Professor Branko Smerdel, University of Zagreb-Law, Croatia

Professor Branko Smerdel, University of Zagreb-Law, Croatia

constitutional identity: beyond the view from the courts[1]

Abstract

One of the substantive elements of the constitution is the idea of ensuring a sustainable development of legal, political and social relations towards the democracy and the rule of law. The constitution is regarded as a great strategic plan which should gradually be implemented. The constitutions come into existence in “constitutional moments” when fundamental constitutional choices are being made by the people. The process of implementation consists of a number of decisions on lower levels, from the legislature to the independent judiciary. While the creation of the constitution is often compared to architecture, the implementation could be considered as engineering. The theory of constitutional engineering reappears in the moments of great historical turns. In the article the theory is briefly presented, its aims and limitations explained and the great attempts on scientific construction of constitutional order have been pointed out. A particular attention has been paid to the European developments. The author is of an opinion that the theory has been neglected and that much more attention has to be invested into making rational constitutional choices, since the alternatives are scarce and scaring as ever.

Generally speaking, we all know that the development has not gone that way and the actual European crisis emphasizes how excessive those expectations had been. But the theory lives. It was applied during the great expectations from the Convention on the future of Europe and drafting the failed European Constitution.[2]Again, just those days the changes of the Lisbon Agreement have been put forward as a possible solution to the so called ‘crisis of euro’ which in fact means the most severe crisis of the European Union itself. Obviously, it makes an alternative to a creation of states and entities by force, and seems the only way to establish a relatively durable system of institutions not dependable of alternation of political parties in government. This, we believe,justifies our reexamination of the theory of constitutional engineering in order to explain its potential as well as its shortcomings.

Purposes and aims

In theory, first comethe fundamental constitutional choices. They are made in various modes, from referenda to convents, but all of them include a decisive expression of the popular will, which is taken in the proper “constitutional moment”.[3]The most importantof such decisions was a decision on independence taken at the referendum, and the subsequent adoption of the Constitution. The result was a written document grounded and fully determined by those fundamental decisions or choices. What should follow is a well controlled constitutional process which enrolls under the Constitution: series of decisions on all levels, which are altogether aimed at implementation of the constitutional principles and thus, to the transforming the words on paper intoa social reality.[4]For what purpose?

Donald Lutz formulates the following, usually cited purposes of application of the – in his words “constitutional technology”: first, the rule of law; second, democracy; third, maintenance of public good. Those have been expressed by the American Founders as the inalienable right to “life, freedom and a pursue of happiness”. But he emphasizes that the true purpose lays in the introduction of crucially important innovations into social life, which should serve to a sustainable development encompassing the development of material goods as well as of a social morality.[5]

Specific decisions require an informedinsight and a wide array of expert knowledge, not only in the field of jurisprudence.Thus, if we could compare the fundamental choices to thepieces of art the project of architecture, the process of devising solutions under the Constitution might be compared to a construction job – thus the term engineering fits well. The Constitution is understood as a grand project - a strategic plan of a sustainable social, politicaland legal development founded upon, and dependable of the expectations of a constant stabile economic growth. Profound changes in society and economy were expected to occur gradually, under the decisive influence of continuous reforms in the process of establishment of the new legal system. The influence of science should prevail over the traditional domination of voluntarism on the part of often irresponsible political leaders. The principle of rule of law should dominate all the decisions by rulers as well as those who apply and enforce the constitution and the law.

Limits

Theoriesof institutional construction as a basis for an accelerated social development have appeared under the different titles which reflect aspirations of their authors: constitutional architecture, constitutional design, devising institutions, constitutional modeling and even crafting of democracies.[6]Quite recently some authorsput the stress even onan idea of a“fine institutional tuning”, whereas the most advanced version has been offered by D. Lutz.[7] I considerthe most plausible a classic term “constitutional engineering”.It is because while the theory and research advances,its dissemination as well as application has been in a pretty rough shape.[8] We actually have not witnessed much precision in constitutional construction during the process of transition. It is obvious that the political developments of the Great Transition are far from being scientifically controlled, if not completely “out of control” as asserted early on by Z. Brzezinsky [9]. Important to notice, this does not go exclusively for the ‘post-communist’ systems in their efforts to close a developmental gap, but also to the democratic models they follow. The process of democratization has definitely been again proven reversible and the expectations of “the end of history” as naive as its better learned critics had warned.[10]

It is important to emphasize, that the theory of constitutional engineering might serve (and have served) toomany different aims and purposes. This requires us to be much more specific. We define ‘the constitution’in the proper sense only and exclusively as a democratic document, which aimsata promotion and protection of human rights and freedoms in relation to the stateand all other authorities. Structurally, it has to be ensured by an application of a separation of powers, and checks and balances being imposed upon power-holders in all branches of government.Thus, in a proper sense, the constitutional engineering shouldprimarily serve thepromoting and strengthening of those purposes.

Arts of arcane manipulation of political institutions, although they are considered asengineering by their authors, cannot be considered as ‘constitutional’ since their aims are in opposition to the purposes of anytrue democratic constitution. Needles to say, constitutional documents of autocracies are excluded.It also goes for thecunning manipulation of institutions bytechniques aimed at ensuring a lasting political monopoly of certain individuals or groups. The best known instance is a widely employed electoral engineering in democracies ranging from rude gerrymandering up to sophisticated techniques of promoting certain political options and groups.[11]

Indeed, there have beennumerous reservations as to what the theory actually means. But that is the case with any engineering. They say that military engineers make weapons, while civil engineers make targets. Experts for explosives excavate coal but also destroy cities. American Founders wrote in the Federalist about governmental authority as “means of evil which can be used to do good”. Does it not justify a term‘engineering’ and its notion in the explained limited sense? The theory of an institutional construction must be in the service of the people! Constitutionalism is an expression of an attempt to use technology in order toput together power with justice.

The test of history

The idea of applying social sciences to serve to a realization of constitutional choices has appeared, disappeared and reappearedregularlyat the critical junctures of modern history. American Founding Fathers have made a serious effort to explain the theory of constitutional choiceto the people of the thirteen American states in the collection of essays published in newspapers, an today known as “The Federalist”.[12] They expected a “reflection and choice” to become a historical alternative to the “accidents and force”, which have dominatedprocesses of establishing human political orders[13] and in particular to avoid the repetition of the European history of permanent warfare.

To tell the truth, the very idea had survived even the one-party system and the ideological domination of a socialist dogma, under the disguise of the idea of a peaceful transformation into democracy. The waves of constitutionalism have been accompanied with the said theory during the democratic transformations in Western Europe, from the establishment of the communities until the first wave of democratization in the seventies of the 20th Century. At the beginning of the nineties, it was employed by the leading elites of the post-communist transitions, with the obvious American influence.

It was also present during the efforts of the last decade to establish the proper constitutional framework for the European Union, and was particularly visible in proceedings of the eventually unfortunate European Constitutional Convention from 2001 till 2004.[14] The failure of that effort, which was expected to achieve results comparable to the American constitutional Convention of 1787, was especially discouraging. After the rejection of the new Constitutional Treaty by the people of Netherlands and France, many scholars came to join Vincent Ostromwho had dared to conclude: “The Mankind is at the end of the 20th Century not closer to a scientific approach to democratic organization of society that Alexis de Tocqueville in his books of the beginning of 19th Century.”

Is deserves to be noted that this pessimistic conclusion aims to the opposite: if we considerthe nature of politics, which has not changed, our planning can bring much more accuracy. The failure of the European Constitution was at the first place due to the excessive political expectations and ambitions of the leaders of the time. They expected to lay fundaments of a new federation against the best experiences and the warnings of the classics that imposing a federation would bring into jeopardy the compound system as such. During the current discussions in Croatia, I have often quoted a witty warning which summarized our common experiences: Yu-rope, no thanks!” [15]. After six years it seems that European Union have returned back to traditional means of making strategic decisions within international alliances by informal, rather than trough legally provided channels. Theoretically, it means that ‘the constitutional engineers’ have missed to calculate some important elements into their construction. In political theory this is called a voluntarism.

Legal philosopherLon L. Fuller has formulated the list of eight „routes to a failure for every legal system“. These are the following: (1) The lack of rules or law, which leads to ad-hoc and inconsistent adjudication; (2) Failure to publicize or make known the rules of law; (3) Unclear or obscure legislation that is impossible to understand. (4) Retroactive legislation. (5) Contradictions in the law. (6) Demands that are beyond the power of the subjects and the ruled. (7) Unstable legislation - daily revisions of laws. (8) Divergence between adjudication/administration and legislation.[16] It is easy to conclude that all of those phenomena not only occur in a variety of combinations in almost all the modern democracies, but that they cumulatively dominate legal systems of many countries and in particular of the so called ‘transitional’ states. Longer term a failure of the legal system has regularly brought a serious social crisis whose corollary had been threats of dictatorship.

Legal historian Harold Berman has a quarter of century ago diagnosed a series crisis of the Western legal systems that threatens with new revolutionary overturn of the legal order.[17] It seems that those and other scientific predictions have not influenced political decision making in the most developed countries in the world. Naturally the situation replicates in the countries in transition with their precarious experience with the very idea of a rule of law.

During the longest negotiation process on accession in history of the EU, both foreign experts and Croatian negotiators have taken what might be named an “elementary school” approach. The expectation has it that after the legislation is in place, the development would irreversibly follow. Various pieces of the acquis communitaire have been dully translated and urgently adopted by the Parliament in hundreds of laws, which were subsequently adapted according to further requirements of other individual experts. There is at the moment a huge corpus juris which still needs to be implemented – or abandoned.The legal system is in a dramatic need of consolidation.

The problem is that many among such solutions do not serve the intended purposes but quite often have unexpected effects. Let me mention only the two among numerous instances of such construction of the legal system against the best knowledge of, however rudimentary, science of constitutional engineering.

It is important to emphasize that it is not to blame foreign experts for institutional weaknesses and failures that we have readily included into our legal system. Foreign advice might be of much help, but only if checked and double-checked by domestic experts who know the situation, the social arena in which the solutions are expected to work. The blame is completely on domestic policy and their instruction to negotiating team to fulfill any demand and never to claim the unconstitutionality of any proposal, in order to achieve the political aim which was a long time ago declared as one and only with no alternative.

Conclusion

In Croatia the scientific approach to constitutional engineering has been almost completely neglected. What worries us even more is that apparently the same goes for the European Union. The critical and final test of viability of any the constitutional system, are the situations of serious crises when the truth of power relations comes to light. But has there ever existed two generations in Europe who would have been spared from serious crises. Of course not, but there exists one who has been spared from war, whereas unfortunately Croatia makes an exception.

As a matter of fact the theory of constitutional engineering is a theory of how to deal with crises. That is why it ever again returns from oblivion after conflicts and crises. Pessimistic evaluations of the mid 20th Century that ‘the Constitution has not fulfilled what was the most important expectation, to bring the social order safe from shocks and crises’[18]actually demonstrate how enormously excessive expectations had been nurtured by the Western constitutionalists in the aftermath of the second World War. They have been emulated by the extremely optimistic ideas at the beginning of the 21stCentury, that the very constitution might bring answers to open questions of the future of civilization.[19]

In my view a return to constitutional approach is ‘a must’ on both levels. This is why I consider it worth discussing such an impractical theory in this moment. We are in a dire need of consolidation of constitutional systems in order to respond to new challenges, while simultaneously preserving the fundamental principles of democracy, human rights and freedoms and the rule of law. This requires a different approach to crises.

[1]Paper prepared for presentation at the XIV Congress on European and Constitutional Law, Regensburg, Njemačka, ožujak 2012.

[2]Branko Smerdel: Convention on the Constitution of Europe: relevance of the theory of a compound republic, wow 4 conference, Indiana University, Bloomington, 2006. Robert Podolnjak: Explaining the failure of the european constitution: a constitution-making perspective. // Zbornik pravnog fakulteta u Zagrebu. 57 (2007) , 1; 119-167

[3]Those were not limited to a selection among proportional representation and a majority vote and between the parliamentary and presidential government as asserted by Arend Liphart:Constitutional choices for new Democracies, Journal of Democracy, i, 2, (1990).

[4] Vincent Ostrom: The political theory of a compound republic. Designing the American experiment' (new chapters coathored with Barbara Allen), Lexington books, 2008.

[5] Donald D. Lutz: principles of constitutional design, Cambridge, 2006, 5.

[6] Giovanni di Palma: To craft democracies, University of California press 1990.; Andrew Raynolds (ed.): The architecture of democracy, Oxford university press 2002: Huan Linz and Alfred Stepan: Problems of democratic transition and consolidation, John Hopkins univ., London 1996.

[7] Lutz, op.cit.

[8]For a realistic approach see Giovanni Sartori: Comparative constitutional engineering: an inqury into structures, incentives and outcomes, Macmillan press, 1994.

[9] Zbigniew Brzezinski: Out of control, zagreb 1994.

[10] RalphDahrendorf: Considerations on the revolution in Europe“, Zagreb, 1990.

[11]Robert Podolnjak: Electoral engeneering, seminar/

[12]This was the best known attempt in popularization of constitutional ideas in history. the Slovenian Parliament's attempt to present the Constitution in a cartoon underlines importance of such efforts in order to promote the living constitution /ustavavstripu.

[13]Francis Fukuyama: The origins of political order.Fom prehuman times to the French revolution, Profile books, London 2011.

[14]Branko Smerdel: Convention on the constitution of Europe and the process of constitutional choice, The Federal Trust, London, june 2005, at http// www. fedtrust.co.uk.uploads.constitution; Peter Norman: The accidental constitution, the story of the European convention, Eurocomment, 2005.

[15] Ciril Ribičič: Mozaik ustavnih sprememb, Ljubljana, 2004; Branko Smerdel (ed.): Primjena federalnog načela i ustavni amadmani iz 1971., pravni fakultet, Zagreb, 2007.

[16]Lon l. Fuller:The morality of law, Yale university press, 1969, 33-38.

[17]Harold Berman: Law and revolution. The formation of the Western legal tradition, Harvard university press, London, 1983, 16.

[18]Karl Loewenstein: Constitutional government and political process, Chicago, 1957, 161.

[19] Peter Haberle: Ustavna država, Zagreb, 2004.