On the idea of democracy underlying Aileen Kavanagh's The Collaborative Constitution - Part Two

Guest Blogger

Roberto Gargarella

PART II

The Actual Practice of our Constitutional Democracies

In the previous section, we analyzed the -Madisonian- conception of democracy underlying The Collaborative Constitution.  We also examined that this "old" conception is of little use in describing and thinking about the "new constitutional times", marked by strong democratic expectations and demands. We also argued that in this new context -social, legal, institutional- the collaborative and cooperative behaviors that Kavanagh's book calls for are not to be expected. Now: What could Aileen Kavanagh say to those of us who believe that her reliance on the cooperative attitudes of public officials is unwarranted? What could she answer us, in the face of our skepticism? First of all, she could tell us that many of the public behaviors she prefers or postulates as necessary are behaviors that already occur or have already been shown to be possible: in a way, they are already part of existing practice (particularly, we might say, in Britain). For Kavanagh -we have explored this already- her "collaborative account" "is grounded in practice."[9]

A second reply that Kavanagh could try, which in part complements and specifies the previous one, is related to the presence of "unwritten constitutional norms" that "lie at the foundation of the collaborative constitution" (ibid., 8). By such, she refers to "the rules, norms, and practices of constitutional government accepted as obligatory by those concerned in the working of the constitution" (ibid.). The usual or traditional character of such practices would allow us to think of an even stronger framework: a "constitutional culture." This constitutional culture, in short, would allow us to speak of an already available "social capital" -certain "tacit understandings"- that would turn collaborative constitutional behaviors into expected behaviors (rather than unexpected, superhuman, or angelic behaviors). [10]

Although Kavanagh's references are, in all cases, interesting, illuminating, and well-informed, I find several problems with these possible replies. First of all, they are insufficient, particularly for those of us who approach The Collaborative Constitution wondering why it is that her work does not reserve a major role for "We the People" (this is to say, why it does no reserve a major role for the authors of the Constitution, and the “demos” referred to in the very idea of “democracy”). We may follow her and accept -for the sake of the argument- that there is already a collaborative constitutional practice among public officials. But then: why not to admit that there is already a collaborative constitutional practice that includes citizens? In fact, we all know many examples of citizens participating, discussing and making interesting decisions on fundamental rights (for example, and just to take some cases that Kavanagh knows well, we can allude to the Citizens' Assemblies such as those that took place in Ireland, where important decisions were made on abortion or equal marriage). So why insist on what public officials do or could do, in terms of protecting rights, and continue to ignore the much good that citizens do or could do concerning those rights?[11]

It is not difficult to speculate why it is that Kavanagh persists in her distrust of the citizenry - I mean, why it is that her proposal keeps the institutional doors closed to "We the People." She might say: in times of democratic crisis and "populism," it does not make sense to stir up even more antagonisms and social conflict by encouraging popular participation.[12] And also: "majoritarianism" doesn't seem to be the right answer, if our first concern is (not democracy, but) the protection of rights. If these were her answers, we could then conclude that her approach is fundamentally misleading. The fact is that the type of "institutional drama" we are going through demands answers that are quite the opposite of those just suggested. Indeed, the current democratic crisis or even the phenomenon of "populism" speak to us of the deterioration of our institutions and the decadence of our public officials, problems that are unlikely to be solved through those same institutions in crisis; through the same public officials in whom citizens do not believe; or by demanding collaborative behavior from a ruling class that has institutional incentives to act non-cooperatively. To put it differently: if the problem we face is that of the democratic crisis, any response that does not place "disempowered citizenry" at the center of the solution ends up ignoring the problem at stake. 

In fact, even if - miraculously - all public officials were to adopt behaviors such as those Kavanagh hopes and advises, and the branches of government were to collaborate with each other, the main democratic problem of our time would persist. This is because the citizenry would still be "disempowered" in democratic terms; "We the People" would predictably remain distrustful of the ruling class; and, reasonably enough, citizens would continue to complain about their inability to decide on the issues that matter most to them, or about their inability to control officials who fail to deliver on their promises. In short, the objections remain intact for those of us who see in Kavanagh's book a new instance of the confusion and overlap between the problems of constitutionalism and democracy. The Collaborative Constitution speaks of the presence of serious democratic problems (a serious democratic crisis), but ends up focusing on purely constitutional issues and solutions.[13]

Finally, it is interesting to note, in terms of legal sociology, that Kavanagh's analysis appears so sensitive to the gradual development of a "culture of collaboration," but not to the fierce flip side of such an evolution. As anticipated, it is obvious and to be expected that, in this time of "democratic erosion", the (desired) "collaborative culture" will decline rather than grow stronger. It would be very strange if the opposite were to occur – it would be really odd if public officials, instead of taking advantage of the existence of "eroded" controls to obtain greater benefits, decided to adopt supererogatory, more altruistic and austere behaviors. Of course, Kavanagh recognizes that we are going through an era of "constitutional corrosion and democratic decay" (ibid., 412).[14] And she admits, too, that "the UK has not been immune" to it (ibid.).  She refers, for example, to "the fractious and fragmented post-Brexit environment" where "Prime Minister Boris Johnson was accused of showing 'contempt for the constitution' and 'disdain for the decency of our constitutional conventions'" (ibid.). But then, once we admit the existence of these serious political events, characteristic of our time: How can we continue to expect (in this kind of political context), the development of cooperative behaviors? How not to understand that, under the current (eroded, degraded) incentive structure, the emerging "institutional culture" will tend to be the opposite of the desired one? As I understand it, a more appropriate sociological diagnosis would say that a corroded constitutional system feeds on uncooperative behaviors, and in turn promotes uncooperative behaviors. In sum: once we recognize the seriousness and structural dimension of this decay, how can we continue to appeal to those same structures, to those same leaders, and above all to that same culture in crisis (to the "unwritten constitutional norms"), to solve the problems that are presently affecting our constitutional democracies - problems that are typically expressed in the lack of respect for the culture of collaboration; lack of attention to the "unwritten constitutional norms," etc.

Conclusion

The Collaborative Constitution is a very important book, which definitely enriches contemporary constitutional doctrine. The book challenges much of our established knowledge through a fresh and renewed approach to constitutionalism and lucid insights. Aileen Kavanagh's new work helps us to break with traditional and uninteresting dichotomies and to think of important alternatives to replace them. In the preceding pages, however, I was also interested in criticizing some of the book's foundations, and in particular in questioning the conception of democracy that underlies it. I argued, in this regard, that The Collaborative Constitution starts from a narrow, somewhat old, and rather elitist conception of democracy (a Madisonian approach to democracy). Such a conception leaves "We the People," relegated to a secondary role, within a scenario where constitutionalism ends up occupying all the space that should have been reserved for democracy. This is a problem that -I submit- appears in a distinctive way in Kavanagh's book, but which affects a significant portion of contemporary constitutional doctrine. 

Roberto Gargarella is Professor of Constitutional Law at the Universidad de Buenos Aires. You can reach him by e-mail at roberto.gargarella@gmail.com.