I have invited my co-Editor-in-Chief, Michel Rosenfeld to write the Editorial for our last issue for 2012. His contribution follows below.
Individual rights and the excesses of individualism: Heading back to a Hobbesian state of nature?
In Hobbes’s vision, the state of nature is one of extreme individualism leading to a war of all against all and in which human life is “solitary, poor, nasty, brutish and short.” To overcome this, Hobbes posits a social contract leading to civil society in which humans can achieve security. More generally, the social contract stands as a metaphor for a transition to constitutional rule and the guarantee of fundamental individual rights. In feudal societies, the individual had no identity or rights distinct from the group or estate to which he or she belonged. With the advent of the Enlightenment, in contrast, the individual became distinct from the group through the acquisition of constitutional rights meant to provide a significant measure of autonomy from impinging groups and from other individuals. In short, constitutional rights were to give individuals their due, and Enlightenment based individualism to stir the polity towards equal liberty for all.
A series of recent developments in countries with strong guarantees for individual rights, such as the United States, France, and Germany, raise a serious question, however, as to whether the once salutary pull towards individualism can be taken to such excesses as to threaten the implantation of Hobbesian state of nature tendencies within the very core of the constitutional state. The events in question may seem at first quite disparate. In the United States, they include the seemingly random shooting in a movie house in Colorado by a twenty-four-year-old university student of several dozens of spectators resulting in twelve deaths and fifty eight injuries; the massacre of six worshippers in the course of a service at a Sikh Temple in Wisconsin by someone with white supremacist leanings; and, the controversy over so called “legitimate” rape and abortion ignited by the Republican Party candidate for a US Senate seat in Missouri. In France, the relevant occurrence was the killing spree by Mohamed Merah who during a short period managed to gun down a number of French military personnel and several persons, including children, in a Jewish school in Toulouse. Finally, in Germany the relevant trigger was the decision of a regional court in Cologne holding the religiously mandated circumcision of a four year old Muslim to be in violation of that boy’s right to bodily integrity given that he lacked the capacity to consent to the procedure.
Before attempting to draw a nexus between the above listed events and excessive or pathological individualism, it bears emphasizing that the killings in Colorado, Wisconsin, and in and around Toulouse may well each be aberrations perpetrated by profoundly disturbed individuals, and that therefore no causal inferences are assumed or intended in what follows. Consistent with this, the main point to be stressed is that the various occurrences listed above can be interpreted as being congruent with a trend towards excessive individualism—a trend more broadly exemplified by increasing divisiveness, conflict, and erosion of mutual tolerance in the three countries affected.
The excesses of individualism in each of the three countries involved differ in nature and emphasis. In the United States, the main focus is on the individual versus the state, and excesses center around a tendency to negate or downplay dependence of the individual on the state, society, particular social groups, or the family in his or her quest for survival and self-fulfillment. In France, on the other hand, there is an overriding concentration on the abstract individual stripped of all particularity or difference with a view to showcasing the ideal of equal citizenship. In this context, the most likely excesses are suppression or repression of the individual’s individuality as exemplified by banning or discouraging expressions of religious affiliation, such as the wearing of the Islamic veil, in public spaces. Finally, in Germany, the overwhelming concern is on the dignity and integrity of the individual, and excesses appear to stem primarily from an overly narrow and culturally biased conception of the legitimate boundaries of individual dignity and integrity.
Individual autonomy, equality among individuals, and the dignity and integrity of the individual are, to be sure, essential to a well-functioning, constitutionally ordered democratic polity, and each of them must strive for an optimal expression through constant dynamic interaction with the various relevant groups and sources of collective identity that they must inevitably deal with. Because individual and group are engaged in a constant mutually defining dynamic, as the following examples suggest, excesses in individualism are inevitably accompanied by distortions and pathologies afflicting the collective dimensions at play.
In the United States, the most dramatic and prevalent excesses of individualism are most vividly illustrated in the sadly all too frequent rapidly executed multiple killings with automatic or semi-automatic firearms capable of discharging several rounds of ammunition within a matter of seconds, such as occurred in the above mentioned Colorado killing or injuring of a total of seventy persons in a movie house. Monstrous occurrences of this kind project an image of the lone besieged individual who feels under constant threat of violence and who believes that his incessantly targeted individuality is best protected by unleashing against those perceived as posing a threat to his way of life and amassing an arsenal of firearms sufficient to repel all suspected or real enemies, ranging from the state itself to anyone who may assume the role of a real or imagined antagonist. Of the two examples cited above, the Colorado killing looms as an act of pure violence unaccompanied by any apparent ideological or political message. Nevertheless, two facts relating to this killing emerge as particularly telling in the context of the present discussion: the killer was able to amass an astounding quantity of firearms and ammunition entirely legally before triggering his murderous spree; and as seems too often the case in America, the movie showing at the time of the massacre was one drenched in violence, with shootings, deaths, and even threats to extinguish an entire city with a thermonuclear device.
The killing in a Sikh Temple in Wisconsin, on the other hand, did in all appearance combine a message of hate with the murderous use of firearms. The killer had, as already mentioned, white supremacist tendencies, and in his case, the perceived assault on his individuality stemmed in all likelihood from admission of non-whites who professed an alien religion within a space he felt entitled to reserve for himself and others like him. The killing of worshippers praying in a temple is particularly telling, moreover, as it exacerbates the dehumanization of the victims which is all the more startling in a country like the United States where freedom of religion and religious expression are among the most cherished national values. The virtue of healthy individualism is that it fosters celebration of religious diversity; the vice of the kind of excessive individualism prompted by the image of the besieged individual is that it blinds the individual to what he shares as an autonomous person with the other. Whereas what lurks behind these two killings and behind the type of excessive individualism of which the killings in question seem to be extreme instantiations is undoubtedly both highly complex and difficult to pinpoint, two constitutional American peculiarities appear in tune with the conception of the individual as isolated and besieged. The first of these is the extensive protection of hate speech based on race, ethnicity, or religion under interpretations of the First Amendment sharply at odds with the free speech rights carved out in most other Western constitutional democracies where no constitutional protection is accorded to incitement to racial, ethnic, or religious hatred. The second peculiarity in question stems from the disproportionate expansion of the right to bear arms under the Second Amendment leading to a systematic thwarting of sensible initiatives supported by most law enforcement professionals to reduce devastating violence involving the use of firearms.
Massacres such as those detailed above inevitably lead to demand for tighter regulation of firearms which are predictably resisted by Second Amendment absolutists who assert that the best defense against such atrocities is to arm everyone to even out the positions of all involved. These arguments have been repeatedly discredited by experts. Imagine the Colorado shooter in a dark movie house being met by additional gunfire coming randomly from different directions. Chances are that the final carnage would have been much worse. Nevertheless, for certain extreme individualists the myth persists, and the proposition that the assaulted individual count virtually exclusively on self-reliance lest his or her freedom and autonomy will inevitably have to be surrendered to the state is loudly and repeatedly proclaimed.
This latter proposition appears front and center in the third American instance mentioned above, the controversy over remarks concerning rape in relation to abortion uttered by a Republican candidate to the US Senate. The candidate’s position is that abortion should be prohibited without exception even in cases of rape or incest—a position rejected by a vast majority of Americans. It is particularly disturbing to have the state compel a victim of rape who becomes pregnant to carry her pregnancy to term—and that on measured as well as on extremist individualist grounds. To overcome that hurdle, the candidate to the Senate singled out “legitimate” rape, and contrary to established scientific fact asserted that victims of such rape automatically produced a physical reaction that resulted in prevention of pregnancy. Whereas the candidate in question later stated that he misspoke and that he meant “forcible” rather than “legitimate” rape, the use of the latter term is particularly telling. Indeed, consistent with an extreme individualist perspective (which regards women as responsible for getting pregnant as if it were automatic ally their choice, but refuses to extend this projection of autonomy to a pregnant woman’s consideration of an abortion), if the rape is “legitimate,” that is, real and forcible, then the victim cannot be held responsible, but the question of abortion does not arise at all in the candidate’s narrative as nature protects the woman involved against pregnancy. On the other hand, by the same logic, it is presumably “legitimate” to make a victim of “non-forcible” rape (who must therefore be automatically assumed to have acquiesced or at least not objected to sexual intercourse) to have freely assumed the risk of pregnancy, and therefore to have to live with the consequences of that autonomous “choice.” In short, by making all pregnancies a “choice,” and all “non-forcible rape” “consensual,” this extreme individualist fantasy purports to delegitimize all recourse to abortion by those whose pregnancy is the consequence of a crime of which they were the victim.
French individualism, in contrast to its American counterpart, is more focused on abstraction than on insularity. Steeped in Rousseau’s distinction between the citizen and the bourgeois, French individualism exalts the abstract individuality that underlies equal citizenship. It is perhaps best encapsulated in the famous dictum of Clermont-Tonnerre made in connection with the emancipation of the Jews during the French Revolution: “Everything must be refused to the Jews as a nation and everything must be accorded to the Jews as individuals . . . they must be individual citizens.” Moreover, in a country with a history of wars of religion and deeply anchored in feudal hierarchy, shifting the emphasis away from what makes people different and towards what frames them as similar and thus as equals was undoubtedly a salutary thing to do even if it required recasting the individual at a high level of abstraction.
Excessive individualism in the French case stems primarily from undue repression of one’s identity or individuality in the quest to further the republican ideal of equal citizenship. Controversies over prohibition of the Islamic veil in public schools and the burqa in public places are telling examples of the kind of repression at stake. Moreover, such instances of repression of identity and individuality in the case of Muslim immigrants living in impoverished suburbs with high rates of unemployment seem particularly prone to lead to unrest and contestation. Indeed, a certain measure of repression in exchange for equal participation and a fair sharing of benefits in the common republican enterprise may be a price well worth paying. However, such (or arguably worse) repression coupled with marginalization and a sense of unfair treatment as is commonly experienced by many who originate in the Maghreb seem bound to exacerbate resentment and to eventually precipitate a return of the repressed.
Mohamed Merah’s carnage in Toulouse thus evokes a seemingly uncontrollable return of the repressed in a burst of unimaginable ferocity. Merah apparently cultivated the impression that he was a lone radicalized actor, but as the French police discovered, he had become a well trained and connected jihadist who had travelled extensively to Afghanistan and the Middle East. Accordingly, he embraced the most extreme and violent available iteration of his identity of origin. He then proceeded to kill Muslims, who had served with the French military in Afghanistan, whom he presumably saw as traitors. This he followed by turning against those he considered “the” enemy, the Jews, and proceeded to kill in cold blood several unsuspecting young children aged three, six, and eight, on their school premises.
Understandably, the reaction to the Toulouse massacres gave rise to fear of exacerbation of Islamophobia in France, and whereas the whole country became united in grief and solidarity over the Jewish school tragedy, some have feared that in the long run France would witness an increase in anti-Semitism. The logic behind this fear is that the more identities that visibly differ from that of the mainstream in the country come to the public fore, the more the country’s majority will insist on reinforcing the sway of abstract individualism. And this would be unfortunate, as it would lead to escalation of a struggle among proponents and opponents of the French republican ideal. Ironically, the best way for practicing Muslims and Jews to counter the excesses of French abstract individualism would seem to be to unite and call for greater acceptance of plurality and difference consistent with maintaining the important virtues of equal citizenship.
The Cologne regional court ban of circumcision on boys who are too young to give their consent on the grounds that it violates their right to bodily integrity differs markedly from the previous examples and may appear at first as a salutary offshoot of a German brand of individualism based on preservation of the dignity and integrity of the individual. German individualism is a salutary and powerful antidote to the country’s Nazi past. Moreover, although German individualism differs from its French counterpart, its capacity for generating sufficient abstraction to allow for some distance between the individual and group affiliation must certainly be regarded in a positive light.
That said, the ban at stake, which has led to strong protest by German Jews and Muslims, and which has prompted many German legislators to work to insure the legality of religiously prescribed circumcision throughout the country, stems from an excessively individualistic conception of integrity. On the one hand, there are disagreements regarding whether there are more medical advantages or disadvantages associated with male circumcision (the American Academy of Pediatrics has just completed a survey concluding that the advantages of circumcision outweigh the disadvantages). In this sense, circumcision should not be treated differently than other elective medical interventions over which no one would dream of interfering with a parent’s decision on behalf of a minor child. If physicians disagreed over the benefits of tonsil removal in a particular case, for example, it would clearly be up to the parents to decide whether to have their minor child operated.
On the other hand, banning religiously mandated circumcision would inevitably result in many German Jews and Muslims feeling deprived of part of their dignity, integrity and individuality as compared to those of their fellow Germans. In the 1994 Holocaust Denial Case, the German Constitutional Court upheld a law that made it a crime to deny the Holocaust, stressing that such denials had the effect of depriving German Jews of full membership in the post-Nazi German polity. Prohibition of religiously prescribed circumcision would similarly affect German Jews and Muslims, no matter how well intentioned the proponents of excessive individualism may have been in endeavors to have the circumcisions in question outlawed.
Properly circumscribed, individualism is the bedrock of vibrant constitutional rights. The individual should not be smothered by the group, but neither should he or she be unduly detached from it. Excessive individualism is a vice, as is excessive subjection to a group. To avoid these extremes, a proper balance must be struck and room made for choices regarding group allegiances. In today’s diverse polity, most individuals are prone to identifying with different groups making it necessary to seek the proper balance through openness to pluralism and assiduous cultivation of mutual tolerance.
I.CON is launching its much discussed blog: I.CONnect. The new blog will absorb one of the leading existing blogs on comparative constitutional law—Tom Ginsburg’s ComparativeConstitutions.org—and will expand its coverage to include issues in general public law at the national and international levels. Tom Ginsburg has graciously agreed to continue to serve as blogmaster together with David Landau and Richard Albert.
We have high hopes for I.CONnect, and we are confident that it will make a worthy companion to I.CON. It will provide not only a platform for discussing I.CON articles and themes, but also a public forum for engaging with the here-and-now of public law: with current events, publications, and court decisions that are of interest to the international community of constitutional lawyers, as well as with recent theoretical developments in administrative, constitutional, and international law.
We hope that you will add I.CONnect to your daily reading list, and we look forward to your contributions to this new I.CON adventure!
Mattias Kumm (NYU School of Law) and Li-ann Thio (National University of Singapore) have ended their stint as members of our Board of Editors. Michel Rosenfeld and I extend to them our gratitude for their years of service on the Board.
We welcome Wen-Chen Chang (National Taiwan University), Chaihark Hahm (Yonsei Law School), and Ran Hirschl (University of Toronto) as new members of the Board of Editors.
In this issue
We open this issue with three articles, each discussing a different aspect of constitutionalization and judicial review. In his discussion of justiciability of social and economic rights, Oliver Gerstenberg draws on European experience to defend judicial experimentalism, in which principled judicial intervention is supplemented by subsequent deliberative and democratic processes of rule-making. Marco Goldoni follows with an internal critique of political constitutionalism. Goldoni discusses the conceptions of political equality and constitutional politics assumed by political constitutionalism, and criticizes them for being too narrow and unsatisfactory. In the third article, Alon Harel and Adam Shinar offer an argument in favor of constrained judicial review. Rejecting instrumentalist and legitimacy-based justifications, the authors ground the justification of judicial review in petitioners’ right to a hearing and the special role courts play as a forum for raising individual grievances.
We continue with a symposium on Public Authority in Global Governance, beginning with a lucid analytical introduction by Nico Krisch. This symposium touches upon many of the themes to which I.CON is dedicated. Joana Mendes discusses the reception of decisions by international organizations in European Union law and criticizes the impact it has on traditional procedural safeguards against the misuse of public authority. Andreas von Staden offers a principle of “normative subsidiarity” for evaluating the legitimacy of judicial review of decisions made at the national level by international courts. Ming-Sung Kuo takes up global administrative law and identifies changes to the notions of legitimacy and legality at the international level. Theresa Reinold examines the relations between the African Union and the International Criminal Court and traces the dynamics of resistance and cooptation that are part of the process of constitutionalization. Finally, Christine Schwöbel challenges the choice of public law over private law as the appropriate framework for understanding global governance.
The issue concludes with an I.CON: Debate! in which Marek Szydło and Stephen Weatherill present opposing views on the desirability of designating national parliaments as national regulatory authorities of network industries.