[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Mark Tushnet reviews Oliver Gerstenberg’s just-published I-CON article on “Negative/Positive Constitutionalism, ‘Fair Balance,” and the Problem of Justiciability.” Professor Gerstenberg then responds to Professor Tushnet’s review.]
A Review of Gerstenberg’s article on “Negative/Positive Constitutionalism, ‘Fair Balance,” and the Problem of Justiciability”
—Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
Oliver Gerstenberg develops an argument that experimentalist modes of adjudication can coexist with “strong” rights. In doing so he engages with my prior work, which argued that experimentalist modes fit well with what I called “weak” rights, and indeed that experimentalism may require that the rights enforced through that mode of judicial review be weak ones. Gerstenberg uses decisions about age discrimination decided by the European Court of Human Rights to support his argument. I am not a specialist in ECtHR law, and will not contest his interpretation of those decisions. Rather, I focus on the argument about experimentalism and strong rights.
Perhaps Gerstenberg and I disagree over a simple matter of terminology, with each of using the terms “strong” and “weak” differently. He describes strong-form review in these words: “the establishment of a general principle” (p. 914). So, for example, the ECtHR exercises strong-form review when it articulates a general norm against age discrimination in employment. But, because that norm can be implemented in a number of ways, experimentalist remedies – those that authorize national authorities to develop their own systems for implementing the norm – are compatible with strong-form review. And, importantly for the argument, variation in implementation can include variation in the specification of the general norm’s meaning in specific circumstances. The only constraint is that the general norm has sufficiently well-defined contours that we can tell without much analysis when a national system develops an “unreasonable” specification (p. 915).
In my own usage, a general norm against age discrimination is not a strong right even though it is stronger than a general injunction against discrimination. For me, a strong right is sufficiently well-specified that observers – and judges in particular – can identify with some confidence when the right has been violated unjustifiably. (I insert the qualification to take into account the standard non-U.S. mode of analysis in which identifying a rights-violation is a preliminary step in an analysis that then turns to determining whether the rights-violation is justified. In U.S. constitutional discourse, asserting that a right has been violated simply is an assertion that the violation is unjustified.) So, in my usage, the European cases Gerstenberg discusses illustrate the operation of weak-form review, precisely because the ECtHR apparently left the specification of the right’s content – between the broad boundaries of reasonableness – to the national courts.
Clearly, nothing of interest turns on terminology (other than clarity in discussions over time). Gerstenberg’s argument may point out an unclarity in my initial exposition, which I have signaled in the preceding paragraph with its mention of the difference between a general antidiscrimination norm and a norm against age discrimination. My initial exposition distinguished between strong and weak rights – a dichotomous categorization. Gerstenberg’s analysis points out that we ought to be think more in terms of a continuum between strong and weak. In dichotomized terms, the general antidiscrimination norm and the norm against age discrimination are both weak rights. Gerstenberg describes the ECtHR’s decisions in these terms: “the extension of the general principle of equality to previously unnoticed or tolerated forms of discriminatory treatment through principled or ‘strong’ judicial intervention” (p. 921). That is, the general principle of equality may be a weak right, but the right to be free of discrimination on the grounds of age is a strong one.
I agree that “continuum-izing” is more accurate than dichotomizing, and plead only that my efforts were early ones in what has become a more vigorous and nuanced conversation since I wrote. But, of course, the easy mapping of weak rights onto experimentalist remedies (and strong rights onto coercive ones) disappears once we find ourselves on a continuum. And – equally of course – what’s of interest is when experimentalist remedies seem likely to both “work” and be compatible with what Gerstenberg calls the “legitimate prerogatives” (proof page 18) of democratically responsible legislatures. At that point, I think, the labels “strong” and “weak” ought to be abandoned in favor of the kind of direct inquiry in which Gerstenberg engages.
A Response to Tushnet’s Review
—Oliver Gerstenberg, Reader in Law and Director of the Centre for International Governance, University of Leeds
I would like to thank Professor Tushnet for his generous and most illuminating Comment on my article. As I hope readers will notice, my own reading of the relevant European case material and my conjectures about the role of courts in the European context of multidimensional rights protection are and remain strongly indebted to Tushnet’s pathbreaking work on social rights, judicial review, and the complex link between rights and remedies. Against the backdrop of ever-growing court-skepticism, the institutional possibility of a proceduralist view of adjudication (and of “law-application”) becomes of interest—as one of the avenues for vindicating the commitment to liberal-egalitarian constitutionalism. The proceduralist move preserves an important institutional role for courts even under conditions of deep, divisive, often reasonable, disagreement about rights. Thus, the proceduralist move may point beyond a familiar dilemma. The dilemma is between either a retreat to an exceedingly thin conception of constitutionalism as purely negative constitutionalism—a view of the constitution as a merely technical document or rulebook of sorts—, out of a concern with what lawyers call the justiciability of socio-economic rights and with what Europeans, in particular, called the nightmare of the Jurisdiktionsstaat (alluding to the pre-modern meaning of jurisdictio); or, alternatively, a retreat to a view which considers the constitution as a primarily aspirational document, reflecting, and giving expression to, a set of publicly shared values, hopes and aims of society as a whole—to be realized away from the courts if to be realized at all—in an attempt of protecting and hedging the integrity of the liberal-egalitarian commitment as a shared ethos in a fallen world; a world where the great good of the political is invariably “damaged goods.”
So proceduralism isn’t about retreat—but it isn’t a cheerful embrace of court-centrism, in a new, more fashionable guise, either. In his Comment, Tushnet distinguishes between a “dichotomous” and a more “continuumizing” view of the relation between strong and weak rights, as a way of tracing the genesis and evolution of debate. The continuumizing view, as Tushnet explains, brings out the insight (all along present in his writings) that strong rights—identification of which involves independent moral-judicial judgment—and experimentalism in the right’s contextualization go hand and hand. So there’s nothing “weak” at all (in the sense of “under-“ or “incompletely theorized”) in experimentalist adjudication, and nothing that would allow, let alone invite, courts to merely sit on the fences of major social disputes, remaining non-committal; rather, there is justificatory ascent (as the judicial extension of the general principle of equality to hitherto unnoticed or tolerated forms of discriminatory treatment illustrates). But crucially the continuumizing view is also recursive (as Tushnet himself has pointed out). The core of a recursive-proceduralist view is the idea that understandings of principles and paradigmatic instances of their application mutually shape and transform one another. Strong (principled) judicial judgment is itself embedded in and structured by this recursive process, which it helps shape. Thus, in the European scenario, the role of proceduralist courts—the ECtHR or the CJEU—lies in mobilizing other actors—national courts—by formulating broad framework-principles. National courts are forced to reconsider their longstanding jurisprudence or “automatic”—doctrinal-legal and factual—default-assumptions in the light of those framework-principles and against the backdrop of contextual knowledge. As “outsider-courts,” the ECtHR and the CJEU can trigger innovation—responsiveness to changing social values—and raise the standard of justification states and individuals must meet—thus gradually giving voice to hitherto marginalized and despised groups and their concerns. But, crucially, the understanding of those framework-principles, while requiring strong judgment at each step, remains preliminary and is exposed to the manifold shocks of dissent and experience arising from application and hence subject to revision and reconsideration as experience from the diverse national contexts of discovery and application accumulates. So the “continuumizing,” which Tushnet has in mind, also works the other way round: there’s a (non-redundant) justificatory deliberative circle between national legal orders and the legal orders “beyond” the state. This deliberative circle is often overlooked in the contemporary constitutional-pluralism-debate. The recursive nature of this circular process is borne out by the evolutionary case-law on, say, age-discrimination or on the plight of vulnerable minorities or families or prisons—and can be traced even into the remote redoubts of the by-and-large CJEU-shaped private law of consumer-contract and tort, when it comes to protecting unsuspecting individuals against free-market-related risks through an often ingenious interpretation of pointilistic EU directives. The resulting denationalized rights-regime moves beyond minimalist-negative constitutionalism and ever more into the terrain of ambitious positive rights and of complex enforcement—but it does so by enlisting (rather than undermining) national diversity and subsidiarity in a recursive, experimentalist process. So the national legal orders and their courts remain indispensable.
In one sense, of course, proceduralism is a “status ideology” of lawyers (M. Weber)—it defends the “lawyers’ law” in ways comforting to lawyers: for “[b]eing confined to the interpretation of statutes and contracts, like a slot machine into one which one just drops the facts (and the fees) in order to have it spew out the decision (plus opinion), appears to the modern lawyer as beneath his dignity.” But, in another, more constructive sense proceduralism may highlight the renewed possibility of constitutional learning within a multidimensional system and thereby explain the rationale of this multidimensional system emerging in the Old Europe better than other views. Perhaps the self-conscious institutional focus on learning explains why “Europe” may be of more than just regional and more universal interest and importance. The tension between both perspectives—disenchantment and openness to institutional possibility—in Professor Tushnet’s own work on judicial review will strike a chord with Europeanists. For them (us), his work on judicial review is a single, deep source of inspiration. I would like to thank him, again, for so generously engaging in this debate.