[Publication originale : Int’l. J. Const. L blog, 12 juin 2015]
Over the past few years, I have been led to try to draw theoretical implications and conclusions (not to mention political and moral ones) from new forms of constitutional law practice such as the Venice Commission’s, a broad advisory organ of the Council of Europe.
When it was created in 1990, the Venice Commission was tasked with offering constitutional assistance to Central European nations, a mission expanded to the new republics of Eastern Europe the following year, with the fall of the USSR. While that mission remains crucial, the Commission’s work has expanded into new areas substantively as well geographically. The Venice Commission now advises not only on constitutional matters in the strict sense of the word, but also on subjects having to do with the judiciary, elections, referenda, and political parties. Among its members, an increasing number of Western and Northern Europe have resorted to its services. Originally set up by a partial agreement among 18 member states of the Council of Europe, it is, since 2002, when all of the member states joined it, governed by a broadened agreement that allows non-European states to become full members, so that its work increasingly tends to reflect a global, rather a merely European, constitutional heritage. In addition to the 47 member states of the Council of Europe, the Commission has 12 additional members (for a total of 59): Morocco, Algeria, Tunisia, Israel, Kirghizistan, Kazakhstan, South Korea, Mexico, Brazil, Chile, Peru, and the United States. Belarus has the status of an associate member; Argentina, Canada, Uruguay, Japan, and the Vatican that of observers. South Africa, the Palestinian Authority, and the European Commission have a special status.
At this stage, I am inclined to think it is time legal scholars took seriously the hypothesis that a distinctive legal “science” ― the word being used not in the modern and narrower sense of a natural, empirical or otherwise factual science, but in the older and broader sense of a specialized, established, and fruitful academic discipline that produces knowledge, here a normative one ― is not only possible, but also emerging, especially in the field of constitutional law, where a not-so-new but as yet underappreciated, if not overlooked, approach consists in identifying global standards. This claim is dual: epistemological and methodological.
Is it not somehow absurd that, even as the conditions of thought are such that political philosophers are increasingly finding some of their best arguments in the international and constitutional instruments, laws, and judicial decisions, in many countries legal scholars measure the “scientificity” of their scholarship by the distance that separates it from legal scholarship? Ever since legal systems were nationalized, the European ius commune made up of Roman and canon law vanished, and the social sciences consolidated, the legal science has been in search of itself.
At the risk of over-generalizing, we might say that in its current state, legal science presents the following epistemological tryptich. It is said that, beyond the letter of the law and the cases, the legal scholar, who by definition ought to possess a knowledge different from that of the legal practitioner, has three options: (1) to seek (more or less hopelessly) the true knowledge about law in any discipline, preferably an empirical one, other than law itself; (2) to resign him- or herself (more or less cynically) to adhere to a purely “political” conception of the law (such as relativism, decisionism, culturalism, existentialism, etc.); or, (3) to resolve (more or less naïvely) on going back to the natural law of the philosophers, that is, to the idea of “philosophical foundations” of the law.
The emerging legal science of constitutional law is thus made hard to acknowledge by persistent epistemological blockages, such as meta-ethical claims that, just like any other normative practice, to be a science, law would need to be reduced to facts or made dependent on basic statements of fact, or the idea that, failing that, law can be no more than an ancillary discipline to philosophy. However, these blockages can be overcome. Beyond analyzing the jurisprudence that has emerged from the expansion of constitutional justice, and taking into account the development of international and regional law, the ongoing globalization of constitutional law requires scientifically comparing the constitutional laws of individual nations.
The product of this new legal science can be considered as ius gentium, about which Waldron ― in a most brilliant book that humbly presents itself to simply be on “foreign law in American courts” but which more fundamentally aims at bringing together some aspect of universal law and the Dworkinian logic of principles that are both present in Riggs v. Palmer (at 66) ― asks the following rhetorical question: What if ius gentium “is largely unknown and unintelligible to those who pride themselves on the study of moral ideas but is studied and used by those who trained and pride themselves on an understanding of law?” (at 74) Although one understands that Waldron intends to emphasize the differences between ius gentium and philosophy, his description of the former as “a body of positive law” (at 28) is somewhat misleading. To be sure, in the same way as Dworkinian principles ― whose logic is at work here (at 66-7) ― do not cease being mainly legal merely because their ascertainment involves, among other things, moral judgment, ius gentium does not become a form of moral or political philosophy just because “[i]t may alloy itself with elements of natural law inquiry.” (at 40)
Nevertheless, Waldron’s ius gentium does not correspond either to a national system of positive law or to an international or regional positive public law. (at 29-30) Nor does it coincide with the entirety of foreign legal systems, or with all of them and supranational law together. It is rather “a sort of overlap” between these systems of positive law. (at 28) Yet this indirect overlap defines ius gentium only partially and at a diffuse substantive level. At a more formal level, ius gentium is meant to be distinct, separate, independent from these other systems whose legality, more positive, is of a different character than its own. (at 74) Waldron says that ius gentium is a body of principles none of which “has the weight of a legal rule,” or force of law or, in short, the authority of a norm of positive law. (at 208) Thus at a formal level, ius gentium differs from positive laws by its principle-based nature. It also differs from them at a territorial level, by its diffused global reach. Substantively, however, it is closer to them, being situated at their more or less abstract intersection points.
However, for Waldron, the principles of ius gentium are the subject of a legal-scientific consensus, and he regards this “consensus and [this] community” not merely as an “accumulation of authorities” but as a vast and “dense” methodological “network.” (at 105) Consequently, beyond substantive legal principles, “it is not so much empirical facts or moral insights or attractive reform proposals that jurists glean from other’s judgments or from a worldwide legal consensus [as] ways of analyzing difficult problems ― modes of specifically legal analysis which relate the elements of a problem to the basic reasons of justice and public welfare with which the law is concerned.” (at 99)
Waldron himself is somewhat struggling to situate and to define his ius gentium. But here is, in my opinion, the epistemological key to the issue. Embracing law-as-a-distinctive-and-global-discipline beyond law-as-a-situated-object, ius gentium, the principles it is made of, and, downstream of it, “legal standards” all belong to what I should like to call a “second order legal positivity.” Like legal principles, legal standards, as abstract types of best “practices” (and especially norms) of law from around the world, are thus only a source of law in a substantive, not a formal, sense. This is how legal science is possible. This is where it resides.
For the moment, however, the new science of ius gentium is not as well established as one might like to think. Not unrelated to the epistemological background presented above, indeed partly a consequence of it, is the methodological confusion that reigns in the field of comparative constitutional law. Reference to foreign law and more systematic comparison of laws follow a variety of logics. Sometimes these logics are in competition, while at other times they are situated on different levels and could thus be combined, were it not for the fact that they are also, most often, governed by different epistemologies. Even the Waldronian model of ius gentium, epistemologically well-developed though it is, is not free from methodological ambiguities. But such methodological challenges can be met.
Indeed, the activities of the Commission for Democracy through Law, better known as the Venice Commission, though in need of methodological explanation, have prudentially yielded an impressive corpus of best practices of constitutional law across the world. The Venice commission has turned its attention to various areas such as constitutional drafting, enactment, and amendment; the functioning of democratic institutions; federalism; fundamental rights; elections, referendums, and political parties; the judiciary and constitutional justice. As the Commission’s work shows, it is possible, through a back and forth movement that characterizes interpretive equilibrium, to go from rule of law principles to the comparative search for functional equivalents, to typology, to valuing, to standards, and back to principles, all of this without seeking naïve and dogmatic global uniformity.
The rule of law, human rights, and democracy are often presented as the three great principles of the global constitutional heritage. However, a coherent reconstruction makes it possible to situate them as aspects of a modern democratic rule of law state founded on human rights. Although it retains a formal dimension, this modern conception of the rule of law is sometimes described, by way of pars pro toto synecdoche, as the “substantive conception,” especially since it is true that it gives rights the pride of place. The global principles of constitutional law can thus be reduced to a modern conception of the rule of law focused on fundamental rights. Thus goes the synthesis. At the level of analysis, T.R.S. Allan points out that “[t]he rule of law is an amalgam of standards, expectations, and aspirations.” (at 21) Indeed, it is necessary to address the question of what it is that distinguishes a standard from a principle, an indicator, or a simple horizon.
While the principle or the indicator, such as the independence of the judiciary or of the constitutional judges, can be merely the result of an analysis ― more precisely, of the application of a derivative legal logic to the product of the generally consensual interpretive reconstruction of the global practice of the rule of law ― a standard is, for its part, more directly a practice itself or a category of practices regarded as being among the best. The search for best practices can include a negative or eliminatory aspect, an ascertainment of the worst cases, of what Kim Scheppele describes as “aversive precedents.” Standards are different from principles or indicators by their greater degree of concreteness, of positivity, of precision.
While the arsenal of principles that make up the modern conception of the rule of law takes the role of a value criterion in an effort of ascertainment of the best practices of constitutional law throughout the world, it is not alone in doing so. It is not all there is to the standard-setting method, which resorts to comparative law. In this field, to an approach that sees context as insuperable, we should prefer that, theorized notably by Ernst Rabel, Max Rheinstein, Otto Kahn-Freund, Konrad Zweigert, and Hein Kötz, which directs most brilliant contributions ― functionalism, including in the realm of constitutional law. As the works of several scholars show, once it has been, of course, situated in its context, the functional equivalent has a role to play in the comparison of constitutional and public laws. By creating types, the functional method of looking for equivalents makes the mass of national, regional, and international laws intelligible. As Guillaume Tusseau’s study of constitutional justice demonstrates, typologization must, insofar as possible, operate a posteriori, after a real study of positive law, rather than a priori, taking the shape of what Tusseau calls great scholarly models. Yet while the functional methodology of comparative law must be immediately followed by a critical appreciation, in reality, functionalist comparativism does not by itself provide the operating method of valuing certain types above others.
Obviously, the issue of valuing one type of practices rather than another can only arise in the presence of a plurality of types. Hence it is possible to speak of the “Generic Bill of Rights,” modeled by Law and Versteeg on the basis of a “rights index” which they themselves developed from a database of 729 constitutions enacted and ratified by 188 states between 1946 à 2006, as a standard. Most of the time, however, a comparative constitutionalist will be faced with a plurality of types, so that valuing one or some of them rather than the others will require a criterion, a benchmark. It will then be possible to refer to the general principles of the modern rule of law, and the indicators derived from them. However, before doing so, it will be necessary ― following an epistemology which, as we can easily see, favours the more positive sources and allows resorting to the less positive ones only so far as necessary ― to consult supranational, regional, or international law, and in particular that relative to human rights.
The combination of comparative constitutional law and the taking into account of international human rights law regularly contributes to valuing certain types rather than others, and thus to the ascertainment of standards. But these, in return, tend to enrich the interpretation of principles. The road the science of constitutional law travels from principles to standards is a two-way one, so that moving from standards to principles is equally possible. A sort of reflective equilibrium, its interpretive equilibrium can only be maintained by means of incessant back-and-forth movement.
With the new science of constitutional law as ius gentium and comparative constitutional law, the method of global standards of constitutional law will meet various resisting forces. According to Waldron, what truly separates those who oppose the consideration of foreign law and those who promote it is not the gap between the parochialism of the former and the cosmopolitanism of the latter group, but rather that between law conceived as will and law conceived as reason. As reason ultimately remains faith, we can say, paradoxically, that the main force resisting the notion of global standards of constitutional law is the lack of faith… in legal reason. Indeed, Roberto Unger’s quip is well-known: with the emergence of the Critical Legal Studies movement, the legal profession became “like a priesthood that had lost their faith and kept their jobs.” (The Critical Legal Studies Movement (1983) 96:3 Harv L Rev 561 at 675) That movement’s purported contribution was to have done away with the faith. I am against such scepticism, and, beyond sheer epistemology, I think, following Dworkin, it is also a matter of moral and legal responsibility.
Suggested Citation: Maxime St-Hilaire, Global Standards of Constitutional Law: What Knowledge? What Method?, Int’l J. Const. L. Blog, June 12, 2015, at: http://www.iconnectblog.com/2015/06/global-standards-of-constitutional-law-what-knowledge-what-method.