Dezbateri constituționale

Some considerations on the meaning of the word constitution
in the Romanian post-communist context
 

ANDREI SCHWARTZ
[The University of Bucharest]

„Since human beings are not merely political animals but also language-using animals, their behavior is shaped by their ideas. What they do and how they do it depends upon how they see themselves and their world, and this in turn depends upon the concepts through which they see.”

Abstract:
The word constitution stands at the base of the modern political vocabulary. However, it would seem that its carefully derived content might be at odds with what people nowadays commonly understand by it. In this article we will briefly approach this mismatch in Romanian context, in an attempt to characterize the quality of the post-communist democratic transition. We will explore the meaning, the purpose and the mismatch of the Romanian democratic conception from a constitutional perspective, while trying to raise worries on the feeble character of a constitutional experience without conceptual awareness.

Keywords: constitution; constitutionalism; conceptual stretching; parallel ladder of abstraction; conceptual fuzziness; constitutionalism; transition; democratic conception

It has been noted that „the abandonment [...]¹ of the Le­ninist project constrained the Romanian society to a long pilgrimage through a desolate void.”² In this sense, the strange indistinct landscape³, encapsulating only the mirage of change, characterized the transition in the terms of continuity rather than fracture, in a context, essentially, without ideas.

Thought in this sense, the slow paced Romanian transition, the limited transformation⁴, as it has been called, was condemned for lacking the endeavour to rethink or to create a new social and political bond⁵. Thus, the Romanian democratic conception is nowadays perceived as a simple adoption, without proper consideration, without critical stance and without naturalization⁶ of the ideas that nurtured the western liberal democracies.

Following this line of argument, if this was the Romanian post-communist approach to concepts, then where might we find today on the map of common understanding the word `constitution`?

As famously explained by Giovanni Sartori, constitution is a good word, direct consequence of the fact that „it has favorable emotive properties, like freedom, justice or democracy”⁷. As such, one is likely to feel good about it, simply because it belongs to the family of famous good words, developed by the western philosophical cannon.

In regard to content, taking Sartori`s definition in to account, by constitution in modern times we mean ``a frame of political society, organized through and by the law, for the purpose of restraining arbitrary power``<sup>8</sup>. Which in turn implies two separate meanings that up to recent times existed overlapped: ``constitution as any `State order` and constitutionalism as a specific `content` of guarantees``<sup>9</sup>. If we are to retrace the history of the concept in modern times, we will find that it is the latter that has developed the good perception of the word, while the former has retained it. To put it clearly, when we say that the word constitution has positive properties, we are in fact, referring to the emotive reference of that part of the concept`s content that has been separated from the rest. 

The problem here is that if we assume that in most cases people relate to the emotive properties of the word and not the content of the concept, if we assume that what they feel about the word is what they understand by it, then it would seem that such concepts might solely be, most of the time, subjectively processed and not objectively analysed. Such a scenario would imply, a sort of parallel ladder of abstraction, which, differently from Sartori`s tool¹⁰, would not account for how concepts travel horizontally, but rather for how they travel vertically, if we can put it in these terms, into common understanding. In this second ladder of abstraction, we replace the intension or connotation of the word with what we fill about it, and the extension or denotation with what we fill about the circumstances in which we encounter the word, or with what we fill about other things to which we associate the word. Moreover, the two sides of the ladder are in this understanding interchangeable. In this sense, Romanians derived their understanding of what constitution is mostly from their experience with it.

To be sure, one has to be reminded here, of Sartori`s argument, that we cannot extract the meaning of constitution from „<<the popular mind>> of semi-literate majorities.”<sup>11</sup> In this sense, the personalized interpretation of concepts like `constitution` raises worries on the clumsiness in which such ideas are adopted and introduced in common usage. This sort of „conceptual fuzziness” appears precisely when no efforts are made to attach a meaning to a word that is subjectively processed. As such, we have to point out to the fact that outside common understanding there might be no meaning left at all, considering that nobody bothered to consider it.

Staying on point, if we look at the Romanian case, we can observe that on the road of democratization no efforts were made towards understanding what the „new” constitution implied in the political and social terms of the cannon we were copping. This didn`t impose however, on the relatively easiness in which the word was used, making it part of the story of all fundamental concepts of political modernity when it comes to their journey through the Romanian post-communist imaginary. To put it bluntly, in the difficult relation between the Romanian discourse and political ideas, using the expression of Daniel Barbu, it would seem that „thinking was rarely employed by words”¹².

The result was that, twenty-three years after 1989, the understanding of the word ‘constitution’ is rested on feeble foundations. In this sense, the lack of conceptual awareness has produced, over the past two decades, three observable effects.

First, the ‘parallel’ conceptual stretching allowed the concept to be commonly be used, without any proper consideration. Second, taking in account not necessarily the particular Romanian political practice, but rather the more general post revolutionary disillusions¹³ and disappointments¹⁴, and assuming that the understanding of the concept corresponded in some degree to the liberal democratic perspective, we can observe how it was forced into a subjective identification with an out of reach „good”, being placed outside the possible and plausible reality. Third, other concepts, specifically constitutionalism, ended up completely unknown.

In regard to the first effect, `constitution` was stressed to its limits. First of all, different from other concepts, like democracy for example, constitution can also imply a material reference. As such, when, after 1989, Romanians adopted their first post-communist constitution, the constitutional framers primarily looked at what others have written in their fundamental text, without however considering the purpose of those particular framers. Consequently no purpose was envisioned for the Romanian constitution, which ended up implying only a text and not also a rational constitution-making process. As such, the public agenda was never marked by fruitful debates on the matter, neither before enacting the constitution in 1991, nor at the 2003 revision, which, nonetheless, has been analysed by some for enabling change on the matter.¹⁵ Second of all, if the way in which we see our constitution (the written text) is influenced by the experiences we associate to it, then regardless of any debate on the meaning of the concept (which we associate at best with an out of reach good), the post-communist political practice determines a rather marginal position of the fundamental text. In this sense, in terms of subjective post-revolutionary experience, the constitution simply ended up being seen as an empty promise. Deception after deception, the disheartening political realities further stressed the meaning of the word `constitution`, while the political actors made no efforts of raising conceptual awareness.

In this context, obviously, constitutionalism had no place. Presumably if one hears the word today, he might be inclined to consider a connection to the word ‘constitution’, given their common root, but it wouldn`t have any meaning, as it is mostly unknown. In the same time, in terms of strictly searching for its fabrics amidst post-communist politics, the evidence is simply not there. Regardless of whether we speak about the philosophical source and the institutional embodiment of political freedom¹⁶, about „the limitation of government by law”¹⁷, about constraining arbitrary government¹⁸, or about the liberal solution to the problem of political freedom¹⁹, from the perspective of the post-communist political practice we would be referring to something that is absent. As such, considering that we cannot subjectively process what is not there, Romanian constitutionalism, simply put, does not exist in common understanding.

Having said that, if this is what we find about constitutional terms in common understanding, then what can we say about, and how can we refer to, the political and constitutional practice?

Here, usually constitutional practices are analyzed from the perspective of the constitutions themselves. As such, the practice is characterized starting from the goal of the written text. However, characterizing a constitutional practice from the perspective of the constitutional telos raises significant problems, if such a telos is nowhere to be found. Given the fact that a constitutional purpose implies an understanding of the constitution in the terms of the western liberal democrat cannon, if no such understanding or at least reference exist, then it is reasonable to assume that nor does the purpose.

In the Romanian case, the basic endeavour of the constitution was solely to function. In these terms, the constitutional architecture, for example in regard to the nature of the executive power, had only to reflect in the constitutional practice.

To put things in perspective, all of the American constitutional provisions were designed with a specific goal in mind. Solely on this base can we assert today that a specific American political experience can be traced to the intention of the constitutional framers. Outside this line of thinking, the originalist interpretation, not to mention the common law/ living constitution one, has no logic.²⁰ In the Romanian example, the feeble constitutional debates meant that such intentions were not clearly projected in the constitutional practice, as they were not clearly defined in the first place.

In this matter, most of the interpretations assume this to be self evident. Some consider that the 1991 constitution had the sole purpose of translating the communist type of political organization into a rule of law logic, exempting the text from any perspective.²¹ It only had to be. Others acknowledge that the constitution introduced western ideas, radically different from the communist experience – but immediately stress the difference between a liberal democrat constitution and a partial enabled political practice, emphasising the rather descriptive and not prescriptive character of the Romanian constitution.

However, there are also those who expressed a somewhat different perspective. John Elster, Klaus Offe and Ulrich Preuss have argued, in their common work Institutional design in post communist societies, that while constitutions had no role to play under communism, the post-revolutionary period gave them a symbolic status, activating them as ”emblems of political liberation”²². The authors explained that this didn`t enable the regeneration of constitutionalism, but represented nonetheless a great achievement solely for the fact that constitutions mattered once more.

To be sure, constitutions had no meaning during communism. The organizing force of the communist period was the party. The very existence of a constitution in communist and in fascist systems, at least following the argument of Giovanni Sartori, forced the reconsideration of the concept. As such, even though the symbolic status of the post-communist constitution is a debatable argument, it remains in essence consistent with reality, signifying to some extent a fracture with the past.

However, the problem appears when we consider the authors’ relative ambiguous connection between „constitution matters” and great achievements. Two things come into play here. First, one obviously needs to consider in which sense constitutions matter again, and second, how is this commendable in respect to the transitional process.

If constitutions mattered as symbols, than the argument is flawed, considering that the so called constitutional symbolism existed at best only at the beginning. In the Romanian case, we can`t speak about the beginning of the constitutional order in terms of a symbolic new social and political bond, let alone in the context of current constitutional practice.

On the other hand, if constitutions mattered because they determined to some extent the form of the political practice, then once again we should stress that this doesn`t speak neither about the character of our political society nor about the constitution itself. In Romanian context, we lacked the telos, the liberal democratic garantist²³ purpose. As such, regardless of the sufficiently distinct experience from the communist period, the mere existence, in this sense, of a connection between the political practice and the constitution, the so called „nominal” situation cannot be considered a great achievement.

Nonetheless, starting from the constitutional revision of 2003, talks of a new constitution began to take shape in the political arena. This shows that we are, regardless of what we understand by constitution, inside the logic of „matter”. However, the talks have also brought out the fact that in Romanian understanding the constitution-making process is based solely on political will. In this sense, they are those who have changed their position on the issue of a new constitution, according to the political parties in power. As previously explained, subjective experience tramples objective analyses in the Romanian scenery from both ends of the parallel ladder of abstraction. What we fill about the constitution is affected by the situations in which we refer to it and vice versa. Thus, in Romanian context, the constitutional purpose along with the assertion that constitutions based solely on political will cannot endure the test of time²⁴ depends, at any given moment, on who`s political will we are talking about.

As such, if usually constitutions reflect a bond between citizens while regulating their relation with the government in garantist terms, in the Romanian case it would be more correct to speak about a separation. The apparent reluctance of Romanians to „think” their politics along with their fast retreat to their „own business”²⁵ made them perfectly governable in a non-representation logic. As such, in this context, the doctrine of modern representation offering a substitute for the meeting of the citizens²⁶, along with legal and electoral accountability of the representatives, has almost no sense. Romanian „snapshot politics”²⁷ reflects the image of the voter in terms of a civil servant²⁸. People, while drifting one from the other, were, in this sense, after 1989, separated also from their government, which in turn represented a strong premise for the unconstrained exercise of power.²⁹ Add to that the empty text definition of the Romanian constitution, and then we can see why, as previously stated, in Romanian context, constitutionalism is nowhere to be found.

Going back to our original perspective, we have to admit that a transition to democracy characterized solely on the base of what it showed in practice, refers to only half of the problem. The transition implies both the past and the future, while indicating to a process. If we refer solely to the last two elements, we cannot understand the depth and complexity of what has characterized the post-communist democratic conception in Romania.

In this sense, the democratic transition which started in 1989 was grounded in communism, at the centre of which we find an individual who had to be stripped of its individuality, evidence of its conflict with society itself³⁰. To this end, during the communist rule, new values had to be constructed by opposition to the old man.

Further along this path, one of the main elements of the communist experience was that of language, more specifically its organization in the form of a wooden tongue. Here the work of Françoise Thom has revealed that the wooden tongue acted as a short circuit on the connections between people³¹. It slowed down society³², acting as an element of arbitrariness in the hands of the regime, essentially dehumanizing the people³³.

This eventually imposed a sort of public hypocrisy, as T.G. Ash called it, which presented itself in the form of a double life.³⁴ The official public dominant space was joined by a private suspicious space.³⁵ Communism, in this sense, accepted and expected the moral bankruptcy of its citizens³⁶, aiming at implicating them in the general guilt.

Considering that this was the curriculum vitae of Central and Eastern European societies at the end of 1989, it is reasonable to presume a horrible mismatch with the requirements of constitutional democratic societies. If we accept the definition of Karl R. Popper, according to whom, the man of the open society represents an individual who is always requested to be rational, emotional unselfish, self-supervising and responsible it would seem that the citizen of the post-communist society has to be able to balance himself between irreconcilable positions. As Popper himself admitted, the open society has much to demand from us.³⁷

This line of argument is perfectly applicable on the constitutional subject. First, if constitutions, as Ulrich Preuss suggested, create political orders which ``are empirically instituted on the ruins of``³⁸ the old orders, then the constitutional practice might be as connected to the old regime, if not more, as it is to the new constitutional text, specifically if no garantist purpose was added to that text. Second, in terms of conceptualising the constitution as well as constitutionalism, post-communist societies lacked experience in understanding the content of such concepts. As explained by Giovanni Sartori, we cannot ask people to assess the value of something that they haven`t experienced³⁹. However, the issue here is not solely that the mismatch affected the post-communist understanding of what constitution means, but rather that nothing was attempted to stop it from doing so.

Considering that bad ideas about democracy can make democracy go wrong⁴⁰, the subjectively processed meaning of words, estrange from „adequate information and sound thinking”⁴¹ affects nowadays not only the quality of our discussions but also that of our lives. The fact that we do not add meaning to the fundamental concepts of our democratic experience disqualifies our post-communist so called great achievement.

We shall not stress the argument further, but we depart by retaining an essential issue. As we have seen, we are confronted today with the possibility of a severe fracture between the normative understanding of such concepts and there reference in the minds of those using them. If indeed „from what we know follows what we should do”⁴², then in the absence of a process capable of expressing knowledge, we might remain captives of a mirage. It is not the distant prospect of the liberal-constitutional democracy that should worry us, but rather the possibility that we have stopped moving towards it.

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ANDREI SCHWARTZ – Masterand, facultatea de Ştiinţe Politice, Universitatea din Bucureşti.

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