Vol. 4, No. 2 (February, 1994), pp. 27-29.
CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY
WORLD by Douglas Greenberg, Stanley N. Katz, Melanie Beth
Oliviero and Steven C. Wheatley (eds.). New York: Oxford
University Press, 1993.
Reviewed by Gary Jeffrey Jacobsohn (Williams College)
The extraordinary political and constitutional changes of the
last several years form the backdrop to this collection of
essays. Originally prepared for presentation and consideration at
a series of international conferences organized by The American
Council of Learned Societies, the twenty-five essays in this
volume reflect the underlying premises of the project's planners,
"to see constitutionalism, not just as a formal state
structure, but also as a dynamic process" that lies at
"the crossroads of law and society, culture and history,
economics and politics." (p. xvi) It was also consciously
designed to deemphasize the all too familiar practice of focusing
on the American example as the yardstick for assessing the nature
and scope of constitutional transformation. Reflective of this
intent, only two of the book's contributors are American.
While surely the most dramatic recent constitutional transitions
have occurred in Europe, the former Soviet Union, and South
Africa, the majority of the essays, in addressing common concerns
about constitutionalism, concentrate on Africa, Latin America,
and South Asia. There is a section devoted to
"Constitutional Conundrums in Europe," but it is
overshadowed by preceding sections on "Transitions,"
"Human Rights," "Pluralism and Nationalism,"
and "Institutional Arrangements," that deal
predominantly with constitutional challenges in the developing
world. Having said that, I hasten to add that this volume conveys
the unmistakable sense that some of the distinctions often made
between developing and developed polities in connection with
issues of constitutional transformation, should be seen to be
less sharply drawn and definitive in the new post-Cold War
environment. For example, the vexing set of constitutional
dilemmas posed by the intensity and ferocity of tribal loyalties,
always at least dormant in much of the developed world, now
resembles in importance and priority the situation of third world
nations that are attempting to forge a constitutional future.
Insofar, then, as the reader's interests are mainly concerned
with what is happening, say, in Eastern Europe, engagement with
the issues emphasized in this book will certainly not be
misplaced.
If there is a common thread to these essays, it is what the
editors refer to as "the ambiguous relationship of
constitutionalism to democracy." (p. xviii) They wonder, as
many have previously, whether constitutionalism is "bound by
the cultural-political values of western liberal
capitalism." (p. xviii) Familiar though it may be, their
question cannot be relegated to the category of tired old
refrain, its particular timeliness now apparent to any
knowledgeable person with eyes to see. This is made clear in
Walter Murphy's introductory essay, in which he usefully
considers the strain between constitutional theory and democratic
theory, a tension that for all the heat it generates, can still
be construed as a debate occurring within the family. Murphy's
defensible claim is that both of these theories accept the
centrality of human dignity, which suggests that there is a broad
range of possible regimes that should be considered genuinely
constitutional. As long as power is exercised and limited in a
manner that in the end comports with human dignity,
constitutionalism may be said to prevail.
But as we are reminded in a very stimulating essay by H.W.O.
OkothOgendo, there are "constitutions without
constitutionalism," (p. 65) an observation endorsed in a
subsequent essay by Atilio A. Boron with respect to Latin
America. As introduced by Okoth-Ogendo, this formulation applies
to certain African polities where the constitution serves mainly
to demonstrate the sovereignty of the state, but where no
particular heed is paid to democratic or libertarian
sensibilities. This theme is amplified in the South Asian context
by Radhika Coomeraswamy, who lucidly explains the importance of
the ideology of constitutionalism to authoritarian regimes.
Perhaps the most intriguing question raised by this volume is
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whether the same appellation should not also be applied to those
constitutions that purport to be democratic, but do not conform
to liberal democratic notions of constitutionalism. How broad, in
other words, SHOULD the range of genuinely constitutional regimes
be? Or put another way, how much latitude is appropriate in
assessing the relationship between constitutional arrangements
and human dignity?
Two familiar sets of circumstances provide the main testing
ground for illumination of this question. The first focuses on
questions of economic development and the issue of whether
political and civil rights should be privileged in a
constitutional order. Several authors question the
appropriateness of the western model for developing countries. By
"western" they mean that it is "bourgeois"
and "liberal" (Mahmood Mamdani, Eboe Hutchful, p. 184),
that "constitutionalism is largely a middle class
project" (Daniel S. Lev, p. 152). While there is very little
new here, the arguments put forward in these chapters are worth
revisiting, if for no other reason than that they force one to
confront what turns out to be largely a false dichotomy, namely
that negative and positive liberties pose a real choice as far as
strategies for constitutional development are concerned.
Elsewhere, for example, Amartya Sen, has made a powerful case for
the constitutive importance of political rights by demonstrating
that the conflict between civil rights and economic performance,
often presumed in constitutional analyses like the ones adverted
to above, rests on dubious empirical grounds. If there is a
connection between human dignity and individual rights, his work
suggests that constitution makers should not short-change the
latter because of misapprehensions about anticipated sacrifices
of social well-being. This is not to say that liberal
constitutionalism guarantees social justice, and Sen for one
worries about the needs of distinct and particularist minorities
in regimes that are structured along the lines of western-style
democracy. This brings us to the second and most promising arena
for constitutional analysis featured in this collection: the
possibilities for a multicultural constitutionalism that is more
than a little equivocal in its commitment to traditional liberal
principles of constitutional governance. These possibilities
encompass a substantial range, from a rather weak constitutional
acknowledgment of group rights to an endorsement of communal
autonomy that is so robust that it encourages secession as a
solution to problems of injustice. The latter position is
forcefully articulated in an essay by Abdullahi AnNa'im that
identifies constitutionalism with "self-determination."
(p. 122) This constitutionalism is committed "to the
preservation and enhancement of the life, liberty, and dignity of
every person, individually AND IN ASSOCIATION WITH OTHERS."
(emphasis added, p.106 ) Thus at its core constitutionalism
should be understood as aspiring to achieve an appropriate
balance between individual and associational rights. The
nation-state should not stand in the way of national
self-identity; hence the constitutional solution must entail a
framework for the full expression of the various distinctive
cultural identities that are included within the larger polity.
The solution must also be adapted to the unique circumstances of
a given social system, and in this regard An-
Na'im expresses a theme common to several of the essays in the
volume, what might be called the non-transferability of
constitutionalism. Coomaraswamy, for example, uses the term
"indigenous constitutionalism" (p. 170) to convey a
sense of how liberal democratic values require transformation
within a context of cultural nationalism. A moment's reflection
on Yugoslavia should deter any reasonable person from succumbing
too quickly to the enticements of constitutional cultural
pluralism. That said, I consider it a great virtue of this book
that it encourages us to consider the phenomenon of illiberal
constitutionalism, or at least a constitutionalism that involves
a genuine mix of universalistic and particularistic principles
that do not conform to the expectations of those whose experience
has been shaped by the theory and practice of liberal politics.
Indeed, the most important challenge in contemporary
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constitutional theory is to generate imaginative conceptual
responses to the emergence of a revitalized primordialism that
threatens the most minimal standards of human dignity. Whatever
the flaws in the somewhat tentative efforts included in this
collection, taken together they represent a valuable preliminary
contribution towards that end. One final note. The unusually high
number of "typos" in this book is egregious. Oxford
University Press should be embarrassed to release such a woefully
edited product.
Copyright 1994