An Essay on Rule-of-Law Culture and Constitutional Resilience

By Théo Fournier

This article is a shortened version of the re:constitution working paper, which was originally published by the Forum Transregionale Studien in 2023 and can be read here.

Théo Fournier

How does a constitution resist the passage of time? How does a legal and constitutional framework remain legitimate in the eyes of the citizenry, years, if not decades after its adoption?

A first way to look at the question of the resilience of a constitution through time, or constitutional resilience, is to understand where the constitution comes from. The context of adoption of a new constitution does matter. In constitutional law studies, constitutions are often detached from their contexts of adoption. Yet, constitutional scholars tend to forget that most constitutions are adopted after a moment of great political crisis, if not after a war. A constitution closes a moment of political uncertainty and opens a new chapter which is supposed to be based on better values than the previous system. How does the constitution resist the passage of time? Through its full implementation. It is the implementation of the constitution and the values it carries that can ensure the resilience of the constitution. This is – in a very summarised way – the view of transitology studies which consider that the adoption of the constitution is not an end but the beginning of the consolidation of democracy.[1]

Constitutional studies take an opposite view of transitology studies and consider that the flexibility of the constitution can be a guarantee of its resilience. Constitutions are living instruments and the original text of a constitution merely remains the same throughout time. This flexibility is expressed through constitutional amendments and constitutional interpretation.

Constitutional amendments change the text of the constitution. They might change it to the point that the amended constitution can create an institutional system that can be far away from what the original text foresaw. A striking example is how the French constitution, adopted in 1958 in the midst of the Algerian war, evolved throughout time. In 1960, a first amendment transformed the confederal state of the French Community into a unitarian state to take account of the independence processes of former French colonies. In 1962, a new amendment changed the election of the president of the Republic from indirect suffrage to direct suffrage, redefining the balance of power between the executive and the legislative at the same time. The 2000 constitutional amendment reduced the length of the presidential mandate from seven to five years. The 2008 constitutional amendment created the ex-post constitutional review. Yes, the 1958 constitution is in force for the longest time of French republican history but only because it dramatically changed in 70 years.

Constitutional interpretation also plays a major role in adapting the constitution to changing societies. Constitutional interpretation can be understood as the way institutional actors interpret the constitution. It includes constitutional customs and constitutional review. Constitutional review is the most common understanding of constitutional interpretation, and it is indeed central to adapt a constitution to societal evolutions. France, so often described as the historical champion of human rights, only has a bill of rights in its current constitution because the French constitutional court created one ex nihilo in 1971. Such a move was probably necessary to adapt the French constitution to the development of constitutional adjudication worldwide and might have contributed to its resilience. An even more striking example of the influence of constitutional review on constitutional resilience is the concept of “permanently temporary constitution” theorised by the first Hungarian court of the post-communist regime. With this concept, the court decided on its own to consider the temporary post-communist constitution as a permanent instrument despite the political agreement negotiated during the democratic transition, which stated the exact contrary.[2]

A constitutional law approach to the issue of constitutional resilience offers a technocratic solution. Constitutional resilience could rely on the technicity, on the expertise of lawyers, on the design of constitutional amendment procedures, on the appointment of constitutional judges, and even on the wording of fundamental rights contained in the constitution. This approach was perfect for the 1990s and the 2000s. It was also perfect for a post-Cold War world, and very efficiently exported to Eastern Europe but also to Africa and the Middle East. It created fantastic networks of lawyers sent from one country to the other to find the perfect design. It was put in books, on the agenda of the UN, the Venice Commission, the IMF, and the World Bank. It was a time when people believed, naively, yet beautifully, that democracy was forever there, and that consolidation of democracy was a linear and always progressive process. Unfortunately, history does not like linearity and authoritarian tendencies came back.

Which country represents best the failure of constitutional resilience of a modern democratic system? Hungary does. Hungary, which had everything to be the perfect democratic regime. The post- communist constitution carried the values of liberalism – both economic and societal – agreed upon in negotiations between actors of the whole political spectrum during the political changes, including the representatives of the failing communist regime. Various constitutional amendments adapted the constitution to changing time. It had the most powerful constitutional court of the world, which could stand against the parliament and could push for its own vision of liberal democracy. Yet, the constitution did not prevent the election of Orbán despite his openly illiberal rhetoric. It did not resist his political agenda of “closing the revolution” and of adopting a new fundamental law in 2011. It could not do anything against the capture of the constitutional court, the manipulation of media, the oppression of minorities, the open conflict with EU values and institutions. And Orbán is not an interval in history. He has been in power for thirteen years in a row, he has been re-elected three times, always with a landslide, constitutional majority. His constitution is ten years old now, already half the life of the post-communist constitution and it could last for another decade. The Hungarian case is a limit to what we thought we knew on constitutional resilience.

Thus, there must be something more than the context of adoption of the constitution or constitutional flexibility to explain the resilience of a constitution or its failure to last. Part of the answer might lie in mechanisms of popular support that a constitution and its institutions can activate throughout time. Rule-of-law culture could be one of these mechanisms

Why is diffuse support[3] […] important for liberal democracies?

Liberal democracies are characterized by an inner tension which justifies a closer look at the mechanisms of support and consent it can trigger to last through time.

I should start with the distinction between constitutional democracy and liberal democracy. A constitutional democracy is a certain type of regime which organises the state, its institutions and the relationship between political authorities and the citizens around a constitution. A constitutional democracy is democratic, but it is not necessarily liberal. The constitution divides power between the institutions and sets in the stone the rules of election and the rules of political representation. Because of this structural role, the constitution has a higher value than other legal norms and should be protected by a higher threshold of majority. In a constitutional democracy, the will of the majority, embodied in the Parliament, is only scarcely limited. There is an assumption that the will of the majority cannot do wrong as it represents popular sovereignty.

In a liberal democracy, popular sovereignty is limited by a rule of law pillar. The purpose of the constitution is not only to organize power distribution but to ensure that the outcome of power distribution will not be harmful to minorities.[4] Liberal democracy is both majoritarian and counter majoritarian. Liberal democracy considers that what is embedded in the constitution has a higher value than what the Parliament can decide. Constitutional rights are there to limit popular sovereignty. At the same time, liberal democracy remains a democracy. The constitution must therefore ensure that winners of elections can effectively rule the country.

Liberal democracy is therefore the equilibrium between three components: regular elections, representative political institutions, and the protection of fundamental rights. I use the word equilibrium on purpose. Each component plays a major role in organising a liberal democratic system. If one is missing then the system is no longer a liberal democracy. The equilibrium involves three types of actors: the citizenry, political actors, and counter-majoritarian bodies. Counter-majoritarian bodies include all the non-elected bodies which have the possibility to counter the choice of the majority: courts and judges, media, civil society, and independent administrative authorities. I will only focus on courts and judges in the following paragraphs.

Figure 1: the equilibrium of liberal democracy

Liberal democracy is a fragile equilibrium. Its counter-majoritarian component is, first, not necessarily a logical thing for everyone. Why does a majority in a democracy have to be limited? Why counter-majoritarian bodies have the final word when they are themselves non-elected? The equilibrium of liberal democracy needs a strong discourse to become legitimate in the eyes of its members. History is an efficient discourse. Many mass atrocities were supported by majorities. A majority of Germans, Italians and French supported the installation of Nazism, fascism and collaborationism. History is an efficient mechanism of legitimation of liberal democracy. The post-war German, Italian and French constitutions were all built against the atrocities of the past and they all implemented a liberal democracy.

History can fuel an original consent and a specific support of members of a polity for a liberal democratic regime. But as in any other regime, such support and consent do not last forever. In Germany, Italy and France, the far-right and illiberal forces are either in Parliament, either in power. In the three countries and in many others, the same illiberal rhetoric is becoming more and more common: according to this discourse, we are now living in a tyranny of minority (rights) which threatens our democratic system.[5] There is a call for a new institutional design which is no longer based on an equilibrium between the three components of liberal democracy but rather on a predominance of elections and majoritarian choices over counter-majoritarian mechanisms.

Figure 2: The equilibrium of illiberal rhetoric

Rule-of-law culture and the reinforcement of diffuse support

Liberal democratic regimes must establish mechanisms of diffuse support to make them more resilient against illiberal rhetoric. I believe one of these mechanisms is rule-of-law culture.

Rule-of-law culture refers to the general awareness of living in a constitutional system where choices of the majority can legitimately be limited to preserve the rights of the minority. Peter Harbele’s definition of constitutional culture is a good starting point for trying to define rule-of-law culture more precisely. The German constitutional law scholar defines constitutional culture as being:

The sum of attitudes and ideas, subjective experiences, scales of values, subjective expectations and the corresponding objective actions, both at the personal level of a citizen and his associations, as well as the level of government entities and any other institutions related to the constitution.[6]

This definition differentiates two dimensions of culture, one which is focused on the citizens and another one on the institutions. I add a third dimension to my concept of rule-of-law culture. If rule-of-law culture refers to a general awareness of an institutional system based on rule-of-law, this awareness should be three-dimensional: between the citizens and the institutions, between the institutions, and between the citizens.[7] Citizens should be conscious that the institutional practice is based on an equilibrium between choice of the majority and protection of the minority. This is the infra-citizenry dimension. Majoritarian institutions should respect counter-majoritarian institutions and vice versa. This is the infra-institutional dimension. Citizens should be aware that relations within the citizenry is rule-of-law based. This is the vertical dimension.

Figure 3: The three dimensions of rule-of-law culture

I also distinguish three components of rule-of-law culture. A first component is constitutional consciousness which would be the general awareness of the presence of a constitution which structures political life. Constitutional consciousness is perhaps more a matter of infra-constitutional dimension and vertical dimension. In its infra-constitutional dimension, constitutional consciousness could mean that institutions are aware that their actions are governed by specific rules – constitutional rules – which cannot be changed via the classic legislative procedure. In its vertical dimensions, constitutional consciousness could mean that the citizens are aware that the act of voting, the rule of representation in Parliament, the delegation of powers to political authorities, etc. are foreseen in a constitution.

The second component of rule-of-law culture is rule-of-law consciousness. Rule-of-law consciousness would be the general awareness that the constitutional system strikes a balance between majoritarian choices and protection of the minority. Rule-of-law consciousness has a clear infra-institutional and vertical dimension. In its infra-constitutional dimension, rule-of-law consciousness could mean that majoritarian institutions, such as the Parliament, respect decisions of counter-majoritarian institutions, typically the decisions of constitutional courts. In its vertical dimension, rule-of-law consciousness could mean that the citizens accept that the majority in Parliament is limited by fundamental rights.

The third component of rule-of-law culture is right consciousness. Right consciousness would be the general awareness that liberal democracy is a right-based political system in which the implementation of fundamental rights contributes to the legitimation of the whole system.[8] Rights consciousness has first a vertical dimension for example when an administration facilitates access to rights for its users. Rights consciousness has an infra-citizenry dimension for example when some individuals, victims of the same abuse of right, organise themselves to litigate together against the violation.[9]

Figure 4: The three components of rule-of-law culture

Way forward: socialisation and direct experience as the sources of rule-of-law culture

David Easton identifies two sources for diffuse support. The first source is socialisation. As he explains, “considerable evidence already demonstrates that, if what is learned in childhood does carry over into later life, such socialization would have positive or negative bearings on the level of support for such objects as political institutions and norms”.[10] The second source is direct experience. In Easton’s words:

Members do not come to identify with basic political objects only because they have learned to do so through inducements offered by others… Rather, on the basis of their own experiences, members may also adjudge the worth of supporting these objects for their own sake… (personal experiences) become transformed into generalized attitudes towards the authorities or other political objects. They begin to take on a life of their own.[11]

Socialisation and direct experiences are not necessarily cumulative sources of diffuse support. Diffuse support can strictly rely on education and not on direct experience. An individual will continue to believe in a justice system even though he or she has never been directly confronted to it. Similarly, diffuse support can rely more on direct experience than on education. Easton seems to prefer such a diffuse support grounded in direct experience: “such belief about what is fundamentally right and proper in politics need not have their origins in what we inherited from others early in the life but in our own assessment of general political circumstances”.[12] This is a sign of optimism, it means that the shortcomings of socialisation, for example on education, can be compensated by direct experiences.

Easton’s analyses of the sources of diffuse support opens several avenues to think of mechanisms to reinforce rule-of-law culture. If socialisation and direct experience are central to the consolidation of a rule-of-law culture, what does it mean in terms of constitutional design? Educational policies? Or even courts’ communication strategies?

Click here to read the full working paper


Footnotes

[1] It is what Juan Linz and Alfred Stepan call the missing democratic arenas. The consolidation ends when all the missing democratic arenas are implemented, Juan J (Juan José) Linz and Alfred C Stepan, Problems of Democratic Transition and Consolidation : Southern Europe, South America, and Post-Communist Europe (Johns Hopkins University Press 1996) 3.

[2] It had always been the intention of the constitutional drafters to complete the political agreement of the National Roundtable with a constitutional assembly and a final Constitution. The preamble to the 1949 Constitution of 1989 was also clear on this: “To enhance peaceful transition to Constitutional statehood realizing a multiparty system, a Parliamentary democracy, and a social market economy, the national assembly establishes the text of the Constitution of Hungary as follows, pending the adoption of a new Constitution for Hungary”, Amended Hungarian Constitution as of 1994, United states, Foreign Broadcast Information Service, United States, FBIS-EEU-05-042-S, available at https://www.ifes.org/tools-resources/election-materials/fbis-hungarian-constitution (last accessed on 6 Oct 2023).

[3] According to David Easton, there are two types of political support: specific support and diffuse support. “Specific support is the reaction of individuals to actions taken by political actors.” This support refers to a certain measure. Whereas diffuse support is “a reservoir of favourable attitudes towards a legal and institutional framework” in general. [Editor’s note. Quotes from Chapter 1.2 of the full working paper, p. 8-9].

[4] Minorities are not necessarily minority groups but mainly those who did not agree to be part of the ruling majority.

[5] I develop more extensively this argument in a previous paper, Théo Fournier, ‘From Rhetoric to Action, a Constitutional Analysis of Populism’ (2019) 20 German Law Journal 362.

[6] The definition is from Peter Harbele, quoted in Antonio María Hernandez and others, Survey on Constitutional Culture Argentina: An Anomic Society (Mexico: Universidad Nacional Autónoma de México-Asociacion Argentina De Derecho Constitucional-IDEA International 2006) 10.

[7] Rule-of-law culture is then wider than political and civic culture mostly based on the individuals as well as constitutional identity strictly focused on the institutions.

[8] For a focus on right consciousness from a rule of law and EU fundamental rights perspective, see the work of Catherine Warin in this working paper series, Catherin Warin, Taking Rights Consciousness Seriously – A rights-based approach to promoting rule of law culture in the EU.

[9] I refer here to strategic litigation.

[10] Easton (n5) 446.

[11] Idem.

[12] Idem.


About the Author

Théo Fournier holds a Ph.D. in law from the European University Institute (Florence, 2021) in which he looked at the constitutional architecture of two democratic transitions (Hungary and South Africa). In parallel, Théo worked on and published several pieces about the so-called rise of populism, focusing on Marine le Pen’s strategy of capture of power. Théo is the co-founder of ConstPol Working Group and Thoughts for Europe, two researcher-led initiatives which aimed at bursting the academic bubble. He also worked for a legal consultant for Democracy Reporting International (2020) and spent 6 months at the Asia Foundation in Manila (2016). He has teaching experience at Sciences Po, the University of Bologna and University of Aix en Provence.


Théo Fournier, An Essay on Rule-of-Law Culture and Constitutional Resilience, in: TRAFO – Blog for Transregional Research, 18.04.2024, https://doi.org/10.58079/w8et



Diesen Blogbeitrag zitieren
Forum Transregionale Studien (2024, 18. April). An Essay on Rule-of-Law Culture and Constitutional Resilience. TRAFO – Blog for Transregional Research. Abgerufen am 23. Mai 2024, von https://doi.org/10.58079/w8et

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