Research Unit CONSTITUTIONAL POLITICS IN POST-WESTPHALIAN EUROPE (COPOLIS)

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1 Research Unit CONSTITUTIONAL POLITICS IN POST-WESTPHALIAN EUROPE (COPOLIS) Abstract The modern European state is increasingly the subject of not only normal political critique and contestation, but of contestation in constitutional terms. The questioning of the modern constitutional state i.e. a unit that joins territory, jurisdiction, and citizenry - has set in a few decades ago, and in some cases this process is now accelerating due to the recent global economic crisis. Whereas in the post-1945 period, territorial governance was firmly embedded in the national constitutional order, in recent times the fundamental linkage between territorial governance and the nationstate, including its dominant modes of governance, are increasingly contested. What is novel and significant, is that contestation is frequently using the language of constitutionalism. Main assumptions of modern constitutionalism are being questioned: the state as ultimate constitutional arbiter; the nation-state as the natural territorial unit for governance; the constitutional order as a closed legal and expert system. The project will comparatively investigate distinct trajectories of constitutional change, and, more importantly, the different forms of constitutional politics, in a number of European countries. Constitutional politics is engaged with by a variety of actors, some of whom make innovative proposals for pluralistic, participatory, or even cosmopolitan, constitutional orders. In the last two decades, a cross-disciplinary debate has started to address new forms of constitutionalism as well as multi-level governance. The focus is, however, on novel forms of post-state constitutionalism - for instance, regarding international lex mercatoria, human rights regimes, and supranational governance - as well as on sub-national constitutionalism and non-state legal regimes. There is, however, a glaring absence of systematic and comparative reflections on, and analyses of, the way in which constitutionalism itself is being contested by a variety of actors as well as the object of proposals for (radical) change. What is more, no systematic work has been done on potential shifts in the understanding of constitutionalism or the emergence of innovative views. The proposed research project will fill the gap by comparatively analyzing constitutional politics and shifting perceptions regarding constitutionalism in Europe, by focussing on a small but significant number of case-studies. It is ground-breaking in that it will extensively analyse shifts in views of constitutionalism among key political, legal, and social actors. The project will comparatively analyse the articulation of a plurality of normative discourses on constitutionalism and related forms of critique on the constitutional status quo, in this providing a cutting-edge study of constitutional and legal pluralism as manifested in discursive practice. The project captures, in this, two of the main features of a so-called post-westphalian order: constitutional/legal pluralism and normative pluralism. Keywords Constitutional Politics Contestation Crisis - Governance - Modern State 1

2 General objective and specific objectives The main research question of the project is whether the experience of a similar range of pressing challenges to modern constitutionalism (European integration, regionalism, multiculturality, the economic crisis, juridification, democratic disenchantment) is differently understood (and acted upon) from within national arenas in Europe. The main focus, in this, are the claims for constitutional reform (or, to the contrary, constitutional preservation) by significant political, legal, and social actors. In this, the project has two main objectives: 1. the development of an innovative theoretical approach and framework for the analysis of constitutional politics and constitutional change in the European context; and 2. the application of the theoretical framework in a comparative, in-depth analysis of four case-studies, relevant for constitutional contestation and change in Europe (Iceland, Italy, the United Kingdom, and Hungary). The research project is set up in two main parts: a theoretical-conceptual part and a comparative-empirical part. The first part will consist of the development of an interdisciplinary, comparative framework, which will serve two purposes. On the one hand, the aim is to contribute in a substantive sense to debates on normative constitutional pluralism and constitutional change, and to develop an original theory of constitutional critique. On the other hand, the aim is to develop a comprehensive and analytical framework for the comparative, political-sociological study of constitutional critique and claims-making by a variety of actors in contemporary Europe. Objective 1: Theoretical approach and framework The first objective is to develop an interdisciplinary, comparative, and innovative approach, which will build on theoretical concepts and heuristic instruments derived from legal interpretation, comparative constitutional studies, legal and political theory, as well as those of comparative (political and pragmatic) sociology. The first main step will regard the conceptual elaboration of heuristic devices for the study of the functions of constitutions in European societies. This will entail the elaboration of the functional dimensions which are at the heart of the 'raison d'être' of modern constitutions, and provide modern constitutionalism with its indispensable roles in terms of providing foundational rules, a political map, as well as enhancing societal integration - in modern democratic societies (see annex 1/table 1, first column). The theoretical model will build on own earlier work on the changing contours of governance in terms of varieties of constitutionalism as well as on relevant literature in political and legal theory (Frankenberg 2006; Rosenfeld 2010; Tully 2008; Walker 2008). 2

3 In a second step, the theoretical model will be extended by means of a thorough and original conceptualization of constitutional anomie. The concept of constitutional anomie will form a heuristic device that will help to distinguish different functional dimensions of constitutions and the extent to which to correspond or not with current political, social, and legal realities. The approach builds on Emile Durkheim s notion of anomie, which, in one of its interpretations, indicates a mismatch between an existing institutionalized, legal order, and a dynamic and significantly changing, to be institutionalized society. The notion of constitutional anomie is useful for our understanding of post-westphalian Europe, in that it conceptualizes the uncertainty that is at the core of this order, the irreducible and evermore prominent plurality of normative interpretations of constitutionalism, the conflicts emerging because of this plurality, and the impossibility to return to the safeguards of the modern constitutional idea (the overlap between jurisdiction, territory and identity). The way constitutional anomie is developed in the project will allow to link the functional dimensions of modern constitutionalism with different forms of constitutional critique and constitutional discourses (see annex2/table 2). A theoretical model that wants to capture the dynamic nature of contemporary constitutionalism in the post-westphalian era needs to identify and conceptualize distinct fields of tension that affect the major dimensions of modern constitutions. The fields of tension identified and further deconstructed in the project include: 1) territoriality (the constitutional state as rivalled by supranational as well as subnational constitutionalisms); 2) cultural diversity (the problems arising from the (implicit or explicit) identification of the constitutional subject with an ethnocultural majority); 3) the juridification of democratic politics (tensions emerging from strong tendencies towards the depoliticization of constitutional politics); 4) civic access and participation (the increasing distance between constitutional orders and constitutional subjects). In a third step, the project develops a cutting-edge political-sociological approach to constitutional pluralism on the basis of the assumption that pressures for, and trajectories of, constitutional change will become particularly visible in ruptures and conflict in constitutional repertoires. The novelty lies in particular in, first, the project s focus on constitutional discourses, claims and critique in social, political, and legal realities (rather than on theoretical speculation), and, second, in its focus on both (political and legal) elites and social movements. The concepts that will be worked out are constitutional justification, critique, reform and revision. The approach taken will build on the pragmatic sociology of critique, which is becoming evermore prominent as an innovative social theory of justification and critique (Boltanski and Thévenot 2006; see special issue of the European Journal of Social Theory, 2011, edited by the researcher). Even if this approach has not yet been applied to constitutional analysis (but see, for a legal employment, Kostiner 2003; Nash 2009), its conceptualization of critique and institutions is particularly suitable for a conceptualization of different regimes of constitutional critique, and for an understanding of how critique emerges. The approach assumes that constitutional critique emerges because of a perceived discrepancy between a constitutional repertoire, on the one hand, and alternative conceptions of constitutionalism held by the criticizing actor or group of actors, on the other. What is of primary importance is the identification of distinct constitutional discourses that either criticize existing arrangements from within the paradigm of modern, statist constitutionalism, or criticize it from without, that is, on the basis of a normative, alternative view. The project identifies discourses of constitutional status quo, which all tend to conflate constitutionalism with the nation-state order (statist paradigm). These constitutional discourses include the aforementioned liberal, communitarian, republican, and social or substantive constitutionalisms. When critique emerges between any one of these, it tends to be confined to a reformist critique, that is, as indicating change 3

4 within the statist paradigm. A second type of constitutional discourse identified is discourses of constitutional change, which depart from a view that recognizes constitutionalism also beyond, and below, the nation-state context. These constitutional discourses include constitutional universalism (envisioning a singular, global constitutionalism as shared by all constitutional democracies), civic or democratic constitutionalism (understanding constitutional orders as open to civic deliberation and constitutional politics), and cosmopolitan constitutionalism (endorsing a constitutional order beyond the nation-state level; this view might include constitutional pluralism, that is, the acceptance of different constitutional layers). Critique on the existing order based on these discourses tends to invoke a radical critique, in that it calls for a radical departure from the idea of a conflation between constitutionalism and the nation-state. Objective 2: The comparative empirical analysis of constitutional politics The second, comparative-empirical part, consists of the application of the comparative framework to a small but significant number of case-studies, exploring constitutional change, reform and critique in the distinct national contexts of a variety of EU member states. To date, no comprehensive academic analysis exists of constitutional critique, crises, and reforms in different member states. The studies that do exist exclusively focus on the Europeanization or adaptation of national law to European law (cf. Lazokowski 2010). This study wants to fill this important gap by comprehensively and comparatively analysing the wide range of on-going constitutional reforms (see, e.g., Iceland, the UK), proposals for constitutional reform (e.g. Hungary, Italy), and forms of constitutional critique that are evident in Europe today, and which cannot be reduced to the rubric of European integration. The comparative-empirical study will focus on two old EU member states (Italy, the United Kingdom), one new member state (Hungary), and one prospective member state (Iceland). All of these cases have portrayed significant constitutional turmoil in the recent period. In order to be able to assess context-specific change, the first objective is to reconstruct existing national constitutional repertoires, first of all, on the basis of a legalinterpretative analysis of the formal constitutional texts and their legal interpretation. Second, legal-interpretative analysis is complemented by an extensive contextual analysis of substantive, normative conceptions of constitutionalism, in particular by means of a discourse analysis of relevant parliamentary debates, media coverage of constitutional discussions, and other relevant sources. Third, trajectories of change, as manifested in already implemented constitutional reform or amendment (see, e.g., the case of the UK), or significant trends in judicial interpretation will be identified. The aim here is to identify significant changes away from the identified constitutional repertoires. Fourth, the comparative analysis will explore the main forms of enduring critique of existing constitutions in specific national contexts. This study will comprehensively and comparatively analyze on-going constitutional debate and reforms (the UK, Italy) as well as proposals for (radical) constitutional reform (e.g., Hungary, Iceland), as well as the forms of constitutional critique that are being articulated in these European societies today. State of the art and preliminary results The research project is inspired by, and squarely fits in, an innovative, dynamic and increasingly prominent set of debates on the nature of constitutionalism in the post-westphalian age in Europe. The debates include discussion of the implications for constitutional democracy as a polity and constitutionalism as a mode of governance. The main debate in Europe is on the relationship between national constitutions and European law as well as on the constitutionalization of Europe. Five, very much interrelated, debates are of particular relevance for the project: the debates on 4

5 multi-level governance, legal and constitutional pluralism, cultural diversity and constitutional identity, democracy by the judiciary, and democratic participation. The research project is unique in that no comprehensive, comparative study on constitutional critique and reform in Europe with an explicit focus on the metamorphosis of national constitutional orders exists. There is one recent publication (Elkins et al. 2009), which deals with similar questions regarding the 'endurance' of national constitutions, but it is not concerned with Europe and follows a largely quantitative set-up (in contrast to this project's qualitative, interpretative dimension). Implementation mode The first objective is to (concisely) reconstruct institutionalised national constitutional repertoires, first of all, on the basis of a brief legalinterpretative analysis of the formal constitutional texts (or equivalent jurisprudence) and legal interpretation. The weight, hierarchy, and meaning of different functional dimensions will be analysed. Second, legal-interpretative analysis is complemented by an extensive contextual analysis of normative conceptions of constitutionalism, in particular by means of a discourse analysis of relevant political and public debates, media coverage of constitutional discussions, and other relevant sources. The second objective in this step is the identification of recent trajectories of change, as manifested in already implemented constitutional reform or amendment or significant trends in judicial interpretation (see, e.g., the cases of the UK or Italy). The aim is to identify significant changes away from the identified constitutional repertoires. Again, first a legal-interpretative approach is taken, and, second, a contextual analysis is provided. The analytical focus is thus on two levels, which in current research are seldom if ever taken together. In a second step, a comparative, political-sociological analysis will explore the main forms of enduring critique and contestation of existing constitutions in specific national contexts. Here, the project will comprehensively and comparatively analyze on-going constitutional debate and reforms as well as proposals for (radical) constitutional reform, and forms of constitutional critique that are being articulated. In this, the comparative-interpretative focus of the case-studies will be on: 1. constitutional critique as manifested in specific proposals for constitutional change and calls for constitutional revision (these will include the Charter 88 and Unlock Democracy in the UK; continuing calls for devolution in Italy; the Fidesz constitutional project, and the constitutional criticism by, for instance, the green-liberal party Lehet Más a Politika ( Another Politics is Possible ) in Hungary; the claims of civic movements and the process of constitution-drafting from below in Iceland); 2. constitutional discourses as manifested in wider public debate, regarding not least proposed amendments and significant revision (political and public debates, media, political documents); 3. justifications of the constitutional status quo as well as critique of the existing order, as expressed in qualitative interviews with key legal, political, and social actors. The data will be acquired through extensive rounds of interviews executed by the researcher and the three postdoctoral research collaborators (which will be employed in the research team on the basis of specific expertise) - in the four case-studies. 5

6 Case studies The case-studies have been selected on the basis of their relevance: enduring constitutional claims-making and constitutional critique within a context of European-wide and domestic pressures for change. All cases selected portray significant public constitutional debates that are metapolitical in nature in that they focus on the principles and overall nature of the polity, as well as significant political projects of constitutional revision, in the context of a similar range of pressures for constitutional change. In a number of cases, debate has already resulted in implemented reforms that have changed national repertoires (most visibly in the cases of the UK and Italy). Despite similar pressures, the cases seem to manifest significant variation in terms of which pressures are seen to have most relevance, how these pressures are dealt with, and the types of actors that play important roles in constitutional politics. In a substantive sense, the case-studies provide significant cases of forms of what was earlier labelled as constitutional anomie (see tables 1 and 2). One of its dimensions is the idea of obsolescence. In the UK, a major concern is that the old order of the customary constitution is not up to the changes of current times. In Italy, the political centre-right has since the early 1990s referred to the constitution s degenerated nature. In Hungary, the existing constitution is criticized for prolonging the communist constitution of In Iceland, the constitutional order has been criticized for its imposed nature and its inability to prevent political mismanagement and the financial crisis. Also the relation between the modern constitutional state and territorial governance is challenged, as evidenced by the endorsement of the supremacy of European law. At the same time, there is strong national judicial and political - resistance to it. Challenges derive also from below. In the case of the UK, devolution towards the regional level has been a clear trend, while in Italy revision is for a good part about decentralization (as partly achieved in the 2001 reform). In Hungary there are constitutionally relevant calls for decentralization, and local and participatory government, whereas in Iceland one of the main criticisms regards the intransparent, unaccountable and elitist nature of governance. The identity of the constitutional subject as reflecting a national majority is a further major aspect of tension present in all cases. In the UK, this is related to the re-assertion of regional identities (Scottish, Welsh). In the case of Italy, it is expressed in ideas of decentralization and a distinct, North-Italian identity of Padania. In Hungary, the post-1989 consensus on liberal and legal constitutionalism is being threatened by a project of 'counterconstitutionalism' of which ethno-cultural identity is an essential ingredient. All cases are affected by forms of global or universalistic convergence of constitutionalism. The New Labour government has since the end of the 1990s embarked on a profound revision of the UK constitution in order to promote a written form. Other focal points of reform included the Human Rights Act as well as increased judicial control. Hungary has since 1989 embarked on an institutionalization of new constitutionalism, in which the constitutional court and judicial review play a major role. This is, however, increasingly object of dispute, and the current Fidesz government intends to curb the court s power. In Iceland, one of the surprising outcomes of the grass-roots drafting of the constitution (finalized in July 2011) is a strong call for judicial review and an independent constitutional court. The call for civic participation and forms of self-governance is another major dimension of constitutional politics The afore-mentioned Charter 88 movement in the UK had as its main objective the promotion of participation, openness, transparency, devolution, and alternative forms of 6

7 democracy, other than mere representation. In Hungary, calls for direct forms of democracy and referenda have played a consistent, even if not predominant, role in constitutional change since the 1990s. Recently, this theme has been strongly promoted by the Lehet Más a Politika party. In Iceland, the main rationale for the constitutional movement from below was the call for more civic influence and participation in politics, in particular as a reaction to the financial crisis. 7

8 Bibliographic references Boltanski, L. and L. Thévenot (2006), On Justification, Princeton University Press. Elkins, Z. et al. (2009), The Endurance of National Constitutions, Cambridge University Press. Ferrajoli, L. (1996), 'Democracy and the Constitution in Italy, in: Political Studies, 34, pp Frankenberg, G. (2006), 'Comparing constitutions: Ideas, ideals, and ideology toward a layered narrative', in: International Journal of Constitutional Law, 4(3), pp Hazell, R. (ed.) (2008), Constitutional Futures Revisited. Britain s Constitution to 2020, Palgrave/MacMillan. Körösényi, A. (2007), Legitimacy of the Constitution in Hungary, , in: A. Jakab, P. Takács and A.F. Tatham (eds), The Transformation of the Hungarian Legal Order , Kluwer Law, pp Kostiner, I. (2003), 'Evaluating Legality: Toward a Cultural Approach to the Study of Law and Social Change', in: Law and Society Review, 37(2), pp Lazokowski, A. (ed.) (2010), The Application of EU Law in the New Member States: Brave New World, The Hague: T.M.C. Asser Press.Nash, K. (2009), The Cultural Politics of Human Rights: Comparing the US and UK, Cambridge University Press. Piattoni, S. (2010), The theory of multi-level governance: conceptual, empirical, and normative challenges, Oxford University Press. Pizzorusso, A. (2005), 'Le riforme costituzionali: una transizione per destinazione sconosciuta', in: Foro Italiano, 130(11), pp Rosenfeld, M. (2010), The Identity of the Constitutional Subject, Routledge. Tierney, S. (2004), Constitutional Law and National Pluralism, Oxford University Press. Tully, J. (2008), Public philosophy in a new key, Cambridge: Cambridge University Press. Tuori, K. & S. Sankaari (eds) (2010), The Many Constitutions of Europe, Ashgate. Walker, N. (2008). 'Taking Constitutionalism Beyond the State', Political Studies, Wiener, A. (2008), The Invisible Constitution of Politics. Contested Norms and International Encounters, Oxford University Press. 8

9 Annex 1: Table 1 Constitutional Dimensions and Forms of Anomie Instrumental dimension Constitutional Forms of Nature of discrepancy dimensions constitutional anomie 1. a. Anomie as lack of Discrepancies within constitutional Instrumentalnegative dimension coherence, comprehensiveness, and completion text regarding a model of the polity; lack of completion/transitory nature of constitution b. Anomie as lack or Failure to regulate, reflect inadequacy of significant, novel socio-political regulation phenomena (EU membership); marginality/absence of rights Symbolic dimension 2. Normative c. Anomie as a lack dimension of provision of 3. Identitarian and 4. Aspirational dimensions 5. Substantiveparticipatory dimension meaning/morality d. Anomie as lack of provision of unity e. Anomie as lack of legitimacy Lack of moral orientation/guidance (constitution as a source of moral order) Lack of integrative, cohesive force, either in terms of collective identity or in terms of social cohesion/social rights and solidarity Norms are not self-imposed; norms are outcome of exclusive/technocratic forms of policy-making with little or no possibility for civic input 9

10 Annex 2: Table 2 Constitutional Critique and Discourses Instrumental dimension Forms of Constitutional critique Constitutional discourses constitutional anomie a. Coherence Lack of clarity - Liberal constitutionalism - Legal constitutionalism - Constitutional pluralism - Cosmopolitan constitutionalism b. Regulation Lack of comprehensivess; obsolescence - Active constitutionalism - Transformative constitutionalism Symbolic dimension c. Morality Lack of moral - Constitutional universalism guidance/relevance - Constitutional particularism d. Integration Lack of cultural and/or social relevance e. Legitimacy Lack of civic authorship/selfgovernment - Communitarian constitutionalism - Cosmopolitan constitutionalism - Teleological constitutionalism - Republican constitutionalism - Conversational constitutionalism - Democratic/participatory constitutionalism 10