by András Sajó. Yale University Press. New Haven and London, 2010. 400pp. Hardcover. $ 75.00. ISBN: 9780300139266.
Reviewed by Bogdan Iancu, University of Bucharest, Faculty of Political Science. Email: bogdan.iancu [at] fspub.unibuc.ro.
Modern constitutionalism, as we know it, is a creation of the Age of Enlightenment. Of course, wholesale references to the Enlightenment obfuscate the ambiguous and metonymical character of the term and phenomenon. Both elude doctrinaire reductions and stand as proxies for a congeries of irreducible and often contradictory ideas and tendencies (see Stollberg-Rilinger 2000). Nonetheless, caveat aside, the dominating philosophical/ideological theme of the eighteenth century is an adamant belief in human reason. Slightly oversimplifying, according to the main tenet of this new-found faith in rationality, human reason unaided and unabetted was to reign supreme, freed from the fetters and props of all forms of antiquated prejudice and irrationality (see Cassirer 2007).
Needless to say, human reason as such and unwavering belief in it are two somewhat different matters. One needs only cursorily glance through Kant’s 1784 manifesto and, behind the cold and unassailable logic of the argument, a subdued yet strong emotion is immediately apparent: the quasi-religious enthusiasm with which the philosopher urges decanting human thinking powers, to liberate reason from all past hindrances. The famous Kantian formulation is ‘walking aids’ (“Gängelwagen” der Vernunft): once redundant prostheses are removed, reason could stride freely and its march would in turn liberate mankind from its limitations. To his French contemporary, the Marquis of Condorcet, the future progress of this rational humanity was not only unavoidable but also limitless. From the vantage point of Gallic panache, the achievement of immortality itself seemed only a matter of time (Condorcet 1988).
The normative constitution is commonly believed to reflect emphatically these intensive, Enlightenment-derived demands on and of rationality: it is, unlike its older, ‘descriptive’ counterpart, a purposefully contrived, unitary juridical codification of the major rules governing the polity and predetermining the legal system (Grimm 1988). Indeed, from a juridical standpoint the fundamental law literally constitutes the legal conditions of the possibility of the state. Namely, the modern, written, normative constitution replaces older, “external” criteria of legality and legitimacy deriving from natural law and natural right with “its own transcendental-theoretical kernel of self-referentiality evinced by the reflexive reason (die sich selbst beurteilende Vernunft)” (Luhmann 1990, at 187).
András Sajó’s most recent book challenges very elegantly and originally this common general assumption of rationality-dominated constitutionalism [*447] (at least in its extreme form) and the reason-emotion opposition that underlies the dominating paradigm of the “prevailing regulatory model.” Constitutions, Sajó maintains, are also shaped by sentiments and by the same token contribute considerably to the regulatory molding of collective foundational human emotions. Hence, the “inclin[ation] to find emotional considerations improper … perhaps referring to the rationalistic legal maxim that our system stands for a government of laws, not men” (p.78) must be carefully qualified.
CONSTITUTIONAL SENTIMENTS consists of seven chapters or rather parts. The argument, albeit coherent as a whole, does not follow a linear structure and conspicuously (perhaps regrettably) lacks a conclusion; it ends rather abruptly with a few chapter-pertinent remarks regarding the social limitations of constitutionally institutionalized shame. The first part (by far the longest) constitutes the methodological-conceptual backbone of the volume and provides the reader with an introductory chart of the road “from emotions to constitutional sentiments.” Public sentiment, as we are shown, is structurally different from the “individual [moral] emotions that constitute it: it is more than their aggregation” (p.20). Public sentiments can have a foundational role at the moment of constitution-making and continue to influence the development of constitutionalism after the enactment of a constitution (p.75). This is a two-way road: “Once the initial selection of public sentiments is in place in the constitution, the choices will begin to influence both legal decisions and the public sentiment in its constant formulation. The institutions of the state can directly (through display rules) and structurally (by institutional arrangements that shape human relations) shape emotions and their interaction in public sentiments.” (p.52). A particularly interesting sub-chapter -- epistemologically unavoidable in the economy of Sajó’s delicate emotion/reason dialectics -- refutes deterministic views and wholesale generalizations (naturalism and universalism). While the author stresses that universalism is intellectually superior to relativism (p.68), he is pragmatically skeptical (and somewhat ambivalent) as to assumptions of universality of human-rights-inducing or –animating emotions and moral intuitions: “Localization is the predicament of homo sapiens. All people condemn humiliation, but humiliation means different things to different people …. Instead of imperative universalism, we have an empty overlap and agreement without content” (p.62). Sajó’s social-scientific model of constitutional sentiments is social-constructivist. Methodologically, his theory is professedly descriptive (p.80).
The following six chapters are distinct historical-thematic explorations of the interplays of reason/emotion and constitutional law/constitutional sentiments. In the first two (Chapters 2 and 3) the historical dimension prevails. Chapter four, exemplifying the role of empathy with the British and American nineteenth-century stories of abolitionism, marks a fine transition from constitutional history to the primarily conceptual focus of the final three parts. These latter chapters (Chapters 5 through to 7) are organized primarily conceptually, around a [*448] dominating theme: freedom of expression between reason and emotionalism; the containment of emotionalism in the case of freedom of assembly; and the role of constitutionalized collective shame, respectively.
The second chapter (A SENTIMENTAL DÉCLARATION OF THE RIGHTS OF MAN) is a brief but magisterial application of the author’s general intuitions to the story behind the adoption of the 1789 French Declaration. Sajó manages to bring the reader into the general atmosphere of the Assembly by historically recreating the general emotional background of its debates: fear of the precipitous events outside Paris, pressure from the gallery, execrable acoustics making reasonable communication close to impossible, the cascade of fragmentary and overlapping emotions animating the speakers (the vanity mixed with repressed inferiority complexes, jealousy, hatred, and parvenu frustrations of the Third Estate delegates, the magnanimous elation of the nobility renouncing its former privileges (overshadowed by fear and mistrust), general hysteria, etc.). At the close of this fine chapter, one is persuaded that most of the constitutional rules previously deemed a deliberate creation of abstract rationality emerged in fact primarily as a contingent by-product of clashing collective emotions. According to Sajó’s reconstruction of the events, the abolition of feudalism and the final aggregation of rules forming the “pillars of modern constitutionalism … legal equality, general and proportionate taxation, administration of justice without financial charge, access to public office, and the rule of law” (p.102) erupted somewhat haphazardly from “a melting pot of shared emotions.”
The next part “THE GREATEST OF ALL REFLECTIONS OF HUMAN NATURE”: THE CONSTITUTION OF FEAR seeks to substantiate the claim “that constitutions reflect a selection of the emotional experiences of a given community” (p.114) with the example of the American Philadelphia debates. Here, the success is somewhat mixed, due to the methodological/epistemological dissonance which underlies the argument. The author draws extensively on the findings of psychology and neuroscience to show that “the meanings attributed to events are structured in emotional terms” (p.123), stored as “cold sentiments,” and can be transmitted to others, long after the event that initially caused the sentiment, by way of ‘mirror’ neural processes. In closed gatherings, such as a constituent committee/assembly, due to various cognitive biases, these processes are amplified or distorted. I was afraid then (hot fear), I now ‘remember’ being afraid (cold fear), I transmit/project this fear unto you: “If one sees other people being afraid, it makes a lot of sense to be afraid. Once fear became the prevailing emotion among the 1787 or 1789 drafters, this spread ultimately to define the mood and common language” (p.125). The conjoined historical description of American constitution-making (pursued in much less detail than the preceding French counterpart) does not fully do justice to these assumptions. Arguably, the examples provided by the author may just as well be attributed to healthy, rational, pragmatic foundational skepticism. One does need fear, hot or cold, for a doubtful anthropological [*449] profession of faith (e.g., James Madison’s famous quip that “every man must be supposed a knave”). Professor Sajó’s observations are all interesting in their own right and the chapter brims with thoughtful remarks regarding the role of cognitive biases and the foundational scope of emotions. The reader of the DEBATES will however be left in equipoise as to whether the 1787 Constitution is the product of structurally controlled “cold fear” or – as generally assumed — that of calm, stately, composed deliberation on the constitutional dictates of human nature. Few transcriptions of collective debates read more like a(n extremely high level) post-graduate seminar or detached professorial debate in constitutional theory.
Chapter 4 (EMPATHY AND HUMAN RIGHTS: THE CASE OF SLAVERY) tells a fascinating emotional-constitutional story of abolitionism as an account of empathy functioning against the grain of reason: “the history of abolitionism is the history of the failure of applying the abstract concept of liberty. Abolition as it happened was more an ad hoc reaction to suffering” (p.193). Namely, while the circumstances did not permit the operation of empathy, French and American revolutionists could ignore slavery while simultaneously professing love of humanity, natural rights, equality of mankind and such like. Empathy blockers and sheer hypocrisy (defined with flamboyant sarcasm, at p.154 as “the way to cope with the injustice our world produces”) fulfilled admirably, for a long time, the function of reducing cognitive dissonance. In the course of the “sentimental [nineteenth-]century,” once the “cognitive preconditions for raising the issue of injustice” were slowly eroded, empathy could prevail over conflicting sentiments and finally function as a constitutional sentiment proper, instrumental in securing the abolition of slavery. It was, we are told, not simply a matter of intensity of collective feeling, but also of economic growth and consequent “affordability of compassion”: “Where there is no alternative there is no problem” (p.173). Material preconditions merged with the religiously-based organizational capacity to mobilize, structure, and channel the emotional predispositions of the age into readiness for action based on constitutional sentiments: “Emotions have to cluster into public sentiments, and such clustering needs social actors with sufficient organizational capacity” (p.177).
FREEDOM TO EXPRESS WHAT?, as already adumbrated in the chapter title, questions the foundational, overarching liberal tenet that speech is protected constitutionally as freedom of rational expression: “Free speech appears in many regards as an anti-emotional institution, a successful separation of reason from emotion” (pp.195-196). As Sajó argues, however, the expression (and implications) of emotion and, respectively, reason are not so easily and neatly separated. He defends nonetheless the obfuscation of the affect/cognition disjunction via “the risk taking assumptions of the rationality paradigm” as an intellectually-flawed but pragmatically sound and commendable form of constitutional heuristics: “Free speech is not about the lack of intense emotion generation, though it is to a great extent a categorical tool to disregard emotions” (p.215). Departures from the rationality paradigm are [*450] castigated in the course of a closing discussion of the Danish caricature crisis and conceptually germane European human rights judicial developments (the ECtHR Otto-Preminger case). The writer deplores with a fair degree of pessimistic resignation (the causes of the changes are described as irreversible and global-systemic, thus inescapable) current cultural-emotional counter-currents to the rational paradigm of free speech. An excerpt is well worth quoting at some length: “The strong constitutional bias in favor of (offensive) free speech is based on the empirically sustained assumption that emotions can be institutionally channeled and contained. People learned to live with speech that hurts and even with the destruction of taboos. But now … [t]he emotional preconditions of constitutionalism – emotional restraint — are absent. The West is not in a position to determine the social construction of emotions in different cultures and political regimes. It has difficulties with the management of intensive emotions even at home” (p.244).
THE CONTAINMENT OF PASSION: ASSEMBLY, RELIGION, AND POPULAR SOVEREIGNTY tackles a germane constitutional problematic: how to conceptualize assemblies (crowds, that is) in a rationalized paradigm and how to tame or contain collective passions which are by definition always on the brink of irrationality. It deals, that is, with constitutionally “contained irrationality” (p.268). Originally, in the history of English constitutionalism, assembly was fused at the hip with petition; only with the Civil War one catches a pallid glimpse of the future modern assembled mob. Parenthetically, in Clarendon’s HISTORY OF THE REBELLION, there is a somewhat chilling passage showing how the emerging press and manipulation by information was beginning to bring about a whole new age: “This and such stuff being printed and scattered amongst the people, multitudes of mean people flocked to Westminster Hall and about the Lords’ House, crying, as they went up and down, 'No bishops, no bishops,' that they might carry on the reformation.” (Clarendon 1826, BOOK IV, p.84). Sajó traces the constitutional genealogy of the right to free assembly (it may in passing be said that the originality of the supporting historical/theoretical research is particularly worthy of notice) and points out a very interesting peculiarity. On the one hand, the initially repugnant and fearsome 18-19-century gathering mob progressively became a constitutionally respectable free assembly, due primarily to the evolution of the policing, i.e., the development of more preventive, less brutal means of advance control and containment. One the other hand, the initial paradigmatic forum of discussion and deliberative decorum, the parliament, degenerated in regressive lockstep (also due to the evolution of the modern state and the ensuing rise of mass democracy, Moloch-like party apparatuses, and associated media structures) into an emotionally-driven and emotion-speculating, ‘mob-like’ phenomenon. The two developments are to a certain degree mutually reinforcing, says Sajó. When “government by suggestion” replaces “government by discussion”, demonstrations are no longer collective irrationality incarnate but rather legitimate “alternative forms of genuine popular participation in a world of faltering representative and mediatized democracy” (p.257). [*451]
The last part of the book, SHAME: ON HIDDEN CONSTITUTIONAL SENTIMENTS discusses the sentimental and social preconditions of “constitutional shaming,” i.e., “redress of injustice through institutionalized shame.” Shaming by means of constitutional affirmation/negation of a tainted past is a modern occurrence (e.g., post-Nazi Germany, South Africa): “Until recently no constitution would have referred to shameful past injustice as a foundational ground. Constitutional provisions have long served the undoing of past injustices, but only the pragmatic measures were expressly mentioned….” (pp.278-279). Nonetheless, the times are growingly unpropitious for shame as a constitutional sentiment. Shame, whose efficacy relies on the effectiveness of exposure, functions less and less in an increasingly individualist and self-exposing culture (consider self-creation of one’s web-persona(e), for instance via blogging or the more pedestrian leisures of Facebook). As the author puts it with trenchant wit: “dignity became poor men’s honor, provided to all as a welfare service. The consequence is that dignity cannot be lost, and if it cannot be lost, little (less) shame is to be felt when you are exposed. Simple exposition in a world of exhibitionists is of diminishing concern” (p.277). The author regards with suspicion (as misguided or inapposite extrapolations) theoretical criticism of shaming: “[T]here are no psychological reasons that would require constitutional law of a liberal democracy to renounce social control through shaming, and neither the social nor the psychological consequences envisioned by developmental psychology offer compelling objections to constitutional and social policies that admit the positive role of shame. After all, shame may generate recognition of responsibility and it contributes to maturity” (p.299).
This book offers less a “theory” proper of constitutional sentiments than a sum of extensive and very insightful history-embedded digressions about the reason/emotion interplay in constitutionalism and constitutional law. This is probably precisely what the author set about to do and he succeeds admirably at his chosen task. The argument deals, counter-intuitively, overwhelmingly, and somewhat over-possessively with American caselaw and constitutional-theoretical literature (over which the author has unquestionably supreme command). “[W]e have a whole jurisprudence that relies on ‘evolving standards of decency’” reads the beginning of a paragraph on page 82 and the reader ponders over the identity of the collective plurality who lays such jealous claim on an idiosyncratic US Constitution Eight Amendment doctrine. Surely, it could not be Hungarian law professors or ECtHR judges and arguably it cannot be even the global conclave of comparative public law scholars. Those readers familiar with Professor András Sajó’ extensive academic background and practical experience (which in his case probably means a majority of the potential readership) will perhaps find it regrettable that so very little of the book deals with Hungarian and Eastern European constitutionalism, arguably a fertile ground for speculations and exemplifications on the debated themes, based in his case, moreover, on lifelong, direct, and ‘front seat’ experience. The argument would have certainly been richer for the more generous inclusion of this extensive, personal knowledge in it. [*452]
But this mild point of criticism cannot and certainly does not intend to detract much from the general accomplishment. Both the cultural-historical and the strictly legal erudition of the author are impressive and the depth and originality of his intuitions are very often admirable. Furthermore, aside from its academic merits, CONSTITUTIONAL SENTIMENTS is a well written scholarly argument, which reads pleasurably, flowing often like a good novel. Style is, indeed, one of the main qualities of the volume. Professor Sajó’s readers will be thus left not only with information or analysis but also with a general residue of constitutional sentiment lingering on for a while, a mixed feeling of controlled melancholy, historical pessimism, and fine irony, sometimes bordering on hopeful sarcasm (alas, an exquisite and characteristically Austro-Hungarian mix).
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OTTO-PREMINGER INSTITUT v. AUSTRIA, ECtHR Application no. 13470/87, judgment of 20 September 1994.
© Copyright 2011 by the author, Bogdan Iancu.