The Authoritarian Alternative

Guest Blogger

For the Balkinization Symposium on Frank Michelman, Constitutional Essentials: On the Constitutional Theory of Political Liberalism (Oxford University Press, 2022)

Neil Walker

The publication of Frank Michelman’s Constitutional Essentials (CE) is a cause for celebration on two counts. First, it has been an oddity of   constitutional theory in general over the last decades, including mainstream liberal-leaning constitutional  theory,   that so few have subjected the work of the most influential liberal political theorist of the 20^th century – one John Rawls - to the kind of systematic appraisal of its constitutional analyses and implications that it deserves. Rawls does of course get a lot of attention, but usually as a more or less prominent member of a rolling cast of grand thinkers. Only Frank and a few others (including Alessandro Ferrara as the co-author with Frank of the recent Legitimation by Constitution: A Dialogue on Political Liberalism, OUP, 2021) have stepped up to the plate to offer a full treatment, and CE is the fullest treatment yet.

Secondly, let me borrow from Rosalind Dixon the thought that  some of us may be ‘slow learners’ when it comes to Frank, and ponder a few of its implications. To read Frank is always to be reminded of a body of thought and a style of thinking that, in its rigour, depth  and subtlety of insight,  is hard to absorb in its entirety but impossible to ignore. When I read Frank I am always reminded (and aware I’m being reminded, yet again) of the distinctive qualities he brings to the debate, and I always chide myself for having left it so long ( never very long) since I last consulted his work.  So I, too , am a ‘slow learner’ when it comes to Frank, in a way that I am of only a few other leading writers - and typically for the same reasons. It seems I can only properly take  in such rich fare in  bite size chunks, then as the distinctive experience recedes, so does my  appreciation of its finer qualities,  only for the experience to be had anew and afresh, and invariably  deeper, next time. Now to have Frank’s  rounded thoughts on Rawls - some new and some well-rehearsed - all together, but still  presented in a ‘chocolate box’ of bite size chapter chunks, is a real delight. It will doubtless be  a profound point of reference  for  future study of Rawls-on-constitutions  and the broader tradition of liberal democratic constitutionalism.

I have many questions, but will confine myself to just one. It is not posed with the subtlety that Frank’s work deserves, and does not  interrogate the fine detail of his  broader analysis. Indeed, it is  orthogonal to his work, but remains  important and challenging just for that reason - as a boundary questions. It asks how Frank’s work, and indeed Rawls’ work, does or does not speak to an area that lies outside the mainstream of state-centred liberal constitutionalism; namely the authoritarian constitution.

CE is concerned with the Liberal Principle of Legitimacy (LPL), as expressed in the notion of justification-by-Constitution (JBC) , as an answer to the problem of political liberalism under condition of ‘reasonable pluralism’. The problem of political liberalism to which JBC may be an answer  is ‘how is it possible….that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable thought incompatible religious, philosophical and moral doctrines.’ (CE 20). Michelman, like Rawls, makes it plain that the solution is only available in a society in which there is a core agreement over certain essentials whose terms all citizens may reasonably be expected to endorse in the light of principles acceptable to them as reasonable and rational.  That is to say, it is only acceptable in a society whose directive code is capable of being freely consented to by all members seeking reasonable terms of common living with all other freely consenting members in possession of  the same other-regarding attitudes. 

Such a society would be a liberal society. A constitution, typically  - but, for Frank,  not necessarily - in canonical written form, might set the terms of such an agreement. Crucially, however, the bare existence of such a constitution is not enough. As Frank says,  JBC ‘ does not make liberalism  mean constitutionalism. It is…rather, to make liberalism need constitutionalism ( CE 2). Otherwise put, constitutionalism is a necessary but insufficient condition of  the achievement of a justified liberal order  under the LPL.

Enter the authoritarian political order. Any attempt to describe and distinguish  across the full spectrum of constitutional government is of course prey to many definitional problems. Yet the Economist Intelligence Unit (EDI) Annual Democracy Index offers a good general picture.[1]  The Democracy Index covers all countries and regime types, from the highest standard of ‘full democracy’[2] through’ flawed democracies’ [3] and ‘hybrid regimes’[4]  to the lowest standard of fully ‘authoritarian regimes’.[5] Only ‘full democracies’  meet the  standard of liberal democratic order. Yet what emerges from the most recent (2022)  Democracy Index, is that only 24 of  the world’s 167 independent polities - which is 14.4%, and only 8% of the world’s population, live in ‘full liberal democracies’. Flawed democracies account for another 48 (28.7%) of countries, and another 37.3% of the global population. This means that, according to the Index, less than half of countries (43.1%) are basically  democratic, and less than half of the world’s population (45.3%) live under basically democratic conditions. And of the rest, as many as 59(35.3%) covering 36.9% of the population (the majority in China) are classified as fully authoritarian regimes, while 36 (21,6%) of countries covering 17.9% of the world’s population live in  hybrid or semi-authoritarian regimes.

The figures are stark. The liberal democratic ‘mainstream’ does not extend much beyond one seventh of the world’s countries, and covers less than one twelfth of its population. There are   other countries with some tendencies in the liberal direction, but many clearly on the more authoritarian end of the spectrum.  What is perhaps even starker than these figures, however,  is that all 167 countries have some kind of constitution, and many of them, as purely textual exhibits, are largely indistinguishable in their apparent respect for democracy and basic rights from  the genuinely liberal constitutional orders.   And it is not the case that we can entirely dismiss these constitutions as ‘sham’ or ‘window dressing’. Frank helpfully distinguishes constitutional functionality into the structural, the regulatory and – for him crucially -  the justificatory (CE Introduction). Constitutions across the liberal/authoritarian spectrum will typically do much of the structural work of setting the organisational and processual forms for the exercise of state powers – and so for (more or less) effective government. Somewhat fewer  constitutions will fulfil the regulatory assignment of constraining oncoming government acts and polices in terms set by the framers, often with a degree of special entrenchment. Yet many fewer still are the constitutions that can offer their substantive regulatory content as  an acceptable standard of collective justification  - as an expression of the terms on which everyone, given the liberal standard of free  mutual endorsement of the society’s basic directive code,  will have ‘prevailing reason to accept and respect as law the legislative outputs of our political order in force’ (5)

 In chapter 6 in particular Frank explores some of the sociological contingencies which make JBC more or less likely to succeed. He talks of a ‘sociological milieu in which are combined a number of cognitive, motivational and communicative elements’ (90) which would make the kind of deep common  constitutional endorsement of JBC impossible. This is mostly left to our imagination, but would of course cover deep economic inequality, poor educational standards, an intolerant dominant ideology  as well as a culture of power with impunity that allows the direct abuse or disregard of constitutional structures and regulatory standards.

Does Frank have much to say about the slippery margins between these two categories -  about semi-liberal or flawed democracies? Yes, he does, and it is of interest. However, his focus is one of movement away from a liberal democratic ideal,  of drift, decay or retrogression.  He talks of the value  of the duty of civility, of the importance of a ‘widespread spirit of willingness to bear: To bear, that is, a liability, to just that amount and degree of concession to injustice that must necessarily …result under any possible legal order designed for the maintenance of social cooperation’ – a measure of forbearance that  will go ‘beyond a reasonable person’s acceptance of a space for reasonable disagreement.’ (CE 100). Here he is talking of holding the line  - or the outer circle - of mutual tolerance  – an issue highly topical in today’s liberal democratic societies addressing powerful populist movements.

But what of societies that do not have a liberal democratic culture to lose, but only to gain (including perhaps the EU – to nod towards another marginal category – a supranational rather than an authoritarian constitution) ? Is there anything for them in CE?  Do tolerance and civility and modus vivendi have the kind of traction that that can generate the kind of culture in which liberal democracy thrives? After all, it must have happened once. And if the constitutional essentials are as important as Frank and Rawls say they are, why cannot they fashion something more positive ( even along  the lines of John Elster’s ‘civilising effects of hypocrisy’ )from their at-least-textual representation in the constitutions of many non-liberal  orders?   Or can we, today,  only conceive of these features of public culture  doing consolidatory rather than generative work – of slowing or stopping the rot  rather than growing something healthy ? If so, why so?  And what does this tell us about the future of liberal democracy under conditions of legitimation by constitution?

Will liberal democracy become all the more precious in its rarity?  Or is it destined to erode further? Or even to be dismissed as misconceived as a paradigm for good government in the 21^st century?

Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh. You can reach him by e-mail at neil.walker@ed.ac.uk.