Normative Universalism and Constitutional Pluralism
Chapter 16 in: Motoc, Iulia, Pinto de Albuquerque, Paulo, and Wojtyczek, Krysztof (eds.), Liber amicorum András Sajó: Internationalisation of Constitutional Law, 2017
29 Pages Posted: 14 Jul 2017
Date Written: July 7, 2017
The remarks that follow intend to explore questions of normative universalism and constitutional pluralism. Normative universalism holds that certain normative standards are valid for any human being, irrespective of ethnic, cultural, social, political or historical background. Normative universalisms is an ethical epistemological theory and at the same time something intrinsically political: It is a precondition for the possibility to fulfil the promise of a common human civilisation based on some basic shared normative standards, not the least human rights that form the framework in which human variety can unfold.
This normative universalism has left some traces in contemporary legal systems, importantly in the universal human rights regime of international law. The Universal Declaration is very outspoken that it takes the universal nature of the rights proclaimed for foundational for the whole civilisatory project as is famously asserts in the preamble that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. There rights are nothing less but “a common standard of achievement for all peoples and all nations”. This set the tone for other legal instruments, including regional systems of human rights protection which may have universalist aspirations, though are capable of realising these only within the scope of their jurisdiction. The European Convention on Human Rights (ECHR) formulates accordingly in the preamble that it “aims at securing the universal and effective recognition and observance of the Rights therein Declared”. It adds that its intention is to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration”. There were great pains taken by the Colonial powers not to extend the application of the Convention to colonies through the colonial clause, a rather disenchanting reminder of what the realities of behind the universalist language of the convention were. But the further development of the Convention system has in many ways vindicated the universalist aims formulated in the preamble and not the power politics of some founding members. The American Convention of Human Rights includes some telling language in this respect, “recognizing that the essential rights of man are not derived from one's being a national of a certain state, but are based upon attributes of the human personality”. National constitutional systems took up the task to secure “the common standard of achievement for all peoples and all nations”. A good example is the Basic Law of Germany, that considers human dignity inviolable and as the foundation of acknowledging the “inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.” The experience of authoritarian regimes with deadly, in the German case even genocidal contempt for human persons, often in the light of some anti-universalist ideology like the superiority of a Master race and its barbarous consequences, seems to make universalism an almost self-evident approach to the most important rights that human beings enjoy. The South-African Constitution is a good illustration for this from in more recent times, not the least because of its substantial influence on contemporary constitutionalism. It formulates in Art. 1 a S-A Const: “Human dignity, the achievement of equality and the advancement of human rights and freedoms”. The reference is to human dignity, rights and freedoms, not to the dignity, rights and freedoms of South-Africans. Again, the basic assumption clearly is that some rights are enjoyed by everyone and that this is universally justified.
In addition, there are some signs of normative convergence of different legal systems, not least in the concretisation of human rights and the standards of the rule of law. At the same time legal systems still differ in many respects and this is so for constitutional law as well. Constitutional pluralism is consequently an important issue of current constitutional theory.
Various kinds of constitutional pluralism can be distinguished. First, there is a pluralism of content. Constitutions contain (if at all) different bills of rights, with nuanced provisions that in practice matter considerably. The normative make-up of the structure of public authority, of the ways of government, of the elements of democracy and of the rule of law varies in many respects. Case-law adds to the variety as it creates distinctive patterns of interpretation of norms of different legal systems that – as such – appear prima facie similar or even identical. This constitutional pluralism of content can be a pluralism of means and of ends. There are different paths to freedom and constitutions may choose one over the other. Constitutions may differ in their aims as well. At least if one uses a wide and formal concept of constitution even the creation of limited government may not be essential. If one limits the concept of constitution to any such form of originally constituted limited government, still many different constitutional purposes can be pursued within this framework. A classic example is the question whether constitutions should be designed to attempt to foster social justice or – more recently – environmental protection or should better refrain from such aims.
Second, there is a pluralism of form. There is a wide ranging debate about the question whether today’s world is distinguished by forms of constitutions that are not the product of enactment by the pouvoir constituant in some kind of organised procedure but are created in society itself. Such social constitutions are taken to have become increasingly important and to be already more relevant that the state-centred legal constitutions. The time of the twilight of legal, democratically created constitutions is at the same time the moment of the dawn of a fertile heterachic fragmented social constitutionalism, some argue.
Against this background of multifaceted theories of constitutional pluralism, the question arises whether at all and if so how this perceived pluralism can be reconciled with normative universalism. One may be sceptical about the merits of social constitutionalism but the pluralism of content is at least a reality. Is this the death knell of the idea of normative universalism? Or can one reconcile constitutional pluralism in its tenable content with the aspirations of normative universalism? This is a crucial question for the internationalization of constitutionalism because such internalisation presupposes some common normative ground on which an international culture of constitutionalism can grow.
Keywords: Normative Universalism, constitutional pluralism, constitutionalism, human rights, dignity, Universal Declaration, ECHR, Basic Law
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