Blog of the International Journal of Constitutional Law

Taking “The Dark Side” Seriously: Constitutionalism and the Question of Constitutional Progress Or: Why it is Fitting to Have the 2016 ICON-S Conference in Berlin (I·CON 13, Issue 4: Editorial)

Mattias Kumm, NYU School of Law


It is an obvious point that the global history of constitutionalism cannot plausibly be told as a simple progress narrative. The French and American Revolutions did not trigger an ineluctable steady march of progress. And the end of the Cold War did not bring about the realization of a world made up of liberal constitutional democracies integrated by a global rule of law.  Yet it is worthwhile to pause and think more closely about the different ways in which progress narratives might be misguided and in which ways they might not be. This might not only lead to a richer understanding of how constitutionalism relates to some of the calamities of the present, it might also point to a critical role that constitutional scholarship might play, and an apologist role that it should avoid playing. Such reflections appear to be particularly fitting in an I.CON editorial, as an occasion to think about the journal’s potential programmatic role.

To begin with, let me state briefly what “constitutionalism” refers to here and what gives progress narratives prima facie plausibility. The eighteenth-century revolutions in France and the United States brought into the world the emancipatory idea of free and equals governing themselves through law. The commitments to human rights, democracy and the rule of law – what I call the trinitarian grammar of the constitutionalist project  – has over time become a globally dominant paradigm for contesting and justifying law and its implicit claim to legitimate authority. Liberal constitutional democracies have become a global, even if clearly not universal or uncontested, phenomenon, having spread to every inhabited continent. Their foundational principles are effectively requirements laid down by international human rights law. Furthermore, there is a widespread recognition of a deep link between a commitment to liberal constitutional democracy and the idea of a rule-based international legal order, which was first analyzed in Kant´s Perpetual Peace and became subject to a considerable number of empirical studies by international relations scholars since the late 1990s.

Constitutionalism understood in this way is not just the disinterested study of the structures of organized power as Aristotle understood it, or of formal written documents in a positivist sense. It is the study of the idea of self-government of free and equals, developed as a constitutional commitment to human rights, democracy and the rule of law, as it is interpreted and specified across jurisdictions.  The study of constitutionalism is likely to be theoretically informed, comparative and integrate the international in some way. The contributions to be found within the pages of this journal in different ways reflect exactly such an understanding of the constitutionalist project.

If the following is a critique of progress narratives, it is nonetheless written from the perspective of a believer in constitutionalism and of the possibility of progress. If anything, that is what might make this contribution interesting. If one believes that all universal claims are best understood as masking particular interests and that there are no standards by which to assess progress, then obviously the idea of progress narratives is anathema to you and there remains little else to say. But what are the different ways in which constitutionalist progress narratives can go wrong, when taken seriously, from an internal point of view, the normative commitments underlying the constitutionalist tradition? And what does this imply for understanding the present and the role of constitutional scholarship?


One obvious way in which progress narratives tend to go wrong is that they leave out too much or inappropriately underemphasize what does not fit. Note how this is not just a question of historical craftsmanship, it is a question of judgment on what matters and what does not, what deserves emphasis and what can be relegated to the background. That is to a large extent a moral question. Nationalism, Empire and World War I are inaptly described as stepping stones to the reformist progressive era of the Inter-War Period. Fascism and the Holocaust are not simply a waystation on the way to European integration, the construction of the United Nations and the global recognition of human rights. The Cold War may be over, if we think of it as a series of proxy-wars between two superpowers with conflicting ideologies.  But its depraved nuclear posture of mutual annihilation is not something that has been genuinely overcome: we still live in the shadow of threats of mass atrocities that are built into military doctrines, weapons programs and budgetary apportionment of major powers. No nuclear power has a doctrine governing its use that would stand scrutiny before an impartial and independent international criminal tribunal. Finally, although the calamities of the present have not (yet?) given rise to the kind of conflagrations that characterized the low points of the twentieth century, the list is depressing (even if the recent Paris agreement on Climate Change also provides a ray of hope): the disintegration of major parts of the Middle East and the millions of casualties in terms of deaths, refugees and displaced persons; the slipping back or strengthening of authoritarianism and neo-imperial ambitions of powers like Russia, Turkey or China; the failures of the European Union and its delegitimizing implications following its poor performance in the aftermath of the financial crisis and the refugee crisis; the electoral triumphs and sympathies for the hard right parties and candidates not only in eastern Europe but also in the traditional Western heartlands like France and the US, and the list could go on. One would have to be a Pangloss or a Pollyanna to describe these calamities as the necessary birth pangs of a brighter future.


But progress narratives are not only insufficiently attuned to “the dark side” and its lingering presence in actual legal and political relations, they also tend to misrepresent the relationship between constitutionalism and “the dark side”. Constitutionalism as a concrete historical practice is often implicated with practices of domination and injustice. The pathologies of constitutionalism are often a contributing cause for resentment that breeds support for counter-constitutionalist political movements. The relationship between constitutionalism and those forces that are aligned against it are not plausibly described simply as the struggle between an enlightened educated citizenry and the misguided culturally and intellectually backward hoi polloi who struggle with the demands of modernity. The problem is not just that a part of the population has difficulties adjusting culturally and economically to genuinely open societies and competitive processes of globalization, problems that political entrepreneurs then exploit. This is a deeply complacent view and doesn´t get to the roots of the problem. In most actual circumstances where constitutionalism is in crisis, people are not just facing economic and cultural adjustment problems. They have good reasons to be concerned and have a plausible intuitive grasp that the system is skewed against them. And constitutional practices often play a central role in loading the dice, legitimating and entrenching structural pathologies.

Here are three contemporary examples (the list could be extended indefinitely), showing how constitutional doctrines, institutions or arguments are connected to the perpetuation and legitimation of structural injustices. 1. Think of the US Supreme Court case of Citizens United v. Federal Election Commission and campaign finance in the US. The amount of money a candidate raises is followed nearly as closely as the latest poll numbers, and candidates generally spend more time speaking to the super-rich to raise money than either on the stump or participating in legislative activity. 2. Think of the strange fact that within six months in 2008 during the financial crisis the European Commission, according to Commission statistics, authorized 4.5 trillion Euros in state aid to banks – that is roughly 30% of the EU´s annual GDP in a context where the whole of the EU´s budget is effectively frozen at roughly 1% of European GDP. And then think of the energy used to ensure that struggling states, after having nearly bankrupted themselves bailing out banks, are subjected to a “structural adjustment” and austerity regimes affecting disproportionally those worse off. Here the EU functioned as a flexible enabler when it came to rescuing banks and as a hardhearted (and some would argue, softheaded) proverbial Swabian housewife when it came to budgetary austerity. The intergovernmental structure of the political process as well as other constitutional constraints made it politically impossible to articulate competing European agendas that could marry serious financial market and banking regulation reform with budgetary rules and European solidarity through some level of tax and spending measures. Is it surprising that more citizens are becoming Eurosceptics and think the EU is a scam of the privileged, against which ordinary citizens need to protect themselves?  3. There is little doubt that ISIS would not exist in anything resembling its current form if the failed war of a mostly Western coalition of the willing against Iraq had not taken place (or, alternatively, if the Iraqi army had not been disbanded or if the Obama administration had been happy to further extend non-negligible US troop presence in Iraq). The strong position of ISIS in Libya, too, has been made possible by NATO´s military intervention there. In both cases, humanitarian or democracy based arguments played a central role in justifying these actions, enabling powerful actors to wreak havoc without any legal means to hold them accountable for their failures or require sustained engagement.

In all of these cases constitutional doctrines, constitutional structures or constitutionalist arguments played a central role in strengthening “the dark side” – the “other” of human rights, democracy and the rule of law. Constitutionalism in practice, then, is not always on the side of progress.  It is sometimes complicit in the concrete injustices and forms of domination it more abstractly claims to want to abolish.

I do not share the view according to which the problem is somehow inherent to constitutionalism as a universalist project. Of course, constitutional norms, like any norms (not just universal norms) are susceptible to being abused, self-interestedly misinterpreted or otherwise misunderstood. That danger becomes more serious when powerful actors stand to gain or lose from different interpretations or specifications of abstract norms and capture the process of their interpretation or their specification in political processes. But unless one is willing to embrace the intellectually dubious and psychologically juvenile position (apologies to Nietzsche and Foucault) that law is all about power anyway , the fact that there is such a danger merely calls for vigilance in the form of an appropriately critical attitude.  Such a critical attitude takes an internal point of view with regard to the commitments of principles inherent in the constitutionalist tradition. It insists on critically reflecting on whether the specifications and concretization in the form of specific norms and actions are in fact justifiable under the best understanding of these principles, as they apply in the relevant context. In other words: all of the examples referred to above can and have been criticized drawing on the resources the constitutionalist tradition makes available. Constitutionalism, as a normative practice, has considerable capacities for self-reflection and self-correction in virtue of its foundational commitments to human rights, democracy and the rule of law. If Joseph Raz is right and law makes a claim to authority, in the constitutionalist tradition law itself provides the critical standards for assessing whether such claims are justified in concrete circumstances. Once those reflexive capacities are recognized, constitutionalism can serve not only the purposes of doctrinal reconstruction, but also reveals its potential for a principled critical orientation. In a world where constitutionalism has effectively gone global, constitutionalism becomes a general critical theory of law that is internal to the law.


Let me now turn to a third way in which progress narratives tend to obscure rather than illuminate. It introduces some level of skepticism about the claim that progress is the result of collective moral learning, emancipation or enlightenment. If we have a move from point A to point B and we can plausibly characterize that move as progress from an enlightened constitutionalist point of view, then we should not be too quick to assume that genuine moral learning has taken place.  A more skeptical account may insist that other factors account for the change: What may appear as constitutional progress might thus be accounted for just as or more plausibly as responsiveness to economic or military imperatives. Constitutional progress may often turn out to be the result of a “dubious coalition” of factors. Progress is not pure. We should be careful not to be too confident about its stability, once the underlying economic or military imperatives change.

To illustrate the problem I will refer to the rich and subtle article by Ruth Rubio-Marín in this issue, which she presented as a keynote lecture at the 2014 inaugural ICON-S conference in Florence in 2014, and which I had the pleasure to comment on. Prof. Rubio-Marín tells the story of what she calls the “disestablishment of gender”. It describes how constitutional norms through much of the West in the early twentieth century establish a “separate but equal” regime relating to gender, enshrining a gender-specific conception of citizenship for each of the sexes. This conception was challenged in the 1970s in different ways in the US and Europe, but has moved to genuine gender parity only more recently in the past twenty years. The piece is descriptively strong and retains a critical edge: Prof. Rubio-Marín points out that in none of the main jurisdictions focused on in her account – Germany, Italy and the US -the idea of full parity has yet been plausibly institutionalized.

Its weakness, however, concerns the explanatory dimension. What accounts for the evolution she describes? There are many passages that highlight the activities of engaged citizens and activist groups. And to be sure, the kind of changes Rubio-Marín highlights are unlikely to have been brought about without political activists and the educational input they provide. But given that ideas of gender parity – in the full modern sense – have been around for a long time, what accounts for the specific constitutional evolutionary trajectory of the story she tells? Why was it that women made no appearance in constitutions pre-twentieth century? Why is it that women were generally recognized as entitled to equal citizens rights, including the right to vote, mostly between 1918 and 1945, while still being confined to their distinct social roles as mothers and wives? And why were women recognized as equals in the working space (even though that took different forms in the US and the EU) by the 1970s, with genuine parity recognizing the value of reproduction and care more generally only becoming prevalent after the 1990s?  Of course the causal story is likely to be complex in all of these cases and may vary across jurisdictions. What I would like to do is to introduce a different explanatory variable, just to explore its prima facie plausibility: the changing idea of sacrifice for the body politic as central for the understanding of what it means to be an equal citizen within the constitutionalist project.

In the eighteenth and early nineteenth centuries women simply did not appear as a concern in constitutional law. The fight was against hereditary privileges and clerical power, with gender issues not looming large (even though they were part of the mix). During the nineteenth century constitutionalism was increasingly imagined through nationalist prisms and, in that context, the idea of the draft and the citizen soldier, willing to sacrifice himself for the body politic, became central to what it meant to be a citizen. Since women were not drafted and were thus not part of the sacrificial community they were not generally recognized as full citizens, and did not have the right to vote. So why did this change in so many places in the period between 1918 and 1949? What happened that made it more plausible to recognize women´s right to vote? There were two mutually supportive developments, both connected to the total mobilization of industrialized warfare in WWI and WWII. First, total mobilization required all productive resources to be made available to the war effort. This meant that women had to join the workforce in times of war, often taking positions previously held by men. Second, the incredible human toll of drafted soldiers meant that the biological reproduction of the fighting forces became a central concern. The reproductive perpetuation of the body politic became a distinct and central civic duty that women were to fulfill. Women thus served as surrogate (not equal) workers in the industrialized workforce. And they fulfilled their genuinely civic duties in perpetuating the body politic as wives and mothers. Besides their work in the factories, their losses as wives and mothers became the focus of recognition. In Belgium the right to vote for women was at first limited to those women who had lost either husbands or sons in the war. And think of Käthe Kollwitz’ Pietà in the “Neue Wache” Unter den Linden opposite the rebuilt Imperial Palace: a mother mourning the death of her son as the central monument commemorating the deaths resulting from war and tyranny. Men kill and die, women give birth and mourn. Both have their separate but equal roles to play as citizens.

The recognition of women as equal citizens, but with functionally differentiated social and biological roles, was the prevailing practice until the 1970s. So what changed then, to allow for the success of equality also in the domain of markets and employment more generally? The answer, I believe, is closely connected to the devaluation of the link between citizenship and military sacrifice since the late 1960s. In the US the Vietnam War brought about serious challenges to the draft. Are soldiers performing their civic duties or are they just useful idiots doing the bidding of those who happen to be in charge serving as willing executioners and cannon fodder? In Germany this was the time when sons asked their fathers and grandfathers what they did in WWII. Weren´t they, too, criminals if they had fought for a criminal regime? Might not the image of a responsible authentic citizen take the form of a conscientious objector, practicing civil disobedience? If citizenship was about being a critically engaged participant in the political process rather than an obedient soldier or an obedient wife,, then existing differentiation of gender roles would begin to appear less natural and obvious. The constitutional spread of of gender equality was only possible with a shift in the political imagination that divorced the idea of citizenship from physical sacrifice and the physical perpetuation of the body politic.

The move to gender parity since the late 1990s and the full recognition of care and reproduction as valuable activities to be performed by either gender are supported by two important shifts. First, with the tendencies to abolish military service across the great majority of NATO countries after the Cold War the link between sacrifice and citizenship was further weakened. The liberal constitutional democracies that still draft soldiers to fight appear to be those that are facing actual territorial threats from their neighbors: Israel, South Korea and (if one counts generously) Ukraine. In the US the bad conscience of the majority of citizens in sending professionals to die for money in discretionary wars is to compensate them with an inflationary understanding of what it means to be a hero. It now appears enough to wear a military uniform to qualify.

But there is a second factor to explain the move to genuine parity that comes with its own ambivalence. The equal valuation of care and reproduction comes at a time when both care and reproduction have, to some extent, become commodified. Even though differences persist across jurisdictions, surrogate motherhood, the selling of eggs and the donation of sperm has become an industry, as has the tendency to outsource childcare. At the same time, citizenship itself has become a commodity: money can effectively buy citizenship in most countries. In that sense the idea of gender parity, and with it constitutional progress, appears to be supported by neoliberal tendencies that pose their own dangers to the constitutionalist project.


I have argued that there are three pathologies of progress narratives that obscure a deeper understanding of the dynamics of the constitutionalist project. First, the “dark side” tends to be glossed over too quickly. Second, the historical complicity and involvement of the constitutionalist project with the injustices and practices of domination it claims to overcome is not recognized. And third, the frailty of progress is underestimated: an account of moral learning, emancipation and progress is foregrounded and the various underlying causes for it, some of them in tension with constitutionalist principles, remain unacknowledged in the background. None of this suggests skepticism about constitutionalism or about the possibility of progress. But it emphasizes how hard it is to achieve it and how frail it might be, even when it is achieved. Constitutional scholarship would do well to be aware of these complexities.

So what makes Berlin a good place to hold the 2016 ICON-S conference? There is hardly a better city for one to become aware of the complexities and frailties of constitutional progress. Berlin was the relatively liberal Prussian rule of law oriented place, where Voltaire sought refuge as a guest of Frederick the Great. It is also the place where the idea of a liberal constitutional democracy in a unified Germany was buried after the failed constitutional revolution of 1848. When German unity was finally achieved in 1871 and Berlin became the capital of the new German nation-state, this was brought about by conservative, industrialist and nationalist political forces that had little connection to the constitutionalist tradition. When the deeply reactionary but subtle and gifted diplomat Bismarck stepped down in 1890 and a proud and ambitious young Emperor sought to demand a place in the sun for the new great power that Germany was becoming, it took another 24 years before the first great twentieth century dance of death began in Europe. Yet it was during this time – between 1890 and 1914 – that the basic structure of the modern city of Berlin was established, including the many “Altbau” apartments that are so popular with the bourgeois bohemians who like to populate the city today. After the disaster of WWI, Berlin became the center of avant-garde art, theatre, cinema and literature in the Weimar Republic – the vibrant capital of a frail liberal constitutional democracy, whose mainstream parties would be derided as “system-parties” by the radical right and the radical left and no longer commanded a majority by the early 1930s. Even though the Nazis never won electoral majorities in Berlin, the city became the heart of darkness for twelve years, the center of an evil empire that orchestrated a global war and moved genocidal annihilation to an unprecedented industrial scale. After that nightmare which also led to the destruction of significant parts of the city, Berlin started a new troubled life as ground zero in the Cold War – the nation divided between East and West, with a wall eventually running right through the city. Today Berlin is a place that provides a distinctively German interpretation of what it means to be a cosmopolitan European. The past is very much present in a sophisticated culture of commemoration, from the remarkable Memorial of the Murdered Jews in Europe beside the Brandenburg Gate– a self-inflicted huge scar on the face of the city – to the conserved bullet-hole riddled buildings in Mitte, to “Stolpersteine” – gold-plated stones with the names of the Jews deported to concentration camps to be found in the pavement in front of the houses they used to occupy. Yet notwithstanding the omnipresence of the past, it does not hold hostage the vibrant present or deny the possibility of a better future. Berlin is a perennially bankrupt city (“poor but sexy”, as a previous mayor insisted) that would not dream of shutting down one of its three heavily subsidized world-class operas. It is one of the few growing cities in Germany, with the highest Jewish population growth rate in the world, and while it lacks the class and style associated with Paris or the presence of a globalized bourgeoisie as in London, New York, Singapore or Hong Kong, it provides Germans, Europeans and other citizens of the world with an unrivalled context for reflections on depravity, tragedy, redemption and the possibility of progress.


In this Issue

This issue offers a particularly rich array of innovative scholarship. The issue opens with a Keynote by Ruth Rubio Marin on the disestablishment of gender roles, a notably under-researched area in constitutional law. The Keynote was originally presented at the ICON-S conference in Florence in 2014.

In our article section, Rosalind Dixon explores the two options of a detailed approach and a more “framework”-style approach when it comes to constitution-drafting, drawing on case studies from South Africa and India. The next contribution, by Neophytos Loizides and John McGarry, draws on the experience of Cyprus to argue that so-called proportional sequential coalitions can provide negotiable settlement in divided societies.

This issue continues with a Symposium entitled “Who Supports International Law, and Why? The United States, the European Union, and the International Legal Order”, opening with an introduction by Mark A. Pollack. The symposium explores and questions the conventional wisdom that the United States and the EU hold contrasting positions when it comes to the question of support for international law. Following the introductory piece, which also functions as a framework paper for the symposium, five issue-areas and one transversal issue are examined in the other contributions: the topics of human rights, criminal law, trade, the environment, and the internalization of international law by the highest courts of the US and the EU.

We continue this issue with two I.CON Debates. The first Debate revolves around a contribution by Aileen Kavanagh, in which she presents a critique of Mark Tushnet’s distinction between “weak-form” and “strong-form” judicial review. In his Reply, Stephen Gardbaum responds to this critique. The next Debate centers on Mark Tushnet’s article on “Constitutional revolutions and the constituent power,” which appeared in our 13:3 issue. In his Reply, Jan Komárek explains why he does not find this account convincing. Mark Tushnet defends his position in a Rejoinder.



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