Constitutional democracies – moving beyond abstraction and reflection – a politics of bodies, things and relations

Part of an unpublished paper by Linda Stewart

http://www.constitutionalcourt.org.za/site/thecourt/thelogo.htm

“These days it’s the rights of man that provide our eternal values. It’s the constitutional state and other notions everyone recognizes as very abstract. And it’s in the name of all this that thinking’s fettered, that any analysis in terms of movements is blocked. But if we’re so oppressed, it’s because our movement’s being restricted, not because our eternal values are being violated. In barren times philosophy retreats to reflecting “on” things. If it’s not itself creating anything, what can it do but reflect on something? So it reflects on eternal or historical things, but can itself no longer make any move (Deleuze Negotiations 121-122, emphasis added).”

1 Introduction

Since the end of World War II, modern human has been ‘consecrated’ with a range of abstract human rights protecting the body from state abuse along with guaranteeing certain rights aimed at the material welfare of the body. These human rights are supposedly directed to curtail the juridical powers (see discussion on power in the Foucaultian sense) of the state along with guaranteeing the livelihood of the body. It has been created and adopted by international organisations (such as the United Nations and International Labour Organisation); it trickled down to regional bodies (such as the European Charter and the African Charter); and found a home in most western societies and more recently in modern democracies in Africa. In the neo-colonial nation state, the concept of democracy and components thereof such as human rights and constitutionalism created a new world in already multitude of worlds. Anthropologist, John Comaroff explains that since 1989, one hundred and five new constitutions have been written. All have very similar features, stressing the rule of law and incorporating a variety of civil political social and cultural rights. In South Africa, the constitution (as most modern constitutions) contains a bill of rights containing what is known as constitutional rights, which plays a primary part in the judiciary’s interpretation of the constitutional text and other legislation including policy. Human rights have also attached itself to discursive and non-discursive practices in neo-colonial South Africa (Stewart LDD 1 – 21). As such it is used as a political tool (of an already negotiated settlement between the former oppressor and the oppressed) used by both the left and right of the political spectra to speak in terms of these rights that originated from a piece of paper and wrapped in total abstraction to fight each other not in the political playing fields as such but within the confines of courts of law in front of a single or number of “wise men” trained and bred in the law.

Although jurists are specialists in the law, they are often separated from other worlds such as the world vulnerable bodies find themselves in. They are furthermore constrained by legal convention, history and interpretative rules that prohibits or discourage them to perceive the constitutional text as a creative component of democracy. In sum, instead of viewing the text and other law instruments as components to creatively solve a singular problematic relation, resist the flow of capital and the resentment contained in a culture of sadness, the judiciary most often rely on approaches/recipes (purposivism and intentionalism) and attach their judgment to abstract and external values and previous case law. However projecting the past into the future is anything but functional. Abstractions need to be explained because it explains little of itself.

Deleuze and Guattari (2, 108) in What is Philosophy, presents us with a challenge. Instead of perceiving philosophy historically, they describe it as the creation of new concepts, where these concepts ‘in itself calls for a future form, for a new earth and people that do not yet exist’. They call on us to create new concepts which questions whether a particular concept works, and whether it unlocks the series of possibilities in a given situation. Philosophical concepts therefore have a transformative power, when inserted into actual fields or assemblages, to produce a change. Deleuze (in Control and Becoming) further argues that the law is a question of jurisprudence that is the creation of new concepts to address relations in specific situations. He remarks, “What interests me isn’t the law or laws (the former being an empty notion, the latter uncritical notions), nor even law or rights, but jurisprudence. It’s jurisprudence, ultimately, that creates law, and we mustn’t go on leaving this to judges.”

Kleinherenbrink in his introduction on his translation of Deleuze’s course on Rousseau explain that Deleuze

“.. reminds us that the Sovereign only has the law itself as its object, in a purely formal sense. In other words, after the completion of the fourth stage, we know how to legislate, but we do not know what to do. One more thing must be added, and this is precisely the relation with things or with concrete situations which confront the people: ‘to determine a law, the general will does not suffice. The formal determination of the will must be joined to the content of objective circumstances of a given society’ and adapt itself to concrete situations. Deleuze sees the figure of the legislator as referring to this ‘injection’ of material circumstances: without the legislator, the general will formally know what it wants. But it needs him to be determined materially. A good law must not consider particular persons – formal aspect – and adapt itself to concrete situations – material aspect- (p. 27) (A politics of things p.5).

The focus of this essay is to explore ways to open the confined spaces of the judiciary in which abstractions such as constitutionalism, democracy and jurisprudence operates. The judiciary when expected to interpret legislation or determining whether a law or conduct is invalid with the Constitution are inter alia confronted with legal constraint and jurisprudential conservatism. Legal constraint is seen as “a particular kind of experience a legal actor has (or may have) in the course of doing legal-interpretive work with legal materials” and includes the perception that judges are only guided by legal factors when confronted with choices (Van Marle Stell LR p. 289). Jurisprudential conservatism is ‘a kind of intellectual caution that discourages appropriate constitutional innovation and leads to less generous and innovative interpretations and applications of the Constitution than are permitted by the text and drafting history’ (Klare SAJHR p. 161). A further point of critique on the judiciary is its overreliance of legislative history. Put differently the judiciary projects the past into the future. Another cause of concern is when the interpreter deals with a text it is done from her perspective and her own historically positioned horizon (Gadamer Truth and Method p. 302). As such the interpreter is inclined to project her pre-understandings onto the text. There exist no method or approach to legal interpretation (be it intentionalism or purposivism) that enables the interpreter to ‘correctly’ reconstruct the past because every understanding of a text is accompanied by the interpreter’s preunderstandings and present position. Furthermore, the search for truth in legal text is a futile exercise because a text does not contain a “true” meaning. Fish (Doing what comes naturally p. 360). We start by analysing the notion that a static/abstract conception of democracy, constitutionalism and human rights order, label and measure bodies relative to its form (Stagoll Concepts p. 53). It creates the illusion of a subject/bearer of human rights (Deleuze Nietzsche and Philosophy p. 134 and see Stewart LDD 1 – 21). In the conclusion we explore the plurality of relations in a constitutional democracy instead of treating it as a binary tension between constitutionalism and democracy. What is indeed needed is a re-thinking of concepts such as democracy, constitutionalism and human rights and the avoidance to project the past into the future by the abstraction of rights and values.

2 Abstractions

Deleuze’s course on Rousseau corresponds with arguments on human rights. Deleuze explains that

“first of all how a public is formed and reject the idea of a common (democratic) will, followed by a rejection of the social contract (which in many ways reflect on constitutionalism). He argues that “For Rousseau, an association is needed first, product of the reunion proposed to the poor by the rich: a public is formed. But the mystification is such that there is a defect at the origin: the poor can perceive that the will is not common. Thus a contract of governance is necessarily required. This is the second mystification. Because however honest magistrates may be, because of the original defect, it is the rich who will be magistrates” (Deleuze Course on Rousseau 16).

Secondly, Deleuze (ABC) argues that human rights are meaningless, empty, a pure abstraction. For Deleuze, transcendence is a major mistake in human rights discourse. With transcendence he includes idealism (the world is a project of our minds) and religion. He gives the example where the notion of freedom of speech in terms of human rights is a pure abstraction because it merely encloses our freedom in an eminent document like a constitution. Deleuze favours materialism which presuppose an objective world where suffering and exploitation exists and which can be changed by objective interventions. Deleuze thus rejects the idea of a defined and a-historical list of invented human rights and the traditions (such as constitutionalism and democracy) that advance human rights. He criticises human rights as unresponsiveness to move beyond the formal legal construct of a subject in thought. He further criticises our conviction in human rights. He explains that it blinds us to see the suffering of others and it justifies everyday violence as part of the natural ordering of economic affairs in a constitutional state. (Deleuze/Parnet Dialogues pp. 84-98). This brings us to the relationship between the concepts, democracy, constitutionalism and human rights.

Constitutionalism “is the idea that government should derive its powers from a written constitution and its powers should be limited to those set out in the constitution” (Currie & De Waal The Bill of Rights p. 8). On the other hand the concept democracy has no single definition although it is often curtailed with the right to vote, and with it some form of representation and majority rule. Democracy in modernity can be described as “a set of rules (primary or basic) which establish who is authorized to take collective decisions and which procedures are to be used” (Bobbio The future of democracy p. 24). The question of what to legislate is not addressed (Deleuze Course on Rousseau) as Kleinherenbrink (A politics of things p.5) explain “we know how to legislate, but we do not know what to do”. The notions of constitutionalism and democracy in legal and political thought furthermore attributes a fixed identity (what Deleuze refers to as the illusion of a subject) on the bearer of human rights and envisions power as repressive and fixed in the different branches of government. As such it illustrates the inability of constitutional systems to move beyond pre-established conventions (the constitution as a product of history) and the idea of a fixed subject of legal and political thought. On this note before continuing it is necessary to explain what is meant by this typical Weberian notion of ‘power’ in a constitutional text. As explained above the constitution bestows powers on different branches of government. Michel Foucault rejects this juridical model of power which presumes that the individual is a fully shaped, constant and united beings that gets trapped in external power relations that exists irrespective of the individual’s own formation. For Foucault power is not centralised in the state or the administrative and executive bodies governing the state. He perceives power as relational and it exists between individuals or is strategically utilised by networks of groups of individuals. The state is thus a particular permutation of multifaceted arrangements of power relations (Foucault The birth of biopolitics). Similar to Deleuze and Guattari’s argument that certain assemblages produce the subject, Foucault also contends that institutions and knowledge transforms the individual into a subject thereby managing the individual as a part of the population. He explains that his conception of power (sovereign power) no longer deals with subjects over whom the ultimate domination was death. This has been replaced by power over the human body a power directed at life itself (Foucault The history of sexuality Vol 1 pp. 142–143). Foucault explains, “[b]y power… I do not understand a general system of domination exercised by one element or one group over another, whose effects… traverse the entire body social…” He emphasis that the condition of possibility of power should not be sought in the key existence of a central point (in other words the existence of a supreme constitution). He argues power “is the moving base of relations of force that incessantly induce, by their inequality, states of power, but always local and unstable”. For him power regroups everything under its invincible unity, but because it is produced at every instant, at every point, or moreover in every relation between one point and another. “Power is everywhere: not that it engulfs everything, but that it comes from everywhere” (Foucault ibid p. 121-122).

As we return to the constitution as a text that separates the juridical power between different branches of government one should not loose track of Foucault’s exposition of power as not merely repressive but also take into account the productive nature thereof and the relations between political power and the body. Put differently, the way we perceive power as fixed in the sovereign may be part of our expectation and ideals that the constitutional text presents as with a formula to address human rights infringements. Nonetheless, the possible functions of these branches of government are curtailed by stratified constitutional procedures and conventions preventing smooth space where possible creative and constructive solutions may originate. It remains static on the question who or which branch of government should decide (“will it be mommy-daddy-or me”) destroying the possibility of creative solutions between these branches denying a departure from the text and historical conventions.

For now, we can conclude that the language and strategies used by the judiciary function as a deferring mechanism of the judiciary to avoid dealing with the material content (“the what”) of these rights given the specific situations and singularities involved in every individual case (for examples see Stewart DPCE: Una costituzione al lavero). An attachment to deference and an over emphasis on the principle of separation of powers along with the pretext of institutional incapability highlights a kind of idealism attached to the constitutional text, the absolute abstraction of dealing with human rights and the inability of judges to deal creatively with a specific relation. It calls into question the very idea of constitutional democracies as part of a representationalist world. It also stresses that the stratified nature of complex constitutional arrangements and how it obscure the ability of the affected and vulnerable body to participate, engage and oppose decisions made by formal political structures and government.

3 A continues direct confrontation between democratic will and constitutional reason – Is it “either or” or “or” and “and” and “and”?

The nature between the democratic will of a sovereign people (democracy) and the constitutional framework (constitutionalism) that purports to represent the people by containing the expression of its will is often treated as binary. It forms the core of constitutional democracies (Christodoulidis J.S.Afr.L p. 108). Put differently, the constitutional model incorporating the separation of powers, democratic accountability and the promotion and protection of human rights composes an problematic/adversarial relationship between the courts and the other branches of government which may result in an uneven outcome between democratic will and constitutional reason (Davis PER p. 4). It raises the issue whether there is a justification to limit the right of a sovereign citizenry to decide the terms of public life in the name of the constitutional rights. Christodoulidis (pp. J.S.Afr.L 108-112) points out that that instead of viewing the problem posed between democratic will and constitutional reason as binary, we should rather approach it as a triangular relationship between the role of the courts in terms of constitutionalism (or constitutional reason), the representative branches of government (democratic will) and the people (the sovereign people). Brand (Stell LR p. 631) argues that this will shift the perspective and will force the judiciary to focus on the problem presented before them instead of shifting the responsibility to other branches of government to deal with the issue. Such an approach ‘would in fact seek both to engage with these problems [of institutional illegitimacy] in every case in which they arise, and to do so by looking for inventive solutions to them elsewhere than simply in a deferral to the other branches of government’. Thus a possible way for courts to address the tension between democratic will and constitutional law is to adapt their perspective on the tension between themselves and other branches of government different. Instead of perceiving the problem as a tension between democratic will and constitutional reason, the court should view it as problem between the sovereign people, constitutional reason and democratic will. Nonetheless we are doubtful whether a form of added direct participation by bodies will necessarily transform current practices.

4 A minor conclusion

Given what is said above, the constitutional model incorporating the separation of powers, democratic accountability and the promotion and protection of human rights composes an problematic/adversarial relationship between the courts and the other branches of government which may result in an uneven outcome between democratic will and constitutional reason (Davis PER p. 4). It raises the issue whether there is a justification to limit the right of a sovereign citizenry to decide the terms of public life in the name of the constitutional rights. Instead of treating this tension as either as binary or triangular, we argue that although the problem is perceived in these terms it is far more complex. A possible third, fourth, fifth, etc. root of tension is also possible. We thus not only face constitutionalism (or constitutional reason) versus the representative branches of government (democratic will), but also the need to take into account the people (the sovereign people), and specifically the relations between things where bodies is incorporated in the latter.

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An image of a day in the Constitutional Court of South Africa