Vol. 15 No.6 (June 2005), pp.513-517
CONSTITUTIONAL GOODS, by Alan Brudner. Oxford: Oxford University Press, 2004. 464pp. Hardback. $135.00 / £70.00. ISBN: 0199274665.
Reviewed by Beau Breslin, Department of Government, Skidmore College, firstname.lastname@example.org .
Everything about Alan Brudner’s new book, CONSTITUTIONAL GOODS, is large. The language is broad and complex; the tone is serious and erudite; the sheer volume of pages (464) is sizeable; and, at a hefty $135.00 even the price tag is substantial.
But the largest aspect of Brudner’s work is its ambitiousness. Seemingly frustrated with the parochialism that characterizes discourse surrounding contemporary constitutional theory, Brudner attempts to synthesize competing paradigms in an effort to envision a new constitutional order. Too often, he says, scholars of liberal constitutionalism focus on the specifics of particular regimes and not on the features these constitutional traditions share in common. The consequence of such provincialism is that any “universal theory” of constitutional government has to be “analytical and formal rather than interpretive or substantive” (p.vii). In other words, any attempt to understand the broad contours of liberal constitutionalism—the substantive qualities that certain constitutions around the world share—is difficult. We can understand the “premises” upon which these constitutions exist or the “concepts” that they espouse, but we cannot articulate a deeper substantive thread, a “conception of justice in the exercise of political power that explains and justifies the common features [of liberal constitutions]” (p.viii).
According to Brudner, the broad aim of the book is to remedy that insularity by proposing a new model of liberal political order which proponents of vastly different constitutional frameworks will find appealing. His goal, in short, is to construct (dare I say it?) a meta-model, a higher or more complex model of constitutional politics than what is currently available. What this means is that Brudner takes the leading theories that explain most Western constitutional polities—libertarianism, egalitarianism, and communitarianism—and initially criticizes their first principles as somehow not adequately capturing the breadth of the modern constitutional project. So, for example, in the beginning of the work he takes aim at such luminaries as Ronald Dworkin and John Rawls, insisting that they and others “seriously misdescribe” the model of liberal constitutionalism. He claims that the neo-Kantian conception of justice, when viewed alone, cannot hope to portray the entire landscape of liberal-democratic order.
But, interestingly, Brudner is not quite ready to discard completely the theoretical scaffolding that supports most contemporary scholarship in this area. In fact, he insists that when viewed as part of a larger, more complex picture of constitutional politics the neo-Kantian vision can be illuminating. He claims that what he proposes is a more evolved [*514] conception of what Rawls and Dworkin are trying to articulate. What is interesting about the author’s plan, therefore, is that once he describes their individual flaws, he turns around and articulates a model that uses parts of each framework—each theoretical paradigm—in a coherent whole.
Brudner begins with a simple assumption: “there exists a model of the liberal constitution that can be studied on its own, as something distinct from existing constitutions” (p.1). His model (as the term suggests) is the conceptual ideal, the vision of a constitution that does not rely on extant documents but rather on what is possible if we explore the shared virtues of competing theoretical frameworks and the values of abstract theory itself. Informing Brudner’s central assumption is his recognition that “constitutional practice has outrun the prevailing theory” (p.21). That is, a thick conception of liberal justice requires that we expand our understanding of contemporary liberal constitutions as promoting the right over the good so as to acknowledge that constitutions now include certain “goals” and “social institutions”—goods in Brudner’s words—that have become significant state concerns. Consider the example of South Africa. Not satisfied with simply rooting particular individual freedoms in a bill of rights, the constitutional Founders in South Africa went further by “entrenching goals, [and] mandating state measures to enhance the status of indigenous languages, to prohibit unfair discrimination, to protect the environment, and to guarantee housing, health care, social assistance, and both a basic and a higher education” (p.21). The South African constitution is a liberal constitution by contemporary standards, but, says Brudner, it is not a traditional example. It differs precisely because it includes the concern for goods alongside the protection of rights; it seems to include both traditional libertarian values and less conventional communitarian ones. Thus we need a new theory of liberal justice, one that can account for the development of changing constitutional priorities.
Throughout, Brudner acknowledges what his critics will no doubt think. The logical consequence of looking more deeply at constitutional experiments that include both the protection of rights and an equal concern for social goods is that they cannot possibly be made compatible. Prioritizing the right over the good means that when individual freedoms conflict with promised state goals, a certain value-neutrality emerges. In contrast, emphasizing the good at the expense of the right often translates into a sort of tyranny of the majority, or, as he puts it, a certain loss of an individual’s “distinctive worth.”
But Brudner has an answer. He claims that constitutional theorists have articulated the liberal constitution as either a “simple whole” or a “mere plurality.” A simple whole is a vision of constitutional politics whose “parts are ordered to a single idea” (say, in Dworkin’s work, “an equal concern for citizens”); whereas a “mere plurality” is one where a group of independent values (liberty, equality, community, and so on) all compete for hegemony. Neither is ideal. What is preferred, Brudner insists, is his model of the liberal constitution that is best characterized by the idea of the “complex whole.” A “complex whole,” he claims, is one where values [*515] are “constituent” rather than “independent;” they act in unison rather than individually to promote justice. These values retain a certain distinctiveness—individual rights, after all, are not the same as egalitarian or communitarian principles—but they act together to support the polity’s paramount idea or conception. There will surely be times when the differing priorities of a constitutional polity exist in an uneasy tension, but at those moments Brudner argues that a polity must rank the values “according to how well they instantiate the inclusive idea” (p.28). A constitutional interpreter must first understand the polity’s “inclusive idea” and then, during those moments when tensions arise, advance the value that best aligns with that central belief.
The nature of Brudner’s model of liberal constitutionalism, therefore, is a complex whole consisting of three “paradigms of justice,” each of which conceives of a slightly different conception of freedom. The libertarian paradigm of justice, as described in Part I of the book, conceives of freedom as the individual capacity for self-direction or self-authorship. The book’s next section describes the second paradigm of justice—the egalitarian paradigm—which takes as a given the principle that one’s liberty is always in some sense regulated by custom or convention. The third conception of freedom, to which Part III of the book is devoted, is the communitarian paradigm, where humans recognize their capacity for self-authorship only by harmonizing libertarian principles with our dependence on the social institutions that surround them. Aided by the work of Hegel, the author thus describes the principal idea of public reason found in each of these separate paradigms. He then concludes by declaring the combination of all three conceptions of public reason is the complex model of liberal constitutionalism he originally set out to portray.
Certain problems arise from a synthesis of competing paradigms, and Brudner is attuned to most of them. He insists that his model must acknowledge that each paradigm has several component parts and that a synthesis of those parts may not be possible. But, just the same, he also asserts that each paradigm has a dominant theme and that a synthesis of those themes is most definitely possible. Secondly, he knows that he must be careful with the process of breaking down each paradigm individually and then building them up collectively: too much damage to the principle of one paradigm will make it less effective as a portion of his meta-model.
This is all abstract stuff, to be sure. In fact, CONSTITUTIONAL GOODS is one of the most abstract works of constitutional thought to hit the market in some time. That is both a blessing and a curse. On the one hand, it is not possible to conceive of such a multifaceted theory of constitutional government by inhabiting a single theoretical perspective. That is, after all, precisely what Brudner is trying to avoid. Thus, what is intriguing (and I might add most rewarding for the reader) is Brudner’s ambition—his willingness to challenge the predominant view that the three paradigms of western political thought are not naturally congruent. For him, the idea that these theoretical traditions can be united to envision a richer, more nuanced model of liberal constitutionalism is what is missing in [*516] the analysis of contemporary constitutional theory. I agree. On this score, Brudner’s book is an unqualified success. The author has admirably moved the discourse of constitutional thought to a higher plane.
However, the level of abstraction is also problematic. Like Brudner’s concern about integrating the essential, though smaller, components of each paradigm of justice into a broader and more cohesive view of liberal constitutionalism, readers may find it difficult to integrate his more delicate points into a larger intellectual framework. In other words, we might commend the author for the subtlety and sophistication of his many, many intellectual moves, but those moves, unfortunately, draw our attention away from the central thesis of the book. I found various sections contributing more tenuously than others to the general thrust of the argument. I suspect all scholarship does this to some degree, especially in the realm of constitutional and legal theory; but because of the level of abstraction throughout CONSTITUTIONAL GOODS, it seemingly happens more often here.
More damning perhaps is the author’s unwavering assertion that his model is not tied to any existing polity. There is a reason most contemporary scholarship within the arena of constitutional theory borrows, even slightly, from extant regimes: they lend a certain reality or credibility to the project. Brudner’s book suffers a bit because it is hard to imagine the model in practice. (In fact he even admits that although “anchored in liberal constitutional practice generally, the theory is not . . . tied to any particular text, national history, or legal precedent,” and thus “the theory of liberal constitutionalism presented in these pages is not recommended without adaptation to judges engaged in the everyday practice of constitutional adjudication” (p.xi)). Certainly, his book includes an impressive array of concrete illustrations that help reinforce his theoretical premises (most of which are borrowed from U.S. or Canadian court cases). But there is no illustration that helps us to see the entire model in practice. It is true that no perfect illustration exists; but what about the German Basic Law, or the Canadian Charter of Rights and Freedoms, or the South African Constitution, or the documents that compose the Israeli constitution? What about considering how these constitutions, or even multi-national constitutions, might advance the argument? Aside from the rare mention of some of these texts, there is no sustained discussion of their application to Brudner’s central thesis. Can these constitutional documents, with their allegiance to multiple theoretical paradigms and differing principles of justice, be at all helpful in illuminating the author’s general model? I don’t know, but I would have liked to see some discussion on this point.
In the end, CONSTITUTIONAL GOODS is a difficult but rewarding read. It sets an ambitious goal and comes close to achieving it. My fear is that the scale of the work—its highly sophisticated thesis, combined with its sheer volume and high price tag—will deter many from investing the effort to contemplate its importance as a vehicle that moves liberal constitutional theory in a new and exciting direction. That would be a shame; for it is reminiscent of another important but largely [*517] overlooked work of constitutional thought, James Tully’s STRANGE MULTIPLICITY. In the preface of that book, Tully anticipates the work’s inevitable obscurity. He writes, “In these dark and discordant times, I do not expect [this book] to move more than a few readers.” And yet he ends on an optimistic note: he insists that the only way to “lessen the darkness and discord” is to continue the dialogue, even if few are listening. Alan Brudner has continued the dialogue; we should all hope that he now exhibits that same fortitude.
Tully, James. 1995. STRANGE MULTIPLICITY: CONSTITUTIONALISM IN AN AGE OF DIVERSITY. Cambridge. Cambridge University Press.
© Copyright 2005 by the author, Beau Breslin.