Democratic Ethics, Constitutional Dimensions, and Constitutionalisms

Abstract

, Ashgate.Constitutions should not be regarded as foundational documents circumscribing closed legal orders. In Richard Bellamy’s words, ‘the constitution cannot be viewed as an objective fount of moral and political wisdom’ (Bellamy 2007: 166). Constitutions are ‘instituted’ and as such tend to reflect prevalent political cultures that form the horizons of constitution-making actors. This means in reality that constitutional documents normally tend to reflect a plurality of politico-ethical values (cf. Rosenfeld 2006), even if they not always invoke these explicitly. But also once instituted, constitutions cannot be regarded as sources of meta-political norms that merely need implementation. Constitutional norms and values, and law in general, are open to continuous (re-)interpretation and contestation, and as such can only have validity if reflecting cultural repertoires present in society (cf. Priban 2002).This chapter develops a number of analytical tools and ideal-typical models to investigate the relation between constitutions and their politico-cultural environment. One can distinguish a number of ways in which constitutions can said to be open to politico-ethical repertoires and reflect such repertoires, are the object of such repertoires, as well as bear influence on or reinforce such repertoires. One way of analytically approaching the legal political-cultural entanglement I propose is the distinction of a range of constitutional dimensions. While the predominant, negative understanding of constitutionalism prioritizes an instrumental or what I will call a political dimension – i.e., the constitution understood as a ‘political map’, as a way of limiting power, and as a way of delimiting spheres of autonomy - the constitution can be said to reflect another, cultural and symbolic dimension, which more specifically includes a normative dimension in terms of the expression of ultimate, politico-ethical values, an identity-shaping dimension, a positive, aspirational dimension of substantive ends, and a political-participatory dimension.Another way of approaching the relationship between the constitution and its environment is by distinguishing between different politico-ethical visions of the constitution. It can be argued that different perceptions of the constitution or constitutionalisms are informed by different democratic ethics. Elsewhere, I have identified at least four relevant ethics, i.e., the ethic of rights, of identity, of participation, and of distributive justice (Blokker 2008; forthcoming). Liberal, communitarian, republican, and substantive constitutionalism respectively prioritize these ethics, but this does not mean that they ignore other ethics. Rather, while