In Search of Honour

There is a presumption underlying the liberal democratic constitutional project that has been exposed by the Trump administration in its first weeks in office – that formal constitutional structures are all we need to protect against bad political actors. The recent comments of Vice President Vance and President Trump regarding the legitimacy of judicial oversight and the boundaries of Presidential power have been shocking. But of more concern is that, for most people, it is the first time they have given much thought to the fact that our entire constitutional system hinges on the very basic idea of people in positions of power doing the right thing. Indeed, that the rulings of courts have never been self-enforcing and have always required a compliant executive for their execution; and, that there has never been anything forcing Congress to protect its own powers in the face of executive overreach. All of this was true before the Trumpian era and will (hopefully) be after.

In this piece, I make the case for why liberal democratic constitutionalism is as behaviour-dependent as it is structure-dependent. That what we are currently witnessing in the United States and in various countries in Europe is not the failure of formal law or constitutional structure, but our failure to tend to the question of what does and ought to motivate and bind individuals in positions of constitutional authority to act in the best interests of the system. Ultimately formal law, the rule of law, the language of rights, and high-minded democratic principles have shown themselves incapable of constraining or motivating in their own defence. Therefore, in the few words I have, I will argue that the behavioural chink in the constitutional chain that needs to be re-discovered and utilised is honour. It was to honour that the Founding Fathers referred when they spoke of “Republican virtue”, and to a culture of honour that the likes of 19th century Oxford law professor A.V. Dicey referred when he expressed faith in “constitutional morality” as the second pillar (the other being positive law) in Britain’s liberal democratic constitution. Honour possesses the cultural potency, political currency, and psychological impetuous we need to turn the tide on illiberalism.

I will first address the link between the current constitutional crises and the question of the behavioural constraints and motivations on constitutional actors. I will then define what I mean by honour, before demonstrating just how interwoven it is into the fabric of liberal democratic constitutionalism, and briefly, how it can be effectively used to address the challenges at hand.

Constraint, motivation, and the current constitutional moment

Unlike other constitutional forms, as Paul Horwitz put it, liberal democratic constitutionalism is particularly reliant on “heroic qualities of character” for its energy and sustainment. Heroism requires agency, and, as we are currently witnessing, agency does not guarantee production of the kind of characters liberal democratic constitutionalism demands. This is both a strength and a weakness of liberal democracy.

Rather than addressing the conditions necessary for the production of heroes, we have, as constitutional scholars, tended to focus too much on the risks posed by autonomy; on the dangers associated with non-formally regulated space in our constitutional orders. The hold of legal formalism over the scholarship of European and US scholars has blinded many to the limited power positive law and constitutional structures have in creating the conditions necessary for liberal democratic constitutionalism to prosper.

This is because, although the rule of law, separation of powers, division of powers and fundamental rights do possess the formal power to constrain or motivate, they lack the psychological impetuous to constrain or motivate in their own name. Put another way, each of these formal elements are systemic in nature, and do not possess the individual qualities of energy, virtue, courage or pride required to motivate and shape human action. They instead rely upon surveillance and enforcement, which suffer from the problem of determining who ought to watch over the enforcers. In the end, the autonomy that defines liberal democratic constitutionalism requires us to engage with the question: What motivates individuals to act in the best interests of a system? It is in the answer that we find the behavioural “Grundnorm” of liberal democratic constitutionalism.

Outside the bounds of constitutional law, what I have just described is well-recognised. Authors such as Kwame Anthony Appiah, Sharon Krause, Laurie Johnson, and Julian Pitt-Rivers have written extensively about the failure of modern scholars to grasp the motivational impotency of modern values such as dignity and human rights, and the need to look for something more. But we do not have to turn to philosophy or anthropology to see this. Just consider the most recent US elections. The Democratic Party ran a campaign on the rule of law and protection of fundamental rights and lost. The convicted felon, advocating norm smashing, and the pardoning of violent criminals won. The same goes for the European Union. Arguably, the various rule of law related measures adopted by the EU have failed to stem the rise of far-right populists in France, Germany, Austria, Slovakia, the Netherlands and Hungary. Indeed, we have seen exactly what Vice President Vance is advocating for in the US play out in the EU, with Poland (Case C-204/21) and Hungary (Case C-123/22) refusing to adhere to the decisions of the Court of Justice. So, why then do we keep beating the same drum? Why do we keep returning to formal, structural responses – see militant constitutionalism, or militant democracy – when all evidence suggests that the rule of law, fundamental rights, the language of democracy and institutions such as the courts are not enough to stem the illiberal tide?

The answer lies in the unwillingness of constitutional scholars and mainstream political practitioners to look beyond the formal. To accept that their craft is anything other than complex narrative building, and to go in search of alternative, inspiring narratives that lie beyond the legal beltway.

What do I mean by honour?

One such answer lies in the concept of honour. Honour’s history is as long as it is diverse. One has to reach back to the likes of Aristotle to find the first serious attempts at defining it in the Mediterranean region (“tîmê” in ancient Greek), with similar terms existing in Latin (“honorem”), Hindi (“izzat”), Arabic (“sharaf”), Mandarin (“guāngróng”), Japanese (a combination of “giri”, “gyakubai”, and “meiyo”) and most other language groups.

According to Horwitz’s overview of the literature, honour is made up of external and internal dimensions. The external is split in two – the vertical and horizontal. Vertical honour is “deemed” honour. That is, there are certain positions or professions whose honourability is considered a social fact, with the kind of respect given based on recognition rather than it needing to be earned. While such respect need not be earned, it must be sustained. Then there is horizontal honour or earned honour. The earning and the potential losing of horizontal honour occur in accordance with a particular code shared between the members of a group. While “excellence” or “merit” are often the evaluative tools relied upon to determine hierarchies of earned honour, how they are defined differs from peer group to peer group. Horwitz described the internal dimension of honour in the following terms,

“It is a sense of self, a desire to embody and live up to a set of norms and values that have come to define them in their own eyes. Internal honour is thus often treated as a personal quality or virtue tied with integrity.”

Honour possesses the power to move individuals to act, not just to reflect or condemn. It contains the necessary internal and external components for the promotion of a particular kind of heroism – one that is concerned both with the respect of others and self-respect. In this way, it demands more of us than dignity, rights, or moral duty, as it requires us to make our own personal integrity public, or as Appiah eloquently puts it “to turn private moral sentiments into public norms.” These norms are then shared and re-internalised, so that the honour worlds in which we function become part of who we are. In this respect, unlike formal law or constitutional structure, honour constrains and motivates as a matter of identity, which is far more efficient and effective.

Constitutionalism with honour

Of the written constitutions of the world, 147 refer to honour (or honor) in some substantive capacity: honour as a personal fundamental right; honour as an exception to free speech; the granting of state honours; oaths of honour; national honour as a basis for national service; and honour as a behavioural expectation for certain offices of state.

Focusing on the last of the above, what seems to have been lost in the modern story we tell of liberal democratic constitutionalism, is that those who conceived and gave birth to the concept and its foundational ideas, lived in a world of honour. While wary of it – due to its monarchical links – the likes of John Locke, Charles-Louis de Secondat Montesquieu, the Founding Fathers, Alexis de Tocqueville and Dicey, wrote of its crucial constitutional role. Montesquieu described the honour of the nobility – taking the form of disobedience – as an essential feature of any non-despotic constitutional monarchy, and a rich source of human agency. The likes of John Adams, Thomas Jefferson and Alexander Hamilton, referred to Republican Virtue (or virtues) in the same terms as honour, and recognised the importance of fame, the passion for distinction, pride and esteem, as necessary motivating and constraining forces in a republican form of government. Federalist No 51, famous for James Madison’s statements on the need for constitutional structures to protect against man’s vices, has overshadowed the just as important Federalist No. 55. In this essay Madison stated that Republican government presupposes the existence of qualities such as esteem or confidence in higher degree than in any other form, and that to presume otherwise is to resign to the fact that “nothing less than the chains of despotism can restrain [us] from destroying and devouring one another.”

Indeed, if one considers the checks and balances installed to restrain the powers of the President, they are designed to ensure: only the honourable rise to positions of authority (the electoral college as a character check – Federalist No. 68); that they sustain the honour of the office they hold (Art 1, section 4 US Constitution); that they exercise their oath to “take care that the laws be faithfully executed” when deciding whether to exercise their discretion to enforce the decisions of the judicial branch; which is itself to be made up of individuals that possess the virtues required of the honourable position they hold – modesty and self-restraint (Federalist No. 78).

The same goes for the EU constitutional order, and those of its member states, and is arguably of greater importance – see Dicey’s “constitutional morality” – in those constitutional orders possessing a strong unwritten constitutional tradition such as the UK; what the likes of Blick and Hennessy referred to as the “good chaps” presumption.

Concluding remarks

The election of President Trump and the continued presence and rise of right-wing populists across Europe ought to prompt us to reorientate our liberal constitutional efforts: to steer clear of constructing structural identitarian arguments through courts, to recognise the impotency of the language of rights, dignity and the rule of law. Instead, to embrace the language of honour, re-define it to meet the needs of the moment, and use it as an opportunity to expand our approach to the study and teaching of liberal democratic constitutionalism. To forge a constitutional discourse that places greater emphasis on the informal, on the behavioural, and on the need for all of us to more actively take part in heightening those values upon which our liberal democracies were founded – integrity, respect and bravery – and then to use them as the psycho-constitutional tools to expose the culture of dishonour that sits at the heart of illiberal efforts.