Vol. 21 No. 7 (July, 2011) pp.446-452
CONSTITUTIONAL SENTIMENTS, by András Sajó.
Yale University Press. New Haven and London, 2010. 400pp. Hardcover. $ 75.00.
ISBN: 9780300139266.
Reviewed by Bogdan Iancu, University of Bucharest, Faculty of Political Science.
Email: bogdan.iancu [at]
fspub.unibuc.ro.
Modern constitutionalism, as we know it, is a creation of the Age of
Enlightenment. Of course, wholesale references to the Enlightenment obfuscate
the ambiguous and metonymical character of the term and phenomenon. Both elude
doctrinaire reductions and stand as proxies for a congeries of irreducible and
often contradictory ideas and tendencies (see Stollberg-Rilinger 2000).
Nonetheless, caveat aside, the dominating philosophical/ideological theme of the
eighteenth century is an adamant belief in human reason. Slightly
oversimplifying, according to the main tenet of this new-found faith in
rationality, human reason unaided and unabetted was to reign supreme, freed from
the fetters and props of all forms of antiquated prejudice and irrationality
(see Cassirer 2007).
Needless to say, human reason as such and unwavering belief in it are two
somewhat different matters. One needs only cursorily glance through Kant’s 1784
manifesto and, behind the cold and unassailable logic of the argument, a subdued
yet strong emotion is immediately apparent: the quasi-religious enthusiasm with
which the philosopher urges decanting human thinking powers, to liberate reason
from all past hindrances. The famous Kantian formulation is ‘walking aids’ (“Gängelwagen”
der Vernunft): once redundant
prostheses are removed, reason could stride freely and its march would in turn
liberate mankind from its
limitations. To his French contemporary, the Marquis of Condorcet, the future
progress of this rational humanity was not only unavoidable but also limitless.
From the vantage point of Gallic panache, the achievement of immortality itself
seemed only a matter of time (Condorcet 1988).
The normative constitution is commonly believed to reflect emphatically these
intensive, Enlightenment-derived demands on and of rationality: it is, unlike
its older, ‘descriptive’ counterpart, a purposefully contrived, unitary
juridical codification of the major rules governing the polity and
predetermining the legal system (Grimm 1988). Indeed, from a juridical
standpoint the fundamental law literally constitutes the legal conditions of the
possibility of the state. Namely, the modern, written, normative constitution
replaces older, “external” criteria of legality and legitimacy deriving from
natural law and natural right with “its own transcendental-theoretical kernel of
self-referentiality evinced by the reflexive reason (die
sich selbst beurteilende Vernunft)” (Luhmann 1990, at 187).
András Sajó’s most recent book challenges very elegantly and originally this
common general assumption of rationality-dominated constitutionalism [*447] (at
least in its extreme form) and the reason-emotion opposition that underlies the
dominating paradigm of the “prevailing regulatory model.” Constitutions, Sajó
maintains, are also shaped by sentiments and by the same token contribute
considerably to the regulatory molding of collective foundational human
emotions. Hence, the “inclin[ation] to find emotional considerations improper …
perhaps referring to the rationalistic legal maxim that our system stands for a
government of laws, not men” (p.78) must be carefully qualified.
CONSTITUTIONAL SENTIMENTS consists of seven chapters or rather parts. The
argument, albeit coherent as a whole, does not follow a linear structure and
conspicuously (perhaps regrettably) lacks a conclusion; it ends rather abruptly
with a few chapter-pertinent remarks regarding the social limitations of
constitutionally institutionalized shame. The first part (by far the longest)
constitutes the methodological-conceptual backbone of the volume and provides
the reader with an introductory chart of the road “from emotions to
constitutional sentiments.” Public sentiment, as we are shown, is structurally
different from the “individual [moral] emotions that constitute it: it is more
than their aggregation” (p.20). Public sentiments can have a foundational role
at the moment of constitution-making and continue to influence the development
of constitutionalism after the enactment of a constitution (p.75). This is a
two-way road: “Once the initial selection of public sentiments is in place in
the constitution, the choices will begin to influence both legal decisions and
the public sentiment in its constant formulation. The institutions of the state
can directly (through display rules) and structurally (by institutional
arrangements that shape human relations) shape emotions and their interaction in
public sentiments.” (p.52). A particularly interesting sub-chapter --
epistemologically unavoidable in the economy of Sajó’s delicate emotion/reason
dialectics -- refutes deterministic views and wholesale generalizations
(naturalism and universalism). While the author stresses that universalism is
intellectually superior to relativism (p.68), he is pragmatically skeptical (and
somewhat ambivalent) as to assumptions of universality of human-rights-inducing
or –animating emotions and moral intuitions: “Localization is the predicament of
homo sapiens. All people condemn humiliation, but humiliation means different
things to different people ….
Instead of imperative universalism, we have an empty overlap and agreement
without content” (p.62). Sajó’s social-scientific model of constitutional
sentiments is social-constructivist. Methodologically, his theory is professedly
descriptive (p.80).
The following six chapters are distinct historical-thematic explorations of the
interplays of reason/emotion and constitutional law/constitutional sentiments.
In the first two (Chapters 2 and 3) the historical dimension prevails. Chapter
four, exemplifying the role of empathy with the British and American
nineteenth-century stories of abolitionism, marks a fine transition from
constitutional history to the primarily conceptual focus of the final three
parts. These latter chapters (Chapters 5 through to 7) are organized primarily
conceptually, around a [*448] dominating theme: freedom of expression between
reason and emotionalism; the containment of emotionalism in the case of freedom
of assembly; and the role of constitutionalized collective shame, respectively.
The second chapter (A SENTIMENTAL DÉCLARATION OF THE RIGHTS OF MAN) is a brief
but magisterial application of the author’s general intuitions to the story
behind the adoption of the 1789 French Declaration. Sajó manages to bring the
reader into the general atmosphere of the Assembly by historically recreating
the general emotional background of its debates: fear of the precipitous events
outside Paris, pressure from the gallery, execrable acoustics making reasonable
communication close to impossible, the cascade of fragmentary and overlapping
emotions animating the speakers (the vanity mixed with repressed inferiority
complexes, jealousy, hatred, and parvenu
frustrations of the Third Estate delegates, the magnanimous elation of the
nobility renouncing its former privileges (overshadowed by fear and mistrust),
general hysteria, etc.). At the close of this fine chapter, one is persuaded
that most of the constitutional rules previously deemed a deliberate creation of
abstract rationality emerged in fact primarily as a contingent by-product of
clashing collective emotions. According to Sajó’s reconstruction of the events,
the abolition of feudalism and the final aggregation of rules forming the
“pillars of modern constitutionalism … legal equality, general and proportionate
taxation, administration of justice without financial charge, access to public
office, and the rule of law” (p.102) erupted somewhat haphazardly from “a
melting pot of shared emotions.”
The next part “THE GREATEST OF ALL REFLECTIONS OF HUMAN NATURE”: THE
CONSTITUTION OF FEAR seeks to substantiate the claim “that constitutions reflect
a selection of the emotional experiences of a given community” (p.114) with the
example of the American Philadelphia debates. Here, the success is somewhat
mixed, due to the methodological/epistemological dissonance which underlies the
argument. The author draws extensively on the findings of psychology and
neuroscience to show that “the meanings attributed to events are structured in
emotional terms” (p.123), stored as “cold sentiments,” and can be transmitted to
others, long after the event that initially caused the sentiment, by way of
‘mirror’ neural processes. In closed gatherings, such as a constituent
committee/assembly, due to various cognitive biases, these processes are
amplified or distorted. I was afraid then (hot fear), I now ‘remember’ being
afraid (cold fear), I transmit/project this fear unto you: “If one sees other
people being afraid, it makes a lot of sense to be afraid. Once fear became the
prevailing emotion among the 1787 or 1789 drafters, this spread ultimately to
define the mood and common language” (p.125). The conjoined historical
description of American constitution-making (pursued in much less detail than
the preceding French counterpart) does not fully do justice to these
assumptions. Arguably, the examples provided by the author may just as well be
attributed to healthy, rational, pragmatic foundational skepticism. One does
need fear, hot or cold, for a doubtful anthropological [*449] profession of
faith (e.g., James Madison’s famous quip that “every man must be supposed a
knave”). Professor Sajó’s observations are all interesting in their own right
and the chapter brims with thoughtful remarks regarding the role of cognitive
biases and the foundational scope of emotions. The reader of the DEBATES will
however be left in equipoise as to whether the 1787 Constitution is the product
of structurally controlled “cold fear” or – as generally assumed — that of calm,
stately, composed deliberation on the constitutional dictates of human nature.
Few transcriptions of collective debates read more like a(n extremely high
level) post-graduate seminar or detached professorial debate in constitutional
theory.
Chapter 4 (EMPATHY AND HUMAN RIGHTS: THE CASE OF SLAVERY) tells a fascinating
emotional-constitutional story of abolitionism as an account of empathy
functioning against the grain of reason: “the history of abolitionism is the
history of the failure of applying the abstract concept of liberty. Abolition as
it happened was more an ad hoc reaction to suffering” (p.193). Namely, while the
circumstances did not permit the operation of empathy, French and American
revolutionists could ignore slavery while simultaneously professing love of
humanity, natural rights, equality of mankind and such like. Empathy blockers
and sheer hypocrisy (defined with flamboyant sarcasm, at p.154 as “the way to
cope with the injustice our world produces”) fulfilled admirably, for a long
time, the function of reducing cognitive dissonance. In the course of the
“sentimental [nineteenth-]century,” once the “cognitive preconditions for
raising the issue of injustice” were slowly eroded, empathy could prevail over
conflicting sentiments and finally function as a constitutional sentiment
proper, instrumental in securing the abolition of slavery. It was, we are told,
not simply a matter of intensity of collective feeling, but also of economic
growth and consequent “affordability of compassion”: “Where there is no
alternative there is no problem” (p.173). Material preconditions merged with the
religiously-based organizational capacity to mobilize, structure, and channel
the emotional predispositions of the age into readiness for action based on
constitutional sentiments: “Emotions have to cluster into public sentiments, and
such clustering needs social actors with sufficient organizational capacity”
(p.177).
FREEDOM TO EXPRESS WHAT?, as already adumbrated in the chapter title, questions
the foundational, overarching liberal tenet that speech is protected
constitutionally as freedom of rational expression: “Free speech appears in many
regards as an anti-emotional institution, a successful separation of reason from
emotion” (pp.195-196). As Sajó argues, however, the expression (and
implications) of emotion and, respectively,
reason are not so easily and neatly separated. He defends nonetheless the
obfuscation of the affect/cognition disjunction via “the risk taking assumptions
of the rationality paradigm” as an intellectually-flawed but pragmatically sound
and commendable form of constitutional heuristics: “Free speech is not about the
lack of intense emotion generation, though it is to a great extent a categorical
tool to disregard emotions” (p.215). Departures from the rationality paradigm
are [*450] castigated in the course of a closing discussion of the Danish
caricature crisis and conceptually germane European human rights judicial
developments (the ECtHR Otto-Preminger case). The writer deplores with a fair
degree of pessimistic resignation (the causes of the changes are described as
irreversible and global-systemic, thus inescapable) current cultural-emotional
counter-currents to the rational paradigm of free speech. An excerpt is well
worth quoting at some length: “The strong constitutional bias in favor of
(offensive) free speech is based on the empirically sustained assumption that
emotions can be institutionally channeled and contained. People learned to live
with speech that hurts and even with the destruction of taboos. But now … [t]he
emotional preconditions of constitutionalism – emotional restraint — are absent.
The West is not in a position to determine the social construction of emotions
in different cultures and political regimes. It has difficulties with the
management of intensive emotions even at home” (p.244).
THE CONTAINMENT OF PASSION: ASSEMBLY, RELIGION, AND POPULAR SOVEREIGNTY tackles
a germane constitutional problematic: how to conceptualize assemblies (crowds,
that is) in a rationalized paradigm and how to tame or contain collective
passions which are by definition always on the brink of irrationality. It deals,
that is, with constitutionally “contained irrationality” (p.268). Originally, in
the history of English constitutionalism, assembly was fused at the hip with
petition; only with the Civil War one catches a pallid glimpse of the future
modern assembled mob. Parenthetically, in Clarendon’s HISTORY OF THE REBELLION,
there is a somewhat chilling passage showing how the emerging press and
manipulation by information was beginning to bring about a whole new age: “This
and such stuff being printed and scattered amongst the people, multitudes of
mean people flocked to Westminster Hall and about the Lords’ House, crying, as
they went up and down, 'No bishops, no bishops,' that they might carry on the
reformation.” (Clarendon 1826, BOOK IV, p.84). Sajó traces the constitutional
genealogy of the right to free assembly (it may in passing be said that the
originality of the supporting historical/theoretical research is particularly
worthy of notice) and points out a very interesting peculiarity. On the one
hand, the initially repugnant and fearsome 18-19-century gathering mob
progressively became a constitutionally respectable free assembly, due primarily
to the evolution of the policing, i.e., the development of more preventive, less
brutal means of advance control and containment. One the other hand, the initial
paradigmatic forum of discussion and deliberative decorum, the parliament,
degenerated in regressive lockstep (also due to the evolution of the modern
state and the ensuing rise of mass democracy, Moloch-like party apparatuses, and
associated media structures) into an emotionally-driven and emotion-speculating,
‘mob-like’ phenomenon. The two developments are to a certain degree mutually
reinforcing, says Sajó. When “government by suggestion” replaces “government by
discussion”, demonstrations are no longer collective irrationality incarnate but
rather legitimate “alternative forms of genuine popular participation in a world
of faltering representative and mediatized democracy” (p.257). [*451]
The last part of the book, SHAME: ON HIDDEN CONSTITUTIONAL SENTIMENTS discusses
the sentimental and social preconditions of “constitutional shaming,” i.e.,
“redress of injustice through institutionalized shame.” Shaming by means of
constitutional affirmation/negation of a tainted past is a modern occurrence
(e.g., post-Nazi Germany, South Africa): “Until recently no constitution would
have referred to shameful past injustice as a foundational ground.
Constitutional provisions have long served the undoing of past injustices, but
only the pragmatic measures were expressly mentioned….” (pp.278-279).
Nonetheless, the times are growingly unpropitious for shame as a constitutional
sentiment. Shame, whose efficacy relies on the effectiveness of exposure,
functions less and less in an increasingly individualist and self-exposing
culture (consider self-creation of one’s web-persona(e), for instance via
blogging or the more pedestrian leisures of Facebook). As the author puts it
with trenchant wit: “dignity became poor men’s honor, provided to all as a
welfare service. The consequence is that dignity cannot be lost, and if it
cannot be lost, little (less) shame is to be felt when you are exposed. Simple
exposition in a world of exhibitionists is of diminishing concern” (p.277). The
author regards with suspicion (as misguided or inapposite extrapolations)
theoretical criticism of shaming: “[T]here are no psychological reasons that
would require constitutional law of a liberal democracy to renounce social
control through shaming, and neither the social nor the psychological
consequences envisioned by developmental psychology offer compelling objections
to constitutional and social policies that admit the positive role of shame.
After all, shame may generate recognition of responsibility and it contributes
to maturity” (p.299).
This book offers less a “theory” proper of constitutional sentiments than a sum
of extensive and very insightful history-embedded digressions about the
reason/emotion interplay in constitutionalism and constitutional law. This is
probably precisely what the author set about to do and he succeeds admirably at
his chosen task. The argument deals, counter-intuitively, overwhelmingly, and
somewhat over-possessively with American caselaw and constitutional-theoretical
literature (over which the author has unquestionably supreme command). “[W]e
have a whole jurisprudence that relies on ‘evolving standards of decency’” reads
the beginning of a paragraph on page 82
and the reader ponders over the identity of the collective plurality who
lays such jealous claim on an idiosyncratic US Constitution Eight Amendment
doctrine. Surely, it could not be Hungarian law professors or ECtHR judges and
arguably it cannot be even the global conclave of comparative public law
scholars. Those readers familiar with Professor András Sajó’ extensive academic
background and practical experience (which in his case probably means a majority
of the potential readership) will perhaps find it regrettable that so very
little of the book deals with Hungarian and Eastern European constitutionalism,
arguably a fertile ground for speculations and exemplifications on the debated
themes, based in his case, moreover, on lifelong, direct, and ‘front seat’
experience. The argument would have certainly been richer for the more generous
inclusion of this extensive, personal knowledge in it. [*452]
But this mild point of criticism cannot and certainly does not intend to detract
much from the general accomplishment. Both the cultural-historical and the
strictly legal erudition of the author are impressive and the depth and
originality of his intuitions are very often admirable. Furthermore, aside from
its academic merits, CONSTITUTIONAL SENTIMENTS is a well written scholarly
argument, which reads pleasurably, flowing often like a good novel. Style is,
indeed, one of the main qualities of the volume. Professor Sajó’s readers will
be thus left not only with information or analysis but also with a general
residue of constitutional sentiment lingering on for a while, a mixed feeling of
controlled melancholy, historical pessimism, and fine irony, sometimes bordering
on hopeful sarcasm (alas, an exquisite and characteristically Austro-Hungarian
mix).
REFERENCES:
Cassirer, Ernst. 2007 (1932). DIE PHILOSOPHIE DER AUFKLÄRUNG. Hamburg. Felix
Meiner Verlag.
Clarendon, Edward Hyde, Earl of. 1826 (1702-1704). THE HISTORY OF THE REBELLION
AND CIVIL WARS IN ENGLAND, BEGUN IN THE YEAR 1641. Oxford. Clarendon Press.
Condorcet, Jean Antoine Nicolas de Caritat de. 1988 (1975). ESQUISSE D’UN
TABLEAU HISTORIQUE DES PROGRÈS DE L’ESPRIT HUMAIN. Paris. Flammarion.
Grimm, Dieter. 1988. DEUTSCHE VERFASSUNGSGESCHICHTE 1776-1866. Frankfurt am
Main. Suhrkamp.
Kant, Immanuel. 1784. “Beantwortung der Frage: Was ist Aufklärung?” in:
Berlinische Monatsschrift, Dezember-Heft, S. 481-494.
Luhmann, Niklas. 1990. “Verfassung als evolutionäre Errungenschaft,“ in 9
Rechtshistorisches Journal 176 et seq.
Stollberg-Rilinger, Barbara. 2000. EUROPA IM JAHRHUNDERT DER AUFKLÄRUNG.
Stuttgart. Reclam.
CASE REFERENCE:
OTTO-PREMINGER INSTITUT v. AUSTRIA, ECtHR Application no. 13470/87, judgment of
20 September 1994.
*********************
© Copyright 2011 by the author, Bogdan Iancu.