Constitutionalism and democracy understanding the relationship

constitutionalism and democracy understanding the relationship

our purpose is to understand what happens in democracy today a radical break in the image of the relations between governors and the. The relationship between constitutionalism and democratic incompleteness is, .. understandings of the relationship between democracy and constitutionalism . In this essay I explore the relationship between constitutionalism and democracy, between both of these notions and judicial review, and how.

It energizes the initial process — the constitutional convention, constituent assembly or other device — through which is produced the initial constitutional document for a polity or, indeed, through which is generated any successor constitutional document that announces a new founding unauthorized by its predecessorwhich in turn provides the necessary framing conditions and any additional norm-generating capacity for the fashioning and operation of democracy within that polity.

Arguably, too, any amendment of the constitution, involving an alteration of the framing document itself but in terms formally specified by the framing document, is also an act of authorship, in this case authorized but not exercised by the original framers, which will have a bearing on the ongoing fashioning and operation of any democratic settlement.

Princeton University Press, chapter 1. There can be no definitive democratic answer to the question of who is the popular sovereign — of who gets to constitute the polity and under what conditions. Lindahl, Towards an Ontology of Collective Selfhood, in: The collective self duly constituted the of is the product of rather than identical with the collective self constituting the by.

It follows that whatever democratic credentials are possessed by the latter duly constituted body cannot be used to provide retrospective warrant for the democratic credentials of the earlier constituting body, which remains a body without any democratic pedigree beyond its own self-assertion.

A similar problem of unfounded foundations attaches, at one remove, to formal amendments of the constitution. Here, the immediate credentials of the amending constituency are located in the founding document, which in its amending formula specifies the terms of that constituency. However, that founding document is itself but the product of the self-assertion of an originary and constituent body necessarily lacking its own democratic pedigree.

Again, the work of the constitution in enabling democracy possesses no definitive democratic warrant. Of course, all this is to say is that collective selfhood is progressively as well as regressively authorized, and so we should be wary of overstating the difficulties the problem of origins poses to democratic theory.

Democratic authority is reflexively constructed over time — it is about the continuously self-amending relationship of a collective self to itself rather than a seamless continuity of identity and sameness. Unpopular and Popular, in: Such reflexivity, indeed, is an inevitable feature of all collective activity, however organized,30xSee e.

It does not mean either that the original constituent body lacks a plausible democratic claim, or that we cannot distinguish between more or less plausible such claims.

It is a matter of sociological investigation how much contemporaneous legitimacy a self-proclaimed constituent body enjoys amongst the constituency for whom it professes to speak, and, given the operation of an ongoing reflexive process, later endorsements and re-endorsements mean that the level of any such social legitimacy can vary over time.

constitutionalism and democracy understanding the relationship

Yet, these qualifications notwithstanding, there remains something arbitrary — something necessarily democratically unfulfilled and in some measure self-fulfilling about the original constituent act and signature in its own time.

The original constitutional imposition of democracy, in other words, is also inevitably an imposition upon democracy.

constitutionalism and democracy understanding the relationship

Similar considerations apply to questions of stakeholding and representation. The initial constitutional settlement will either specify or will provide the normative basis for specifying who counts in the polity.

Categories of citizenship or nationality will set out who are full members of the polity for the purposes of taking part in democratic politics in particular, voting and standing for elected office.

Constitution-level decisions will be taken, or will enable other decisions to be taken, as to who should be ineligible aliensor partially eligible those denizens, for example, who may vote in local or supranational elections but not in national electionsand how to move through the levels of eligibility through residence, citizenship tests, etc. The constitutional framework will also specify, or set out authoritative procedures for specifying which otherwise eligible categories may be disqualified for example, prisoners or minors.

In all cases, the identification of those who are deemed to have sufficient stake in the polity to be full participating members of its political system, while providing an important anchor for the democratic process, is again not itself something that can be compellingly derived from democratic principles. Rather, just as with authorship, the initial choice of constituency may create a self-reinforcing bias in addressing the question of who counts.

This is not to say that membership of the polity is something that cannot be plausibly addressed and theoretically elaborated from a perspective of democratic principle. Many efforts have been made to do so. Canovan, Nationhood and Political Theory, Cheltenham: MIT Press ; R. Far from a dearth of democratic theory on the question of membership of the demos, therefore, what we have in fact is a surplus.

These two quite different perspectives, each of which also admits of a variety of different possible internal refinements, are apt to draw conflicting conclusions, with the affinity- and affect-based approach tending to be the more selective and the impact-based approach tending to be the more inclusive.

For their part, questions of representation suffer from a similar form of democratic underdetermination. Modern constitutionalism has been the constitutionalism of large nation states, and the democracy it has precipitated has been of the representative kind appropriate to large nation states rather than the assembly democracy of Athenian and later small city republics.

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This has raised myriad questions of institutional design. How is it possible to ensure representative forms best capable of approximating equality of influence amongst members when factors of size and internal differentiation may lead to certain interests and preferences being ignored or systematically outweighed? Various systems of representation vie with each other to answer questions about the optimal allocation of influence. Majoritarian systems of election, oriented towards rewarding parties and constituencies possessing a relative majority throughout the entire population with a clear mandate to govern, vie with proportional representation systems oriented towards rewarding different interests in the community in a statistically accurate manner.

A Comparative Study, Geneva: Unitary systems, oriented towards treating the demos as a cultural and institutional singularity, vie with federal or consociational systems in which the overall system of representation recognizes systematic cleavages in the population in terms of sub-territorial national or regional identification or other forms of cultural, linguistic or religious affiliation.

Parliamentary systems oriented towards single or coalition party government vie with presidential systems in which representative influence is channelled separately to different governmental organs executive and legislative and executive power is deemed sufficiently distinct to be the subject of the special forms of empowerment and constraint associated with the presidential office.

Elgie, From Linz to Tsebelis: In all cases, again the basic constitutional choice is democratically determining rather than democratically determined. There is no one best democratic way how to design a system of democratic representation.

Partly, this is a question of the different social environments of democracies demanding different institutional solutions. Granted, the mature representative system may well in fact closely track the original balance of voice and influence within the collective authorship of the polity — a link which tends to be clearest in federal or consociational systems. Yet this merely refers us back to the contingency of the initial authorial formulation, and so demonstrates how the answers to constitutional questions of representation, like those of authorship and stakeholding, rather than decided in the domain of disinterested democratic principle may be strongly path-dependent.

If we turn, finally within the category of democracy-realizing dimensions of constitutionalism, to questions of competence, here somewhat different but ultimately similar considerations arise. Waldron, Law and Disagreement, Oxford: OUPchapter Unlike the other three dimensions, there exists some kind of uncontroversial core of democratically mandated constitutional prerequisites to democracy. Democracy, even in its thinnest proceduralist understanding, requires certain minimal conditions of political and personal freedom on the part of its stakeholders and office-holders.

Without freedom of speech and freedom of association, and without the due process rights associated with liberty from arbitrary arrest or interference by the state, it would be impossible to guarantee the basic processes of opinion-formation and dissemination in the absence of which no culture of uncoerced collective decision-making on questions of import to that collectivity can flourish.

But even within these core categories, hard questions arise about how far we should go. Do we protect only directly political assemblies, or any forms of collective coming together, whether in the economic or the religious sphere, that may indirectly impact upon collective political opinion-formation and dissemination?

Do we treat freedom of information — the entitlement to have one views informed and ones preferences influenced by the best available evidence on matters of public importance and by detailed monitoring of the operation of public services and the behaviour of public officials — as every bit as much a prerequisite to democracy as are freedom of speech and association?

And what of privacy, property, subsistence and security? As a simple causal thesis, are these indispensable planks of the platform necessary for the performance of democracy, or can we conceive of a thriving democracy in their absence, or, more likely, in their merely heavily qualified presence? And what, too, of these competences, which may overlap considerably with those listed above, but which are defended, not or not exclusively on the basis that they are causally prerequisite to democracy, but because they stand in an internal moral relationship to democracy?

In the final analysis, there is no democratically mandated right answer, and again constitutionalism must draw upon resources other than democracy in answering one of the unavoidable questions about the realization of democracy. In summary, therefore, we may conclude by noting a distinction between the moral and political purpose and the social epistemology of constitutional thinking across the four dimensions of democracy-realization.

On the one hand, when addressing the when, who, which and wherewith questions, constitutionalism thinking and practice is geared to the realization of democracy. On the other hand, in so doing, although there is much scope for drawing upon the resources of democratic thinking in addressing these questions, these democratic resources cannot provide definitive answers. Rather, from a democratic perspective a crucial element of contingency remains.

Other factors will inevitably play their part in the making of key constitutional decisions, and, indeed, so intensely reflexive are the democracy-engaging processes set in motion by constitutionalism that there will be a tendency towards the reinforcement of foundational biases. As we saw in Section Two, this is a domain of constitutional theory and practice which attracts a double doze of scepticism.

constitutionalism and democracy understanding the relationship

Not only its content, but even its very existence stands as controversial between different positions. Accordingly, this fifth category is one best defined negatively and open-endedly. It addresses the question of what, if any, are the other, non-democratic values, whether understood in terms of individual rights or collective goods that ought to be pursued and upheld by the constitution the what else question?

The list of candidate values here looks very like the open-ended list we perused previously under the democracy-realizing head of prerequisite competences. Such individual rights as property and subsistence, together with other basic welfare or social rights would figure prominently, as would certain public goods less easily reduced to an aggregation of individual rights, such as security and education.

So too, at a higher level of abstraction, would some general desiderata which might in some catalogues be seen as part of a democratic conception of the good sensu largo, but which might equally in other moral schemes be seen as equiprimordial or interdependent with rather than reducible to democracy, or indeed as deeper values served by democracy. We are talking here of values as broadly pitched as equality, liberty, dignity or fraternity. See also Waldron, n.

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This last category of more abstract values neither reducible to nor in conflict with but somehow interwoven with democracy is an intriguing one, and one to which we return in the concluding Section. But for the moment, it is necessary to lay down a broader marker about the knowledge claims associated with all putative members of the category of democracy-supplementing or qualifying values.

The point here is not to seek to draw the unequivocal conclusion that the kinds of constitutional claims which might be and frequently are made on behalf of such individual and collective values, however concrete or abstract, are necessarily additional to or inconsistent with democracy.

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That would be to make an equal and opposite error to those who would declare with similar conviction that any and all such constitutional values are necessarily implied by and so ultimately reducible to democracy however thinly or thickly conceived. Rather, all we can confidently say is that there is no generally agreed understanding of democracy on the basis of which all other candidate constitutional values are necessarily implied by and reducible to its terms.

However, since any conception of democracy or rather, any shared dimension of various and diverse conceptions of democracy capable of attracting the requisite overlapping consensus could be no more than a thin proceduralist one, there would remain many other candidate constitutional values palpably not reducible to the terms of that thin consensus.

In other words, to the extent that there is or could be minimum agreement about democracy as a cornerstone of constitutionalism, that agreement does not and could not extend far enough to cover the many other candidate constitutional values to which at least some parties to any such minimal agreement would subscribe. We have no choice, therefore, when seeking to make sense of modern constitutionalism in a way that does not close off options by deeply controversial definitional fiat, but to hold open the putative category of non-democratic values.

Two Mixed Constitutional Functions We can complete our catalogue of modern constitutional functional domains by referring to two such functions straddling the distinction between democracy-realizing and democracy-qualifying. Sixthly, then, constitutionalism also addresses democratic incompleteness at the level of implementation of the overall system of government the how question. Just because constitutional law, uniquely amongst categories of law within the positive legal order of the modern state, cannot resort to any higher socially sourced and institutionally grounded legal authority in support of its own normative purposes, it must take responsibility for its own effectiveness as law.

This work of self-execution can in turn be sub-divided into normative or regulatory design questions, and integrative or cultural questions. Normatively, what institutional framework — that is to say, what particular combination and interconnection of legislative, executive and judicial functions and institutions, will best reflect and achieve the normative values and purposes of the constitution? Importantly, just because these deep normative purposes may be mixed, relating to democracy and arguably non-democratic values alike, so too their implementation may reflect this mixity of democracy-realizing and democracy-supplementing or -qualifying functions.

For example, an independent emphasis on those presumptively non-democratic values based on individual rights might be thought to be well served by a strong regime of judicial review of legislation and of administrative discretion.

Or a strong emphasis on the goods of internal and external security might be thought to be well served by a strong emergency powers regime against internal and external threats, or by protecting certain types of executive action from close contemporaneous involvement or scrutiny by the other branches of government.

Cambridge University Press Pettit, Depoliticizing Democracy, Ratio Juris 17 I largely agree with many of the conclusions and insights generated by his essay. To this I fully agree. As is evident from many of the points raised by Walker, in particular the assumption that the relationship between constitutionalism and democracy is iterative, which is to say that the meaning of these concepts changes within their contextual dynamics over time, our concern is with a topic which is historical in nature, as all politics is essentially historical.

Constitutions, constitutionalism and democracy are historical phenomena, both in practice and in the manner in which we can understand and theorize them. Hence, it is important to trace the historical constitutional configurations in discourse on constitutionalism and democracy.

I submit that these questions when posed in the context of globalization bedevil thought that remains within that tradition, making globalization intractable to constitutional analysis.

constitutionalism and democracy understanding the relationship

This provides, Walker asserts, the key to understanding how in its original conception modern constitutionalism came to stand in tension with democracy, in as much as the law and the constitution in the age of absolutism were an instrument rather than the source of sovereign power, whereas modern constitutionalism reversed this relationship. If I understand the paper correctly, the beginning of this modern constitutionalism in this sense is historically located in the 18th century with the rise of constitutional documents towards the end of that century and in the early 19th century.

There can be no doubt about the contrast between absolutism and modern constitutionalism as sketched, but I firstly submit that the tension antedates the 18th century and goes back to earlier roots, and secondly that the tension is inherent in the nature and object of constitutions.

To argue this, I recall that as an institutional arrangement democracy is not only about creating and modifying political decisions, but one manner of dealing with how one government is succeeded by another; but earlier forms of constitutionalism had the same concern. These leges are rules concerning their election or rules of inheritance — what we would now call constitutional legal norms.

The constitutional order was indeed thought of as incomplete without recognition of such values. In France as well as in the Low Lands religious liberty was a major issue, spawning the wars of religion in France and the Dutch Revolt in the Low Lands.

The continental European constitutional tradition on which Walker leans, is mainly of French revolutionary pedigree. It has strong inclinations towards exclusivism and sovereigntist thought, based as it is on the nation and popular sovereignty.

The revolutionary constitution aims to do away with some crucial contrasting aspect of the past and forms a blueprint for the future; exclusiveness and autonomy are two of the core concepts within this constitutional paradigm. There is a different constitutional tradition as well.

By presenting democracy as both normatively and empirically incomplete, Walker thus raises questions regarding his own conception of democracy. If democracy is understood narrowly, constitutionalism does indeed function as a normative remedy. If, on the other hand, democracy is understood in a normatively richer way, it raises the question whether there is indeed an irresolvable tension between constitutionalism and democracy. Here Walker makes the argument that constitutionalism cannot function in isolation from democracy.

According to Walker, constitutionalism needs democracy for two main reasons: Moreover, his argument raises questions regarding the desirability of linking international constitutionalism to democracy: For a critique of the UN system from a constitutionalist perspective see U. Others have argued that the international order as a whole is grounded in a basic constitutional framework that goes beyond the will and interests of individual states. For some, this framework consists in basic values scattered around human rights treaties, the practice of courts, customary law, jus cogens, etc.

For others, the constitutional framework is laid down in the UN Charter, that is believed to function as a quasi constitution of the international community. Martinus Nijhoff Publishers For a critique see W. Werner, The Never-Ending Closure: Constitutionalism and International Law, in: Cambridge University Pressp. The reason for the invocation of constitutional language in international law is twofold. In the first place, constitutional vocabulary is used in order to explain developments that cannot, or only with great difficulty, be explained in terms of state consent and sovereign equality e.

In the second place, constitutionalism is used to further a normative agenda of internationalism, integration and legal control of politics — an agenda not very different from the programme of the Victorian lawyers that founded the institute of international law in As Walker points out, international constitutionalism in its various forms has no strong link to democracy.

Its main aim so far has not been so much to articulate popular will or to represent citizens, but much more to civilize politics, to redirect it from an exclusive orientation on national interests to the interests of the international community as a whole and towards the protection of individual rights. In this sense, it is much closer to what Walker describes as the early variants of modern constitutionalism — forms of constitutionalism aimed at government limited by law, not grounded on democracy.

One of the main problems facing international constitutionalism is the age-old issue of authorship and authority: Who decides upon their application? Take for example the concept of jus cogens. Until now, there has been little agreement how exactly peremptory norms of international law emerge through state consent, through the consent of a majority of states, through the recognition of some pre-given natural right?

Moreover, even if there is agreement about some core norms e. Of course, questions of authorship and authority appear in every legal order and are thus as such not specific for international constitutionalism. However, given the lack of a thick political community at the international level, they do get specific meaning and force in relation to international constitutionalism.

International constitutionalism, as Walker rightly points out, does not rest on a clearly identifiable polity in which it is applied and reinvented. Rather, international constitutionalism grows out of a multitude of sources, including rulings of domestic courts, rulings and advisory opinions of international tribunals across different functional fields, customary law, scholarly writing, non-compliance proceedings, decisions of international organizations in different specialized fields, etc.

Moreover, it is invoked and applied by different actors that they often have very different views on the meaning of constitutional provisions in concrete circumstances. In that sense, international constitutionalism is as much an attempt to create unity in international law as it is a reinforcement of the fragmentation of the international order.

In the same fashion, it is as much an attempt to contain international politics as it is the source of more intensified political struggles. Is democracy the answer to the incompleteness, shortcomings and paradoxical effects of international constitutionalism?

While the problem of incompleteness already poses problems for democracy at the domestic level, it appears even more pronounced at the international level. Take for example the question of membership or, as Walker puts it, the issue of stakeholding: