ABSTRACT
The political transformations of the former communist countries that had the establishment of democratic societies as a formal goal were grounded in the constitutions or basic laws that were drawn up in the immediate post-1989 period. If we accept the understanding of the modern constitution as codifying the fundamental values that hold together a political community as well as regulate its political and social interactions, the constitution-making that the East-Central European societies engaged in (or rather, small groups of elites claiming to represent these societies) consisted in fabricating the foundational framework of the emerging democratic regimes. In this, the processes of constitution-making in new and emerging democracies have received great attention by political scientists, political sociologists, and legal scholars (see, among others, Arato 1994; Czarnota et al. 2005; 2006; Elster et al. 1998; Howard 1993; Preuss 1995; Priban and Young 1999; Sadurski 2003). The focus has been predominantly on the material-institutional dimension of constitutions, in terms of the codification of the distribution of powers, systems of rights, and institutional systems of political order. A related focus is on constitutional courts as independent guarantors of the novel democratic constitutional orders. In this, however, relatively little attention has been paid to what one could call the symbolic dimension or rationality of constitutions (cf. Priban 2007). This dimension of constitutions goes beyond the institutional and largely technical-political design of democratic regimes, and points to the problem of democratic legitimacy and the need for a reflection of widely shared views and values in constitutions. The institutional discussion regards the design of constitutions and the elaboration of their specific functions as – even if in some instances obstructed by the struggle for political power – mostly as a rational, technical-political matter. Thus, the strongly promoted independence of constitutional courts is often taken as a technical necessity to guarantee an objectively ‘sound’ democratic order (see Bellamy 2006). But, in this, the need for societal and cultural embedment of democracy, and by implication also of its constitutional framework, is overlooked or at least sidelined. In other words, there is a relatively limited attention for the need for a symbolic integration of the political system, as embedded in belief and cultural value-systems that prevail in a political community. A constitution needs to reflect cultural
narratives of a particular democratic regime so as to enjoy legitimacy among its subjects and to provide meaning to the principles of political order and popular sovereignty. As argued by Michel Rosenfeld, ‘[a] polity cannot survive as such within the context of constitutional democracy unless all its constituents can identify at some level as belonging to a single political self’ (Rosenfeld 2006: 24). The argument in this chapter is that the conceptual language in which the constitution is set up needs to, and in empirical reality will to various extents, reflect in important ways the dominant political perceptions and understandings of a particular society (cf. Brier 2005: 15). What is more, constitutions need to define their subject, and thus need to come up with some definition of the demos that coincides with dominant understandings within (political and civil) society as such, to entertain some kind of symbolic hold over society (cf. Brier 2005: 15). The relation between political culture(s) and constitutions needs therefore to be understood in terms of the former providing a linguistic, conceptual, cultural and symbolic framework for the latter (even if not the exclusive language, as external discourses clearly play their role, see Sadurski 2006). This framework includes key concepts and their definitions (more or less coherently structured in political grammars), which profoundly inform the process of constitutionmaking and the constitutional text itself. In this, constitutions often reflect a plurality of political languages (cf. Rosenfeld 2006). They do so in a myriad of ways: in their definitions of the membership/citizenship of the relevant society, in references to the particular historical and cultural characteristics of society, in their particular understanding and hierarchization of various types of rights, as well as in that of the importance of participation and decentralization of decision-making. The plurality of democratic political cultures in their interpretation of the functions and meaning of democracy, and thus also the specific interpretation of the ‘tension’ between democracy and constitutionalism (see Bellamy and Castiglione 1997), and the way such plurality is expressed in constitutions, can be related to the notion of different models or conceptions of constitutionalism (see, for the latter, Castiglione 1996; Bellamy and Castiglione 1997; Hayden 1992; Kis 2003; Preuss 1995; Rosenfeld 2005, 2006). Different constitutionalisms can be identified, both by departing from political theory (Castiglione 1996) as well as from the interpretation of existing political realities (Rosenfeld 2005). In correlation with the ethics of democracy I outlined in Chapter 4 as the underpinnings or nuclear concepts of political cultures – the ethics of rights, self-rule, identity, and distributive justice – it is possible to identify a number of conceptions of constitutionalism, that is, the liberal, republican, communitarian, and substantive conceptions of constitutionalism. But before turning to an elaboration of a plurality of constitutionalisms, it is important to distinguish between a number of dimensions of constitutions, to which different constitutionalisms relate in different ways.
