The Constitutional Challenge of the Civilisational State

By Peter Reid and Asanga Welikala

Civilisational Encounters: Neither Concord nor Clash but Fraught Friendship. The 1602 meeting between the Dutch explorer Joris van Spilbergen and King Vimaladharmasuriya I of Kandy. (Photo credit: www.goodfreephotos.com) For context, see Gananath Obeyesekere, ‘Between the Portuguese and the Nayakas: The Many Faces of the Kandyan Kingdom, 1591-1765’ in Zoltan Biedermann and Alan Strathern (Eds.) (2017) Sri Lanka at the Crossroads of History (London: UCL Press)

Comparative constitutional studies, emerging from the shade of an extended overhang of post-Cold War capitalist liberal democracy, is facing a protean period. There is a sense of epistemic fragmentation about even the most basic of its conceptual building blocks – ‘law’, ‘rights’, ‘nation’, ‘state’, ‘territory’, and ‘sovereignty’ – as well as, of course, ‘constitution’ and ‘constitutionalism’. The ideological hegemony exercised by liberal modernism over the meaning of these concepts during the Pax Americana has ended, and legal liberalism will take its place as one of many conceptions of the constitutional good in the global epistemology of the comparative field. In this more open playing field, there are two emerging conceptions of political order that may define its central debates in the years to come. In the Global North, the theory of ‘common good constitutionalism’ represents a revival of the West’s classical tradition of legal, political, and moral philosophy as a response to the failures of liberal modernity’s social and economic promises. In the Global South, the model called the ‘civilisational state’ seeks to revive pre-Western principles of indigenous social order, and assert them as moral and material imperatives for a post-Western world.

As one of us argued in a previous post here, in the emergent post-liberal world, the key question for analytical and normative debates in comparative constitutional studies will no longer be about the extent to which a particular (non-Western) constitutional morality or type of constitutional practice conforms with the tenets of liberal constitutional democracy. It will be, rather, whether a constitutional regime-type can be objectively regarded as delivering constitutional government according to juristic normative standards that can be discovered by universal reason, but determined and adapted in posited law by reference to the regime’s own history and culture. Constitutional government exists where the constitutional system recognises a conceptual distinction between the political and the legal and has some established process by which political power is transformed into legal authority. It does not exist in a system where politically salient decisions are divorced, and political decision-makers are immune, from the general discipline of the law. In this sense, common good constitutionalism is impeccably a theory of constitutional government, certainly within the Western tradition, but also in other jurisdictions where the Western tradition applies to the discourse and praxis of constitutional law and politics.

Whether or not the civilisation state delivers, is capable of delivering, or can be made to deliver constitutional government is, however, a somewhat more complicated question. There can, of course, be no universal model of the civilisational state. By its very nature, the model is tied to a particular civilisational – and often exceptionalist – conception of history, culture, and order. There are, therefore, significant differences between, say, the Chinese, Indian, Russian, and Turkish conceptions of the civilisational state. But in the elite discourse of these countries in relation to both transnational and internal order, we can see the development of a set of common constitutional traits that allows us to group them into a post-liberal or non-liberal and even anti-liberal constitutional ‘narrative’ – a common story being told by the leaders of these states as a way to shape constitutional practice. We describe the common traits of this narrative as follows: (1) the state as a spiritual and civilisational protector; (2) constitutionalism as pre-democratic values; (3) legitimacy from (a) correction of historical injustices and (b) reflexivity and complex democratic credentials; and (4) limited procedural propriety.

The State as a Protector: Civilisations and Spirituality: Governments in civilisational states in the making have formulated conceptualisations of their civilisations which, they argue, the state should use law to promote. Civilisational states also have an active spiritual dimension. In contrast to liberal constitutionalism, therefore, the separation of church and state, the neutral and limited state, and individualism are all principles rejected by the civilisational state. Instead, there is a thick account of the civilisation which it is the constitution’s role to promote through the government. This means that the civilisation state is culturally selective and historically contextualised (or at least, buttressed by an instrumentalised historiography), and seeks in the present to further values that are regarded as traditional to the civilisation. In this way, civilisational state constitutionalism is empiricist, thick, substantive, and monistic (a dominant culture is hegemonic, but not necessarily assimilationist), in contrast at least to the classical versions of liberal constitutionalism, which are rationalist, thin, procedural, and pluralistic. Often, Western liberalism is portrayed as spiritually or morally corrupting, not only because of liberalism’s abandonment of the West’s own traditional values and religious heritage, but also because non-Western civilisations valorise anti-individualist values such as cohesion, harmony, deference, virility, and patriotism.

Moreover, in the prosecution of the state’s civilisational mission, these governments often blur the distinction between public and private interests, between the state and the ruling party, and between office and person, at least in respect of the office and person of the chief executive. It may be possible to achieve constitutional government while rejecting one or more of the liberal separations mentioned previously, but the rejection of the latter set of juristic distinctions makes it more likely that the civilisational state is more a model of unrestrained political power rather than one of constitutional government. It is thus prone to authoritarianism, often in violation of tenets of regnative prudence of its own civilisational culture.

Constitutionalism as Pre-Democratic Values: In the civilisational state, constitutionalism is shaped more by pre-democratic practices than democratic ones. ‘Pre-democratic values’ refers to those values, found in historically significant teachings and practice, which may be religious or philosophical, that pre-date (Western) modernity and Western global dominance. This does not mean that these are democratic precursors – they are not stepping-stones on the way to a liberal constitutional telos. Quite the opposite, they are appealed to as more compatible with a civilisation’s unique character and context. But a common trait is the valuing of community, harmony, order, hierarchy, and tradition, over individualism, egalitarianism, pluralism, confrontationism, and liberationism. While these appeals exist across China, India, Russia, and Turkey, the uniformity ends there. The underlying civilisations and philosophies which are being used to shape the systems are fundamentally different and inevitably have diverging outcomes. And it is also in this sense that the constitutionalism of the different iterations of the civilisational state reject the purported universalism of liberal constitutionalism.

Legitimacy: The legitimacy of the civilisational state does not derive from a social contract either in respect of founding or in respect of commitments. The civilisation has been there from time immemorial and so has the state. As such, the legitimacy of the contemporary state is secured through two things: the correction of historical injustices, and what we call reflexivity and complex democratic credentials.

The state is legitimised partly with references to historical cultural victories, which are intertwined with the idea of civilisation. Not only do these victories provide an alternative source of legitimacy to democracy, but they also intertwine with each state’s sense of ‘self’ and status as a civilisation. The victories are located within a description of the state as a civilisation and the government’s legitimacy also, therefore, comes from the deep history it claims to defend.

Civilisational states do not regard themselves as necessarily authoritarian states, although they would reject the liberal conception of electoral democracy as the sole basis and measure of political legitimacy. Some civilisational states are electoral democracies in which governments prize the legitimacy that majoritarian elections bestow on them, while others are less democratic or are not democratic at all. Nevertheless, they do make claims to responsiveness to public sentiment (reflexivity), and offer reinterpretations of democratic process (complex democratic credentials, an example of which is the Chinese concept of ‘whole process democracy’).

Procedural Propriety: Parallel and Dual States: Constitutional practice and change often takes place within the boundaries set by law. However, parallel and dual systems exist for authoritarian action, and it is in these spheres of unlimited and unaccountable executive discretion that civilisational states’ claims to be a species of constitutional government very often fail. Procedural boundaries, however, are not merely the proverbial overcoat – to be worn when convenient and discarded when not – they have often, but not consistently, provided meaningful restraints on the use of power for rulers’ private ends. But preponderantly in civilisational states, the political is the master of the legal, and the political is not in practice disciplined by the restraining and prudential norms of good rulership that the civilisational culture itself idealises.

From this rough sketch of four characteristics emerges a certain picture of the constitutional character of the civilisational state that suggests it is a model that lends itself more to authoritarian than to constitutional government. And that picture is often reinforced by the behaviour and the rhetoric of leaders like Xi, Putin, Modi, and Erdoğan who are at the forefront of the advocacy for the civilisational state. But the undoubtedly problematic character of these leaders should not blind us to the deeper issues that the political and moral assertions associated with the civilisational state raise for the analytical and normative theory of comparative constitutionalism. In many ways, albeit with lesser refinement, the critique they offer of the dominant orthodoxy of liberal constitutionalism is similar to the critique offered by post-liberal theorists and common good constitutionalists in the West.

In the post-colonial Global South in particular, liberal constitutional modernity’s scepticism of history, culture, ethnicity, and religion has meant the traducing of traditions, hierarchies, epistemologies, ontologies, habits, morals, and forms of identity and order that may have been susceptible to incremental and organic evolution under conditions of modernity. Instead of contributing to the development of culturally contextual constitutionalisms, modernist constitutionalism in imperialistic mode arrested that development. Partly as a result, constitutional modernity did not succeed in its self-professed teleological goal of transforming societies after its own image, but by disparaging and antagonising tradition, it may have transmogrified tradition into more violent, intolerant, and recalcitrant forms. In this context, civilisational state thinking can be understood as an assertive or even an aggressive attempt to protect the worth, identity, integrity, and dignity of non-Western political cultures.

This could be a good thing if it serves as a prompt for changing the entire way of ‘doing’ comparative constitutional work, both in scholarship and practice. Comparative constitutional studies would need to become more open-textured (i.e., especially, avoiding modernist teleological assumptions), self-reflexive (i.e., allowing diverse constitutional systems to speak for themselves in comparative discourse), and pluriversal (i.e., rebalancing the relation between the universality of abstract norms, and the plural epistemic and ontological bases of their instantiation or determination in particular contexts). Constitutionalism, in these ways, could become more capable of reflecting a better relationship between norms, institutions, and experiences within the distinctive conditions of Global South countries. But against the centrifugal dynamics of open-texture, self-reflexivity, and civilisational pluriversality must be weighed the need to maintain the conceptual integrity of constitutionalism as an analytical tool and a normative idea. For it to do its work within constitutional comparativism, it cannot be so relativistic as to do no more than provide an apology for power in whatever empirical context it finds itself in. How we answer this conundrum is the real research agenda for comparative constitutional studies in the present.  

Shedding the ideologically particularist, culturally contingent, teleological, and procrustean tendencies of the legal liberalism of its post-World War II and post-Cold War waves of growth, comparative constitutional law therefore faces the challenge of accommodating within its own reformation for the first time, the historical experiences and the political, economic, social, and especially the cultural realities of the Global South. But if in China the re-emergence of an avowedly non-democratic and non-liberal Asian global superpower for the first time since the sixteenth century is also not to portend a global trend of a ‘de-constitutionalisation’ of governance, this coming period of change must be viewed as both a challenge and an opportunity to reconceive the idea of constitutional government. As ever, the historical turn in constitutional theory which motivates both common good constitutionalist and civilisational state thinking reflects an established habit and method by which humanity has responded to the inevitable failures of the utopian experiments of modernity. The intellectual tradition of every civilisation has grappled with the general proposition on the law of nature and nations set out by Gaius in the Western classical tradition:  

“All communities of men governed by laws and customs partly use their own particular law and partly that common to all men, for that law which each particular community establishes for itself is peculiar to that community and is called the civil law as being the peculiar law of that community; but that which natural reason establishes between all men is equally maintained by all communities, and is called the law of nations, as being that law which is used by all nations.” (§ 1, The Institutes of Gaius and the Rules of Ulpian, Tr. J. Muirhead, Edinburgh, 1904)

Comparative constitutionalists are today called upon to deal with this proposition about the universal and the particular in relation to the core concept of their field – constitutionalism – in the context of an ontologically pluriversal normative field brought on by an empirically ‘multipolarising’ global order. Attempts within the academic and practice communities of comparative constitutional governance to understand and respond to the implications of these questions are in their infancy. But important work has begun.

Peter Reid is a PhD candidate at Edinburgh Law School. His thesis is a comparative-constitutional and historical-institutionalist study of the post-colonial shift from Westminster parliamentarism to hybrid presidentialism in Guyana and Sri Lanka. Asanga Welikala is a Senior Lecturer in Public Law at Edinburgh Law School.