OLAF TANS
THE CONSTITUTIONAL THEATRE ⋆
ABSTRACT. Constitutionalism is a typically modernist project in that it seeks to
dictate social order by means of institutional design. This project, however, fails in two
ways. Empirically, constitutionalism is confronted with the fact that constitutions have
limited control over their social environment. Epistemologically, constitutionalism has
great difficulty in finding a convincing foundational relation between abstract constitutional provisions and constitutional norms for concrete situations. On the basis of this poor
record, it is hard to comprehend how constitutionalism remains such an influential factor
in our polity. This article tries to explain our adherence to the philosophy of constitutional
ordering by analysing its function in constitutional discourse.
KEY WORDS: constitutionalism, constructivism, discourse, Dworkin, epistemological
foundationalism, modernism
I NTRODUCTION
In this article I try to explain why we keep investing in a project that does
not work. I shall argue that constitutionalism generally fails in its attempt
to control political power on the basis of institutional designs called
“constitutions”, and that it is thus hard to explain why constitutionalism
retains its central position in political and legal thought. One might easily
conclude that it presents yet another form of “institutional optimism”
that was brought about by modernist thinking and that can no longer be
taken seriously. If one takes stock of constitutionalism’s aspirations and
how they fail to be realized, one might even be tempted to consider the
postmodernist position that such projects are “metanarratives” that, while
purporting to invoke our loyalty to the community, do not relate to its
history or its future.1 My aim, however, is to give this debate a more
socially realistic direction. For it is important to stress that, however unconvincing constitutionalism may be in its attempt to establish order on the
basis of constitutions, this has not been an impediment to its popularity.
Since the seventeenth and eighteenth centuries, constitutionalism has been
⋆ I would like to thank Dick Ruiter and Res Publica’s anonymous referees for their
comments on this article.
1 R. Rorty, Objectivism, Relativism, and Truth (Cambridge: Cambridge University
Press, 1991), 199.
Res Publica 8: 231–248, 2002.
© 2002 Kluwer Law International. Printed in the Netherlands.
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a subject of ongoing public debate, inspiring the design and redesign of
actual constitutions. This is to say that, apparently, societies are inclined to
adhere to the philosophy of constitutional ordering regardless of its weaknesses and for – again apparently – strong reasons. Rather than debunking
constitutionalism, therefore, I would like to explain the fact that we appear
to be drawn to constitutionalism in spite of its flaws. In this way I hope
to contribute to our understanding of the social function of constitutional
thinking and practices.
In looking for an explanation, I take the following route. First, I shall
try to get to the essence of constitutionalism, a typically modernist project
that seeks to establish social order through central regulation. As I shall
argue, it is thus essentially based on an epistemological foundationalism:
constitutions serve as objects that can be referred to in order to justify
concrete normative statements. Second, I shall try to get to the essence of
constitutionalism’s failure, namely the fact that its foundational epistemology is unconvincing in practice: it appears to be difficult, if not impossible,
to use constitutions as objects to refer to in order to justify concrete normative statements. Third, I shall argue that, although this epistemological
foundationalism does not in fact work, it seems to have an important
communicative function. In constitutional debate, we get approval of
constitutional claims if they are presented as consequences of existing
constitutions. By using the language of epistemological foundationalism
we suggest that effect is given to a pre-existing design, and thereby legitimise our statements. I shall argue that, while the work of Ronald Dworkin
gives important clues to understanding this seemingly absurd practice of
make-believe, it fails to draw the conclusions which follow from it, and
that this deficiency may be made good by the application of discourse
theory.
T HE M ODERN I DEA OF C ONSTITUTIONALISM
Although there is a great variety of constitutional ideas, modern constitutionalism is based on the fundamental idea that the exercise of political
power must be controlled by means of legal institutions.2 According to
2 This position is taken in J.E. Lane, Constitutions and Political Theory (Manchester:
Manchester University Press, 1996), 25; S.L. Elkin, “Constitutionalism: Old and New”, in
S.L. Elkin & K.E. Soltan, eds, A New Constitutionalism: Designing Political Institutions
for a Good Society (Chicago: University of Chicago Press, 1993), 20–37, pp. 21, 32; D.
Castiglione, “The Political Theory of the Constitution”, in R. Bellamy & D. Castiglione,
eds, Constitutionalism in Transformation: European and Theoretical Perspectives (Oxford:
Blackwell Publishers, 1996), 5–23, p. 9; and R. Kay, “American Constitutionalism”, in
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Charles McIlwain, this idea is the result of a historical development.3 In
Roman times, for instance, the idea of legal control of political power was
unknown: the state was already defined in legal terms but not to the extent
that the law grew to be something apart from the state and thus able to
provide protection against it.4 In the Middle Ages attempts were made
to elevate the law to a more autonomous position, as is illustrated by the
development of the judiciary in England.5 In the course of time, the English
courts emancipated themselves from the executive by defining the common
law as an independent phenomenon. Legal limitation of power was thus
established in the concrete struggle of judges to decide on individual rights,
a struggle that resulted in a victory of the “rule of law”.6 In the modern era,
this development has reached the point where constitutions are conceived
of as the basis of efficacious legal systems (whether written or unwritten).
They are treated as frameworks that impose order by making possible the
production of concrete norms for particular cases.
Hence the modern idea of constitutionalism embraces a specific
ordering concept, one that is best characterized by saying that it takes a
so-called “designer’s perspective”.7 The constitutional domain is divided
into a context of institutional design on the one hand and of realisation
on the other. The emergence of constitutional order is discussed mainly in
the context of design, under the assumption that the design will be reproduced in reality. In this way, constitutionalism can be regarded as a typical
example of social engineering, a manifestation, furthermore, of what Max
Weber has called a “pervasive rationalization” of social life, in that the
order of a state is fixed in advance.8 In brief, modern constitutionalism is
a form of “institutional optimism”, resting on the idea that an institutional
design is fitted to produce a corresponding social order.
This perspective has a crucial epistemic implication. Because we
conceive of them as comprehensive designs, constitutions are considered
L. Alexander, ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge
University Press, 1998), 16–63, p. 16.
3 C.H. McIlwain, Constitutionalism, Ancient and Modern (Ithaca, New York: Cornell
University Press, 1947).
4 A. d’Entrèves, The Notion of the State: An Introduction to Political Theory (Oxford:
Clarendon Press, 1967), 75–81; McIlwain, op. cit., 57.
5 Ibid., 67–92.
6 This is why Dicey states that “Our constitution, in short, is a judge-made constitution,
and it bears on its face all the features, good and bad, of judge-made law.” – A.V. Dicey,
Introduction to the Study of the Law of the Constitution, eighth edition (Indianapolis:
Liberty Fund, 1982) (reprinted from the 1915 edition), 116.
7 K.E. Soltan, “What Is the New Constitutionalism?”, in Elkin & Soltan, op. cit., 3–19,
p. 4.
8 M. Weber, Economy and Society (New York: Bedminster Press, 1969).
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to be the exclusive sources of what may be called “constitutional knowledge”. Whenever we try to defend a constitutional statement, it has to be
presented as following from the constitution; as a concrete manifestation of
the abstract design. Murphy and McClendon characterize this as modernist
on account of two features.9 First, it is based on “foundationalism”, that
is to say, on the assumption that knowledge can be justified only to the
extent to which it rests on indubitable grounds. In constitutionalism, this
feature is reflected in the fact that constitutions are seen as the necessary and sufficient foundations of constitutional claims. Second, modernist
epistemology expects language, unless expressing merely attitudes, to
represent ideas or states of affairs. In constitutionalism, this feature is
reflected in the fact that we expect constitutional language to represent
the constitution, to show that claims spring from this exclusive source of
constitutional knowledge and thus relate to the original design. In sum, we
treat constitutions as if they were pre-existing institutional arrangements
which can be known and reproduced linguistically.
One might object that this is a quite narrow view of modern constitutionalism, and that there are other ways of engaging in constitutional
thought. Certainly, present-day constitutional thought can (and does)
escape from the designer’s perspective, but only so long as it remains
theoretical. As soon as it becomes practical, however, it cannot avoid
accepting the epistemic premises of modernism and resorting to the
ordering concept outlined above. Consider for example Kenneth Starr’s
plea for the impeachment of President Bill Clinton: it was probably driven
by moral or political reasons, but that is not how it was presented. Rather,
Starr appealed to the constitution of the United States of America to
justify his plea, using the epistemic assumption underlying the designer’s
perspective by referring to it as if it were an object existing in the world,
and using language that seemed to refer to it as such, for example when he
indicated the second article of the constitution as the ground of his claim.
Thus, he treated the constitution as a linguistically expressible design
imposing a certain real order. If he had failed to do so, and instead made
explicit the real reasons driving his plea, it would doubtless have been put
aside as irrational, political, emotional, or at least legally irrelevant.
9 N. Murphy and J. McClendon, “Distinguishing Modern and Postmodern Theologies”,
Modern Theology 5 (1989), 191–214; N. Murphy, “Scientific Realism and Postmodern
Philosophy”, The British Journal for the Philosophy of Science 41 (1990), 291–303. See
also D. Patterson, Law and Truth (Oxford: Oxford University Press, 1996), 151–79.
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C ONSTITUTIONALISM ’ S D EFICIENCY
At the same time, however, it must be conceded that attempts to restrain
the exercise of political power on the basis of an institutional design
are generally bound to fail. For constitutionalism is both empirically and
epistemologically defective.
First, constitutionalism fails to secure the sort of control over political
power that it promises. Its designs have proven to be incapable of bringing
about a matching social order. American constitutionalism, for example,
is certainly influential, but American society does not take its shape from
any clearcut institutional arrangement named by the term “Constitution”.
Rather, it is the ongoing process of interpreting this text, in itself vague and
limited in applicability, that has in fact been influential. In numerous cases,
constitutional provisions have had no effect at all: consider human rights
in developing countries, which are sometimes simultaneously protected
by black-letter law and violated in real life; or certain post-communist
states, where democratic constitutions are said to have masked rather
than changed authoritarian political cultures.10 Lane gives an impressive
account of this limited effect of constitutionalism, distinguishing two
constitutional contexts: a formal context in which the constitution is understood in legal terms, and a substantive context in which it is understood
as a real regime. In an ideal world, he argues, there would be a one-toone correspondence between these two contexts, but “[I]n reality there
is always more or less mismatch between the formal and the substantive
constitution.”11
Second, constitutionalism does not offer a convincing foundation for
constitutional knowledge on account of its failing to determine the proper
line of constitutional reasoning. For any attempt to ground constitutional
statements can be contested by asking for a further justification, thereby
creating an infinite justificatory regress. If Kenneth Starr contends that
an impeachment-procedure should be implemented against Bill Clinton
under the second article of the Constitution, one can ask why. If the
prosecutor answers that the written constitution is the highest authority
of the state, one can ask why. If the prosecutor answers that the written
constitution is the will of the American people, as enacted by its framers,
one can ask why we are bound by this will, and how the Constitution
10 I. Pogany, “The Constitution in Post-Communist Societies”, in Bellamy &
Castiglione, op. cit., 156–79, p. 159: the author cites Slovakia, Romania and many of the
post-Soviet states. See also M. Krygier, “Is There Constitutionalism after Communism?
Institutional Optimism, Cultural Pessimism and the Rule of Law”, International Journal
of Sociology, 26 (1996–7), 17–47.
11 Lane, op. cit., 11.
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articulates it. If the prosecutor answers that this is the way Americans
conceptualise their constitutional order, one can ask him to disclose his
entitlement to speak on behalf of all Americans. In short, we witness
the sort of interpretive manoeuvres that characterise the actual process of
constitutional decision-making.12 The point is that, within this process, one
can (and generally does) ask indefinitely for further justification, so that
constitutional statements are never ultimately founded.
Moreover, it is to be doubted whether actual constitutional justification
– since it regresses continually – really keeps drawing on the original
source of constitutional knowledge. One might argue no less plausibly
that constitutional justification is a method of creating new constitutional
designs. Although constitutional reasoning generally starts with statements about the meanings of constitutional provisions and the qualification
of facts, it smoothly moves on to presenting all sorts of constitutional
theories, sociological observations and ethical arguments, as well as structural and prudential considerations.13 In practice, participants thus enter an
infinite domain of pertinent constitutional reasons. Thus the modern idea
of constitutionalism is frustrated by the fact that any account of constitutional justification as applying or interpreting a pre-existing constitution is
highly questionable: one may as well argue that constitutions spring from
the creative minds of those who act or argue in their names.
The deficiency of constitutionalism thus consists in the fact that its
ordering-concept does not work, either empirically or theoretically. It aims
to establish social order by designing and effectuating constitutions, but
these epistemologically dubious frameworks prove also to be ineffective in
practice. Ironically, this twin deficiency is especially manifest in the very
circumstances that gave rise to constitutional ambitions, namely political
crises. When Kenneth Starr wanted to impeach President Clinton for
wrongful private conduct, for instance, the constitution seemed to pose
questions rather than answering them. From 1976 to 1987, Great Britain
adopted several anti-terrorism and emergency Acts, and acted upon them,
whereas the extent to which this legislation comported with constitutional
principles remained a “subtle and complex question”.14 When the German
12 See for instance P. Brest, Processes of Constitutional Decisionmaking: Cases and
Materials (Boston: Little, Brown and Company, 1975).
13 Constitutional arguments are analysed in P. Bobbitt, Constitutional Fate: A Theory of
the Constitution (Oxford: Oxford University Press, 1982); R.H. Fallon Jr., “A Constructivist Coherence Theory of Constitutional Interpretation”, Harvard Law Review, 100
(1987), 1189–286.
14 I refer to British anti-terrorism legislation regarding Northern Ireland, as analysed
in J.E. Finn, Constitutions in Crisis: Political Violence and the Rule of Law (Oxford
University Press: New York/Oxford, 1991), 84–134.
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Bundesverfassungsgericht decided whether or not a parliamentary decision
to join the European Union was constitutionally permissible, the judges
developed a theory of democracy that is not expressed in the Grundgesetz.15 When the results of the 2001 presidential election became the
subject of intense conflict in the USA, even the most cherished constitution
remained finally silent. In short, constitutional guidance is given least when
needed most. Constitutionalism has produced a paradoxical phenomenon:
seeking to constitute political communities by designing their constitutions, it has failed to offer anything which actually serves in practice. One
may ask if anything is, or has been, constituted at all.
T OWARDS A R EALISTIC ACCOUNT OF C ONSTITUTIONALISM
Does this mean that we have to abandon the modern idea of constitutionalism? Must we simply admit that its empirical and epistemological
assumptions are wrong and that it is time to come up with improved
versions or even successors?
In contemporary legal and political theory, the traditional constitutional
ordering-concept is indeed being reconsidered. Under the heading “multiculturalism”, for instance, constitutionalism’s deficiency is said to be its
inability to cope with diversity and it is argued that modern constitutions
are based on a liberal ideology that is intolerant of non-liberal political
cultures, so that constitutionalism can never provide a basis for genuine
multicultural societies.16 This line of argument may lead to an orderingconcept in which institutional designs are no longer based on unique sets
of principles of right order.17 In the “new constitutionalism”, furthermore,
constitutions are analysed as so-called “preference formers” rather than as
mere instruments, employing an ordering-concept which does not focus
on the imposition of substantive norms but which seeks to facilitate and
optimise public choice.18 But it is “postmodernism” which finally takes
the bull by the horns. According to Rorty, postmodernism is driven by
a distrust of the typically modernist concern with ideologies, universal
15 I refer to a decision of the German constitutional court regarding the ratification of
the Maastricht Treaty by the German Parliament: BVerfGE 89, 155–213.
16 R.J. Lipkin, “Liberalism and the Possibility of Multicultural Constitutionalism: The
Distinction Between Deliberative and Dedicated Cultures”, University of Richmond Law
Review, 29 (1995), 1263–325. How, for instance, will we ever be able to give constitutional
recognition to cultural phenomena such as women’s circumcision or vendetta?
17 As in J. Tully, Constitutionalism in an Age of Diversity (Cambridge: Cambridge
University Press, 1995).
18 Soltan, op. cit., 14.
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values and “truth”.19 In support of its criticism of such a project, postmodernism employs an epistemological argument – simply rejecting as
unintelligible any foundationalism – that may not be very constructive
but nevertheless presents a serious challenge. Its anti-foundationalism
(whether “justified” or not) may as a matter of fact lead to the rejection
of any constitutional ordering-concept whatsoever in its denial of the very
possibility of constitutional claims, since any such must rest on some
epistemological foundation. Constitutionalism is a project that creates an
illusion, namely the constitution. Concerning Starr’s plea for the impeachment of President Clinton, a postmodernist might assert that his case was
built on, literally, nothing. The President’s behaviour was criticised in
statements that refer to an object, the constitution, that we simply cannot
know or represent and which, therefore, does not exist.
However, such attempts to discredit constitutionalism leave us with the
question why we are willing to hold on to the designer’s perspective in
spite of being well aware of its inadequacy. Since 1789, when they adopted
the Déclaration des Droits de l’Homme et du Citoyen, the French have
made several constitutions that aimed – but failed – to determine national
order and to rule out chaos. And yet today’s French Republic is taken
to be constituted in a written document containing its blueprint. Since
1954, when the US Supreme Court decided Brown v. Board of Education,
racial segregation in education was constitutionally forbidden, although
it continued to occur in schools.20 Nevertheless, the United States takes
pride in seeing itself as the Promised Land of constitutionalism. Since
the invention of democracy, finally, there have always been doubts as to
whether citizens have any real influence on government. Nevertheless, we
do not hesitate to conceive and speak of our political community as a
democracy, a constitutional design that gives power to the people. However
epistemologically unfounded and unrealistic this may be, it does not keep
us from continually using the idea of constitutionalism. More precisely,
it does not keep us from writing down constitutions in documents or
acknowledging them in some other perceptible form; from making reference to this evidentiary material; from believing that a variety of practices
stem from them; from characterizing Western societies by the existence
of a constitution; from starting wars and revolutions in their names;
or, finally, from prosecuting presidents and deciding elections in their
name.
We cannot disregard the fact that we show an undaunted adherence to
a line of thought that is evidently missing its target. In Durkheim’s terms,
19 R. Rorty, Truth, Politics and Post-modernism (Assen: Van Gorcum & Co., 1997), 26.
20 Brown v. Board of Education, 347 US 483 (1954).
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239
one might say that societies have a “collective inclination” towards it, that
the modern idea of constitutionalism seems to be favoured and nourished
by a social force.21 Rather than criticising its lack of rationality, I suggest
that we try to understand this tendency. Why is an ordering-concept that
does not work so warmly embraced in practice? What follows is devoted
to answering this question on the basis of two assumptions that I take to
be entirely reasonable. First, I assume that there must be a strong, social
reason for the survival of a line of thought that is in itself unconvincing.
Second, I take it that this reason is to be found in practice, that is, in the
way we actually use constitutional thought to take decisions in concrete
situations.
DWORKIN ’ S A MBIVALENCE
Some scholars in contemporary legal and political theory are sensitive
to the practical impact of constitutionalism. In Law’s Empire, Ronald
Dworkin presents his well-known conception of the constitution as an
interpretive concept, defending the view that the truth of constitutional
propositions is a matter of their making sense in the context of a comprehensive, constructive interpretation of legal practice.22 Dworkin compares
the activity of constitutional decision-making to that of contributing a
chapter to a chain-novel. In both cases we are bound by an existing
storyline and at the same time free to determine how it continues. This
leads to complicated interpretive processes in which we understand stories
as a whole in order to determine the proper reading of subsequent chapters.
Dworkin is of the opinion that a constitutional decisionmaker generates
truth on the basis of a sense of constitutional integrity: “[H]e believes
that the American Constitution consists in the best available interpretation of American constitutional text and practice as a whole, and his
judgement about which interpretation is best is sensitive to the great
complexity of political virtues bearing on that issue.”23 Like many contributions to jurisprudence-oriented constitutional theory, this analysis has an
undeniably sociological flavour. Dworkin seems to approach constitutionalism from the standpoint of an analytical observer of actual processes
21 E. Durkheim, Suicide: A Study in Sociology (Padstow: The Free Press, 1951), 297–
325.
22 R. Dworkin, Law’s Empire (London: Fontana, 1986), 223: “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice,
fairness, and procedural due process that provide the best constructive interpretation of the
community’s legal practice.”
23 Ibid., 398. Dworkin uses the word “integrity” in the sense of completeness.
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of reasoning, and the reader may recognize the contours of a discursively constructed constitutional reality. However, Dworkin fails to draw
the ultimate conclusions which follow from his analysis. In the end, his
sociological perspective is replaced by a more traditional normative institutionalism, for example where he argues in favour of an internal as against
an external perspective.24
The internal perspective, as advocated in the theory of law as integrity,
addresses the substance of claims – holding for example that slavery is
wrong – in the light of constitutional morality. Such a view is defended as
being the best interpretation available and on that account the only right
one. According to Dworkin, this is not a matter of believing that opinions
are ‘really’ (objectively) right, however, but rather a matter of relying on
“the soundness of a general interpretive attitude to call into question all
possible interpretations of a particular object of interpretation”.25 Argumentation from the internal perspective thus involves the use of a so-called
“language of objectivity”: “slavery is ‘really’ or ‘objectively’ wrong, [and]
this is not just a matter of opinion . . . it would be true even if I (and
everyone else) thought otherwise . . . it gives the ‘right answer’ to the question whether slavery is wrong . . . the contrary answer is not just different
but mistaken”.26 By contrast, according to the external perspective we
do not defend a particular moral or interpretive claim passionately but
are sceptical and disengaged. This is not a matter of believing that it
is a mistake to have opinions, but rather a matter of developing metatheory about their epistemic status or classification. We may still hold
the view that slavery is wrong, for instance, and give reasons for it, but
nonetheless insist that this view and these reasons are “projected upon, not
discovered in, reality”.27 According to Dworkin, the external perspective
leads nowhere because it does no more than try to reveal the subjectivity
behind objectivist language. The external sceptic simply holds that there
cannot be right answers in morals or interpretation: people have divergent opinions about justice and we should not pretend that this world is
independent of people’s attitudes.28 The outcome is that, because different
cultures produce different views, we have to admit that any particular view
is to be doubted. But such an approach is no less fruitless, Dworkin argues,
because it can neither add to nor subtract from interpretive projects.29
24 Ibid., 78–83.
25 Ibid., 78–9.
26 Ibid., 80.
27 Ibid.
28 Ibid., 83.
29 Ibid., 86.
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However subjective a particular moral position may be, we cannot but
eventually take a stance.
From a sociological perspective this is an intriguingly ambivalent argument. On the one hand, Dworkin’s analysis serves to deepen our insight
into constitutionalism as a sociological phenomenon. It presents a picture
of constitutionalism as a “language-game” in which participants make their
claims as if they sprang automatically from some original design that is
truthfully expressible in linguistic statements. On the other hand, Dworkin
seems to close our eyes where he had just opened them. It may be true
that ‘objective’ claims are in fact subjective, but it is useless to realize it.30
It may be true that our traditional beliefs can be proved to be figments of
the imagination, but choosing no longer to act on them does not contribute
to the type of activity in which we are in fact engaged: moral debate. We
are simply being invited to refrain from reflexivity. We may be doing no
more than playing a language game, Dworkin appears to be saying, but
let us just carry on and play it – for that is the only way to engage in
constitutionalism.
The line of argument is alluring, but it leads straight back to the paradox
of constitutionalism. By assuming that the internal perspective can lead to
the best available interpretation, to a ‘right answer’, Dworkin presupposes
a constitutional order preceding constitutional decision-making. While he
is opposed to the idea of a pre-existing legal constitution – because he
perceives the law as an ongoing creative interpretation – he nevertheless embraces the idea of a pre-existing moral constitution. In fact he
speaks literally of a “constitutional morality” inherent and expressed in
extant legal and political practice and revealed in the process of constitutional decision-making.31 Dworkin thus rekindles the thought of a (moral)
design on which we ought to found our constitutional knowledge. His
constitutional theory is thus no less unrealistic than the modern idea of
constitutionalism: we shall never get to see the moral constitution ‘at work’
as an effective system, and it will prove impossible to find a convincing
epistemological foundation for claims on the moral constitution. In short,
the notion of law as integrity is yet another foundational effort that has no
foundation.
30 Dworkin speaks of a “. . . silly and wasteful preliminary dance of skepticism”: ibid.
31 Ibid., 126. Claims of constitutional right presuppose moral arguments that we, as
reasonable agents, can properly judge. This constitutional morality is analysed in N.
MacCormick and O. Weinberger, An Institutional Theory of Law. New Approaches to Legal
Positivism (Dordrecht: Reidel Publishing Company, 1992), 171–88.
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A D ISCOURSE P ERSPECTIVE
The point that Dworkin misses is that it is quite possible to take the
perspective of external scepticism without undermining constitutional
beliefs. Whereas Dworkin contends that this perspective can lead only to a
destructive form of relativism, it can lead also to a positive understanding
of constitutional thinking and practice. The first step to such an understanding is that we stop evaluating the external perspective in the light of
its contribution to the internal perspective – for that is like evaluating a
hammer for its fitness to serve as a murder weapon. Just as it is more to
the point to judge hammers by their capacity to drive nails, the external
perspective ought to be judged on the external knowledge it can help to
provide, regardless of the possible impact of this knowledge on the beliefs
underlying the internal perspective.
Looking at constitutionalism from a genuinely external perspective, as
uninvolved researchers, suggests that constitutionalism is best understood
as an instantiation of the concept of discourse, that is to say as involving
communication about cognitions, by using language, and in a social situation.32 Concerning the first of these characteristics, I have already set out
how constitutionalism takes a designer’s perspective on the exercise of
political power. This implies that in constitutional discourse cognitions
are communicated about the original order, or design, of the state as a
political organization. The second characteristic is fairly evident: constitutional knowledge is produced and exchanged by using language (although
knowledge can be expressed in other media, it seems reasonable to assume
that constitutional knowledge is hardly expressed non-linguistically). As
for the third characteristic, the fact that constitutional discourse takes place
in a social situation, it may suffice to point out that constitutions are public
phenomena: by its very nature, constitutional discourse pertains to a social
environment, to the political community as a whole.
As uninvolved researchers, we may next observe that constitutional
discourse uses an ordering concept that is ineffective, and that constitutional knowledge is often epistemologically unfounded. This is the kind of
external scepticism that Dworkin sees as destructive. In the perspective that
I am proposing, however, external scepticism does not have to lead to the
destruction of constitutional pretensions. As uninvolved researchers, we
are not interested in throwing doubt on the designer’s perspective. Rather,
we are eager to understand why and how this ordering concept remains
in use. The fact that constitutional knowledge looks epistemologically
32 T.A. van Dijk, ed., Discourse as Structure and Process. Discourse Studies: A
Multidisciplinary Introduction vol. 1 (London: Sage Publications, 1997).
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unfounded from the outside offers an incentive for finding an alternative
explanation of the production of constitutional knowledge. If constitutional
truth is not produced in relation to some constitutional object in the world,
then how does it come about?
In the discourse perspective I propose, the answer to that question is
to be found in social constructivism. On Berger and Luckmann’s account,
processes of social construction are based on “institutionalisation”: social
knowledge is objectified to the extent that it is experienced as possessing a
reality of its own, as “a reality that confronts the individual as an external
and coercive fact”.33 Objectified social knowledge can count as existent in
a social environment. Epistemologically, this implies that the foundation of
knowledge is no longer to be found in objects in the world, but in human
experience or belief. Hilary Putnam characterizes this viewpoint by stating
that a proposition will be true if “a sufficiently well-placed speaker who
used the words in that way would be fully warranted in counting the statement as true of that situation”.34 In other words, truth cannot be defined
on the basis of what is, but on the basis of what is accepted as being in
a specific context. Quine takes this view to its limit by conceiving of the
totality of our knowledge as a ‘man-made fabric’, as a web of beliefs that
is continuously rewoven.35 In this way, constitutional knowledge may be
seen as part of a highly specialized ‘sub-web’ of beliefs constructed in
constitutionalism, and counting as existent in a social environment.
According to Berger and Luckmann, social construction may take place
in all sorts of social behaviour. It is reasonable, however, to assume that the
social construction of constitutional reality takes mainly place in discourse.
Füzér seems to take this view when analysing the “construction of constitutional reality in Hungary”.36 He speaks of a process of building an
“invisible constitution” as a result of the permanent interpretation and
application of the written constitution.37 On this approach, constitutional
law is taken to be an inherently textual phenomenon, leaving “a free space
33 L. Berger and T. Luckmann, The Social Construction of Reality: A Treatise in the
Sociology of Knowledge (Harmondsworth: Penguin, 1967), 50–63, p. 55. The authors have
in mind primarily the social knowledge of everyday life, for instance the ability to operate
in a physical environment or to behave socially, but they also mention more complicated
and particular aggregates of knowledge such as the law (166).
34 H. Putnam, Representation and Reality (Cambridge, Mass.: The MIT Press, 1989),
115. See also Patterson, op. cit., 151.
35 W.V.O. Quine, “Two Dogmas of Empiricism”, in his From a Logical Point of View
(Cambridge, Mass.: Harvard University Press, 1953), 20–46. See also Rorty, op. cit.
36 K. Füzér, “The Invisible Constitution: The Construction of Constitutional Reality in
Hungary”, International Journal of Sociology, 26 (1996–7), 48–65.
37 Ibid., 53, 62.
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OLAF TANS
of meaningful concretization”.38 Applying the constitution is thus a matter
of creating it at the same time, in the course of a hermeneutical process
resulting in movement to some sort of conclusion. The constitution is
basically a construction of meaning, a web of beliefs, woven in countless
moments of discourse in which statements are accepted as warranted. As
Füzér shows, in constitutional theory discourse theory eventually leads to
focussing on the analysis of the practical use of constitutional language.
The domain of constitutional discourse will have to be explored and
mapped out in order to trace the social (discursive) construction of the
constitution. How might the discourse perspective enable us to reconsider
the issue of the paradox of constitutionalism?
E XPLAINING THE PARADOX OF C ONSTITUTIONALISM
How can we explain societies continuing to use an ordering concept that
basically does not work? As I have argued, Dworkin initially seems to
address this question by analysing constitutional decision-making from
the standpoint of an analytical observer, but eventually the problem returns
because he presupposes a morality underlying it. One may conclude that
Dworkin is interested only in preserving a myth. For my part, I am
interested in why the social force behind the modern idea of constitutionalism is apparently strong enough to seduce distinguished scholars. Why
do we continue to talk, think and act on the basis of an ordering ideal
which we know cannot be realised? Giddens offers a first glimpse of an
answer:
It should be clear, however, that the tendency of some philosophers to equate reasons with
“normative commitments” should be resisted: such commitments comprise only one sector
of the rationalization of action. If this is not understood, we fail to understand that norms
figure as “factual” boundaries of social life, to which a variety of manipulative attitudes are
possible. One aspect of such attitudes, although a relatively superficial one, is to be found
in the commonplace observation that the reasons actors offer discursively for what they do
may diverge from the rationalization of action as actually involved in the stream of conduct
of those actors.39
When engaged in constitutionalism, participants offer discursive reasons
related to the rationality of institutional design, and their internal perspective favours adherence to the idea of a pre-fixed constitution which
can be used as a foundation for concrete norms in particular situations,
38 Ibid., 51.
39 A. Giddens, The Constitution of Society: Outline of the Theory of Structuration
(Berkeley: University of California Press, 1984), 4.
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245
and which can result in a social order in accordance with that constitution. This is another way of saying that they are driven to use the
language of epistemological foundationalism, portraying the constitution
as objectively existent. Interestingly, this use of language is maintained
even when well-founded criticism from the external perspective proves it
to be unrealistic. As a first step towards an explanation of this paradox, I
suggest that we see constitutions as constructions that are treated as if they
were objectively existent designs imposing a certain order. Participants in
constitutional discourse are thus operating in a system of beliefs without
at the same time concerning themselves with the soundness of the beliefs
in question.
Although these participants offer their reasons following the rationality
of institutional design, they are in fact involved in a discourse directed
at producing, rather than representing, constitutional knowledge. If they
want to contribute to the constitutional web of beliefs, participants have to
present their claims in such a way that they become acceptable to others.
They are thus implicitly trying to meet the requirements of communicative rationality. In order to present their claims as ‘truthful’ they take
on a manipulative attitude, and this has the important consequence that
they interact on the assumption that the constitution is an effective design.
Dworkin seems to suppose that this assumption must be a real engagement
in believing that there are foundational norms, but I would rather speak
of a ‘performative’ engagement. Participants may actually believe that
constitutionalism is nothing more than a charade, but as long as they participate in constitutional discourse as if they believed that the constitution
exists as the foundation of constitutional knowledge, they meet the requirement of communicative rationality. If we are prepared to presume that the
constitution is there to be known, we can play the game of constitutional
discourse.
We thus witness an ordering concept operating in the context of a more
encompassing social process, so that it can no longer be taken at face value.
That is how constitutionalism can proceed in such a paradoxical manner.
Constitutionalism may seem to be about designing institutions to dictate
social order, on the basis of a foundationalist epistemology, but in fact
it only exploits this idea as a means of communication. The designer’s
perspective is a discursive auxiliary construction.
A S OCIALLY R EALISTIC ACCOUNT OF C ONSTITUTIONALISM
When Kenneth Starr intended to impeach Bill Clinton he claimed that a
constitution existed which imposed a certain order. In other words, he
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claimed that the truth of the proposition that Bill Clinton ought to be
impeached was the inevitable outcome of a line of argument based on a
pre-existing constitutional design. It has been argued that such a claim can
easily be defeated in anti-foundationalist style: Starr points his finger to an
invisible object. Such a claim can also be challenged by drawing attention
to the practical results of the modern idea of constitutionalism. What is the
sense of making appeal to a pre-existing order when constitutions prove to
be unable to secure social order? We are now in a position to gain a better
understanding of the phenomenon.
First, we have to acknowledge that, because Starr is participating in a
communicative process that uses constitutional discourse as a medium, his
claim is to be seen as linguistic behaviour governed by communicative
rationality. This means that he is concerned primarily with generating
acceptance of his claim in a social environment, notably by making use of
the institutions and conventions that constitute the legal practice in which
he participates. Starr indicates a written rule as the ground of his claim
and describes the facts that make this rule applicable. Furthermore, he
may employ one of the regular forms of argument or, in a Dworkinian
perspective, unfold a narrative in which his legal position is rephrased
in moral terms. In short, the prosecutor follows the generally accepted
procedure for contributing to the web of constitutional beliefs.
Second, we have seen that a communicative process of this kind
involves claims presented as being objectively founded, that is to say,
it involves claims that seem to be based on the false assumption that
they follow from a pre-existing design. However, we can now see these
claims in a different light: they are discursive tools used to achieve the
general acceptance of certain conclusions. Even when we observe participants expressing their beliefs in the idea of constitutionalism, including
its inherent epistemological foundationalism, we must realise that the
expression of such a belief is part of a discursive role. Starr is not really
trying to limit power on the basis of a pre-existing design, but suggesting
to the American people that this is what he is doing because this is what the
American people expect him to do. One could say that he thus conforms to
another, more fundamental, convention of constitutional discourse, namely
that participants must behave as if they were realizing the constitution.
In this reflexive perspective, we can also understand Dworkin’s ambivalence. As I have outlined, this author sets out to analyse legal interpretation as a process of communication. He speaks of legal practice as an
argumentative phenomenon, one of “actors involved in legal drama”, and
of constitutional decision-making as an unfolding political narrative in
THE CONSTITUTIONAL THEATRE
247
objectivist language.40 In this respect, Dworkin proves to be sensitive to
social reality and prepared to approach normative phenomena from a relatively external viewpoint. However, in the course of his elaboration of the
theory of law as integrity, the analysis takes an internal point of view:41
he speaks of “the best available interpretation”, of “integrity as sovereign
over law”, and of the fact that “the Constitution is foundational of other
law”.42 In brief, the theory takes a designer’s perspective. We are asked
to believe that actors operating in the seemingly infinite domain of legal
interpretation are in fact bound by an underlying system of constitutional
morality. It is tempting to assert, as I have in fact done, that Dworkin’s
theory is based on an ultimately unrealistic hypothesis. It may be more
to the point, however, to conclude that he proves to be sensitive to the
communication game of constitutional discourse, that he presupposes the
existence of a moral constitutional design not because he is an idealist
or a fool, but because he is confronted with the rules and conventions
of constitutional discourse. He conforms to them because he wants to be
taken seriously by other participants. In this way, his discursive behaviour
is communicatively rational: playing the game of make-believe. Where
Dworkin was initially a spectator of constitutional drama, he later climbed
the stage.
C ONCLUSION
Constitutionalism can proceed on the basis of an aspiration that is generally
not realized because it is not really concerned with the establishment of
order by means of institutional design, but with the pretence that this is
the case. The force behind this collective imagination seems to be that
societies tend to reflect on their normative foundations or, if you like, on
their identity. This process of normative self-reflection uses constitutional
discourse as a medium. In turn, constitutional discourse uses the fiction
of the constitution as catalyst. The idea of constitutionalism is a working
hypothesis, a presumption that makes constitutional discourse possible.
From their internal perspectives, however, participants would undermine
the legitimacy of their discourse by acknowledging that their statements
are only hypothetically founded. Constitutionalism is a matter of suggestion, a matter of communicating about constitutions as if they were what
we wanted them to be, and did what we wanted them to do.
40 Dworkin, op. cit., 12, 13, 225.
41 Ibid., 14.
42 Ibid., 398, 404, 380.
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Are we to conclude that modern constitutionalism is not related to the
rise of any ‘real’ order? Are we to share Rorty’s opinion that we should
stop the quest for quasi-objects and start making decisions ourselves?43
I think the answer must be in the negative. First, I cannot imagine how
people could engage in public debate without creating some sort of quasiobjects. Second, and more importantly, I do not think that constitutionalism
is entirely ineffective. It may be true that it is feeding a myth, but the constitutional myth may have a great capacity for producing order. My point is
that we should be sensitive to the fact that this does not happen in the
way that the idea that dominates modern constitutionalism would have us
believe: there is no design that is reflected in reality. There is no institutionbased limitation of power in the literal, mechanical sense. Rather, the
limitations that are imposed follow from the constitutional myth’s influence on human consciousness: “[C]onstitutionalism is like religion. It is
an effort to bring coherency to seeming chaos, supplying a set of beliefs
that seek to canalise human conduct.”44 In my view, constitutionalism can
be seen as a cultural phenomenon which makes reflection on public issues
possible. In this respect, it provides a number of concepts, institutions and
practices which contribute to the generation and expression of public and
moral identity. But most of all, it generates a shared belief necessary for
establishing this kind of theatre.
Faculty of Public Administration
University of Twente
P.O. Box 217
7500 AE Enschede
The Netherlands
[email protected]
43 Rorty, Truth, Politics and Postmodernism. op. cit., 26.
44 A.S. Miller, Politics, Democracy, and the Supreme Court (Westport: Greenwood
Press, 1985), 27.