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 20th 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 21st 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.
[1] Democracy Index 2022: Frontline Democracy
and the Battle for Ukraine, Economist Intelligence Unit 2022; Freedom
House has developed a similar approach,
and with similar results. See e.g. Freedom in the World 2022; The global
expansion of authoritarian rule
[2] ‘Full democracies’ are nations where
civil liberties and fundamental political freedoms are not only respected but
also reinforced by a political culture conducive to the thriving of democratic
principles. These nations have a valid system of governmental checks and
balances, an independent judiciary whose decisions are enforced, governments
that function adequately, and diverse and independent media. These nations have
only limited problems in democratic functioning
[3] ‘Flawed
democracies’ are
nations where elections are fair and free and basic civil liberties are
honoured but may have issues (e.g. media freedom infringement and minor
suppression of political opposition and critics). These nations have
significant faults in other democratic aspects, including underdeveloped political
culture, low levels of participation in politics, and issues in the functioning
of governance.
[4] ‘Hybrid
regimes’ are
nations with regular electoral frauds, preventing them from being fair and free democracies.
These nations commonly have governments that apply pressure on political
opposition, non-independent judiciaries, widespread corruption, harassment and
pressure placed on the media, anaemic rule of law, and more pronounced faults
than flawed democracies in the realms of underdeveloped political culture, low
levels of participation in politics, and issues in the functioning of
governance.
[5] ‘Authoritarian
regimes’ are nations where political pluralism is non-existent or
severely limited. These nations are often absolute monarchies or dictatorships, may have some conventional institutions of
democracy but with meagre significance, infringements and abuses of civil
liberties are commonplace, elections (if they take place) are not fair or free
(including sham elections), the media is often state-owned or controlled by
groups associated with the ruling regime, the judiciary is not independent, and
censorship and suppression of governmental criticism are commonplace.