The Counterfactual Yardstick

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Acknowledgements

I have been fortunate to receive significant support and assistance from outstanding people as well as institutions during the last several years that I have spent working on this book. I could not have completed this without the grant The Role of the Principle of Mutual Recognition and Institutional Morality in Justifying and (Re)Distributing of Human Rights, funded by the Polish Ministry of Science and Higher Education (2010–2012). The project was initiated by my fruitful scientific cooperation with Bartosz Wojciechowski and later on with Marek Zirk-Sadowski. This inspiring cooperation resulted in several jointly organised international conferences, co-written articles and (co-)edited volumes. Therefore, I thank all involved in the project heartily for the years of collaboration.

The above scientific cooperation evolved and resulted in the establishment of the Center for the Theory and Philosophy of Law (CENHER) at the University of Lodz. On this occasion, special thanks go to the two of the members of its Scientific Board José Manuel Aroso Linhares and Georg Lohmann, with whom I had many interesting, inspiring discussions held in a very friendly atmosphere.

I am also indebted to many people who made important contributions to crystallizing my standpoint on the problem of the democratic legitimation of law, in particular in regard to the European Union, or who helped me in my research in organisational terms. I am particularly grateful to Tadeusz Buksiński, the former Director of the Department of Philosophy, and Ewa Nowak, the Head Chair of Ethics and the Research and Development Deputy Director of the Department of Philosophy of Adam Mickiewicz University, Poznań, who significantly and vigorously supported my research. The current Director of the Department of Philosophy, Roman Kubicki, undoubtedly also deserves acknowledgement for his support during the final steps of preparing this manuscript. Crucially, I developed my ideas by discussing diverse issues with Manuel Jiménez Redondo, Gerhard Seel and Georg Lind, and I hope to engage in more discussions with them in the near future.

As a member of the Center for Public Policy (CPP AMU), directed by Marek Kwiek, I was also able to participate in the 7th Framework Programme (Marie Curie Initial Training Network (2009–2013)) EduWel—Education as Welfare. Enhancing opportunities for socially vulnerable youth in Europe, directed by Hans-Uwe Otto. That was a great opportunity to meet wonderful people and engaging scientists from all over the Europe, who are focused on the capabilities approach-based outlook on education. In that regard, I derived tremendous philosophical pleasure and ← 1 | 2 → inspiration in discussing the relationships between education and diverse forms of recognition with Isabell Diehem. However, I owe much in particular to Elaine Unterhalter, who dedicated a lot of her time to me and granted me research access to all the benefits of the Institute of Education, University of London, in the academic year 2012–2013. That time truly quenched my scientific thirst, and I hope to be granted that access again in the near future, counting on her openness and understanding of my countless questions and issues to discuss. Elaine also kindly assisted me with determining the final version of the title of this book.

I would also like to express my special and honest appreciation to those who read previous versions of this book and made comments or remarks—you had, let me say, nerves of steel. Here, I am referring foremost to Piotr W. Juchacz, whom I asked several times for a careful reading and profound discussion of certain parts of the book, and with whom I had tough—quoting Jürgen Habermas in The Inclusion of the Other, on his scientific relationship with John Rawls—‘family quarrels’, during which Piotr’s sympathies lay with Rawls, particularly as regards the constitution or constitutional essentials, and mine with Habermas.

Furthermore, I am truly grateful to Marta Soniewicka for reading the whole book and making very careful, precise and wise comments, especially regarding Chapter I. She worked incredibly hard and helped me a lot. My warm thanks also go to Michał Cichoracki, who read the book-in-progress not once but twice, and vigorously debated with me on certain issues. Most importantly to me, Michał kept telling me that what I had written made sense and mattered, and that I should not look back—that often kept me alive, so to speak. I would also like to thank Marek Kwiek, whose short and sharp but right comments jarred me from ‘thinking my own thoughts’ and pushed me to make some important changes in the book.

In addition, Ewa Nowak supported not only me but all of us from the Chair of Ethics, teaching us what fruitful scientific cooperation actually means for research. And she was right. So, I would like to thank Ewa, not only as a ‘Head’ but also as a friend, and sincerely acknowledge my colleagues and friends from the Chair of Ethics: Anna Malitowska, Piotr Makowski, Mateusz Bonecki and the relative newcomer Małgorzata Bogaczyk-Vormayr, for the positive atmosphere at work, the stimulating discussions, the real mutual understanding and all the projects we have done together and are eager to do together in the near future.

However, the greatest and most unspeakable debt I owe to my family. Academic obligations and research in particular are intellectually and emotionally exhausting, and they absorb, and sometimes even steal, a lot of time and attention. And the time is most precious, because we are the time itself. It was due to their unconditional and unrestricted love, their uncompromising belief that whatever ← 2 | 3 → I do or say matters and deserves all possible forms of assistance, and all the little and big sacrifices that they had to make that this was possible and meaningful. For all this, I would like to wholeheartedly thank my grandma Aniela Dombrowska, my mum Elżbieta, who encouraged my philosophical aspirations, my sister and best friend Izabela, who, as an artist, has the best insights into our souls, and to her fiancé Teo, who is undoubtedly a part of our family. But the member of my family who bore the greatest burden of my research, day by day, was Piti. His daily care and emotional as well as organisational support were immeasurable and cannot be overestimated. His giant, creative and demanding philosophical imagination, integrated with his elevated intellectual expectations of me, is what makes him special. In other words, Piti is simply the best! Warm appreciation for the emotional support and care also go to my father Tomasz and his wife Grażyna.

The inspiration for the title of my book comes from the normative concept of the constitution as presented by John Erik Fossum and Augustín José Menéndez in The Constitution’s Gift. A Constitutional Theory for a Democratic European Union.

The book naturally evolved from previously published articles; therefore, I drew passages and ideas from them, to which I give credit in the bibliography. However, Chapter II, The Idea of Self-Constitutionalisation and Constitutional Patriotism, is adapted by permission of the Publishers from “On the Constructivist Premise of Constitutional Patriotism as a Normative Idea”, forthcoming in Towards Recognition of Minority Groups: Legal and Communication Strategies, eds. Marek Zirk-Sadowski, Bartosz Wojciechowski and Karolina M. Cern (Farnham: Ashgate, 2014). 

The book was written directly in English, though I am not a native English speaker. This was possible due to the assistance and hard work of my editor, to whom I am also very thankful.

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INTRODUCTION

Modern law requires democratic legitimation, but developing this in post-conventional terms rests on the presumption of increasing the processes of incrementally rationalising lifeworlds. In other words, the requirement of democratic legitimation associated with modern law is tailored for well-educated citizens. This presents one of the greatest challenges that democratic polities face in the twenty-first century, namely, how to guarantee equal opportunities to realise equal rights for democratic education and hence for participation in constructing self-reflexive societies¹. Thus, the chief concern of this book is to discuss a democratic legitimation for modern law. I attempt to explore the problem following primarily Jürgen Habermas, in the sense that I understand this issue in terms of the co-originality of the rule of law and the principium of popular sovereignty. That directs my investigations towards current debates with regard to processes of European integration which raise issues concerning the self-constitutionalisation of a democratic polity and the concept of the self-reflexive polity². The concept of self-constitutionalisation refers basically to processes and procedures of legitimating, enacting and applying fundamental principles, that is, basic rights (constitutional norms), and other provisions by those who are both the authors and addressees of these legal regulations. Self-reflexivity refers to a discursive learning which is a transformative and thus open-ended process of self-determination of the consonants of the democratic polity which therefore involves questions concerning the self-understanding of the consonants constituted by this process.

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My principal thesis, which I discuss in the course of this book, is that the self-constitutionalisation of a democratic polity presumes its origins both in the rule of law and in popular sovereignty, that is, the co-originality which is expressed in the statement that ‘personal autonomy (…) is the sum of both the private protective rights and public participatory right’³. This then unveils itself as a complex concept referring to the threefold constitutionalisation: legal, institutional and horizontal. In other words, the concept of the self-constitutionalisation of the democratic polity refers to processes of evolutionary constitution making⁴, institutional constitutionalisation and horizontal (societal) constitutionalisation.

Furthermore, I contend that modern democratic societies face a certain reflexive turn. This means that self-determination constitutes the very heart of self-understanding (be it individual or collective). Only when one presumes this turn does it become clear that the concept of self-constitutionalisation is a complex concept that is also concerned with societal (horizontal) relations. Thus, self-constitutionalisation proceeds through an open-ended, discursive examination of issues which entail both the individual and collective identities. This turn, in my view, provides a response to the question as to how it is possible that ‘the motivational force of reasons, namely, that the insight into good reasons, has behavioural consequences’⁵.

The legal system operates only through complex institutional settings, where, due to appropriate procedures and processes of legitimation as well as application, it undergoes self-reflexive changes which are supposed to respond to claims expressing democratic credentials. In this context, these democratic credentials refer to two normative criteria: first, inclusiveness, and second, the discursiveness of institutional functioning⁶. Thus, I contend that the self-reflexivity of the ← 6 | 7 → legal system is generated within ‘institutional intersections’, that is, diverse public consultations designed appropriately for a triple division of power which comes to fruition for the addressees of law through the transformation from opinion formation into will formation. In this approach, these addressees of law must always also be authors of the law. Crucially, in my view, the demands of the discursive and inclusive character of these institutional intersections may be met only if they simultaneously also enhance the increase of the processes of the incremental rationalisation of lifeworlds that enable the emergence of a self-reflexive culture.

The discursive ethos of self-reflexive cultures socialises citizens to carry out discursive problem-solving, engagement with common and general values as well as a search for abstract political ideals which provide a justification for common action norms. Hence, the processes of self-constitutionalisation may proceed at the legal level of constitution making then, and only then, when the processes of horizontal constitutionalisation proceeding in lifeworlds as well at the level of cultures have already been launched. Thus, it follows that the central concept of this theory is, in fact, the normative concept of the public sphere founding the ‘two-track model’ of deliberative democracy⁷ characterised by an upward (legal constitutionalisation) and downward (horizontal constitutionalisation) flow of opinions within the communicative structures. Therefore, it may be stated in reference to the European Union, as a distinct and specific polity, that it continues to establish rather than preserve the claim, ‘Without a public sphere, no democracy!’⁸

With that in mind, in Chapter I, I introduce the basic concepts and notions related to the mutual connections between the concept of law and the public sphere. I do so by discussing three contemporary approaches to law that stem from three diverse legal traditions. These are law as integrity, the proceduralist paradigm of law and the post-positivist legal pluralism, respectively argued by Ronald Dworkin, Jürgen Habermas and Sir Neil MacCormick. I develop my analyses following the conviction articulated by Ronald Dworkin that the conceptualisation of law should be conceived of in terms of its temporal aspect⁹.

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First, I investigate Dworkin’s monological meta-construction of the present, presuming that he is especially interested in the problem of the stability of law. The conceptualisation of that stability shall take into account the issue of protecting the legal system against its constant and, consequently, contingent transformations, if the political community, to which it is tailored and is supposed to serve, is to respond to the modern, normative political claims, especially the claims to justice. However, at the same time, the system of law shall do justice to these great modern normative demands in democratic societies. My thesis is that Dworkin makes a prominent shift in comprehending the normative system of law, because he lifts its concept to a stage of publicly recognised principles of political morality as well as legal rights justifying the whole body of law with regard to the said normative demands.

In addition, the integrated system of recognised principles, as justifying arguments for legal rights, constitutes the very reason why the model of a community of principle, advocated by Dworkin, articulates a deontological understanding of legal rights as trumps over the arguments from policy. Constitutional Justices, in this line of argumentation, unveil themselves to be guardians of the deontological reading of the body of law, due to the interpretations of law that they provide, which must be argumentative, though never deliberative, because they are always only theoretic-monological.

Habermas agrees with Dworkin on the deontological interpretation of constitutional principles, that is, basic rights. Nevertheless, he polemicizes with Dworkin on at least two crucial points, notably, whether legal rights (or basic rights, as Habermas refers to them) are indeed foremost a means against a government and, in consequence, whether the interpretations of basic rights should be reposed in the hands of those who constitute the best educated and most responsible group of citizens (as argues Dworkin¹⁰), that is, in the hands of constitutional judges. Therefore, in my next step, I indicate the most significant implications of Habermas’s co-originality thesis (of the rule of law and of the principle of popular sovereignty). These implications, I argue, first, change the perspective from which fundamental rights (basic rights) may be considered, because at stake is the fact that there is no longer an elaboration and assurance of the legal means to be exercised, if needed, against the government, but above all, there is at stake the establishment of the horizontal relations of mutual recognition among free and equal ← 8 | 9 → citizens as co-partners in the political enterprise¹¹. Second, this entails the idea of the right to participate ‘in the public debate over the justification of norms’¹². This idea underpins the new paradigm of law that aims at a formal-legal equality that does justice to the recognition of the social inequalities that suppress the exercise of ‘equally distributed liberties’¹³ without leaning towards state paternalism but rather, quite the contrary, giving the addresses of law back their voice as those affected. Third, as the requirement of public debates over the justification of norms unveils the specific, normative conception of the public sphere as the very heart of this paradigm of law, it simultaneously uncovers the very precondition of any legitimate self-constitutionalisation of a democratic polity, namely, the horizontal (societal) constitutionalisation, that is, the increasing processes of incrementally rationalising lifeworlds.

In other words, Habermas shifts from the argumentative yet monological approach to modern law, as proposed by Dworkin, towards the discursive approach that explicitly underscores the normative role of the public sphere in the processes of its democratic legitimation and emphasises that this approach recalls the future-oriented comprehension of the political community.

The investigation of the most paramount changes that have been introduced to the contemporary comprehension of modern law could not be completed, however, without discussing MacCormick’s proposal in that domain. In short, since Dworkin shifts that comprehension from the level of legal rules towards the principles of political morality and, justified by them, fundamental rights (constitutional rights), Habermas is able to root the legitimation of such a way of understanding law within the concept of the public sphere, enabling MacCormick to de-couple modern law from the concept of the state. His apparently ‘innocent’ distinction between a normative order, an institutional normative order and an institutional order¹⁴ exceeds the narrow, state-oriented thinking of ← 9 | 10 → law and thus the conceptualisation of the legal system. Crucially, he liberates, so to say, thinking of law in terms of a legal order, or, more precisely, in terms of ‘a set of law-making and law-applying institutions and associated practices and attitudes, which, in a mutually reinforcing way, ensure the systemic quality of that normative order’¹⁵. It is in this shift, which is elegant in its simplicity, that MacCormick founds the idea of legal pluralism¹⁶.

In addition, the analysis of the one of MacCormick’s best known claims, that we, basically, ‘by nature [are] norm-users’¹⁷, complemented by the statement that ‘as moral agents (…) we more resemble (…) judges’ than legislators¹⁸, unveils that in his conception, the power of judgement, not the law-giving power, plays the crucial role. This is precisely the power of judgement that in the course of the institutionalisation of a normative order, in fact, becomes institutionalised.

I contend that MacCormick was the first to acknowledge that what is characteristic of modern law is not full-fledged consensus but rather balancing reasons oriented at maintaining and sustaining the ‘defeasible universality’¹⁹ or, rather, reasonable disagreement. With that in mind, I argue that what must be set free and further enforced and entrenched, at least with regard to the EU and Union law, is the public power of judgement. Moreover, the public power of judgement, as the complementary moment of the public use of reason, which is, on its part, law-giving, may be exercised only in the public sphere, in particular, in the institutional intersections that I discuss more in-depth in Chapter IV.

In the closing paragraphs of the first chapter, I briefly recapitulate the analysis and compare the standpoints of the three great thinkers. Then, drawing on Massimo La Torre²⁰, I sum up in eight points the change of the paradigms of law that stems from the former analyses and characterises the legal culture, at least ← 10 | 11 → of the EU, that is basically related to the breakdown of the elementary positivistic assumptions concerning the conceptualisation of the legal system. The crucial conclusions, however, concern my claim that the changed comprehension of the legal system—as the principles-based, interpretative and foremost tailored for the public discursive justifications system—entails the necessity for introducing on a large scale the democratic education of all citizens for the sake of entrenching their real power and discursive public participation in the legal-political processes of law-making and law-application. The post-conventional model of the legal system, as remaining in constant need of ongoing justification on the part of its addressees, who are always also its authors, presumes neither a concept of a rational agent nor a rational choice theory. Rather, this model presumes the increasing processes of the incremental rationalisation of lifeworlds that cannot proceed and ‘make a leap towards’ the political and economic elite- and law-driven processes of Europeanization without educational support oriented at entrenching each citizen’s competence for realising the rationality potentials in discourse, and thus oriented at enforcing each citizen’s competence for exercising communicative freedom and mutual respect for it. That claim is crucial and decisive, because without citizens who understand themselves as (at least also) Eurocitizens and who, as Eurocitizens, would act in the diverse publics, there is no democratically legitimised European law.

Introducing the concepts of post-sovereign (MacCormick) and post-national (Habermas) constellation that characterise the EU on one hand, and introducing the statement that its processes of integration are driven foremost by law and are complemented by the New Public Management reforms²¹ that make the EU an unsettled polity²² on the other hand, I turn in Chapter II towards an in-depth analysis of the idea of constitutional patriotism as formulated by Jürgen Habermas. The main theme here is to examine whether, and to what extent, positive law may be regarded, in the case of the EU, as ‘a means of social integration, indeed, as a medium that sustains the self-understanding of a solidary community, albeit in a ← 11 | 12 → highly abstract form’²³. I discuss the institutionalisation of discourse rule (D) in the medium of law, from which stems the principium of democracy, and therefore I analyse the comparison between political self-legislation and moral self-legislation²⁴ as founded on the autonomy of will. I argue that the idea of self-lawgiving reconciled with the idea of democracy leads to the idea of self-constitutionalisation by the citizenry, to which constitutional patriotism refers.

In the next step, I extensively discuss, presented by Habermas in the article ‘Constitutional Democracy. A Paradoxical Union of Contradictory Principles?’, the boat metaphor and its readings. I analyse the constructive premise of the idea of constitutional patriotism with regard to the deontological reading of the constitution that Habermas argues for, and with regard to the political morality that mediates between constitutional culture and political culture, which I bring out from his investigations due to his distinction between moral norms and ethical values as interests. I introduce the triple time-mode structure of the same standards of the constitutional interpretations as a constitutional learning process²⁵ that is never-ending, open-ended²⁶ and thus always incomplete, as founded on a constitutional culture that reveals itself as a search for reasonable disagreement, rather than one for full-fledged consensus²⁷.

In that regard, the same normative project of self-constitutionalisation, for which the idea of constitutional patriotism constructs reasons for attachment, unveils the universal principles as those which are supposed to meet political ideals in public debates—that is, it unveils the role of the practical power of judgement transferred from the concept of a (monological) subject to the (dialogical-discursive) public spheres. The public use of reason reveals an inextricable dependence on the practical power of judgement that operates in public discourse, transforming citizens’ ← 12 | 13 → opinions into the political will of the citizenry as the sovereign. Crucially, the transformative power unleashed in discourse supports the normative understanding of the constitution and renders it ‘a tradition-building process’²⁸ due to the concept of constructivist interpretation that Habermas and Dworkin share. It results that as the understanding of the tradition becomes comprehended as the future-oriented project, the self-understanding of each polity (including national identities) becomes open to future (re)interpretations based on the same normative—universal-principles oriented—project.

The idea of constitutional patriotism provides a normative framework for understanding processes of Europeanization. Within this framework, the processes of integration by law are revealed as the medium through which come to light complex processes of reshaping national identities on one hand, and cooperative constructions of universalisable normative claims (the basic rights of Euro-citizens) on the other; in other words, these are interactions between the common European constitutional culture and the Member States’ constitutional culture²⁹. The tensions caused by the interactions between them may facilitate the strengthening of the role of the public sphere in terms of its intense influence on the processes of decision-making and, at the same time, trigger the increase of the processes of incrementally rationalising lifeworlds.

Therefore, in my view, the idea of constitutional patriotism, as formulated by Jürgen Habermas, is neither to be understood in terms of ‘legal patriotism’³⁰ nor ‘national patriotism’. Rather, it binds the emancipatory force of a (cosmopolitan) civic perspective with a constitutional debate. The idea of constitutional patriotism accentuates the conjunction of the processes of legitimate law-making and processes of transformation from opinion- into will-formation. In other words, I claim that constitutional patriotism stresses the conjunction between the public use of reason (constitution making and/or interpreting) and the public power of judgement (transformation from opinion- into will-formation).