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.
* Project funded/co-funded by the European Union (ERC, Project 101096176 -
ICDD). The views and opinions expressed are solely those of the author and do
not necessarily reflect those of the European Union or the European Research
Council. Neither the European Union nor the granting authority can be held
responsible for them.
[9] This is so, as the author makes clear, because in the book she adopts "a phenomenological approach, which takes the institutions, practices, structures, norms and modes of decision making in a constitutional democracy as the primary object of analysis, whilst seeking to understand, explain and illuminate -in short, to make sense of- the practice in all its complexity" (ibid.).
[10] Kavanagh defines de
idea of constitutional social capital in association with “the values of
reciprocity, collaboration, trust and fair play that ensue from a dense network
of reciprocal social relations within a civic community” (ibid., 415). See
R.Putnam, Bowling Alone: Revised and Updated: The Collapse and
Revival of American Community, New York: Simon and
Schuster (2020).
[11] See, for example, D. Farrell; J. Suiter; C. Harris,, “Systematizing constitutional deliberation: the 2016-18 citizens’ assembly in Ireland”, Irish Political Studies vol. 34 (2019), n. 1, 113-123; S. Suteu, “Constitutional Conventions in the Digital Era: Lessons from Iceland and Ireland,” Boston College International and Comparative Law Review, volume 38 (2015), issue 2, 251; S.Suteu, & S. Tierney, “Squaring the Circle? Bringing Deliberation and Participation Together in Processes of Constitution-Making”, in R. Levy et al, eds., The Cambridge Handbook of Deliberative Constitutionalism, Cambridge: Cambridge University Press (2018).
[12] She says,
for instance: “When we look around the world today, it is striking how gradual,
incipient and insidious the shift from constitutional democracy to popular
authoritarianism” (ibid., 27).
[13] I would also like to add that Kavanagh's references to "constitutional culture" and the limits it could impose on the conduct of the ruling class are neither novel nor decisive in addressing the type of problems we are dealing with here. Two hundred years ago, Madison could also speak of the "civic virtues" that motivated or could motivate politicians and activists. However, Madison understood perfectly well that the proper functioning of the institutional system could not depend on the presence and relevance of these moral dispositions. He considered it essential, therefore, to imagine other types of safeguards -institutional, structural- aimed at preventing the "dangerous encroachments" of the different branches of government.
[14] See, in
this respect, and for example, T. Ginsburg & Huq, How to Save a
Constitutional Democracy, Chicago: University of Chicago Press (2018); A. Przeworski, Crisis
of Democracy, Cambridge: Cambridge University Press (2019).