The Language of Constitutional Comparison by Francois Venter (Edward Elgar, 2022)

1     Constitutional polysemy

How constitutional lawyers communicate in the 21st Century has become a matter of concern, because their established lexicon is imbued with implications, suppositions, historical baggage, epistemic premises and express or implied ideological goals. Acknowledging this concern is not new, but The Language of Constitutional Comparison is meant to emphasize the urgency for especially constitutional comparatists to attend to its implications. Clear understanding of, and sensible, comparative commentary on constitutional orders depend on  an acknowledgement of the conceptual unreliability of key constitutional terms.

For obvious reasons postmodernists engaged in linguistic “deconstruction” (including the Critical Legal Studies “crits” and legal semioticists) have for some time been active in delving into polysemic legal and constitutional words. These contributions vary greatly, but common to most is a dislike for liberal dogma and its pervasive influence on constitutional language. Despite expressing respect for the high intellectual quality of postmodern cogitations, this book is not founded on the premises of one or the other deconstructive trend. Although much of the problematics inherent in current constitutional language may be attributed to the hegemony of modernist thinking upon which constitutional nomenclature depends, it does not seem to be fruitful to bathe the baby in deconstructed water – only to throw it out – infant and all.

2     Testing the need for concern

To test the validity of the assumption that increased concern is called for in connection with the creeping indeterminacy of constitutional terminology, the following apparently innocuous (perhaps to some even evident) statement is put to the test in the last chapter of the book:

The comparative quality of the constitutional order of the state of any nation whose citizens participate in the democratic establishment of their sovereign government under the rule of law may, for the purposes of judicial review, be measured in terms of compliance with the tenets of constitutionalism.

From the historical, conceptual, and ontological analyses in the preceding chapters, it emerges that the use of common constitutional words such as “state”, “nation”, “sovereignty”, “citizenship”, “democracy”, “rule of law”, “constitutionalism”, and “judicial review” all express variable, and sometimes contradictory meanings, depending on the speaker’s predisposition.

Consensus on the nature of the substance of a state, the legal requirements for its establishment, continued existence, and functioning eludes the legal and political community of 2022, both in constitutional law and in the international sphere.

Nationhood as an expression of statehood continues to be influential in our language, despite its anachronicity and the multiplicity of views on its ideal or actual nature. Nationalism has a distressing history as the cause of bloody conflicts, and it is a central element in the rise of populism in this century.

The notion of sovereignty was prominent in the evolution of contemporary constitutional language, but has morphed into an idea fraught with contradictions, vacillating between the primacy of “the people” or the nation on the one hand, and the justification of state or governmental authority on the other.

The inability of a state to exist and function as a constitutional entity without the active involvement of warm-blooded people is reflected in the inconsistent approach to the perennial question who (or even what) is to be understood to be a “citizen” – or “national”, sometimes confusingly employed as synonym, and at other times to effect a conceptual distinction. In some cases citizenship depends on nationality, in others nationality is obtained through citizenship.

Due to the popularity of the concept as a praiseworthy condition, “democracy” is being used across the constitutional spectrum in ways rendering it to mean almost anything, and therefore potentially nothing, and therefore requires qualification and explication when it is employed – especially because it is frequently used as a measure of constitutional and political merit or failure.

The “rule of law” has been defined and redefined many times and is readily used as a translation for continental concepts (Rechtsstaat, état de droit, stato di diritto, el estado de derecho), which were however developed against fundamentally different backgrounds, thus causing substantive uncertainty about a constitutional lawyer’s (or politician’s) meaning when the phrase “rule of law” is used without prior clarification.

The expression “constitutionalism” is usually intended to incorporate a range of conceptions in the common constitutional vocabulary, many, or all of which bear indefinite or variable meanings according to the significance they may hold in the mind of the speaker. In the end constitutionalism can hardly be understood to be more than a conceptual banner under which a wide range of dogmatic battles are being fought, depending on the adjective placed before it, such as “post-liberal”, “popular”, “transformative”, “authoritarian”, “global”, etc.

In many instances constitutional adjudication is not concerned only with questions of lawfulness and legitimacy, but also involve finer points of constitutional interpretation, resolution of moral questions, and conceptions of justice that depend upon subjective (or at best established institutional) considerations. No wonder then that the desirability and reliability of the practice of judicial review are challenged by many. The most difficult issue to be resolved in this regard is the question why courts have the authority to adjudicate (especially questions of constitutionality) at all? Arguments based on popular sovereignty advance the idea that rulers and legislators exercise whatever powers they have on behalf of the ‘sovereign people’. But where do the judges fit in this scheme of things? In the end, controversies about counter majoritarianism suggest that the control of courts over the constitutionality of legislation and executive conduct lacks legitimacy, because judges do not represent “the people”.

The upshot of a deeper consideration of the test phrase is that such a seemingly innocuous statement on the comparative quality of constitutional orders actually carries little consistent or predictable meaning, except perhaps as an example of dogmatic sloganeering.

3     Sovereignty as core issue

The review of the selected constitutional words shows that one of the essential concepts without which constitutional law cannot operate, is “sovereignty”. The idea of sovereignty has emerged over many centuries to explain and justify the authority of the state. If a state were not to have power (or authority as euphemism) over people and other legal entities under its jurisdiction, it would not be able to perform its fundamental function of maintaining social order by means of coercion when necessary. In a sense, this is dangerous territory, because history teaches that the temptation for the human psyche to abuse authority is very difficult to resist, and that the development of various means to curb the urge to dominate have in many cases been accompanied by instability, struggles and public violence.

Providing a clear explanation for the source of authority (sovereignty in law), should reveal one’s foundational understanding of what Douglas Adams (of “Hitchhiker’s Guide to the Galaxy” and “Dr Who” fame) cynically called “life, the universe and everything”. Such an explanation may be rooted in a worldview inspired by anything from (as in the case of Adams) radical atheism, to devout mysticism. Unsurprisingly therefore, mere observation of state sovereignty as ubiquitous phenomenon does not produce a consistent or obvious revelation of its source.

Historically the explanation of and justification of sovereignty have been rooted in a wide range of ontological premises. It is in fact a relic from the evolution of statehood itself. Philologically the word derives from superanus in Vulgar Latin and soverain in Old French, which suggested incontestable power as claimed by popes, emperors, and kings as their divine right. The great North Atlantic revolutions of the 18th and 19th Centuries brought about the notion that divinely entrusted royal sovereignty had become untenable, because sovereignty rightly vests in the collective People.

Despite popular sovereignty having been elevated in supreme constitutions to the level of the sole source of state authority, the idea, if considered unemotionally, represents a classic petitio principii. Popular sovereignty expresses the notion that those subject to state authority (“the People”) are simultaneously the bearers of such authority. The foundational difficulty here is that popular sovereignty is premised on a fictional construct, known as the “social contract”. Using such a fiction as hypothesis for a logical explanation for the existence of state sovereignty consistently leads to failure, because it requires faithful confession of belief in the utility of the fiction. Yet, the justification of much of our standard constitutional lexis depends on this confession, which is canvassed by its followers to be a universal truth.

Despite the difficulties of giving it a clear meaning and sound justification, sovereignty as a core constitutional concept is deeply entrenched in our language, one which the constitutional comparatist cannot avoid. However, to circumvent the need to explain oneself constantly, the constitutional comparatist would be well advised to employ alternative concepts where possible, such as ‘competencies’, ‘authority’, ‘jurisdiction’, ‘remit’ and ‘discretion’, possibly enhanced with adjectives such as ‘circumscribed’, ‘accountable’, ‘defined’, ‘limited’, etc, in order to avoid the misunderstanding that quasi-absolute authority is intended.

Not watching one’s language puts the comparatist in danger of compelling one’s audience or readership to indulge in conjecture regarding the intended meaning. Enforcing conjecture clearly is a poor strategy for clear communication.

Posted by Francois Venter (Extraordinary Professor, NWU).