New constitutionalism? New forms of democracy and rule of law beyond liberalism

12 Jul to 13 Jul

Coordinators: Adam Czarnota (The University of New South Wales)

Description of the meeting

On the universal level the sphere of ‘the political’, i.e. the public space of conflict within the democratic community, has been shrinking in the past decades due to the processes of juridification and economisation of politics. This has led to the emergence of so-called ‘post-politics’, i.e. a situation in which politics is increasingly made by professional “politicicians” and experts, rather than through an authentic engagement of citizens. This process was strengthened in connection with European integration and the transfer of further competences onto the technocratic institutions of the EU; as a result, the demos became an abstract notion. Where, therefore, we can find a solution to way out of the crisis of the political, as described above, and therefore a way of overcoming the post-political situation? What political tools are at the disposal of the contemporary democratic community and what are its aims? Is the idea of common decision-making currently present in political life and if not, is it possible to create new procedures guaranteeing a broad civic participation in the public sphere? Is there a possibility for the community to consciously take part in defining what belongs to the common good and what is just, as well as to create a common world of sense and meaning? Could an idea of new constitutionalism be an optimal theoretical framework for a re-politicisation of politics, i.e. the rebuilding of civic participation in political decision-making and the revitalisation of the democratic community as an authentic decision-making subject? And, more fundamental question, what kind of analytical instruments for describe and understand this process of new constitutionalism give for us contemporary political philosophy?

We want to address above issues in relation to recent processes and events in Central-Eastern Europe. Over the past 30 years we have witnessed an unprecedented increase of the judiciary at the expense of representational power in Central and Eastern Europe. The American predilection to settle all conflicts in the legal forum, remarked upon with surprise by Alexis de Tocqueville, has become ours too - almost every controversial political decision may be heard by court. The judiciary, based on constitution, formed one of the foundations of the transformation, and in its assumptions is a guarantor of efficient and just conduct of such transformation. This fact is the consequence of the prevalence of a liberal-democratic vision of social order. But liberal type of social and political theory and practice is in crisis. Every new theoretical proposal, from communitarians to supporters of agonistic democracy, starts with a critique of the liberal democracy project. Especially it lack of legitimization and non-democratic character. The emerging in CEE new form of democracy sometimes called “illiberal”, with its populism and nationalism, presents itself as a political answer to this crisis. Highlighting the role of the sovereign, collective subject (“the people”, “the nation”) it wants to fill the legitimacy gap of state power, even at the expense of individual rights. In our workshop we would like to examine, in the scope of constitutionalism and rule of law, answers to the challenge of new forms of democracies.

Due to the main assumptions of liberalism (independence of individuals, freedom in making choices and rationality of motives of action), the basic problem of this doctrine is the transition from rationality of an individual’s actions to social co-ordination of actions and the formation of political identities. Any correction of liberal democracy should answer the question: How does individual rationality translate into collective rationality? Because observed trends refer to the form of society, its essence, which used to be described as polis. The formation of a constitution’s subject reveals itself in a double mechanism, in which form of society manifests itself and is simultaneously obscured. It is visible in the sense that the process in which social reality gains its form, which C. Schmitt called adoption of the concrete form of supremacy and subordination, becomes visible. It is obscured because the place of constitution in the public sphere is defined as special, whereas the principle that creates the conditions of constitutionalism remains hidden. Hence we deal with a paradoxical situation. Constitution, which sets out the framework of political and social order, itself needs a minimum of order from which to  emerge.

The workshop is aimed to examine the “new constitutionalism”, understood as political and constitutional practices theories in CEE Countries which are emerging outside mainstream liberal. The topic and proposed research approach are not sufficiently investigated in the fields of Sociology of Law and Law and Social Theory. The geographical diversity and the number of the participants will ensure that wide perspectives and differential empirical material. The result of the workshop will be the published in the form of a monographs. Thanks to this the results of the workshop will be more widely presented, which will contribute to awaken discussion on the political and legal changes taking place.

In the workshop we will have participants not only of socio-legal scholars but also constitutional lawyers, legal philosophers, political scientists and political philosophers.

The structure of the workshop will be organised around the main 3 groups of problems:

  1. Social and political trends undermining liberal constitutional democracy in Central-Eastern Europe.
  2. Institutions of New Constitutionalism
  3. New forms of rule of law and its social ontology
  4. Intellectual instruments (notion and concepts) to make sense of confusing reality.

More specifically following topics will be addressed in discussed papers.

  1. Social foundations of modern constitutionalism
  2.  Specificity of constitutional position of judiciary in Central and Eastern Europe.
  3. Contemporary threats to constitutionalism (populism, lack of legitimisation).
  4. Legitimisation of the Constitutional Tribunal’s power.
  5. Types of political, social and legal arguments used by the Constitutional Tribunal
  6.  Sociological analysis of constitution and constitutional judiciary functioning in contemporary societies of Central and Eastern Europe.
  7. Sociology of Constitution in Central and Eastern Europe
  8. Constitution in Action

The workshop will bring us together for discussion. Therefore, the base for discussion will be draft of papers distributed at least 3 weeks before workshop. On the workshop, the authors will have 15 minutes to present the main arguments. Two papers will be presented in each session. After presentations by authors a discussant will make comments of the paper and kick off the discussion. We will have 8 sessions plus summary discussion in the end of the workshop on all 16 papers and comments presented by discussants and issues rising from them.

For more information: 

Malen Gordoa Mendizabal

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