Rule of law/Rechtsstaat/État de droit: the iron cage of neoliberalism?

This is a written version of a presentation I gave at a seminar called ‘Law at the Vanishing Point? Reflections on the Rule of Law Beyond the State in the 21st Century’, organised by Dr Massimo Fichera, on 17 May 2021. My thanks to the participants for their comments.

***

Perhaps we have Orban and Kaczyński to thank for something. Often grand constitutional statements like Article 2 TEU about the Union being founded on ‘core values’ like the rule of law tend to be window dressing. At least the core values are now being put to the test. But whether these values remain merely ‘reactive’, or whether they can amount to something more than that, something ‘beyond’ as the title of today’s event suggests, that remains to be seen.

My own title may require a few words of explanation, as well. The question mark at the end of my subtitle refers, of course, to a rhetorical question. The critical debate about the alleged ‘core value’ has revolved around the rule of law as a legalistic cornerstone with which the neoliberal ethos of the Union and its member states has been sealed. For someone of a critical persuasion, the rule-of-law hullabaloo that Orban and Kaczyński’s antics have caused simply looks like five steps backwards, a nostalgic view of a Europe that supposedly existed before right-wing populism stirred things up. For my part, I wish to retrace some of those steps and to see whether there is still something salvageable.

In order to do that, I have to begin in the Global South. In the landmark case State v Makwanyane and Another (CCT3/94) from 1995, the Constitutional Court of South Africa established that capital punishment was inconsistent with the commitment to human rights as that commitment was expressed and entrenched in the country’s 1994 Interim Constitution. For our purposes today, what is perhaps more important is an elaboration on the nature of that Constitution that Justice Ismail Mahomed added to the ruling as dicta:

In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. (Paragraph 262)

Mahomed’s dicta, among other case law, has been at the heart of a debate that focuses on the unique nature of the two South African post-apartheid Constitutions as instruments of social and political transformation rather than as restrictive juridical ‘iron cages’ as implied in my Weberian subtitle. The theoretical framework that can be extracted from the debate has been called ‘transformative constitutionalism’, a term first coined by the American critical legal scholar Karl Klare in a presentation from 1998, and that has since become a cornerstone of progressive and radical constitutional politics in the Global South. After going through the main points of this subaltern debate — which many of you may be familiar with already — I will continue to argue that transformative constitutionalism is a noteworthy ingredient of progressive constitutional politics in the Global North, as well. Or at least that it should and could be. I will conclude that even the most ‘substantive’ definitions of the rule of law that have been presented in more or less contemporary views about the Union and its member states — indeed, about the rule of law as a ‘European value’ — fall short of any ‘beyond’ suggested by the title of today’s event.

Freedom and constraint

So first to South Africa in 1998, i.e., roughly a year after the new Constitution came into effect. Klare begins his presentation by noting how constitutional adjudication can never be merely the formal application of a given set of legal sources if it is to comply with the more demanding aspirations of democracy. Klare builds his arguments on the notions of freedom and constraint familiar from Duncan Kennedy’s vocabulary (Kennedy 1986; Kennedy 1997).1 An adjudicator, Klare insists, will always be confronted by the conflicting tensions of freedom and constraint. In the case of the South African Constitution, she will encounter a solemn and usually rather abstract text that requires her to acknowledge a ‘never-again’ past and to commit herself to pursuing various aspects of social justice. And yet, at the same time, adjudication can never be completely open-ended in the sense that judges — and by extension lawyers in general — would be free to realise the personal vision of freedom, justice and democracy that the abstract text may suggest. And so Klare concludes that:

A commitment to legal constraint (evoked in the mantra ‘rule of law’) seems to be a foundation of the democratic-transition enterprise. (Klare 1998: 149)

It is, then, clear that for Klare any traditional notion of the rule of law works as a restraint, and even an impediment for realising any of the truly transformative aspirations that may have been enshrined in the Constitution. Consequently, he asks, perhaps he too in a rhetorical fashion, whether we should develop a ‘revised, perhaps somewhat more politicized, understanding of the rule of law and adjudication that can consist with and support transformative hopes’ (Klare 1998: 150). The main aim of my intervention today is, of course, to respond in an affirmative manner. Klare’s definition of transformative constitutionalism centres around a long-term project of ‘transforming existing political and social institutions and power relationships in a democratic, participatory, and egalitarian direction’, that is, ‘inducing large-scale social change through nonviolent political processes grounded in law’ (Klare 1998: 150). And for Klare, such a project is made possible by the postliberal nature of the Constitution. Some of the South African Constitution’s aspirations such as equality, redistribution and social security can still be inferred from traditional welfare state ideals. But it contains much more than that. In particular Klare singles out multiculturalism, the attention to gender and sexual identity, emphasis on participation and governmental transparency, environmentalism and the extension of democratic ideals into the private sphere:

the South African Constitution, in sharp contrast to the classical liberal documents, is social, redistributive, caring, positive, at least partly horizontal, participatory, multicultural, and self-conscious about its historical setting and transformative role and mission. (Klare 1998: 153)

Within these rather broad and vague definitions, Klare points out that traditional liberal welfare ideals seem to suggest an interpretive culture that is more ‘legal’, whereas pursuing postliberal ideals appears as ‘political’ and, hence, non-legal. In line with his CLS pedigree, Klare claims that this is a false dichotomy and that ‘mainstream, traditionalist interpretations are every bit as “political” as the postliberal interpretation, and the latter is every bit as “legal” an interpretation as mainstream exegesis’ (Klare 1998: 152). Liberal constitutionalism sees the idea of transformative adjudication as problematic because it suggests that judges are also ‘super-legislators’ with competences to advance their personal political agendas. The politics of unelected adjudicators are seen as suspicious, however well meaning. And so the liberal interpretation of the rule of law is specifically tasked to filter out politics from adjudication and to ensure that adjudicators remain neutral interpreters and enforcers of laws that are passed down by the democratically elected legislators. Klare specifies:

In all traditional accounts, the rule-of-law ideal is premised on a radical disjunction between law and politics and a sharp role-differentiation between what judges do and what politicians and political theorists do. So, the very idea of transformative adjudication seems out-of-place within liberal legalism. (Klare 1998: 157)

The constraint that a traditional liberal notion of the rule of law represents is, Klare emphasises, an ‘experience’ that a legal actor may have in her dealings with legal materials. Constraint is not some objectively knowable quality that is inherent in the legal materials themselves but, rather, a matter of feeling, belief or conviction that arises from working with the medium. There are, then, no neutral procedures that could objectively and definitively determine how much restraint a given set of legal materials would require (Klare 1998: 160). Put differently, the rule of law is a blunt tool, and we can never be sure what if extracts and filters out and what not. So it is impossible to completely exclude the adjudicator’s personal or political values and sensibilities from interpretation ‘not because judges are weak and give in to political temptation, but because the exclusion called for by the traditional rule-of-law ideal is quite simply impossible’ (Klare 1998: 163). The most palpable consequence of this is, of course, that the stark(-ish) separation of law and politics that liberal constitutionalism relies on is, in the endgames, untenable.

The broken middle

There are two aspects about Klare’s presentation that we might wish to make a note of at this point. First, its focus is almost uniquely on the role that the rule of law plays in constitutional adjudication leaving other forms of political action, be they law-related or not, into the sidelines. This focus reformulates the main question of his article from transformative constitutionalism as a more comprehensive political project to defining the limits of adjudication. This focus on the courts rules out deliberations on, e.g., the constitutionally relevant role of other actors in civil society. Second, the problematic relationship between law and politics that is at the core of Klare’s arguments may be strained, but, so it seems, it is somehow resolvable. It is a ‘dialectic’ (Klare 1998: 149), as Klare at one point somewhat nostalgically explains. This starting-point rules out exploring other options where the tensions of the relationship may not be resolvable at all but are, indeed, an agonistic resource (Minkkinen 2020a).

With these two observations in mind, I’d like to continue developing my argument by drawing on Karin van Marle’s response to Klare. Van Marle, South African legal theorist and Professor at the University of the Free State in Bloemfontein, was also a speaker at the original event in 1998 where Klare first presented his ideas about the transformative nature of the South African Constitution. But my engagement with van Marle is from a later text that she published in 2009 following an event marking a decade after Klare’s original presentation. Van Marle feels that her original response to Klare may have been misinterpreted as an attack, and so in this subsequent text she wishes to clarify and to develop her original ideas. Van Merle’s understanding of what she tentatively calls ‘transformative constitutionalism as critique’ is certainly broader than Klare’s. It views the Constitution — and law more generally — with a commitment to transforming political, social, socio-economic and legal practices in a way that would alter existing assumptions about law, politics, economics and society:

What makes [constitutionalism] “transformative” is precisely a break with what Klare calls traditional accounts of the rule of law thereby reaching amongst other disciplines to philosophy, political theory and sociology. (Van Marle 2009: 288)

So we can see that van Marle is specifically calling on legal scholars encouraging them to break free from the limitations of an unnecessarily comfortable relationship with the legal practice. Van Marle relies on an observation that Klare had made about the conservatism of South Africa’s lawyers that, perhaps, betrays a closer kinship with a German legal culture than with a common law one and that places more emphasis on form and procedure than on outcome. This aspect of South African legal culture imposes considerable limits on the law’s ability to embrace politics and political community. Klare’s notion of transformative constitutionalism as ‘large scale social change through non-violent political processes grounded in law’ becomes impossible because ‘legal rules function as “exclusionary reasons” and political considerations, balancing and reflexivity will not be possible within the limits of the law’ (Van Marle 2009: 293). So we are aware of a certain legal limit that prevents us from fully addressing the positions of others, but at the same time transformative constitutionalism encourages us to go beyond the law and to do the groundwork for more generous adjudicative approaches. Van Marle calls the experience of this paradox ‘playing with both hands’: at the same time as we point out to the practitioners that they haven’t fully lived up to the challenge of the Constitution, we know full well that they never really can (Van Marle 2009: 294). It is this paradox that van Marle wishes to address with her notion of transformative constitutionalism as critique.

Van Marle does so with the help of a rather crude intellectual history of the aftermath of American Realism. She notes that after the 1930s, realism developed into at least two identifiable streams. A first stream took on board the realist distinction between law and morality and ended up as a free market positivism with a keen interest in policy-making and the institutional relationships between the judiciary and other state branches and authorities. These themes were reflected particularly in the work of law and economics scholars, policy-driven socio-legal researchers and legal pragmatists. In terms of transformative constitutionalism, these emphases paved the way for what van Marle calls an instrumental/functionalist approach. The other stream morphed into the American version of CLS — Klare being one of its best-known figures — which, despite having no single unified identity, endorsed a much more radical position in relation to law and politics. In addition to the different variants of American CLS, this second stream included certain strands of feminist theory and politics, critical race theory and identity politics, as well as the more interdisciplinary departures from law that involved insights from continental philosophy and post-structuralism. Van Marle situates her critical approach closer to this second stream that, at least potentially, avoids some of the trappings of ‘playing with both hands’ (Van Marle 2009: 294-295).

For van Marle, transformative constitutionalism as critique is, however, not a simple solution to a clearly articulated socio-political problem. Drawing on Gillian Rose (Rose 1992) she claims that:

Transformative constitutionalism as a critical project lies within a liminal space and time, a precarious and uncomfortable space and time or … a space of double anxiety and sustained equivocation, a broken middle. It must be a site of active political action and struggle, of active engagement with law; a site that entails an unsettled and unsettling approach. (Van Marle 2009: 297)

So precarious, uncomfortable and unsettling: these tensions within which legal actors must elaborate on the relationships between law and human living are a result of numerous dichotomies such as law’s potential and its limits, constraint and freedom, doctrine and theory, analysis and critique, the social sciences and the humanities, and, indeed, ratio and voluntas or apology and utopia. Van Marle, for her part, draws on Adriana Cavarero’s notion of weaving (Cavarero 1995: 11-30) as a metaphor for the way in which one can and should deal with these tensions if the epithet ‘transformative’ is to have any serious political meaning at all:

The weaving invokes a certain rhythm, a certain action of engaging the various tensions without lifting the tension, solving the tension or reaching any new synthesis. It is a continuous weaving within a liminal space. (Van Marle 2009: 298)

In other words, if I understand her correctly, van Marle is here not advocating any relief from the tensions. Perhaps quite the contrary, she is warning that even attempting to resolve the tensions will inevitably cause us to fall back on traditional notions of the rule of law or, at best, only reach an instrumental or functional notion of transformative constitutionalism.

The North

One might be tempted to bypass this debate by claiming that it addresses mainly subaltern concerns. In a much more recent text, Michaela Hailbronner makes the convincing argument that transformative constitutionalism is not only geared to combating poverty even though this might be a key issue in the Global South. Constitutions that can be called ‘transformative’ correspond, she insists, with broader emancipatory issues giving the state a key role in pursuing change. So transformative constitutionalism is part of a broader global trend toward more expansive and ‘activist’ constitutions with new emphases on positive and socio-economic rights and which no longer view private relationships as outside constitutional bounds, perhaps in the spirit of Alexander Somek’s ‘Constitutionalism 2.0’ (Hailbronner 2017: 528-529; Somek 2014). Hailbronner’s understanding of transformative constitutionalism is very much in line with Klare’s and van Marle’s in that ‘it entails a commitment to social and political change, and not just change at the margins, but of a more fundamental sort’ (Hailbronner 2017: 533).

Seen from this perspective, even Germany can be regarded as a variation on the transformative theme although the analogy requires certain specifications and clarifications. German lawyers, she emphasises, approach transformative agendas from a much more traditional legal perspective than their southern counterparts. So in spite of the commitment to an activist state, German constitutionalism is tied to a rather traditional understanding of law as a science compared to southern collaborative, outcome-oriented and, perhaps, more political approaches (Hailbronner 2017: 530). This difference can at least partly be explained by the German historical context.

After the Second World War, Germany was a broken and morally discredited country with a strong imperative for political and social change. This commitment for change was reflected in the Basic Law, but only in a cautious and conservative way. With only twelve years of National Socialist rule with most of its victims either murdered or emigrated to other countries, postwar Germany was rather different than contemporary societies in the Global South that had long histories of cruel colonialist rule and racial injustice. Given this difference in their starting points, the postwar German framers could look backwards to the country’s traditions that still seemed untainted, and especially to the traditional concept of the Rechtsstaatand its accompanying negative rights. But in spite of this conservative orientation, Hailbronner claims that over time German constitutionalism acquired transformative features in important respects. And this was mainly due to the interpretive work of the Justices of the Constitutional Court and legal scholars (Hailbronner 2017: 541-542).

Hailbronner speculates that the Justices may not have always been conscious of what they were doing, but through novel interpretations, they transformed the Basic Law from a charter of individual rights and institutional provisions into an ‘objective order of values’. So as values, the individual norms of the Basic Law had a radiating effect on the whole legal order informing the interpretation of legal rules in all fields of law, not just at the moment of the decision, but guiding adjudication in the future, as well (Hailbronner 2017: 542-543). But, as Hailbronner notes, consensus among the legal elite about the need for social transformation broke down in the 1970s after which German constitutionalists, both adjudicators and academics, have withdrawn into much more conservative potholes (Hailbronner 2017: 545).

‘Beyond’?

The rule of law as a European value, currently being challenged by right-wing populists, is fuzzy to say the least. I would like to conclude by asking, perhaps again rhetorically, whether it contains any transformative potential that would go ‘beyond’ traditional liberal accounts.

We have three main contenders in the three main linguistic variations of my title. The ‘rule of law’, as it is employed in debates that look to Anglo-American sources, is, perhaps, the narrowest reflecting what might elsewhere be regarded as the legality principle. The German Rechtsstaat, on the other hand, encapsulates the idea originally put forward by Jhering about the state’s self-limitation in relation to its own constitution, an idea that, according to Carl Schmitt, simply leads to ‘apocryphal acts of sovereignty’ (Schmitt 2008: 155) blurring things even further. Finally, we have the French term État de droit which, according to some authoritative accounts, was originally merely a translation from German, but that later took on shades from the revolutionary tradition of the Rights of Man.2 With reference to this French idiosyncrasy, more recent EU documentation prefers to make reference to prééminence du droit, which certainly dilutes any transformative potential that the term may have originally had.

With such different contenders on offer, the draft report of the Venice Commission from 2010 concludes that although there are some indications of substantive definitions that are shared by states, ‘a broad consensus can be found only on a formal definition, but an enlarged one, including respect for judicial human rights as well as non-discrimination and equality before the law’ (Draft Report on the Rule of Law 2010: para 77). The Commission, then, settles for what they can find consensus on instead of pursuing the more important substantive definitions. So my conclusion is an invitation to break free from this ‘iron cage’ of legal formality and to begin working on substantive definitions with transformative potential — to provide relief from poverty and deprivation, to promote equal opportunities to all, to proactively address the problems of xenophobia and misogyny, to support action against the looming climate crisis, and so on — work that would not be exclusive to the legal elites or allow curling up into classic legal definitions, but that would involve civil society as a whole, including academia. Not a complete surrender to politics either, but ‘weaving’ destabilising substantive elements into the mix that would enable momentary lingering in that ‘broken middle’ that van Marle referred to.

Notes

1. I would argue that the notions of freedom and constraint can relatively effortlessly be changed to ‘apology’ and ‘utopia’ (Koskenniemi 2005) or even ‘ratio’ and ‘voluntas’ (Tuori 2011).

2. I’ve elsewhere tried to open up this tradition by analysing a debate between Claude Lefort and Marcel Gauchet (Minkkinen 2020b).

References

Cavarero, Adriana (1995) In Spite of Plato. A Feminist Rewriting of Ancient Philosophy. Trans. Serena Anderlini-D’Onofrio and Áine O’Healy. Cambridge: Polity.

Draft Report on the Rule of Law (2010) European Commission for Democracy through Law (Venice Commission). Study No. 512 / 2009.

Hailbronner, Michaela (2017) ‘Transformative Constitutionalism: Not Only in the Global South’, American Journal of Comparative Law, Vol. 65, No. 3: 527-566.

Kennedy, Duncan (1986) ‘Freedom and Constraint in Adjudication: A Critical Phenomenology’, Journal of Legal Education, Vol. 36, No. 4: 518-562.

Kennedy, Duncan (1997) A Critique of Adjudication [fin de siècle]. Cambridge, MA: Harvard University Press.

Klare, Karl E. (1998) ‘Legal Culture and Transformative Constitutionalism’, South African Journal on Human Rights, Vol. 14, No. 1: 146-188.

Koskenniemi, Martti (2005) From Apology to Utopia. The Structure of International Legal Argument. Reissue with a new epilogue. Cambridge: Cambridge University Press.

Minkkinen, Panu (2020a) ‘Agonism, Democracy, and Law’, p. 427-442, in Maksymilian Del Mar, Bernadette Meyler and Simon Stern (eds), The Oxford Handbook of Law and the Humanities. Oxford: Oxford University Press.

Minkkinen, Panu (2020b) ‘’Enemies of the People’? The Judiciary and Claude Lefort’s ‘Savage Democracy’’, p. 27-42, in Matilda Arvidsson, Leila Brännström and Panu Minkkinen (eds), Constituent Power. Popular Rule, Constitutional Law and Politics. Edinburgh: Edinburgh University Press.

Rose, Gillian (1992) The Broken Middle. Out of Our Ancient Society. Oxford: Blackwell.

Schmitt, Carl (2008) Constitutional Theory [orig. 1928]. Trans. Jeffrey Seitzer. Durham, NC: Duke University Press.

Somek, Alexander (2014) The Cosmopolitan Constitution. Oxford: Oxford University Press.

Tuori, Kaarlo (2011) Ratio and Voluntas. The Tension between Reason and Will in Law. Farnham: Ashgate.

Van Marle, Karin (2009) ‘Transformative Constitutionalism as / and Critique’, Stellenbosch Law Review, Vol. 20, No. 2: 286-301.