Conservatism and Constitutional Government

A Global South Perspective

The Marxist intellectual C.L.R. James of Trinidad (left) and the gentleman-farmer D.S. Senanayake of Ceylon (right) represented the Left and the Right of the Global South in the Era of Decolonisation.

       

Editor’s Note: At the invitation of the Oxford philosopher of trust, Thomas Simpson, I recently gave a talk at the Blavatnik School of Government on conservatism and constitutional government from the perspective of the Global South. The talk was part of a series on International Perspectives on Conservatism convened by Tom, who also, coincidentally, served with the British Army in Iraq around the time I was helping make that country’s post-Ba’ath constitution in the mid-2000s.

The video recording of my talk can be viewed here, which includes the broader conversation with Tom and the audience following my initial remarks. There were interesting questions, including on the implications of the changing world order for comparative ideas of constitutional government, and the nature of the polity and constitutional order, different conceptions of the common good, rights and limitations, and civic and ethnic conceptions of nationalism under common good constitutionalism.

For those readers of The New Digest who might prefer to read rather than watch, I provide below a slightly edited version of my remarks. This version of the text includes some observations at the beginning about my personal experience as the context to my evolving professional attitude to constitutionalism that I excluded from the talk as given for reasons of time.

A Personal Note

As I am not speaking exclusively to an audience of my usual brethren – comparative constitutional lawyers – let me perhaps begin with a few comments on how my professional career has shaped my evolving perspectives in my academic field.

I believe this will help contextualise the critique I will be making of the dominant perspective on constitutional government in my field, and perhaps also help explain why I think conservatism has a useful role to play in it – even though it is a constitutional ideology that, in the way that I understand it, has played little to no role in constitution-making in the post-colonial world so far.

My professional career in comparative constitutional law really began in 2001 with the peace process between the Liberation Tigers of Tamil Eelam and the Government of Sri Lanka facilitated by the Royal Norwegian Government. Despite being very junior, I was lucky to have been able to assist the first phase of that process between 2002 to 2004 at the very highest levels – including the background work that led to the historic Oslo Declaration in 2003.

In 2005, I was invited to join the Office of Constitutional Support in the United Nations Assistance Mission for Iraq, in which capacity I helped the efforts of the Transitional National Assembly to draft the present Constitution of Iraq. 

Even though subsequently I have had the good fortune to assist constitution-making in a great many other countries, Sri Lanka and Iraq are thus my professionally formative experiences. The timing of these experiences as well as the cases themselves are significant for the thesis I wish to develop tonight. 

The Sri Lankan and Iraqi processes occurred in the apogee of liberalism – it having been interpreted as having won mankind’s last ideological battle, and in that sense, ended history itself. People like me – that is, Western-educated post-colonials – really believed this teleological thesis at the time. There was no reason not to – such was the power and prestige of the United States of America from a Global South point of view. Even if we had reservations, these were put quickly aside in the hope, that finally, we really had a sporting chance of achieving the peace, the rule of law, the order, the good government, and the material abundance of the West, through liberal democracy and capitalism.  

Unlike Iraq, Sri Lanka and its peace process are not very well known – but it was one of the most textbook applications of the ‘liberal peace’ model for an attempt at a pacted transition from conflict to peace of that era. The Government of Sri Lanka also simultaneously attempted the most doctrinaire programme of neoliberal economic transformation ever. Both failed – for reasons we don’t have time to discuss tonight – but I will return to the theoretical lessons for constitutionalism we might learn from them in a bit.

Iraq, on the other hand, was the application of the neoconservative version of enforced democratisation, which had begun with the Blair Doctrine in the 1990s that extended military intervention to address major human rights violations within states – and then escalated with the regime change in Afghanistan in 2001 to comprehensive constitutional transformation. My youthful curiosity and even admiration for this form of muscular liberalism began to wane in the face of the reality in Baghdad – and the inglorious withdrawal from Afghanistan in 2021 ended it.

So, a career that began at the pristine highwater mark of post-Cold War international liberalism – and included close involvement in two of liberalism’s most emblematic experiments in the rationalist transformation of non-Western societies – had now, two decades later, come to a place in which liberalism’s prestige was significantly battle-scarred and damaged – and its appeal and persuasive power much diminished.

This is the context in which I will – with Tom’s assistance – try to do four things in brief tonight:

1.       Provide an account of the three waves of historical development through which political ideas and legal expressions of constitutional government have evolved in the Global South since World War II;

2.       Theorise the underlying institutional-normative core of post-colonial ‘modernist constitutionalism’ that has remained constant throughout these three waves;

3.       Suggest that this model might be running out of road in the major global realignment of power that we’re seeing since the 16^th century, and what, specifically, conservatism can add to this debate through a critique of modernist constitutionalism; and

4.       Outline the elements of a conservative alternative to modernist constitutionalism, embodied in a normative focus on the ‘common good’ as opposed to liberal individualism and socialist egalitarianism, that have the potential to answer to the requirements of the discourse and practice of comparative constitutionalism – that is, both the making of constitutions and governing constitutionally – in the Global South.      

Post-War Comparative Constitutionalism and the Global South

Constitutionalism in the Global South – that is, both legal constitutions and conceptions of constitutional government – in the states that began their modern independent existence after the reorganisation of the global order after World War II and decolonisation, can be historically periodised according to three broad phases. I will call these (a) decolonisation, (b) post-decolonisation, and (c) post-Cold War constitutions.

Decolonisation

Decolonisation constitutionalism was truly the first world historical moment of universalism in terms of foundational principles and organising concepts. Under the new UN system, constitutional statehood internationalised and universalised the Westphalian conceptions of territory, nation, state, and sovereignty.

Beyond these foundational principles, however, this was not a phase of universalism in terms of either constitutional design or constitutional government. Post-colonies tended to emulate the constitutional model of the departing colonial power – such that Anglophone countries mostly adopted the Westminster model or Francophone countries a version of semi-presidentialism – and as such, there were striking sub-global regional similarities in institutional design and norms of constitutional government. In this sense, the imprint of the previous imperial division of the world was constitutionally reflected in the immediate post-colonial world. 

One commonality, however, was the notable proceduralist character of these constitutions. They were not exactly value neutral – most favoured the basic commitments required for a political democracy of some sort – but they were notably normatively thin in respect of other social, cultural, and economic values.

Post-Decolonisation

Many post-colonial states undertook a process of constitutional revision, which often also involved constitutional rupture from any surviving legal links to the former colonial power, at some point after independence. In the British post-colony, the most striking thing constitutionally about this phase was the move to formal republicanism – although in some, the republican form only served to clothe the introduction of monarchical presidencies. But more generally, the common theme of this phase of ‘re-constitutionalisation’ was the instrumentalisation of the legal constitution to a thicker set of normative commitments than in the decolonising phase. This instrumentalism commonly took the form of more explicit commitments to ethnocultural identities, economic socialism, and developmentalism.

Attempts to constitutionalise identity in communally plural polities were fraught exercises, which often weakened rather than strengthened the state’s capacity to contain or manage conflict, and as more and more communally plural post-colonial states entered a period of protracted ethnic or religious conflict, the legitimacy and efficacy of these states would suffer lasting damage.     

Developmentalism in this period could take both democratic and non-democratic forms, and thicker or thinner conceptions of socialism. But shared assumptions in states that took this direction included the proposition that, for a grounded and meaningful politics in the post-colonial state, development was more important than democracy or pluralism, and that to this end, strong – which is to say, unfettered or only weakly fettered – political executives were more important than neutral administrations, functioning legislatures, or effective judiciaries.

This almost by definition led to constitutionally imbalanced political systems, which often produced authoritarianism, corruption, state capture, governing incompetence, factionalism, violent internal conflict, an increase in the agency costs of government, and a reduction in the capacity for the production of public goods.

There was a more constructive aspect to constitutional instrumentalisation, however – at least on the face of the paper constitution. Post-decolonisation legal constitutions began to talk increasingly about some conception of the common good, based on the idea that constitutional order has a moral purpose to secure peace, justice, and abundance. Whether in preambles, founding provisions, or, in a common design device of this phase – contrajudicative constitutional directives – many, although by far not most, legal constitutions began to reflect a concern for the concept of the common good.

But while the fundamental conceptual commitment might have been shared, the specific conceptions of the common good reflected in these constitutions were many. They reflected local, regional, and cultural aspirations to religious (mostly Christian but also Islamic and Confucian), republican, democratic socialist, social democratic, or even liberal values. Depending on the particular conception, they were intended to serve a progressive or conservative purpose – that is, have a ruptural and transformative effect on the future from the past and the present, or have the conservative effect of continuing and preserving from the colonial order, ideas of right, duty, authority, and public and private will.

Post-Cold War

This phase of constitutionalism sees the normative convergence of constitutions and good governance around liberalism on a global scale. The major metaconstitutional norms of this convergence are the liberal ideals of individual autonomy and state neutrality, embedded within what is now thought to be a post-ideological consensus around positive human rights, the rule of law, limited government, and free markets.

This ideal is also given effect through an institutionally explicit regime of separations in the horizontal and vertical organisation of the state – most strikingly in the new imperative of judicial supremacy – and more broadly between the state and other domains, such as society and market. Behind it is a more implicit but characteristically liberal separationist mentalité with regard to the public-private divide, the purpose of which, contrary to older conceptions of both colonial and post-colonial constitutional law, is always to constrain the ‘public’ and liberate the ‘private’. The political liberalism of these constitutions further deals with democratisation and conflict resolution around twin or dual transitions – from authoritarianism to democracy, and from conflict to peace.

Institutional design becomes an exercise in contextual variations of a common core of prescriptions – which includes, essentially:

·       A written, legal, and supreme constitution establishing electoral democracy;

·       Positive civil and political rights;

·       The separation of powers, and strong-form judicial review

– and may include, supplementarily, fourth pillar institutions, federalism, and justiciable socioeconomic and cultural rights.

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Even though there is a lot of substantive and institutional variation between these three historic phases of constitutional development, my submission is that they are informed by a consistent theoretical core – which I call ‘modernist constitutionalism’. Let me now outline what I mean by this, followed by an enumeration of the objections a conservative understanding of constitutionalism might mount against this conception.    

Modernist Constitutionalism in the Global South

The making and the implementation as well as the study of constitutions since 1945 have been framed by a normative-institutional model that might be called ‘modernist constitutionalism’, which originates in the French and American encounters with the European Enlightenment. Between 1945 and 1991, the ideological traditions of liberalism and socialism that were otherwise engaged in an existential geopolitical conflict were nevertheless united by a common subscription to the universalist postulates of this conception of post-Enlightenment constitutional modernity.

At a basic level of generality, modernist constitutionalism is defined by the rejection of tradition, hierarchy, and organicism – the sources of pre-modern small ‘c’ constitutions – and the celebration of empiricism, egalitarianism, and transformation as the basis and purpose of modern Big ‘C’ Constitutions. In their understandings of constitutional foundations, liberalism and socialism were agreed on these modes and ends of modernity, but they differed on the means and forms through which the shared ends might be achieved.

With the triumph of the West in the Cold War, after 1991 the hard socialist variant of modernism withered and liberal constitutionalism subsumed constitutional modernism as a whole, albeit with an accommodation of certain soft socialist ideas, such as the repurposing of bills of rights to achieve redistributive aims. The post-Cold War ascendancy of liberal constitutionalism was manifested in three major movements in transnational constitutional practice. First, the explosion in the number of new written legal constitutions through the spread of the practice of ‘transformative’ constitution-making. Second, the increasing normative and institutional convergence in the foundations and structures of these legally posited constitutions, in otherwise highly diverse political, cultural, and historical settings. The third and complementary movement in liberalism’s normative subsumption of constitutionalism was the expansion, institutionalisation, and increasing specification of the regime of international human rights law and its close alignment with constitutional law.

As a result of these movements, contemporary constitutional design exhibits the doctrinal hallmarks of the liberal constitutionalism at the heart of post-Cold War comparative constitutional law. The constitution is a written, legal instrument enjoying supremacy over other laws and political practices. The making of a constitution marks a break if not a rupture in historical continuity whereby the new constitution provides the exclusive basis of the legal identity of the new society. In this sense, the constitution also transforms the society it serves, by eradicating or ameliorating the traditions, hierarchies, and the injustice and unreason of the past, and by instantiating liberal modernity’s reason, liberty, equality, and justice. Inherited virtue ethics are arcane, morally and scientifically questionable, or irrelevant, whereas modernity’s values, on account of their normative superiority, are expressed in enforceable form in the legal constitution. At the level of institutions, aside from procedural democracy, the major focus of the post-Cold War constitutions has been bills of justiciable fundamental rights and strong-form judicial constitutional review. Rights, moreover, are internationalised in various ways including constitutional interpretative injunctions to municipal courts and the expanding jurisdiction of supra-state bodies over the monitoring and adjudication of rights.

These are, in short, a set of institutional prescriptions that can only come from a normative constitutional theory that draws not merely a temporal but a sharp analytical distinction between tradition and modernity, and sees the purpose of modern constitutionalism as the maximisation of individual autonomy through constrained government and an open-ended catalogue of (preferably justiciable) legal rights.

Conservative Objections to Modernist Constitutionalism

Before we begin any normative discussion about conservative objections to modernist constitutionalism, we need to have a serviceable idea of what conservative constitutionalism is. For this we need an analytical conceptualisation of conservativism as a constitutional ideology that can speak to the full diversity of the world in a comparatively meaningful fashion. Approached in this way, we can say that comparative constitutional conservatism has two core features: (a) a commitment to incrementalism as the preferred method of constitutional change (or in other words, a desire to control or manage change and put the burden of proof on those that seek change); and (b) a belief that forces beyond human will and reason (which may be divine or non-divine) shape social and political institutions.

From this perspective, we can now set out the following propositions as conservative objections to modernist constitutionalism:

·       Constitutional order, properly understood, is not solely based on reason and will, and the legitimacy of constituted authority does not flow exclusively from the general will of the people; 

·       Constitutionalism, properly understood, is not just a normative project for the maximisation of individual autonomy;

·       Constitutional morality is about much more than private autonomy, and the legitimacy of constitutional order does not flow exclusively from the legal constitution’s promotion of private autonomy;

·       Liberal constitutional morality is not neutral, it is a substantive conception of the good, which conceals its dominating ambitions behind the guise of neutral proceduralism;

·       The proper purpose of constitutional order is not merely to constrain government but also to enable good government for social ends; 

·       Obligations of obedience in a polity are not solely based on individual choice and consent;

·       Positive law alone cannot fully account for, nor exhaust, the principles of justice evolved by humankind over several millennia, according to the needs of their own contexts;

·       Those needs and principles are reflected in the embodied experience of cultures, which may share universal principles at high levels of abstraction, but are determined and expressed according to local specificities;

·       The reality of global order is moving from convergence around the (supposed) universality of modernist constitutionalism, towards a deeply plural order, specifically a pluriversal world, that is, one that is ontologically plural in conceptions of constitutional order.

If these negative propositions are accepted, the question then arises as to what conservatism as a constitutional ideology can be said to positively represent, taking into account that a general account of conservative constitutionalism has to be articulated at a fairly high level of abstraction in the context of the ontological pluriversalism, just mentioned, of the emerging world of comparative constitutionalism.

I submit that the key idea is that, what makes government constitutional is if government is ordered by a constitution to some notion of a common good of the polity as a whole – one that is more morally purposive than liberal state neutrality – and that this is the unifying theme of different conservative iterations of constitutionalism across the world. There may be ontologies of politics that may have nothing to do with liberalism but which have perfectly coherent, efficient, historically informed, culturally resonant, and even socially acquiesced (without state violence) conceptions of government. But if they do not, in meaningful practice, require government to be ordered by a constitution to the common good, they are not conceptions of constitutional government. As such, they will produce outcomes – such as rationalist ideologies, coercive governance, and radical social change – that are fundamentally unconservative in nature.     

Common Good Constitutionalism as a Normatively Conservative Theory of Constitutional Government

The political unity embodied in the constitutional state is not a mere aggregation of privatised individual and federalised communal interests held together by a minimalist framework of procedural toleration – the standard liberal constitutional solution. It is, rather, an indivisible whole bound together by the moral, political, economic, and juristic principles of justice required in a society that values freedom and responsibility equally. Although often marred and obscured by colonial and post-colonial constitutional cultures of tyranny, avarice, cruelty, and violence, those principles of justice inhere in every post-colonial society’s temporal and spiritual heritage, and with some careful work, they can be excavated from the past and reconstructed for the present. 

Given coherent articulation in the domain of public law, these claims are encapsulated in the theory of constitutionalism of and for the common good. A constitutional order oriented to the common good is one that is directed towards human flourishing through the provision of dignity, equality, peace, order, good government, and prosperity for every member of society and society as a whole.

The common good is a universal value, recognised in every global tradition of law and politics since ancient times, however, its instantiation (interpretation and application) to any particular polity should be mediated through the history and culture of that polity.

The common good is a unitary good, in that it is both shared and indivisible within a society; it is the opposite of both a utilitarian good and an aggregative (majoritarian) good. Therefore, the individual benefitting from the common good does not prevent access to it by others and does not reduce its availability to others.   

This is a better conception of constitutionalism than those directed to the maximisation of the autonomy of the individual or egalitarianism collectivism, and it is morally superior to conceptions of non-constitutional political order – such as ethnonationalism – that permit, in various ways, public authority to be utilised for private or socially selective ends.

Constitutional government is not only about protecting rights and constraining government, but also about empowering and enjoining constitutional authority, both legal and political, to ensure peace, justice, and abundance. A constitutional state oriented to the common good in the above ways cannot be neutral as to the ends of politics and law, it is morally committed to achieving the common good in the temporal life of the community. 

In a well-ordered society, the individual and the community do not stand in opposition to each other but are co-constitutive of each other. What is good for the individual is inseparable from what is good for the community. Individuals enjoy equal dignity and moral equality, which are actualised when both legal and political institutions act according to fundamental and prudential principles that protect and further the interests of everyone in the community, not just the majority.

A flourishing society is also one characterised by civic friendship, trust in order and authority, and thriving social institutions beyond the state. A contextualised theory of common good constitutionalism establishes an ethical framework for both making constitutions and governing constitutionally. Its conception of constitutional order is one that that preserves the liberty of the individual while advancing what is good and fair for the political community as a whole, as coterminous rather than conflicting ends.

The concept of the common good as a prudential ideal of good government is often organic to the traditions of political thought, both spiritual and temporal, that constitute the post-colonial constitutional heritage. It is a concept that is prominent in Buddhist, Christian, Confucian, Hindu, Islamic and Jewish conceptions of good government and political prudence, and it suffuses the juristic principles of the Western colonial legal inheritance in both private and public law. It is integral to the classical legal principles of ‘peace, justice, and abundance’ inhering in the civilian legal tradition. The well-known legal term of art found across the Commonwealth – ‘peace, order, and good government’ – one of the cornerstones of constitutional government in the English Common Law – is a cognate expression for the common good.