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Global constitutionalism and constitutional imagination

  • OLIVIERO ANGELI (a1)
Abstract:

There is a difference between the normative reasons for endorsing global constitutionalism and the conditions determining its emergence. This article addresses the latter issue. Specifically, the article claims that global constitutionalism rests on an underexplored shift in constitutional imagination. To account for this claim, the article is structured in several parts. It begins by clarifying the meaning of ‘constitutional imagination’. In so doing it builds on Kant’s concept of imagination (‘Einbildungskraft’) and in its reception by Hannah Arendt. The article then illustrates the significance of constitutional imagination by focusing on two major developments in constitutional thinking. The first development involves the shift away from a narrative reconstruction of constitutional authority; the second points to a cosmopolitanisation of constitutional imagination.

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*Email: Oliviero.Angeli@tu-dresden.de
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1 Cf. M Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State’ in JL Dunoff and JP Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press, Cambridge, 2009).

2 There is already a considerable amount of literature on the causal connections between active dialogue among constitutional courts and the generation of global language of constitutionalism. See, for example, Mark Tushnet, who notes that constitutional judges increasingly meet ‘in academic and other conferences, and some serve with others on various transnational bodies’ (M Tushnet, ‘The Inevitable Globalization of Constitutional Law’ (2009) 49 Virginia Journal of International Law 998). See also V Perju, ‘Constitutional Transplants, Borrowing and Migrations’ (2012) Oxford Handbook of Comparative Constitutional Law 1304.

3 I am grateful to the anonymous reviewer who urged me to make clear that this is not equivalent to arguing that because we are observing a gradual shift in imagination in constitutional practice, then global constitutionalist theory is on the rise. As mentioned above, it is quite possible that theories help to create the phenomenon that they are supposed to describe for example by nudging legal experts and judges to approach their cases from a different perspective.

4 Walker, N, ‘Post-Constituent Constitutionalism? The Case of the European Union’ in Loughlin, M and Walker, N (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press, Oxford, 2007) 247.

5 M Kumm, ‘Constitutionalism and the Cosmopolitan State’ (2013) NYU School of Law, Public Law Research Paper No. 13-68 7 (Working paper available at: <http://www.law.nyu.edu/sites/default/files/upload_documents/2014KummCosmopolitanState.pdf>); E Fox-Decent, ‘Constitutional Legitimacy Unbound’ in D Dyzenhaus and M Thorburn (eds), Philosophical Foundations of Constitutional Law (Oxford University Press, Oxford, 2015) 119; see critically also MS Kuo, ‘The End of Constitutionalism As We Know It? Boundaries and the State of Global Constitutional (Dis)Ordering’ (2010) 1(3) Transnational Legal Theory 329.

6 M Kumm, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’ (2010) 4(2) Law & Ethics of Human Rights 141; W Sadurski, ‘Supranational Public Reason: Part One – A Theory’ (2015) Sydney Law School Research Paper No. 15/02 (Working paper available at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2553611>).

7 Exceptions are JB White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Little, Brown & Co, Boston, MA, 1973); M Antaki, ‘The Turn to Imagination in Legal Theory: The Re-Enchantment of the World?’ (2012) 23(1) Law and Critique 1; and recently M Loughlin, ‘The Constitutional Imagination’ (2015) 78(1) The Modern Law Review 1.

8 I Kant, Critique of Pure Reason (trans P Guyer and A Wood, Cambridge University Press, Cambridge, 1998) 256.

9 Anderson, B, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso, London, 1991) 6.

10 Arendt, H, Eichmann in Jerusalem: A Report on the Banality of Evil (Harcourt Brace, New York, NY, 1963) 49.

11 See (n 8) 239.

12 Arendt, H, Lectures on Kant’s Political Philosophy (The University of Chicago Press, Chicago, IL, 1982) 79.

13 See (n 8) 273.

14 It should be noted, however, that Arendt compares ‘examples’ with Kant’s ‘schemata’ (not with ‘images’), a comparison, which is not altogether correct in my view (for reasons I will not go into here). See (n 12) 84.

15 See (n 12) 84.

16 Kant, I, Critique of the Power of Judgment (ed Guyer, P and trans Guyer, P and Matthews, E, Cambridge University Press, Cambridge, 2000) 173.

17 Lang, B, ‘Hannah Arendt and the Politics of Evil’ in Hinchman, LP and Hinchman, SK (eds), Hannah Arendt: Critical Essays (State University of New York Press, New York, NY, 1994) 47.

18 Levi, EH, An Introduction to Legal Reasoning (University of Chicago Press, Chicago, IL, 1962) 1.

19 Whether precedents count as sources of law is contested. Especially in a non-common-law legal context the assumption is that legal decisions are based on laws and not on (other court’s) precedents. Precedents are seen as interpretive canons rather than sources (cf. R Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (Oxford University Press, Oxford, 1989) 274–9).

20 See (n 12) 84.

21 It cannot be concluded from a precedent directly on the decision to be adopted. Rather, one has to make a detour: From precedent ‘one extrapolates its underlying norm, the ratio decidendi; then one subsumes [the decision to be adopted] under the norm’ (M Kriele, Theorie der Rechtsgewinnung (Duncker & Humblot, Berlin, 1967) 270; my translation).

22 Prior to the act of subsuming, precedents must be found, and this necessarily involves a degree of imaginative freedom (what Scott Brewer calls the ‘uncodifiable imaginative moment in exemplary, analogical reasoning’; see S Brewer ‘Exemplary Reasoning: Semantics, Pragmatics and the Rational Force of Legal Argument by Analogy’ (1996) 109 Harvard Law Review 954).

23 Posner, R, How Judges Think (Harvard University Press, Cambridge, MA, 2008) 183.

24 Zerilli, L, ‘The Practice of Judgment: Hannah Arendt’s Copernican Revolution’ in Elliot, J and Attridge, D (eds), Theory after Theory (Routledge, London, 2011) 126; see (n 12) 68.

25 Cf. H Arendt, On Revolution (Penguin Books, New York, NY, 2006).

26 For Kant imagination is hidden ‘in the depths of the human soul’ (see (n 8) 273) and cannot be viewed as a conscious or reflective activity.

27 An anonymous reviewer has pointed out that what I am labelling in this article as a shift in constitutional imagination is in effect a ‘de-constitutionalisation’ of imagination. Note, however, that this presupposes that the meaning of constitution is fixed and inextricably rooted in statist founding narratives and imaginaries. Such a view finds support on a strand of contemporary literature that criticises global constitutionalism for dismissing the very core of constitutionalism (cf. Kuo (n 5)). From a non-essentialist perspective, however, controversies over the meaning of constitution cannot be resolved by positing a specific feature of the constitution as its essence. A concept’s meaning depends – to a considerable extent – upon its usage. Hence, what needs to be taken into consideration are emerging practices among constitutional interpreters (such as constitutional experts) – and this is essentially what I am doing in this article. I look at how imagination works, when constitutional ideas transcend the conventional boundaries of constitutional law.

28 Thiele, LP, The Heart of Judgment: Practical Wisdom, Neuroscience, and Narrative (Cambridge University Press, Cambridge, 2006) 48.

29 See (n 16) 123.

30 See (n 25) 43.

31 Cf. N MacCormick, Rhetoric and the Rule of Law (Oxford University Press, Oxford, 2005); RP Burns, A Theory of the Trial (Princeton University Press, Princeton, NJ, 1999).

32 RM Cover, ‘The Supreme Court, 1982 Term – Foreword: Nomos and Narrative’ (1983) 97(1) Harvard Law Review 4.

33 Perhaps the best-known foundation stories belong to religious tradition or to the ancient classics of world literature, such as the Oresteia of Aeschylus or the history of the receipt of the Ten Commandments through Moses on Mount Sinai (see S Almog, ‘From Sterne and Borges to Lost Storytellers: Cyberspace, Narrative and Law’ (2002) 13 Fordham Intellectual Property, Media & Entertainment Law Journal 1.)

34 LP Thiele, The Power of Example: The Narrative Roots of Practical Judgment; paper presented at the Western Political Science Association Annual Meeting (Los Angeles, CA, 2013).

35 R Dworkin, Law’s Empire (Harvard University Press, Cambridge, MA, 1986) 228.

36 See also Michael McConnell for whom Dworkin did not go far enough. In his view, the chain novel metaphor is more useful, when applied more broadly to the constitutional order, thus including other authors. See M McConnell, ‘The Importance of Humanity in Judicial Review: A Comment on Ronald Dworkin’s ‘‘Moral Reading’’ of the Constitution’ (1997) 65 Fordham Law Review 1269.

37 BS Jackson, Law, Fact, and Narrative Coherence (Deborah Charles Publications, Liverpool, 1988) 170.

38 See (n 5) Fox-Decent.

39 Cf. C Möllers, ‘Verfassungsgebende Gewalt – Verfassung – Konstitutionalisierung’ in A von Bogdandy (ed), Europäisches Verfassungsrecht: Theoretische und dogmatische Grundlagen (Springer, Berlin, 2003) 1.

40 F Michelman, ‘Constitutional Authorship by the People’ (1999) 74 Notre Dame Law Review 160.

41 F Michelman, ‘Is the Constitution a Contract for Legitimacy?’ (2003) 8(2) Review of Constitutional Studies 126.

42 See (n 6).

43 M Steilen, ‘The Democratic Common Law’ (2011) 10 The Journal of Jurisprudence 437.

44 Kumm calls it a ‘turn from legal interpretation to the public reason oriented justification’ (n 6) 142.

45 Imagination proves to be indispensable for proportionality reasoning, the alleged ‘common grammar for global constitutionalism’ (M Cohen-Eliya and I Porat, ‘American Balancing and German Proportionality: The Historical Origins’ (2010) 8(2) International Journal of Constitutional Law 263). For Alexy, proportionality reasoning allows for a mental representation of the actual arguments presented by the various parties in the political arena. In his view, this form of ‘argumentative representation’ complements democratic representation (cf. R Alexy, ‘Balancing, Constitutional Review, and Representation’ (2005) 3 International Journal of Constitutional Law 572).

46 See (n 12) 43.

47 See (n 12) 43.

48 See on this Appadurai, for whom globalisation delivers the images and narratives of foreign lives ( Appadurai, A, Modernity at Large: Cultural Dimensions of Globalization (University of Minnesota Press, London, 1998).

49 See (n 8) 269.

50 H Arendt, Between Past and Future: Aight Exercises in Political Thought (Viking, New York, NY, 1968) 241. Elsewhere she argues that the ‘greater the reach—the larger the realm in which the enlightened individual is able to move from standpoint to standpoint—the more “general” will be his thinking’. See (n 12) 43.

51 Cf. V Perju, ‘Proportionality and freedom—An essay on method in constitutional law’ (2012) 1(2) Global Constitutionalism 360.

52 Consider, for example, the Atkins v Virginia case, in which the Supreme Court banned the execution of the mentally retarded. In another, much-discussed case (Lawrence v Texas), judges deal with the question whether states can punish homosexual acts.

53 Whether courts increasingly rely on foreign precedents and example to get a better understanding of the domestic case in question may be disputed, especially with respect to US constitutional law (cf. FB Cross and JF Spriggs, ‘Citations in the US Supreme Court: An Empirical Study of Their Use and Significance’ (2010) 2 University of Illinois Law Review 489).

54 E Young, ‘Foreign Law and the Denominator Problem’ (2005) 119 Harvard Law Review 163.

55 Taylor, C, A Secular Age (Harvard University Press, Cambridge, MA and London, 2007) 173.

56 V Perju, ‘Cosmopolitanism and Constitutional Self-Government’ (2010) 8(3) International Journal of Constitutional Law 344.

57 B Bugarič, ‘Protecting Democracy and the Rule of Law in the European Union: The Hungarian Challenge’ (2014) 79 LSE ‘Europe in Question’, Discussion Paper Series 10. Working Paper available at: <http://www.lse.ac.uk/europeanInstitute/LEQS%20Discussion%20Paper%20Series/LEQSPaper79.pdf>

58 Kim Scheppele has provided other examples of how foreign legal examples are being leveraged by Prime Minister Viktor Orban to limit minority rights. Cf. KL Scheppele, ‘Enforcing the Basic Principles of EU Law through Systemic Infringement Procedures’ in C Closa and D Kochenov (eds), Reinforcing the Rule of Law Oversight in the European Union (Cambridge University Press, Cambridge, 2016).

59 For a criticism of the use of foreign law along these lines, see Posner (RA Posner, ‘Foreword: A Political Court’ (2005) 119 Harvard Law Review 85).

60 To minimise the influence of strategic ‘cherry-picking’, theorists of global constitutionalism, like Vlad Perju, have endeavoured to connect the two above developments in such a way as to subordinate the second to the first. In Perju’s view, ‘the most that can be achieved by expanding the pool of normative references (…) is to inject a degree of reflectiveness into the constitutional discourse at the specific request of citizens, or of other constitutional actors’ (Perju (n 2) 353).

61 S Fredman, ‘Foreign Fads or Fashions? The Role of Comparativism in Human Rights Law’ (2015) 64(3) International and Comparative Law Quarterly 649.

62 As Mary Ann Glendon argued, foreign law ‘does not provide blueprints or solutions. But awareness of foreign experiences does lead to the kind of self-understanding that constitutes a necessary first step on the way toward working out our own approaches to our own problems’ (MA Glendon, Abortion and Divorce in Western Law (Harvard University Press, Cambridge, MA, 1989) 142).

63 See Kuhn, T, Experiencing European Integration: Transnational Lives and European Identity (Oxford University Press, Oxford, 2015).

64 Cf. S Koikkalainen and K David, ‘Imagining Mobility: The Prospective Cognition Question in Migration Research’ (2016) 42(5) Journal of Ethnic and Migration Studies 759.

65 See (n 48) 53.

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Global Constitutionalism
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