The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy
| Published date | 01 March 2002 |
| Date | 01 March 2002 |
| Author | James Tully |
| DOI | http://doi.org/10.1111/1468-2230.00375 |
The Unfreedom of the Moderns in Comparison to Their
Ideals of Constitutional Democracy
James Tully*
The paper is a critical survey of the last ten years of research on the principles of
legitimacy of constitutional democracy and their application in practice in
Europe and North America. A constitutional democracy is legitimate if it meets
the test of two principles: the principles of democracy or popular sovereignty and
of constitutionalism or the rule of law. There are three contemporary trends which
tend to conflict with the principle of democracy and thus diminish democratic
freedom. There are three responses to the lack of legitimacy of these three trends.
The first is to downplay the principle of democracy in order to endorse the three
trends. The second is to uphold the principle of democracy, in the form of
deliberative constitutional democracy, in order to criticise aspects of the three
trends and to call for further democratisation. The third trend deepens this critical
response by tying the test of democratic legitimacy more closely to case studies of
attempts by citizens to exercise their democratic freedom.
Introduction
This is a period of rapid constitutional change around the world. Old and new
constitutions – local, national, supranational, regional, global – are in transition and
so are old and new concepts of constitutionalism. One response of political
philosophers has been to reflect critically on the prevailing principles of legitimacy
of constitutional democracy in the light of these changes in practice, testing the
adequacy of the principles in one direction and the legitimacy of the changes in the
other. I would like to make a contribution to this ongoing European and North
American research project of reciprocal elucidation.
The first section provides a brief synopsis of work on the principles of legitimacy
over the last ten years, laying out two principles of constitutional democracy and
six main features of how they work together in testing the legitimacy of democratic
constitutional practice. The second section sets out three large-scale trends of
constitutional change in practice from the perspective worked up in section one and
suggests that these trends threaten or diminish democratic freedom. The third
section examines two major ways political philosophers have responded to these
trends by employing the principles of section one. The fourth section examines a
third response and uses it to sketch out a direction for further critical inquiry, one
tied more tightly to the reciprocal elucidation of principles and democratic activity.
A short conclusion rounds off the discussion by comparing this interpretation of
the present situation to Benjamin Constant’s picture of the situation of
constitutional democracy in Europe in 1819 in his famous speech at the Athe´ne´e
Royal in Paris, ‘The Liberty of the Ancients Compared with that of the Moderns’.1
ßThe Modern Law Review Limited 2002 (MLR 65:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.204
* University of Toronto.
1 B. Constant, ‘The Liberty of the Ancients compared with that of the Moderns’, in B. Constant,
Political Writings, Biancamaria Fontana (ed) (Cambridge: Cambridge University Press, 1988), 308–
328. Earlier versions of this paper were presented at the University of Exeter colloquium on
Two principles and six features of constitutional democracy
From the exchange between Ju
¨rgen Habermas and John Rawls in 1995 to the
present two critical and abstract principles have been singled out as guiding norms
for the critical discussion of the conditions of legitimacy of contemporary forms of
political association.2These are the principle of constitutionalism (or the rule of
law) and the principle of democracy (or popular sovereignty). The principle of
constitutionalism (or the rule of law) requires that the exercise of political power in
the whole and in every part of any constitutionally legitimate system of political,
social and economic cooperation should be exercised in accordance with and
through a general system of principles, rules and procedures, including procedures
for amending any principle, rule or procedure. The ‘constitution’ in the narrow
sense is the cluster of supreme or ‘essential’ principles, rules and procedures to
which other laws, institutions and governing authorities within the association are
subject. In the broader sense ‘constitution’ includes ‘the rule of law’, the system of
laws, rules, norms, conventions and procedures which govern the actions of all
those subject to it.
The principle of democracy (or popular sovereignty) requires that, although the
people or peoples who comprise a political association are subject to the
constitutional system, they, or their entrusted representatives, must also impose the
general system on themselves in order to be sovereign and free, and thus for the
association to be democratically legitimate. The sovereign people or peoples
‘impose’ the constitutional system on themselves by means of having a say over
the principles, rules and procedures through the exchange public reasons in
democratic practices of deliberation, either directly or indirectly through their
representatives (insofar as they are trustworthy, accountable and revocable and the
deliberations are public), usually in a piecemeal fashion by taking up some subset
of the principles, rules and procedures of the system. These democratic practices of
deliberation are themselves rule governed (to be constitutionally legitimate), but
the rules must also be open to democratic amendment (to be democratically
legitimate).3
‘Constitutionalism, Democracy and Citizenship: Current Debates’, 24–26 November 2000, and the
University of Leeds conference on ‘Constitutionalism in Transition’, 5 July 2001. I would like to
thank all the participants at both conferences for their helpful discussion of these issues and in
particular, Richard Bellamy, Avigail Eisenberg, Alessandro Ferraro, Colin Harvey, David Held,
Anthony Laden, Martin Loughlin, Jocelyn MacLure, Chantal Mouffe, David Owen, Peter Oliver, Bill
Scheuerman, Jo Shaw, Quentin Skinner and Neil Walker.
2 The exchange between Habermas and Rawls was first published in the Journal of Philosophy, 92, 3
(March 1995). Both authors republished their contributions with minor changes in collections with
other works which help to explain the more technical terms of the debate. I will refer to the page
numbers of these editions. J. Habermas, ‘Reconciliation through the Public Use of Reason’, in C.
Cronin and P. De Greiff (eds), The Inclusion of the Other: Studies in Political Theory (Cambridge
MA: The MIT Press, 1998) 49–75, and J. Rawls, ‘Reply to Habermas’, in Political Liberalism, second
edition (New York: Columbia University Press, 1996) 372–434. My discussion of these two principles
draws on Habermas and Rawls, but also on an important case by the Supreme Court of Canada in
which their understanding of these two principles of legitimacy is explicated and then applied to the
hypothetical case of the secession of a province from the Canadian federation, SCC, Reference re the
Secession of Quebec, 2 SCR 217 (1998). For my interpretation of the Reference case as an application
of these two principles of legitimacy, subdivided into four principles for the particular context, see J.
Tully, The Unattained yet Attainable Democracy: Canada and Quebec face the new Century
(Montreal: Programme d’e´tudes sur le Que´bec, McGill University, 2000). The Supreme Court
distinguishes between constitutionalism and the rule of law (s 70–78) but, like Habermas and Rawls,
also uses ‘constitutionalism’ in the broad sense to cover both (s 32).
3 In some versions of the democratic principle it is insufficient to have a say, directly or indirectly. It is
also necessary to have a hand in the exercise of power over which one has a say: that is to exercise
public power together, rather than delegating it. I set aside this more stringent condition in this article.
March 2002] Unfreedom and Constitutional Democracy
ßThe Modern Law Review Limited 2002 205
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