This article belongs to the debate » Restoring Constitutionalism
20 Dezember 2021

Do We Want a Constitution?

After the enactment of the Fundamental Law of 2011, adopting a new constitution is again actual in Hungary. Yet, as most lawyers are careful to predict the victory of the opposition coalition in the parliamentary elections in 2022, and even less with a supermajority of 2/3, the idea of revolutionary constitution-making with a simple majority has already emerged. There have been various arguments made about why amending the Fundamental Law by violating its own amendment threshold is unjustifiable, inefficient, and dangerous. Here, I will make a different argument related to the inadequacy of revolutionary constitution-making as a tool to restore constitutionalism in divided societies.

Restoring the constitution or restoring constitutionalism?

I argue that especially in highly polarized social contexts and in divided societies, triggering a new constitution-making procedure requires certain conditions that are necessarily lacking in such circumstances. Oddly, even though these initiatives are motivated by the idea of constitutional restoration, they could easily fail for the same reasons as the constitution they try to mend. When – against the usual and unusual odds – new constitutions are adopted in socially adverse circumstances, the outcome will unavoidably carry the deep tensions and one-sidedness of its environment. As an additional consequence, constitutions that are incapable of serving as means and framework of social cohesion will continue to erode normativity, something that has already been under attack in the regime that they intend to replace. Paradoxically then, adopting a revolutionary constitution in the name of restoring constitutionalism will most likely contribute to more constitutional decay. There is another paradox, according to which complex social-political-legal problems are viewed as exclusively legal problems to be resolved by a constitution, but at the same time the legal enforceability of the constitutions is denied by overemphasizing their aspirational, political aspects of social justice. In other words, social-political hurdles are reduced to and turned into constitutional design problems, while constitutions claim to be less and less the ‘rule of the land’, and more and more symbolic political acts of social justice. We can observe this trend in Chile, and in other countries in Latin America, having severe consequences on the authority and normativity of law, as well as on the central role of the rule of law as a key concept of democratic constitutionalism.

So, the question really is if we indeed want a constitution. This is not a rhetoric question, but one that should serve as a starting point in the Hungarian and in the Chilean context as well. When a society is extremely divided and basic questions about how we, as members of a political community, would like to live together could not be addressed without stigmatization, the basic reasons behind a constitution are far from being evident. Without having a relatively widely shared idea about why a constitution as such could be good, it seems to be unreasonable to adopt one.

About the ‘We’ in constitutional continuity

Both in Hungary and in Chile, a basic assumption is that adopting a new constitution would mean to put an end to the previous legal order. This presupposition is hold even more firmly when the legal system is replaced without reference to or in contradiction with the existing rules of succession of rules – in other words, with a revolution. It is also implied that vice versa, a true change in the identity and content of a legal system can be produced through breaking continuity with a revolution. This assumption, however, is incorrect both theoretically, and practically. There are various rules in a legal system, and they, as one set of rules, exist in a constant and continuously changing fashion, connected by a sequence of valid rules starting from the very first constitution, based on a general principle about power-conferring laws granting the power to make valid norms at a given moment of time.1) The constitution is not different, and although it is supreme among the rest of the positive rules of a legal system, its coming into being rests on the same principle about power-conferring laws, just as in the case of its predecessor. Structural constitutional change will not and should not happen by simply adopting a new constitution or by violating the existing rules about how to adopt a constitution. A new large-c constitution could not change the dominant substance of the constitutional order in a deep structural sense. What those who are in favor of a revolutionary break through a new constitution (in Hungary with a simple majority) seem to really want, is to change the basis of the constitution’s continuity.

This basis, however, cannot be defined or approached without the society in which it operates. “The continuity and identity of a legal system is a function of the continuity and identity of the society in whose ordered existence in time the legal system participates.”2) A constitution and its aspect as a set of rules could not be meaningful without the underlying society. A society without forming a complete community in such a way to have a relatively common vision about its future (and even less where the competing visions of this future are extremely distant from each other) cannot provide the necessary conditions for changing the basis of continuity and identity through a new constitution. Those plans that include the modification of the constitution by violating its rules of amendment seem to cast aside the role of the society, without which no legal system or constitutional change could successfully operate.

About ‘Willing’ in constitution-making

When we are contemplating about what should be done in a concrete situation, we are trying to clarify the different alternatives and options in front of us, as well as we make choices in light of the good that are offered by the different proposals. Deliberation is about considering and analyzing the practical possibilities that are open in the concrete situation and the good that those possibilities could bring.3) The specifically deliberative part of the whole process of deliberation is the analysis of the possible alternatives, which means to take counsel whether with oneself or with one’s associates in the group. The good that the different plans could bring are our reasons and through ‘willing’ our intelligence responds to what we understand as opportunities to participate in such goods. These reasons are our motives to act, or in other words, our motives to make decisions, to support or reject alternatives.

According to Plato the polis is a human being writ large (and each of us is a polis writ small). This suggests that the way how each of us is making choices about our participation in a given society has a lot to say about how that society is acting as a community.

Several proponents of making a constitution with simple majority in Hungary suggest diverse ways of public participation, popular referendums and other means of social consultation. However, in a society which is divided in a tribal manner without the capacity of mutual dialogue, public participation will not generate or contribute to a space where reasons about different plans of action could be deliberated and where participants could respond with their intelligent willing to the good that these plans are offering. It is rather likely that the two camps would generate separate monologues and the means of public participation would turn into a battlefield, where instead of reason, power would bring a conclusion in the harmful context of polarization. No matter how broad the designs of public participation, in a society where there is no ‘we’, there can be no true and satisfactory deliberation, nor ‘willing’ to act upon the rules and procedures of a new constitution.

About the ‘Constitution’ and its normativity

If reasons are our motives to act, and they relate to those goods that we understand as possible benefits of a certain plan or opportunity under deliberation, we cannot ignore the question this poses about the constitution. What is the good that a constitution can bring about, in other words, why should we adopt a constitution? Instead of the well-known (and important) textbook answers, I would like to draw the attention to the constitution’s normative element as a good-making characteristic.

Constitutions are indeed political documents, because their concern is about how to live together as individuals and communities and engage in each other’s lives in the public sphere in a way that it allows to participate in different aspects of human flourishing. A constitution, however, is a legal document too, because it establishes norms about this ‘living together’. By establishing norms, the constitution claims to be generally obligatory for everyone, as everyone shall stand as equals in front of the law. Because of the fact that the constitution is the supreme law of the land, it demands to be enforced and put into practice by being able to affect people’s actions. This of course could happen in different ways, and for different reasons, but ideally instead of “being obliged”, the constitution should be capable of creating a sense of “obligation”. Having the obligation to act according to the constitution, implies that we willingly direct our actions to abide by it because we previously understood the good it could bring about. Part of this good is that this obligation applies to everyone, and the constitution will be enforced (by us) equally even if some do not agree.

In adverse social circumstances with deep divisions in the society, there is no sense of such equal obligation, because the motive of a clean slate denies precisely what is crucial for normativity: the good-making characteristics of law as such. Living under the realm of law is contrary to the plans about changing the constitution against its rules. Behind breaking the basis of the constitution’s continuity we find claims about social justice, which are political (philosophical) and not legal in nature. Social justice claims will necessarily be about someone’s justice against someone else’s – instead of the rule of law, the rule of the momentarily more powerful. Denying the constitution’s demand for normativity, and raise social justice claims above the constitution’s normative aspect, means to negate the formal legal aspects of a constitution together with the principles of formal rule of law. This denial could easily be the self-destructive fate of any attempt to adopt constitutional changes against the rule(s) of the law.

Do We Want a Constitution?

Following these arguments, it seems that in Hungary we do not want a(nother) constitution now, and it would especially be harmful to adopt one against the established rules. We, at the moment, as a political community are in the least ideal state to be the engine for the transformation of the constitutional order’s dominant substance. This is shown best by the fact that whoever wins the next parliamentary elections, the losing side will feel hostile toward the other. As a consequence, means of public participation could be counterproductive because we cannot enter into the deliberative process either, as for that we need a common ground and some sense of unity and community. The reasons why a new constitution would be good for us, could serve as such common ground, but we seem to be very far from agreeing on that, and even less about how that constitution should look like. Not all is lost though. It’s only that now revolutionary constitution-making would be a bad decision. What could be a first step towards the restoration of constitutionalism, is finding different means of massive citizens’ remedy. In health care, education, social services and caretaking, just to name a few areas, where citizens should experience the restorative efforts first in their own lives, so that they could later build the trust towards the necessary constitutional changes and that all that it requires.

 

References

References
1 John Finnis, Revolutions and continuity of law. in: Philosophy of Law. Collected Essays Vol. IV. Oxford University Press 2001. 407-436.
2 Ibid. 428.
3 John Finnis, Aquinas. Moral, Political and Legal Theory. Oxford University Press 1998. 66-67.

SUGGESTED CITATION  Fröhlich, Johanna: Do We Want a Constitution?, VerfBlog, 2021/12/20, https://verfassungsblog.de/do-we-want-a-constitution/, DOI: 10.17176/20211220-235826-0.

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