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Degrees of Abstraction: Notes on Dowdle et al

In recent months, the MLR has included publications, in printed and in electronic form, from authors who criticize claims contained in my research. I take this opportunity to respond to those criticisms.

Chris Thornhill

In recent months, the MLR has included publications, in printed and in electronic form, from authors who criticize claims contained in my research. I take this opportunity to respond to those criticisms.

First, Grégoire Webber published in the MLR Forum (August 2017) a response to my 2016 article in the MLR in which I outlined a critique of political constitutionalism. Webber’s argument in response to this appears to me normatively self-serving and persistently naïve in its understanding of processes of institutional construction and political legitimation. Above all, it does not engage with my central claim that political constitutionalism fails to satisfy basic standards of social-scientific object construction, and it falsely presumes that politics is an invariable social form. Michael W. Dowdle’s review (MLR July 2018) of my book A Sociology of Transnational Constitutions (2016) requires stricter critical attention. This is partly because it needs factual correction, and partly because it raises wider questions about the purpose and functions of academic reviewing.

In the first instance, Dowdle questions the validity of the arguments in my book because he claims that my historical analysis of processes of global constitutional development is presented at an excessive level of abstraction, such that he is not sure ‘what to make of it’ (726). As a result, he expresses reluctance to comment on the tenability of the basic sociological thesis in the book—namely, that national political institutions often rely, structurally, on the reception and incorporation of international legal norms, especially norms focused on human rights protection, in order to stabilize their own foundations and to conduct processes of social integration. Of course, the criticism that sociologically oriented theorists present historical research in a form that is excessively general and abstract is not new. This critique is quite widespread amongst historians and scholars with historical expertise; specialist historians often assume entitlement to invoke their detailed and at times superior historical knowledge to challenge more broadly constructed historical arguments, such as those extracted by sociologists from long-range historical inquiry. Under some circumstances, Dowdle’s critique might possess legitimacy and credibility as an example of such an approach. If examined more closely, however, his comments cannot be bracketed together with such criticism, and his review lacks the credibility that such criticism may possess. On several counts, his observations are deeply questionable.

First, in reviewing my book, some of which is concerned with German history and European history more broadly, Dowdle claims that his ‘knowledge of the details’ of these areas of historical debate is ‘limited’ (726). On this basis, he raises questions about my (allegedly excessively abstract) assertion that the constitutional order that took shape in the national polities of post-1945 Europe was based on a constitutional shift from collective rights to ‘singular rights’—that is, to rights accorded to persons, in the first instance, as singular subjects (727). However, it is difficult to identify many phenomena in modern European legal history that have had greater social and political impact than the heightened entrenchment of such rights in the public-legal systems that evolved in post-1945 Europe. This can be seen as a legal process with profoundly formative implications, reflected in all the waves of constitutional-democratic transition that have occurred in Europe from the years after 1945 to the years after 1989. The legal underpinning of each of these transitional waves was rooted in the endeavour, with nation-specific variations, to ensure that constitutional rights, both political rights and rights of a social or economic nature, bring legitimacy to governments, primarily, as norms that are attached to persons in society in their quality as singular agents, so that single persons assume an identity as rights holders outside structured political and economic associations and outside the governmental order. Through this shift, the political-economic systems that existed in some interwar democracies and that have characterized authoritarian regimes of different hues in recent European history, in which individual persons were bound into collective organizations which were then forcibly integrated into the political system, were partly dissolved. This had a number of socio-political outcomes, not last amongst which was the fact that state institutions were less easily unsettled by economic crisis or by conflicts between rival economic groups. The construct of constitutional rights that became widespread after 1945 was typically based on globally accepted models.[1]

This long trajectory of normative reorientation can be traced—originally—to the rejection of corporatist or collectivist rights in the constitution-making processes conducted after 1945, in different countries with recent experience of authoritarianism. One example of this appears in the Western zones of occupied Germany between 1945 and 1949. In some instances, clauses in German regional constitutions written between 1945 and 1949 were not enforced because they were perceived as promoting the collectivist concepts of rights that had been expressed in the Constitution of the Weimar Republic (1919).[2] Similar tendencies were reproduced, diversely, in Italy and Japan at the same time and in subsequent years. This reorientation was then strategically intensified in the processes of constitutional-democratic foundation in Spain and Portugal in the mid-1970s, where, first in Spain and later—through constitutional revisions—in Portugal, a reduction in the political force of collective rights acquired fundamental importance in the separation of the state structure from the remnants of the Franco and Salazar regimes. Later, of course, the patterns of constitution making that became dominant in Eastern Europe after 1989/90 were formatively centred around the elaboration of the rights of singular subjects as principles of governmental legitimacy. These processes are not peculiar to Europe; they are even more strongly articulated in Latin America.[3] In many settings, in fact, the individualistic patterning of constitutional rights defined the foundational architecture of modern constitutional law. This was largely the result, in the first instance, of the conscious strategy of constitution makers, shaped by the experience of state crisis under fascist government and other authoritarian regimes, to disconnect constitutional rights from collective subjects, such as trade unions, professions, cartels, corporations, and political parties.

Overall, in my view, Dowdle’s queries about these points render his wider objections to the seeming abstraction of my analysis problematic. These are aspects of modern history that have very broad importance, and it is quite reasonable for an author to presume that readers of a book that has a historical-theoretical emphasis and is not advertised as an introductory textbook might have some knowledge of such matters. If an author does not dwell very extensively on the discussion of evidence to illuminate such facts, this does not necessarily mean that the author is writing at an excessively high degree of abstraction, or ‘opacity’ (729). It might equally mean that the author simply presupposes that his or her readers have reached a particular knowledge threshold. The question of abstraction, therefore, can easily be seen as a question that is coloured by the eye of the beholder, as material that appears abstract to an observer at one point on a cognitive spectrum will often appear less abstract to an observer at a different point on the same spectrum. In the case of Dowdle’s critique, his recommendation that historical material should be presented at a lower degree of abstraction could easily be taken, more literally, as a recommendation that the historical material should be presented in more elementary form, and that it be made accessible—for example—to readers who have never really taken time to read any history. In any case, the criticism expressed by Dowdle is entirely distinct from the standard, and under certain circumstances clearly legitimate, objections that specialist historians often level at scholars who undertake historical-sociological research. Historians expressing such objections typically demand, and are in turn able to provide, localized factual material to support their critique of broader sociological essays in historical reconstruction.

One problem with Dowdle’s approach is that his focus on rudimentary points of historical analysis means that the more important questions that he raises are slightly obscured. In this regard, notably, he disputes my analysis of the rise of National Socialism in Germany as a form of state fragmentation, or as a process reflecting a crisis of state autonomy (727). This is an extremely important question, whose implications extend far beyond Germany and acquire relevance for many examples of authoritarian statehood. In fact, I address processes of institutional fragmentation under different authoritarian regimes quite extensively in the book. With specific regard to National Socialism, though, there is a large body of—admittedly quite advanced—research on state fragmentation during the Hitler regime. The features of such fragmentation are usually observed as: (1) multiplication of public offices and institutionalization of parallel administrative organs; (2) low regional penetration of government bodies; (3) egregious private monopolization of public power; (4) ineffectiveness of central authority and destabilizing inter-institutional rivalry—all of which are classical characteristics of governments with low structural autonomy.[4] In fact, it is widely and—in my view—quite plausibly disputed whether the National Socialist system of coercion could be categorized as a state at all. As I also explain, similar indicators of weak institutional structure and low state autonomy were generally common amongst classical authoritarian polities, and they can be observed inter alia in Italy under Mussolini, in Spain under Franco, and in Argentina under military rule.[5] Dowdle might be well advised to read, if he has not done so already, Franz Neumann’s Behemoth—the first, and still the best, comprehensive treatise on National Socialism, which forms the cornerstone for all serious historical analysis of political institutions under Hitler.[6] Knowledge of these debates cannot necessarily be presupposed amongst readers who have not conducted sociological research on authoritarian states. However, opposition to such claims without historical counter-evidence is not intellectually justifiable.

Also important in this respect is the fact that the limits to Dowdle’s historical knowledge, freely acknowledged with regard to Europe, are evident in other settings, and they are reflected in his references to the USA. For example, he challenges my claim that effective national integration is linked to the global growth of human rights law by declaring that this thesis can only be applied to Europe and Latin America. As a result, he indicates that socio-political integration in the USA had little connection with international human rights law (729). However, as much as any other state, the USA is paradigmatic for my theory. National processes of socio-political integration in the USA only came to (still only nominal) completion in the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which enfranchised black voters in the Southern States and brought to an end the pernicious condition of de facto apartheid, which still persisted in vast regions of the country. Up to this point, it is impossible to characterise the USA as a democracy, and it is very difficult to see it as a nationally integrated society, as entire territorial zones had extricated themselves from the normative system constructed at federal level.[7] Although the USA is widely seen as resistant to the recognition of international legal expectations, the end of American apartheid and the formation of the USA as a broadly nationalized society cannot easily be explained without consideration of the rise of the global human rights system. This is a matter of absolutely vital importance in modern global history, and it should not be passed over lightly.

In fact, we can identify three processes through which democratic integration within the USA was shaped by the inner-societal diffusion of global norms, especially norms concerning human rights protection. This occurred, first, because many anti-discrimination cases heard in the American courts in the 1940s, 1950s and 1960s were presented on grounds that relied on presumptions based in international norms, so that, even if the courts did not cite such norms in their final rulings, core legal arguments were strongly influenced by global normative presumptions.[8] This occurred, second, because legal organizations representing African Americans in the Civil Rights Movement, notably the National Association for the Advancement of Colored People and the Civil Rights Congress, repeatedly petitioned bodies attached to the UN, including on grounds of genocide, in order to bring an end to apartheid. This occurred, third and most importantly, because successive American Presidents were anxious that, in a context marked by the conflict with the Soviet Union and decolonization in Africa, the USA could be discredited on the global stage because of its government’s failure to secure democratic rights within its own borders. For example, President Eisenhower (no strong opponent of segregation) expressed alarm that, owing to American apartheid, the USA could, by its enemies, be ‘portrayed as a violator of those standards of conduct which the peoples of the world united to proclaim in the Charter of the United Nations’.[9] Later, President Kennedy promoted civil rights in domestic law as a means ‘to restore America’s relative strength as a free nation’ and to regain ‘leadership in a fast-changing world menaced by communism’.[10] It is no coincidence that the Civil Rights Act and the Voting Rights Act were passed in the USA at a point in time immediately after President Johnson had declared commitment to the global promotion of human rights in the UN General Assembly.[11] It is also no coincidence that the Voting Rights Act was passed in the same year that the Convention on the Elimination of All Forms of Racial Discrimination was adopted in the UN. These are inextricably connected historical events. There is a vast body of research on these occurrences, and it can be reasonably expected that any scholar with an interest in global constitutional processes will have knowledge of this research.[12]

In addition to the claim that my historical analysis is too abstract, Dowdle’s review contains a section that focuses critically on my discussion of legal developments in China, claiming that I overstate the importance of international human rights law in this context. Implicitly, the analysis of inaccuracies that Dowdle claims to find in these passages in my book is employed to discredit my analysis at a more general level. In this respect, however, his commentary is again, albeit for very different reasons, on weak footing.

To be noted in this regard, first, is the fact that throughout the book I argue that global legal norms enter national legal systems and national constitutional orders through multiple paths—this is in fact what makes such norms transnational. On this conceptual basis, I also argue that the processes of legal reform that have led to the consolidation of—to use Dowdle’s own words (728)—a ‘legalised, juridified . . . constitutional-regulatory system’ in China have been partly based on the use of normative standards originating outside the Chinese legal system, and these include global human rights law. I argue that the assimilation of external norms in China can be seen in legislative acts, in constitutional revisions, in provisions for administrative litigation, and in domestic alignment to global economic law. Addressing these points, Dowdle explains that he finds ‘no evidence’ to substantiate my (alleged) claim that the Chinese courts used ‘an international source of authority’ in deciding cases (729). He also recommends a body of research, including much of his own, to illustrate this. The core problem with this demonstration of expertise, however, is that it does not contradict an opinion that appears anywhere in my book. The claim that Chinese courts have directly applied international human rights law is not expressed at any point in my analysis, and this is not a belief that I have ever held. Dowdle is of course entitled to dispute my view that patterns of judicial reform and legal-systemic formation in China have derived substantial impetus from external normative models. However, he ought to dispute a claim that is actually being made. In this instance, I do not in any way wish to suggest that Dowdle’s analysis is undermined by insufficient knowledge. On the contrary, I wish to be expressly clear that I consider Dowdle an expert in Chinese law, and his expertise in this area immeasurably outreaches my own. However, an opinion is imputed to me that I have not articulated.

My book contains a number of controversial arguments. As mentioned, the book is centred on the assertion that most national societies did not construct reliable normative foundations for political institutions able to perform the processes of legal-political inclusion and social integration required of national states with effective sovereign powers in their own societies. Following this argument, I claim that it was only as they were incorporated in a diffuse system of global norms, based in human rights, that national societies approached full institutional inclusivity, and became, in effect, fully national. In fact, many national societies only acquired comprehensively integrated institutional form on the basis of transnationally constructed laws. This applies most especially to societies whose political systems are formed as democracies, and, as Dowdle acknowledges, China is never presented as a strict example of such processes.

My claims can be, and they often are, contested on normative grounds. They are commonly challenged by theorists who defend democracy as the specific result of collective (often national) self-legislation, and who imagine that political institutions are constructed and legitimated by the fact that they translate interests of given political constituencies into generalized legislation. The political constitutionalists are prominent in the promotion of this line of critique. My claims are also often contested on grounds that, as my book appeared in 2016, they have been rendered invalid by subsequent events, as many national states appear to have recently loosened their ties to any global legal system.[13] This criticism seems to me far more plausible than the first criticism. If the latter criticism is expressed, however, the strength of my claims is actually reinforced, albeit in unintended fashion. Those states that have recently lowered their regard for norms embodied in the global legal system have almost invariably undermined the internal integrational force of their domestic institutions, and their claims to democratic legitimacy have usually been drastically weakened. My argument, written primarily as sociological description, is thus translated into a dire normative warning; evidence that global legal integration is the key to national integration and national democracy is now abundant and almost incontrovertible. We can look at the USA, the UK, Hungary, Poland, Turkey, Venezuela, Brazil and (probably) Colombia as examples of polities that have recently begun to demonstrate, negatively, the extent to which processes of national political inclusion are linked to processes of global legal integration.

Against this background, it seems to me that there is currently a heightened imperative for all scholars to make sure that debates about the linkage between global norms and national legal systems are conducted in a fashion that shows historically informed awareness of what is at stake in such debates. In my view, for example, theorists of political constitutionalism ought to take particular care to ensure that their normative constructions of legitimate government reflect on, and are adequately proportioned to, the social conditions that have historically determined the institutional structures required to support democracy. In my opinion, there is, at present, a very real danger that strategically political accounts of constitutional democracy might actually weaken the foundations of the democratic systems that they purport to defend. A far stronger, and a far more general imperative, however, is that authors show full responsibility in engaging in such debates, in particular by exercising due rigour in the analysis of factual material.

References

[1] In the writing of the Grundgesetz, for instance, Carlo Schmid (a leading delegate of the Social Democrats) stated that the Grundgesetz should provide for immediate domestic application of international human rights. He declared that it was vital ‘to move away from the previous doctrine of international law, in which international law only addresses states, and not single individuals’. This was not fully realized, but the Grundgesetz bears the clear imprint of the emergent global system.
[2] The most important example was the 1946 constitution of Hessen, which contained a clause (Art 41) that was never applied.
[3] Exemplary of this is transitional Argentina, where Alfonsín utilized the vocabulary of human rights as a political platform, on which it was possible to diminish the significance both of trade unionism and of military authority as inner pillars of national government. See G. L. Munck, Authoritarianism and Democratization. Soldiers and Workers in Argentina, 1976–1983 (Pennsylvania State University Press, 1998) 155. In Argentina, the reconstruction of constitutional rights on an individualistic design was the object of high-level theoretical inquiry. See C. S. Nino, ‘Transition to Democracy, Corporatism and Constitutional Reform in Latin America’ (1989) 44 University of Miami Law Review 129.
[4] The Nazi regime had very uncertain control of its basic institutions, and its stability was undermined by the endemic risk of ‘collapse into particular power apparatuses’: D. Rebentisch, Führerstaat und Verwaltung im Zweiten Weltkrieg. Verfassungsentwicklung und Verwaltungspolitik 1939–1945 (Franz Steiner, 1989) 283. The lack of statehood under Hitler was recognized by Alfred Rosenberg, a leading ideologue of the NSDAP, who stated: ‘The National Socialist state developed into legal centralism and into practical particularism (quoted in M. Ruck, ‘Zentralismus und Regionalgewalten im Herrschaftsgefüge des NS-Staates’, in H. Möller (ed.), Nationalsozialismus in den Regionen (Oldenbourg, 1996) 99, 99). For similar reflections, see P. Diehl-Thiele, Partei und Staat im Dritten Reich. Untersuchungen zum Verhältnis von NSDAP und allgemeiner innerer Staatsverwaltung 1933–1945 (Beck, 1969) 21.
[5] See recent analysis in A. C. Pinto, ‘Ruling Elites, Political Institutions and Decision-Making in Fascist-Era Dictatorships: Comparative Perspectives’, in A. C. Pinto (ed.), Rethinking the Nature of Fascism: Comparative Perspective (Palgrave, 2011) 197, 206-7.
[6] F. L. Neumann, Behemoth: The Structure and Practice of National Socialism 1933–1944 (Octagon, 1963). This book was first published in 1942, and then again, in its final expanded form, in 1944.
[7] See R. Mickey, Paths out of Dixie: The Democratization of Authoritarian Enclaves in America’s Deep South, 1944–1972 (Princeton University Press, 2015).
[8] See Shelley v Kraemer, 334 US 1 (1948). In this early case, one of the most important of all race-related cases in the USA, the Executive branch filed an amicus curiae brief that accentuated the importance of international human rights law in the fight against desegregation, and the overall argument was strongly influenced by the UN human rights norms. For analysis of this point and wider excellent commentary, see S. H. Cleveland, ‘Our International Constitution’ (2006) 31 Yale Journal of International Law 1, 69.
[9] P. J. Spiro, ‘Treaties, International Law, and Constitutional Rights’ (2003) 55 Stanford Law Review 1999, 2016.
[10] C. M. Brauer, John F. Kennedy and the Second Reconstruction (Columbia University Press, 1977) 42.
[11] See the following extract from Johnson’s speech of late 1963 in the General Assembly: ‘We believe more than ever in the rights of man, all men of every color, in our own land and around the world. And more than ever we support the United Nations as the best instrument yet devised to promote the peace of the world and to promote the well-being of mankind:’ Address before the General Assembly of the United Nations, 17 December 1963, available at http://www.presidency.ucsb.edu/ws/index.php?pid=26432.
[12] For a tiny selection of this research, see P. G. Lauren, ‘First Principles of Racial Equality: History and the Politics and Diplomacy of Human Rights Provisions in the United Nations Charter’ (1983) 5 Human Rights Quarterly 1; B. B. Lockwood, ‘The United Nations Charter and United States Civil Rights Litigation: 1946–1955’ (1984) 69 Iowa Law Review 901; M. L. Dudziak, ‘Desegregation as a Cold War Imperative’ (1988) 41 Stanford Law Review 61; D. J. Skrentny, ‘The Effect of the Cold War on African-American Civil Rights: America and the World Audience, 1945–1968’ (1998) 27 Theory and Society 237; A. S. Layton, International Politics and Civil Rights Policies in the United States, 1941–1960 (CUP, 2000); J. D. Skrentny, The Minority Rights Revolution (Harvard University Press, 2002); T. Borstelmann, The Cold War and the Color Line: American Race Relations in the Global Arena (Harvard University Press, 2009); S. L. B. Jensen, The Making of International Human Rights: The 1960s, Decolonization and the Reconstruction of Global Values (CUP, 2016).
[13] This point was repeatedly raised, as early as summer 2016, at a Conference at Cardiff University on ‘Transnational Constitutional Law and New Patterns of Democracy’.
Published 19.10.18
Response by Chris Thornhill
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