- 1 See Walker 2010: 277. In his words: “modern constitutionalism has become dependent upon, even paras (...)
1Paolo Sandro’s central claim in The Making of Constitutional Democracy (Hart Publishing, 2022) is that constitutional democracy hinges on the distinction between law creation and law application. I agree with a functional understating of that distinction, and I am interested in exploring the way he articulates it. He starts his argument by supporting Neil Walker’s assertion of the existence of a "double-edged incompleteness" regarding the relationship between constitutionalism and democracy.1 Following Walker, Sandro believes that constitutionalism in the modern age assumes the centrality of democracy, being qualified by it. In particular, constitutionalism complements democracy by placing limits on the power of the majority, including the ability to terminate democracy itself.
2For Sandro, such a relationship implies that the legitimacy of a constitutional system does not lie in the mere existence of constraints to the exercise of powers, but crucially, in the effective sharing the procedures and values enshrined in the constitution by the polity as a whole. This stance allows Sandro to show how the existence of constitutional democracy does not depend on an entrenched constitution nor on the formal constitution’s ability to provide comprehensive mechanisms for limiting arbitrary powers. In fact, Sandro's argument suggests that constitutional democracy can be achieved with or without an entrenched and comprehensive codified constitution. In his words: “The legitimating limitation that constitutionalism provides democracy with has been pursued, and (contingently) achieved through (at least) three models: the legal, the common law, and the Commonwealth”.2
3This clarification of the modes of the actual existence of constitutionalism greatly helps make sense of the fact that the conditions for constitutional democracy, which in Sandro’s view include the possibility to distinguish between law creation and application, can be explored by grasping the essence of constitutionalism as a legal phenomenon throughout different forms or manifestations. For Sandro, constitutionalism is foundationally an attempt to curb and prevent the arbitrary exercise of power by establishing a type of law (ius) alongside the law created by political authority (lex). Sandro chooses to describe the relationship between these two types of law as one of coexistence in the same legal order. After all, he writes that ius is created “alongside” lex (p. 12). The understanding of constitutionalism Sandro forwards is neither obvious nor mainstream. Indeed, it is more common to encounter authors insisting on the existence of a relationship of supremacy, whereby the fact that the constitution is the higher law always implies that legislation depends on the constitution for both its existence and substantive content. Sandro urges us to understand constitutionalism as a more sophisticated enterprise in which the constitution builds a (democratic) system wherein the sovereign’s will encounters some limits and is yet not entirely determined by the constitution. Sandro explains that this is the only way we can make sense of constitutionalism in the common law tradition.
4Italian constitutional scholar Gaetano Silvestri makes a similar point, arguing that constitutionalism implies that the principle of legality interacts constitutionality in ways that, only in case of conflict, requires the latter to pre-empt the former.3 Silvestri, therefore, understands constitutionality as a type of legality living alongside — and at times clashing with — ordinary legality (legislation). Sandro cautiously avoids suggesting that the principle of legality somehow runs in parallel with constitutionality because, I speculate, he is aware of the confusion that such a statement could create in a common law legal mind. He has rightly chosen another argumentative path. When he describes constitutionality as a form of “legal otherness”, he deftly captures the fact that constitutional law is created to impose limits on ordinary legislation that must be enforced to preserve the democratic features of a constitutional system.
5In what follows, I focus on Sandro’s choice of defining modern constitutionalism as legal otherness from a twofold perspective. First, I will discuss his methodological choice of entertaining arguments in constitutional theory by looking at legal traditions. Doing so allows me to elucidate the extent to which comparative constitutional law can help the development of studies in constitutional theory. Second, I will address the accounts of constitutionalism that Sandro introduces in his work to set the scene for the discussion of the conditions for the existence and endurance of constitutional democracy. This comment will therefore focus on the first two chapters of Sandro’s book.
- 4 By “thick description” I refer here to the understanding of the historical roots and cultural aspec (...)
- 5 Law 2005: 659 and Tushnet 2006: 1249. See also Beatty 1994.
6In his first two chapters, Sandro does not separate his theoretical elaboration from a thick description of legal traditions.4 In fact, he understands his normative constitutional theory as fed by a deep understanding of the legal traditions within which concepts such as the separation of powers, rule of law, and judicial review have been articulated. This is a relevant methodological choice that defends not only the idea that constitutional theory can greatly benefit from comparative studies, but also that what Sandro calls a “context-bound” understanding of legal systems is essential to sound constitutional theory. From such a viewpoint, The Making of Constitutional Democracy is an interesting intellectual project occurring in an historical moment in which several scholars engage with the idea of a “generic constitutional law”.5 These scholars identify similarities emerging across jurisdictions regarding the way in which constitutional law protects rights and prescribes how they can be limited. Along these lines, scholars claim that constitutionalism is a phenomenon that can be explained by assuming a thin description of legal systems and looking at the existence of substantially similar solutions adopted to guarantee the protection of fundamental rights. In many of those accounts, the phenomena of transnational dialogue and integration are described as playing a crucial role in the emergence of a global constitutional law (that can be understood as “generic constitutionalism”). Sandro’s book takes a different angle, though it is still interested in conceptualizing constitutional democracy beyond the closed boundaries of one particular legal order or tradition. He describes constitutionalism by appreciating the existence of different forms of constitutional life and by acknowledging that constitutionalism is a historically situated phenomenon. This, I imagine, makes him sceptical of identifying the success of global constitutionalism by observing the generalised state practise of adopting constitutions formally policed by Constitutional Courts.
7Sandro touches upon the relationship between general constitutional theory and legal tradition on several occasions, especially in the first chapter of his book. He calls for an understanding of constitutional systems as “context-bound”, meaning they are intertwined with history and legal culture. For Sandro, however, this does not imply that “general jurisprudence” does not provide constitutional studies with explanations and insights on the conceptual foundations of constitutionalism.6 He shows, however, that the utility of such contribution is conditional upon exploring the circumstances of the creation of legal concepts. To support his methodological choice, Sandro uses notions such as legal tradition and legal culture.
- 7 Patrick Glenn uses the locution "legal tradition" as an epistemological tool that can explain the d (...)
- 8 For Merryman, legal tradition refers “to culturally conditioned attitudes that underlie legal rules (...)
- 9 Nelken 2004.
8For scholars in comparative constitutional law, legal tradition refers to the intellectual attitudes underlying a certain, historically defined, form of political organization and functioning of the legal system, which is the object of transmission from one generation to the next.7 These intellectual attitudes are also conditioned by the legal culture.8 The latter notion is a broader than legal tradition and describes the complex mosaic of theoretical constructions and cultural influences that inspires the thinking of the community of jurists and, therefore, also commonly accepted interpretative practices.9 Seen from this perspective, Sandro is arguably starting down a path that exposes an important challenge for constitutional theory, namely, the problem of contingency.
9To understand the extent to which extent contingency challenges constitutional theory, it is sufficient to recall that liberal constitutionalism theorized constitutions as expressions of the universal principles of a legitimate government. Rationalist approaches, advanced by Enlightenment philosophers and encapsulated in written constitutions, supported such a reading of constitutional projects. In parallel, historicist accounts interpreted constitutions as the result of empirically understandable historical facts that generate legal and political solutions. The two major accounts of Western constitutionalism, then, conceive of constitutions as reflecting a settled wisdom deductively derived from universal principles or forged by historical experience.
- 10 Scheppele 2017: 35-66.
10If, however, one explores the “social life of constitutions”, meaning the social foundations of constitutional order — as Sandro seems interested in doing, given the methodological choice of addressing both the problem of validity and the legitimacy of constitutions — one finds that constitutions (and more importantly, constitutional design) are contingent on the social conditions in which they are adopted, which implies something beyond being forged by history.10
11The concept of contingency is neither a synonym for “historical contextuality” nor a proxy for the (limited) time frame of validity of the universal values enshrined in a constitution. To explain the concept of contingency, a short digression is needed. The notion of contingency has been used in comparative constitutional studies exploring the formation of constitutions. It supports doctrinal efforts to identify and explain differences among legal systems regarding the adoption of a specific constitutional model. In particular, contingency elucidates how social circumstances may shape individual behaviours and/or influence courses of action, thus determining different outcomes in otherwise similar historical contexts. The origins are placed in sociological approaches to constitutions. Talcott Parsons first introduced the concept of contingency in his discussion of the emergence of social systems.11 Parsons describes social interactions as exchanges between two or more actors influenced by reciprocal expectations. Contingency refers to the fact that the outcome of any communication depends on how actors orient their behaviours. According to Parsons, individuals generally act not only in relation to their counterpart in the communication, but also in relation to what they think their counterpart’s expectations are regarding their behaviour.
- 12 Parsons 1969: 339
- 13 Luhmann 1981: 23 and Luhmann 2002.
12By elaborating on this notion, Luhmann identified contingency with the possibility of alternatives. In Luhmann’s view, social interactions are characterized by confrontation; their outcomes are inherently unstable and always reflect one of an infinite number of other possibilities.12 The content of constitutional norms is thus selected from other possibilities and, in that sense, is contingent on the social interactions that led to its formation. Luhmann would then agree with Parsons that constitutions can be understood as devices for coordination or strategic coping in highly differentiated polities.13
13Even if Sandro starts from a legal science perspective, his methodology speaks to social sciences that are interested in the condition for the creation and endurance of constitutions. In his account, constitutions can be understood either as the result of historical process or as the contingent product of a rationalist project. Still, the chances of constitutional principles enduring largely rests on a constitution’s ability to govern society’s need to articulate its claims and preferences in an organizational form in a specific historical moment. This is how I interpret his insistence on the effective sharing of the procedures and values enshrined in the constitution by the polity as a whole as a condition for the existence of a constitutional system.
14Sociolegal studies suggest that constitutionalism is a phenomenon that can be better understood without resorting to normative thinking. Sandro shows that another radically different approach is possible — one that includes general jurisprudence and political theory, without neglecting the fact that constitutional systems are founded on social acceptance. The author then suggests that it is possible to elaborate on constitutional theory without overlooking the “context-bound” dimension of constitutional problems and solutions.
- 14 See Dogliani 1990: 282, who identifies the problem of legitimacy as one of political theory as oppo (...)
15Sandro's exploration of constitutionalism delves deeper than the observation of the constitution (whether material or formal) as a source of law. He does not stop there because he intends to study constitutionalism as a phenomenon that questions not only general jurisprudence but also political theory. Sandro is therefore particularly interested in exploring the problem of the legitimation of political authority as captured by the phenomenon of establishing a constitution (see, in particular, p. 11).14
16By taking this complex path, he discovers that most legal systems are characterized by a mix of written and unwritten constitutional norms, and he persuades us that modern constitutionalism does not necessarily lie in the presence of an entrenched constitution, but rather in the existence of a type of law that is “other than” legislation and capable of effectively constraining powers to the extent it is legitimised in the polity. The evocative image of “otherness” Sandro uses describes constitutional law as a body of substantive rules and principles that impose constraints on powers to the extent that those rules and principles are generally accepted by the polity.
17I agree with the need to avoid constraining theoretical reflections on constitutionalism to either the existence of a formal constitution or the substantive constitutional nature of legislative provisions. I take a different stance, however, on the criterion for classifying constitutionalism. It is not merely a matter of labels. Distinguishing between different types of constitutionalism impacts the identification of the circumstances that make the distinction between law creation and application more difficult. I submit that such a distinction is difficult to achieve by design within models of “all-powerful constitutionalism”.
18To explain my argument, I explore one of the prongs of Sandro’s account, namely the identification of constitutional systems based on the interplay between the constitution and the sources of law. I focus on how constitutional systems “invented” constitutional supremacy or, to be more precise, the consequences of constitutional supremacy on institutional balance between the parliament and the courts. Two models emerge by taking this approach:
- 15 Kumm: 341. See also Ackerman 1997: 798.
- 16 Kommers & Miller 2012: 47.
a) the “all-powerful constitutionalism” (or even total constitutionalism)15 that is characterized by a strong level of co-extensivity between law and polity.16
b) the “unambitious or unassertive constitutionalism” that is based on the distinction between ordinary discourse and constitutional discourse and does not generally intend constitutional provisions to provide legislators with a comprehensive set of answers and solutions to any legal issue.17
- 18 I have used this term in Romeo, 2020: 904-905.
19Under “all-powerful constitutionalism”, the enforcement of the constitution is understood as the activity of allowing it to entirely shape the legal order and to condition the application (and interpretation) of any norm in the legal system.18 The constitution, therefore, needs to be applied in all its content as it must reflect the actual exercise of public powers. Such a premise provides conceptual foundations for the doctrine of the horizontal effect of fundamental rights in Germany.
- 19 Kommers & Miller 2012: 47.
20This path is not without its risks, however, because the all-powerful type of enforcement (application) calls for reducing the line between creation and application in the sense that the only way in which constitutions can be preserved is by enforcing them through judicial creation/application and by limiting parliamentary intervention to the realisation of constitutional mandates. This type of constitutionalism believes in the strict enforcement of the constitution in all its particulars, "for to do otherwise would be to let the society become lawless."19
- 20 Kommers & Miller 2012: 47.
- 21 Limbach 2001: 7.
21This model of constitutionalism has taken root in continental Europe. On the contrary, in the American legal mind, "the written constitution is far from coextensive with American polity."20 This point is also emphasized by the former president of the German Constitutional Court, Jutta Limbach, who argues that the job of the Bundesverfassungsgericht "is to tie policy to law” in the sense of subordinating it to law.21 Constitution in this sense means subordination of the legislation and, more precisely, an institutional hierarchy of subordination of the Parliament to the Constitutional Court.
22Constitutions, however, do not always claim to be all-powerful in their own polity — or to shape any relationship of legal significance. The normativity of the constitution — the constitution’s ambition to shape the legal order and its institutions — translates into its all-powerfulness via a certain conceptualization of constitutional supremacy. The concept of constitutional supremacy describes a constitution’s ability to establish a hierarchical primacy within the sources of law. This is to say that constitutional supremacy indicates that the constitution trumps any other norm in the legal system in case of open conflict, and/or it conditions the interpretation of other norms that show some sort of inconsistency with constitutional imperatives. The latter point highlights the fact that the principle of supremacy not only affects the ranked order of legal norms but also the institutional structure of the state because the supremacy of the constitution also implies the subordination of the legislature.
23Under unambitious/unassertive constitutionalism, constitutional supremacy is a conceptual device that allows the constitution to trump legislation in case of conflicts. It does not, however, imply that constitutional provisions condition the application of any other norm in the legal system (in the absence of a doctrine of “interpretation in conformity to the Constitution”), nor that the legislator’s job is limited to the enforcement of the constitution. In contrast, the legislator can either realise the constitutional design by deciding on a particular course of action or implement its political agenda irrespective of the existence of a constitutional mandate — provided that such an implementation does not run afoul of constitutional provisions. This model of constitutionalism reflects the constitutional practice of many common law countries and generally calls for enhancing the role of parliaments and curbing that of courts.
24In my view, discussing the conditions for the existence and endurance of constitutional democracy requires confronting the existence of a widespread constitutional culture, at least in continental Europe, that interprets the constitution as a model of society whose realization largely rests on judges’ roles as creators of constitutional norms through their application, often in a legal vacuum left by reluctant legislators. Sandro’s claim that law creation and law application should be kept separate, then, appears timely in a constitutional reality where overlap between the two constantly occurs. Moreover, such overlapping has been incentivised by parliaments’ inabilities or even refusals to perform their roles in protecting fundamental rights.
25One of the merits of the book is the advancement of the idea that a context-bound understanding of legal concepts is essential to achieving a comprehensive theory of constitutional democracy. In fact, Sandro’s interest in the conditions of existence and endurance of democratic constitutionalism prompts us to recognize the relevance of placing constitutional theory within a thick understanding of legal traditions. The context-bound approach to constitutional law does not amount to a renunciation of general jurisprudence. On the contrary, Sandro’s book builds a model of constitutional democracy that speaks to different legal cultures.
- 22 See for example, the discussion of the ambiguity of the term “law”, which can refer to both ius and (...)
- 23 Dyzenhaus 2004: 65.
26Sandro shows his readers that even when discussing the merits of theories, it is critical to grasp the universe of contextual meaning that concepts and conceptualizations carry along in different geographical and historical scenarios.22 Moreover, Sandro guides the reader to understand analytical distinctions as conceived within the European continental legal tradition as they approach or interact with the debate in the Anglo-American world. This is an undeniable merit of the book that clarifies that legal theory can only benefit from the movement “between the more particular to the more general”,23 which captures the conceptual effort to move from the “narrowness” of certain legal constructions to a general theory of law.
- 24 See the Hungarian case described by Sadursky 2019.
- 25 This is a reference to the proposed reform of the judiciary in Israel: see Salzberger 2023. Legisla (...)
27The book is an invitation to further explore how the social foundations of constitutional democracy can be translated into the forms of (constitutional) law. This effort is of particular relevance as constitutional democracy is facing an era of crisis, evidenced not only by backsliding phenomena within the European Union,24 but also by global challenges to the legitimacy of courts as guardians of the constitutional limits to political powers.25 In a context of tension between the provinces of law and politics, then, Sandro’s work reminds us that constitutional democracy is tenable as long as we understand the distinction between law creation and application as the expression of the incompleteness of constitutionalism, whose identity is now tied to the current imperatives of democracy. Powerful courts may then be identified as the best replacement for parliaments that are unable or reluctant to exercise their role. It is, however, a solution that only exposes the risk of substantially undermining the fundamental tie between constitutions and their polity.