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Asanga Welikala: Burkean thought in contemporary constitution making

03.11.2016.

Edmund Burke's conservative approach has the capacity to consider change, its scope and its substance, dispassionately and deliberatively. Such an approach indubitably favours incremental constitutional reform, not revolutionary constitutional transformation, writes Asanga Welikala.

Since the 1990s, there has been a proliferation of constitution-making exercises in many Eastern European, Asian, African, and Latin American countries transitioning from authoritarianism and conflict to peace and democracy. Inspired by such experiences as South Africa and Northern Ireland, many, although not all, of these countries have adopted a transformative model of constitution-making. Such constitutional transitions share a political philosophy rooted in a particular international post-Cold War left-liberal discourse, with a number of common characteristics. It sees itself as a post-political global orthodoxy, its normative dictates above and beyond democratic contestation. It sees constitution-making as an exercise in progressive social engineering. It requires a revolutionary break with the past. It has an anti-political flavour in preferring constitutional and judicial supremacy over representative institutions. It promotes the entrenchment of international human rights, including socioeconomic rights, as the essential substantive core of a democratic constitutional order. These elements are almost invariably present in international best practice promoted by multilateral institutions and international non-governmental organisations, as well as shared by a body of like-minded constitutional experts who find themselves called upon to provide advice in multiple countries.

Conservatism has been almost entirely absent from these developments, leaving the field open to left-liberalism. This seems quite natural, since as a constitutional philosophy conservatism is about the conservation of inherited orders rather than their radical transformation. But this is far too simplistic an understanding of conservative approaches to constitutionalism. Conservative emphases on the past, on the organic, the judicious blend of aristocracy with democracy in order to guard against mindless populism, and on deliberative, proportionate, and above all, incremental change, are demonstrably elements of a theory of constitutional change that can have beneficial uses much beyond the established older liberal democracies of the West.  

Where the context so requires by virtue of a clear democratic desire for it, the adoption of the left-liberal model of constitutional transformation might be unobjectionable. But in others, it is deeply problematic. The undiscriminating application of revolutionary change can have unsettling and unanticipated consequences for societies. The presumption against history in favour of the present and the future discounts deep cultural and historical resources a society may have for its own regeneration. The expectation of an immediate settlement of grievances of ancient provenance may turn out to be unrealistic. The high-minded expectations of a legal constitution and its enforcement by a disinterested judiciary may not be realised. They may even be undermined by the undervaluation of democratic politics, because the permanent legal entrenchment of a monistic conception of the good life reflected in a human rights-based model may come to be seen as utterly undemocratic when circumstances change. The assumption that judicial reasoning in the final determination of policy disagreements (especially in the realisation of socioeconomic entitlements) is a superior method of decision-making to the political process could backfire in many ways. And for these reasons, it is not only in instances where liberal constitutions have been imposed by external force that these constitutions might struggle to attain legitimacy.

In all these respects, conservatism and especially the illuminating thought of Edmund Burke, have important critiques and alternatives to the left-liberal model. Burke’s classic repudiation of revolutionary political change in France is well known. Not only does it do major violence to what is good about the past, but the excessively rationalistic ideological fervour that usually accompanies revolutions does much more harm than good. By contrast, a conservative approach has the capacity to consider change, its scope and its substance, dispassionately and deliberatively. Such an approach indubitably favours incremental constitutional reform, not revolutionary constitutional transformation.

In a world of both deepening democratic activism and identity conflicts, it is perhaps not realistic to conceive of constitution-making as a panacea, which would settle these challenges once and for all. A conservative approach would therefore adopt both gradualism as well as embrace the flexibility of democratic politics as a more durable method of negotiating these difficult social disagreements. Similarly, conservativism would reject the entrenchment of a left-liberal conception of the good life as the identity of state and society, not merely on ideological grounds, but also because it does not believe in imposing such a monistic order on pluralistic modern societies. In Burke’s sensitivity to Indian culture and history and consequent scepticism about adamantly imposing imperial political forms on it, as well as his thoughts on American independence and Catholic emancipation, provide modern conservatives with the intellectual resources to embrace both pluralism and disagreement.

Paradoxically perhaps, conservatism understood this way can be restated as a philosophy of both inclusion and accommodation, which are otherwise seen as liberalism’s major concerns. It is time for these conservative strengths to be articulated more forcefully in the global discourse and practice of constitution-making.

Dr Asanga Welikala is Lecturer in Public Law at the University of Edinburgh and Associate Director of the Edinburgh Centre for Constitutional Law. He was one of the speakers at ACRE's autumn workshop on constitutional reforms within and without the EU in London. The content of his opinion piece does not reflect the official opinion of the ACRE. Responsibility for the information and views expressed in the opinion piece lies entirely with the author.

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The ACRE is recognised and partially funded by the European Parliament. Sole liability rests with the author.and the European Parliament is not responsible for any use that may be made of the information contained therein.

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