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Global constitutionalism and constitutional imagination

Published online by Cambridge University Press:  20 November 2017

OLIVIERO ANGELI
OLIVIERO ANGELI*
Affiliation:
University of Dresden, Institute of Political Science, 01062 Dresden, Germany
*
*Email: Oliviero.Angeli@tu-dresden.de
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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.

Keywords

Arendtcosmopolitanismglobal constitutionalismimaginationKant
Type
Research Article
Information
Global Constitutionalism , Volume 6 , Issue 3 , November 2017 , pp. 359 - 376
Copyright
Copyright © Cambridge University Press 2017 

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References

1 Cf. M Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State’ in Dunoff, JL and Trachtman, JP (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press, Cambridge, 2009).Google Scholar

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 Perju, V, ‘Constitutional Transplants, Borrowing and Migrations’ (2012) Oxford Handbook of Comparative Constitutional Law 1304.Google Scholar

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.Google Scholar

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>); Fox-Decent, E, ‘Constitutional Legitimacy Unbound’ in Dyzenhaus, D and Thorburn, M (eds), Philosophical Foundations of Constitutional Law (Oxford University Press, Oxford, 2015) 119Google Scholar; see critically also Kuo, MS, ‘The End of Constitutionalism As We Know It? Boundaries and the State of Global Constitutional (Dis)Ordering’ (2010) 1(3) Transnational Legal Theory 329.Google Scholar

6 Kumm, M, ‘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 141Google Scholar; 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 White, JB, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Little, Brown & Co, Boston, MA, 1973)Google Scholar; Antaki, M, ‘The Turn to Imagination in Legal Theory: The Re-Enchantment of the World?’ (2012) 23(1) Law and Critique 1Google Scholar; and recently Loughlin, M, ‘The Constitutional Imagination’ (2015) 78(1) The Modern Law Review 1.Google Scholar

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

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

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

11 See (n 8) 239.

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

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.Google Scholar

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.Google Scholar

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

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. Alexy, R, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (Oxford University Press, Oxford, 1989) 274–9).Google Scholar

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.Google Scholar

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.Google Scholar

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

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.Google Scholar

29 See (n 16) 123.

30 See (n 25) 43.

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

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

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 Almog, S, ‘From Sterne and Borges to Lost Storytellers: Cyberspace, Narrative and Law’ (2002) 13 Fordham Intellectual Property, Media & Entertainment Law Journal 1.)Google Scholar

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

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

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 McConnell, M, ‘The Importance of Humanity in Judicial Review: A Comment on Ronald Dworkin’s ‘‘Moral Reading’’ of the Constitution’ (1997) 65 Fordham Law Review 1269.Google Scholar

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

38 See (n 5) Fox-Decent.

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

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

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

42 See (n 6).

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

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’ (Cohen-Eliya, M and Porat, I, ‘American Balancing and German Proportionality: The Historical Origins’ (2010) 8() International Journal of Constitutional Law 263Google Scholar). 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. Alexy, R, ‘Balancing, Constitutional Review, and Representation’ (2005) 3 International Journal of Constitutional Law 572).Google Scholar

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).Google Scholar

49 See (n 8) 269.

50 Arendt, H, Between Past and Future: Aight Exercises in Political Thought (Viking, New York, NY, 1968) 241Google Scholar. 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. Perju, V, ‘Proportionality and freedom—An essay on method in constitutional law’ (2012) 1() Global Constitutionalism 360.Google Scholar

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. Cross, FB and Spriggs, JF, ‘Citations in the US Supreme Court: An Empirical Study of Their Use and Significance’ (2010) 2 University of Illinois Law Review 489).Google Scholar

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

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

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

57 Bugarič, B, ‘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>>Google Scholar

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. Scheppele, KL, ‘Enforcing the Basic Principles of EU Law through Systemic Infringement Procedures’ in Closa, C and Kochenov, D (eds), Reinforcing the Rule of Law Oversight in the European Union (Cambridge University Press, Cambridge, 2016).Google Scholar

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

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

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’ (Glendon, MA, Abortion and Divorce in Western Law (Harvard University Press, Cambridge, MA, 1989) 142).Google Scholar

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

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

65 See (n 48) 53.