Constitutionalism: New Challenges, European Law from a Nordic Perspective (The Raoul Wallenberg Institute Human Rights Library)

CONSTITUTIONALISM – NEW CHALLENGES

THE RAOUL WALLENBERG INSTITUTE HUMAN RIGHTS LIBRARY VOLUME 31

Constitutionalism – New Challenges European Law from a Nordic Perspective

By

Joakim Nergelius (ed.)

THE RAOUL WALLENBERG INSTITUTE HUMAN RIGHTS LIBRARY VOLUME 31

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON 2008

A C.I.P. record for this book is available from the Library of Congress.

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Printed and bound in The Netherlands.

CONTENTS INTRODUCTION....................................................................................................vii Joakim Nergelius

PART I THEORETICAL PERSPECTIVES CONSTITUTIONAL RIGHTS AND LEGAL SYSTEM.......................................... 3

Robert Alexy THE LEARNING SOVEREIGN ............................................................................. 17

Günter Frankenberg PART II CONTEMPORARY CONSTITUTIONAL PERSPECTIVES LEGISLATURES AS CONSTITUENT ASSEMBLIES ......................................... 43

Jon Elster THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION ........................................................................................ 71

Dieter Grimm CONSTITUTIONALISM IN FRAGMENTED SOCIETIES: THE INTEGRATIVE FUNCTION OF LIBERAL CONSTITUTIONALISM AND ITS CHALLENGES ....................................................................................... 93

Ulrich K. Preuß THE FAILURE OF THE EU’S CONSTITUTIONAL PROJECT: A CULTURAL DISCREPANCY .......................................................................... 103

Kaarlo Tuori PART III NORDIC PERSPECTIVES BETWEEN COLLECTIVISM AND CONSTITUTIONALISM: THE NORDIC COUNTRIES AND CONSTITUTIONALISM – A “FINAL FRONTIER” OR A PERIOD OF TRANSITION? .............................. 119

Joakim Nergelius

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CONTENTS CONSTITUTIONALISM AND APPROACHES TO RIGHTS IN THE NORDIC COUNTRIES................................................................................. 135

Martin Scheinin THE GOOD STATE OR THE CONSTITUTIONAL INNOCENTS OF THE NORDIC SOCIETIES............................................................................................ 155

Agust Thor Arnáson LIST OF CONTRIBUTORS .................................................................................. 161

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CONSTITUTIONALISM – NEW CHALLENGES EUROPEAN LAW FROM A NORDIC PERSPECTIVE INTRODUCTION: THE NORDIC COUNTRIES AND CONSTITUTIONAL THEORY OF THE 21ST CENTURY This book has its roots or background in a conference on recent developments in Nordic and German constitutional law that took place in Berlin at the Nordic Cultural Centre in the beginning of December 2002. That conference was organised within the project Konstitutionalism, demokrati och den nordiska välfärdsstaten (Constitutionalism, Democracy and the Nordic Welfare State), financed by the Joint Committee for Nordic Research Councils for the Humanities and the Social Sciences (NOS-HS).1 As shown from the papers that are now finally submitted here, that was indeed a high-level conference, with a number of qualitative speeches (although the list of contributors to this volume is not entirely identical with the speakers participating in Berlin in 2002). Although the publication has not been quick, it must be said that the contributions, refined and now finally submitted, have preserved their relevance and interest as well as their high scholarly quality, which is due not least to the way in which they deal with the political and ideological developments in the Nordic states as well as within German and European law during the last 20 years. Combined with this, the book also contains some more general, theoretically interesting aspects on recent developments within international constitutional theory.

1

One book has previously been published within the project, namely J. Nergelius (ed.), Nordic and Other European Traditions (Brill/Nijhoff, Leiden, 2006).

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INTRODUCTION In this respect, the touchstone or borderline between Nordic and German constitutional history merits particular attention. First of all, it should be noted that there exists, generally speaking, no strong tradition of constitutional law or constitutional doctrine in the Nordic states. On the contrary, the development of the various – and by no means identical – Nordic welfare states during the 20th century, which has been achieved mainly through legislation and other political decisions, has definitely not favoured constitutional law as a topic since some of the main features of the discipline of constitutional law, like the need to protect the individual from possible interventions or violations committed by the state or the public authorities, are not significant in the Nordic welfare state model (which is rather based on the idea of the state as basically a good actor, a benefactor of the citizens with the inherent mandate to try to improve their living conditions). Here, the emphasis in the constitutional development has thus clearly been placed on popular sovereignty and parliamentary supremacy, and not on separation of powers. However, this does not mean, which needs to be stressed, that the idea of the welfare state and constitutional law as a discipline – or indeed constitutionalism as a phenomenon or an ideal – are necessarily incompatible,2 but only that the development of this particular societal model has meant that areas like administrative law or even social security (welfare) law have been more crucial and of greater political importance in the Nordic states during the main part of the former century than the topic of constitutional law. The absence in the Nordic countries for most of this period of classical issues within constitutional law such as separation of powers, federalism, bicameral legislatures and judicial review has also brought about a lack of theoretical discussions in the doctrine and sometimes obviously even a lack of general interest in those issues. The emphasis also in the constitutional debate and doctrine has instead very clearly been put on concepts like popular sovereignty, parliamentary supremacy and majority rule. But if any proof is to be sought anywhere in the world of the fact that the concepts of separation of power and the welfare state may actually be reconciled, and may exist side by side, the German experience under the Grundgesetz of 1949 does in fact provide the very best example, or best 2

For further reading on this point, see M. Scheinin (ed.), The Welfare State and Constitutionalism in the Nordic Countries (Nordic Council of Ministers, Copenhagen, 2001).

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INTRODUCTION model. Here, individual basic or human rights and separation of powers with a federal structure and a strong constitutional court have always been the main constitutional components. At the same time, however, the main focus in the domestic politics, for both the Social and the Christian Democrats, has always been on the construction of a strong, modern welfare state, with wellfunctioning social security systems and a high degree of protection for everyone. Those two traditions in constitutional and political thought have thus never been seen as contradictory or opposing in the successful German context, which is particularly interesting. There may of course be historical reasons for this special German situation, but some general conclusions could nevertheless be drawn from this interesting and successful experience. Here, the Nordic countries may in other words really have something to learn from Germany, not least if the Nordic constitutional doctrine is going to be further developed and modernised. This introductory article does however not aim at describing a general societal development, with deep theoretical and political implications within the constitutional field. Furthermore, there is hardly any need here to continue the discussion or analysis of the welfare state as a societal model, an issue that is being dealt with in a number of contemporary research projects, mainly ones with a historical orientation.3 There are in fact other factors in the contemporary Nordic society that may better explain the recently increased importance of constitutional law. Some of those are identified in the rather open and earnest instruction to the Swedish Committee preparing a revision of the Constitution (Grundlagsutredningen), which was given its mandate in 2004.4 Identified there are some clear differences between today’s society and the one of 1974, when the current Swedish Constitution (Regeringsformen, Instrument of Government) was enacted. Among the factors mentioned are today’s more heterogenous society, characterised mainly by individualism, the increased lack of public trust in political bodies, the development of new information technology, globalisation and the ‘subordination’, more or less, of Swedish law, at least in some respects, to European law.

3

E.g. some which are coordinated by the University of Helsinki Centre for Nordic Studies (CENS). 4 See Direktiv 2004:96. ix

INTRODUCTION From a strictly legal perspective, there is in my view no doubt that the last factor is the most important one. The accession of Finland and Sweden to the European Union (EU) on 1 January 1995 (a date that will probably in the future be seen as one of the key moments in modern Nordic constitutional history) does not only mean that three of the five Nordic states are since then EU members, but has indeed transformed the constitutional perspective in those countries also in other ways. Above all, it has meant that above the traditionally so important and very rarely contested legislation, we now in those countries have not only some rather old and very rarely invoked Constitutions, but also the European Convention of Human Rights5 and the whole mass of EU law (l’acquis communautaire). This has meant, firstly, that conflicts between the traditionally highly respected and hardly contested laws and norms of a higher dignity have become much more frequent than before and, secondly, that it is no longer considered as strange to invoke the Constitution itself in legal proceedings – a fact that is undoubtedly important at least in Sweden. Combined with factors like the entry into force of a new Constitution in Finland in 2000, with a much greater scope for judicial review than before,6 and a more open attitude towards judicial review also from Danish courts, it seems to be from this big change that many other changes, also in the doctrine, do in fact come. Gradually, then, this profound change does also affect the behaviour of courts in Finland and Sweden, as discussed in some contributions here. It should also be noted that the recent ‘rebirth’ or ‘revitalisation’ of constitutional law as a topic in the Nordic countries has come about without any official death or even withering away of the welfare state as such, which illustrates once again that the two traditions of thinking – one wishing to guarantee or assure good social conditions for everyone, and the other one aiming at protecting individuals from encroachments by public power – are probably not contrary or at least not incompatible as such. If anything, the Nordic societal model is today once again seen as efficient and wellfunctioning, not least in comparison with some countries on the European 5

During the 1990s, the Convention was incorporated into the national law of all the Nordic states, which was necessary in order to give it a legally binding force in those countries that are traditionally dualistic in the way they consider the relationship between national and international law. The incorporation was not done at exactly the same time or in exactly the same way in all the five states, but that is a detail that will not be dealt with here. 6 See its Article 106.

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INTRODUCTION continent, though that analysis is perhaps more based on economically interesting criteria like a relative openness against foreign investors and the global economy as well as a high degree of economic and administrative transparency, rather than on a general admiration of the traditional social protection as such. Still, the possibilities to combine the two models in the Nordic context would probably seem greater today, when judicial review is growing in importance there at the same time that a slightly restructured welfare state model seems to survive, than perhaps ever before, which must also be noted. Other factors must therefore also be taken into account, and apart from the issues that have been stressed in the recent Swedish discussion on constitutional reform, as mentioned above,7 it is somewhat a happy ‘coincidence’ that some of the possible explanations may be found in the choice of subjects made by the various contributors to this volume. If we do then analyse those a little bit closer, we may perhaps divide them into a few different groups, which is, actually, also the way in which they are presented here. One such group or category, which is presented first here though it may perhaps be perceived as difficult to really understand or grasp, is represented by what we may call the ‘purely theoretical’ articles written by Robert Alexy and Günter Frankenberg. Both those contributions from two theoretically leading scholars are also based on the German constitutional experience, which makes them particularly interesting for reasons explained above. While Alexy uses some well-known cases from the Bundesverfassungsgericht, the German Constitutional Court, in order to describe the role of constitutional rights in a legal system such as the German one (i.e. based on constitutional jurisprudence, where their importance as principles may affect the development of the society as a whole), Frankenberg takes his point of departure in those very same and also some other judgments in order to analyse the concept of sovereignty in a modern societal context. That analysis is also based on some reflections upon the typical, traditional German way of how to deal with political extremism – i.e. to fight it, also by legal means, and even prohibit it. This is, it must be said, one of the areas where German experiences have so far not been received or copied in the Nordic countries, but also here things may of course change in the future, in particular, of course, if political extremism becomes a deeper problem there. 7

See also in this respect J. Nergelius, Svensk statsrätt (Lund, 2006) ch. 1. xi

INTRODUCTION This analysis of the concept of sovereignty leads us over to the second category of contributions, which I would like to call articles concerning current constitutional reform processes or perhaps rather concerning the concept of constitutionalism in transition. Among those contributions, Jon Elster’s article on constituent legislatures is perhaps of particular importance since it deals with processes that are of the utmost importance in a situation where political tendencies in many different parts of the world quite clearly point to a trend in which disputes over how to change or elaborate the constitution are replacing, for good or bad, traditional hostile or even armed political disputes. This may be seen in Russia as well as in Egypt or Morocco in Northern Africa, Bolivia, Ecuador and Venezuela in Latin America or in Thailand, in order to give an Asian example; as we know, the constitutional design is also one of the key issues in the Iraqi conflict. Indeed, if there is any global trend concerning constitutional issues, replacing the general tendency towards separation of powers in the early 1990s (with Eastern Europe and South Africa as the main examples), it is probably this tendency to let arguments between political parties or ethnic or religious groups over how to shape the constitution replace older, more traditional political disputes on how to distribute power within societies. As such, this tendency may actually be positive, since a climate of discussion and constitutional deliberation is normally preferable to armed conflicts or a general climate of hostility and tensions. At the same time, however, as Elster shows, it may be deeply problematic: what is for instance the role and competences of special constituent assemblies, like e.g. the one recently elected in Ecuador, in relation to democratically elected Parliaments? Issues like this are partly new in the constitutional doctrine, though they are of course related to classical issues concerning the relation between le pouvoir constituant and le pouvoir constitutée. They definitely now seem to merit renewed attention, in a partly new context.8 Dieter Grimm’s article, on the other hand, deals with another issue that is of great interest in the current, globalised context, namely the constitution in a process of denationalisation. In the EU context, this issue has perhaps been most vividly analysed in the aftermath of the process on the ratification of the EU Constitution, but the issue also relates to more general issues of 8

As shown in the article of Elster, those issues may in fact be traced back both to the American and French Revolutions. Undoubtedly, it is of great interest that classical issues of this kind are now once again to be found on the global constitutional agenda.

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INTRODUCTION globalisation. Although the constitution is perhaps in one way the part of the law in various countries that is least affected by globalisation since most or indeed all states want to preserve their constitutions, which are normally deeply affected by historical traditions or dramatic events, it is at the same time a clear fact that constitutional law as a topic can today not only be analysed from a national point of view, but must also take the development in international or supranational organisations and its impact in national law into account. As shown in the article, this is true not only for the development within the EU, but also for the United Nations (UN) or influential bodies like the World Trade Organization (WTO). Undoubtedly, this process, where the constitution as a concept is indeed becoming gradually ever more ‘denationalised’, merits further attention in the future doctrine. The contribution from Ulrich Preuss is perhaps the one that most clearly analyses the situation in the Nordic countries and compares it with dominating constitutional features on the European continent, together with some of the international or supranational development tendencies mentioned above. Kaarlo Tuori’s article, meanwhile, deals more in detail with the EU constitutional project and tries to analyse, from an unusual theoretical perspective, why it has so far not had any success. Together, those four articles form an important and unusual amount of new, thoughtprovoking theoretical analysis of well-known and crucial contemporary constitutional issues. Finally, three articles deal more in detail with the situation in Finland and Sweden. My own contribution aims at describing the most recent Swedish constitutional development in the light of a few new judgments, which show if nothing else that Swedish courts are not anymore afraid to deal with constitutional issues. This new situation may thus be described as a ‘second wave’ of constitutional jurisprudence, once that the need for the courts to deal with constitutional issues and sometimes exercise judicial review as such had been pointed out by the doctrine and highlighted by the practical legal realities imposed by European law. Martin Scheinin’s contribution, on the other hand, tries to take the whole Nordic situation and development of the last ten years into account, also in light of the development within public international law and the impact of the European Convention of Human Rights in the Nordic countries during this period. The article also discusses the role of social and economic rights within this process, which is interesting and important since those rights did xiii

INTRODUCTION not until the 1990s, through a constitutional reform in Finland, come on the legal and constitutional agenda in those traditional welfare states (which may of course be seen as somewhat of a paradox). The article relates clearly to previous research from Scheinin in this field9 and highlights another very important legal field in the Nordic countries. Finally, Agust Thor Arnason tries to place modern Nordic constitutional thinking in a theoretical-historical perspective, which is of course a very useful analytical model in those days, that could well be further developed in future research in this field. In total, do those articles give an adequate view of where the German and Nordic constitutional doctrine is at the moment heading? That would probably be stating too much, but nevertheless I do believe that the articles presented here offer us insights into some of the new, exciting strands of constitutional thought that are currently present in the Nordic doctrine, where many new paths have been opened in recent years.10 The contrast there, if we compare with the situation two decades ago, is indeed striking. As far as German and European law is concerned, on the other hand, the kind of attempts in the doctrine to analyse some of the most important theoretical issues through certain theoretical patterns that we see some examples of here is far from new; this line of thinking represents one of the main traditions in current European thinking. But it is particularly rewarding and inspiring that the contributions presented here are still so important and updated, although almost five years have passed since the conference where most of them were originally presented took place.

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See in particular Scheinin, supra note 2. A few of those articles have been published before in other fora. That is the case concerning the articles of Jon Elster, previously published in R. W. Bauman and T. Kahana (eds.) The Least Examined Branch – The Role of Legislatures in the Constitutional State (Cambridge University Press, 2006); Dieter Grimm, previously published in 12:4 Constellations (2005); Günter Frankenberg, previously published in 3 Kritische Justiz (2002) p. 297. 10

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INTRODUCTION For the help with producing this volume, I would like to express my heartfelt thanks to Ms. Carin Laurin and Mr. Timothy Maldoon at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law in Lund. For organising the conference in Berlin in December 2002, a thanks goes also to Mr. Agust Thor Arnason, Akureyri, Iceland.

May 2007 in Örebro, Sweden Joakim Nergelius

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PART I THEORETICAL PERSPECTIVES

CONSTITUTIONAL RIGHTS AND LEGAL SYSTEMS Robert Alexy* 1. INTRODUCTION The role of constitutional rights in a legal system depends on four, closely connected points: (1) their binding force, (2) their institutionalisation, (3) their content, and (4) their structure. There is, nowadays, a broad consensus on the question that if a constitution includes constitutional rights, they should – as Article 1(3) of the Basic Law for the Federal Republic of Germany puts it – “bind the legislature, the executive, and the judiciary as directly applicable law”, and that this binding power should be guaranteed by means of some kind of institutionalised control, be it a constitutional court or some other body. The real debate begins, however, once the questions about the content and the structure of constitutional rights are raised. The reason for this is simple. One can know what the binding force and the institutionalisation of constitutional rights means only if one knows what constitutional rights demand and how these demands are to be constructed. Does the binding force and the institutionalisation mean only that some elements are added to the legal system which, in all other respects remains the same, as it were, without constitutional rights, or does it mean that the character of the legal system changes? The answer to this question depends on the construction of constitutional rights.

*

Robert Alexy is Professor of Public Law and Legal Philosophy at the Christian Albrechts University, Kiel, Germany.

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ROBERT ALEXY 2. TWO CONSTRUCTIONS There are two main constructions of constitutional rights: one is narrow and strict, and the other is broad and comprehensive. The first of these can be called the rule construction, the second, the principle construction. These two constructions are nowhere realized in pure form. But they represent different tendencies, and the question of which is better is a central question of the interpretation of every constitution that provides for constitutional review. According to the narrow and strict construction, norms conferring constitutional rights are not essentially distinguishable from other norms of the legal system. To be sure, as constitutional norms their place is at the highest level of the legal system, and their foci are highly abstract rights of the greatest importance. Still, none of this – according to the rule construction – gives rise to any fundamental structural difference. They are legal rules, and they are applicable just as all other legal rules are. Their defining characteristic is that they protect certain abstractly described positions of the citizen against the state. According to the comprehensive or holistic construction, norms conferring constitutional rights do not simply protect certain abstractly described positions of the citizen against the state. This enduring function of constitutional rights is embedded in a broader framework. In Germany, this broader framework was first fully developed in the Lüth decision of the Federal Constitutional Court in 1958. Lüth had appealed to the German public, to the owners of movie theatres and to the film distributors to boycott movies produced after 1945 by Veit Harlan on the ground that Harlan has been the most prominent Nazi film director. Lüth referred, in particular, to the film Jud Süß (Jew Sweet), the leading anti-Semitic Nazi propaganda movie. The District Court in Hamburg held that Lüth must forbear from making any appeal to boycott Harlan’s new film Unsterbliche Geliebte (Immortal Lover). The reason given for this judgment was that an appeal to boycott such films violated Section 826 of the German Civil Code, as being contrary to public policy. Lüth brought a constitutional complaint against this decision. The German Federal Constitutional Court considered Lüth’s appeal to boycott such films as prima facie protected by the freedom of expression guaranteed in Article 5(1) of the Basic Law. Article 5(2) of the Basic Law contains, however, three clauses limiting the freedom of expression guaranteed in Article 5(1). The first of them is the ‘general law’ clause. The 4

CONSTITUTIONAL RIGHTS AND LEGAL SYSTEM Constitutional Court granted that Section 826 of the Civil Code, applied by the Hamburg Court, was a general law in the sense of the first limiting clause, the ‘general law’ clause.1 It is at precisely this point that the dichotomy between the narrow and strict – that is, the rule construction – and the broad and comprehensive – that is, the principle construction – comes into play. If one follows the rule construction, the task is simply that of answering two questions. The first is whether Lüth’s appeal to boycott is a case that is to be subsumed under freedom of expression. The Constitutional Court gave a positive answer here, and I suggest that this is correct. The second question is whether Section 826 of the Civil Code applies here. This is the case when the appeal to boycott is contrary to public policy. The Hamburg Court argued that it is indeed contrary to public policy, for it aims at preventing the reemergence of Harlan as a representative creator of movies notwithstanding the fact that he had not only passed the procedure of ‘Denazification’, but had also not been sentenced in a criminal proceeding for having committed Nazi crimes. In such a case, an appeal to boycott must be declared – according to the Hamburg Court – as being contrary to “the democratic convictions of law and morals of the German people”.2 The Constitutional Court argued that it is not enough to carry out these two isolated subsumptions.3 Rather, the Court required that there be a balancing or weighing of the colliding constitutional principles where the application of rules of the civil law might limit a constitutional right. The result of its balancing was that the principle of freedom of expression must be given priority over the competing constitutional considerations. It demanded that the clause “against public policy” in Section 826 of the German Civil Code had to be interpreted in accordance with this priority. In a word, Lüth prevailed. The Lüth decision connects three ideas that have served fundamentally to shape German constitutional law. The first is that the constitutional guarantee of individual rights is not simply a guarantee of classical defensive rights of the citizen against the state. The constitutional rights embody, to cite the Federal Constitutional Court, “at the same time an objective order of values”.4 There has been debate about what the Court could have meant by “objective order of values”. Later the Court simply talks about “the 1

BverfGE 7, pp. 198, 211 et seq. Ibid., p. 201. 3 Ibid., p. 207 et seq. 4 Ibid., p. 205. 2

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ROBERT ALEXY principles … that are expressed by the constitutional rights”.5 Taking up this line,6 one might say that the first basic idea of the Lüth decision is that constitutional rights have not only the character of rules but also the character of principles. The second idea, closely tied to the first, is that the values or principles found in the constitutional rights apply not only to the relation between the citizen and the state but, well beyond that, “to all areas of law”.7 Thanks to this, a “radiating effect”8 of constitutional rights over the entire legal system is brought about. Constitutional rights become ubiquitous. The third idea is implied by the structure of values and principles. Values and principles tend to collide. A collision of principles can only be resolved by balancing. The most important lesson of the Lüth decision for everyday legal work runs, therefore, as follows: “A ‘balancing of interests’ becomes necessary.”9 3. TWO OBJECTIONS The line set out in the Lüth decision has met with strong criticism. The critique moves between two poles or strands. The first strand starts with the thesis that balancing is no rational method, because it boils down, in the end – as Bernhard Schlink puts it – to “subjective and decisionistic evaluations”.10 Habermas connects this critique with the objection that balancing deprives constitutional rights of their normative force. By means of balancing, he claims, rights are downgraded to the level of goals, policies, and values. They thereby lose the “strict priority” that is characteristic of “normative points of view”.11 Thus – as he puts it – a “fire wall” comes tumbling down: “For if in cases of collision all reasons can assume the 5

BverfGE 81, pp. 242, 254. On a closer analysis of the relation between the concept of principle and the concept of value, see R. Alexy, A Theory of Constitutional Rights (Oxford, 2002, translation by J. Rivers) pp. 86–93. 7 Supra note 1, p. 205. 8 Ibid., p. 207. 9 Ibid., p. 210. 10 B. Schlink, ‘Der Grundsatz der Verhältnismäßigkeit’, in P. Badura and H. Dreier (eds.), Festschrift 50 Jahre Bundesverfassungsgericht, vol. 2 (Tübingen, 2001) p. 460. 11 J. Habermas, Between Facts and Norms (Cambridge, Mass., 1996, translation by W. Rehg) p. 256. 6

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CONSTITUTIONAL RIGHTS AND LEGAL SYSTEM character of policy arguments, then the fire wall erected in legal discourse by a deontological understanding of legal norms and principles collapses.”12 One could call Habermas’s critique an appeal to the danger of too little importance being given to constitutional rights. The reverse, the danger of too much importance being given to constitutional rights, stands in the center of Böckenförde’s critique. Böckenförde’s starting point is that the construction of constitutional rights as principles changes the role of constitutional rights in the legal system fundamentally. The radiating effect of constitutional rights as principles would necessarily lead to the third party, or horizontal, effect of constitutional rights, as well as to constitutional notions such as protection, social security, organization, and procedure, which require a positive act on the part of the state and are not limited to the requirement of state omissions, as are the classic liberties. In this way, constitutional rights would become the “highest principles of the entire legal system”.13 As such, they would already contain everything in themselves; only concretization through balancing would be necessary: “At the level of principles having an optimizing tendency, the legal system as a whole is already contained in the constitution. It simply needs concretizing.”14 This corresponds precisely to what Forsthoff sarcastically called the “constitution as juridical genome (Weltenei) … from which everything derives, from the Criminal Code to the law regulating the production of medical thermometers”.15 If the objection raised by Böckenförde and Forsthoff were right, the consequences would be fatal. The parliamentary legislative would lose all autonomy. Its function would be exhausted in the mere establishing of what has already been decided by the constitution. The “shift from parliamentary legislative state to constitutional adjudicative state” would be irresistible.16 If one combines this objection with that raised by Habermas, things become even worse. Then the constitutional court could only pretend to ensure the enforcement of the normative content of the constitutional rights. What he 12

Ibid., p. 258 et seq. E.-W. Böckenförde, ‘Grundrechte als Grundsatznormen. Zur gegenwärtigen Lage der Grundrechtsdogmatik’, in same author, Staat, Verfassung, Demokratie (Frankfurt am Main, 1991) p. 188. 14 Ibid. 15 E. Forsthoff, Der Staat der Industriegesellschaft (Munich, 1971, second edition) p. 144. 16 Böckenförde, supra note 13, p. 190. 13

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ROBERT ALEXY really does is to ensure the enforcement of – to use Schlink’s words again – his “subjective and decisionistic evaluations”.17 Should all this be true, the development of constitutional law in Germany and many other countries in the second half of the 20th century would have to be qualified as a process leading further and further into error. Are these objections sound? In order to answer this question, a closer look at the structure of balancing is necessary. 4. THE LAW OF BALANCING Balancing in constitutional law is one part of the requirements of a more comprehensive principle, the principle of proportionality. This principle, which – either implicitly or explicitly – is applied nearly everywhere where constitutional review powers are exercised, is of considerable internal complexity. It comprises three sub-principles: the principle of suitability, of necessity, and of proportionality in the narrower sense. Here only the last of these sub-principles is of interest. It can be expressed as a rule, termed the ‘law of balancing’. This states: “The greater the degree of non-satisfaction of, or detriment to, one right or principle, the greater must be the importance of satisfying the other.”18

The law of balancing shows that balancing can be broken down into three stages. The first stage involves establishing the degree of non-satisfaction of, or detriment to, the first principle. This is followed by a second stage in which the importance of satisfying the competing principle is established. Finally, in the third stage it is established whether the importance of satisfying the latter principle justifies the detriment to or non-satisfaction of the former. If it were not possible to make rational judgments about, first, intensity of interference, secondly, degrees of importance, and, thirdly, their relationship to each other, then the objection raised by Habermas and Schlink would be justified. Everything turns, then, on the possibility of such judgments. How can one show that rational judgments about intensity of interference and degrees of importance are possible, such that an outcome can be rationally established by way of balancing? One possible method is the analysis of examples, an analysis that aims to bring to light what we 17 18

8

Schlink, supra note 10, p. 460. See Alexy, supra note 6, p. 102.

CONSTITUTIONAL RIGHTS AND LEGAL SYSTEM presuppose when we decide cases by balancing. As an initial example, I shall take up a decision of the German Federal Constitutional Court on health warnings.19 The Court qualifies the duty of tobacco producers to place health warnings respecting the dangers of smoking on their products as a relatively minor or light interference with freedom to pursue one’s profession (Berufsausübungsfreiheit). By contrast, a total ban on all tobacco products would count as a serious interference. Between such minor and serious cases, others of moderate intensity of interference can be found. In this way, a scale can be developed with the stages ‘light’, ‘moderate’, and ‘serious’. Our example shows that valid assignments following this scale are possible. The same is possible on the side of the competing reasons. The health risks resulting from smoking are great. The reasons justifying the interference therefore weigh heavily. If in this way the intensity of interference is established as minor, and the degree of importance of the reasons for the interference as high, then the outcome of examining proportionality in the narrow sense can well be described – as the Federal Constitutional Court has in fact described it – as “obvious”.20 One could take the view that the example does not tell us very much. On the one hand, there are economic activities, on the other quantifiable facts. That makes scales possible. This is not applicable to areas in which quantifiable factors such as costs and probabilities play no role or at any rate no significant role. To deal with this objection, I shall consider a second case, one that concerns the classic conflict between freedom of expression and personality rights. A widely-published satirical magazine, Titanic, described a paraplegic reserve officer who had successfully carried out his responsibilities, having been called to active duty, first as “né Murderer” and in a later edition as a “cripple”. The Düsseldorf Regional Court of Appeal ruled against Titanic in an action brought by the officer and ordered the magazine to pay damages in the amount of DM 12,000. Titanic brought a constitutional complaint. The Federal Constitutional Court undertook “casespecific balancing”21 between the freedom of expression of those associated with the magazine (Article 5(1) of the Basic Law) and the officer’s general personality right (Article 2(1) in connection with Article 1(1) of the Basic 19

BVerfGE 95, p. 173. Ibid., p. 187. 21 BVerfGE 86, pp. 1, 11. 20

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ROBERT ALEXY Law). To this end, the intensity of interference with these rights was determined and they were placed in relationship to each other. The judgment in damages was treated as representing a “lasting”22 or serious interference with freedom of expression. This conclusion was justified, above all, by the argument that awarding damages could affect the future willingness of those producing the magazine to carry out their work in the way they had done heretofore. The description “né Murderer” was then placed in the context of the satire published by the Titanic. Here several persons had been described as having a surname at birth in a “recognizably humorous” way, from “puns to silliness”; for example, Richard von Weizsäcker, then the Federal President, was described as “né Citizen”.23 This context made it impossible to see in the description an “unlawful, serious, illegal breach of personality”.24 The interference with the personality right was thus treated as having a moderate, perhaps even only a light or minor, intensity. Corresponding to this, the importance of protecting the officer’s personality right through an award of damages was moderate, and perhaps only light or minor. These assessments completed the first part of the judgment. In order to justify an award of damages, which in the present case would represent a serious interference with the constitutional right to freedom of expression, the interference with the right to personality, which was supposed to be compensated for by damages, would have had to have been at least as serious. But according to the assessment of the Federal Constitutional Court, it was not. That meant that the interference with the freedom of expression was disproportionate, which meant in turn that calling the officer “né Murderer” was not a ground for awarding damages. The case of the description of the officer as a “cripple” was, however, a different matter. According to the assessment of the Federal Constitutional Court, this description was a “serious breach of the paraplegic’s personality right”.25 The importance of protecting the officer by means of a judgment for damages was therefore great. This was justified by the fact that describing a severely disabled person as a “cripple” is currently seen as “humiliating” and as expressing a “lack of respect”. Thus, the serious interference with freedom of expression was countered by the great importance accorded to the protection of personality. In this situation, the Federal Constitutional 22

Ibid., p. 10. Ibid., p. 11. 24 Ibid., p. 12. 25 Ibid., p. 13, emphasis added. 23

10

CONSTITUTIONAL RIGHTS AND LEGAL SYSTEM Court came to the conclusion that it could “see in the balancing no flaw to the detriment of freedom of expression”.26 Titanic’s constitutional complaint was thus only justified to the extent that it related to damages for the description “né Murderer”. As far as the description “cripple” was concerned, it was unjustified. One can, of course, argue about whether the description “né Murderer” really does represent nothing more than a moderate or minor interference. For present purposes, however, the significant point lies elsewhere. It can hardly be doubted that the awarding of damages and the description of someone as a “cripple” both count as very intensive interferences with the relevant principles. Indeed, respecting the severely disabled, one can move to a characterization of this that goes beyond the Court’s. The Federal Constitutional Court rightly held that describing a paraplegic as a “cripple” was humiliating and disrespectful. Such public humiliation and lack of respect reaches to and undermines the very dignity of the victim. This is not only serious in itself, it is a very serious or an extraordinarily serious violation. One has reached an area in which interferences can hardly ever be justified by any strengthening of the reasons for the interference. This corresponds to the law of diminishing marginal utility.27 The Titanic case is thus an example not only of the fact that scales that can intelligently be put into relationship with each other are possible even in the case of immaterial goods such as personality and free speech but also of the power inherent in constitutional rights as principles to set limits by means of balancing, which while not rigid and ascertainable without balancing are nonetheless firm and clear. This is the basis of a reply to Habermas’ fire wall argument. 5. THE TRIADIC SCALE In my reasoning thus far, only examples have been considered. They have shown that there are cases in which balancing provides for a result in a rational way. In order to make clear how and to what degree this is possible, the system underlying balancing shall now be considered. All judgments about intensity of interference and degrees of importance which have been considered up to now have followed a three-grade or triadic model. To be sure, the three steps or grades are not necessary for balancing. Balancing is possible once one has arrived at two steps, and the number of 26 27

Ibid. Alexy, supra note 6, p. 103. 11

ROBERT ALEXY steps is open at the top. What follows also applies, with some modifications, if one reduces the number of steps down to two or increases it above three. The only proviso is that the number must not become too high. The triadic scale has, compared with its alternatives, the advantage that it fits especially well into the practice of legal argumentation. In addition to this, it can be extended in a highly intuitive way.28 As the examples show, the three stages can be characterized by the terms ‘light’, ‘moderate’, and ‘serious’. Representation is made easier if these stages are identified by the letters ‘l’, ‘m’, and ‘s’, respectively. ‘l’ stands here not just for the common term ‘light’ but also for other expressions such as ‘minor’ or ‘weak’, and ‘s’ includes ‘high’ and ‘strong’ as well as ‘serious’. In setting out the law of balancing, it was stated that it breaks the balancing process into three steps. The first two can now be carried out in our triadic model: evaluating the intensity of interference (Ii) with the first principle (Pi) as l, m, or s and evaluating the concrete importance of the second principle (Pj), which consists in nothing else than the intensity of the negative effects that the omission of the interference with the first principle would have for the second one (Ij) as l, m, or s. The question now arises as to how the third step can be carried out, in which the evaluations are to be set into relationship to each other. The objection might be raised that evaluations of this kind cannot be set into relationship to each other, for the actual and hypothetical interferences in the colliding principles were incommensurable.29 In the Titanic case, for instance, it might be claimed that the description as “né Murderer” and the order to pay damages of DM 12,000 are two social facts that have less in common than apples and oranges. This, however, does not speak to the decisive point. The question is not the direct comparability of some entities, but the comparability of their importance for the constitution, which of course leads indirectly to their commensurability. The concept of importance for the constitution contains two elements that suffice to bring about commensurability. The first is a common point of view: the point of view of the constitution. It is, naturally, possible to have a dispute about what is valid from this point of view. This happens all the time. But it is always a dispute about what is correct on the basis of the constitution. Incommensurability, 28

Ibid., pp. 412 et seq. See A. Aleinikoff, ‘Constitutional Law in the Age of Balancing’, in 96 The Yale Law Journal (1987) pp. 972–976. 29

12

CONSTITUTIONAL RIGHTS AND LEGAL SYSTEM indeed, comes into being immediately, once the common point of view is given up. This would, for example, be the case if one interpreter of the constitution were to say to the other that from his point of view the one thing is valid, and from the point of view of the other the opposite, so that each is right from his point of view, and neither of them can be wrong or even criticized, for a common point of view from which anything could be proven as wrong neither exists nor could exist. A discourse that is more than empty rhetoric, that is, a rational discourse about the right or correct solution, would then be impossible. The opposite, however, is valid, too. If a rational discourse about what is correct on the basis of the constitution is possible, then a common point of view is possible. It becomes real as soon as a rational discourse begins that is oriented to the regulative idea of what is correct on the basis of the constitution. Whoever wants to undermine the possibility of evaluations by appeal to the impossibility of a common point of view must then be prepared to claim that a rational discourse about evaluations in the framework of constitutional interpretation is impossible. This claim is to be repudiated, even if the repudiation cannot be elaborated here.30 The second element that brings about commensurability is a scale of whatever kind that represents the classes for the evaluation of the constitutional gains and losses. The triadic scale l, m, and s is an example. Its use on the basis of a common point of view brings about commensurability. Once commensurability is created by means of a point of view and scale, the question of how the third step of balancing can be carried out proves to be easy. If one considers the possible permutations in the triadic model, there are three circumstances in which the interference with principle Pi is more intensive than that with principle Pj: (1) Ii: s, Ij: l (2) Ii: s, Ij: m (3) Ii: m, Ij: l

In these cases Pi precedes Pj. These three cases of the precedence of Pi are matched by three cases of the precedence of Pj: (4) Ii: l, Ij: s (5) Ii: m, Ij: s (6) Ii: l, Ij: m

30

See R. Alexy, A Theory of Legal Argumentation (Oxford, 1989, translation by R. Adler and N. MacCormick) pp. 33–173. 13

ROBERT ALEXY In addition to these six cases, which can be decided on the base of the triadic scale, there are three stalemate situations: (7) Ii: l, Ij: l (8) Ii: m, Ij: m (9) Ii: s, Ij: s

In case of a stalemate, balancing does not determine a result. 6. DETERMINATION AND DISCRETION This structure could be elaborated much further, but this shall not be done here. It suffices, in spite of its elementary character, to answer the objections raised by Habermas and Böckenförde. Habermas’s objection can be rebutted if propositions about degrees of interferences can be justified. Balancing is rational to the degree propositions about degrees of interferences are rationally justifiable. If propositions of this kind were not rationally justifiable, one would have to be sceptical about the possibility of rational practical discourse in general. But this would be a new theme. For our purpose it is enough to say that balancing is rational if a rational practical discourse is possible. The cases (1)–(3) are cases in which the constitutional right is resistant to interference; the cases (4)–(6) are cases of non-resistance. In both of them, balancing leads to a result. This is different in the cases (7)–(8). In these cases of stalemate, balancing does not determine the result. It is true that sometimes stalemates can be avoided by refining the scale,31and it is also true that stalemates could be avoided almost completely if the intensity of interferences lent itself to representation on scales with an infinite number of classes. But little speaks in favour of the claim that such a structure really exists. The nature of law, not only with respect to normativity but also with respect to infinitesimality, is different from the nature of nature. This is the underlying reason for the fact that constitutional rights are not a subjectmatter that lends itself to such differentialition that it can exclude real balancing stalemates to an extent that renders them practically insignificant. The existence of cases of stalemate is the basis for the answer to Böckenförde’s objection. All cases of stalemate are cases of discretion in balancing. The discretion in balancing is not the only reason for a discretion 31

See on this Alexy, supra note 6, pp. 409–413.

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CONSTITUTIONAL RIGHTS AND LEGAL SYSTEM on the part of the legislator, but it is – together with epistemic discretion in cases of empirical uncertainty32 – the most important one systematically. From the beginning it stands in the way of a construction of constitutional rights as principles that would lead to a complete substantial determination of the whole legal system by the constitution. This is the reply to Forsthoff’s genome and to Böckenförde’s adjudicative state argument, and it is the basis, too, for a reconciliation of constitutional rights and review on the one hand and parliamentary democracy on the other hand. A defense of the Lüth line presupposes more than this. All constructions of rights have some disadvantages. A complete defence, therefore, would have to be comparative in the sense that all the pros and cons of all constructions are compared. This cannot be done here.33 But I hope to have shown that neither the objections raised by Habermas and Schlink nor those raised by Böckenförde and Forsthoff exclude the construction of constitutional rights based on the concept of principle from a more comprehensive examination.

32 33

Ibid., pp. 414–420. See on this ibid., pp. 69–86. 15

THE LEARNING SOVEREIGN Günter Frankenberg* 1. A NOTE ON SOVEREIGNTY Constitutions of democratic republics legitimize political government with an appeal to the sovereignty of the people. The people, and no one other than the people, are solely responsible for all generally binding laws and decisions. For a long time, or to be somewhat more exact, for a little over 200 years since the great democratic revolutions marked the dawn of the modern constitutional age, the continental idea of a sovereign people has suffered from a lack of distance to its antithesis, the sovereignty of the absolutist monarch. The shadow of this opposition stretched over the semantic and theoretical efforts to develop a concept of a sovereign people that held the summa potestas or final power of decision. In these teachings, theories and images, the people, from whom all governing authority derives and to whom, by means of a legitimation chain of command, all power returns, play a peculiarly static and monolithic role. This gave room to the impression that a democratic society of active citizens is only incorporated in a different manner and can still be symbolically represented as a body or body politic like the early modern or absolutist society of subjects (Untertanen).

*

Professor of Public Law, Comparative Public Law and Philosophy of Law, Johann Wolfgang Goethe-University, Frankfurt, Germany. Email: [email protected]. This article was originally published in 3 Kritische Justiz (2002) p. 297.

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GÜNTER FRANKENBERG The backwards-oriented theory of a constitution, describing the constitution as a concrete order rather than a frame of reference for societal conflicts, confirms the validity of this impression. This theory is supported, with wider reaching consequences, by a series of decisions of the German Federal Constitutional Court (FCC). In its decision not to grant foreigners the right to vote,1 the Court, in viewing the people as a homogeneous political body, opened a semantic and normative connection between today’s constitution and the absolutist past. It is only fair, however, to point out that according to a different line of reasoning by the Court, this past has no information in store for us. This alternative line of reasoning is not based on an incorporated but rather on an internally differentiated, pluralist society. This reasoning was set forward in the Lüth-decision, elaborated in the Brokdorf-decision and is still evident in the decisions concerning the sit-in protests.2 It conceives more or less carefully of the politically active citizens as individuals or as members of associations and connects the interpretation of the freedoms of communication to the presence of a constitution guaranteeing fundamental rights that is not solely set upon defending rights against encroachments by the government but by means of the status activus and the status constituens also guarantees the status and creative possibilities of active citizens.3 Regardless of what one might criticize relative to the individual decisions, they open up a new and more modern perspective on sovereignty: this normative construction confers the final power of decision jointly to the plurality of constitutionally empowered citizens. I would like to bridge the contradiction, which both senates of the FCC have run into, with the metaphor of the “learning sovereign” and the thereinimplied orientation to the future. I shall try to illustrate this venture by using

1

See only the Federal Constitutional Court’s decisions on municipal voting rights for foreigners, published in BVerfGE 83, 37 and in BVerfGE 83, 60. The problem of sovereignty and homogenity is addressed in the decision on the Maastricht Treaty, published in BVerfGE 89, 155, 182. Some of the critique of these rulings is collected in Kritische Justiz (ed.), Demokratie und Grundgesetz (2000). 2 Lüth: BVerfGE 7, 198 and Brokdorf: BVerfGE 69, 315 and concerning the problem whether sit-in demonstrations are to be qualified as duress in accordance with § 240 StGB: BVerfGE 73, 206; BVerfGE 82, 236; BVerfG, 54 Neue Juristische Wochenzeitschrift (NJW) (2002) p. 1031. 3 The concept of the status constituens was introduced by E. Denninger, Staatsrecht I (1973).

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THE LEARNING SOVEREIGN the example of the most precarious and corroded4 instrument for protecting the Constitution – the banning of political parties as provided for in Article 21(2) of the Basic Law. Paradoxically, this reveals quite clearly the remnants of a past that many would like to finally see disappear. I intend to make use of the fact that past events may end grammatically, but never historically. 2. ABOUT THE LEARNING OF THE SOVEREIGN In the beginning there is the thesis that the people or rather the population from which, according to the constitution, emanates all governing power is a “learning sovereign”.5 We as shareholders of sovereignty think we know what a sovereign ‘is’. With respect to the past, we also have a clear picture of sovereignty. Summarizing inherited doctrine, the sovereign is he who has the last word. Let me suggest a slight modification: sovereign is he who learns while speaking the last word. In this context, learning has two meanings: first, the modern agency of sovereignty must learn. The sovereign is – as a learning god going to elementary school – constantly dependant upon new information, forced to taking the necessary precautions so that the horizon remain open for new information. Thus, learning has a self-critical and at the same time normative meaning that radically separates the democratic from the pre-democratic or anti-democratic sovereign. The latter was never constitutionally obliged to learn; at best, political wisdom dictated that he not turn a deaf ear to new experiences. This duty to learn, which may be characterized as democratic self-constraint, destroys the myth of omniscience and undermines any claim of privileged access to knowledge. A sovereign is he who knows that he does not know it all and is therefore open to what has yet to be heard. It is openness to essential learning experiences that guarantees the principle of a democratic republic together with the constitutional freedoms of political communication. The republican principle is to guarantee transparency and publicity of learning. The principle of democracy is to grant all those concerned, especially minorities, access to the forums where these learning processes may take place. The freedoms of communication support and

4

See C. Leggewie and H. Meier, Republikschutz (1995). I took the term, not the concept, for the learning sovereign from H. Brunkhorst, Solidarität unter Fremden (1997), and same author, Demokratie und Differenz (1994) p. 199.

5

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GÜNTER FRANKENBERG implement both principles, or in other words, they create opportunities for learning. Second, a democratic sovereign can, or more precisely may, learn, which literally and not only theoretically separates him from an absolutist sovereign. Empirically this means that the sovereign is capable of learning. From a normative perspective, this means he is able to represent the past and to draw conclusions for the future. The fact that certain learning experiences lead to practical consequences confers legitimacy on regulations that limit the freedom of communication and organization, thereby excluding certain experiences. Such regulations are especially precarious and require justification. Whether or not they are also contradictory will be addressed later. The preliminary conclusion would be the following: the sovereignty of the people is doubly encoded democratically. It has an empirical and a normative component. The normative component is again doubly encoded as the obligation and the right to learn. There is also a second preliminary conclusion we may draw: when sovereignty is connected to the idea of a learning process, the formerly monolithic-rigid entity becomes fluid and temporalized, and the risk of premature cut-off and thus invalid learning experiences comes to the fore. A democratic society cannot protect itself from the risks of learning and from experiments with uncertain results, nor is there any insurance against the risks of ‘wrong’ learning processes. Due to its obligation to future-oriented learning, it has to take all the possible procedural and institutional precautions that provide for a high level of openness. Regardless of possible and likely objections, the following three principles may be considered prima facie as such precautionary measures: the binding of encroachments on fundamental rights to the provision of legality, the principle of proportionality and the so-called party privilege (Parteienprivileg), which reserves the power to ban a party to the FCC. 3. RESTRAINED AND UNRESTRAINED DEMOCRACY The thoughts on people’s sovereignty outlined above fit seamlessly in a concept of democracy with at least two different layers of meaning as restrained and unrestrained forms of political self-determination. One might say that democracy is doubly encoded. The philosophical and politicaltheoretical reading deals with democracy as a universal principle expressing as ‘the rule of the people’ or ‘self-government’ the idea of a collectively autonomous disposal of the common affairs. Democracy is thus connected 20

THE LEARNING SOVEREIGN with political autonomy and the freedom to conduct or participate in political experiments; this is what we refer to as democratic experimentalism. Disregarding its origin in the Anglo-European tradition, this connotation of democracy as a temporally and territorially unrestrained principle has spread worldwide and was adopted, as it appears by all constitutions. No society organized as a state can afford to write a constitution without reference to democracy. Even the former Socialist dictatorships of the unasked proletariat called themselves ‘people’s democracies’. Translations of the theoretical universalism of democracy into constitutional law are not only to be found at the national level, but also in supranational and international law. It is instructive to look at the European Convention on Human Rights, which allows for limitations of human rights as long as they are “necessary for a democratic society”. The Amsterdam version of the European Union Treaty sets forth in Article 6 that the Union is “founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law”, opening up the ‘union of states’ for criticism of the democratic deficits of its institutions. These two examples refer to the second definition or the ‘particular’ definition of democracy as a self-declaration and self-description of a society framed in time and space and defined politically and culturally. When we talk about ‘the constitutional democracy of the German Basic Law’ or ‘American democracy’, we refer to a contextualized or restrained democracy. Every society expresses its own idea of democracy by way of its constitution. It appropriates the universal principle and tailors it to its particular needs through the very act of writing the constitution, as well as through all the subsequent constitutional interpretations and changes as they pertain to democracy. Constitutionalizations operate on two levels: rhetorically, they refer to the universal principle, while at the same time they lend ‘democracy’ a concrete form through specific rules, procedures and institutions. As a result, no constitution – not even the German Basic Law – implements the universal principle as we know it from Rousseau, Kant and Locke; instead, it proposes a more or less context-sensitive translation, implementation and integration. One might say this or that particular aspect of the German constitutional democracy contradicts this or that theory of democracy. Or in other words: the German constitutional democracy lags behind the promises of the universal principle according to which all people concerned should be able to have a direct say in all matters that affect them. Remarks like these are trivial, however, because constitutions do not apply philosophical-political theories and theorems one-to-one, but rather specific 21

GÜNTER FRANKENBERG – restrained – ideas of democracy, which also applies to ‘republic’ and ‘the rule of law’ (Rechtsstaat). Vulgo: every society opts for the form of democracy it considers correct, fitting or tolerable. Does that strip democracy of any normative content leading beyond the historical-social or political-cultural horizon? Must democracy fall victim to particularity through the act of writing a constitution? The answer is: No. Every declaration of democracy, regardless of however particular it might be, unavoidably takes its cues from the universal form, thereby gaining its special dignity. Democratic semantics and grammar cannot be had without the philosophical-political background. Whoever speaks of democracy gets entangled in its unrestrained meaning. When people stand up for democracy they fight for the possibility to achieve unrestrained democracy in a specific historical-social context. Two virtues of this double character are: first, it initially grants the political architects and builders, whether they are the elite, social movements, the civil society or contingent majorities, a certain and necessary prerogative and creative license and allows them to take into consideration – as did Montesquieu – the history, mentality and distribution of power, etc.6 Second, this double nature generates a practice of justification. The political architects and builders are clearly forced to justify limitations of democracy as legitimate. The rhetorics of democracy bear an inherent and at the same time overarching normative tendency that unfolds through a justificatory constraint. As a result the double code allows observers as well as participants to check and see whether and to what extent a society through its self-declaration of democracy has oriented itself to the universal principle, and what contradictions they may have created in the process of constitution-making. The greater the distance between democratic universalism and democratic particularism or, in other words, the greater the distance between Rousseau’s idea of self-government and a people’s democracy, the more reference to democracy turns out to be sheer ideology, mostly a tactic or rhetorical loan motivated by foreign and domestic politics, which invites activists to protest and intellectuals to criticize. The universal, unrestrained principle of democracy remains, in specific democratic contexts, the guiding regulatory idea and the background of every normative criticism.

6

Montesquieu’s ‘contextualization’ addresses the conditions of legislative work in The Spirit of Laws.

22

THE LEARNING SOVEREIGN 4. LIBERTARIAN AND PROTECTIONIST DEMOCRACY The gloomiest and longest lasting learning experience for the German people was and is the liquidation of the first Republic by the Nazi terror regime and its horrific macro-crimes. From these experiences the sovereign as writer of the Constitution, supervised by the occupation powers, was entitled to draw normative conclusions without violating the code of democratic decisionmaking power and constraints. The constitutional framers of 1949 had the right to contextualize the abstract democratic principle historically and politically, without being accused of having acted in a self-contradictory way. It is, however, too soon to assume that the constitutional installation of a ‘militant democracy’ with its constitutional and sub-constitutional clauses is simply the product of a historical learning-process and therefore a legitimate restriction free from all criticism. More than anything, the teachings and practices of a ‘militant democracy’ should be questioned with regard to whether and to what degree they betray the principle of general selfdetermination and cut off political learning experiences and experiments vital to the future orientation of democracy. This questioning will be applied to the practice of banning political parties in the Federal Republic of Germany, and the theoretical and dogmatic arguments used to justify this practice. (I will refer to arguments and distinctions set forth in the Federal Parliament’s brief to ban the neo-Nazi party Nationaldemokratische Partei Deutschlands (NPD), developed by Wolfgang Löwer and me, which were further carried out by Peter Niesen.7) The banning of political parties clearly falls under Otto Kirchheimer’s definition of political justice.8 Equally clear is that party bans affect central prerequisites of democratic self-determination. To be more specific, they directly restrict the freedom of political organization and indirectly the 7

See P. Niesen, ‘Anti-Extremism, Negative Republicanism, Civic Morality: Three Paradigms for Reflecting Past Injustice in Germany and Italy’, previously published in 3:7 German Law Journal (1 July 2002), available at <www.germanlawjournal. com/article.php?id=164>, and in R. Miller and P. Zumbansen (eds.), Annual of German and European Law: 2003 (2004) pp. 81–112. See also same author, ‘Äußerungsfreiheit und kultureller Pluralismus’, in J. Renn, J. Straub and S. Shimada (eds.), Übersetzung als Medium des Kulturverstehens und der sozialen Integration (2002). 8 O. Kirchheimer, Politische Justiz (1981) p. 186.

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GÜNTER FRANKENBERG freedom of political communication, namely the right to assemble and to free speech: parties declared unconstitutional are dissolved. As a rule, their assets are confiscated. Furthermore, they are prohibited from forming substitute organizations (Ersatzorganisationen).9 Their programs and propaganda are stripped of the protection and premiums of legality. Consequently, a party ban has to set in motion the constraint of justification outlined above. This constraint is illustrated by the overwhelming amount of constitutional literature concerning Article 21(2) of the Basic Law, which provides that “[p]arties that, by reason of their aims or the behavior of their adherents seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional”.10 The relevant literature can easily be divided into two camps, differing in matters of principle due to their contrary views as to the legal admissibility of regulations concerning political freedom, in particular the formation and organization of political parties. Accordingly, we need to differentiate between two legal regimes: the libertarian regime, based on the principle of non-interference (Nichteinmischung), which is critical of ‘militancy’, and the protectionist regime, which raises no principled objections against such ‘militancy’. It is obvious that these two regimes have different effects on societal learning processes and democratic experimentalism. The libertarian regime leans toward an unconditional preference for openness, accepting that “coincidence is worthy to decide our destiny” (Richard Rorty). The protectionists want to avoid too risky or otherwise unacceptable coincidences. The libertarian regime commands the charm of radicality and a pure tolerance that accepts wisdom as well as foolishness. It holds on to these virtues, however, only in the realm of free speech. The general freedom to 9

The consequences of a party ban are regulated in Art. 21 Abs. 2 und 3 GG – the applicable provisions of the law on political parties (§§ 32 et seq.) and of the Law on the Federal Constitutional Court (§ 46 Abs. 3 GG). 10 J. Ipsen, ‘Art. 21 GG’, in M. Sachs (ed.), Grundgesetz. Kommentar (1999, second edition) margin number 850; W. Streinz, ‘Art. 21’, in H. von Mangoldt, F. Klein and C. Starck (eds.), Kommentar zum Grudgesetz (2000, fourth edition) margin number 212; H. H. Klein, ‘Art. 21 GG’, in T. Maunz, G. Dürig and R. Herzog (eds.), Kommentar zum Grundgesetz (2001) margin number 485; C. Gusy, ‘Art. 21 GG’, in E. Denninger et al. (eds.), Alternativ-Kommentar zum Grundgesetz (2001, third edition) margin number 113 with further references.

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THE LEARNING SOVEREIGN act (allgemeine Handlungsfreiheit) expressed in Article 2 of the Basic Law cannot be held as a democratic reference freedom on its own because of its indeterminate applicatory scope. Instead, it receives special support from the democratic principle only in specific manifestations that are specially regulated, such as the right to assemble or the forming of associations. Consequently, libertarians are entangled in an endless debate over the question which statements or opinions are “just words”,11 where the realm of actions begins that may be confronted with the ‘prohibition of violence’ (Gewaltverbot)12 and finally how to define violence without compromising the libertarian dogma.13 Furthermore, protagonists of the libertarian position have to deal with the question of how they plan to protect minorities whose realistic chance of becoming the majority should somehow legitimize majority rule. As a result the libertarian position runs into trouble in two constellations: first, when forced to deal with a power that has monopolized the media and employs well-honed, manipulative strategies for the purpose of general disinformation. The noble principle of non-interference clearly favours the status quo of power distribution to the detriment of manipulated and outvoted minorities. Second, the libertarian paradigm is in trouble in situations with third party effect (Drittwirkungssituationen) calling for the government to prevent minorities from being bombarded with defamatory, offensive or derogatory statements from the majority or other social groups. Protecting the state’s honour may be rejected with relatively little argumentative effort because it openly violates the principles of a libertarian position. However, the burden of justification increases dramatically, for

11

C. MacKinnon, Only Words (1983) (Nur Worte, 1994) However the prohibtion of violence does not provide us with specific criteria. That is illustrated by the previously cited decisions of the BVerfG to the sit-in demonstations and the accompaning literature. Cf. also J. Brink and R. Keller, ‘Politische Freiheit und strafrechtlicher Gewaltbegriff’, in 16 Kritische Justiz (1983) p. 107. 13 For the applicable case law from the US Supreme Court compare the analysis from G. Frankenberg and U. Rödel, Von der Volkssouveränität zum Minderheitenschutz (1981) ch. 2. Concerning the rulings of the BVerfG to Art. 5 Abs. 1 GG, see D. Grimm, ‘Die Meinungsfreiheit in der Rechtsprechung des Bundesverfassungsgerichts’, in 48 NJW (1995) p. 1687. As to the differences between actions and words, see H. Marcuse, ‘Repressive Toleranz’, in R. P. Wolff, B. Moore and H. Marcuse (eds.), Kritik der reinen Toleranz (1967) p. 91. 12

25

GÜNTER FRANKENBERG example, in the case of pornography or racist statements14 that might be qualified as actions after all. Furthermore, we confront this issue in light of the problem whether and how the psychological integrity of people, in particular Holocaust survivors, should be protected from retraumatization through public statements and actions. In these cases it does not suffice to refer, with a generous liberal gesture, to the inadmissible ‘chilling effect’ that encroachments on free speech have, given that these forms and contents of public communication are purposefully designed to silence the addressees of hatred and threat, and to force them out of the public sphere. As distinct from a libertarian regime, protectionists introduce cognitive criteria and normative limits in order to fence in the unpredictability of democratic experiments. Protectionism claims that the ideal of absolute and formal freedom is empty. Therefore it turns to the prerequisites of the possibility to learn through communication and to free oneself from the powers that be. Thus, protectionism reveals itself as a critique of the administered society entrenched in power relations. Protectionism removes public statements from the exclusive domain of civil-societal controversy insofar as it introduces a modicum of inevitable governmental control, and if necessary, censorship. The problems and dangers associated with this position are apparent and cannot be resolved by simply referring, in a justifying gesture, to “repressive tolerance”,15 the need for democratic self-control or the unavoidable paternalism according to the slogan: “Nip things in the bud.” The centre of the problem seems to be where to draw the line between interventions concerned with democracy and promoting self-determination on the one side and arbitrary-authoritarian measures that undermine selfdetermination on the other. The greatest danger is produced by the inherent dynamic and the disciplining effects of any governmental control system that are then reduced by legal doctrine to an ‘abuse’ of power. The restrained democracy of the German Basic Law testifies to a preference for protectionism. Other constitutions, notably the French, transfer their protectionism to the sub-constitutional laws allowing so-called ‘minus-measures’ against parties, organizations and individuals. The German constitutional democracy reveals its restraint as ‘militant’ quite openly and institutionally in Articles 9(2) (outlawing associations), 18 14

The proliferation of ‘hate speech’ is exemplarly documented in the almost 80 page hate catalogue on the internet, <www.hatedirectory.com>. 15 Marcuse, supra note 13. See also J.-P. Sartre, ‘Vorwort zu Frantz Fanon’, in Die Verdammten dieser Erde (1968).

26

THE LEARNING SOVEREIGN (forfeiture of basic rights) and 21(2) (party ban). Along these lines a more generalized and somewhat hidden type of protectionism may be located in the provision of legality, for example allowing restrictions of free speech by ‘general laws’ (Article 5(2) of the Basic Law), or the exclusion of nonpeaceful demonstrations from the constitutional protection of the right to assemble (Article 8(1) of the Basic Law). This generalized protectionism leads to a casuistry of the allowable that may be uneasily steered to the libertarian pole on the grounds of a preference for freedom. This type of preference is revealed by the heavy criticism of the ‘ultraliberal’ decisions of the FCC regarding free speech16 or its labelling of the freedoms of communication as “preferred freedoms”.17 This libertarian preference, however, has been negated by Section 130(3) of the German Criminal Code (StGB) that makes punishable18 the approval, denial or the playing down of racial persecution as incitement to hatred and violence against minorities. One may find this criminal provision politically correct. Its defence of a historical truth is, in any case, an act of sin against the libertarian regime. Even protectionism has trouble justifying this provision as long as the need to provide for public peace is taken to be the protected public good. The fact that the protection of minorities as a possible legitimate justification is not mentioned in Section 130 StGB will be referred to later. The same applies to the overlapping concept as well as the individual instruments of a ‘militant democracy’. They have protectionism written on their foreheads. However, the text of the ‘militant democracy’ in the German Constitution is not easily readable. It was, and remains, as a complete concept and in its different expressions, equally in need of interpretation and remains contested.19 Unavoidably, each interpretation shifts the direction and

16

Besides Lüth (BVerfGE 7, 167), Soldaten sind potentielle Mörder (BVerfGE 93, 266) and Schmähkritik (BVerfG, 47 NJW (1994) p. 2413), as tolerance limits for free speech, are cases in point. 17 This concept temporally played a role in the rulings of the US Supreme Court (Frankenberg and Rödel, supra note 13, p. 151). 18 For an incisive criticism, see S. Cobler, ‘Das Gesetz gegen die ‘Auschwitzlüge’: Anmerkungen zu einem rechtspolitischen Ablasshandel’, in 18 Kritische Justiz (1985) p. 159. 19 See generally H. Dreier, ‘Grenzen demokratischer Freiheit im Verfassungsstaat’, in 49 Juristenzeitung (1994) p. 741 with further references. Concerning Abwehrbereitschaft, see E. Denninger, ‘Der Schutz der Verfassung’, in E. Benda et

27

GÜNTER FRANKENBERG limits of protectionism and indicates its tolerance for social learning processes thus influencing its own need for substantiation and legitimacy as an expression of a restrained democracy. With regard to the institutions and the practice of the ‘militant democracy’ in Germany one may discern three prominent patterns, or paradigms, of interpretation and justification.20 Each paradigm aims to protect different goods and is guided by different ideas of danger prevention. 5. ANTI-EXTREMISM AS A SECONDARY CONSTITUTION In order to exclude extremist organizations or actions from the realm of constitutional protection, one is prone to undertake an act of violence. One must define and occupy the constitutional point-zero and mark it either implicitly or explicitly as the norm and its immediate action environment as normality, thereby labelling extremists as appearances of unacceptable political deviance and/or criminal delinquency. Criticism of this type of normal construction has never played a noteworthy role in Germany. This applies to the party bans of the 1950s,21 the controversial anti-extremism decrees of 1972 and the occupational bans (Berufsverbote) they triggered in the 1970s and early 1980s,22 as well as to the prohibition of organizations based on Article 9(2) of the Basic Law that clearly outnumber the party bans.23 Always in the forefront has been the democracy – and rule of law – based criticism of the defence mechanisms and their application, describing this practice as a “secondary constitution”.24 The reason that the normalizing power of definition was overseen is most likely due to the fact that antiextremism in the Federal Republic has always been combined with an antial. (eds.), Handbuch des Verfassungsrechts (1983) p. 1293, and Klein, supra note 10. 20 The structure of these paradigms is explained in Niesen, supra note 7. 21 For details, see H. Meier, Parteiverbote und demokratische Republik. Zur Interpretationen und Kritik von Art. 21 Abs. 2 des Grudngesetzes (1993). 22 References and criticism in E. Denninger (ed.), Freiheitliche demokratische Grundordnung (1977); G. Frankenberg, ‘Angst im Rechtsstaat’, in 10 Kritische Justiz (1977) p. 353; T. Blanke and G. Frankenberg, ‘Zur Kritik und Praxis des Radikalenerlasses’, in 12 Kritische Justiz (1979) p. 45. 23 W. Löwer, ‘Art. 9 GG’, in I. von Münch and P. Kunig (eds.), GrundgesetzKommentar (2000, volume 1, fifth edition) margin number 36. 24 H. Ridder, Die soziale Ordnung des Grundgesetzes (1975) p. 54.

28

THE LEARNING SOVEREIGN totalitarian rationale. This rationale reduces the centre of defining power not to normality, but – compared with totalitarian regimes quite plausibly – to liberality. Even if the primary background for the acceptance of the entire concept of a ‘militant democracy’ in the early Federal Republic was the shock triggered by the destruction of the Weimar Republic, the discussions of the Herrenchiemsee Convention reveal two recognizable impulses. The liberal democratic fundamental order was to be protected from “what we know from before and from ‘over there’ (a reference to the territory beyond the Iron Curtain)”.25 It is quite obvious that the totalitarian theories26 of National Socialism and Stalinism in connection with the constellation of the Cold War paved the way for an – not original but soon dominant – understanding of a democracy prepared to defend itself against extremist movements and therefore ‘restrained’ political order. Above all, the instrument of a party ban was originally27 designed as a weapon, or to put it less militantly: a barrier against the rise of organized totalitarianism.28 By way of confirmation, one may refer to the symmetry of the proposals of the Federal Government in 1951 to ban the Nazi SRP (Sozialistische Reichspartei) and the Communist KPD (Kommunistische Partei Deutschlands). The symmetry, however, appears in a slightly different light when one takes into account newer research29 and the decisions of the FCC. This research allows for the conclusion that the Adenauer administration did not just propose the ban of the SRP as a cover for their real intention, the ban of the KPD, but was an attempt to get rid of political groups that might endanger the concept of silent integration of 25

G. Dürig, ‘Art. 18 GG’, in T. Maunz and G. Dürig (eds.), Kommentar zum Grundgesetz (1958, first edition) margin number 48 (emphasis added). 26 The classic version was developed by H. Arendt, Elemente und Ursprünge totaler Herrschaft (1985). Also influential is C. J. Friedrich (ed.), Totalitäre Diktatur (1957). 27 The original concept called for a ‘militant’, later referred to as “streitbare” or “abwehrbereite“ democracy by K. Loewenstein, Militant Democracy and Fundamental Rights, 31 American Political Science Review (1937) pp. 417, 638. 28 In the KPD-decision the BVerfG makes reference to “totalitarian parties”, against whom “a neutral position is no longer possible” (BVerfGE 5, 85, 137). 29 N. Frei, Vergangenheitspolitik (1996) p. 343. For a different interpretationm, see Ridder, supra note 24, p. 54, and same author, Zur Ideologie der ‘streitbaren Demokratie’ (1979).

29

GÜNTER FRANKENBERG former National Socialists into the new Republic according to a pattern of “disposal of the past” (Entsorgung der Vergangenheit).30 The unequal length of the proceedings and the resistance of the Court to issue a ban against the KPD limits the credibility of the symmetry theory. However, the justification of protectionism does not hinge upon strict symmetry: far more decisive is the direction given to the party bans under the anti-extremist paradigm. It serves to secure the free democratic order against fascist or Stalinist infiltration and adds this instrument to the arsenal of political risk prevention. Anti-extremism protects the integrity or stability of the liberal system and its constitutive principles and institutions. The orientation toward stability may be inferred from most of the defining elements put forth by the FCC in the SRP-decision and characterizing the free democratic fundamental order, namely: sovereignty of the people; separation of powers; governmental accountability; lawfulness of the administration; independence of the courts; party pluralism; and equal opportunity of the parties, with a right to form and exercise an opposition.31 The ‘order’ is to be understood as based upon the sovereignty of the people, governed by the rule of law and practiced within the framework of pluralist parliamentary and party democracy. This anti-extremist ‘system’ logic led to an extensive restraint on democracy that the Federal Constitutional Court in its SRP-decision recognized and labelled as a result of a learning process: “The framers of the German constitution were faced with the question, could they implement these conclusions [of a liberal democratic state – G. F.] in pure form, or having just learned from the recent past, must they set some kind of limit.”32 In the decision banning the Communist Party, the Court also held that the position of the Constitution on political parties could only be understood with regard to the background of experience in the fight against this totalitarian system,33 referring to the system of National Socialism. The Court affirmed the need to draw a line by pointing to the value-restraint of the political order, which in the case of a “position fundamentally hostile to democracy” may trigger the ban.

30

H. Dubiel and G. Frankenberg, ‘Entsorgung der Vergangenheit’, in 12 Die Zeit (18 March 1983). 31 BVerfGE 2, 1, 12. 32 BVerfGE 2, 1, 11 (emphasis added). 33 BVerfGE 5, 85, 138.

30

THE LEARNING SOVEREIGN The anti-extremist logic of the 1950s carried with it a problem that the FCC in its SRP-decision easily avoided. Given the members, programme and party structure continuity, there was enough evidence to verify the “essential likeness”34 of the SRP to Hitler’s NSDAP (Nationalsozialistische Deutsche Arbeiterpartei). The problem can be described like this: according to the internal logic of democracy – its self-restraint – only a danger to the democratic order, that is, a verifiable threat to the universal core, may legitimately lead to the exclusion of a party from constitutional protection. He who reads ‘danger’ as an unwritten defining element into Article 21(2) of the Basic Law faces a structural political dilemma: a party ban that takes effect too soon would – for want of a threat to stability – be unnecessary, even improper; waiting too long, on the other hand, would lead to a situation in which a ban against a powerful party, in light of the strength of its supporters and its representation in Parliament, would literally be dangerous and could no longer be implemented.35 Either way, an argument based on Article 21(2) of the Basic Law would have no grounding. Followers of the system logic have labelled the justification problem as a self-contradiction, paradox or dilemma from the beginning,36 some even calling Article 21(2) of the Basic Law “unconstitutional constitutional law”.37 The FCC was able to circumvent this problem in the SRP-decision with the “essential likeness”- argument. This road was blocked in the KPDdecision. The Court combined the values of the political order with an “actively combative, aggressive” and therefore unconstitutional stance against “the inviolable fundamental values of the democratic order”,38 and added as a new criterion a logical danger: the party to be banned “must plan to encroach upon the functioning of this system, and when left to run its 34

BVerfGE 2, 1, 69. R. Schuster, ‘Relegalisierung der KPD oder Illegalisierung der NPD?’, in 23 Juristenzeitung (1968) pp. 413, 420; F. Stollberg, Die verfassungsrechtlichen Grudlagen des Pareienverbots (1976) p. 26. 36 Beginning with the ‘father’ of the concept Lowenstein, supra note 27, continuing in H. Ridder, ‘Art. 21 II GG’, in E. Denninger et al. (eds.), Alternativ-Kommentar zum Grundgesetz (1984, first edition) margin number 1424, and on to U. K. Preuß, ‘Die empfindsame Demokratie: Über die inneren Grenzen eines Parteiverbots in der Gesellschaft der Individuen’, in 194 Franfurter Allgemeine Zeitung (22 August 2000) p. 51. 37 See BVerfGE 5, 85, 137. 38 BVerfGE 5, 85, head note 5 and 133, esp. 138. 35

31

GÜNTER FRANKENBERG course seek to abolish this system”.39 The deciding factor is ‘the political orientation’ of the party. If allowed to follow this course, its actions would lead to the upheaval of the system. A party can therefore “be unconstitutional in accordance with Art. 21 II BASIC LAW even when a reasonable assessment determines that it has no chance of realizing its unconstitutional plans at any foreseeable time in the future”.40 “For the Court the goals or ideas that the party plans to achieve during its political legitimacy remain the decisive factors.”41 Logical, if perhaps not plausible, within the scope of anti-extremist system logic, the FCC in the KPDdecision spread out the Marxist-Leninist goals over nearly 50 pages, stated their incompatibility with the free democratic system and then explained through 180 pages the Marxist-Leninist and therefore unconstitutional goals of the KPD.42 Abounding in words and quotes, the Court undertook the attempt, damned to failure, to avoid the prerequisites of the anti-extremist logic. The protection of the system is shifted forward hyper-preventively into an area in which one can no longer refer to a tangible danger to the universal core elements of democracy. While prematurely cut-off learning processes may be understandable in the founding era of the Federal Republic, these justifications lose all striking power in a consolidated and comparatively upheaval-resistant democracy.43

39

BVerfGE 5, 85, 141 (emphasis added). BVerfGE 5, 85, 143. 41 BVerfGE 5, 85, 146. 42 For critique, see W. Abendroth, ‘Das KPD-Urteil des Bundesverfassungsgerichts. Ein Beitrag zum Problem der richterlichen Interpretation von Rechtsgrundsätzen der Verfassung im demokratischen Staat’, in same author (ed.), Antagonistische Gesellschaft und politische Demokratie (1967) p. 146, and Meier, supra note 21, p. 72. 43 This is also the tenor of the current criticism of party bans (see J. Limbach (ed.), Das Bundesverfassungsgericht. Geschichte – Aufgabe – Rechtsprechung (2000) p. 51 or H. Meier, ‘Ob eine konkrete Gefahr besteht, ist belanglos – Kritik der Verbotsanträge gegen die NPD’, in 29 Leviathan (2001) p. 439, who consequently refers to the paradigm of the 1950s while seeing the state, state power or public order endangered. The article by Meier is also found elsewhere, see infra note 49. 40

32

THE LEARNING SOVEREIGN 6. NEGATIVE REPUBLICANISM AS AN ANTI-CONSTITUTION In the 1990s, a change of paradigms took place relative to the ‘militant democracy’, which was characterized in Germany by a transition from antiextremism to anti-National Socialism. This transition changed the aim and perspective of ‘militancy’: it confronted organized attempts to reinstall a National Socialist ‘people’s community’ (Volksgemeinschaft), denying them the premiums of legality. The goal is now to prevent the resurrection of an overcome historical system of injustice. This paradigm draws its legitimacy from the collective historical experience of society. Its designation as “negative republicanism”44 has three connotations: first, the historical embedding and restraint of democracy that, second, refers to a specific learning experience and, third, enforces a restriction of the access to the public sphere, which is to say a limitation of the republican principle. In the German context, this argument for ‘militancy’ lends the Constitution the character of an anti-Nazi Constitution.45 In other contexts one might think of an anti-Franco (in Spain), anti-Apartheid (in South Africa) or anti-Stalinist (in the former Socialist states). The FCC hinted at this concept, which contrary to anti-extremism identifies a specific adversary and expresses an anti-fascist particularity, in its SRP-decision: “It is beyond doubt that the former NSDAP according to its development, if it existed today, would be unconstitutional pursuant to Art. 21 II BASIC LAW; the experiences with this very party were the very cause for the creation of Art. 21 II BASIC LAW.”46 However, this first move toward a “negative republicanism” was not further developed in the 1950s. A more recent approach of negative republicanism argues de lege ferenda: Article 21(2) of the Basic Law needs to be rewritten, along the line 44

This term taken from Niesen, supra note 7. For a related concept of negative universalism, see K. Günther, ‘The Legacies of Injustice and Fear: A European Approach to Human Rights and Their Effects on Political Culture’, in P. Alson (ed.), The EU and Human Rights (1999) p. 125. 45 See K.-H. Ladeur, ‘Art. 139’, in E. Denninger et al., Alternativkommentar zum Grundgesetz (1989, volume 2, first edition). 46 BVerfGE 2, 1, 70. This line of argumentation is continued by the Bundesverwaltungsgericht (Federal Administrative Court) in regard to the banning of organizations pursuant to Art. 9 Abs. 2 GG: BVerwG, 48 NJW (1995) p. 2505, BVerwG, 16 Neue Zeitschrift für Verwaltungsrecht (1997) p. 66; see also BVerwGE 61, 194, 197.

33

GÜNTER FRANKENBERG of a corresponding clause in the Italian Constitution of 1947, namely Article 13 of the transitional and final provisions, as an ‘anti-fascist barrier’: “A clear political decision is overdue: either one considers neo-Nazis to be of negligible size, and therefore has to accept their outrageous freedom – and has to grant police protection to parades of swastikas or one suppresses any trace of neo-Nazi politics with a rigorous statutory exemption.”47 According to Leggewie and Meier such an “unbalanced, anti-Nazi basic order constitutes a breach of the democratic constitution and of the dangeroriented protection of the republic”. The term “breach” indicates that the authors consider their option as undemocratic and unconstitutional. With their stability-oriented concept of danger they operate moreover within the framework of an anti-extremist logic and follow only intuitively and not systematically to limit the republican principle. A second approach takes up the idea of ‘essential likeness’ (Wesensverwandtschaft), giving the idea of a ‘militant democracy’ a new turn through a systematic interpretation of the Constitution in connection with the idea of the learning sovereign.48 On the grounds of normative considerations, democratic experimentalism is limited to the extent that new experiments in National Socialism are no longer tolerated. The democratic sovereign, one may infer, has come to the conclusion based on the singularity of the crimes committed by the National Socialist terror regime that should it reappear, regardless of its particular form, there is no further requirement for learning. Neo-Nazi organizations, whether they are clubs, associations, paramilitary groups or political parties, are confronted with the presumption that with their operative programme and practice they enter upon a criminal inheritance and therefore have nothing, absolutely nothing to contribute to a future-oriented democracy. That is why it is justified to restrict their access to the public sphere. Due to the temporal distance to National Socialism and its criminal singularity, the second approach of anti47

Leggewie and Meier, supra note 4, pp. 308, 319 ; Meier, supra note 21, pp. 20, 363, refers to an “anti-national-socialistic exemption”, which is “justified by the recent German history”. 48 G. Frankenberg and W. Löwer, Antragsschriftsatz des Deutschen Bundestages vom 29. 03. 2001 – Innenausschuss des Deutschen Bundestages, Ausschussdrucksache, Working Paper No. 434, p. 14. Original citation reads: Günter Frankenberg and Wolfgang Löwer, Antragsschriftsatz des Deutschen Bundestages vom 29. 03. 2001 – Innenausschuss des Deutschen Bundestages, Ausschussdrucksache 14. WP Nr. 434 (below cited as Verbotsantrag BT).

34

THE LEARNING SOVEREIGN National Socialism is faced with the problem of laying down precise criteria for the affinity of the new National Socialism to the old version so as, on the one hand, to avoid being anachronistic and therefore empty and useless, and, on the other hand, to avoid cutting off necessary learning processes too early, which, in other words, means not to stab democracy in the back.49 ‘Essential likeness’, definitely a problematic concept, requires strong proof of a structural, programmatic, strategic and rhetorical affinity that is evident in the daily practices of a party. This proof can only be furnished by a crosscheck that verifies that the differences between neo-Nazis and Nazis are the result of a different temporal and political context, hence can be overlooked without eliminating the similarity and comparability of the programmatic and tactical-strategic core elements as well as their political practice, rhetoric and traditionalism.50 The problem of negative republicanism is obvious: the license to erect a barrier against the organized renaissance of any historical experience would grant a society and its constitutional elite the power to translate any unpleasant memory into a party ban. In order to prevent negative republicanism from getting out of control, learning experiences, to justify a precarious exclusion to the principle of democracy, must be qualified according to the weight of the injustice done. In the German context, the singularity of the Nazi crimes takes on a legitimizing and restrictive meaning. Singularity refers not only to the incomparability of what happened but also to what Jürgen Habermas called the specific responsibility demanded from the German people.51 The sheer empiricism of the past experience is connected with a normative tie: the moral and legal responsibility for this negative historical experience of suffering can never be delegated by any German sovereign. Hence a sovereign assuming this historical responsibility does not act inconsistently, per se, when he abridges the rights of neo-Nazis 49

Therefore Meier accused the applicants in the NPD-case of not having sufficiently displayed that, while keeping a safe distance to his propagated ‘anti-National Socialist order’ (H. Meier, ‘Ob eine konkrete Gefahr besteht, ist belanglos – Kritik der Verbotsanträge gegen die NPD’, in C. Leggewie and H. Meier, Verbot der NPD (2002) p. 14). 50 Frankenberg and Löwer, supra note 48, pp. 91–183. 51 J. Habermas, ‘Vom öffentlichen Gebrauch der Historie’, in same author (ed.), Eine Art Schadensabwicklung (1997) p. 144. Niesen pointed out to me the differentiated meaning of the importance of unjustness (Niesen, supra note 7).

35

GÜNTER FRANKENBERG to free communication and organization. It would be more accurate to say that in order to live up to the responsibility placed upon him by an exceptional crime, he creates a specific exemption tailored precisely to an experienced and evidently unjust regime that resists arbitrary generalization. As a result, Article 21(2) of the Basic Law would have to be restrictively interpreted in the context of constitutional provisions designed to guarantee the discontinuity of the NS-regime, and it would function as a renewal of the bond of the sovereign to a singular historical experience, not only to the moral but, more importantly, to the legal responsibility. The anti-National Socialist paradigm leads to a dramatic change of perspective on ‘militancy’ and to an exchange of the protected good. The defence is aimed, in the German context, at prohibiting the revival of the Nazi regime of injustice, regardless of the guise under which it should reappear. Not that the stability of the system is to be protected but there is a responsibility founded upon historical experience justifying prevention of an abstract danger. Within the bounds of this paradigm, the victims and survivors are at least indirectly protected, too. They are joined by many other groups singled out for persecution by a more ‘modern’ neo-Nazism. Thus, negative republicanism must deal with the problem of differentiating between foe images that update the old Nazi ideology and those that transgress the historical bounds and therefore the limits of the paradigm. As long as the exclusive, ethnically founded Volksgemeinschaft operates as the core ideology, all aliens (Fremdvölkische) join the Jews and the political opposition (‘the system’) and fall under and within the bounds of the paradigm. 7. CONSTITUTION OF A CIVIL SOCIETY The third paradigm leaves the abstract and preventive protection of the system behind and moves beyond the historical orientation and responsibility. The ‘civil society’ paradigm seeks to secure the agonal democracy – more commonly referred to as the culture of democratic conflicts and democratic life forms. As a result, organized attempts come into view that severely violate the fundamental rules of conflict: thus parties that, first, ‘go for it all’ and know no restraints to their methods of conflict, i.e. resort to violence, and, second, label their opponents as ‘enemies’, redesignate democratic debate as civil war and deny their ‘enemies’ any human right, thereby – and not only verbally – leaving the horizontal plane of a ‘society of equality’. 36

THE LEARNING SOVEREIGN This paradigm has a broader scope, raising significantly the danger of generalization. It does, however, focus on the fundamental conditions under which a civil society resolves its conflicts and thus, in return, ensures a restrictive application.52 It does not fall back on anti-extremism but emphasizes the first element of the FCC’s ‘classic’ definition of a free democratic order – the respect for human rights. Along with the culture of democratic conflicts this paradigm seeks to protect libertarian forms of conflict resolution and egalitarian relationships of recognition as guaranteed by human rights. Hence the paradigm of civil society has a moral basis and is geared toward integration. The constitutional starting point of the paradigm of civil society and its integration through conflict is the reciprocal obligation, embedded in the democratic principle, to defend the integrity of democratic procedures and institutions in order to protect the legitimate interests of minorities. An endangerment to the interests of minorities does not begin with a political upheaval but rather earlier with movements and organizations succeeding in intimidating groups and individuals or driving them out of certain areas, or threatening them that, if given the power, their right to exist (not only) in the public realm will be liquidated. Whoever aims to create ‘areas of fear’ and ‘nationally liberated zones’ (liberated from certain minorities), whoever publicly and systematically persecutes, even terrorizes, those who think, live or simply look differently, violates democratic life forms and drastically denies the very civil acceptance one owes in a democracy even to opponents. This version of ‘militancy’ protects the minima moralia et legalia of a democracy, without demanding that the democratic system as a whole be in danger. What matters is not a danger to the system but a threat of violation of people in a minority situation. The civil society paradigm does not claim that a ban covers all political necessities. It merely limits the freedom of action of proven anti-democratic organizations specialized on declaring others as enemies to the benefit of threatened minorities. Those who consider this conception as too moral or as constitutionally too restrictive must be reminded that democracy is not to be had free of charge or normatively in ‘a state of nature’. Societies, notably the Federal Republic, have committed themselves at the international, supranational and national levels to defend a certain standard of human rights and protect minorities that have been or are being discriminated against and persecuted. 52

See in detail G. Frankenberg, ‘Zur Rolle der Verfassung im Prozess der Integration’, in H. Vorländer (ed.), Integration durch Verfassung (2002) p. 43.

37

GÜNTER FRANKENBERG Moreover, legitimate majority rule implies that minorities enjoy a modicum of protection. Thus, much to the dismay of liberal democrats, these societies have prescribed themselves a particular form of protectionism. Whoever thinks party bans are automatically a contradiction, a paradox or a dilemma of democracy reveals that he reduces democracy to the principle of political autonomy and at the same time refuses to admit that democracy is normatively far more complex. Democracy does not only refer to the relationship of a society to itself, its self-determination and future orientation but also concerns its relationship to minorities, especially foreigners, to gender relations, to future generations and to its natural environment. The paradigm is based on the premise that this normatively and institutionally complex entity can only endure and develop upon a minimal willingness of the citizens to accept one another as equals.53 It combines tolerance with the principle of reciprocal recognition. Recognition demands that each individual recognize himself or herself in the other and grant the other equal rights and equal participation in the democratic life forms. A self-declared democracy must develop an increased sensitivity for outbreaks of violence, hate, racism and anti-Semitism. When and to what extent an intervention is adequate is outlined by a script that is well defined by the principle of subsidiarity, rules of graduated tolerance and reciprocal recognition. First come discussion and enlightenment, self-healing and selfhelp, like the somewhat pathetically named ‘uprising of the decent’ (Aufstand der Anständigen), democratic self-control and soft socialeducational interventions. Without further discussion this can be conceded to the critics of bans54 and prohibitions. However, where genuine civil relief is not available or simply insufficient, the civil society paradigm proposes an individual or collective liability for organizations in the form of criminal sanctions, specifically regarding serious violations of the democratic way of life. If the democratic argument is ineffective and the daily contempt, persecution and violations are organized and carried out under the cover of legality, more extensive constitutional sanctions in the form of organization or party bans cannot be ruled out. Who may demand that an anti-Semitic or racist intimidation propaganda and/or methods of persecution not be accepted and demand that they be curbed early on? And who can do so with 53

Preuß, supra note 36; K.-H. Ladeur, ‘Die Rechten und das Recht – eine Warnung vor der Zivilgesellschaft’, in Leggewie and Meier, supra note 49, p. 120. 54 Especially the papers of D. Grimm and W.-D. Narr in Leggewie and Meier, supra note 49.

38

THE LEARNING SOVEREIGN a gesture of ‘comfortable radicality’, as part of the unpleasant but tolerable democratic normality? It seems clear that it should neither be the system nor the majority of those not affected as they can be recognized as the ones who would seem to dictate the tenor of opportunist as well as principled critics of bans.55 Instead, only the victims should be in the position to demand a ban. Surely finding the right measure and choosing the right point in time for the appropriate intervention is again a question of trial and error that brings us back to where we began: the learning sovereign who has a right to commit errors but who, at the same time, also has the obligation to avoid serious mistakes wherever possible. One of the avoidable mistakes seems to be taking a danger or a risk seriously only when it directly affects the majority.

55

E.g. Meier, supra note 49, especially pp. 23, 24, 27.

39

PART II

CONTEMPORARY CONSTITUTIONAL PERSPECTIVES

LEGISLATURES AS CONSTITUENT ASSEMBLIES* Jon Elster** Constitutions regulate legislatures, and legislatures sometimes create constitutions. Does it follow that in such cases legislatures engage in acts of self-binding? Or that they use the constitutions to bind others, to enhance their own freedom of action? Although neither of these simplistic propositions is adequate, each of them captures an aspect of the relation between the institution of the legislature and the text of the constitution. The idea of viewing constitutions as acts of self-binding is one for which I have to take some responsibility.1 For various reasons, I have come to be sceptical of its normative and explanatory value.2 For one thing, the ‘binding’ effect of constitution is much less constraining than in such paradigm cases of individual self-binding as saving your money in a scheme

*

Also available in R. Bauman and T. Kahana (eds.), The Least Examined Branch: The Role of Legislatures in the Constitutional State (Cambridge University Press, 2006). I am grateful to Dale Kreibig, Arnaud Le Pillouer and Pasquale Pasquino for comments on an earlier draft. ** Robert K. Merton Professor of the Social Sciences, Columbia University. U.S.A. 1 J. Elster, Ulysses and the Sirens (Cambridge University Press, 1984, revised edition) ch. 2.7. 2 J. Elster, Ulysses Unbound (Cambridge University Press, 2000) ch. 2; J. Elster, ‘Don’t Burn Your Bridge Before You Come To It: Some Ambiguities and Complexities of Precommitment’, in 81 University of Texas Law Review (2003) pp. 1751–1758.

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JON ELSTER under which you cannot take it out before Christmas.3 For another, the ‘self’ that is supposed to bind ‘itself’ is much more elusive in the collective than in the individual case. Concerning the second point, the idea of self-binding makes somewhat more sense when the constitution is written by the legislature than when it is the work of a special convention. A legislature that writes the grounds rules under which future legislatures will operate does at least have the capacity to bind ‘itself’, in a loose sense of that term. By contrast, a convention that is convened for the sole purpose of writing the constitution and that is disbanded once that task is done has no enduring ‘self’ to bind. To say that the act of binding later legislatures (and other political actors) is an act of self-binding borders on the meaningless. At the same time, however, we might question the motivation of constituent legislatures to bind themselves. We might rather expect these assemblies to try to limit the power of the other branches of government, so as to leave themselves with maximal freedom of action. Needless to say, this is not inevitably the case. Constituent legislatures may be concerned with the common good and not merely with their own power, and in fact be quite willing to constrain themselves. I give some examples later. Yet on general Humean grounds the danger of allowing one branch of government to determine its own future power should be obvious. In fact, this danger exists with regard to the executive no less than to the legislative branch. When the task of writing the constitution is entrusted to the head of the executive we should not be surprised if it creates a strong executive, as in the French Constitution of 1958. In the rest of this paper, however, I shall avoid the somewhat metaphysical language of a collective body ‘binding’ ‘itself’. Instead, I shall try to make out a normative argument for the view that constitutions ought to be written by assemblies called into being exclusively for that purpose and devoting themselves exclusively to that task. I shall refer to these as constitutional conventions or, more briefly, as conventions. A striking fact, however, is that only a small fraction of constitutions have actually been written in this way. The large majority of them have been written by constituent legislatures, that is, by bodies that have combined constituent and legislative functions. At the end, I shall address, very briefly, the question why the normatively desirable mode of constitution-making has not

3

R. Thaler and H. Shefrin, ‘An Economic Theory of Self-Control’, in R. Thaler, Quasi-Rational Economics (Russell Sage, New York, 2001) pp. 77–90.

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LEGISLATURES AS CONSTITUENT ASSEMBLIES been more widely adopted. My main concern, however, is to make the case for the superiority of conventions over other assemblies. Let me first make a few conceptual observations and then briefly cite some important examples of the two types of constituent assemblies. In addition to the distinction between conventions and constituent legislatures we can distinguish between mandated constituent assemblies and selfcreated assemblies. All constitutional conventions are elected with the mandate of writing a constitution. Some constituent legislatures also have a clear mandate. A clear case of the latter was the election of the first French Parliament after 1945, where the voters were asked: “Do you want the assembly elected today to be a constituent assembly?”, and 96 per cent of the voters answered: “Yes.” Some constituent legislatures, however, are self-created. While originally created for other purposes, they arrogate to themselves the right to adopt a constitution. This was a very common pattern among the American states during the revolutionary years.4 Among the constituent assemblies convened in this period, eight were self-created legislatures, nine were mandated legislatures and three were constitutional conventions. The Second Continental Congress, too, was a self-appointed constituent body when it enacted the Articles of Confederation. The Hungarian Parliament of 1989– 1990 was also self-appointed. It had been created under Communist rule, but took it upon itself to destroy that regime by piecewise constitutional amendments that amounted to a wholly new Constitution. Conversely, some assemblies begin as constitutional conventions and then assume legislative powers, following either of two principles: “He who can do more can do less.”5; “He who can create a power can also exercise it.” 6 For lack of a better term, I shall refer to these as self-created legislating assemblies. An example is the Frankfurt Parliament of 1848, which dissolved the Assembly of the German Confederation and arrogated its 4

The following draws on the data presented in R. S. Hoar, Constitutional Conventions (Little, Brown and Company, Boston, Mass., 1917). 5 A. Le Pillouer, Les pouvoirs non-constituants des assemblées constituantes, Thèse de Droit, Université de Paris X, 2003, pp. 98, 130, 133. As he notes, the French Constituante of 1789–1791 broke with this principle when it allowed the King a veto over ordinary legislation but not over the Constitution. 6 Ibid., p. 143. See also Hoar, supra note 4, p. 65: if a legislature can call a constitutional convention, it can also enact the constitution. Since this is absurd, the convention has to be authorized by the people. 45

JON ELSTER powers to itself.7 In the 19th century, a number of American states called conventions that authorized themselves to legislate.8 Altogether, therefore, we need to distinguish among four types of constituent assemblies: x x x x

constitutional conventions; mandated constituent legislatures; self-created constituent legislatures; and self-created legislating assemblies.

To repeat, the last three are all constituent legislatures. Whereas mandated constituent legislatures are elected with the dual task from the beginning, this is not true of the two types of self-created assemblies. The self-created constituent legislatures begin as legislatures and turn themselves into constituent assemblies. In self-created legislating assemblies, the opposite transformation occurs. Let me proceed to a selective historical overview. The best-known constitutional conventions are those that adopted the American Constitution and the German Basic Law. These are federal Constitutions, and not surprisingly the delegates were appointed by the states rather than chosen in popular elections. A non-federal example is provided by the Norwegian Constitutional Convention in 1814, where delegates were chosen by popular vote cast in the local churches. In addition, as I mentioned earlier, there are three examples from the early American period: Massachusetts in 1780, and New Hampshire in 1778 and in 1783. There have also been many state conventions in later American history. In a moment I shall discuss some recent Latin American conventions. Typically, constitutional conventions have to be supplemented by some other political authority to manage current affairs. An apparent exception is the current Bulgarian Constitution, which allows Parliament to call for elections to a Grand Constituent Assembly, whose possible tasks include that of creating a new Constitution. The relevant provisions are poorly thought out, however. On the one hand, “the mandate of the National Assembly shall expire with the holding of the elections for a Grand National Assembly”. On the other hand, it is only “in an emergency [that] the Grand National 7

F. Eyck, The Frankfurt Parliament 1848–49 (Macmillan, London, 1968) p. 196 and ch. 5 passim. 8 Hoar, supra note 4, pp. 140–148. 46

LEGISLATURES AS CONSTITUENT ASSEMBLIES Assembly shall further perform the functions of a National Assembly”. It follows that if there is no emergency, ordinary parliamentary functions, including the vote of the budget, must come to a standstill during the work of the Grand National Assembly. As there is no time limit on the duration of the Grand National Assembly, the ensuing political paralysis might create the very emergency that would justify its assumption of legislative powers. The Bulgarian case is a mere possibility. If we look at actual conventions, they always operate in tandem with other authorities. The Federal Convention operated concurrently with the Continental Congress, which adopted the momentous Northwestern Ordinance on 13 July 1787, while on the same day the delegates to the Convention were debating matters of taxation. In Germany after World War II, the Allies were firmly in charge of national policy matters. In Italy, the Decree-Law of 16 March 1946 assigned most legislative powers to the Government. A solution of this kind was also what de Gaulle had wanted for the Constituent Assembly in 1945, but it was rejected by the Provisional Consultative Assembly that had been established in Alger in 1943 and transferred to Paris in 1944.9 The Indian Constituent Assembly that met on 9 December 1946 was supposed to deal with constitutional matters only, while current affairs were to be handled by an interim Government. When the Assembly began to function after the partition of the country the following year, it turned itself into a Constituent Legislature. Conventions may thus either be supplemented by a strong executive or exist side by side with an ordinary legislature. The latter constellation, which was observed in the US in 1787, also occurred in Colombia in 1991 and in Venezuela in 1999. In both of the latter cases, a president essentially declared war on his Legislature by calling elections to a Constituent Assembly in ways not provided for by the existing Constitution. The ‘cohabitation’ of the two assemblies proved to be highly unstable. In Colombia, the Constitutional Convention ordered the dissolution of the Legislature and elected an interim Legislature from within its own body. In Venezuela, the Constitutional Convention took it upon itself to “assume the functions of the legislators [...] when these do not […] carry out their tasks or delay their execution”.10 9

As noted by Le Pillouer, supra note 5, p. 282, the solution proposed in France and adopted in Italy amounted to “avoiding the confusion of constituent and legislative powers by creating the cumulation of executive and legislative powers”. 10 Le Monde, 1 September 1999; see also Le Monde, 11 September 1999. 47

JON ELSTER From the beginning, nevertheless, constituent legislatures have been the most common kind of constituent assembly. The Virginia Convention that in 1776 adopted what is arguably the first constitution in the modern sense of the term, had originally been elected, in Jefferson’s words, as “agents for the management of the war”.11 The first French Assembly, the Assemblée Constituante that deliberated from 1789 to 1791, was elected both to write a constitution and to vote taxes. Once in place, it exercised extensive legislative and executive functions in addition to its constituent task. While spelling out the separation of powers for future legislative assemblies, the Constituante did not apply that principle to itself.12 Similarly, even those who argued for a bicameral Constitution insisted that the Constituante itself had to be unicameral. Let me briefly mention some other constituent legislatures. Many of them are transitional assemblies, which mark the demise of an autocratic regime and the beginning of a democratic one. Examples include the German and French Assemblies of 1848, the Spanish Parliaments of 1931 and of 1977, the East European Assemblies after 1989 and the South African Assembly of 1994. Others are created under the impetus of defeat in war, such as the French Assembly of 1871, the German Assembly of 1919 and the Italian Assembly of 1946, or at the end of a war, as in France in 1945– 46. Still others are established as part of the creation of a new state, as in Czechoslovakia after World War I, or the restoration of an old state, as in Poland at the same time. In 1992, Constituent Legislatures were created in the two new successor states to Czechoslovakia. A special case is that of constituent legislatures in colonial countries acceding to independence, such as the Continental Congress after 1776.

11

As cited later by Edmund Randolph (I. Brant, James Madison, vol. 2 (BobbsMerrill, Indianapolis, 1941) p. 252). In Jefferson’s opinion (ibid.) as well as in Madison’s (ibid., p. 251), the self-created nature of the Convention undermined its legitimacy. 12 This is at least the traditional view. For objections, see Le Pillouer, supra note 5, pp. 155–159. Although he appeals to Castaldo for support, the latter is actually quite unambiguous in his assertions that the Constituante violated the principle of separation of powers (see A. Castaldo, Les méthodes de travail de la constituante (Presses Universitaires de France, Paris, 1989) pp. 35, 235, 253). The focus in these discussions, however, is on the cumulation of constituent and executive powers, and only marginally on that of constituent and legislative powers. 48

LEGISLATURES AS CONSTITUENT ASSEMBLIES In all these cases, the process of constitution-making was induced by a political or military rupture. This, in fact, seems almost invariably to be the case. There are very few instances of either constitutional conventions or constituent legislatures deliberating ‘à froid’ in the absence of any internal or external crisis. One relatively clear-cut example is the Swedish Constitution that was adopted in 1974, after nearly two decades of debates and partial reforms. Other Nordic Constitutions have also been modernized after World War II, but not as radically as the Swedish one. A more ambiguous instance is the 1997 Polish Constitution, which may also be seen as the last stage in a protracted transitional process that began with the transition in 1989. The ‘hot’ nature of constitution-making also extends to constitutional conventions. In 1787, the American states were widely seen as being in a state of crisis, with several scenarios of internal breakdown and external conflict being seriously entertained. The Norwegian Constitution of 1814 was made in the middle of an armed conflict, and the German one of 1949 under the still devastating impact of defeat in the War. Thus it seems to be a near-universal rule that constitutions are written in times of crisis and turbulence. Nothing could be further from reality than the idea that “[c]onstitutions are chains with which men bind themselves in their sane moments that they may not die by a suicidal hand in the day of their frenzy”.13 Yet passion may not be the worst enemy of reason: interest can be even more dangerous.14 I now want to build a normative argument that a constitutional convention is a more desirable arrangement than a constituent legislature. It is not an open-and-shut case. In some respects, constituent legislatures may be preferable. Yet, on balance, conventions are better. We may note that arguments for conventions vary with the alternative to which they are contrasted. Some reasons why conventions are superior to self-created constituent legislatures do not apply to mandated assemblies or to selfcreated legislating assemblies. These latter may also be inferior to conventions, but for different reasons. I shall not make the claim, which would be hard to make precise and even harder to prove, that conventions tend to produce better constitutions. Instead I shall argue in procedural terms that conventions are more likely to embody the process value of free and unconstrained deliberation among all 13

John Potter Stockton in debates over the Ku Klux Klan Act of 1871, as cited in J. E. Finn, Constitutions in Crisis (Oxford University Press, New York, 1991) p. 5. 14 J. Elster (2003), supra note 2. 49

JON ELSTER concerned parties. More abstractly, I claim that conventions promote the predominance of reason over interest. I shall also claim that they make it more likely that reason will gain the upper hand in the contest with passion. Although the turbulence of constitution-making periods makes it unlikely that framers in either kind of assembly will act as ‘Peter when sober legislating for Peter when drunk’, I shall argue that the format of the convention will at least insulate them against certain kinds of passion. In addition, I shall argue that constitutions produced by conventions tend to have greater legitimacy and hence enjoy greater stability. As a constitution produces many of its desirable effects by virtue of its stability alone,15 somewhat independently of its substantive features, a legitimacy-conferring process will also be desirable. Let me begin with the last issue. The proper contrast here is between self-created constituent legislatures on the one hand, and the other three kinds of assemblies on the other hand.16 An assembly that takes it upon itself to write a constitution when its members were not elected for the task will inevitably invite criticism. The Hungarian Parliament of 1989, for instance, was a self-created Constituent Legislature. For this reason, and even more because of its Communist pedigree, the legitimacy of the new Constitution was initially questioned. Earlier, the constitution-making power of the 1871 French Legislature was called into doubt by those who argued, perhaps 15

J. Elster, ‘The Impact of Constitutions on Economic Performance’, in Proceedings from the Annual Bank Conference on Economic Development (The World Bank, Washington, 1995) pp. 209–226. 16 The issue of legitimacy can also arise in the case of constitutional conventions. The two best-known Constitutional Conventions – Philadelphia in 1787 and Bonn in 1949 – were both criticized for lack of legitimacy. In Philadelphia, some claimed that the Federal Convention went beyond its mandate when it recommended a wholesale replacement of the Articles of Confederation and proposed a mode of ratification different from the one stipulated in those Articles (see for instance the dissents by Yates and Lansing in H. Storing, The Complete Anti-Federalist, vol. 2 (University of Chicago Press, 1981)). In Bonn, objections arose from the fact that the Basic Law was written under the tutelage of the Allies (see for instance C. Schmid, as cited in J. F. Golay, The Founding of the Federal Republic of Germany (University of Chicago Press, 1958) p. 94). If, contrary to fact, the Germans had preferred a strong unitary Government, the occupying powers would not have allowed them to adopt it. Needless to say, in the end the American and German Constitutions gained uncontested legitimacy. 50

LEGISLATURES AS CONSTITUENT ASSEMBLIES disingenuously, that it had been elected only to deal with the aftermath of the Franco-Prussian War.17 Even earlier, in 1776, John Scott argued that the existing Provincial Congress in the state of New York “had the power to [frame] a government, or at least, that it is doubtful whether they have not that power”. Governor Morris argued strongly, however, for the calling of a constitutional convention, and a compromise was reached in the form of the election of a mandated Constituent Legislature, which took care of Morris’s concern for the legitimacy of the new Constitution.18 Self-created constituent legislatures are also normatively inferior in another related respect. In modern societies, an important function of the legislature is to provide the basis for an effective government. It is widely agreed that for that purpose, one wants an electoral system that limits the number of parties represented in the assembly. Majority voting or proportional voting with a high threshold are generally agreed to promote this end.19 To the extent, however, that the task of a constituent assembly is to promote free and unconstrained deliberation among all concerned parties, with a large variety of interests being represented, proportional voting with no threshold or a low threshold is more desirable. A self-created constituent legislature elected for the purpose of effective governance might not, therefore, enjoy the legitimacy of a body with a broader basis. The argument also applies to the extent of the suffrage. There is a tendency for a wider suffrage in electing deputies to conventions than in choosing representatives to legislatures.20 Thus after the Declaration of 17

Le Pillouer, supra note 5, p. 102; P. Bastid, Le gouvernement d’assemblée (Editions Cujas, Paris, 1956) p. 216. 18 M.-J. Kline, Gouverneur Morris and the New Nation, 1775–1788 (Arno Press, New York, 1978) pp. 54–56. In Delaware, by contrast, the need for a special convention was seen as more important than the need for a mandate (M. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (University of North Carolina Press, Chapel Hill, NC, 1997) pp. 28, 29). 19 This is not the place to summarize the large literature on the relation between electoral systems and party formation. It is of some interest to note, however, that in the French debates in 1946 over the possible constitutionalization of proportional voting it was assumed, contrary to what the experience of the Fourth Republic would show, that this system would lead to the emergence of a “coherent and stable majority” (J. Bougrab, Aux origines de la Constitution de la IVe République (Dalloz, Paris, 2002) p. 362). 20 For a survey of American state constitutions, see Hoar, supra note 4, pp. 203–207. 51

JON ELSTER Independence, the General Court (lower house) of Massachusetts “enfranchised all free adult male town inhabitants for the duration of the constitution-making process”,21 from the election of delegates to a Constituent Legislature up to (but not beyond) the ratification of the document. When the proposed Constitution was turned down, partly because of a perception that the legislators had “Prepossessions in their own Favor”,22 the House called for a convention whose proposal was then ratified. The Act for the holding of the Indiana Convention in 1918 extended the vote to women for the ratification.23 Where delegates to a constituent assembly have been elected by universal or wide suffrage, the assembly may nevertheless write a more restricted suffrage into the constitution. The Massachusetts Charter that governed elections prior to the adoption of the 1780 Constitution limited suffrage to those who had “an estate of freehold in land [...] to the value of 40 shillings per Annu [...] or other estate to the value of forty pounds sterling”. In the election to the Convention that succeeded the unsuccessful Constituent Legislature all freemen could vote and, later, participate in the ratification. The Constitution adopted by the Convention, however, increased the property qualifications by 50 per cent compared to the Charter.24 Framers may feel uneasy at the prospect of discarding the mode of election by which they themselves have been chosen. In France, in 1791, the framers managed to get around the problem by subterfuge.25 In Frankfurt, in 1848, their qualms caused them to retain universal male suffrage in the Constitution.26 This being said, there is nothing intrinsically contradictory in a convention elected by universal suffrage adopting a limited suffrage for future legislatures. For an analogy, consider the outcome when revisions in the Danish Constitution were submitted to referendum in 1953. Each voter cast two votes, one for or against the proposed Constitution and one for a 21

Kruman, supra note 18, pp. 30, 31. Ibid., p. 32. 23 Hoar, supra note 4, p. 205. 24 Ibid., p. 206. 25 See for instance Brissot, as quoted by P. Guennifey, Le nombre et la raison: La révolution française et les élections (Editions de l’Ecole des Hautes Etudes, Paris, 1993) p. 61; see also J. Elster, ‘Drawing a Veil over Equality: Equality and Hypocrisy in the Revolutionary Era’, in C. Sypnowich, The Egalitarian Conscience: Essays in Honour of G. A. Cohen (Oxford University Press, 2006). 26 Eyck, supra note 7, pp. 44, 45, 367, 368, 382. 22

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LEGISLATURES AS CONSTITUENT ASSEMBLIES change in the voting age. The alternatives for the second vote were to lower the age from 25 to 23 or to 21 years. In the first vote, only citizens above 25 could cast a vote. In the second, everybody above 21 could vote. The result of the referendum was that the extended electorate refused a corresponding extension of the electorate. A majority of the voters above 21 decided to lower the voting age from 25 to 23 rather than to 21. ‘We the people’ may collectively decide that only some of us shall be entrusted with day-to-day political decisions.27 Conversely, the 1830 Virginia Constitution was “ratified in an election open to all who were prospectively enfranchised by it”.28 The choice of a mode of election to a constituent assembly is a decisive moment. Those who can influence or constrain the choice of delegates may also, at one remove, be able to shape the constitution. If the assembly is at the same time to serve as a legislature, they may also be able to affect current affairs, and in particular to ensure that their party will form the government. These considerations, notably the second, may induce the choice of majority voting. The composition of the 1931 Spanish Constituent Legislature owed a great deal to the adoption by the interim Republican Government of a strongly majoritarian electoral system that favoured Republican forces. The subsequent constitution-making was deeply nonconsensual. The 1990 elections to the Bulgarian Constituent Legislature “caused a deep legitimation crisis”29 because they took place within a mixed majoritarian-proportional system that was heavily shaped by the greater bargaining power of the Communists. Even proportional voting may be adopted for such tactical reasons. The choice by de Gaulle of proportional voting for the elections to the Constituent Legislature in 1945 has been explained on a number of grounds. According to one account, the decisive reason was the need for a variety of

27

By contrast, the subsequent lowering in 1961 of the voting age to 21 was decided in a referendum where only those above 23 had the right to vote. 28 J. R. R. Pole, Political Representation in England and the Origins of the American Republic (University of California Press, Berkely, 1966) p. 332. 29 R. Kolarova and D. Dimitrov, ‘The Round Table Talks in Bulgaria’, in J. Elster (ed.), The Round Table Talks and the Breakdown of Communism (University of Chicago Press, 1996) p. 200. 53

JON ELSTER opinions to be represented.30 According to another, proportional representation (PR) was chosen in conformity with the justice-based ideology of the Resistance.31 We know today, however, that he chose this mode of voting to minimize Communist representation in the Assembly. As he explained in conversations with Peyrefitte: “In 45, the Communists represented one vote out of three, the other two thirds being dispersed among numerous formations. If I had adopted majority voting, the assembly would automatically have been three quarters Communist. This could be avoided only by the proportional vote.”32 At the same time, it would be inaccurate to assume that the choice of the mode of election to constituent assemblies is never governed by the desire to assure a broad representation. In four cases that I shall now briefly survey, the conveners of the assembly were in fact guided by this desire. In each but the last of these episodes, the result of this choice was arguably disastrous, for the conveners, for the country or for both. In 1789, Louis XVI made a choice that turned out to be unfortunate for him, when he devised electoral rules that made the parish priests rather than the bishops the main representatives of the clergy to the Estates-General. He did so, he asserted in the electoral rules announced on 24 January 1789, because “the good and useful pastors, who assist the people in their needs on a close and daily basis, [...] know their sufferings and apprehensions most intimately”.33 The lower clergy “thus were to represent the peasantry as well 30

O. Rudelle, ‘Le rôle du Général de Gaulle et de Michel Debré’, in D. Maus, L. Favoreu and J.-L. Parodi (eds.), L’Écriture de la Constitution de 1958 (Economica, Paris, 1992) p. 759. 31 Bougrab, supra note 19, p. 266. Her discussion is confused, however, as she first asserts that PR “privileges the large parties” and then that the alternative system of majority voting “brutally eliminates the small” parties. 32 A. Peyrefitte, C’était de Gaulle, vol. 1 (Fayard, Paris, 1994) p. 451. 33 ‘Introduction Historique’, Réimpression de l’Ancien Moniteur (AM), p. 558. We may note the important idea that the deputies were to represent knowledge of interests rather than the interests themselves. Similarly, Beard stated that “[t]he purpose of [his] inquiry is not [...] to show that the Constitution was made for the personal benefit of the members of the Convention. [...] The only point considered is: Did they represent distinct groups whose economic interests they understood and felt in concrete, definite form through their own personal experience with identical property rights?” (C. Beard, An Economic Interpretation of the Constitution of the United States (The Free Press, New York, 1986)). See also F. McDonald, We the 54

LEGISLATURES AS CONSTITUENT ASSEMBLIES as the clerical assemblies that had elected them”.34 It should not have come as a surprise, therefore, when in May–June 1789 the priests allied themselves with the Third Estate to undermine the estate system itself and ultimately the royal power In the election of delegates to the 1919 Weimar Assembly, the provisional Socialist Government deliberately adopted proportional voting, together with female suffrage, in spite of the fact that both features were against their electoral interests.35 It is at least arguable that a more selfserving choice of electoral system would, by enhancing the stability of the Government, have prevented the disasters that followed. In 1990, Vaclav Havel imposed a similarly counter-interested proportional system, to allow a place for his former Communist enemies in the Constituent Assembly.36 As Louis XVI before him, he paid a high price for his impartiality. The Communists, notably the deputies from Slovakia, ended up as Constitution-wreckers rather than as Constitution-makers. One of Havel’s close associates told me in 1993 that “this decision will be seen either as the glory or the weakness of the November [1989] revolution: we were winners that accepted a degree of self-limitation”. The making of the 1919 Czechoslovak Constitution does not fall into this depressing pattern. As a general election to the Constituent Assembly was out of the question, with a large proportion of the male population still out of reach and unable to vote due to War circumstances, the provisional Government assigned seats to the parties according to their representation in the pre-War Reichsrat of the Habsburg Empire, which had been elected by universal suffrage under a majoritarian system. When the 1919 municipal elections, held under a proportional system, gave a very different outcome,

People: The Economic Origins of the Constitution (Transaction Books, New Brunswick, 1992) pp. 6, 10. 34 R. F. Necheles, ‘The Curés in the Estates General of 1789’, in 46 Journal of Modern History (1974) p. 427. 35 E. R. Huber, Deutsche Verfassungsgeschichte seit 1789, vol. 5 (Kohlhammer, Stuggart, 1978) p. 1067. A third reform, the lowering of the voting age, may have worked to the advantage of the Socialists (ibid.). 36 J. Elster, ‘Transition, Constitution-Making and Separation in Czechoslovakia’, in 36 Archives Européennes de Sociologie (1995) pp. 105–134.

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JON ELSTER seats in the Constituent Assembly were reallocated to reflect the more recent results. Let me conclude on this point. In mandated constituent legislatures, the conveners may find themselves torn among three desires: to maximize the representation of their own group in the assembly, to ensure stable and effective governance and to produce a set of deputies that represent a large variety of groups and interests. Although the last goal sometimes dominates, at other times it does not. Those who organize elections to constitutional conventions or to self-created legislating assemblies would tend to give greater weight to the third desideratum. By contrast, there is no intrinsic reason why conveners of self-created constituent legislatures should accord much importance to the desire for representativeness. Next, I turn to the role of private interests and of techniques for reducing their importance in the constitution-making process. It is a truism that many decisions made by an ordinary legislature have a strong short-term impact on legislator interests. If the decision-making process is shielded from the public eye, arguing about the common interest will easily degenerate into naked-interest bargaining. The effect of and perhaps the intention behind the practice of allowing the public to follow the proceedings and observe the votes is to limit such self-serving scheming and, as a by-product, promote the public good. As Bentham wrote, “[t]he greater the number of temptations to which the exercise of political power is exposed, the more necessary is it to give to those who possess it, the most powerful reasons to resist it. But there is no reason more constant and more universal than the superintendence of the public.”37 Yet if publicity is useful to prevent the intrusion of private interest into public affairs, it may also have adverse effects, to be described shortly. By contrast, constitutional provisions usually do not have a strong shortterm impact on the constitution-makers themselves. The American Constitution, to be sure, is an exception. Many Framers had extensive economic interests in a number of matters that were to be or might have been regulated by the Constitution. For instance, “[g]iven the existence of debtor relief statutes in many states and the potential for debtor relief measures in other states, it is not surprising that delegates with private security holdings

37

J. Bentham, Political Tactics (Oxford University Press, 1999) p. 29.

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LEGISLATURES AS CONSTITUENT ASSEMBLIES tended to favor national veto over state laws”.38 In the Assemblée Constituante, too, the opposition of Abbé Sieyes to the abolition of the tithe may have had something to do with the fact that it would affect him personally.39 Article 41(7) of the Romanian Constitution of 1991 says that “[p]roperty is presumed to have been acquired legally”, which is an unusual sort of provision. To make sense of it, we might look to a decision made by the Czechoslovak Government on 26 September 1991 that in the future successful bidders for state-owned business would have to prove where their money comes from. The measure was intended to block the use of ‘dirty money’ that had been illegally accumulated by members of the former nomenklatura or black marketers. There was a presumption of guilt: the Government is under no obligation to show that the funds have an illegal pedigree. Instead, citizens will have to prove that their money is clean. The Romanian clause may have been intended to pre-empt similar measures. I believe nevertheless that the scope for self-serving behaviour is in general much smaller in constitutional contexts than in ordinary legislation.40 Framers do not benefit personally from a system of checks and balances or from a ban on arbitrary search and seizure. It does not matter to them personally whether the majority to overrule a presidential veto shall be two thirds or three fourths, or whether elections shall be every third or every fourth year. Moreover, the long time horizon for constitution-making may 38

R. McGuire and R. Oshfeldt, ‘An Economic Model of Voting Behavior over Specific Issues at the Constitutional Convention of 1787’, in 46 Journal of Economic History (1986) p. 102; see also generally McDonald, supra note 33. 39 G. Lefebvre, Etudes sur la Révolution Française (Presses Universitaires de France, Paris, 1963) p. 151. Castaldo, supra note 12, p. 174, claims that “personal and familial interest” was of minor importance in the votes of the constituants. 40 C. Jillson, Constitution Making: Conflict and Consensus in the Federal Convention of 1787 (Agathon Press, New York, 1988) p. 17, asserts that whereas at the Federal Convention ideas governed the “‘higher’ level questions of constitutional design”, economic and geographic interest dictated the “‘lower’ level choices among specific decision rules, each of which represented an alternative distribution of authority within and over the institutions of government”. Referring to the interest of individual Framers rather than to those of the states, R. McGuire, ‘Constitution-Making: A Rational Choice Model of the Federal Convention of 1787’, in 32 American Journal of Political Science (1988) pp. 483–521, reaches a similar conclusion. This very convergence – explaining the same outcomes twice over – ought perhaps to induce some scepticism. 57

JON ELSTER create a ‘veil of ignorance’ behind which personal interest and the general interest tend to coincide.41 Even framers who represent a strong group interest usually have few opportunities to write it into the constitution. An important systematic exception is the tendency in the establishment of federal systems for small states to propose an equal or close-to-equal representation of the states in the upper house, and for large states to propose strictly proportional representation. Although (contrary to their claims) small states would have little to fear in a proportional system,42 their interest (as that of any state) is obviously to have as many senators as possible. Another frequently observed exception is the imposition by economic elites of economic restrictions on suffrage to prevent the poor from using their vote to confiscate their wealth or to protect the interests of large landed property holders. Important as these cases are, I do not think they invalidate the claim that, overall, individual and group interest are substantially less important in constitution-making than in ordinary legislation. Below I make a similar claim for the role of ‘institutional interest’. The relative unimportance of private and group interest in the outcome reduces the benefits to be obtained from publicity, but does not provide an argument for secrecy. It is possible to provide an argument for closed proceedings, however, by pointing to some negative effects of publicity. Debates in front of an audience tend to generate rhetorical overbidding and heated passions that are incompatible with the kind of close and calm scrutiny that ought to be the rule when one is adopting provisions for the indefinite future. By denying the public admission to the proceedings and by 41

For three examples of veil of ignorance reasoning at the Federal Convention, see J. Elster, ‘Mimicking Impartiality’, in K. Dowding, R. Goodin and C. Pateman (eds.), Justice and Democracy (Cambridge University Press, 2004) pp. 119, 120. This case, in which framers base their own decisions on ignorance about their future consequences, differs from that in which they try to shape the decisions of future legislators by subjecting them “to uncertainty about the distribution of benefits and burdens that will result from a decision” (A. Vermeule, ‘Veil of Ignorance Rules in Constitutional Law’, in 111 Yale Law Journal (2001) pp. 399–432). 42 For rebuttals of this small-state claim at the Federal Convention, see Madison in M. Farrand (ed.), Records of the Federal Convention (Yale University Press, New Haven, Conn., 1966) pp. 446–449, and B. Barry, ‘Is It Better To Be Powerful Than Lucky?’, in same author, Democracy, Power and Justice (Oxford University Press, 1989) pp. 293, 294. In two-state federations such as Czechoslovakia before the break-up the fear can obviously be more justified. 58

LEGISLATURES AS CONSTITUENT ASSEMBLIES keeping the debates secret until the final document has been adopted, one creates conditions for rational discussion that are less likely to prevail in the presence of an audience. To be sure, secrecy also facilitates bargaining, by removing the opprobrium on displays of self-interest. Bentham’s point was indeed that the creation of that opprobrium is one of the great benefits of publicity. But if, as I have argued, the purchase of self-interest on constitutional provisions is likely to be relatively small, the benefits of secrecy will tend to outweigh the costs.43 The most famous example of a convention held behind close doors is of course the Federal Convention.44 The debates in the German Parliamentary Council that created the 1949 Basic Law were also shielded from publicity, as were those in the 1814 Convention in Norway. Even constituent legislatures may use closed proceedings when they take on their constitutional hat. The Provincial Congress that adopted the 1777 New York Constitution worked behind close doors when debating constitutional matters, as did the 1776 Virginia Congress while discussing the Bill of Rights.45 In many cases, however, it might be difficult to implement this two-track solution. An assembly that is open to the public in some of its proceedings may find it difficult to prevent the world from learning what goes on in the others. It is likely that some leakage will occur. In the French Assemblée Constituante, matters of the day and matters of constitutional principle alternated in a dizzying rhythm that would preclude the clearing of the galleries when the latter were debated. There are other reasons why a dual assembly might perform its constitutional tasks poorly. For one thing, constitutional provisions might be shaped indirectly by private interest through the mechanism of logrolling. One deputy might offer to vote for another’s favoured constitutional 43

In J. Elster, ‘Strategic Uses of Argument’, in K. Arrow et al. (eds.), Barriers to the Negotiated Resolution of Conflict (Norton, New York, 1995) pp. 251, 252, I overlooked this point. 44 As Madison wrote many years after the Convention, “had the members committed themselves publicly at first, they would have afterwards supposed consistency required them to maintain their ground, whereas by secret discussion no man felt himself obliged to retain his opinions any longer than he was satisfied of their propriety and truth, and was open to the force of argument” (Farrand, supra note 42, p. 479). 45 W. P. Adams, The First American Constitutions (Rowman and Littlefield, Lanham, MD, 2001) p. 248. 59

JON ELSTER provision in exchange for support on a legislative issue in which he has a personal interest. For another, the dividing line between statute and constitutional provisions might be blurred. As soon as the Assemblée Constituante had imposed the principle that statutes but not constitutional provisions were subject to the royal veto, the deputies had a clear incentive to present each of their decisions as a constitutional one.46 In the Hungarian Constituent Legislature in 1989 it sometimes happened (I have been told) that a conflict between a statute and a constitutional provision was resolved by modifying the latter rather than the former. Two episodes from the Assemblée Constituante illustrate the perils of duality. In each case, it is likely that a decision by the Assembly to prevent its members from seeking executive or legislative office had the effect of creating a precedent for the Constitution. In the fall of 1789, Mirabeau twice addressed the issue of the relation between the King’s minister and the Assembly. In September, his proposal that ministers chosen from the Assembly could retain their seat (or stand for re-election) might have been adopted had it been put to a vote, which for technical reasons it was not.47 When the issue came up again in November, he argued for the more limited proposal that the ministers be allowed to have a “consultative voice” in the Assembly until “the constitution shall have fixed the rules which shall be followed with regard to them”.48 Had the vote not been postponed until the next day, the proposal might have been adopted. As the delay gave Mirabeau’s enemies time to gather their forces, it was defeated. Among the arguments offered against it, the most relevant for my purposes was made by Pierre-François Blin, a deputy of the Third Estate: “The issue may seem detached from the constitution and to be merely provisional; but the authority of the past on the future binds the facts at all times.”49 Although the appeal to the danger of precedent-setting was probably a pretext for excluding Mirabeau from the ministry, the argument itself is plausible and, in fact, applies directly to Blin’s own successful motion that “[n]o member of the National Assembly shall from now on be able to enter the ministry 46

Madame de Staël, Considérations sur la Révolution Française (Tallandier, Paris, 2000) p. 243. 47 1 AM, pp. 532, 533; see also R. K. Gooch, Parliamentary Government in France. Revolutionary Origins, 1789–1791 (Cornell University Press, Ithaca, NY, 1960) pp. 104–106. 48 2 AM, p. 152; see also Gooch, ibid., pp. 108–117. 49 2 AM, p. 153. As a French proverb has it: “Rien ne dure comme le provisoire.” 60

LEGISLATURES AS CONSTITUENT ASSEMBLIES during the term of the present session”. It is likely although not rigorously provable that the article in the Constitution of 1791 banning members of any Assembly from the ministry during their tenure and in the two years following it can be traced back to his motion. Although mainly adopted for the purely tactical purpose of stopping the ascent of Mirabeau, the Assembly could hardly disavow the lofty principle on which it pretended to rest. The even more momentous adoption of Robespierre’s self-denying ordinance on 16 May 1791, making members of the current Legislature ineligible for the next one, also set a precedent for the Constitution. His professed motive was that since “we are going to vote on the […] organization of the legislative body and on the constitutional principles of the elections, let us make sure that we are not involved in these great questions (que ces grandes questions nous soient étrangères); let us rid ourselves of all the passions that might cloud our reason”.50 His real motive, although shrouded in the hypocritical and intimidating appeal to the public interest of which he was a master, was dictated by his interest in a weak Legislature, which would remove his political enemies from power and allow the Jacobin clubs to dominate.51 The motives of the deputies in their near-unanimous adoption of the proposal were complex.52 Some may have been “drunk with disinterestedness”, in the words of the biographer of Deputy Thouret who unsuccessfully tried to stem the tide of enthusiasm.53 Others may have voted for the motion because they feared to be stigmatized as self-interested, and perhaps persecuted, if they opposed it. Using the routine scare tactic of the Left, the noble Deputy Custine said that “[i]t is easy to see that the opponents want to be reelected”.54 Many right-wing deputies voted for the measure because they thought it would destabilize the regime by ensuring that the new Legislature would be made up of

50

8 AM, p. 418. The speech as a whole makes it clear that the danger to be protected against was the interest of the constituants in being elected to the first Legislature rather than their passions. 51 G. Walter, Maximilien de Robespierre (Gallimard, Paris, 1989) p. 107. 52 B. Shapiro, ‘Self-Sacrifice, Self-Interest, or Self-Defense?: The Constituent Assembly and the ‘Self-Denying Ordinance’ of May 1791’, in 25 French Historical Studies (2002) pp. 625–656 53 E. Lebègue, Thouretb (Felix Alcan, Paris, 1910) p. 261. 54 8 AM, p. 420. 61

JON ELSTER inexperienced novices.55 Whatever the mix of motives, it is plausible that this episode set a crucial precedent for the limitations on re-eligibility adopted in the 1791 Constitution.56 These examples (and others that might have been cited) reflect a mechanism of path-dependency.57 The constitution that is finally adopted may depend in accidental or irrelevant ways on decisions made by the framers when wearing their legislative hats. As an analogy, in courts that combine the functions of a supreme court and of a constitutional court, decisions made by judges in the former capacity might contribute to shaping those made in the latter capacity.58 Unlike courts with a dual function, onepurpose or “pure” constitutional courts have the invalidation of statute as their only raison d’être. Thus if “a constitutional court is not ‘pure’, but has additional functions apart from reviewing legislation [...], the more easily a court can exercise deference towards parliament, if other factors push in that direction”.59 This is not an argument for pure constitutional courts since in order to affirm their autonomy they may display insufficient rather than excessive deference. By contrast, it is hard to see that any analogous dangers would be created by having an assembly that devoted itself exclusively to constitution-making. Robespierre’s self-denying ordinance was proposed for bad reasons and turned out to have bad effects, but this should not prevent us from acknowledging that an arrangement of this kind might be a possible response to a genuine problem. A constituent legislature might be subject to a selfenhancing bias, in the sense that it might create an excessively strong legislative branch with correspondingly weak executive and judicial branches. The bias might stem from one of two sources. First, if the framers expect or hope to be elected to the first post-constitutional assembly, they have a direct interest in being able to promote their interest – or just to exercise power – at that later stage. Second, as members of the legislature 55

C.-E. Ferrières, ‘Mémoires’, in M. de Lescure (ed.), Bibliothèque des mémoires, t. XXXV (Firmin-Didot, Paris, 1880) p. 344. 56 Although Robespierre wanted to exclude re-eligibility for the next Legislature, the Constitution allows re-eligibility for one Legislature. 57 For a general discussion of such lock-in effects in constituent legislatures, see Le Pillouer, supra note 5, pp. 50–60. 58 I am indebted to Patricia Hughes for drawing my attention to this parallel. 59 V. Ferreres, ‘The Consequences of Specializing Constitutional Review in a Special Court’, in 82 Texas Law Review (2004) p. 1732. 62

LEGISLATURES AS CONSTITUENT ASSEMBLIES they might naturally come to think that the institution to which they belong is a particularly important one, partly because they have more intimate knowledge about it than about the other branches and partly because there is a natural human tendency to enhance one’s own importance in the scheme of things.60 A similar bias, stemming from the same two sources, may apply to members of the executive branch, to the extent that they, too, are involved in the constitution-making process.61 To be sure, members of constitutional conventions might also be subject to a self-enhancing bias. If they expect that they will play a prominent role in one of the branches of government, they might tend to write an important place for that branch into the Constitution or favour the members of that branch.62 This bias could only arise, however, from the first of the two sources mentioned in the previous paragraph. It is rooted in simple individual interest. Bias rooted in the second source reflects what we might call ‘institutional interest’, not because an institution can have interests (it cannot), but because this bias is shaped by the current place of the deputies in the institutional structure rather than by the place to which they aspire.63 60

For comments on the strong ‘institutional patriotism’ in the US Senate, see D. Matthews, US Senators and Their World (Norton, New York, 1973) pp. 101, 102. 61 As President of Czechoslovakia Vaclav Havel repeatedly asked Parliament to increase the powers of the presidency in the new federal Constitution. His constitutional draft of 5 March 1991, for instance, gave the president the right to declare a state of emergency, to dissolve Parliament and to call a referendum (Report on Eastern Europe, 22 March 1991). In November 1991, President Walesa of Poland produced a constitutional draft that replaced the parliamentary supremacy adopted in the 1989 Round Table Talks with the supremacy of the presidency (ibid., 12 December 1991). The Constitutions proposed (in 1946) or imposed (in 1958) by General de Gaulle were similarly executive-centred. As I argue in J. Elster, ‘Beyond Rational Self-Interest’, in I. Shapiro (ed.), Rethinking Political Institutions: The Art of the State (NYU Press, 2006), however, it would be simplistic to assume that de Gaulle created the Constitution of the Fifth Republic merely to enhance his own power. Rather he wanted to create a strong presidency for the sake of future heads of state who would not be able to rely, as he could, on personal charisma and authority. 62 Thus, at the Federal Convention, Franklin (Farrand, supra note 42, p. 427) warned against “lucrative appointments” for the future senators lest “we might be chargeable with having carved out places for ourselves”. 63 Kruman, supra note 18, pp. 7, 22, 25, 31, refers to the distrust of ‘institutional interest’ to explain the preference for conventions over constituent legislatures in 63

JON ELSTER In general, it is hard to tell when and by how much one of these biases might be more important than the other.64 Yet, recognizing the difficulty of distinguishing between them, let me cite some historical examples. I believe many French constituants were subject to a bias of the second kind when they voted against bicameralism and an absolute royal veto in September 1789. A vote for bicameralism and absolute veto would have been an implicit recognition that an unchecked popular assembly, such as the one to which they belonged, might not possess infallible wisdom. In the enthusiasm of the day, this idea was unthinkable.65 The French Constituent Legislature of 1848 created a document that was essentially legislative-centric. The Assembly could bring down the Government by refusing to vote the budget, but the president could not dismiss Parliament or veto its decisions. Yet the Assembly refrained, for reasons that remain obscure, from having the president elected by the Assembly so that he could be its creature. Instead the framers opted for popular election, thus producing an outcome that few of them wanted, that of Louis Napoleon being chosen as the first president. The outcome was disastrous, as might be expected when a formally omnipotent assembly confronts an executive endowed with few formal powers but with the legitimacy of popular election and a magical name.66 A hundred years later, the French Constituent Legislature elected in 1945 proposed a pure ‘régime d’Assemblée’ that was rejected in a popular referendum, mainly because the voters feared it might facilitate a Communist bid for power. The Constitution adopted the following year by a new Constituent Legislature was slightly modified in favour of the executive, but remained highly legislative-centric, with the president as well

revolutionary America, but it is unclear which of these biases he has in mind. His phrasing is consistent with either. 64 I suspect but cannot prove that Havel was subject to institutional bias and Walesa to a simple self-interested bias. 65 A. Duquesnoy, Journal sur l’Assemblée Constituante, vol. I (Alphonse Picard, Paris, 1894) p. 324, diary entry from 9 September 1789, cites an explicit statement by a deputy that in the passions of the moment the Assembly was incapable of taking precautions against the passions of the future. 66 Already in 1848, three years before the coup d’état of Louis Napoleon, clearheaded minds were in no doubt on this issue (F. Luchaire, Naissance d’une Constitution: 1848 (Fayard, Paris, 1998) p. 12). 64

LEGISLATURES AS CONSTITUENT ASSEMBLIES as the prime minister being elected by the Assembly.67 The constitutionmaking process is best characterized as a deal among politicians regulating their future deals. Again, the outcome was disastrous, not because the constitutional machinery was smashed, as on 10 December 1851, but because it ultimately wore itself down. These three episodes display the self-serving tendency of constituent legislatures. There are also episodes that point in the opposite direction, a striking case being the Hungarian one from 1989. By adopting the constructive vote of no confidence the Constituent Legislature endowed the Government with greater independence from Parliament. By creating a very strong Constitutional Court, it severely limited its own future legislative powers. One might seek the explanation for these self-limiting enactments in the general spirit of euphoria that was reigning in much of Eastern Europe at the time. Perhaps the Hungarian framers, like the French constituants in 1791, were ‘drunk with disinterestedness’. In the case of the Constitutional Court, however, a more mundane explanation is also available since there is evidence68 that the Hungarian Communists wanted a strong Constitutional Court that could be expected to strike down vindictive legislation once the Democrats got into power. A more clear-cut counterexample is provided by the German Constituent Legislature of 1919, which created an executive that was intended to be strong and turned out to be disastrously so. As with the other arguments I have adduced, for the normative superiority of conventions their lesser vulnerability to self-serving biases is only a tendency, not an invariant feature. The arguments have some support in first principles, and the preponderance of the empirical evidence seems to be in their favour. On balance, I believe they suggest that conventions are superior to any of the three alternatives. Before concluding, however, we should also consider some arguments that might favour one of the latter. At the end of the day, I do not think they outweigh the considerations I have offered, but they do make the case more complicated. It has been argued that constituent legislatures are superior because the framers can be held accountable at the next election.69 It is certainly 67

Bastid, supra note 17, part 2, ch. 3. Summarized in J. Elster, Closing the Books (Cambridge University Press, 2004) p. 194. 69 Dale Kreibig (personal communication) informs me that this argument was made in the Report by the Canadian Beaudoin-Edwards Special Joint Committee (1991), pp. 47–51. 68

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JON ELSTER desirable that self-created constituent legislatures be held accountable in some way, either by election or by downstream ratification of the constitution. To arrogate the constituent power to themselves without being accountable to anyone would amount to a legislative coup d’état. It is less clear why conventions or constituent legislatures with an upstream mandate would also need a downstream approval. If this should be thought desirable, ratification can obviate the need to hold the axe of re-election over the heads of the framers. One might argue, furthermore, that conventions are inferior to constituent legislatures because in their inability to legislate they might write matters into the constitution that ought, by the nature of the subject matter, be left to statute. This has, in particular, been common in many American state conventions.70 Although “this subterfuge of including legislation in the constitution has not always gone unchallenged by the courts”,71 still “many of our State constitutions today [1917] consist for the most part of legislative details which ought to have been left to the ordinary legislature”.72 Yet this temptation is matched by the temptation of a majority in constituent legislatures to write in stone (i.e. to constitutionalize) clauses that by their nature belong to statute, to make it more unlikely that they will be overturned by future majorities. Third, one might argue that constituent legislatures are desirable because of the scarcity of competent legislators. If a country opts for the concurrent operation of a legislature and a constitutional convention, the quality of debates and decisions in one or both will suffer. The ‘Bulgarian’ alternative of shutting down current affairs until after the Convention is finished is equally undesirable. The force of this argument will depend on institutional detail. It is stronger if there is an existing legislature in place and its members are ineligible to the convention, as when in 1991 President Gaviria of Colombia issued a decree, upheld by the Supreme Court, that made sitting congressmen ineligible for the Assembly. In that case there is indeed a risk, at least in the abstract, that the most competent politicians will end up devoting themselves to the less important tasks. By contrast, delegates to the Continental Congress were eligible to the Federal Convention. Ten were in fact elected, out of whom eight showed up, including Madison. We may also consider the frequent coexistence of two elite bodies in the lower and upper 70

Hoar, supra note 4, pp. 142 et seq. Ibid., p. 144. 72 Ibid., p. 143. 71

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LEGISLATURES AS CONSTITUENT ASSEMBLIES houses of parliament. There are many objections to bicameralism, but the scarcity of competent legislators is not one I have ever seen cited.73 A fourth objection rests on the dangers, rather than merely the inefficiency, of having two concurrent assemblies. As I noted earlier, the two-track systems of Colombia and Venezuela created an acute conflict between the two assemblies in which the Conventions, supported by the Presidents, won the upper hand. This outcome corresponds to the analysis of Robespierre in a speech from 1793, in which he said that “[a] double representation contains the germ of civil war. [...] One assembly would appeal to the existing constitution and the other to the keener interest that a people takes in new representatives; the struggle would be engaged and the rivalry would excite hatred”.74 One might imagine a civil war occurring in 1787, if Congress had insisted on the Constitution being ratified by the State Legislatures. Yet an eventuality that did not materialize cannot provide an empirical basis for the objection. Nor does the experience of two unstable Latin American countries provide a very telling argument. The theoretical basis for the objection is essentially a warning by Robespierre, who is hardly a credible authority in these matters.75 Finally, some might object to the condition of secrecy that I used as a premise in part of my argument for the superiority of conventions. In the modern world, they might say, an elite forum of this kind will inevitably lack legitimacy.76 Upstream legitimacy, if necessary supplemented by downstream legitimacy through ratification, will not be enough: process legitimacy is also required. The constitution will not appear as legitimate unless it has been hammered out in public, through public hearings, public debates and public voting. My response is that these public processes can 73

We may also cite the claim by Bryce that “[e]xperience has shown [...] in the United States, the country in which this method [conventions] has been largely used for redrafting, or preparing amendments to, the Constitutions of the several States, that a set of men can be found for the work of a Convention better than those who form the ordinary legislature of the State” (see J. Bryce, Constitutions (Oxford University Press, 1905) p. 62). 74 Cited by Le Pillouer, supra note 5, p. 127. 75 As further evidence, one may also cite the paucity of expressed feelings of envy and jealousy in the relations between the two legislative branches in the US (L. Little, ‘Envy and Jealousy: A Study of Separation of Powers and Judicial Review’, in 52 Hastings Law Journal (2000) p. 75). 76 I am indebted to Dale Kreibig for pressing this point on me. 67

JON ELSTER take place at the upstream stage and perhaps also at the downstream stage, but that between these two stages the writing of the constitution should be shielded from the public. The process as a whole should be hourglassshaped.77 If the people have a self-destructive desire for full and constant illumination of the proceedings, they will of course have their way. Yet the best-known popular rejections of secret constitution-making, following the Meech Lake and Charlottetown Accords in Canada, do not provide any evidence of this desire. These Accords emerged from the ultimate “smokefilled back-room” processes, with very little upstream legitimacy.78 Why then are constitutional conventions rare? One reason is that conveners may choose the path of least resistance. When a legislature is in place, why not use it? If a legislature is not yet in place, there is a need to establish one to deal with current affairs. Again, why not use it to write the constitution rather than elect two separate bodies? As my discussion should have made clear, the superiority of conventions is not blindingly overwhelming. The claim that they are better shielded from the play of interest and the empire of passion is mainly a theoretical one, given the rarity of this arrangement in the history of constitution-making. The risk that role confusion might lead to an inappropriate influence of the legislative process on the constituent one will also, if perceived at all, be seen as remote or abstract. Constituent legislatures, therefore, are chosen because they are doubly capable of serving as focal points. On the one hand, by virtue of being the most common type of constituent assembly they offer a natural model. On the other hand, the fact that a legislature already exists or will have to be created makes it the obvious first choice in the absence of compelling arguments for another option. In the US in 1787, in Columbia in 1991 and in Venezuela in 1999, the flaws of the existing Legislature were so obvious that steps were taken to bypass it. This outcome is rare, however. It requires not only the perceived deficiency of the existing body, but also the presence of individuals capable of creating an alternative one without triggering a civil war. Another reason is that conveners may not internalize the normative pressure towards impartiality that is inherent in the task of constitutionmaking. They may view constitution-making as a means to furthering private or group interest rather than the general good. If they believe that the format 77

P. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People (University of Toronto Press, 1993, revised edition) p. 191. 78 Ibid., pp. 134–145, 191, 219–227. 68

LEGISLATURES AS CONSTITUENT ASSEMBLIES of the convention will be an obstacle to that aim, they will refrain from choosing it. I cannot, however, cite any cases in which this is known to have happened. One would expect that in such a case other groups would oppose their decision, and that the opposition would have left some traces in the written record. Maybe such traces exist, but I have not come across them. All things considered, it seems likely that when constituent legislatures are created it is because they are the obvious default option, not because the alternative of a convention has been considered and consciously rejected.

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THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION Dieter Grimm (trans. James Ingram) 1. THE CLAIM OF THE CONSTITUTION In 1973 Niklas Luhmann could still assert that a radical change in the state of the constitution and the institutional and operational understanding of constitutional arrangements comparable to the establishment of the constitutional state in the late 18th century has never occurred again.1 In the meantime, such change is looming. Its cause is the process of the decline of statehood (Entstaatlichung), which could not then be foreseen. In essence, this consists of the transfer of public power to non-state actors and its exercise in non-state procedures. This has consequences for the constitution because it originally referred to the state. Its historical significance lay in the juridification (Verrechtlichung) of public power, and public power was identical to state power. Owing to the advantages associated with this, the constitution has been regarded as a civilizing achievement up to the present

Dieter Grimm is Rector of the Wissenschaftskolleg, Berlin and Professor of Public Law at Humboldt University. He served as a judge on the German Federal Constitutional Court from 1987 to 1999. His recent books include: Die Zukunft der Verfassung (2002, third edition); Verfassung. Zur Geschichte des Begriffs von der Antike bis zur Gegenwart (2002, second edition, in cooperation with H. Mohnhaupt); and Die Verfassung und die Politik (2001). 1 N. Luhmann, ‘Politische Verfassungen im Kontext des Gesellschaftssystems’, in 12 Der Staat (1973) p. 4.

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DIETER GRIMM day.2 Pre-state forms of political rule not only had no constitution, they could not have had one. The question is whether this achievement can survive in the “post-national constellation”.3 By constitution I understand here the law produced through a political decision that regulates the establishment and exercise of political rule. The constitution in this sense is a novelty of the 18th century that of course did not arise out of nothing, but had not previously existed in this form.4 The normative constitution came into being in 1776 on what was then the periphery of the Western world, in North America. Thirteen years later, in 1789, it reached Europe. In Europe and the other parts of the world it influenced; the whole 19th century was permeated and determined by the struggle around the spread of the constitution. The victory, the idea of constitutionalism, that seemed to have been won at the end of the First World War, however, turned out to be short-lived. Only towards the end of the 20th century, after numerous detours and reversals, did constitutionalism prevail universally. Today, constitutionless states are the exception, which, of course, is not to say that the constitution is intended or taken seriously everywhere. Concerning its novelty, we should not let ourselves be deceived by the fact that the notion of ‘constitution’ is older than the US and French Constitutions. Before their appearance it was not a normative concept but an empirical one.5 Brought into political language from the description of nature, it designated the condition of a country as shaped by the character of its territory and inhabitants, its historical development and prevailing power relations, its legal norms and political institutions. With social philosophy’s increasing effort to restrict state power in favour of the freedom of subjects, the notion of ‘constitution’ was narrowed; its non-normative elements were gradually cast off until the constitution finally appeared to be the condition determined by public law. It was nevertheless not the kernel of constitutional 2

N. Luhmann, ‘Verfassung als evolutionäre Errungenschaft’, in 9 Rechtshistorisches Journal (1990) p. 176. 3 J. Habermas, The Postnational Constellation (MIT Press, Cambridge, Mass., 2001). 4 See D. Grimm, Die Zukunft der Verfassung (Suhrkamp, Frankfurt, 2002, third edition) pp. 31 et seq., and same author, Deutsche Verfassungsgeschichte (Suhrkamp, Frankfurt, 1995, third edition) pp. 10 et seq. 5 See H. Mohnhaupt and D. Grimm, Verfassung (Duncker & Humblot, Berlin 2002, second edition).

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THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION norms but rather the condition they determined that was designated by the word ‘constitution’. Only with the late-18th century revolutions in North America and France, which violently overthrew ancestral rule and established a new order on the basis of rational planning and legal codification, was there a transition from a descriptive to a prescriptive concept. Since then the constitution has ordinarily been identified with the complex of norms that fundamentally and comprehensively regulate the establishment and exercise of state power. The empirical constitution did not disappear, but returned in the shape of the ‘constitutional reality’ that influences the law. But when we speak of constitutionalization, we always speak of the legal and not the factual constitution. The legal constitution does not reproduce social reality but addresses expectations to it, the fulfilment of which does not go without saying and for just this reason requires legal support. The constitution thus takes its distance from political reality and only thereby acquires the ability to serve as standard for political behaviour and judgement. If the legal constitution did not arise earlier this is because it depends on preconditions that did not exist in the past. For a long time the constitution in the sense of a law that specializes in norming political rule lacked an object.6 Before the functional differentiation of society there was no social system that, by its delimitation from other systems, specialized in the exercise of political rule. Rather, the tasks of ruling were divided up by location, subject matter and function among numerous independent bearers. There was no comprehensive political body to which the particular rights of rule could have been ascribed. Rights referred less to territories than to people. Their bearers exercised them not as independent functions but as an adjunct of a certain social status, namely, as landholders. What are now held apart as private and public were still mixed together. This is not to say that rule was exercised without any legal bounds. To the contrary, there was a dense mesh of legal bonds that were traced back to a divine foundation or held traditionally. For this reason they had priority 6

See H. Quaritsch, Staat und Souveränität (Athenäum, Frankfurt am Main, 1970) pp. 182 et seq.; on the older order of domination, see ibid., pp. 196 et seq., as well as O. Brunner, Land und Herrschaft (Wissenschaftliche Buchgesellschaft, Darmstadt, 1970, sixth edition); on the significance of the transition to functional differentiation, see N. Luhmann, Die Gesellschaft der Gesellschaft (Suhrkamp, Frankfurt am Main, 1997) pp. 595 et seq., and same author, Die Politik der Gesellschaft (Suhrkamp, Frankfurt am Main, 2000) pp. 69 et seq.

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DIETER GRIMM over the enacted law and could not be altered by it. But these legal bonds did not represent a constitution in the sense of a particular law specializing in the exercise of political rule. Just as the authority to rule was only a dependent adjunct of other legal positions, it was governed by the corresponding law. From this we see that not every juridification of authority results in a constitution. The many works devoted to the ancient or medieval constitution do not thereby lose their value. But one must not confuse these constitutions with the normative text, implemented on the basis of a political decision, that claims to regulate rule. From the perspective that interests us here, the decline of statehood, however, it is more significant that only with the modern state does an object emerge capable of having a constitution. Like the normative constitution, the state too was a historical novelty, but temporally it preceded the constitution. State-building arose when religious divisions removed the basis for the medieval order based on divine revelation and a new form of political domination developed in continental Europe in reaction to the confessional civil wars of the 16th and 17th centuries.7 It was based on the conviction, prepared by Bodin and other French theorists, that civil wars can only be settled by a superior power that raises itself above the warring parties and possesses sufficient power resources to establish and enforce a new order independent of contested religious truths, and thus to re-establish domestic peace. In this effort, the princes of various territories, starting with France, undertook to unite the numerous, scattered prerogatives and consolidate comprehensive public power over the territory. Because of the need to build a new order, public power also included the right to make laws, which was no longer limited by a higher law derived from God. In fact, rulers continued to regard themselves as divinely legitimated, and did not disavow the bindingness of divine command. But this command no longer had legal effect. Instead, law was made by a worldly authority and in this sense positivized. As positive, it no longer drew its validity from its accordance with God’s plan for salvation, but from the ruler’s will; divine or natural law,

7

See R. Schnur, Die französischen Juristen im konfessionellen Bürgerkrieg des 16. Jahrhunderts (Duncker & Humblot, Berlin, 1962); C. Tilly (ed.), The Formation of the National States in Western Europe (Princeton University Press, Princeton, 1975); P. Anderson, The Rise of the Absolutist State (Verso, London, 1979); K. Dyson, The State Tradition in Western Europe (Oxford University Press, Oxford, 1980).

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THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION its name notwithstanding, lost its legal quality and was now only morally binding. The previously unknown notion of the ‘state’ soon became used for this new kind of polity. If it was later also applied by historians to earlier periods, this was a matter of the reassignation of an object of another kind. The state possessed sovereignty, defined as the highest power, subordinate to no other external or internal power. Like the thing it designated, this concept too was new.8 At its core, sovereignty signified the ruler’s right to make the law for all his subjects without himself being legally bound. Externally, this designated the right to determine domestic conditions free from the interference of other states. The means for enforcing this claim was the monopoly on the use of force in Max Weber’s sense,9 the flipside of which was the elimination of all intermediary powers. The establishment of the sovereign state thus went along with the privatization of society. The mixture of private and public was dissolved. Of course, the establishment of the state was not an event but a process that did not reach its conclusion anywhere on the continent before the French Revolution and had scarcely begun in England when it was limited by the Glorious Revolution of 1688.10 Unlike the French and American Revolutions that followed a century later, England saw a revolution in defence of the old order, namely the rights of Parliament against the Crown’s transformative designs. For this reason it did not lead to a constitution in the modern sense.11 On the continent, however, there was now an object capable of having a constitution in the form of a state that did not hold a number of 8

See H. Quaritsch, Staat und Souveränität (Duncker & Humboldt, Berlin, 1986, sixth edition), and same author, Souveränität (Duncker & Humblot, Berlin, 1986); H. Boldt et al., ‘Staat und Souveränität’, in O. Brunner, W. Conze and R. Koselleck (eds.), Geschichtliche Grundbegriffe (Klett, Stuttgard, 1990, volume six) p. 1; P. L. Weinacht, Staat (Berlin, 1968). 9 M. Weber, Economy and Society (1921), part I, ch. 1, para. 17; part II, ch. 8, para. 2, and part II, ch. 9, para. 2. See A. Anter, Max Webers Theorie des modernen Staates (Duncker & Humblot, Berlin, 1995). 10 See H.-C. Schröder, Die Revolutionen Englands im 17. Jahrhundert (Suhrkamp, Frankfurt am Main, 1986). 11 But see the short-lived ‘Instrument of Government’ imposed after the abolition of the monarchy under Cromwell: text in S. Gardiner (ed.), The Constitutional Documents of the Puritan Revolution (Oxford University Press, Oxford, 1968) p. 405.

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DIETER GRIMM prerogatives but public power, and specialized in its exercise. If nevertheless no constitution in the modern sense emerged, this was because the state developed under these conditions as an absolutist princely state, defined precisely by not being bound by law. This is not to assert the complete absence of legal restrictions on the ruler. There were restrictions of this kind even under absolute monarchy. But insofar as they were not simply the vestiges of earlier historical layers, they could only be conceived as self-restrictions on princely power. Normally they were wrested from the ruler by particular groups of well-placed subjects and fixed in so-called charters (Herrschaftsverträgen), whose validity was based on the unanimous wills of the participants.12 As contractually binding, however, these restrictions always presupposed the authority of the monarch to rule. They restricted his authority to rule, which was in principle comprehensive, only punctually. They did not benefit all the subjects; rather, their effects were reserved for the privileged contractual partners. As far as they extended, they juridified political rule, but nowhere did they appear with the comprehensive claim to legitimation and regulation that distinguishes the modern constitution. Nor did the social philosophy of the time, which saw at once that the new concentration of power confronted it with the question of a nontranscendental legitimation of rule, extend its efforts as far as the idea of a constitution.13 For social philosophy, any rule that – assuming rational behaviour – could be thought of as emerging from the free agreement of all was legitimate. In this way, the consensus of the subjects of rule was elevated to the central category grounding legitimacy. In social contract theory, however, it was neither traced back to an actual contract nor fixed in a written agreement, but rather used as a hypothetical test of whether one could consent to rule. The theory of the social contract thus did not fundamentally place in question existing rule that was independent of consensus as long as it corresponded to the particular rational imperatives for which the contract was only a theoretical bridge. Nevertheless, the conditions under which philosophy assumed the readiness of rational beings to leave the state of nature and submit 12

See R. Vierhaus (ed.), Herrschaftsverträge, Wahlkapitulationen, Fundamentalgesetze (Vandenhoek und Rupprecht, Göttingen, 1977). 13 The sole exception was E. de Vattel, Le droit des gens ou principe de la loi naturelle (Leiden, 1758); see Mohnhaupt and Grimm, supra note 5, pp. 91 et seq., 105.

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THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION themselves to government changed in the course of time.14 In response to civil war, it even arrived at a justification of absolute rule: only when the individual ceded all his natural rights to the state and completely submitted to it would the state be in the position to guarantee his physical safety, which in the face of the existential threat of civil war had the highest priority. Once the absolutist state had successfully concluded the civil war and reestablished domestic peace, the complete surrender of natural rights no longer appeared plausible. Now it sufficed for the individual to give up the right to use force in pursuit of his own interests. Otherwise he retained his natural freedoms, and the state drew its justification precisely from protecting those freedoms from encroachments. These ideas were put into action when in North America and France ancestral rule was toppled by revolution and the resulting power vacuum had to be filled. In this situation, it was decisive for the emergence of the constitution that in both cases the revolutionaries were not satisfied with replacing the overthrown rulers with other ones. Acting as representatives of the people, they first designed a model of legitimate rule; only on the basis of this model were individuals called upon to exercise the rights of rule. Central here were two basic principles that had been developed in theory as mere regulative ideas and were now reformulated as real conditions: first, that legimate domination arose from the consensus of those subject to it and, second, that the latter had innate and inalienable rights, the securing of which was the legitimizing aim of political rule. The task of securing equal freedom, which according to the conviction of the time would lead to prosperity and justice without intervention by the state, also required power. The French Revolution therefore touched neither the state nor its attribute of sovereignty. It rather completed the statebuilding that had begun under absolutism by dissolving the intermediary powers that had survived under the absolutist regime, thus making public and state power identical. By the same stroke, however, the bearer of state power was replaced. The nation took the place of the monarch. Rule could therefore not be legitimated by one’s own but only be a derived right. Article 3 of the 1789 Déclaration des droits de l’homme et du citoyen formulated 14

See O. von Gierke, Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien (Scientia, Aalen, 1958, fifth edition); W. Kersting, Die politische Philosophie des Gesellschaftsvertrages (WBG, Darmstadt, 1994); D. Klippel, Politische Freiheit und Freiheitsrechte im deutschen Naturrecht des 18. Jahrhunderts (Schöningh, Paderorn, 1976).

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DIETER GRIMM the basic principle of the democratic constitutional state: “The principle of all sovereignty resides essentially in the nation. No body or individual may exercise any authority which does not proceed directly from the nation.” Unlike in France, the American Revolution was not preceded by statebuilding in the continental sense. In the motherland of the American colonists, religious disunity had not led to the rise of absolutist monarchy but, to the contrary, to the strengthening of parliament and an essentially liberal legal order. The American revolutionaries therefore were not in a position to take over a state in the continental sense in order to supply it with a new basis of legitimacy and adjust it to the principle of individual freedom. Nonetheless, they too constituted a political unity they understood as a government, which possessed the qualities of states. Although the American state lagged behind continental states in its tasks, instruments and bureaucratic apparatus, it too was the focal point of all public power, which it took from the people so that there could no longer be any claim to rule that could not be traced back to its will. The possession and exercise of public power were thus separated. The political system therefore had to be organized in a way that established a relation of legitimation and responsibility between those who possessed the ruling powers and those who exercised them, as much as possible preventing their misuse. It was these constructive tasks of state organization and limitation that well-nigh compelled legal regulation. Only law had the ability to elevate the consensus concerning the project of legitimate rule above the fleetingness of the moment, to make it last and to give it binding force. It helped the Americans, who were the first to take this step, that they already had a familiar model for the legally binding organization of public power in the English declarations of rights and colonial charters bestowed on them by the mother country,15 while in its Revolution 13 years later France could look to the American model. First, however, it was necessary to clear another hurdle: since its positivization, the law that was now to bind the state was a product of precisely this state. Under these circumstances, the state could only be bound successfully if one resorted to the idea of a hierarchy of norms, but cut it off 15

See A. H. Kelly and W. A. Harbison, The American Constitution (Macmillan, New York, 1963, fourth edition) chs. 1 and 2; W. P. Adams, Republikanische Verfassung und bürgerliche Freiheit (Luchterhand, Darmstadt, 1973) pp. 30 et seq.; D. Lutz, The Origins of American Constitutionalism (Louisiana State University Press, Baton Rouge, 1988) pp. 13 et seq.; G. Stourzh, Wege zur Grundrechtsdemokratie (Böhlau, Vienna, 1989) pp. 1 et seq.

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THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION from its transcendental roots. This led to a splitting of the positivized legal order into two complexes: a traditional one that was produced by the state and bound the individual, and a new one that proceeded from or was ascribed to the sovereign and bound the state. The latter is the constitution as distinct from the laws and taking precedent over them. This was the very step by which the Americans surpassed the English ‘constitution’.16 While the English ‘constitution’ did not constitute government but only partially restricted it, American and then French constitutional law was to precede all governmental powers. In the constitution the law accordingly became reflexive: the process of legislation and implementation were for their part juridified. Primacy is therefore an indispensable element of constitutionalism. Where it is missing, the constitution cannot carry out the task for which it was invented.17 In America and France this was clear from the beginning. In the Federalist Papers it was compared to the relationship of principal to deputy, or servant to master.18 Sieyès summed it up in the distinction between the pouvoir constituant and the pouvoir constitué.19 The pouvoir constituant generates the pouvoir constitué; its decision is thus not itself legally bound. But it does not go beyond creating and regulating legitimate rule. Ruling itself is a matter for the pouvoir constitué. However, the latter may act only on the basis of and within the framework of the constitution. In a constitutional state there can be no extra- or supra-constitutional powers beneath the pouvoir constituant. Only thus can the goal of the constitutionalization of public power be ensured – a “government of laws and not of men”.20 As against older legal restrictions on rule, the constitution was not only rule-modifying but rule-constituting, limiting state power not only for the benefit of a privileged group but generally, and deploying its state-limiting

16

See ibid., pp. 155 et seq.; Grimm, supra note 4, pp. 75 et seq. See R.Wahl, ‘Der Vorrang der Verfassung’, in 20 Der Staat (1981) p. 485. 18 The Federalist, no. 78. 19 E. Sieyès, ‘Was ist der Dritte Stand?’, in E. Schmitt and R. Reichardt (eds.), Emmanuel Sieyès, Politische Schriften (Akademie, Berlin, 1975) pp. 117–196; P. Pasquino, Sieyès et l’invention de la constitution en France (Odile-Jacob, Paris, 1998). 20 Marbury v. Madison, 5 US (1 Cranch) 137 (163). 17

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DIETER GRIMM effect not only in certain respects but comprehensively.21 This is not to assert the total juridification of the state. That would render politics impossible and ultimately dissolve it into a mere implementation of the constitution. The constitution is not to make politics superfluous but only to channel it, commit it to certain principles and contain it within certain limits. It prescribes certain principles and procedures, not outcomes. But it is comprehensive insofar as no one who lacks constitutional legitimation is entitled to exercise public power, and no act of rule can claim validity that is not consistent with constitutional requirements. This tacitly presupposes the concentration of all ruling authority in the state. Only on this presupposition could the claim to comprehensively juridify political rule through a special set of legal norms addressed to the state be redeemed. This presupposition implies a clear distinction between private and public. Only when society is privatized in the sense that it does not possess the instruments of rule, while, conversely, all authorities to rule are concentrated in the state, can the principle of freedom, which is fundamental for the private realm, and the principle of bindingness, which is fundamental for the state, hold. Here we have not one conceivable form of constitution among others, but a constitutive feature of constitutionalism in general. The constitution would be undermined if the state enjoyed the freedom of the private, just as if the private possessed the coercive means of the state. To this extent, the border between private and public is essential to constitutionalism. 21

In more detail, see Grimm, supra note 4; P. Badura, ‘Verfassung und Verfassungsgesetz’, in Festschrift für Ulrich Scheuner (Berlin, 1973) p. 19; E.-W. Böckenförde, ‘Geschichtliche Entwicklung und Bedeutungswandel der Verfassung’, in same author (ed.), Staat, Verfassung, Demokratie (Suhrkamp, Frankfurt am Main, 1991) p. 29; O. Brunner, ‘Moderner Verfassungsbegriff und mittelalterliche Verfassungsgeschichte’, in H. Kämpf (ed.), Herrschaft und Staat im Mittelalter (Wissenschaftliche Buchgesellschaft, Darmstadt, 1956) pp. 1–19; G. Dilcher, ‘Vom ständischen Herrschaftsvertrag zum Verfassungsgesetz’, in 27 Der Staat (1988) p. 161; H. Hofmann, ‘Zur Idee des Staatsgrundgesetzes’, in same author (ed.), Recht – Politik – Verfassung (Metzner, Frankfurt am Main, 1986) pp. 261–295; C. H. McIlwain, Constitutionalism Ancient and Modern (Cornell University Press, Ithaca, New York, 1966, third edition); H. Mohnhaupt, ‘Von den ‘leges fundamentales’ zur modernen Verfassung’, in 25 Ius commune (1998) p. 121; Quaritsch, supra note 8, pp. 178 et seq.

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THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION But the constitution was also bound to the state in the sense that its comprehensive validity claim was territorially limited from the beginning. Although the idea of constitutionalism claimed universal validity, it was realized in the particular in different states from the start. These were separated by borders, beyond which state power did not extend. The borders might shift, for example as a result of wars. But that did not alter the fact that only one state power existed on the territory of a state, and that it did not share its entitlement to rule with anyone. To this extent, the constitution also presupposed a clear separation of inside and outside. Had its borders been permeable to external claims to rule, it could not have fulfilled its own. Above the state was not a lawless space, but rather international law. However, it regulated only relations between states and lacked a supranational power that could hold sway irrespective of state power. Of course, a constitution could fail to fulfil its function of comprehensively juridifying public power, for instance because it was porous and contradictory from the start, was unable to adjust to later social change or lost acceptance. There are many examples of this in constitutional history. But such a failure discredits constitutionalism as little as the existence of numerous semi- and pseudo-constitutions that sprang up shortly after the founding of the constitutional state in the American and French Revolutions and continue to appear today. The constitution’s character as an achievement is rather demonstrated by the fact that in such cases its function can only be taken over by another constitution, not sustained without one. No functional equivalent can stand in for a failed or ineffective constitution.22 2. THE CONSEQUENCESS OF DENATIONALIZATION The decline of statehood places not individual constitutions but constitutionalism as such in question. The reason for this lies in the constitution’s reference to the state. The rise of the state awoke the need to tame it legally and at the same time allowed it to be satisfied in the form of the constitution. From a historical perspective, the constitution presupposes the state as a form of political community. It is distinguished from older forms of the political community by the bundling of the various scattered powers and their concentration in a uniform public power, including the authority to use physical force within a delimited territory. Denationalization 22

See Luhmann, supra note 1, p. 168.

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DIETER GRIMM thus means that ruling authority is detached from the state and transferred to non-state bearers. This transition need not necessarily lead to the end of the state. It is entirely possible that it will remain as a basic unit of a new political order; however, just as it had initially not yet arrogated all powers, in the future it will no longer possess all powers. The constitution is of course not only affected when the state disappears. Its claim to comprehensively regulate political rule is already impaired when the identity of state power and public power dissolves, so that acts of public authority can be taken on the territory of the state by, or with the participation of, non-state institutions. The notion of denationalization allows us to grasp two processes that started in the second half of the 20th century, without their consequences for constitutionalism initially being noticed. They concern precisely the two borders that are presupposed by and constitutive of the constitution: that between inside and outside, and that between private and public. In the domestic realm this has to do with the participation of private actors in the exercise of public power. Outside the state it has to do with the rise of supranational entities or institutions that can make decisions that claim validity within state territory. Regarding the border between private and public,23 it is striking that sovereign measures often no longer come about through one-sided state 23

On this, see the early essay by E.-W. Böckenförde, ‘Die politische Funktion wirtschaftlich-sozialer Verbände und Interessenträger in der sozialstaatlichen Demokratie’, in 15 Der Staat (1976) p. 457. On the following, see D. Grimm, ‘Verbände’, in Handbuch des Verfassungsrechts (Duncker & Humblot, Berlin, 1994), and same author, ‘Bedingungen demokratischer Rechtsetzung’, in L. Wingert and K. Günther (eds.), Die Öffentlichkeit der Vernunft und die Vernunft der Öffent-lichkeit, Festschrift für Jürgen Habermas (Suhrkamp, Frankfurt am Main, 2001) p. 489, and same author, ‘Lässt sich die Verhandlungsdemokratie konstitutio-nalisieren?’, in C. Offe (ed.), Demokratisierung der Demokratie (Campus, Frank-furt, 2003) p. 193; A. Benz, Kooperative Verwaltung (Nomos, Baden-Baden, 1994); H. Rossen-Stadtfeld, Vollzug und Verhandlung (Mohr Siebeck, Tübingen, 1999); A. Helberg, Normabwendende Selbstverpflichtungen als Instrument des Umweltrechts (Pro Universitate, Sinzheim, 1999); T. Köpp, Normvermeidende Absprachen zwischen Staat und Wirtschaft (Duncker & Humblot, Berlin, 2001); L. Michael, Rechtsetzende Gewalt im kooperierenden Verfassungsstaat (Duncker & Humblot, Berlin, 2002); G. Tsebelis, Veto Players (Princeton University Press, Princeton, 2002); M. Herdegen and M. Morlok, ‘Informalisierung und Entparlamentarisierung politischer Entscheidung als Gefährdungen der Verfassung?’, in 62 VVDStRL (2003) p. 7.

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THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION decisions in legally regulated procedures, but are rather the result of bilateral agreements between state bodies and private interests that come out of informal negotiations. We encounter such negotiations in the fields of administration and adjudication, but also in legislation. Either the state enters into negotiations over the content of a law with its private addressees or the latter offer talks with the prospect of avoiding or mitigating regulation. The result can be a negotiated bill that must then go through the constitutionally prescribed procedures in order to become generally binding. But the legislative power can also serve merely as a threat in order to reach an agreement in which a private party that creates a problem agrees to commit itself to ‘good behaviour’ while the state responds by forgoing regulation. While agreements that result in a bill only reach their goal when they subsequently achieve legal form through the designated state procedures, in the case of agreements that replace law, not only the negotiation but also its result, the solution of the problem, remain in the informal realm. All the same, the desired effect only sets in when both sides feel bound by it. For this reason, such negotiations cannot be equated with the long customary influence of pressure groups on legislation. The attempt to influence legislation is limited to a preliminary stage that is not governed by constitutional law, whereas the final decision is solely a matter for the state. Where informal agreements replace the law, however, the results of negotiations and the content of regulation are identical. It therefore does not do justice to the negotiations to describe them in terms of influence. They can only be adequately grasped in terms of participation. With regard to denationalization, this means, on the one hand, that there are now private parties who are no longer restricted to their general civic status as voters, participants in public discourse and representatives of interests; beyond this they participate in political decision-making without being subject to the principles of legitimation and accountability to which the constitution submits the bearers of public power. On the other hand, to the extent that the state commits itself at the negotiating table, the constitutionally prescribed decision-making authorities and procedures are downgraded. This affects the legislature in particular. The negotiations are conducted not by it but by the government. If a bill emerges, it can only attain legal validity through a parliamentary decision. The majority parties, however, are under practically irresistible pressure to ratify. If there is an agreement to forego regulation, parliament remains outside the game altogether.

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DIETER GRIMM Without parliament, the advantages of parliamentary procedures are lost. These are above all transparency, participation and control. They have no place in negotiations. Negotiations are not public, include only those who possess veto power rather than all those affected, and give the opposition no chance to intervene. But the weakening of parliament also affects the content of the law or its informal substitute. Since the government only negotiates with those in a position to veto, their interests have a better chance of being considered. Under these circumstances the law risks falling short of general acceptance on which its legitimacy is based. The reason for privileging particular private parties lies not in their pre-political strength, which to a certain extent can be shrugged off, but in the procedures created by the state that reward precisely the positions of social power the constitution sought to neutralize. The losses affect not only the constitution’s democratic claim, but also the rule of law. The linchpin of all constitutional functions is the law.24 Without the law’s inherent formality, its effect would not obtain. These agreements, however, evade this formalization. As a rule they are set into writing, but not necessary publicized. Rather, the parties to the negotiation have discretion over whether and how they are announced. Compliance is not institutionally guaranteed. Sometimes reporting duties and control mechanisms are included, sometimes not. Above all, however, affected third parties have no legal protection against informal agreements. Often even the necessary knowledge of the agreement’s content is lacking. If one knows nothing about it, one can neither bring a claim against it nor have it reviewed. In the absence of a law there is neither a legal standard for controlling compliance nor an object for constitutional review. Despite these losses to democracy and the rule of law, the practice cannot simply be eliminated because it has its own logic. This results from the fact that many state tasks can no longer be adequately fulfilled with the specific state tool of imperative law. Sometimes the tasks are such that the use of imperative tools is in fact impossible because they elude regulation. Research results or economic upturns cannot be commanded. Sometimes the use of imperative tools is not legally permissible because basic rights ensure private actors’ freedom of choice. Ordering them to invest or obliging them to create jobs would be unconstitutional.

24

For more detail, see Grimm, supra note 4, p. 159.

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THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION Sometimes imperative tools are in fact possible and permissible, but ineffective or inopportune, be it because the addressees of regulation could evade it, because the state lacks the information for effective steering or because the implementation costs are too high. Negotiation owes its emergence to this situation. To this extent, it has structural causes and is thus largely immune to constitutional prohibition. The claim of the constitution can therefore only be re-established by constitutionalizing the practice of negotiation. This would of course be essentially to approve it, including its basic characteristic, its informality. A thoroughgoing formalization would deprive it of its distinctiveness and therefore has little chance of success. On the other hand, if informality is retained, constitutional regulation cannot penetrate to the core of the phenomenon but only alter its parameters, for instance by requiring publicity, making it obligatory to inform parliament and opening possibilities for constitutional review.25 That does not change the fact, however, that the constitution cannot cope satisfactorily with phenomena that cross the border between private and public. It can fulfil its claim of comprehensive regulation only to a diminished extent. Like the border between public and private, the border between inside and outside has not disappeared.26 In relations among states it retains its traditional significance. The authority of the state and the applicability of domestic law ends at the border. Above states, however, entities and organizations have developed that while owing their existence to international treaties between states differ from traditional international organizations since their activity is not limited to the international realm but penetrates states. This is because they are authorized to take acts of public authority that claim domestic validity without being transformed by the state into national law. On the other hand, the pooling of sovereignty has not gone so far that various states have been fused into a new super-state that would displace rather than relativize the borders between inside and outside. This development is not expressly directed against the constitution. More recent constitutions often open themselves to international law by stipulating that it be applied domestically or allowing sovereign rights to be

25

See W. Brohm, ‘Rechtsgrundsätze für normersetzende Absprachen’, in DÖV (1992) p. 1025; Herdegen and Morlok, supra note 23. 26 On the significance of the state’s borders, see U. Di Fabio, Der Verfassungsstaat in der Weltgesellschaft (Mohr Siebeck, Tübingen, 2001) pp. 51 et seq.

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DIETER GRIMM transferred.27 All the same, the constitution does not remain untouched. It determines the conditions under which states may transfer sovereign rights to supranational entities. Once transferred, however, their use by these entities is no longer subject to the rules of the national constitution.28 It then regulates domestic laws and their application only partially – namely, to the extent that they stem from a national source of law. These are, however, confronted with a growing number of legal measures that make the same validity claim as national law, but without having to satisfy the same constitutional requirements. The most advanced example of this is the European Union (EU), with its numerous sovereign rights replacing the regulative power of the nation-state. So far there has been no supranational arrangement of the same density either outside Europe or on a global scale. But other international organizations also contribute to the relativization of borders. The most prominent of these is the World Trade Organization (WTO).29 To be sure, it does not itself make law, but rather provides a forum for the treaty agreements of its member states. But since 1995 its dispute-settlement mechanism has made its treaty-based law independent of the contracting parties and submitted them to the decisions of the WTO authority. The World Bank and the International Monetary Fund (IMF) lack such powers.30 27

See ibid., Das Recht offener Staaten (Erich Schmidt, Berlin, 1998); S. Hobe, Der offene Verfassungsstaat zwischen Souveränität und Inderdependenz (1998); R. Wahl, ‘Internationalisierung des Staates’, in J. Bohnert (ed.), Verfassung – Philosophie – Kirche, Festschrift für Alexander Hollerbach (Duncker & Humblot, Berlin, 2001) p. 193, and same author, ‘Der einzelne in der Welt jenseits des Staates’, in same author and J. Wieland (eds.), Das Recht des Menschen in der Welt (Duncker & Humblot, Berlin, 2002) p. 59; J. Hecker, ‘Grundgesetz und horizontale Öffnung des Staates’, in 27 AöR (2002) p. 291. 28 This is recognized in principle, although the particulars are still contested. See the rulings of the Bundesverfassungsgericht on the review of European legislation, BVerfGE 37, 271; BVerfGE 73, 339; BVerfGE 89, 155. See D. Grimm, ‘The European Court of Justice and National Courts’, in 3 Columbia Journal of European Law (1997) p. 229; A.-M. Slaughter, A. S. Sweet and J. H. H. Weiler (eds.), The European Court and National Courts (1998). 29 See A. von Bogdandy, ‘Verfassungsrechtliche Dimensionen der Welthandelsorganisation’, in KJ (2001) pp. 264, 425; M. Krajewski, Verfassungsperspektiven und Legitimation des Rechts der Welthandelsorganisation (Duncker & Humblot, Berlin, 2001). 30 See J. Kranz, Entre l’influence et l’intervention (Peter Lang, Frankfurt am Main, New York, 1994); I. Shihata, The World Bank in a Changing World (World Bank,

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THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION They may not interfere in the politics of states. However, law and justice are not considered politics in this sense. As a result, they often make their financial assistance conditional on domestic legal changes the affected countries usually cannot avoid. To this extent, the requirements of their own constitutions concerning political decisions are supplanted. Alongside these institutions created by states, meanwhile, are global actors like multinational firms and non-governmental organizations, which, by virtue of the range of their activities, can largely follow their own systemic logic without having to respect the standards and obligations that prevail within states. All the same, they too cannot live without legal regulation. The globalized sector of the economy depends on a transnational law no national legislator can provide. But even the international organizations developed by states can only satisfy this need in part. Global actors therefore take up lawmaking themselves. Beyond nation-states and the international organizations they have established forms of lawmaking that are no longer under the control of politics, be it domestic or international, but are driven mainly by large global law firms and international arbitration panels.31 In addition, international courts relativize the constitution to the extent that they do not stay within the traditional framework of international law and may only administer justice if parties submit themselves to judgment in a concrete case in advance. The European Court of Human Rights is an early example of this. In the meantime, however, international criminal courts have emerged to try war crimes and crimes against humanity even when it concerns members of states that have not submitted themselves to their jurisdiction or have refused to hand over the accused.32 Here again, the jurisdiction of the EU has an exceptional position. It was the European Court that secured the immediate validity of Community law and its precedence over national law, including national constitutions. In this way, it Washington, DC, 1995, two volumes). 31 See G. Teubner, Global Law Without a State (Artmouth, Aldershot, 1997); B. de Sousa Santos, Toward a New Common Sense (Routledge, New York, London, 1995); K. Günther, ‘Rechtspluralismus und universaler Code der Legalität’, in Wingert and same author (eds.), supra note 23, p. 539. 32 See A. Cassese, ‘On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, in 9 European Journal of International Law (1998) p. 2; T. Meron, War Crimes Law Comes of Age (1998); Symposium: ‘Genocide, War Crimes, and Crimes Against Humanity’, in 23 Fordham International Law Journal (1999).

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DIETER GRIMM considerably narrowed the latter’s field of application, and for its part took up functions that constitutional courts possess on the national level.33 This development is nevertheless still far from the end of stateness. States are ceding functions to supranational units and organizations. But they are doing so in the interest of increasing problem-solving capacity without thereby making themselves superfluous. Rather, in the end supranational organizations and even global economic actors depend on states. The reason is that as yet no supranational political unit or international organization possesses the means of physical coercion, which belongs specifically to states. As soon as the coercive enforcement or implementation of international law is required, national authorities must step in. This is true even of the EU. The norms whose implementation is in question may be made externally, but their implementation is a national matter and falls under national law. But this does not change the fact that the scope of validity of the national constitution constricts as that of externally-made law expands. The question this raises is whether and how the achievement of constitutionalism can be preserved in view of this development. Here we must distinguish between the national and the international level. On the national level the possibilities appear limited. National constitutions can provide for the state’s opening to supranational arrangements and establish the conditions for the transfer of sovereign rights. Beyond this, they can safeguard constitutional requirements in the determination of national negotiating positions for supranational decision-making processes, such as parliamentary participation. This is not unimportant since supranational legislation is consistently executive legislation, following a model of bargaining rather than deliberation.34 This does not, however, guarantee that these positions will prevail. Other possibilities on the national level are not visible. The national constitution has neither formal nor material influence on laws that penetrate the state from the outside. The more important question is thus whether the constitution can be transferred to the international level. There has been much discussion of this of late. Scholars see constitutionalization at work everywhere. A constitutionalization of the EU was ascertained very early on. But in the 33

See J. H .H. Weiler, ‘The Transformation of Europe’, in same author (ed.), The Constituon of Europe (1999) p. 10; C. R. Iglesias, ‘Der Gerichtshof der Europäischen Gemeinschaften als Verfassungsgericht’, in EuR (1992) p. 225; F. C. Mayer, ‘Europäische Verfassungsgerichtsbarkeit’, in A. von Bogdandy (ed.), Europäisches Verfassungsrecht (Springer, Berlin, 2003) p. 229. 34 See A. von Bogdandy (ed.), Gubernative Rechtsetzung (1999).

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THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION meantime a constitutionalization of international organizations like the WTO and the United Nations (UN) has been perceived as well. Even international law as a whole is supposed to be on the way to a constitution.35 This observation is correct insofar as a strong push toward juridification has been occurring at the international level. But not all juridification merits the name of constitutionalization.36 Rather, constitutionalization has shown itself to be a special form of the juridification of rule that presupposes the concentration of all ruling authority within a territory, and is distinguished by a certain standard of juridification. This standard includes a democratic origin, supremacy and comprehensiveness.37 35

On the EU, see Weiler, supra note 33; I. Pernice, ‘Multilevel Constitutionalism’, in 36 CMLR (1999) p. 427; C. Möllers, ‘Verfassungsgebende Gewalt – Verfassung – Konstitutionalisierung’, in von Bodgandy, supra note 33, p. 1; P. Badura, ‘Die föderative Verfassung der Europäischen Union’, in Festschrift für Martin Heckel (1999) p. 695; S. Oeter, ‘Europäische Integration als Konstitutionalisierungsprozess’, in 59 ZaöRV (1999) p. 901; A. Peters, Elemente einer Theorie der Verfassung Europas (Duncker & Humblot, Berlin, 2001). On the European Convention on Human Rights (EHCR or Europäische Menschenrechtskonvention (EMKR) in German), see C. Walter, ‘Die EMRK als Konstitutionalisierungsprozess’, in 59 ZaöRV (1999) p. 961. On the WTO, see E.-U. Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law (1991); S. Langer, Grundlagen einer internationalen Wirtschaftsverfassung (1995); von Bogdandy, supra note 29; Krajweski, supra note 29; P.-T. Stoll, ‘Freihandel und Verfassung’, in 57 ZaöRV (1997) p. 83; M. Nettesheim, ‘Von der Verhandlungsdiplomatie zur internationalen Verfassungsordnung’, in C.-D. Classen (ed.), Liber amicorum Thomas Oppermann (2001) p. 381. On the UN, see B. Faßbender, ‘The United Nations Charter as Constitution of the International Community’, in 36 Columbia Journal of Transnational Law (1998) p. 529. On international law, see J. A. Frowein, ‘Konstitutionalisierung des Völkerrechts’, in 39 BDGVR (1999) p. 427. 36 On constitutionalization and ‘international’ constitutional law, see G. Biaggini, ‘Die Idee der Verfassung – Neuausrichtung im Zeitalter der Globalisierung?’, in 119 ZSR (2000) p. 445; R. Uerpmann, ‘Internationales Verfassungsrecht’, in JZ (2001) p. 565; C. Walter, ‘Die Folgen der Globalisierung für die europäische Verfassungsdiskussion’, in DVBl (2000) p. 1; I. Pernice, P. M. Huber, G. LübbeWolff and C. Grabenwarter, ‘Europäisches und nationales Verfassungsrecht’, in 60 VVDStRL (2001) pp. 148–349, especially 155 et seq., 199 et seq.; R. Wahl, ‘Konstitutionalisierung – Leitbegriff oder Allerweltsbegriff?’, in C.-E. Eberle, M. Ilber and D. Lorenz (eds.), Der Wandel des Staates vor den Herausforderungen der Gegenwart, Festschrift für Winfried Brohm (Beck, Munich, 2002) p. 191; U. Haltern, ‘Internationales Verfassungsrecht?’, in 128 AöR (2003). 37 See in more detail D. Grimm, ‘Ursprung und Wandel der Verfassung’, in J.

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DIETER GRIMM The need for juridification develops where political rule is exercised. Whether it can be satisfied in the form of a constitution depends on certain preconditions and standards being met. More strongly put, the question is whether the constitution as a form of juridification that originally referred to the state can be detached from it and transferred to non-state political entities that exercise public power. If not, it will remain a matter of mere juridification, which is by no means worthless, but should not be passed off as equivalent to a constitution. Of course, the question cannot be answered in the same way for all political entities that are ascertained to exercise sovereign powers or make decisions whose effect is tantamount to such powers. There are important differences between them in the degree of consolidation and plenitude of powers that are relevant to the possibility of constitutionalization. If we ask this question first of all concerning the EU, we find a structure that has grown far beyond traditional international organizations but has still not become a state. It unites a considerable number of sovereign rights in different political fields that can be exercised with immediate validity in the member states. Even without a monopoly on the use of force, which its members so far retain, it is closely interwoven with the member states and their legal orders in a way similar to the national and the member states in a federal state. The resulting need for a juridification of the public power has surely long since been satisfied. Primary Community law, which spread step by step, has overlain the EU with a tightly-woven net of provisions that have pre-eminence over the secondary Community law produced by the EU and fulfils most of the functions of constitutions in the member states. Measured by the demanding concept of the constitution that has become the standard since the American and French Revolutions, they lack only one element – which, however, is surely essential. They are not only in their development but also according to their legal nature international treaties that have been contracted by the member states and can only be altered by them in the Intergovernmental Conference, which is not an EU organ, with subsequent ratification within each member state. The public power the EU exercises accordingly emanates not from the people, but from the member states. Responsibility for the basic order that sets its goals, establishes its organs and regulates its authorities and procedures cannot be ascribed to the constituent power of the people. Nor is any EU organ that represents the Isensee and P. Kirchhof (eds.), Handbuch des Staatsrechts (C. F. Müller, Heidelberg, 2003, volume I, third edition) p. 58.

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THE CONSTITUTION IN THE PROCESS OF DENATIONALIZATION people responsible for it. As distinct from the constitution as the basic legal order of states, it is heteronomously, not autonomously, determined.38 Not being attributed to the people, it lacks a democratic origin, which is an element of any somewhat meaningful notion of a constitution. Admittedly, there can be no doubt that the EU, by virtue of its consolidation and volume of powers, is capable of being constitutionalized. Nothing prevents the member states from giving up their control over the basic legal order of the EU in a final international treaty, placing the Union on a democratic basis and thereby bestowing upon it self-determination over the form and content of its political community. They could then still reserve the right to participate in amendments of the constitution – not, however, as the bearers of federal power, but rather as parts of its organs. With this, the treaties, without requiring any other substantive change, would carry over into a constitution in the full sense of the word. Yet, by such an act, the EU would quietly transform itself from a federation of states into a federal state. For the line separating the two is heteronomy or self-determination of its basic order. A constitutionalized EU would nevertheless be no more immune to a relativization of its borders than the nation-states are.39 Its constitution could not, any more than the national constitutions, fulfil the claim to comprehensively regulate all acts of rule on its territory. The constitutional question is therefore posed again at the global level. Here too the process of juridification is proceeding apace. Its main fields of application are, although unconnected, economic relations and human rights. The share of compulsory international law that therefore takes primacy over the treaty-making power of the states is increasing. It is also increasingly judicially enforceable. That the internal constitutionalization (of states) is now being followed by external constitutionalization (of the community of states), as is asserted,40 however, does not prove true upon closer examination. If we maintain the distinction between juridification and constitutionalization, it emerges that already the basic precondition for the latter is lacking: an object that could be constitutionalized. Just as public power at the international level breaks down into numerous unconnected institutions with sharply limited jurisdictions, so its 38

See D. Grimm, Braucht Europa eine Verfassung? (1995). See Walter, supra note 36. 40 Di Fabio, supra note 26, p. 68. 39

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DIETER GRIMM legal regulation breaks down into numerous unconnected partial orders. A bundling that could make them appear as the expression of unified intention and would also allow a unified interpretation of them is not to be expected even in the long term. Even more, democratic legitimation and responsibility is far off. The aspiration contained in the concept of constitutionalism can therefore not even be approximately realized on the global level. This is no reason to attach little value to the progress connected to the increasing juridification of the world order. To equate it with a constitution, however, is to paper over the fundamental difference and create the impression that the declining significance of national constitutions can be made good at the international level. There is no prospect of that for the time being.

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CONSTITUTIONALISM IN FRAGMENTED SOCIETIES: THE INTEGRATIVE FUNCTION OF LIBERAL CONSTITUTIONALISM AND ITS CHALLENGES Ulrich K. Preuß* 1. CHALLENGES OF THE PAST In retrospection the founding era of modern constitutionalism appears to be at the same time its golden age. The British variant of the Glorious Revolution which established parliamentary sovereignty and the rule of law as well as the US notion of the Federalists which conceptualized the constitution as the supreme law of the land which constrain even the people, and the French idea that the constitution is the quintessential embodiment of universally valid political truths were based upon the assumption of homogeneous, territorially bounded constituencies which by the very act of constitutionalization of political power constitute themselves as a political “We” – a nation. In Europe the birth of the nation through constitutionalism had to be accomplished by the emerging urban, commercial and industrial classes against the absolutist state’s claim to exercise unrestricted control over all manifestations of social life within its territory. Limited government was the battle cry of the rising socio-economic class, the bourgeosie. However, this merely negative agenda could not have triumphed over absolutism if it had not had the force to unite the relevant members of the society to one body politic – the attribute “relevant” obviously referring to the constituents of the bourgeois class. The underclasses – servants, *

Dr. Jur., Professor of Law and Politics, Hertie School of Governance, Berlin.

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ULRICH PREUSS labourers, peasants – were physically, but not morally, politically and legally component parts of the nation. As is well known, Kant labelled them as “passive citizens”. Thus, due to their social exclusiveness the first generation of the constitutions created in Europe were built upon the fundament of socio-economic homogeneity. As a quick aside: In the US, where absolutist rule was obviously absent, the constitution did not only constitute the independent polity but at the same time spelled out the implications of popular sovereignty; it thus indirectly reflected already the inherent tensions and contradictions of a socioeconomically inhomogeneous society. And yet, also the American constitution echoed the belief that despite socio-economic cleavages and religious differences the constitution constituted “we, the people”. The second major problem of social cohesion in the post-absolutist European states, in fact, in the 17th, 18th and much of the 19th centuries the single most important and divisive issue – religion, or, for that matter: the Christian confession – had largely been “solved” by the absolutist state’s politics of confessional cleansing as the result of the principle of cuius regio, eius religio first established in the Augsburg Peace Treaty of 1555 and later confirmed, albeit in a qualified version, in the Westphalian Peace Treaties of 1648. Hence, with the exception of Germany – which, however, as a latecomer in the process of nation-building was only created as a political entity in 1871 – the European constitutional states were basically homogeneous with respect to their confessional orientation. Either the institutional links between state and church, culminating in the establishment of state churches in some countries, or a complete privatization of religious life (as in France) unburdened the constitutions from the expectation to cope with deep and possibly irreconcilable religious conflicts. Finally, a further source of serious conflicts which could undermine the functioning of constitutions was national diversity and the surfacing of nationalist movements in the 19th century. For them the polity, i.e. the “We the people” was not based upon the political act of association of free and equal individuals who form a polity by living under common laws, the constitution being the most important one; rather, they passionately beleived that a polity could consist only of individuals of the same kind in terms of ethnic origin, language, religion and culture. When they invoked freedom – one of the hallowed values of modern constitutionalism – they did not mean individual liberty but a homogeneous ethnic or national group’s right to collective self-determination through the creation of independent statehood. Until the end of World War I But the force of the claims and conflicts of 94

CONSTITUTIONALISM IN FRAGMENTED SOCIETIES national or ethnic groups was mainly directed against the empires of the European continent – the Habsburg, the Ottoman, and the Russian empires – and did affect constitutional states to a lesser degree (if at all). In sum, until World War I European constitutions proved to be sustainable models of governance with significant integrative effects not least because they were largely based upon societies in which deeply divisive cleavages and conflicts were kept latent and did not dominate the arena of politics. This is not to say that the development of the European constitutional states in the 19th and 20th centuries was generally stable and crisis-proof. In particular the claims of the working class for political emancipation, i.e. for their inclusion in the polity as full-fledged citizens, rendered the class conflict a continuous element of political tension. In many European states the gradual extension of the suffrage to all adult male nationals irrespective of their social status was completed no earlier than after World War I – let alone the introduction of the female suffrage. The political and constitutional relevance of the “social question” was exacerbated by the contention of the radical wing of the socialist movements in the several European states that the capitalist class conflict was inherently antagonistic, which means that in their view the needs of the working class could never be satisfied within the framework of the constitutional state. They insisted that a revolutionary overthrow of what they regarded as a variant of class domination was necessary. With these latter qualifications in mind we may say that the European constitutional states of the 19th century (which, as many historians claim, ended no earlier than 1914) were mainly challenged by the capitalist class conflict to which they adapted more or less successfully. Although, as I stated, the class conflict was a serious and sometimes threatening predicament of the developing constitutional European states of the second half of the 19th century (until the outbreak of World War I) it is hardly justified to speak of “fragmented societies”. Obviously, there were socioeconomic, cultural, religious, and political cleavages; but they did not entail fragmented societies – a lack of interconnectedness between the members such as to bar cooperation among them and to preclude the evolvement of shared world views, values, and motives of social conduct. Thus, 19th century constitutionalism was robust and resilient enough to master the challenges of societies on their way to industrial mass democracy. The much more serious challenges to its legitimacy and functioning emerged after World War I. the desastrous fate of the Weimar constitution in Germany tends to overshadow the failures of constitutionalism in many 95

ULRICH PREUSS other European states – failure meaning their relapse in some kind of authoritarian rule or even straightforward dictatorship and totalitarian rule (as in Italy and Germany). Some of them, e.g. Yugoslavia or Czechoslovakia, had been created in the aftermath of the dissolution of the Habsburg, the Ottoman and the Csarist empires, based upon President Woodrow Wilson’s proclamation of the right of peoples to selfdetermination including the right to independent statehood. It is, of course, impossible to explain the failure of so many and so different constitutional states in the period between the two World Wars by one general cause. But it is safe to say that those constitutions proved to be unable to cope with the main conflict-prone forces which entered the arena of politics as a consequence of mass democracy and mass politics: the socialist movements and nationalism. They stand for the main conflicts which finally demoralized many constitutional systems in Europe, namely the class conflict and ethno-national struggles. 2. PRESENT CHALLENGES – NEW TYPES OF FRAGMENTATION? Nordic countries have long been regarded as being the most homogeneous societies in terms of religion, ethnicity, and socio-economic conditions and at the same time enjoying the most peaceful and stable political systems. This suggests the hypothesis that social equality and ethnic homogeneity are the most reliable warranty of peace, order and the functioning of the constitutional state. Consequently, the Germans’ experience with the collapse of the Weimar constitution gave rise to the obvious question whether the German society of the Weimar period suffered from too much social, religious and cultural heterogeneity, or whether it was simply the inappropriate quality of the constitution which ultimately caused the collapse of the Weimar Republic. Many authors, as for instance two German authors of diametrically opposing philosophical and political mind-sets, namely Carl Schmitt and Hermann Heller, claim that the viability constitutional democracy requires a certain degree of social homogeneity. Others, as the American economist Albert O. Hirschman, suggest that even deep socio-economic conflicts are controllable in the framework of the constitutional state because they are conflicts about divisible goods, i.e., conflicts about “more” or “less”. By contrast, conflicts about indivisible goods, i.e. about “yes” or “no”, are much more difficult to control within the framework of the constitutional state. 96

CONSTITUTIONALISM IN FRAGMENTED SOCIETIES These conflicts, which Hirschman calls categorical conflicts. are, for instance, disputes about ethnic belonging, religious beliefs, philosophical truth or political ideologies. Although I find this distinction illuminating and conducive to a better understanding of social conduct in many fields, it may not be specific enough for the full grasp of conflicts in the political realm. 1. With respect to this field it may be more fruitful to distinguish conflicts about how a country should be governed from disputes about who belongs to the polity and is entitled to the right to rule over the people. Conflicts about the former question are usually settled within the framework of liberal constitutionalism. They are disputes about the direction of political action, about the right options among alternative policies, or about what justice requires in a given situation – they are largely conflicts about the right pattern of distribution both of fundamental rights and liberties and of economic and social benefits (in the Rawlsian sense). The basic institution is equal citizenship: all individuals are integrated into a polity irrespective of their sex, birth, language, ethnic and social origin, faith, religion or political opinion, let alone irrespective of a person’s socio-economic status. Obviously the concept of equal (national) citizenship is blind, if not hostile towards any claim to the recognition of identity in the public sphere. This is due to its strong commitment to the universalist principle that each individual has an equal value (dignity) and merits equal respect irrespective of his or her particular attributes. Were the constitutional state prepared to recognize the identity of individuals, or even of groups as a relevant parameter of the cohesion of the polity, it might open Pandora’s box. While obviously it would have to make the demand upon its citizens to mutually recognize each other as equally constituent parts of the polity, the official acknowledgment of the significance of their differences may impede rather than facilitate these acts of civic recognition. What follows from the incidence of, say, a deeply rooted antipathy, disdain and distrust of major segments of the population against certain minorities whose identity they do not recognize as equally constituent for the polity as their own? This, then, raises the question of who can legitimately rule in the polity or, even worse, who belongs to the polity. A society in which conflicts about the right policies prevail is a pluralist society. On the contrary, a society in which major conflicts exist about the not merely physical, but the morally justified belonging to the political community and about the question of who is morally entitled to rule is a fragmented society. On this view the US society in which the moral right of 97

ULRICH PREUSS the Afro-American part of the population to rule the country has long being called into question was a fragmented society for a long period of time, perhaps up until our days. In many East and Central European states ethnic and national conflicts dominated the political discourse since their very foundation at the beginning of the 20th century and have remained the main causal factor for the fragmentation of the pertinent societies. In Western Europe, where the ideal of equal national citizenship prevailed and where during the 20th century the confessional conflicts subsided in the wake of developing secularization the pluralist mode of political integration prevailed after World War II and became an integral element of their stability and socio-economic success. However, there are now signs for their fragmentation as well. 2. Ideally, the entirety of the citizens of a polity constitute the civic nation the civic nation is the community of citizens (D. Schnapper: ‘communauté des citoyens’) which today is an equivalent term for the nation-state (état nation). Membership in the civic nation (or in the nation-state) - which is tantamount to being a citizen - is the source of a sense of pride and selfesteem, it is the symbol of successful integration into the polity. Citizenship is a status which imports recognition and esteem because the owner of this status participates actively in the rule of the polity, in contrast to individuals who are mere passive subjects. The source of a citizen’s self-esteem is not his or her personal, pre-political quality, but the fact that he or she has left the subaltern status of passive subjecthood and has entered into the role of somebody who rules his and her equals and is ruled by his and her equals (J.G.A. Pocock). Citizenship means to share a valuable experience with one’s fellows. Thus, the ideal concept of citizenship as it was developed in the French Revolution amounted to the paradox that being one’s equal is a status of distinction. Conversely, all particularities which constitute an individual’s identity - sex, age, skin color, origin, language, membership in extra-political communities like religious communities and the like - are banned from the public sphere because their representation would undermine the coherence and the unity of the political body. This, in turn, is indispensable for the plausibility of the tacit assumption of the nation-state that the sovereign people can control its basic life conditions through the instrument of the sovereign state. Consequently, when the politics of integration into the civic nation (or nation state) is under study people do not normally refer to the question of how to include members of, say, ethnic groups, religious dessenters or 98

CONSTITUTIONALISM IN FRAGMENTED SOCIETIES national minorities in the polity. In this concept of nation these identitydefined catagories simply do not exist; the refusal of the French Republic to ratify the ‘European Charter for Regional or Minority Languages’, sponsored and promoted by the European Council and adopted by some twenty European states in 1992, is an obvious example for the inherent incompatibility of the identity-blind civic nation and the claim of individuals or groups that their particular identity be recognized as constituent elements of the polity. On this view, the civic nation has no integration problem. When the problem of integration was raised the issue was the inclusion of the lower classes in the polity. This referred to the distinction between citizens and subjects. In the civic nation integration consists in the assignment of the status of citizenship to subjects, i.e. to those who due to their subaltern socio-economic conditions did not qualify for active participation in the shaping of the polity and its policies. Integration was tantamount to both political and social emancipation. As we know, from the 19th century on until the beginning of the 20th century the social categories which were integrated in this way were the members of the underclasses - through abolition of the census-based suffrage - and women. Universal male and female suffrage was a major step in the protracted process of the political integration and consolidation of the European constitutional states. However, it was not the last step – arguably the single most significant constitutional means of integration was the establishment of what the British sociologist T. H. Marshall called ‘social citizenship’ in his seminal lecture on “Citizenship and social class” delivered at Cambridge University in 1949. In fact, the assignment of social and economic rights to the citizens was an important step towards the evolution of the welfare state and its highly integrative force especially with respect to the working class. During the 19th and much of the 20th centuries a great deal of the political energies of the European nation states was spent on this dimension of integration, namely the gradual inclusion of the formerly excluded classes and groups in the civic nation. It was a matter of course that only nationals could qualify for citizenship. Thus, only socio-economic class cleavages were perceived as important for the delineation of citizens from non-citizens, i.e. mere subjects. However, France - the paradigmatic état-nation - did not only make the distinction between citizens and subjects, but also that between nationals and foreigners. The xenophobic hysteria in the Jacobin phase of the French Revolution provides sufficient evidence that even the most universalist civic nation may not be immune from the politicization of 99

ULRICH PREUSS this distinction. But generally the foreigner-national distinction played a much less important role than the citizen-subject distinction. 3. Looking back at the history of the European constitutional states we may say that in what Eric Hobsbawm called the golden age of the modern state – the seventies of the 20th century – the deep and divisive conflicts around the socio-economic class cleavages were largely solved and the integration of the lower classes had been successfully completed. The working class had turned from mere subjects to full-fledged citizens, not least due to the development of the welfare state. In parallel with the decreasing significance of the citizen-subject distinction an increasing importance of the foreignersubject/citizen distinction can be observed. Both tendencies are certainly not unrelated to each other, although it is difficult to claim a causality. But it seems plausible to assume that the comprehensive emancipation of almost all subjects to citizens, i.e., the completion of the internal process of nationbuilding, shifted the attention for the distinction between belongers and nonbelongers to the external sphere where it persisted. Here it was not only instrumental to the corroboration of one’s national identity vis-à-vis other nation states, but it could also help to cope with the difficulties of nationbuilding in a socio-economically split society. Since the civic nation type prevails at least in the OECD- and in the EUcountries, one should expect that they are open to the smooth integration of all kinds of alienage, i.e. of many kinds of heterogeneous individuals because all divisive particularities are barred from the public, especially from the political sphere. Thus, the integration of „others“ - be they foreigners, be they nationals with attributes which are different from those of the majority - should be no major problem. Yet, this assumption has proven doubtful on three grounds: a) First, the civic nation and its universalist principles may be too abstract to constitute a viable political community. As every community it, too, requires some basic feelings of sympathy and solidarity among its members in order that the civic ideal of the rule of equals has a foundation in social reality. Hence the above-mentioned claim that the civic nation demands a minimal degree of homogeneity – depending upon a more left or a more right interpretation of this requirement homogeneity means either socio-economic equality or ethno-cultural sameness, not to speak of biologist-racist concepts of homogeneity which culminated in the Nazi ideology of the thirties and forties of the previous century. Today, as stated, in the OECD-societies of 100

CONSTITUTIONALISM IN FRAGMENTED SOCIETIES the West the traditional socio-economic cleavages which threatened the coherence of the civic nation have largely been overcome. This does not mean that poverty and destitution are absent in those societies. On the contrary, there is now sufficient evidence that a growing portion of their populations – basically the losers of the globalization of the economy – are now excluded from the basic benefits of a civilized society. At present they are merely marginalized, without a voice in the political sphere. This may change in the distant or not-so-distant future, and then the rich and technologically most developed societies will be confronted with a new problem of integration. For the time being, however, cleavages resulting from cultural and ethnic differences have acquired a new relevance. There are at least three different, not necessarily consistent strings discernible all of which converge in the claim that the traditional understanding of citizenship as equal national citizenship does not reflect the true character of the role of all members of the society. a) First, feminist theorists make the claim that the presupposition of a rigid public-private dichotomy and the gender-blindness of the concept of equal national citizenship has deprived women of the status of citizenship from the very origination of the idea in the French Revolution. Defenders of a multicultural society criticize that the traditional concept’s blindness towards attributes like race, ethnicity, descent, or religion made it insensitive towards these particularities’ quality as a source of identity, self-respect and respect by the fellow-citizens; by the exclusion of these differences from public visibility the bearers of these properties were denied full citizenship. Moreover, there is also a critique which seems to point into the opposite direction, in that it criticizes the normative overload of the concept of national citizenship with ideas of nationhood which appear unjustified in view of a considerable amount of immigration. The restrictive immigration policies of most of the EU member states and their reluctance to grant nationality and citizenship status to permanent immigrant residents renders national citizenship a highly exclusive status which raises doubts about the self-proclaimed commitment of these countries to universal human rights. In sum, with regard to the citizens’ claim to the recognition of their particularity in terms of certain relevant attributes the traditional idea of equal national citizenship appears to be either underdetermined or overdetermined.

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ULRICH PREUSS b) Second, the nation-state appears ever less able to protect the fundamental rights and interests of its members. Important economic, political, military, ecological, and also cultural developments which affect the daily lives of the citizens of the nation states escape their control. While the constitutional rights of the citizens to participate in the rule of the polity remain unabridged, their substance has been diluted to a considerable degree. In Europe the constitutional setup of the European Union has not yet fully provided a just compensation for the transformation of many powers of the nation states into the authority of the EU. Thus, membership in the nation state has lost much of its distinctive and pride-engendering role. Moreover, the tendency of the international community to guarantee basic human rights is another indication that the monopoly of the nation-state to control the basic conditions of human life is weakening. c) Third, mass immigration into many of the OECD- and the EU-countries has sharpened the sense of ethnic differences and strained the feelings of solidarity. The less the nation-state is able to maintain its role as the exclusive political home of the individual, the more the latter tends to emphasize his or her affiliations to groups and communities which provide them a sense of identity. To be another person’s equal has lost its distinctive quality because the price of the equal status of citizenship has been the individual’s abstraction from his and her particular attributes. Moreover, membership in extra-political communities - religious, political, ethnic, or social - frequently gives the individual the motives and the power to make use of his or her civic rights. Thus, the quest for recognition of one’s particularity, i.e. of one’s otherness has become one of the most important challenges to the traditional constitutional state and its essential premise of equal citizenship. These three tendencies add up to the result that the advanced civic nations may no longer be integrated through the institution of equal national citizenship. Ever more frequently we may be confronted with the question of whether we are governed by the right persons – by “people like us”. We can draw two alternative conclusions from this account: either we must find new philosophical foundations and institutional devices for the unity of the polity which are able to overcome the present situation of fragmentation; or we are about to enter into a historical period in which the fragmentation of our political existence is - very much like in the European Middle Ages - the experience which we cannot escape and which we therefore must learn to cope with. 102

THE FAILURE OF THE EU’S CONSTITUTIONAL PROJECT: A CULTURAL DISCREPANCY Kaarlo Tuori* 1. INTRODUCTION Maybe the European constitutional project was a mistake. Maybe it was a mistake to try to confer a formal benediction on the European Union’s (EU) already existing material constitution and, at the same time, to transfer the constitutional rhetoric from elite discourses to the general discourse on the EU. The fate of the constitutional treaty attests to a wide discrepancy between the legal and political culture of the European elites and that of the general public. The elites may be justified – and, indeed, may be even forced – to speak about constitution in the European context. However, the constitutional vocabulary finds much resistance among the general public. In their constitutional enthusiasm, the elites easily think that constitutional rhetoric will contribute to the general legitimacy of the EU, in the same way as they are used to think that a constitution contributes to the legitimacy of the political and legal system of a nation-state; but that seems to have been a misjudgement. The general public often enough experiences the constitutionalization of Europe more as a threat than a promise. Why? In constitutional scholarship, much energy has been spent in the effort to detach the concept of constitution from its nation-state template, to demonstrate the viability of a more general concept which would also allow *

Jur. Dr., Professor of Jurisprudence, University of Helsingfors, Finland.

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KAARLO TUORI for the use of constitutional language in a transnational context. However, in the general legal and political culture constitution appears to remain inseparably linked to the nation-state. Thus, the constitutionalization of the EU was commonly seen to lead into the EU’s acquiring state-like attributes. And this is not what the general public, which still invests its main political allegiance in the nation-state, is willing to accept. At the cultural level, constitution can be analysed as a condensed symbol, as a symbolic framework of reference.1 But it does not only refer to human rights, democracy and the rule of law; at least in the general culture, it also refers to the nation-state. 2 If this assessment holds, the error did not lie in the submission of the constitutional treaty to a referendum in some of the member states. In fact, it can be argued that the legitimatory effects would have required or at least benefited from a European-wide referendum. Nor should the main reason for the obvious failure be sought in the contents of the constitutional treaty, e.g. in the inclusion in a formal constitution provisions of an a-constitutional nature, that is, provisions falling outside the accustomed scope of a material constitution. The main misappraisal consisted in the use of constitutional rhetoric as a means to achieve aims which in themselves are wholly acceptable, even praiseworthy, such as increasing the EU’s legitimacy among the general public. The fate of the constitutional treaty, especially the results of the referendums in France and the Netherlands, has clearly proved that there was no constitutional momentum in Europe, at least not among the general

1

N. Walker, ‘Postnational Constitutionalism and the Problems of Translation’, in J. Weiler and M. Wind (eds.), European Constitutionalism Beyond the State (Cambridge University Press, Cambridge, 2003) pp. 33, 34. 2 There are of course many reasons for the rejection of the constitutional project by the general public and the failure of the referendums in France and the Netherlands; some of them are perhaps connected more to domestic politics than the development of the EU. I do not claim that the links which in the general constitutional culture are seen between constitution and state were the only or even in empirical respect the main factor; I only claim that it played a non-negligible role. Here we should also be wary of too sweeping generalizations: there certainly are differences in the respective political and legal culture in different member states with respect to the links between constitution and state. Thus in federal states, the idea of multi-level constitutionalism is perhaps easier to accept than in unitary states.

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THE FAILURE OF THE EU’S CONSTITUTIONAL PROJECT public, the citizenry of Europe. If there was a constitutional momentum, it was confined to the European legal and political elites. What then about the lively scholarly constitutional discussion in and about Europe? Has it also been a futile enterprise? Has the academia also erred in the adoption of the constitutional language? Here my answer is in the negative: No, it has not been a futile enterprise, a waste of time, energy and scholarly imagination. 2. LAW AND POLITICS The recent debates on transnational constitutional theory have produced or revitalized a plethora of constitutional concepts and analytical distinctions; through this upsurge of interest, constitutional theory has really taken a leap forward. The benefits fall not only on the elaboration of transnational constitutionalism but also on constitutional theory in its traditional nationstate focus. And not only that, one of the most significant results of the debates will be – so I venture to predict – a heightened awareness of the interaction between the national and transnational even in constitutional issues. The discussion has also proffered ample evidence of how difficult and even evasive the constitutional concepts – including the very concept of constitution – are. Conceptual difficulties are already due to the fact that we can approach constitutional issues – at both the national and the transnational level – from two different viewpoints. Niklas Luhmann has drawn our attention to the constitution’s peculiar position in a modern, differentiated society.3 The constitution belongs to two of modern society’s sub-systems: both to the legal and the political system. Thus, the functions of the constitution can be examined from the perspective of both the legal and the political system. In addition, the constitution fulfils the important function of linking these two sub-systems together: it channels the influences of the legal into the political system and of the political into the legal system. In Luhmann’s terms, the constitution establishes a structural coupling between the two sub-systems. One of the first requirements in scholarly constitutional discussion is to specify the perspective from which the issues are examined. This goes for, for example, the debate on whether the EU already has a constitution in the 3

N. Luhmann, Das Recht der Gesellschaft (Suhrkamp, Frankfurt am Main, 1993) pp. 470 et seq.

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KAARLO TUORI material sense. The definition of a material constitution is based on certain typical functions the constitution is assigned, and how we conceive of these functions depends on whether we adopt the perspective of the legal or the political system. The scholarly constitutional debate has primarily been conducted from the point of view of the legal system. By contrast, the constitutional treaty was essentially a political project: its chief aims were of a political, not of a legal nature, such as enhancing the EU’s legitimacy and rationalizing its institutional organization. Consequently, the failure of the political project does not necessarily affect the claims of a scholarly debate which adopts the perspective of the legal system. 3. TRANSNATIONAL LAW BEYOND NATIONAL AND INTERNATIONAL LAW EU law is a case of transnational law, and the conceptual difficulties encountered in the examination of the EU’s constitutional issues exemplify the difficulties of conceptualizing transnational law. Not only our constitutional concepts, but our legal concepts in general adhere to the nation-state template. This, of course, is due to the fact that in essence modern law has been law of the nation-state. The modernization of law, its differentiation as positive law, and the emergence of the nation-state were parallel and interdependent processes. Modern law has received its positive character from the decisions made by state institutions, the legislature and the courts, and the coercive machinery of the state has guaranteed the execution of the courts’ decisions and, hence, the law’s realization. Modern positive law would not have been possible without the legislative, adjudicative and administrative bodies of the state; but nor would the modern state have been conceivable without support from the law. The state has relied on law as an instrument in organizing its institutional structure and in implementing its political decisions, as well as a source of legitimacy. International law has shared modern law’s dependence on the nationstate. The traditional view defines the states as exclusive subjects and objects of international law. Norm-formation in international law has been based on bi- and multilateral treaties between nation-states, and the legal effects of the treaties have also been confined to states. International law has not intruded into the internal domain of the nation-states; what transpires within the state boundaries and under what norms has been of concern only to the sovereign nation-state. Sovereignty has included the power to decide on the 106

THE FAILURE OF THE EU’S CONSTITUTIONAL PROJECT relationships between domestic and international law. Whether these relationships adhere to the monistic or the dualistic model has depended on the constitutional choice of the state in question. William Twining has fittingly talked about a black-box view of the relationships between municipal and international law.4 Modern society with its nation-state has not only constituted modern law’s extra-legal environment, it has also in a sense been effective within the law. Law and legal doctrine always give expression to a certain conception of the surrounding society, of the social relationships submitted to legal regulation. This can be seen by examining the so-called general doctrines or dogmatic theories within different fields of law. Such doctrines and theories with their general legal concepts are always based on a ‘hidden social theory’, on an implicit conception of the social field under regulation. Sociologists have discussed the extent to which their concept of society has confined social relationships and processes within the boundaries of the nation-state. We may presume that the modern law’s attachment to the nation-state can also be detected in its social-theoretical premises. The political system constitutes constitutional law’s social field of regulation and, correspondingly, the object of its ‘hidden social theory’. Of all the fields of law, constitutional law’s dependence on the nation-state is perhaps most obvious. In analysing these dependencies we also analyse the implicit social theoretical assumptions of constitutional law. Comprehensive legal theories try to capture the unity of law. They also include a ‘hidden social theory’ – a view of the society whose law they purport to expose. It is obvious that the great representatives of 20th century legal theory – such as, say, Hans Kelsen, H. L. A. Hart or Ronald Dworkin – have conceived of law primarily as the law of the nation-state. The basic norm crowning Kelsen’s hierarchy of legal norms commands obedience to the (historically first) constitution of the nation-state, with the norms on the lower echelons issued by state organs empowered by this constitution. Hart’s rule of recognition addresses the judges and other enforcers of the nationstate. And Dworkin’s political community, whose law is supposed to be

4

W. Twining, Globalisation and Legal Theory (Northwestern University Press, Evanston, Illinois, 2000).

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KAARLO TUORI governed by the principle of integrity, is one and the same as the citizenry of a nation-state.5 The difficulties in conceptualizing transnational law ensue from the deficiencies of the black-box model based on the dichotomy of national and international law; transnational law transcends this dichotomy. Transnational law may have its origin in international treaty law, as is the case in, e.g., EU law or European human rights law, but in its further development, it has detached itself from its international law foundation in both the normative and the institutional dimension. Constitutional concepts share modern legal doctrine’s dependence on the law of the nation-state. The central concepts employed in the debates on EU constitutionalism have received their present established meanings in the context of modern nation-states, although they may originally date from the pre-modern period; ‘state’, ‘sovereignty’, ‘constitution’, ‘democracy’ and ‘demos’, ‘separation of powers’, ‘citizenship’, ‘civil society’ and ‘public sphere’ all suggest the nation-state as the governing structure. However, constitutional scholars do not really have a choice: the concepts and theoretical frameworks developed in the nation-state context are often enough the only available starting point for an examination of the politicolegal peculiarities of the EU. This examination can only proceed through a critical application and, at the same time, modification of the inherited conceptual apparatus. This is not an easy task, and perceptive writers, like Neil Walker,6 have pointed to the difficulties encountered in the translation of constitutional concepts coined in the nation-state context.7

5

It is true, though, that both Kelsen and Hart have tried to include international law in their accounts of law. But at issue has been international law as understood within the black-box model and seen from the nation-state perspective. 6 Walker, supra note 1. 7 In the following, I will rely on the metaphor of translation in the analysis of the relations between nation-state centred and European or transnational constitutionalism. It should, however, be pointed out that there are obvious pitfalls in the metaphor. When translating from one language to another, the act of translation leaves the former language untouched. By contrast, the elaboration of European or transnational constitutional theory, proceeding from the basis of nationstate centred theory, may well affect its own basis, i.e. constitutional theory in its nation-state setting.

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THE FAILURE OF THE EU’S CONSTITUTIONAL PROJECT 4. THE POLITICAL AND LEGAL FUNCTIONS OF CONSTITUTION The critical examination of the inherited concepts should begin from the very concept of constitution. I have already referred to this basic concept’s dependence on an analysis of the functions which the constitution is expected to perform. Let us now briefly explore the constitution’s functions, first in the political and then in the legal system. Let us also all the time keep in mind the important observation of the constitution’s role as an intermediary between the legal and the political system. The organization of political power receives its legal form from the constitution, and the constitution also lays down the basic legal limits to the exercise of political power by this organization. On the other hand, through constitutionally regulated lawmaking procedures political actors may influence the development of the legal order. In the political system, the constitution fulfils both an organizational and a legitimizing function. The organizational part of a constitution defines the basic institutional structure of political power: the main state organs, their competence and their mutual relationships. The constitution renders this organization the stability necessary for its effective and frictionless functioning. This is an important accomplishment in itself, that is, regardless of the specific organizational choices of the constitution. In a democratic Rechtsstaat, realizing the constitution’s organizing function cannot be separated from its other crucial task, namely its legitimizing function. The constitution channels the legitimacy of the law into the political system. We can contend that a minimum condition for the legitimacy of the exercise of political power consists of its compliance with the constitution: unconstitutional exercise of power cannot be regarded as legitimate. What, then, about the constitution’s functions in the legal system? Modern law is positive law; under the conditions of ‘mature’ modern law, legal validity is accorded only to positive law, that is, to law which results from conscious human action, primarily from explicit decisions by the lawmaker and the judges. In its positivity modern law is also reflexive law: it regulates its own production, i.e. determines which human actions can have legal normative consequences. It was here that Kelsen, perhaps the greatest theorist of positive law, saw the function of the constitution: the constitution regulates the issuance of new legal norms, defines the structure of the legal Stufenbau and formulates the validity criteria of positive law. Kelsen’s 109

KAARLO TUORI attached his material concept of constitution to this very task: according to him, constitution in the material sense of the term refers to “a positive norm or positive norms which regulate the creation of general legal norms”.8 This central function of the constitution can also be put in Hartian terms: the constitution defines the rule of recognition of the legal order. Thus, through its provisions on the use of legislative power, the constitution creates the very possibility of modern law’s positivity, lays down the intra-legal validity criteria of positive law. In addition to this Kelsenian function, the constitution performs another central task, necessitated by the law’s positivization. Every type of law must solve the problem of its limits: the law is a coercive order, and not all coercion in the name of law is justifiable. Under the conditions of modern positive law, the traditional way of posing and solving the problem of the law’s limits in terms of natural law is no longer available. Particularly through its provisions on fundamental rights and constitutional review, the constitution of a modern democratic Rechtsstaat appears to provide to the problem of the law’s limits a solution which respects modern law’s positivity. An analysis of the functions of the constitution, like the one presented above, is in no way necessarily tied to its nation-state origins but can be transferred to the examination of transnational politico-legal entities, such as the EU. Let us use our analysis as a basis for a tentative answer to the question whether the EU already has a constitution in the material sense. From the legal point of view we are quite obviously entitled to speak of an already existing constitution. The founding treaties include provisions on the issuance of new EU norms and on their application. The development of the basic rights dimension and the reliance on basic rights principles in the praxis of the Luxembourg Court are evidence of the restricting function of an EU constitution. We can also argue that that the structural coupling enabling the reciprocal of influences between the EU as a legal and as a political system is already functioning. The EU norms defining the use of legislative power and determining its limits certainly are short of the clarity of an ideal Kelsenian constitution. This does not, however, invalidate the principal claim of an already existing material constitution of the EU. In the political dimension, the treaties clearly perform the task of organizing the use of political power and, at the same time, defining its limits. In this dimension, we can, however, also point to an obvious lack 8

H. Kelsen, The Pure Theory of Law (California University Press, Berkeley, Los Angeles and London, 1970).

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THE FAILURE OF THE EU’S CONSTITUTIONAL PROJECT which the abortive constitutional project was aimed at curing. The existing constitutional norms (in the substantive sense) do not fulfil the legitimating function a constitution is expected to accomplish. In Joseph Weiler’s words, the EU has a constitution without constitutionalism;9 in Miguel Poiares Maduro’s terms, the EU has a constitutional body without a soul.10 In order to be able to grasp this deficiency we have to enrich our constitutional vocabulary. 5. CONSTITUTION, CONSTITUTIONAL CULTURE AND CONSTITUTIONAL The recent debates on European or – more generally – transnational constitutionalism have employed an abundant vocabulary of constitutional concepts; most of them are familiar from nation-state contexts; some are innovations for the present purposes. It certainly does not appear very original to engage once more in conceptual examinations. But, actually, I will be able to make do with quite few central concepts: constitution, constitutional culture and constitutional practices. I will leave ‘constitutionalism’ aside; suffice it to say that that it comes close to what I mean by constitutional culture. My conceptual scheme is based on not only one but two translations: first, from general legal theory to constitutional theory and, secondly, from the nation-state setting to the transnational level. In Critical Legal Positivism,11 I have argued that the law can be approached both as a normative legal order and as specific legal practices producing and reproducing this legal order, such as lawmaking, adjudication and legal scholarship. Correspondingly, constitution can be examined both as a symbolic-normative phenomenon and as constitutional practices upholding the constitution in its normative sense. The reference of the concepts of both material and formal constitution lies in the symbolic-normative dimension. The law as a legal order is not exhausted by the surface of explicit, discursively formulated legal material, such as individual statutes and other regulations together with court decisions. A ‘mature’ legal order also 9

J. Weiler, The Constitution of Europe (Cambridge University Press, Cambridge, 1999) p. 298. 10 M. P. Maduro, ‘Europe and the Constitution: What If This Is As Good As It Gets?’, in Weiler and Wind (eds.), supra note 1, p. 80. 11 K. Tuori, Critical Legal Positivism (Ashgate, Aldershot, 2002).

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KAARLO TUORI includes ‘sub-surface’ layers, which both constitute the possibility for and impose restrictions on what can appear on the law’s surface in the shape of, say, new legal regulations and court decisions or legal dogmatical standpoints by legal scholars. I have termed the law’s sub-surface layers ‘the legal culture’ and ‘the deep structure of the law’. The law’s surface is connected with the sub-surface layers through reciprocal relations, such as relations of sedimentation, constitution and limitation. These relations are channelled by the same legal practices which are responsible for the production and reproduction of the law as a legal order, that is, primarily, lawmaking, adjudication and legal science. Modern law is the result of processes of differentiation. These include the emergence of a professional legal culture of legal elites which has distanced itself from the general legal culture. It is specifically the elite culture of legal professionals which can – and should – be regarded as a constituent part of the law. A central element of the elite legal culture consists of what is often called legal doctrine: legal theories, concepts and principles, as well as patterns of argumentation, that is, specific ways of dealing with the legal theories, concepts and principles. In legal practices, the legal culture operates mainly as tacit (practical) knowledge of legal actors; it provides the Vorverständnis through which lawyers approach their practical legal tasks and which, in fact, makes legal practices possible in the first place. Only in hard cases do judges, for example, openly thematize, say, the criminal law principle of nulla poena sine lege or the contract law principle of pacta sunt servanda. Like other fields of law, constitutional law is not only about discursively formulated surface-level material; it is not only about the constitutional norms to which the customary concepts of material and formal constitution refer. Constitutional law also includes sub-surface levels. It is also about constitutional culture: constitutional theories, concepts and principles, and ways of dealing with these, i.e. patterns of constitutional argumentation. Constitutional culture plays both a constitutive or enabling and a restricting role with respect to constitutional practices. As the Vorverständnis of constitutional lawyers, the constitutional culture provides for the very possibility of constitutional practices, such as the interpretation and application of the constitution. At the same, its theories, concepts and principles impose restrictions on what interpretations and applications can be adopted in these practices. How does the legal culture arise and change? Here my answer is: through legal practices. One of the relations connecting the law’s surface 112

THE FAILURE OF THE EU’S CONSTITUTIONAL PROJECT with the sub-surface levels and realized through legal practices is the relation of sedimentation. The elements of the legal culture have their origin on the law’s surface, in the lawmakers’, the judges’ and the legal scholars’ doctrinal innovations. Subsequent legal practices determine which of the innovations survive, sediment into the legal culture and are transformed into the cultural Vorverständnis of legal actors. This also holds for the development of constitutional culture: constitutional culture also evolves through constitutional practices, practices which include constitutional scholarship. Unfortunately – or maybe fortunately! – not all of the innovations of legal scholars survive and sediment into elements of the legal culture. Only in retrospection can we tell which of the recent suggestions of constitutional theorists will pass the test of subsequent constitutional practices. So far, so good. My translation of the insights of general legal theory into the discourse of constitutional theory seems to have succeeded. But it is not this simple. I have ignored the complications which result from the constitution’s peculiar dual domicile, its simultaneously legal and political character. Constitutional culture can – and should – be examined not only in legal but also in political terms. The actors of the political system – members of parliament, government ministers, politicians from the opposition – are in their activities guided by a specific political culture through which they tackle their practical political tasks. This political culture includes constitutional ingredients, elements of constitutional culture. The legal culture of constitutional lawyers and the political culture of political actors of course interact, but they can also show significant divergences. The borders can be fluid, but they do exist; a politician does not usually approach constitutional issues in the same way as a justice of a constitutional court or a scholar of constitutional law. Thus, what for a constitutional lawyer appears as an end in itself is often judged by politicians in instrumental terms, as a means for or an impediment to the attainment of their policy goals. Up to now my discussion has focused on the constitutional culture of legal and political elites. However, especially in the examination of the constitution’s political functions an analysis of merely the elite culture does not suffice. There is clearly one function which is dependent on the existence or at least the subsequent formation of a supportive general constitutional culture: that is, the constitution’s legitimating function. If there does not exist a receptive general constitutional culture, the constitution cannot contribute to the legitimacy of the polity. In this general constitutional

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KAARLO TUORI culture, the borderline between its two dimensions is effaced: no clear distinction between legal and political aspects can be made. The constitutional culture of legal and political elites is formed through constitutional practices. Correspondingly, crucial for the formation of a general constitutional culture are constitutional practices or citizenship practices in which citizenship rights are exercised and the underlying principles affirmed. This process is the formative process of a civic demos. It does not, of course, transpire in a cultural vacuum but is promoted or inhibited by surrounding cultural factors. Thus, at the level of the nationstate, civic and nationalistic cultural elements may interact in a rather paradoxical way: nationalism may first contribute to the rise of civic legal and political culture, but, subsequently, a robust civic culture can free itself of supportive nationalistic ingredients and also weaken nationalism’s general cultural impact. 6. THE PROBLEM OF THE EUROPEAN DEMOS I accept the Habermasian idea that a polity adhering to the principles of a democratic Rechtsstaat is viable only if it is supported by a civic constitutional culture. The problem is that the formation of such a constitutional culture cannot start from a cultural void. The citizens, even if endowed with formal citizenship rights, will not engage in constitutional practices without some preceding cultural support, without some shared sense of belonging to the same political unity and without acknowledging its political concerns as their common concerns. The political and legal elites face the task of translating nation-state constitutional theories, concepts and principles into a transnational, European constitutional language. The general public also approaches the European Union through the lenses of the political and legal culture they have internalized as citizens of their nation-state. And in this culture, the constitution is in a rather self-evident way connected to the nation-state. Obviously, the general public does not want the EU to supersede their nation-state. Seen against the background of their nation-state constitutional culture, that is exactly what the EU’s constitutional project in their eyes threatened to do. It has not been an easy task for the European elites to detach constitution from its nation-state connotations. In the general legal and political culture, the translation is an even more difficult and timedemanding process.

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THE FAILURE OF THE EU’S CONSTITUTIONAL PROJECT The European citizenry or at least large segments of it did not experience the constitutional treaty as an act of their self-legislation but as an imposition; they did not experience themselves as constituting a European demos, a pouvoir constituant determining the political form of its existence. We seem to face an irresolvable dilemma. A European-wide demos is possible only as a civic demos, united by a civic political culture. Unlike the level of the nation-state, at the European level such a culture cannot rely on the initial support of nationalism but must arise from common democratic practices. A constitution based on the principles of a democratic Rechtsstaat provides the legal means for such practices. On the other hand, the acceptance of a (formal) constitution by the European citizenry already requires at least rudiments of a receptive transnational constitutional culture. It is apparent that this requirement is not yet fulfilled. Would it, after all, have been wise to avoid referendums and to let the European elites take care of the ratification? No, it would not. This would probably have affected negatively the legitimacy of the Constitution and the EU as a polity. A material constitution can exist even if its norms are not gathered together in a formal constitution. The democratic practices in which the European citizens can exercise their public autonomy and through which a transnational civic political culture can arise do not necessarily need a normative basis in a formal constitution or the support of constitutional rhetoric. The laudable aim of promoting democracy, human rights and legitimacy in the context of the EU should not be abandoned. But what should be given a second thought is the means to achieve this aim. Maybe the time simply is not yet ripe for its realization through a formal constitution? Maybe we should be patient and allow time for the emergence of a European pouvoir constituant, a European demos interested enough in providing itself with a constitution through an act of self-legislation?

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PART III

NORDIC PERSPECTIVES

BETWEEN COLLECTIVISM AND CONSTITUTIONALISM: THE NORDIC COUNTRIES AND CONSTITUTIONALISM - A “FINAL FRONTIER” OR A PERIOD OF TRANSITION? Joakim Nergelius* 1. INTRODUCTION AND GENERAL LEGAL AND CONSTITUTIONAL BACKGROUND The issue whether the Nordic countries, heavily based in their societal models on the idea of a welfare state, are already now – after an interesting development in the last decade – or will in the future ever be receptive to concepts such as judicial review and constitutionalism has in recent years been the matter of a sometimes quite intense debate.1 Recently, a young Finnish scholar has even described the Nordic countries as a “Final Frontier”, i.e. as some of the, or maybe even the, last countries in the world where judicial review will ever be a regular feature of the work of the courts and other legal bodies.2 This assumption is of course based on certain *

Professor of law at the University of Örebro, Sweden, since September 2003, as well as associate professor (docent) in European and Comparative Law at Abo Academy (Turku), Finland. 1 See e.g. M. Scheinin (ed.), The Welfare State and Constitutionalism in the Nordic Countries (Nordic Council of Ministers, Copenhagen, 2001). See M. Kautto et al. (ed.), Nordic Welfare States in the European Context (London, 2001). 2 See V.-P. Hautamäki, ‘Judicial Activism and “the Final Frontier” – Remarks on the Nordic Law’, in C. Dahlman and W. Krawietz (eds.), Values, Rights and Duties in

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JOAKIM NERGELIUS assumptions about the peculiarities of the Nordic societies, which need to be taken seriously and discussed more in detail.3 For me personally, those issues are hardly new. 4 Still, it has been a few years since the discussion on them was particularly vivid in the doctrine, and it is therefore interesting indeed to analyse them again, having the development during the very last years in mind. Now, when Finland and Sweden have been members of the European Union (EU) for more than ten years, it is possible that it is in fact time for a renewed debate on the crucial topic of whether the constitutional model of the Nordic countries (if such a thing can be said to exist) will be affected, and to what extent, by the broader European constitutional development.5 The fact that the new Finnish Constitution of 2000 may now be better or clearer evaluated than a few years before is of course interesting, in the very same way that the activities of the EU Commission in relation to the Swedish courts and their alleged unwillingness to ask the European Court of Justice (ECJ) for preliminary rulings once again point to the interesting question of the possibility to annul or refuse to apply Swedish laws because of incompatibility with EU law and the importance that this fact has had for a ‘revitalisation’ of Swedish constitutional law.6 Legal and Philosophical Discourse (Rectstheorie, Beiheft 21, Berlin, 2005) pp. 141– 152. 3 For a similar, thought-provoking study, based on slightly more extensive legal analysis, see J. Husa, Nordic Reflections on Constitutional Law – A Comparative Nordic Perspective (Frankfurt am Main, 2002). 4 See e.g. J. Nergelius, ‘North and South: Can the Nordic States and the European Continent Find Each Other in the Constitutional Area – Or Are They Too Different?’, in Scheinin, supra note 1, pp. 79–93. 5 See also the anthology by J. Nergelius (ed.), Nordic and Other European Constitutional Traditions (Brill, The Hague, 2006) as well as a forthcoming anthology in 52 Scandinavian Studies in Law with a special focus on constitutional law. 6 The Commission thus addressed the Swedish Government with a written submission in 2004, asking why the two highest courts so rarely ask for preliminary rulings and may even refuse to grant leave for appeal without indicating why EU law aspects have not been considered important for the case (see 2003/2161, C (2004) 3899). After written statements had been exchanged with the Swedish Government, the Swedish law will be changed on this point. In December 2005, the Swedish Supreme Court has even asked the European Court of Justice to clarify

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BETWEEN COLLECTIVISM AND CONSTITUTIONALISM Still, I would wonder if it is not by now time to take one more step forward and analyse the Nordic position in relation to the new European constitutional framework in yet another perspective, emphasising more than before the ‘multi-level aspects’ of European constitutional integration and the changes brought within this context to the traditionally extremely important concept of national sovereignty.7 Also the changes that this development will entail for national law in the Nordic states are of course of real interest. As we all know, such a discussion takes place against an interesting but much contested background; the new EU Constitution has been drafted but not yet finally approved.8 At the same time, the changes in the attitudes of national courts in relation to constitutional matters are dramatic, at least in Sweden, as illustrated by two recent judgments and one decision in the Swedish Supreme Court (Högsta Domstolen), all in 2005. The first of those cases, which have in my view reshaped Swedish law in general and the constitutional law in particular, came in June 2005. As a background, it may be mentioned that in the last few years questions related to administrative tax sanctions (or penalties) and the possibility for Swedish courts to impose damages when the European Convention on Human Rights (ECHR) has been violated have been in the focus of the discussion.9 In both areas, it seems clear that while the European Court of Human Rights (ECrtHR) has found that certain violations of the ECHR had taken place in Sweden, Swedish courts were slow or even reluctant to take the full consequences of those judgments and come to the same conclusions as the under which conditions national courts may refuse to apply Swedish laws that may be incompatible with EU law. The judgment in this case, C-432/05 (Unibet), came in March 2007. As expected, the ECJ came to the conclusion that the specific arrangements under which judicial review and effective remedies for control of EU law are to be arranged is a matter for each individual member state to decide upon. 7 This issue is analysed in some detail in the contributions of Grimm and Frankenberg to this volume. For a French perspective, see M. Troper, ‘The Influence of Judicial Review of Statutes on Substantive Law’, in J. Nergelius, P. Policastro and K. Urata (eds.), Challenges of Multi-Level Constitutionalism (Krakow, 2004) pp. 327–342. 8 At the time of writing, May 2007, it is approved by 18 member states, both big and small ones, with Finland as the only Nordic state. 9 For an overview of this discussion, see J. Södergren in Europarättslig tidskrift (2002) p. 659–682. 121

JOAKIM NERGELIUS ECrtHR did in almost identical cases.10 As far as economic compensation for violations of the Convention is concerned, Swedish courts tended to view this as an exclusive competence of the ECrtHR, though this is not quite in line with the case-law of that Court, nor with the ECHR itself (see not least its Article 13).11 The importance of the so-called Lundgren case, NJA 2005 p. 462, should thus be seen in this light. In that case, which must be seen as a breakthrough for the direct applicability of the ECHR in Swedish law, a man had been informed that he was suspected of economic crimes in 1991. Since then, he had difficulties supporting himself; his company went bankrupt, and after that it was hard for him to find any other job. A criminal charge was raised against him in 1993, but the trial did not take place until 1997, and the acquitting sentence from the court of first instance did not win its full legal force and effect (laga kraft) before the fall of 1998. This time-extension of the procedure was considered as unacceptable and contrary to Article 6 of the ECHR by the Supreme Court, which granted Lundgren, the formerly accused man who was now the claimant in the tort case, financial compensation due to the fact that Swedish public authorities had not complied with the ECHR. As indicated above, the judgment followed after some previous cases where lower courts had totally refused to grant financial 10

The procedure for imposing administrative tax sanctions (skattetillägg) has for example been found by the ECrtHR to be contrary to Article 6 of the ECHR in the cases Janosevic v. Sweden and Västberga Taxi and Vulic v. Sweden, 23 July 2002, Application Nos. 34619/97 and 36985/97. 11 At the same time, however, the ECHR is regularly being invoked and applied in a number of Swedish criminal law cases, not least in relation to the procedures applied. Thus, the picture is mixed and it seems too early to make a full evaluation of how the ECHR is being dealt with by Swedish courts. While waiting for that, it may be noted that a number of new monographies on the topic reveal a considerable interest in it from law scholars; see apart from the highly respected standard comment by H. Danelius, Mänskliga rättigheter i europeisk praxis: en kommentar till Europakonventionen om de mänskliga rättigheterna (Stockholm, 2002), also two dissertations on the right to property from recent years: K. Åhman, Egendomsskyddet – Äganderätten enligt artikel 1 första tilläggsprotokollet till den Europeiska konventionen om de mänskliga fri- och rättigheterna (Uppsala, 2000) and G. Gauksdottir, The Right to Property and the European Convention on Human Rights – A Nordic Approach (Lund, 2004). Judge Danelius also contributes regular comments on the case-law of the ECrtHR to the periodical Svensk Juristtidning.

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BETWEEN COLLECTIVISM AND CONSTITUTIONALISM compensation due to the fact that the ECHR had been violated by public authorities. Still, the Supreme Court in 2003, in the so-called Holm case,12 had indicated that such financial compensation could after all occur had the ECHR really been violated, which was thus found to be the case here. Lundgren was consequently awarded compensation from the state firstly for his financial losses, based on his loss of income during a number of years, formally according to the rules in the Swedish Law on Tort (skadeståndslagen) but in reality because Swedish authorities had violated Article 6 of the ECHR, with the sum of SEK 700,000. On top of that, he was also granted compensation for that violation as such, in itself so to speak (socalled ideell skada or immaterial damage), with SEK 100,000. In that latter respect, the right to compensation, interestingly enough, was considered as a part of the obligation that Sweden owns within its national law, according to Article 13 of the ECHR, to provide efficient remedies in order to prevent or compensate violations of the Convention within due time. One effect of the judgment is, in my view, that Article 13 of the ECHR may now be considered as a general rule on financial compensation, which is henceforth to be applied by national courts when it has been clearly established that violations of the Convention have really taken place. So far, there has been fairly little debate in the Swedish doctrine concerning the implications of the judgment,13 but such a conclusion can hardly be too farreaching. Apart from that, it seems likely that the judgment will have farreaching implications also concerning future situations where individuals rightly or wrongly feel that they have been badly treated by public authorities.14 The judgment in the Lundgren case is therefore likely to increase the rule of law and the legal certainty in Sweden in the future.

12

NJA 2003 p. 217. See however K. Åhman in Juridisk Tidskrift (JT) (2005/2006) pp. 424–430, as well as J. Södergren in that same journal (2004/2005) pp. 762–775. 14 It may be noted that a similar, interesting case, where the basis for a claim to compensation is however the Swedish Constitution and not the ECHR (in particular Instrument of Government (IG) (regeringsformen) Chapter 2, Article 18 and IG Chapter 10, Article 5), is currently pending before the Supreme Court (see T3772/06, Innala v. The State, which concerns restrictions in fishing rights in the north of Sweden and is a sequel to the previous cases NJA 1996 p. 370 and 2001 p. 210. Already through those two cases, it has in fact been established that the state has here made a clear mistake and violated the IG, and the question now is thus 13

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JOAKIM NERGELIUS The circumstances in the other remarkable case from 2005, the internationally well-known and observed Reverend Åke Green case, which has merited considerable attention worldwide, were perhaps even more peculiar. As may be well-known to the reader, the case concerned a reverend (not in the official, formerly state church (Svenska kyrkan) but in a smaller religious community) who during a sermon in July 2003 made an unprecedented, unexpected and very brutal or even violent attack against homosexuals as a group. Quoting and referring to The Bible he warned, among other things, against an increased spread of AIDS through legalisation of homosexual relations, called the legislators who had made such official relations possible legal lunatics and denounced homosexuals as a “cancer tumour” in the societal body. He also made it clear that he had been in touch with media before the speech and had actually been active in trying to spread his views in the general debate; consequently, newspapers and a local TV station were invited to his sermon. The Swedish Law on Agitation or Incitement Against Certain Minorities or Groups of People (hets mot folkgrupp) had actually been amended only a few years before, in order to include also incitement against persons that is based on their sexual orientation. Thus, it was fairly clear that Reverend Green had in fact violated this Swedish Law, and he was also sentenced for this (to one month in prison) by the Local Court (tingsrätt) of Kalmar in the southeast of Sweden. Still, the question was of course if this Swedish Law was compatible with the Swedish Constitution and the European Convention of Human Rights, which both protect freedom of speech as well as freedom of religion. The Court of Appeal did not think so and found that in particular the freedom of religion, given that the remarks were made during a sermon, outweighed the Swedish legislation (given also that according to the Swedish Constitution, Instrument of Government (IG) (regeringsformen) Chapter 2, Articles 1, 12 and 13, the freedom of religion is as such unrestricted and not possible to limit by law). The state prosecutor (riksåklagaren) who has an unlimited right to bring cases to the Supreme Court, appealed against this acquitting sentence and claimed that Green should be sentenced to a prison punishment. The argumentation of the Supreme Court in this case was particularly interesting

which kind of financial compensation that the affected fishermen may be entitled to).

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BETWEEN COLLECTIVISM AND CONSTITUTIONALISM – and at the same time slightly puzzling and confusing – in a European law perspective. The Supreme Court analysed the new Swedish legislation in some detail and first of all, quite surprisingly or at least unexpectedly rapidly, came to the conclusion that it was not contrary to the protection of freedom of speech and religion in the Swedish Constitution. This was done by invoking the requirement of manifest error in IG Chapter 11, Article 14, which may have been right or wrong in this case but was here definitely not done in a very convincing way. Above all, it shall be noted that this restriction on judicial review by the courts applies also in relation to the European Convention on Human Rights, according to IG Chapter 2, Article 23 and its travaux préparatoires.15 Thus, once the Supreme Court had arrived at that conclusion, it should in fact have been impossible also to claim that the Swedish Law was incompatible with ECHR and, consequently, that Green should be acquitted. Nevertheless, the Supreme Court managed to arrive at exactly that result, using a quite complicated line of reasoning according to which the case-law of the Strasbourg Court clearly shows that the only kind of speech in religious situations that is not protected by the freedoms of religion and speech in Articles 9 and 10 of the Convention is so-called ‘hate speech’ or, in other words, clear incitements to violent acts or persecution of specific groups of individuals. Once again, this conclusion may be right or wrong as such,16 but in this specific case, it led to some quite strange and puzzling results. First of all, the Supreme Court here showed a clear reluctance to really exercise judicial review as such and really decide whether the law in question was after all incompatible with ECHR. Instead, it said that if Green would be sentenced and he would then bring the case to the Strasbourg Court – which he had in fact publicly declared that he was in that case going to do – it would be likely that the European Court of Human Rights would find that Sweden had violated the ECHR. But as everyone can see, this is actually less of a judgment based on the existing legal rules that the Supreme Court 15

But not in relation to European Community (EC) law, for obvious reasons, as shown for example by the Lassagård case (RÅ (Regeringsrätten or Supreme Administrative Court) 1997 ref. 65). 16 It was in fact based on a heavy amount of quoted case-law, including many old and new cases falling under both those two Articles, which must as such be described as solid. 125

JOAKIM NERGELIUS has to apply than a speculation about the future outcome, should a certain individual decide to act in a certain way and should then certain judges in Strasbourg decide to settle the case in a certain manner some four or five years from now (given the heavy workload of the Strasbourg Court). This attitude may of course be seen as very pro-European indeed, but at the same time the Supreme Court may here be criticised for not exercising its true competence to decide a case and, in fact, even for abdicating from its position as the highest court of the country (and conveniently, in a very controversial case, more or less handing over that role to the Strasbourg Court). What actually seems to have been the crucial issue, from the point of view of the Swedish Supreme Court, is to be able to avoid applying the Swedish Law without really stating that it is contrary to the ECHR as such, which explains the emphasis and detailed analysis of the jurisprudence of the Strasbourg Court in the judgment. Referring to that jurisprudence, the Supreme Court found that it would be impossible to sentence Reverend Green to a punishment, though the new Law is still not considered as incompatible with the Convention. Thus, the judgment may be seen as ‘proEuropean’ while still expressing a traditional, cautious attitude to the exercise of judicial review.17 Time will tell whether it will in the future be considered as a wise and bold judgment or not, but there is no doubt that it reveals a very clear – perhaps even too great a – respect from the Supreme Court in relation to the European Court of Human Rights.18 The combined effect of these two cases is in my view clear: they have illustrated not only that Swedish law must be consistent with European law, including the European Convention of Human Rights in the situations where it does not form part of but operates outside the scope of EU law, autonomously so to speak, but also that Swedish courts will now respect this fact. Since I have for a long time pleaded in favour of such a development, not least in a book published in 2000, which was at that time considered 17

In this latter respect, it is similar to yet another – strictly national – case on judicial review from 2005, NJA 2005 p. 33. 18 Apart from that, it also seems clear that it puts opinions made during the exercise of religious activities in a somewhat ‘preferred position’ in relation to other, similar verbal attacks, a fact that became even clearer when the Supreme Court in 2006 came to a totally different conclusion in a similar case where some neo-Nazis who had attacked homosexuals in leaflets, using in fact less provocative words than Reverend Green, were found guilty (see NJA 2006 p. 467).

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BETWEEN COLLECTIVISM AND CONSTITUTIONALISM rather radical and controversial,19 it is quite natural that I view this development with a somewhat enthusiastic astonishment. Undoubtedly, and without going into any details, the difference between those new cases and some judgments from the highest courts from 1996–1999 criticised in my ‘ancient’, above-mentioned study is remarkable, both as far as concerns the outcomes of the cases and the very attitude with which the Supreme Court now in 2005 approached those problems. Arnason wrote already in 2001 that constitutionalism, as opposed to almost all other ‘isms’, had “risen to the status of a major contemporary political idea which currently enjoys virtually universal acceptance”.20 Those cases may indicate that this has now also become a legal reality, not only a theoretical assumption. Thus, it now seems to be a good time to consider some of the traditional constitutional issues in the Nordic countries in a somewhat new light. 2. A VIEW ON THE CURRENT SITUATION Without having recently studied if those Swedish developments have any equivalents in recent jurisprudence in the other Nordic countries, it is clear that the issue of defining what constitutionalism means and how it shall be defined, as well as applied within the somewhat special historical context of the Nordic welfare states, has in the last years gathered an increased attention in the Nordic doctrine in this field. This was e.g. one of the main topics in a volume edited in 2001, which summarised and constituted the end report of a research project aimed at defining the relationship between constitutionalism and the welfare state and thus asking if the two may be reconciled (a question with a positive answer, as it turned out).21 Approximately at the same time, a young Finnish scholar, Husa, did also approach the topic, from a slightly different perspective.22 If we are to consider those and other attempts to somewhat conceptualise the issue, a few features are quite striking. Thus, Scheinin in 2001 defined 19

See the book Förvaltningsprocess, normprövning och Europarätt (Norstedts, Stockholm 2000). 20 See the article ‘Constitutionalism: Popular Legitimacy of the State?’, in Scheinin, supra note 1, p. 30. 21 See Scheinin, supra note 1, where in particular the articles by Scheinin himself, Arnason and Nergelius should be mentioned in this respect. 22 See Husa, supra note 3, as well as 52 Scandinavian Studies in Law, referred to in supra note 5. 127

JOAKIM NERGELIUS six elements that were crucial for constitutionalism in the Nordic sense: those were the existence of a written constitutional document with higher legal status than ordinary laws, some kind of legal enforcement of this superior status, rule of law, separation of powers, acknowledgement of fundamental rights and finally internationalism in the sense of acknowledging also European law and other international conventions within the domestic legal systems.23 With the partial exception of separation of powers, at least in the traditional, strong sense, all those elements can today be said to exist within the five different Nordic states. And as we have seen, elements of separation of powers are also becoming visible, due not so much to the activism of the courts themselves as to the strong position of internationalism, in particular European law in Sweden (and maybe other conventions e.g. on Iceland).24 Also other criteria may of course be invoked in a modern definition of constitutionalism, if we broaden the perspective and try to be more critical,25 such as the fact that the constitution should not be possible to alter or modify in quite the same way as ordinary laws.26 Also this criterion, however, is possible to include within a Nordic context. Thus, with a reservation for separation of powers in the classical sense (which also entails the full legal enforcement of the constitution’s superior status), most of the traditional elements of constitutionalism may today be said to be present in Nordic law, although they could of course nevertheless be stronger. But which are the remaining problems then – if any – in the relation between the Nordic welfare states and the modern constitutional tradition? Could it be the traditional respect for the legislator, based on popular sovereignty and parliamentary supremacy, upon which the welfare state has been built? In this respect, Scheinin adequately points to the “relatively strong role afforded to the state (or the public power) in securing and protecting the material well-being of the inhabitants” as “the first distinctive

23

See ‘Introduction’, in Scheinin, supra note 1, p. 17. In 2000, the Supreme Court of Iceland provoked quite vivid reactions by setting aside a law in Case 125/2000, The State Social Security Institute v. The Organization of the Disabled in Iceland. See also Case 151/2003, Ragnhildur Gudmundsson v. Iceland. 25 See e.g. Husa, supra note 3, pp. 15 et seq. 26 See e.g. R. Arnold, ‘The Different Levels of Constitutional Law in Europe and Their Interdependence’, in Nergelius, Policastro and Urata, supra note 7, p. 102. 24

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BETWEEN COLLECTIVISM AND CONSTITUTIONALISM feature of the Nordic welfare state”.27 As he points out, the Nordic welfare states are built on a conception of the state not as a minimalist nightwatchman that would restrict itself to the maintenance of public order, but rather as “responsible for the maintenance of a social safety net” and a wide range of social rights that are, paradoxically, universal – i.e. granted to everyone – but normally not constitutionally regulated or protected. Undoubtedly, this is one of the remaining, traditional, underlying features of mainstream Nordic legal thinking, which is probably strengthened by the traditionally strong position of so-called ‘Scandinavian Legal Realism’.28 Together with this tradition, we may probably also identify some remaining signs among Nordic judges and lawyers of ‘judicial self-restraint’ in relation not least to matters that are conceived as ‘political’ rather than strictly legal. For a number of reasons, I have always considered this distinction to be somewhat artificial and of very limited value since politically important issues may occur also in cases that on the surface are strictly legal, or even technical (like tax questions, for instance).29 Still, it seems to be a fact that cases involving an element of judicial review, where judges will have a possibility to set aside a law enacted by a democratically elected legislator, seem to make Nordic judges in general more prudent and cautious in this respect than other legal matters. Among an older generation of Nordic lawyers, it is sometimes even possible to detect a wish to separate ‘law’ from ‘politics’, as if the two were never interrelated, in a way that does not seem to be entirely realistic and may be subject to criticism. In the words

27

Scheinin, supra note 1, pp. 19 et seq. See also Husa, supra note 3, pp. 23 et seq. For a recent, interesting and thought-provoking though not entirely convincing attempt to ‘justify’ this traditional line of realistic or positivistic thinking and try to show that it is not incompatible with ideas of individual rights at all, see N. Berggren, ‘Rättspositivism och äganderätt’, in N. Berggren and N. Karlson (eds.), Äganderättens konsekvenser och grunder (Stockholm, 2005) pp. 180–215. One of the problems in the article is, however, that the author fails to distinguish between legal positivism and legal realism, though the concepts are far from identical. 29 For a further analysis, see e.g. J. Nergelius, Law and Politics – On Democracy and Judicial Review, in Justice, Morality and Society – A Tribute to Aleksander Peczenik on the Occasion of his 60th Birthday 16 November 1997 (Lund, 1997) pp. 303–314. For an interesting remark on this rather huge matter, see also Hautamäki, supra note 2, pp. 143 and 148 et seq. 28

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JOAKIM NERGELIUS of Husa, “[w]hen there is no clear separation of powers why should there be a clear separation of law and politics?”30 This topic is of course quite complicated, but I think it is fair to state that today, 2007, the old idea of judges limiting themselves only to legal interpretation, and thus leaving all the political decision-making to the political, democratically elected bodies, has little to do with practical societal realities.31 In real life, it is in fact very difficult for judges to avoid interpretation also of political statements or arguments, regardless of how faithful they wish to be to legislative travaux préparatoires (an area where Nordic judges probably distinguish themselves as exceptionally loyal to the political intentions of the legislator).32 Against the background indicated above, it may also be asked if and how the differences in those areas between the various Nordic countries that do of course still exist may have affected the attitudes of the judges in those states. The most well-known exception from what we may here describe as the Nordic tradition is probably the Norwegian situation, where judicial review came to be a legal reality already in the 1880s, while being in a union with Sweden (and long before anything similar had happened in any other European country).33 This tradition has probably affected Norwegian judges, who are probably by tradition somewhat more favourable towards judicial review than their colleagues in other Nordic states.34 On the other hand, as 30

Husa, supra note 3, p. 99. Husa also quotes Ross as correctly, in my view, stating that “positivistic theories conceal the judge’s legal-political activity”. See A. Ross, On Law and Justice (University of California Press, Berkeley, 1959, reprinted by Lawbook Exchange, Ltd., 2004). 31 Cf. Hautamäki, supra note 2. 32 Here, a reference may be made to the well-known case of Norra Länken from 1997; in that case, RÅ 1997 ref. 19, the Supreme Administrative Court applied an environmental law literally, in a way that was contrary to its own travaux préparatoires (thus in reality stopping a motorway construction in the north of Stockholm). From most points of view, that might seem to be uncontroversial, but the outcome still provoked an outburst of reactions, both from media, politicians and certain lawyers. 33 For further details, see, among others, E. Smith, Höyesterett og folkestyret (Oslo, 1993). 34 For an example, see C. Smith, ‘Domstolene og rettsutviklingen’, in Lov og Rett (1975) pp. 292–319, an influential article that was very progressive at that time (and actually led or at least contributed to a renaissance of judicial review in Norway).

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BETWEEN COLLECTIVISM AND CONSTITUTIONALISM shown above, the Swedish Supreme Courts, characterised by a totally different tradition, have probably been more ‘Constitution-minded’ (though perhaps not enthusiastically so) in 2005 than ever before. So, it may be that the historical differences between the Nordic states are now less important than they used to be (and maybe not even important at all anymore)? In the doctrine, both Husa and Hautamäki, though using different models of analysis, have reached the conclusions that Denmark/Norway are quite similar in this respect, as well as Finland/Sweden, but that there are quite huge differences between the two pairs of states.35 This assumption may be partly correct, in particular when emphasising factors such as the presence of both administrative and general courts in the two latter countries but not in the first ones, or perhaps even more when seeing the judges as ‘career judges’ focused on the execution of laws in Finland and Sweden, while they may have a somewhat freer role, with a greater scope for interpretation in the common law tradition, in Denmark and Norway.36 Still, it could also be argued that models of this kind tend to disregard factors like the rather slow development of judicial review in Denmark,37 the practical impact of the new Finnish Constitution from 2000 or the truly great constitutional importance, not least in terms of changing the opinions of the judges, that European law does actually seem to have in Sweden, as shown above. Though interesting, those analytical models from two young Finnish scholars can thus not be said to reveal the final truth in this matter. Instead, it would seem to me that the most important aspect for analysing those processes of change in the next few years, at least in Denmark, Finland and Sweden, would probably be the impact of European law at the national level. This is not only because European law in the shape of EU law and the ECHR is so important in itself, but furthermore because its superior status in relation to domestic ordinary laws will contribute, more or less automatically, in changing the attitudes of the judges towards judicial review. If this assumption is correct, the future field of study in this area in the next few years is likely to be another one than the ones that have now 35

See Husa, supra note 3, pp. 156 et seq., and Hautamäki, supra note 2, pp. 144 et seq., in particular p. 146. 36 Hautamäki, supra note 2, p. 146. 37 For an analysis of the rather hesitant attitude of Danish judges and lawyers in this respect, that still seems to be relevant, see H. Zahle, ‘Er domstolenes grundlovsprövelse en effektiv individbeskyttelse?’, in Jussens Venner (1998) pp. 37–55. 131

JOAKIM NERGELIUS dominated this field of study for quite some time. For instance, it is likely that the attitudes of the national judges in relation to European law as compared to national Constitutions will be interesting to analyse,38 as well as the role of the two supranational European Courts in this development compared with the role of national courts, constitutional courts or ordinary ones.39 On a more theoretical level, the area of so-called multi-level constitutionalism, with all its different implications, seems to be a truly fascinating area of study in order for us to understand the underlying factors governing the current development(s) that I have now tried to describe.40 3. CONCLUSIONS Regardless of the cases described above, if any particular decision should be seen as symptomatic or symbolic for the development described above and the rather far-reaching changes that we have seen in the last few years, it is probably the decision of the Swedish Labour Court (Arbetsdomstolen) in April 2005 to ask for a preliminary ruling in a case where the Swedish Constructors Union decided to issue an action of blockade against a Latvian company that was doing construction work in a town outside Stockholm, with lowly-paid Latvian construction workers, and who could not agree with the Union on the terms of the collective agreement that the latter wanted to sign.41 Though not being able to predict the outcome in the European Court of Justice, this contested decision seems to challenge certain values of 38

Such a research project has recently been undertaken concerning Swedish law by Professor Ulf Bernitz, on behalf of the Swedish Institute of European Policy Studies (SIEPS). 39 Such an analytical attempt, albeit perhaps not extremely successful, is actually made by Husa, supra note 3, pp. 39 et seq. 40 I would here like to quote Walker, who has described this tendency and its implications with unusually great clarity: “Constitutional pluralism … has both an explanatory dimension and a normative dimension. In explanatory terms, it holds that we can only begin to account adequately for what is going on within the new European constitutional configuration – and indeed the new global constitutional configuration to which the European configuration contributes – if we posit multiple levels of constitutional discourse and authority.” (See ‘Late Sovereignty in the European Union’, in N. Walker (ed.), Sovereignty in Transition (Oxford, 2003) p. 4. 41 Case A 268/04, questions asked 15 September 2005 in the case C-341/05, Laval un Partneri (pending).

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BETWEEN COLLECTIVISM AND CONSTITUTIONALISM Swedish or Nordic collectivism more than most other cases mentioned above, which relate to freedom of speech or other civil rights, or some other cases concerning commercial activities in the field of gambling. This case, which deals with such a crucial feature of the Swedish welfare states as the power of the trade unions, will therefore be extremely interesting to follow, for many reasons. In order to conclude, it is clear that there has in the last few years been some really important developments in Nordic and Swedish law, not least in the attitudes of the judges in relation to issues of judicial review and the possibilities to set laws aside. In many ways, in a theoretical perspective, this slightly changed attitude does probably reflect a less collectivistic and thus more individualistic attitude to the whole concept of human rights than the one that used to prevail in the Nordic countries until the late 1990s. Therefore, the Nordic countries or at least some of them may in a historical perspective be seen as the “Final Frontier” in an international dispute between separation of powers and popular sovereignty – but eventually it seems likely that also this “Frontier” will fall.

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CONSTITUTIONALISM AND APPROACHES TO RIGHTS IN THE NORDIC COUNTRIES Martin Scheinin* 1. BACKGROUND The article is based on the author’s Swedish-language article Martin Scheinin, ‘Brott och kontinuitet i rättighetsideologin och tänkandet i Norden’, pp. 15–31, in Krister Ståhlberg (ed.), Kontinuitet och förnyelse: Europeisk integration och nordisk förvaltningsanpassning. København 2000: Nordisk Ministerråd. For the purpose of publication in this volume the text was in July 2007 reviewed but not systematically updated by the author. The differences that can be identified between the legal systems of the Nordic countries and a post-World War Two Western European approach to individual rights are partly related to legal philosophy, partly to political thinking. Scandinavian realism, which for a long time was the predominant school of thought in Nordic legal philosophy, includes a dimension of *

Dr. iuris, Professor of Constitutional and International Law, Director of the Institute for Human Rights; Vice president of the IACL, International Association of Constitutional Law. The article is based on the author’s Swedish-language article Martin Scheinin, ‘Brott och kontinuitet i rättighetsideologin och tänkandet i Norden’, pp. 15–31, in Krister Ståhlberg (ed.), Kontinuitet och förnyelse: Europeisk integration och nordisk förvaltningsanpassning. København 2000: Nordisk Ministerråd. For the purpose of publication in this volume the text was in July 2007 reviewed but not systematically updated by the author.

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MARTIN SCHEININ nihilism in relation to the rights of the individual.1 When law is seen to manifest itself in many forms and to have various sources, and when the primary task of legal theory is to describe how the various sources of law influence the process of interpreting the law, individual rights cannot be afforded a special status among the plurality of sources.2 Social democracy, here taken as a broadly shared political ideology represented by most political forces in the Nordic countries rather than just a policy of social democratic or labour parties, has contributed to the systematic development of a large public sector that through democratic decision-making takes care of such services and distribution decisions that in many other countries are left to the market mechanism or otherwise to private actors. For the social democratic ideology the universal and equal right to vote is actually the only truly important right. Everything else can be decided through the democratic process. Strong individual rights that would have priority in relation to majority decisions are not only unnecessary but actually an obstacle for democracy, if the notion of democracy is understood as being identical with majority rule. When Denmark, Iceland, Norway and Sweden in 1953 became parties to the European Convention on Human Rights (ECHR) there was no need for a rights revolution. The method used to implement the ECHR was passive transformation, that is, an assessment that there was full normative harmony between the Convention and the domestic systems of law.3 The approach to 1

On Scandinavian realism, see M. Helin, Lainoppi ja metafysiikka, Tutkimus skandinaavisen oikeusrealismin tieteenkuvasta ja sen vaikutuksesta Suomen siviilioikeuden tutkimuksessa 1920–1960 (Vammala, 1988) in particular pp. 184– 224 related to the critique by the realists against the idea of subjective rights. See also J. Nergelius, Konstitutionellt rättighetsskydd, Svensk rätt i ett komparativt perspektiv (Stockholm, 1996) p. 94, and same author, ‘Demokrati och konstitutionalism i Norden och Europa – några juridiska och idéhistoriska synpunkter’, in K. Ståhlberg (ed.), Den nordiska modellen i en brytningstid (Nord 1999:12, Copenhagen, 1999) pp. 15–22. 2 For Nordic legal theory following the footsteps of Scandinavian realism, the doctrine on sources of law has served as the core in legal theory, see e.g. T. Eckhoff, Rettskildelære (Otta, 1987, second revised edition). 3 On different methods to implement international treaties and on the application of these methods in the Nordic countries, see M. Scheinin, ‘General Introduction’, in same author (ed.), International Human Rights Norms in the Nordic and Baltic Countries (The Hague, Boston and London, 1996).

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CONSTITUTIONALISM AND APPROACHES TO RIGHTS the ECHR was characterised by a certain Nordic arrogance, a presumption that the countries of Southern or Central Europe had nothing to teach to the Nordic countries, known as champions in securing all aspects of the wellbeing of their inhabitants. It was of no importance that in the Nordic countries the individual is protected in another way than in countries that have a strong tradition of rights-based protection. In the Nordic tradition emphasis is put on protecting, in a rational and just way, the interests of human beings, through a political process and without recognising individual rights any priority among various competing interests. Another background factor can be identified in the fact that in the Nordic countries there has not developed a strong tradition of judicial review over the constitutionality of legislation.4 Such arrangements constitute in many countries the fundament for an entrenched position for fundamental rights within the legal system. Though the legal doctrine in Denmark and Sweden has already traditionally recognised the possibility of courts to set aside a law that is manifestly unconstitutional, only in Norway has the application of the institution gained practical significance. Even in Norway the use of the institution is primarily related to a certain limited period of time, which, in relation to later decades, further emphasises the exceptional nature of the institution.5 In Finland, the Constitution Act was understood to prohibit the judicial review of the constitutionality of laws passed by Parliament.6 Only the new Constitution that entered into force in March 2000 takes a modest step in the direction shown by the other Nordic countries through a constitutional provision on the jurisdiction of courts to give the Constitution priority in relation to such an application of an ordinary law that would be in manifest contradiction with the Constitution.7 Paradoxically, one can in Finland identify certain elements of genuine rights thinking according to which individual rights serve as limits to the operation of the democratic process of majority decision-making. Within Finnish legal theory Scandinavian realism never had as strong a position as 4

See Nergelius (1996), supra note 1, pp. 167–174 on Denmark, 182–188 on Norway and 686–697 on Sweden. 5 See T. Eckhoff, ‘Høyesterett som grunnlovens vokter’, in 11 Jussens Venner (1976) pp. 1–34, and E. Smith, ‘Domstolskontroll med lovgivning i Norge etter ca. 1970’, in Tidskrift for Rettsvitenskap (1990) pp. 88–120. 6 See the Section 92.2 of the Finnish Constitution Act of 1919 and Nergelius (1996), supra note 1, p. 194. 7 See Section 106 of the Constitution of Finland (Act No. 731 of 1999).

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MARTIN SCHEININ in Scandinavia. Finnish legal scholars have sought inspiration from Germany and, after World War Two, even France. It is a part of the paradox that it was the exclusion of judicial review over the constitutionality of legislation that in Finland led to the development of an institutionalised system of preview over the constitutionality of laws under consideration. This preview is in the hands of the Constitutional Law Committee of Parliament.8 As a part of the preview process the Committee regularly hears legal experts, which has lead to a situation where professors of constitutional law, together with the Members of Parliament sitting on the Committee, many of whom are lawyers, compose a de facto Conseil Constitutionnel.9 Through the operation of the Committee many of the provisions of the 1919 Constitution Act gradually gained, since the latter part of the 1940s, legal albeit not judicial application and significance. Due to shifts in political constellations the institution was first developed in the post-War years to protect property rights10 but later on giving recognition to civil rights and liberties in the 1970s11 and the right to work in the 1980s.12 This development shows that

8

On the emergence and development of the institution, see A. Jyränki, Lakien laki (Helsinki, 1989). 9 On the position and working methods of the Committee, see E. Riepula, Eduskunnan perustuslakivaliokunta perustuslakien tulkitsijana (Vammala, 1973), and P. Länsineva, ‘Eduskunnan perustuslakivalikokunta ja demokraattinen normikontrolli’, in Juhlajulkaisu Turun yliopiston oikeustieteellinen tiedekunta (Turku, 1991). 10 In its Opinion No. 2 of 1950 the Committee came to the conclusion that it would be against the property clause in Section 6 of the 1919 Constitution Act to legislate that 1 May (Labour Day) would be a day off with pay, despite the fact that an earlier ordinary law had declared such status to 6 December (Independence Day). See also P. Kastari, ‘Socialiseringssträvandena och egendomens grundlagsskydd i de europeiska länderna’, in Tidsskrift for Rettsvitenskap (1948) pp. 191–223. 11 In Opinion No. 2 of 1971, related to security checks at airports, the constitutional clauses on the liberty and integrity of the person were, for the first time, taken seriously in examining the constitutionality of a Government Bill. 12 In 1972, the Finnish Constitution Act was amended by inserting a new clause on the right to work. From 1980 onwards, the Constitutional Law Committee of Parliament insisted, in a row of Reports or Opinons, that the old Employment Act was not in harmony with the Constitution and should be replaced with a law that would guarantee an individual right to a job, at least for persons belonging to certain

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CONSTITUTIONALISM AND APPROACHES TO RIGHTS even if the idea of constitutional rights as a limitation to the legislators’ competence was first used to protect a specific category of political aspirations, the legal institution, once created, has been available also for the promoters of quite different political aims. 2. THE ‘EUROPEISATION’ OF LAW IN THE NORDIC COUNTRIES It is possible to distinguish three separate processes through which the Nordic countries have undergone a process of ‘Europeisation’ within their legal ideology and approach to individual rights. 2.1. Human Rights First, during the 1990s it was recognised in all of the Nordic countries that international human rights treaties, in particular the European Convention on Human Rights, influence the application of the law, including the operation of courts. Although the ratification of the ECHR in the 1950s by the Scandinavian countries was characterised by a Nordic arrogance referred to above, it was realised only in the 1980s or in the beginning of the 1990s that the provisions of the ECHR must be taken into account in administrative and judicial decision-making. One factor contributing to this process was that the European Court of Human Rights (ECrtHR) found violations of the ECHR in several cases against Sweden. This sequence of judgments was initiated in 1982 by the case of Sporrong and Lönnroth.13 Although Denmark, Iceland and Norway were not equally often subject to judgments by the European Court of Human Rights,14 the Swedish cases were important for public discussion and legal thinking in these countries. For Finland, which was not a party to the ECHR before 1990, two Human Rights Committee cases

groups and for a certain time. Finally, the reform was implemented through the adoption of a new Employment Act (No. 275 of 1987). 13 Judgment of 23 September 1982, ECrtHR, Series A 52. Subsequent cases establishing a violation by Sweden of the ECHR include Boden and Pudas (Judgments 27 October 1986, ECrtHR, Series A 125-A and 125-B), and Tre Traktörer AB (7 July 1989, ECrtHR, Series A 159). 14 The Danish case of Hauschildt (Judgment of 24 May 1989, ECrtHR, Series A 154) had immediate relevance for the operation of Danish courts, see the Supreme Court case reported in Ugeskrift for Retsvæsen (UfR) 1990 pp. 181–187.

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MARTIN SCHEININ establishing in 1989 and 1990 violations of the Covenant on Civil and Political Rights had a similar role.15 Today it is easy to identify in all five Nordic countries cases in which the highest judicial organ has applied the ECHR.16 And in Finland, which ratified the ECHR as late as 1990, it did not take 30 or 40 years before courts started to apply the treaty. This can in part be explained by the fact that in Finland international treaties generally are incorporated into domestic law through an Act of Parliament. When Finnish judges in 1988 or 1990 started to cite international human rights treaties,17 they did not need to refer to something that formally was outside the domestic legal system. The other Nordic countries have traditionally followed a more orthodox version of the theory of dualism according to which the obligations of a state in international law and the domestic legal order form two separate legal systems. In the absence of formal incorporation in the Scandinavian countries, it took a long time for the judges to develop the paths of argumentation needed for applying the ECHR. In the 1970s certain Swedish courts gave several rulings denying the judicial applicability of treaties that formally are outside the Swedish legal system.18 In later times, the position of judges has developed. Also in Sweden, where the theory of dualism was applied in its most extreme form, courts recognised in the 1980s that international human rights treaties can be made use of in the application of Swedish laws, even when the treaties formally are outside the Swedish legal system.19 There are good grounds to state that the 1990s meant a revolution or paradigm shift in Nordic legal thinking on rights, mainly because of the 15

Vuolanne v. Finland (Communication No. 265/1987) and Torres v. Finland (Communication No. 291/1988) 16 Denmark: U 1990.12 HK, U 1990.181 H, U 1994.988 H; Finland: Supreme Administrative Court 1993 A 26-29, Supreme Court 1992:73, 1993:19, 1993:58; Iceland: Supreme Court 1990.2, 1990.92 and 1992.174; Norway: Norsk Retstidende (Rt.) 1990 p. 257, Rt. 1990 p. 312, Rt. 1990 p. 319, Rt. 1990 p. 1221; Sweden: Supreme Court 1988:108, 1988:28. Most of these cases are discussed in the book by Scheinin, supra note 3. 17 See Supreme Administrative Court 1988 A 48-49 and Supreme Court 1990:93. 18 Such rulings were issued by the Labour Court (Arbetsdomstolens domar 1972 p. 75), Supreme Court (Nytt Juridiskt Arkiv 1973 p. 423) and the Supreme Administrative Court (Regeringsrättens årsbok 1974 p. 121). 19 Supreme Court 1984:170 and 1988:108.

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CONSTITUTIONALISM AND APPROACHES TO RIGHTS changes in the operation of courts in applying the ECHR and other human rights treaties. This is an important change compared to traditional Nordic legal thinking. It is now understood that courts have the competence and even the duty to apply a catalogue of fundamental rights, even of a ‘foreign’ origin, as a normative basis for reviewing decisions or other measures taken in the application of domestic law. In some cases it is possible to state that courts have given priority to the ECHR, in relation to domestic laws.20 In the other Nordic countries except Finland this change occurred prior to the formal incorporation of the ECHR, which took place in 1992 in Denmark, in 1994 in Iceland, in 1995 in Sweden and in 1999 in Norway. Although this change has primarily been related to the ECHR and hence to traditional civil liberties (civil and political rights), the courts in the Nordic countries have occasionally referred also to treaties on economic and social rights. In 1991 the Swedish Supreme Administrative Court (Regeringsrätten) cited the European Social Charter in its reasoning why asylum seekers from Russia could not be denied certain social assistance benefits.21 It is to be noted that the Charter in question has not been incorporated into Swedish law and hence does not form a part of the formally constituted Swedish legal order. 2.2. Amending and Interpreting the Constitution Through a series of constitutional amendments Sweden adopted a new Constitution in the 1970s. Although the new Constitution Act includes a lengthy catalogue of fundamental rights the reform did not mean big changes in the legal thinking on rights.22 Constitutionally proclaimed individual rights are still taken as granted but at the same time not as having a particularly strong status. When needed, the democratic legislature can legitimately establish the limits of such rights, usually through simple 20

Supreme Court of Iceland 1992.174, Supreme Court of Norway Rt. 1984 p. 1174 and Rt. 1994 p. 610. 21 Supreme Administrative Court, 12 June 1991, Case No. 4642-1989: “It is to be added that Sweden has acceded to the European Social Charter under which a principle of equal treatment applies in the field of social assistance. On the grounds presented, the Supreme Administrative Court finds [that the applicants had] a right to social assistance according to Section 6 of the Social Services Act, at the time of the decision made my the regional board.” 22 See Nergelius (1996), supra note 1, pp. 601–613.

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MARTIN SCHEININ majority decisions. Denmark and Norway have so far not gone through major constitutional amendments, although Norway has introduced certain amendments in the details that have contributed to a growing importance of constitutionally guaranteed fundamental rights.23 In the constitutional amendments made in the 1990s in Norway, Finland and Sweden one can see an effort to make the Constitution reflect the ongoing rights revolution described above. In 1994 a new Article 110c was inserted in the Norwegian Constitution, expressing a general obligation of public authorities to secure internationally recognised human rights. This constitutional clause can be understood as the legitimation of the competence of Norwegian courts to apply the ECHR and other human rights treaties even if they formally were outside the domestic legal order. In Finland, the constitutional rights reform of 1995 included a similar provision (Section 16a, subsection 1), even if most human rights treaties have been incorporated through an Act of Parliament. Section 16a (Section 23 in the new Constitution of 1999) can be said to afford human rights treaties with a quasi-constitutional status. In 1995 a clause was inserted into the Swedish Constitution Act that the legislature must respect the ECHR (Chapter 2, Section 23). As a consequence of this provision, a law that is in conflict with the ECHR and hence has been enacted in contradiction with the mentioned provision is unconstitutional and can be set aside by a court if the contradiction is manifest (see Swedish Constitution Act, Chapter 11, Section 14). In 1995 both Iceland and Finland adopted a new constitutional catalogue of fundamental rights. The Finnish constitutional rights reform was of a higher level of ambition. One of the proclaimed aims of the reform in Finland was to strengthen the judicial application of constitutional rights provisions.24 This aim was sought primarily through the doctrines of fundamental-rights-conform interpretation and direct applicability of

23

Reference is made primarily to Section 110a on Sami rights, Section 110b on the right to environment and Section 110c that reads: “It is incumbent upon the authorities of the State to respect and ensure [international] human rights. Provisions on the implementation of treaties on human rights shall be prescribed through Law.” 24 See the mandate of the Commission established to draft a new fundamental rights catalogue (letter by the Ministry of Justice, 21 September 1989, No. 3077/061/89 OM).

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CONSTITUTIONALISM AND APPROACHES TO RIGHTS fundamental rights,25 without touching the traditional doctrine that courts were prohibited from examining the constitutionality of laws adopted by Parliament. International human rights treaties served as a strong source of inspiration for the reform and for the formulation of individual provisions in the new catalogue of rights. In addition, there was a deliberate effort to afford better protection in areas where the international standards were seen not to be ambitious enough. At least some of the provisions on economic, social and cultural rights were given a more precise and concrete formulation compared to existing international human rights treaties. Section 19, subsections 1 and 2 of the 1999 Constitution (Section 15a in the 1995 version) may serve as an example of this approach: “Those who cannot obtain the means necessary for a life of dignity have the right to receive indispensable subsistence and care. Everyone shall be guaranteed by an Act of Parliament the right to basic subsistence in the event of unemployment, illness, and disability and during old age as well as at the birth of a child or the loss of a provider.”

Subsection 1 is understood to establish a directly applicable right. Subsection 2 is binding primarily on the legislature and affords constitutional protection to certain features of the Nordic welfare state. Through the doctrine of fundamental-rights-conform interpretation the provision is relevant also in administrative and judicial decision-making, for example when dealing with a person who is covered by the list of social risk situations in the constitutional provision but does not appear to meet the specific conditions set forth in ordinary laws for any of the existing forms of social security. With reference to the constitutional clause it is possible to interpret social security legislation so that the person is entitled to basic subsistence through the social security scheme under which he or she has submitted an application. In its opinion on amendments to the Sickness Insurance Act the Constitutional Law Committee of Parliament gave an interpretation that on the level of general principles supports the opinion that Section 19, subsection 2 of the Finnish Constitution (1999) gives constitutional status to 25

On the doctrines of fundamental-rights-conform interpretation and direct applicability of fundamental rights, see M. Scheinin, Ihmisoikeudet Suomen oikeudessa (Jyväskylä, 1991) pp. 198–208.

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MARTIN SCHEININ the universality principle, which is an important dimension of the Nordic welfare state. The Committee emphasised that the Constitution does not allow such amendments to the Sickness Insurance Act that lead to a situation where certain categories of persons fall outside the scheme.26 The Government Bill in question would have affected students who lose their study benefits as a consequence of prolonged illness, conscripts who discontinue their service because of illness and persons who have applied for but have not been granted an invalidity pension. Provisions on economic and social rights had certain judicial relevance in Finland already prior to the 1995 fundamental rights reform. Primarily the cases in question were about the application of provisions on so-called subjective (individual) economic and social rights in ordinary laws (Acts of Parliament), not in the Constitution. Nevertheless, the discussion on subjective rights, in particular the right to public day-care of children, was an important phase in the development of Finnish legal thinking on rights in the 1980s and 1990s.27 As an example of a court case where the Constitution had a certain role, one may identify the Supreme Court case 1997:141. The Employment Act of 1987 included provisions on an individual ‘right to a job’ within the public sector. The right was limited to certain categories of persons, namely long-term unemployed and young unemployed persons. Both the state and the municipalities had a duty to arrange temporary (six months) jobs for persons within these categories. A person meeting the criteria established in the law had a legal right to a job. The law was enacted in order to implement the right to work provision inserted in 1972 through a constitutional amendment to the 1919 Constitution Act. Since 1980 the Constitutional Law Committee of Parliament had repeatedly stated that the old Employment Act was not in compliance with the Constitution and that it was necessary to include provisions on the right to a job into the law in order to implement Section 6, subsection 2 of the Constitution Act.28 When unemployment figures started a rapid rise in the beginning of the 1990s, many state authorities and municipalities were unprepared to comply with their obligations. Many municipalities simply decided not to offer jobs as required by the Employment Act. This led a 26

Opinion No. 15 of 1995 by the Constitutional Law Committee of Parliament. For this discussion, see V. Pelkonen (ed.), Hyvinvointioikeus (Jyväskylä, 1993). 28 “Unless otherwise prescribed in an Act of Parliament, it is incumbent for the State to arrange a Finnish citizen a possibility to work.” (Constitution Act of 1919, Section 6, subsection 2, second sentence as inserted in 1972.) 27

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CONSTITUTIONALISM AND APPROACHES TO RIGHTS long-term unemployed person who met the criteria set forth in the law to sue his home municipality for compensation. All three court instances came to the conclusion that the municipality had to pay compensation to the person. In its reasoning the court of first instance made reference to the Constitution Act as an argument for understanding the right to a job as a subjective right that could give rise also to compensation.29 The key paragraphs of the Supreme Court ruling in the case are as follows: “The objective of the norms on the right of long-term unemployed persons to an arranged job was not merely to promote general employment but explicitly to guarantee to a person qualifying as a long-term unemployed person under the Employment Act, an individual right to an arranged job. In their case, the possibility to receive a subsistence social security income was not an alternative to employing the person. Hence, a long-term unemployed person for whom the municipality has not arranged an opportunity to work, in accordance with Section 18.3 of the Employment Act, has a right to receive compensation for the loss he or she has suffered. The municipality of Hollola which has neglected its duty to arrange a job has, in its exercise of public power and through its neglect, caused a loss to Mr. L. The Employment Act and the Employment Ordinance included clear provisions on the fulfilment of the duty to arrange a job. The municipality has not acted in accordance with reasonable requirements that apply when it performs one of its functions and tasks, when the nature and purpose of the task in question are taken into account. Consequently, the municipality is under an obligation to compensate, under Chapter 3, Section 2 of the Damages Act, the loss it has caused to Mr. L.”

In the new Constitution of Finland30 that entered into force on 1 March 2000, the fundamental rights provisions of 1995 are reproduced as Chapter 2. A new feature of the Constitution is that Section 106 authorises and mandates the courts to set aside an Act of Parliament if its application would be in manifest contradiction with the Constitution. The Constitutions of other Nordic countries do not give clear constitutional status to the principles of the Nordic welfare state. This can be 29 30

Supreme Court 1997:141 Act No. 731 of 1999.

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MARTIN SCHEININ a result of a position that rights in general are not truly important, or of a distinction being made between, on the one hand, economic and social rights and, on the other hand, traditional civil liberties. In the Swedish Constitution Act the provision on economic and social rights has been placed outside the catalogue of rights (Chapter 1, Section 2) and its formulation is programmatic in character. After the constitutional amendments of 1995 in Iceland, the catalogue of rights includes modernised provisions on economic and social rights (Sections 75 and 76). Although these provisions make reference to ordinary laws as the instrument through which welfare rights are implemented, they also indicate a decision of principle to recognise the constitutional status of economic and social rights. The Danish Constitution (1953) includes some rather general provisions on economic and social rights (Sections 75 and 76), which, however, also include a dimension of individual rights. The practical effect of these provisions has remained small, even though it has recently been emphasised that constitutional provisions on the welfare state do include a certain potential in Denmark.31 In Norway the provisions in the Constitution (1814) on the right to property (Section 105) and the prohibition against retroactive legislation (Section 97) as well as the newly added provision on the protection of human rights (Section 110c) have at least in part had an effect of protecting welfare rights, although the existing case law has not gone farther than to declare that unreasonable and unjust budgetary cuts would be unconstitutional.32 Another line in the Norwegian discussion on the legal basis of the welfare state has emphasised the role of general principles of administrative law, including the principle of a right to “a standard of living

31

See J. Vedsted-Hansen, ‘Grundlovsbeskyttelse af sociale rettigheder: Gammeldags politik eller nymodens jura?’ (pp. 147–163), I. E. Koch, ‘Sikring af sociale (menneske)rettigheder under kommunalt selvstyre’ (pp. 165–182) and H. Zahle, ‘Grundlovens menneskerettigheder, Sammenstødet mellem legalistiske og dynamiske retstraditioner’ (pp. 361–380, in particular pp. 371, 372), all three articles in M. Kjærum, K. Slavensky and J. Vedsted-Hansen (eds.), Grundloven og menneskerettigheder i et dansk og europeisk perspektiv (Gylling, 1997). 32 See A. Kjønstad, ‘Social Rights as Property – Cases from Germany, Norway and the European Court of Human Rights’, in S. Van den Bogaert (ed.), Social Security, Non-Discrimination and Property (Antwerpen and Apeldoorn, 1997) pp. 75–86.

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CONSTITUTIONALISM AND APPROACHES TO RIGHTS that corresponds to the minimum required for well-being” (“velferdsmessig minstemål”).33 2.3. European Economic Integration (EU/EEA) The third process that has brought about changes in the legal thinking and conception of rights is European economic integration. Denmark is, since the 1970s, a member of the European Community (EC). In the beginning of 1994 Finland, Iceland, Norway and Sweden became part of the European Economic Area (EEA). Just one year later Finland and Sweden became full members in the European Union (EU) and the European Community. Through two distinctive features the process of economic integration has contributed to the development of legal thinking and conception of rights in the Nordic countries: (i) Firstly, it is not only full EU membership that requires that the courts in a member state must give precedence to a large part of the normative framework of Community law in relation to domestic laws. For instance, in Finland it was the incorporation Act of the EEA Treaty34 that for the first time in the history of the country permitted (and obliged) Finnish courts to refuse applying an ordinary Act of Parliament that was in conflict with a norm belonging to another category of law. The wording of the incorporation Act made it clear that certain categories of EEA/EC norms must have priority in relation to domestic Acts of Parliament. This was clearly a breaking-point in the continuity of the Finnish legal system. This is reflected in the fact that Parliament adopted, together with the incorporation Act of the EEA Treaty, a resolution where it instructed the Government to examine the need to enable courts of law to examine the constitutionality of laws adopted by Parliament. Later, this resolution resulted in Section 106 of the new Constitution. Another aspect of the EEA incorporation Act is that it expresses a certain asymmetry of the legal system: in some cases the priority of EEA norms is applicable only when such priority will benefit a private party in relation to a public authority. Also this feature can be seen as a challenge to Nordic legal thinking within the principle of legality, which is

33

See H.-P. Graver, Materiell forvaltningsrett, Med særlig vekt på grunnprinsippene (Oslo, 1996) pp. 208–217. 34 Act No. 1504 of 1993.

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MARTIN SCHEININ traditionally seen to require the neutrality of law, irrespective of the legal characteristics of the parties.35 Somewhat paradoxically, the incorporation Act of the EU Accession Treaty does not include a similar clause on the priority of Community law.36 This does not mean that the challenge posed by European economic integration to traditional Nordic legal thinking would no longer exist. On the contrary, we can identify a new phase in the same development. As member states of the European Union, Sweden and Finland must now recognise that it is Community law itself, not a domestic enactment, that determines the legal effect and priority of Community law within the domestic system of law. During the EEA phase it was acceptable that the domestic legislator could, through a domestic piece of legislation, recognise the priority of EEA/EC norms, whereas under Community law it is understood that it is prohibited for member states to define the domestic status of Community law through their own laws. Full EU membership has lead to a situation where the incorporation instrument is less informative than during the EEA period, as the priority of Community law is no longer visible in domestic legislation but must be derived from Community law itself. In comparison to the detailed provisions on priority relationships between Finnish law and EEA norms in the EEA incorporation Act, the incorporation Act of the EU Accession Treaty is laconic and uninformative. The provisions of the Accession Treaty, and through the Accession Treaty also the provisions of the constituting treaties of the EU, are simply proclaimed to be “in force as they have been agreed upon”.37

35

The Swedish language version of Section 2 in the EEA incorporation Act reads as follows: “Ett stadgande i lag eller förordning får inte tillämpas, om det står i strid med: 1) ovillkorliga och tillräckligt exakta bestämmelser i EES-avtalets huvudavtal eller i dess protokoll eller bilagor; 2) en sådan bestämmelse i ett direktiv till vilken det hänvisas i EES-avtalets bilagor, om bestämmelsen i direktivet är ovillkorligt och tillräckligt exakt samt om den gäller enskilda personers förhållande till den offentliga makten och om det är förenligt med den enskildes rätt att inte tillämpa stadgandet i lagen eller förordningen, eller 3) en EEG-förordning som det hänvisas till i en bilaga till EES-avtalet.” See also Section 3 of the same Act, as well as the corresponding Swedish law, Act No. 1992:1317. 36 Act No. 1540 of 1994. 37 Section 1 of the Act reads, in the Swedish language version: “Bestämmelserna i [anslutningsavtalet] och de i fördragets artikel 1.1 avsedda fördragen som ligger till

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(ii) European economic integration is a challenge also to the traditional separation of powers. In the Nordic countries it is customary to state that it is the legislator that makes, through adopting and amending laws, all important decisions on policies and principles. The role of courts of law is seen as implementing the will of the legislator. Within Community law the situation is different as the normative framework of Community law is incomplete as a legal system and as the European Court of Justice (ECJ), consequently, has a strong position in the development of the law and in securing coherence in law. This fact is reflected even in the distribution of functions on the domestic level, as the courts in EU countries have a right or an obligation to ask for a preliminary ruling from the ECJ in cases where problems arise as to the interpretation of Community law. After obtaining a preliminary ruling, they are obliged to follow it.38 As operators under Community law the Swedish or Finnish courts cannot search for the will of the legislator as the most authoritative source of interpretation. The rules of the game are clearly different from the traditional ones. 3. POSSIBLE PROBLEMS IN THE ‘NEW’ CONCEPTION OF RIGHTS 3.1. The Growing Role of the Courts It is evident that all three processes described above, i.e. the application of international human rights treaties in courts, the strengthening of constitutional provisions on fundamental rights and European economic integration, all have contributed towards a strengthening role of the courts, often referred to as ‘judikalisering’ (judicialisation) in Swedish. Through this process the role of both international and national courts has become greater in defining the contents of the law, when compared to the traditional role of courts in Nordic legal thinking that was based on the unconditional sovereignty of the democratic legislator in relation to other possible actors involved in the process of formulating the law. Some experts have seen this development as a risk to democracy, while others meet it with satisfaction as an element in the transition to a European conception of rights where grund för unionen är, för så vitt de hör till området för lagstiftningen, i kraft så som därom har överenskommits.” 38 See Article 234 in the Treaty Establishing the European Community (as amended by the Treaty of Amsterdam).

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MARTIN SCHEININ genuine individual rights have a recognised special (higher) status among sources of law. Some say that the growing role of the courts means that the judiciary is obtaining more and more political power, while others think that what is moving is the dividing line between politics and law.39 3.2. Individualism The new and strengthened role of individual rights has contributed towards a certain individualistic tendency that can be seen as alien to the Nordic ‘social democratic’ or egalitarian ideology. If the individual is seen to have genuine individual (subjective) rights, also in the social sphere, it is not possible to avoid conflicts where an individual, for instance, sues a municipality to claim his or her rights. This can occur in the form of claims for compensation or in the form of an administrative appeal concerning social benefits or services. The development towards stronger subjective rights has caused concern, in particular among leading officials of Finnish municipalities.40 The same fears appear to be behind the reluctance of Denmark to join the collective complaints procedure under the European Social Charter. 3.3. Economisation ‘The European conception of rights’ is by no means monolithic. The ECHR represents an ideological conception of rights, based on the liberty of the individual, whereas the starting-point of European economic integration is in the four economic freedoms.41 To the extent that the importance of the economic integration of the EEA/EC/EU grows, the interpretation of traditional civil liberties tends to become characterised by their application in the field of economic life and through free competition. As an illustration one can refer to the Grogan case in the European Court of Justice. Certain student organisations in Ireland had been distributing information about the possibility of pregnant women in Ireland to travel to Great Britain in order to obtain an abortion. Basing themselves on the Irish 39

See Nergelius (1999), supra note 1, p. 21. The compilation of articles published in Pelkonen, supra note 27, represents this concern but also an effort to meet the challenge in a rational way. 41 Much of the struggle with a project for a constitutional treaty for the EU is related to the relationship and primacy of the four economic freedoms and fundamental rights as covered by the 2000 EU Charter on Fundamental Rights. 40

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CONSTITUTIONALISM AND APPROACHES TO RIGHTS Constitution that affords protection also to unborn life, an Irish court issued an injunction against such activities. The student organisations argued that their activity was protected by the EC Treaty because it fell under one of the four freedoms, the freedom to offer services irrespective of national borders. The Irish court sought for a preliminary ruling from the ECJ as to whether the EC Treaty should be understood to protect the right to distribute information on abortion services available in another member state. Instead of giving an answer to this question the ECJ reformulated the question so that it concerned the right of student organisations to distribute such information. The answer of the Court was implied in the reformulation of the question: the ECJ concluded that as the student organisations in question did not themselves provide the abortion services, their activity was not protected by EC law.42 The case demonstrates how the process of European economic integration includes a tendency to recognise rights primarily to economic actors, for instance companies, or individuals in their capacity as employers or employees. When the student organisations were not recognised as economic actors, also their claim based on freedom of expression fell short of protection within the framework of Community law. The tendency of economisation of rights follows from the fact that the EC Treaty includes strong and explicit provisions on the four economic freedoms but is short of a catalogue of rights that would be comparable to fundamental rights chapters in domestic constitutions.43 Furthermore, neither the EC nor the EU

42

Society for the Protection of Unborn Children Ireland Ltd v. Stephen Grogan et al., 4 October 1991, ECJ, European Court Reports I-4685. 43 In December 2000 the EU is adopted a Charter on Fundamental Rights that includes a catalogue of fundamental rights comparable to advanced constitutions or international human rights treaties. Although this development represents a possibility for change, it falls short of remedying the situation referred to in the text. Firstly, the Charter is not legally binding. Secondly, it does not change the position of the four freedoms in the EC Treaty as a sort of ‘fundamentally fundamental rights’. And thirdly, the preamble of the Charter actually makes a reference to the four freedoms, implying that the rights enshrined in the Charter, if in the future applied by the ECJ in spite of their formally non-binding status, might be interpreted in a manner that corresponds to the notion of economisation of rights, used above in the text. For a somewhat more optimistic analysis, see Mats Lindfelt, Fundamental Rights in the European Union: Towards Higher Law of the Land? A Study of the

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MARTIN SCHEININ are parties to international treaties on human rights, in contrast to their member states.44 The idea of the EU/EEA as an internal market within which the four economic freedoms shall be guaranteed irrespective of internal borders or the nationality of a person or corporation is reflected in the nondiscrimination clause of Article 12 of the EC Treaty (as amended through the Treaty of Nice). In the Article it is implied that discrimination is allowed against persons or companies coming from outside the internal market. This runs counter to the universality of human rights, reflected first and foremost in Article 26 of the Covenant on Civil and Political Rights.45

Status of Fundamental Rights in a Broader Constitutional Setting. Doctoral dissertation. Turku 2007: Åbo Akademi University Press. 44 For three decades, there has been a continuous discussion on whether the EC/EU should adopt an own catalogue on human/fundamental rights or whether the EC/EU should become a party to the ECHR. In its Opinion No. 2/94, the European Court of Justice concluded that the EC Treaty, as it then stood, excluded the latter alternative as accession by the EC to the ECHR would have ‘constitutional’ implications. One may add: primarily in relation to the ECJ itself, as accession to the ECHR would result in the ECJ becoming subject to external human rights review in the same way as supreme courts or constitutional courts of the member states are subject to such review. The discussion on accession by the EC to the ECHR (or some other human rights treaties) is by no means closed but will require an amendment of the EC Treaty. 45 The problem of discrimination based on nationality in the allocation of social security benefits is discussed in C. Krause and M. Scheinin, ‘The Right Not To Be Discriminated Against: The Case of Social Security’, in T. S. Orlin, A. Rosas and M. Scheinin (eds.), The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach (Turku, 2000). Here, it suffices to refer to two cases where international human rights bodies have found such discrimination unlawful, namely Gueye et al. v. France (Communication No. 196/1985, UN Doc. A/44/40, pp. 189– 195) and Gaygusuz v. Austria (Judgment of 16 September 1996, ECrtHR, Reports of Judgments and Decisions 1996–IV, No. 14, pp. 1129–1157.) The EU Charter on Fundamental Rights did not remedy the problem of inconsistency between EC law and human rights law since although Article 21(1) pronounces a seemingly general right to non-discrimination, Article 21(2) includes a special clause on discrimination based on nationality, once again reaffirming the rule in Article 12 of the EC Treaty.

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CONSTITUTIONALISM AND APPROACHES TO RIGHTS 3.4. The Future of Economic and Social Rights A further challenge related to European economic integration lies in whether the Nordic countries will be able to uphold their systems of social services and benefits. This challenge relates both to the nature and substance of economic and social rights. While the Nordic welfare state is built upon the idea of every person’s individual entitlement to social benefits, irrespective of his or her position in the family or in the labour market, the legislation in many other EU countries is still based on the idea of affording social entitlements to workers and their family members. And in terms of the level of benefits, in a European comparison at least, some of the social entitlements in the Nordic countries appear rather generous. Does European economic integration include a risk of ‘social dumping’, both in terms of the level of benefits and as to their conceptual basis? There is no simple answer to this question. Recent developments within EC law, including Article 136 of the EC Treaty (as amended by the Treaty of Nice) as well as the inclusion of economic and social rights in the EU Charter on Fundamental Rights show that at least EC law itself includes also countertendencies to the possible risk of social dumping.

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THE GOOD STATE OR THE CONSTITUTIONAL INNOCENTS OF THE NORDIC SOCIETIES Agust Thor Arnáson* “The loving home”1 “In a loving home exists equality, concern for others, cooperation and a helping hand. If applied to greater society this would entail the elimination of all social and economic barriers which today separate the privileged and the unprivileged, the ruling and the ruled, the rich and the poor, those with and those without, the looters and the looted.” Per Albin Hansson (1928)

Since the days of Aristoteles philosophers and political thinkers have been thinking about good constitutional practice for different types of governing societies. With the birth of the nation-state, a special type of constitution became the standard for the liberal democratic state founded on the rule of law. This type of constitution laid the base for statehood, which limited and balanced its powers and met its citizens on the grounds of human rights and human dignity. The Nordic countries took part in this constitutional development in their own way; Sweden got its constitution in 1809, Norway in 1814, Denmark in 1849, Iceland from 1874-1918 and Finland 1918-1928. The political and scholarly interest which the Nordic countries have attracted in more recent times have nevertheless been focused on their success as democratic welfare states, rather than as strongholds of constitutional thinking. If it is possible to talk about a Nordic model it can be described as a strong social democratic state, based on the idea of a sovereign parliament with little or no limitation of its powers, with unique homogenous societies that has a moral base in national churches, liberal enough to escape the pitfalls of the catastrophic ideologies of the 20th century, such as fascism and communism. The question that I will try to answer below is whether the *

Programme Director, Lecturer of law, Akureyri University, Iceland. Translated by author from Swedish original text. Det goda hemmet: “I det goda hemmet råder likhet, omtanke, samarbete hjälpsamhet. Tillämpat på det stora folkoch medborgarhemmet skulle detta betyda nedbrytandet av alla sociala och ekonomiska skrankor, som nu skilja medborgarna i privilegierade och tilbakasatte, i härskande och beroende, i rika och fattiga, besuttna och utarmade, plundrare och utplundrade.” 1

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AGUST THOR ARNÁSON Nordic state model as such provides an acceptable way of governing from a general constitutional perspective, with focus on the status of human rights in those countries. During the last part of the 20th century, the popularity of the written constitution has increased to a level that can only be compared with the breakthrough period of constitutionalism in the late 18th century and the first half of the 19th century.2 Over the last decades, more and more countries have chosen the way of constitutionalism in their attempt to lay down a framework for their political, social and economic development. This is particularly interesting, since the nation-state – an analogous phenomenon to constitutionalism – has lately been losing ground as a result of regionalisation and globalisation. NORDIC CONSTITUTIONS The development of constitutionalism in the Nordic countries is less similar from country to country than one might expect. The first wave of constitutionalism in the late 18th century did not have much effect in the Nordic countries, but changes began to take place shortly thereafter. Actually, one cannot say that the Swedish constitution of 1809 reflects the features of the slightly older American and French constitutions. This Swedish constitution was much more traditional, and somewhat remeniscent of the (unwritten) English constitution. It was not until the Norwegian constitution of 1814 (Grundloven), drafted at Eidsvoll, that modern constitutionalism began to take root in the Nordic countries. Despite their being in a difficult position, the Norwegians managed to preserve essential aspects of their constitution after they lost their brief independence to the Swedes, following a centuries-long period of personal union with the Danish king. The Norwegian consitution of 1814 is still largely in force, although many provisions have been amended. The Danes were the next to adopt a modern constitution, with the ratification of their Grundloven in 1849. The origins of this document may be traced to France and Britain by way of Belgium, as the Belgian

2

The breakthrough period of constitutionalism is occasionally marked by the American Articles of Confederation of 1776 as its beginning, and the failure to adopt the Paul Church Constitution of Germany in 1849 as its end.

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THE GOOD STATE OR THE CONSTITUTIONAL INNOCENTS OF THE NORDIC SOCIETIES constitution of 1830 served as a model for the Danish Grundloven.3 The Icelanders received a diluted version of the Danish constitution in 1874 as a gift (oktroyierd) from the Danish king on the 1000th anniversary of the first settlement. received a full In the year 1918 Iceland got its first complete constitution which gave birth to its sovereignty, and that document formed the basis of the existing constitution of 1944, when Iceland became a republic with total independence. The Swedes reatined their 1809 constitution until 1974, while the Finns undertook a complete constitutional revision in 2000, after having introduced a new human rights section in 1995. The Danes revised their constitution in 1953, making limited changes,4 while the Norwegians, as mentioned earlier, still preserve their old constitution and have not yet introduced modern human rights provisions.5 Like the Finns, the Icelanders added a new human rights chapter to their constitution in 1995 but have made no further changes after that. It can be claimed that until the revision of the Finnish constitution in the year 2000, the Nordic constitutionalism was clearly splited between east and west, with the more modern western nordic countries Denmark, Norway and Iceland on the one side and the more traditional east nordic countries Sweden and Finland on the other side. With the revision of the human rights provisions of the respective constitutions in Finland and Iceland in 1995, the axe turned so it can be said that the constitutional shift finds place between north and south or rather between the republics, Finland and Iceland and on the other hand the monarchies Denmark, Sweden and Norway. Although the Nordic nations have been slow to accept modern constitutionalism, they all stand solidly within the constitutionalist tradition of Locke and Rousseau. According to Locke, a precondition for a civil society, free from violent religious conflicts, is that people understand that there can be more than one truth, even if there is only one God. Locke's picture of man is built upon Christian values of the sort that have been influential in the Nordic countries in recent times (change). These values are fundamental to Nordic democracies, as has been pointed out in scholarly writings about the relation between religion and the basic values of the 3

Grundrechte in Europa und USA: Hrsg. Eberhard Grabitz, N. P. Engel Verlag Strassburg 1986. 4 EC art. 20. 5 A partial change took place in Norway, through Menneskerettighetsloven of 1998. 157

AGUST THOR ARNÁSON state.6 This may be asserted despite a palpable reluctance to recognize the rights of minority groups, including minority religious sects. The extent to which Montesquieu's theory of the tripartite division of state power has proven persuasive in the Nordic countries is somewhat debatable. In fact, it may not be said to have had any profound influence anywhere there. Even though the social democrats were dominant in Denmark, Norway and Sweden for a long period during the last century, the Nordic countries see themselves as traditional western liberal states. But, although Nordic politicians usually agree with Locke that the state exist only for the benefit of man, and not the other way around, they nevertheless consider themselves, as good servants of the state and the people, to be in a better position than the people itelf to know what is best. If we say that Locke pointed out the basic truths of consitutionalism, then we may say that the late John Rawls showed us that the legtimacy of the modern state must be able to incorporate the values of different groups in the manner that he called ‘overlapping consensus’. Rawls is thus another important influence of the modern Nordic democracies. NORDIC WELFARE THINKING AND LIBERAL CONSTITUTIONALISM The written modern constitution is constitutive for the state. In addition to that it sets out its limitations. This results in a paradox of freedom and order. The constitutional order is supposed to secure the existence of the autonomous individual, who with his consent has done his part in constituting the state. It can be a matter of opinion how narrow the limitations on the state should be, but the basic line must be that the state finds its limits in the freedom rights of the individual as well as in his autonomy and possibilities to develop and achieve self-realisation. The freedom rights are equal and the same for each and every one. The key question is, therefore, whether the constitution is supposed to have another role than securing these rights. It is only logical that individual freedom rights are on one hand endangered by every form of constitutional order which on the other hand – with the assistance of philosophical and anthropological premises – is the precondition for those rights. The question is how we define the freedom 6

See Plesner 2000.

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THE GOOD STATE OR THE CONSTITUTIONAL INNOCENTS OF THE NORDIC SOCIETIES rights of the individual. From what has already been said, it may be concluded that in the modern Nordic state, basic economic, social and cultural rights can be ranked equally with Locke’s classical freedom rights. Without these so-called welfare rights, the possibilities and the freedom of the individual to live an autonomous life in dignity and to seek selfrealisation remain illusory. It can therefore be assumed that a written constitution guarantees the right of the individual to material, social and cultural goods, which enables him to become mature and to enjoy his capacities, no less than the right to freedom (from state involvement or what has here been called negative freedom). Those basic rights are among the neccessary preconditions for the human being to be able to live his life in dignity. If the social contract, factual or contrafactual, does not guarantee them it is hard to see why an individual should accept such an agreement as a base for the legitimation of a constitutional order. On the other hand, it may seem difficult to draw the line between basic economic, social and cultural rights and ordinary laws on the standard of welfare services and benefits in modern societies. Thus, the question arises as to which the consequences of constitutionally ensured economic, social and cultural rights in reality are. Can the liberal constitution be endangered by such rights? Does constitutional enumeration of welfare rights lead to unintended consequences? Limiting the activities of the state as well as providing the provisions for a democratic rule will then no longer serve as the main purpose of a constitution, but it will no less have the role of confirming or outlining its possible expansion. Are we not running the risk – by widening the scope of the constitution as well as by giving it a new and different role – of diminishing the possibilities of the constitution to limit the power of the state and to secure traditional freedom rights? Does not experience show that welfare rights are best taken care of in the form of ordinary laws? Or, can it be that not only is it our rightful duty to give constitutional status to basic welfare rights but also, when put to test, it will prove to be better to have such rules, rather than more detailed and substantial ordinary laws on economic, social and cultural rights? As mentioned in the introduction, the activities of the legislator are not always in accordance with his words concerning welfare rights. Politicians in the Nordic countries have been extremely efficient when it comes to general laws on welfare rights as well as ratifying international conventions on the 159

AGUST THOR ARNÁSON same rights. For a long time, there were however no signs of this activism in the making of new constitutional provisions in the Nordic countries, nor through a system of constitutional review in individual countries. At the end of 20th century, however, this has started to change (see Norway 1994, Finland 1995 and 2000 and Iceland 1995). The cause for this change is most likely to be traced back to the diminishing influence of Scandinavian realism and the increasing influence of international law on human rights in the Nordic countries, both concerning civil and political rights (see The ECHR, 1950 and ICCPR, 1966) and economic, social and cultural rights (see for instance ICESCR, 1966, CRC, 1989; ILO Conventions). Findings of violations by the European Court of Human Rights and concluding observations from the UN human rights treaty bodies do not give us any ground to conclude that the Nordic countries are to be expected to respect human rights better than other Western countries. Cases concerning individuals and minorities show without doubt that only constitutional human rights provisions can be expected in a sufficiently strong way to secure equal and same rights for all within domestic law. If a higher standard of welfare counts as an argument against taking economic, social and cultural rights into the constitution, one might ask if the fact that traditional freedom rights are generally respected in a given country might be a valid reason against constitutional provisions concerning civil and political rights. The Nordic countries have a tendency to recognise the liberal basis of their constitutional order only when it suits them. That shows the need for reminding the states of their existential premises, by the means of a modern constitution which shows respect to the source of power (pouvoir constituant) and demonstrates through its provisions that securing the rights of the individual is the only or at least the main role and purpose of the state. The conclusion of this has to be that it is not only to be considered as positive if the Nordic countries transform basic economic, social and cultural right into constitutional law but, rather, that there is no excuse for not doing so. Efficient administration of state matters and pragmatic solutions do by no means justify weak constitutional human rights protection.

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List of Contributors Robert Alexy

Professor of Public Law and Legal Philosophy at the Christian Albrechts University, Kiel, Germany.

Agust Thor Arnáson

Programme Director, Lecturer of law, Akureyri University, Iceland.

Jon Elster

Robert K. Merton Professor of the Social Sciences, Columbia University. U.S.A.

Günter Frankenberg

Professor of Public Law, Comparative Public Law and Philosophy of Law, Johann Wolfgang GoetheUniversity, Frankfurt, Germany.

Dieter Grimm

Rector of the Wissenschaftskolleg, Berlin and Professor of Public Law at Humboldt University. He served as a judge on the German Federal Constitutional Court from 1987 to 1999.

Joakim Nergelius

Professor of law at the University of Örebro, Sweden, since September 2003; Associate professor (docent) in European and Comparative Law at Abo Academy (Turku), Finland.

Ulrich K. Preuß

Dr. Jur., Professor of Law and Politics Hertie School of Governance, Berlin.

Martin Scheinin

Dr. iuris, Professor of Constitutional and International Law, Director of the Institute for Human Rights; Vice president of the IACL, International Association of Constitutional Law.

Kaarlo Tuori

Jur. Dr., Professor of Jurisprudence University of Helsingfors, Finland.

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The Raoul Wallenberg Institute Human Rights Library 1.

2. 3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13. 14.

15.

16. 17.

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Göran Melander (ed.): The Raoul Wallenberg Institute Compilation of Human Rights Instruments ISBN 0 79233 646 1 U. Oji Umozurike: The African Charter on Human and Peoples’ Rights ISBN 90-411-0291-4 Bertrand G. Ramcharan (ed.): The Principle of Legality in International Human Rights Institutions; Selected Legal Opinions ISBN 90 411 0299 X Zelim Skurbaty: As If Peoples Mattered; Critical Appraisal of ‘Peoples’ and `Minorities’ from the International Human Rights Perspective and Beyond ISBN 90 411 1342 8 Gudmundur Alfredsson and Rolf Ring (eds.): The Inspection Panel of the World Bank; A Different Complaints Procedure ISBN 90 411 1390 8 Gregor Noll (ed.): Negotiating Asylum; The EU Acquis, Extraterritorial Protection and the Common Market of Deflection ISBN 90 411 1431 9 Gudmundur Alfredsson, Jonas Grimheden, Bertrand G. Ramcharan and Alfred de Zayas (eds.): International Human Rights Monitoring Mechanisms; Essays in Honour of Jakob Th. Möller ISBN 90 411 1445 9 Gudmundur Alfredsson and Peter Macalister-Smith (eds.): The Land Beyond; Collected Essays on Refugee Law and Policy ISBN 90 411 1493 9 Hans-Otto Sano, Gudmundur Alfredsson and Robin Clapp (eds.): Human Rights and Good Governance; Building Bridges ISBN 90 411 1776 8 Gudmundur Alfredsson and Maria Stavropoulou (eds.): Justice Pending: Indigenous Peoples and Other Good Causes; Essays in Honour of Erica-Irene A. Daes ISBN 90 411 1876 4 Göran Bexell and Dan-Erik Andersson (eds.): Universal Ethics; Perspectives and Proposals from Scandinavian Scholars ISBN 90 411 1933 7 Hans Göran Franck, Revised and edited by William Schabas: The Barbaric Punishment; Abolishing the Death Penalty ISBN 90 411 2151 X Radu Mares (ed.): Business and Human Rights; A Compilation of Documents ISBN 90 04 13656 8 Manfred Nowak: Introduction to the International Human Rights Regime ISBN 90 04 13658 4 (Hb) ISBN 90 04 13672 X (Pb) Göran Melander, Gudmundur Alfredsson and Leif Holmström (eds.): The Raoul Wallenberg Institute Compilation of Human Rights Instruments; Second Revised Edition ISBN 90 04 13857 9 Gregor Noll (ed.): Proof, Evidentiary Assessment and Credibility in Asylum Procedures ISBN 90 04 14065 4 Ineta Ziemele (ed.): Reservations to Human Rights Treaties and the Vienna Convention Regime; Conflict, Harmony or Reconciliation ISBN 90 04 14064 6 Nisuke Ando (ed.), on behalf of the Committee: Towards Implementing Universal Human Rights; Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee ISBN 90 04 14078 6

19. Zelim A. Skurbaty (ed.): Beyond a One-Dimensional State: An Emerging Right to Autonomy? ISBN 90 04 14204 5 20. Joshua Castellino and Niamh Walsh (eds.): International Law and Indigenous Peoples ISBN 90 04 14336 X 21. Herdís Thorgeirsdóttir: Journalism worthy of the Name Freedom within the Press under Article 10 of the European Convention on Human Rights ISBN 90 04 14528 1 22. Bertrand G. Ramcharan (ed.): Judicial Protection of Economic, Social and Cultural Rights: Cases and Materials ISBN 90 04 14562 1 23. Gro Nystuen: Achieving Peace or Protecting Human Rights? Conflicts between Norms Regarding Ethnic Discrimination in the Dayton Peace Agreement ISBN 90 04 14652 0 24. Maria Deanna Santos: Human Rights And Migrant Domestic Work – A Comparative Analysis of The Socio-Legal Status of Filipina Migrant Domestic Workers in Canada and Hong Kong ISBN 90 04 14527 3 25. Ragnhildur Helgadóttir: The Influence of American Theories of Judicial Review on Nordic Constitutional Law ISBN 90 04 15002 1 26. Jonas Grimheden and Rolf Ring (eds.): Human Rights Law: From Dissemination to Application Essays in Honour of Göran Melander ISBN-13 978 9004151 81 9 ISBN-10 90 04 15181 8 27. Brian Burdekin, assisted by Jason Naum: National Human Rights Institutions in the Asia-Pacific Region ISBN-13 978 9004153 36 3 ISBN-10 90 04 15336 5 28. Jonathan Power: Conundrums of Humanity The Quest for Global Justice ISBN-13 978 9004155 13 8 ISBN-10 978 9004155 13 8 29. Nina-Louisa Arold: The Legal Culture of the European Court of Human Rights ISBN 978 90 04 16067 5 30. Hans Morten Haugen: The Right to Food and the TRIPS Agreement With a Particular Emphasis on Developing Countries’ Measures for Food Production and Distribution ISBN 978 90 04 16184 9 31. Joakim Nerglius (ed.): Constitutionalism – New Challenges: European Law from a Nordic Perspective ISBN 978 90 04 16348 5 32. Stephen Kabera Karanja: The Schengen Information System and Border Control Cooperation: A Transparency and Proportionality Evaluation ISBN 978 90 04 16223 5 33. Radu Mares: The Dynamics of Corporate Social Responsibilities ISBN 978 90 04 16392 8