Comprehension of the Constitution (from the Communitarian Point of View)

• Author: Raul Narits
• Position: Professor of Comparative Jurisprudence
• Pages: 3-10

Page 3

Raul Narits

Professor of Comparative Jurisprudence

Comprehension of the Constitution

(from the Communitarian Point of View)

Legal theory has always been aimed at attaining adequate cognition of law. Figuratively speaking, this means the creation of the organic integer image of law. Thus, bearing in mind the legal order, the theory of law should also conduce to cognise the constitution as a certain independent whole. Furthermore, "comprehension of the national legal order must always be based on the idea of oneness or coherence of the legal order as a whole and its supreme law - the constitution"¹. Bearing in mind the achievements of cognition in legal theory, it can be said that it has provided the applier of law with a wide-range complex of cognitive means. However, with regard to the use of cognitive means elaborated by the theory of law, two basic principles should be pointed out: firstly, the principle of ensuring consistency and, secondly, the contextual principle. The constitution must be interpreted in such a way (using cognitive means at that) that no conflicts with other constitutional provisions would occur (consistency) and that one could have a clear idea of a constitutional provision as to its place in the text of the constitution (contextuality)².

The understanding of the constitution is connected with another very important problem concerning court decisions made on the basis of constitutional law or in other words, interpretation of the constitution by constitutional courts³and acceptance of these decisions. And although not much is written on the problem of accepting the decisions of constitutional court review in legal literature, the problem as such exists. "Here we also have to deal with the question," writes J. Limbach, the Chief Justice of the Federal Constitutional Court of Germany, "how to improve the real power of integration and validity of law."⁴In every respect it is natural to acknowledge that namely the decisions of constitutional courts as compared to those of other court instances must be the highest in the hierarchy of value decisions. But the question is not only in the hierarchy of decisions. Instead it is vice versa, as first and foremost the decisions of constitutional courts must be supposedly acceptable. It is naturally debatable whether and to what extent the law (i.e. the constitution) and judicial decisions altogether need public or informal recognition (acceptance)⁵. But still objectified forms of comprehension of the constitution, especially the decisions of constitutional courts, as to their acceptance are of importance to the society organised as a state. The best decision from the lawyers' point of view and for lawyers need not be the best for other members (for many or even the majority) of the society. The opening report of the 61st German-wide Lawyers' Day was dedicated to the activities of the German Constitutional Court (Bundesverfassungsgericht, hereafter BVerG). The report, inter alia, dealt with a 1995 decision of the BVerG by which it was forbidden to hang up crucifixes in the classrooms of German schools. The reason for this prohibition lies in the fact that children of parents with different creed attend school and this, if we bear in mind the freedom of religion, may be distressing for them. And at the same time, senior students may already have a certain theological conception of the world of their own. There are no signs of cooling down of the discussion over the afore-mentioned decision by the German public and this reveals that many as to their level of legal conscience and of conscience as a whole do not approve the decision. It is admitted that although the BVerG has followed the letter of the law it has not been able to understand the actual purport of the law. The ConstitutionalPage 4Court got into conflict with the legal conscience of the silent majority, thus, with these circles of population whose obedience to the law and loyalty to the state and constitution were generally self-evident⁶. And although the only determiner of the quality of constitutional review decisions is not and cannot be general acceptability thereof, the fact as such cannot be just ignored. This article does not mainly analyse the interpreter and interpretation of the constitution in connection with the entire open society. It is quite clear that the cognition of the constitution in an open society is an open process in which alternative possibilities become manifest. Specialist literature refers to citizens, social groups, state bodies and the public as interpreters of the constitution in an open society⁷. Anyway, this should be clear: the text of the constitution in itself is not sufficient for its cognition and the circle of interpreters of the constitution in an open society is broad⁸. One more aspect should be stressed. Namely, comprehension of the constitution and actual operation of constitutional courts are directly connected with the problems of the protection of a person. This connection is most directly revealed between the cognition and authentic interpretation of Chapter II of the Constitution of the Republic of Estonia⁹. Chapter II of the valid Constitution of the Republic of Estonia differentiates fundamental rights, freedoms and duties. But many other constitutional provisions that are not incorporated in Chapter II also contain fundamental rights and freedoms (§ 57, § 60(1) and others). In connection with that we can say that the whole Constitution deals with the problem of the protection of a person. Without referring hereby to the communitarian approach, it is absolutely clear that contemporary societies are organised as states and beyond that organisation - the state - it is difficult, if even impossible, to imagine a person.

Let us now turn to a possible¹⁰, achievement of cognition of the constitution - to communitarianism. Since the 1980s, foremost in the United States,¹¹ and more recently also in continental European legal culture,¹² communitarianism has become a rather frequently discussed theory of society and state¹³ among jurists. (Communitarianism is a social theory that revived some decades ago in the United States to counterbalance prevailing individualism. Communitarianism reproaches individualism that the latter treats a person and personality one-sidedly and reduces everything to the level of a person and personality. It should be added that although communitarianism is connected with ethics, it expresses the counter direction to the Rawlsian moral theory.) As we have to deal with a comparatively novel sphere of interest in jurisprudence we do not find much on the treatment of communitarianism as a constitutional theory of the constitution in specialist literature. At the same time it is clear that just in recent decades an important convergence of continental-European legal thinking and that of common law has taken place. It seems that cognition of such "integrated" legal thinking is in itself of great help for the interpretation of the constitution, especially in the relatively young national legal order of Estonia. Whereat it has to be considered that denotation "young" does not mean "embryonic". It rather refers to a short period during which we have been able and managed to, firstly, shape and, secondly, cognise (interpret) the legal order¹⁴. Estonia remembers well the discussion on "the letter of law" and "the spirit of law" arisen in 1997. The essence of the discussion was, and still is, that the values on which the law relies must be seen behind or above the text of the law. With regard to the constitution when in many cases, we have to deal with so-called norms-principles the cognition thereof without the use of cognitive methods elaborated by the theory of law is absolutely impossible. Namely communitarianism can be one of the possible approaches here.

In addition to the relative novelty of communitarianism, its emphasis on homogeneity, on certain equability including minor groups of the society as well as the state itself is imposing. Nowadays, rather, the opposite trends the accents of which cause ever-growing individualisation of persons, including their alienation from society, expose problems.

What is characteristic of communitarianism as a systematic understanding (cognition) of society? First of all it has to be stressed that communitarianism must not be reduced to a single (homogeneous) understanding because the pertinent theory is miscellaneous (polymorphous) or integrant.

Firstly, one should find an answer to the question what it is that unites people and their associations. Why are people together? Different answers are possible depending on what we understand under coinciding interests (identities). For example, we can speak of Christian value ethos, European identity or even world solidarity. By this analysis we emphasise the idea of unity¹⁵.The opposite of unity is difference. For example, with regard to human rights, the questions of race, religion and nationality are irrelevant. But if we consider, for example, citizenship as a criterion of unity then one should see the difference between the people of the state and so-called non-people. Certain differentiations can be actually drawn with regard to every criterion of unity. But in the case of communitarianism it is important to contribute to certain unity in the society: belonging to the society, possibility to be socialised, the society as a certain unitary membership, etc. Clearly distinctive is a communitarian position that the freedom of unitary forms of existence rather than the freedom from society is in the foreground¹⁶. Communitarianism pays attention to the fact that the development of personality needs not only freedom for something (so-called negative freedom), the freedom must also "have a certain...