need to be defended against, as Brian Barry would have put it, dogmatic dogmas. [73] In this part I will first make a distinction between constitutional and liberal neutrality, argue that liberal neutrality necessitates the absence of constitutional neutrality, and suggest that the European Union and its law is not an ideologically neutral project in constitutional sense. Second, I will turn to the judicial branch and make a distinction between judicial independence, impartiality, and neutrality, as they operate within a constitutional liberal order and suggest that while independence and impartiality may obtain in and operate across different traditions, neutrality is tradition specific.

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1. Constitutional and liberal neutrality

Democracy and rule of law are foundational principles and the fundamental constitutional choice of the European Union. The Treaty on European Union refers to them in the Preamble, as well as in Articles 2, 10 and 21. They are invoked in the Preamble of the Charter of Fundamental Rights of the EU. They also make part of political criteria for membership of EU, as defined by European Council in Copenhagen in 1993. [74] As to the meaning of the rule of law, EU secondary law [75] mentions specifically government limited by law, democracy, respect for fundamental rights, and separation of powers including an independent and impartial judiciary. [76] It is nothing new to say that, understood in this way, democracy and rule of law constitute a backbone of liberal democratic order. However, even though democracy and rule of law are often mentioned together, one should not jump to a conclusion that there is no tension between the two. While democracy entails majoritarian will formation by means of political participation and representation based on free and fair elections, the rule of law is concerned with value-based boundaries and restraints. [77] Fareed Zacharia nicely explained the tension between democracy and legal restraints by making a distinction between constitutional liberalism and democracy and showing how the two do not always go hand in hand. [78] Namely, constitutional liberalism does not automatically make a political system democratic. In his view, the Habsburg monarchy was a liberal autocracy, [79] whereas certain contemporary political systems can be characterized as democracies without a liberal constitutional component. In that sense, democracies can be illiberal and constitutional liberalism can be non-democratic. For Zacharia, constitutional liberalism “… is not about the procedures for selecting government, but rather government’s goals. It refers to the tradition, deep in Western history, that seeks to protect an individual’s autonomy and dignity against coercion, whatever the source – state, church, or society.” [80] Admittedly, in a liberal democracy, constitutional liberalism with its counter-majoritarian mechanisms such as federal structure and judicial review, will always restrain democracy, which is intrinsically majoritarian. This said, constitutional neutrality refers to neutrality of the social contract in respect of fundamental socio-political choices and [continua ..]

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2. Judicial independence, impartiality and neutrality: a) Independence and impartiality. – b) Neutrality

Once we recognise that the European Union is deliberately designed as a liberal constitutional project and, therefore, is not constitutionally neutral, it remains to be looked into how this constitutional choice affects the judicial branch. Independent, impartial, and neutral courts entrusted with judicial review of legislation and protection of individual rights are essential elements of constitutional liberalism. However, the three mentioned concepts – independence, impartiality, and neutrality – need to be distinguished. To begin with, while independence and impartiality are not tradition-sensitive and can operate across traditions, judicial neutrality is tradition-specific. [97] In addition, independence and impartiality primarily refer to the question “how courts operate” while neutrality primarily refers to the question “why” or, “to what end.” And, within liberal tradition, the answer to that “why” is – to allow the citizens to pursue their individual ideas of good. Since that is possible only where a certain idea of good is not determined by majoritarian means and made the universal code of conduct, liberal neutrality is possible only once liberal order is secured on the constitutional level. To be neutral in the liberal sense, courts cannot be neutral in the constitutional sense. For example, to uphold equal treatment for men and women in a particular case, the principle of equal treatment needs to be enabled on a constitutional level. More generally, the constitution needs to secure blindness of treatment in respect of all citizens in respect of their sex, age, race, religion etc. In other words, a liberal constitution needs to be biased towards equality and, what is more, courts must act as agents of that principle. While that agency requires fidelity to laws that become neutral to participants of liberal tradition, liberal neutrality may also necessitate tilting a balance between different rights in each individual case in order to protect a weaker party. [98] Certainly, it is in the very nature of adjudication that there will always be winners and losers but, under a liberal constitution, legitimacy of a decision who wins and who loses will depend on absence of constitutional neutrality and respect for liberal neutrality. Indeed, outside a tradition of constitutional liberalism, it would be possible to imagine courts that would be independent and impartial while not [continua ..]

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IV. Final Remarks

What does the future hold for liberal democracy in the European Union? Having defined the conflict as cultural and ideological, what is the message for the European judiciary? To what extent can or should European judges remain neutral in respect of cultural claims that are brought before them? In other words, to what extent should judges translate cultural narratives into judicial decisions? And to what extent should judges step out of their traditional repressive role and accept to act as agents of culture? One of the key questions in liberal democracies is how to calibrate the balance in order to measure the proper ratio between democratic will formation and counter-majoritarian guarantees. This is of equal importance for legislative and judicial branches. Addressing the problem, American constitutional scholar John Hart Ely suggested that the main function of a liberal constitution is to keep the channels of political change open, that is, to provide a structure within which political process operates, and to give a voice to and protect the minority. When one of these aspects of constitutionalism malfunctions, it is for the courts to come to their assistance. According to Ely, courts must react when: “(1) [T]he ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system.” [133] Ely’s proposition concerns regular political process under a limited constitution. It addresses what I have called “weak cultural claims” by opening channels of political change subject to counter-majoritarian guarantees and making such claims a part of political process. It demarcates the field in which legitimate political claims operate and allows us to define them as claims articulated in constitutionally ordered political process that do not seek to deny fundamental rights and liberty interests of the minority. Also, by putting an emphasis on procedural guarantees, Ely pursues the idea of liberal neutrality while taking liberal constitutionalism for granted. The difficulty with contemporary critique, however, is that strong cultural claims [continua ..]

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NOTE

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