Конституционный дизайн: образ государства и образ эпохи (Constitutional Design: Image of State and Age)


                RANEPA




THE RUSSIAN PRESIDENTIAL ACADEMY
OF NATIONAL ECONOMY
AND PUBLIC ADMINI STR ATIO N




         Igor Bartsits

         Constitutional Design:
         Image of State and Age










              Publishing House “Delo”
              Moscow • 2018

УДК 34
ББК 67









     Igor Bartsits, Doctor of Law, Professor, Director of the Institute of Public Administration and Civil Service (IPACS), the Russian Presidential Academy of National Economy and Public Administration (RANEPA)

     Барциц, И.Н. Конституционный дизайн: образ государства и образ эпохи (Constitutional Design: Image of State and Age): на англ. яз. / И.Н. Барциц. — М. : Издательский дом «Дело» РАНХиГС, 2018. — 56 с. — (Научные доклады : государство и право).



     ISBN 978-5-7749-1387-9



      The purpose of this paper is to comprehend, explore and describe Constitutional Design as a phenomenon of constitutional theory and practice from the perspective of its usage as a criterion for the assessment of the aesthetics, beauty and topology of constitutions, as well as a set of tools of legal linguistics and legal writing. The author pays special attention to the evolution of constitutional design as such, constitutional and legal thought, their dependence on profound changes in the course of development of the society, law, and culture.


УДК 34
ББК 67

     ISBN 978-5-7749-1387-9






      © Russian Presidential Academy of the National Economy and Public Administration, 2018

            Contents







   Introduction ....................................................5

   General Definition of Design.....................................7

   The Notion of Constitutional Design. Does it Have the Right to Exist? ...............................10

   Constitutional Design and Constitutional Model........................................12

   The Image of State and Age .................................... 15

   From Constitution of State to Constitution of Society .................................... 20

   Universalization and Development of Comparativism ............. 22

   Beauty in Constitutional Terms..................................31

   Criteria for Constitutional Design Analysis — Empiric and Aesthetic Rules.....................................38

   Afterword — On Constitutional Design without Metaphors . . . . 45

   References .....................................................48

            Introduction










                                  Constitutional act can be compared with a plaster mask or cast of the live face of reality. But, unlike the mask of plaster, the constitutional mask does not only copy the original, but in many ways determines the future development of its features.
V. N. Durdenevsky [11, p. 9]

                                  Constitutions are made, not found. They do not fall miraculously from the sky or grow naturally on the vine. They are human creations, products of convention, choice, the specific history of a particular people, and (almost always) a political struggle in which some win and others lose. Indeed, in this vein one might even want to argue that our constitution is more something we do than something we make: we (re)shape it all the time through our collective activity.
Hannah Fenichel Pitkin [67, p. 168]

              What should a constitution be like? Being a supreme law, should it, in its form or meaning, reflect any special characteristics of the state or people it is intended to serve? Is there any universal project, which could be used as a gold standard or template by those drafting new constitutional texts? Why do printed versions of the Constitutions of Brazil or India look like hefty books capable of comprising all the European constitutions? Why has the US Constitution been able to successfully avoid modification for two and a half centuries, while France and Russia amend the texts of their fundamental laws on a regular basis? Why are the Constitutions of Germany, Spain or Italy so

5

Constitutional Design: Image of State and Age

             easy to read, while the citizens of the UK or Israel require an explanation of the term “unwritten constitution”?
   This list of questions (which bring to the conclusion that there is no universal formula capable of settling in the best possible way all kinds of constitutional relationships or reflecting in full the diversity of constitutional theories and practices) can be continued endlessly. Similarly, there is no ideal set of guidelines indicating, how a state’s constitution should look in descriptive terms, which legal tools should be used for the purpose of its development, drafting, wording or putting on paper — i. e. what the design of the constitution should look like. Such general idea is not present in scientific literature and, therefore, it is not present in constitutional doctrines or practices of states.
   The diversity of constitutional concepts (so called constitutional designs) and significant differences between them give rise to the question, if the ideal (perfect or optimal) constitutional design is possible, even despite the trends of globalization and universalization or the fact that certain approaches or even wordings can be borrowed by constitution designers (due to the migration of constitutional ideas). There is no unanimity on the issue of the mere applicability of the term “Constitutional Design”. While Gunter Frankenberg states positively that “Therefore “design” characterizes quite appropriately what happens when constitutions are made. According to the standard dictionaries, design captures with a fair amount of precision how constitution making works and is anything but a misleading figure of speech or far-fetched analogy” [43, p. 153], Thomas Ginsburg brings strong arguments against it, “Design implies a technocratic, architectural paradigm that does not easily fit the messy realities of social institutions, especially not the messy process of constitution making” [61, p. 1].

            General Definition of Design








            Most dictionaries offer similar definitions of Design:

               Design is the kind of artistic project activity, which embraces the creation of industrial products and rational formation of a coherent object environment. The methods of design, which cohere the consumer appeal and aesthetic properties of the objects and products intended for direct use by humans, with their optimized structure and production technology can contribute in a certain way to the addressing of important social questions, such as the functioning of production and consumption, or existence of human beings in the world of ambient objects [See: 33, 6].

               Design is the activity related to the development of the artistic image of objects, drafting of the appearance of various products [12, p. 209].

               Design is the styling of objects, drafting of the aesthetic appearance of industrial goods [37, p. 167].

               Design is 1) The development of style features or appearance of manufactured goods, facades of buildings, building interiors, etc. — e. g. styling design; modern design; designer; go in for design; 2) Colloq. Art-quality appearance of a product. Admire the design of a car [2, p. 258].

            Let us summarize. Design is, in the first place, the type and nature of a certain targeted activity; and, in the second place, the result of such activity. Application of the general notion of design to the constitutional law does not contradict its essence or key features. Describing the cre

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Constitutional Design: Image of State and Age

            ation of a constitution as a certain activity of statespersons, legal experts, citizens and citizen groups aimed at putting in place a system of regulation of social interactions and selecting models to determine the type of state, form of government and political regime one can use the term “design” to characterize this truly creative process. And not only the process itself, but its outcome too. Similarly, this term can be used to describe the activities related to drafting the text of a constitution, the process of selection of legal tools for its formulation, and the final result — i. e. a specific supreme law.
    Given the richness (polysemy) of the term “design”, it is important to clarify its meaning it the syntagm “constitutional design” as applied to the constitution (supreme law) of a state:

1) When used in respect of the text of a constitution, it means the result (already achieved or expected in the process of drafting or discussion), which can be measured based on the answers or explanations given in regards to the following questions: how the text is visualized with the use of legal language and legal drafting tools (with legal psychology in mind), and; what is the topology (logic, logistics) of the text.
2) If applied to the development or drafting of constitutional acts, it means the activities of state and social institutions, both universal and those established specifically to design or amend a constitutional act; or the set of mechanisms used to reach an agreement upon or establish the legal value of a constitutional act, in whole or in part.
3) In the context of the subjects, relationships, activities, phenomena, processes, or events, which are regulated by the constitution of a state as its fundamental law, or which are based on or proceed from the imperatives of such supreme law, it is worthwhile to apply the framework of “constitutional architecture” as a basic system enabling self-regulation (homeostasis) of the constitutional order [32], consistent patterns of state building, power relations, and interactions between the state on the one hand and the civil society institutions and individuals on the other hand.

This article is intended to help understand, discuss and describe one of the three aspects of constitutional design mentioned above. The one, which is most open for empiric study — i. e. the Constitutional Text. This implies the need to examine: a) how compact / detailed / comprehensive the constitutional text is; b) how it is structured (number and sequence

8

General Definition of Design

order of parts, chapters, sections, articles, paragraphs and subparagraphs); c) how its various provisions are prioritized and articulated; d) how its various sections correlate visually in terms of their volume; e) how long the longest and shortest parts, chapters, sections, articles, paragraphs and subparagraphs of the constitution are respectively; how long the longest and shortest wordings of constitutional provisions are; f) how ergonomic the text of the constitution is; g) how beautiful, aesthetically and visually balanced, and poetic (to the extent to which this word can be used to describe a legal document) this text is.

            The Notion of Constitutional Design.
            Does it Have the Right to Exist?







             They (constitutions) neither fall from heaven nor are they revealed in a mysterious way to Founders. Instead, they are drafted, framed, created, constructed, and, yes, designed” [57, p. 537-542; 43, p. 152], says G. Franken-berg introducing his study, in which he analyzes the concept of “constitutional design” — the term that is used in the title of the book (collection of articles) edited by Tom Ginsburg — from the perspective of its very right of existence. Following this artistic approach, Tom Ginsburg illustrates the cover of the book “Comparative Constitutional Design” with an etching from the collection of the British Museum, which dates back to the French Revolution (1789) and depicts representatives of three estates literally hammering out a constitution on a blacksmith anvil.
                The technocratic approach, frequently disguised as neo-institutionalism, may be attractive thanks to its demonstrativeness and visibility. The modern science in general and the modern theory of government and law in particular tend to use figurative language and metaphors borrowed from other areas of knowledge, sciences, and even arts and technology.
                Universal theories and legal doctrines are becoming increasingly popular as a basis for state institution building. As the experience of other countries becomes easily available for study and analysis in the process of drafting constitutions and shaping and developing political systems (effective and efficient development of comparative law and constitutional comparativism), the various con

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The Notion of Constitutional Design. Does it Have the Right to Exist

             stitutional mechanisms that exist in other states and legal systems are readily borrowed and adapted. In the course of such drafting, more and more architectural concepts are used, while the principles and methods of design are moved to the field of regulation of social interactions. This grants the architectural metaphor “constitutional design” the status of a legitimate legal concept. For that matter, various other metaphors, such as “constitutional convention”, “constitutional thought”, “constitution building”, “constitutional life”, etc. have taken roots — we got used to them and forgot that they do not originate from the legal language. Scientific terms very often descend from metaphors describing technical, cultural, physical, and even daily life phenomena [18, p. 25-43].
   Apart from helping to see the institutions of state and philosophical doctrines through the aesthetics of architecture and mathematics, the concept of constitutional design can be used to engineer various phenomena of the social reality, economics, and law.
   The technocratic component of the constitutional design concept echoes the much more successfully promoted theory of mechanism (and particularly economic mechanism) design. Eric Maskin, 2007 Nobel laureate recognized with Leonid (Leo) Hurwicz and Roger Myerson for having laid the foundations of mechanism design theory”, describes the constitution of a country as the most fundamental layer. “You can think of a country’s Constitution as the most fundamental layer. A Constitution is itself a mechanism, which prescribes what authorities can and cannot do, how they can be removed from offi ce, and how other authorities can constrain their power” ¹. In this case the “design layer” is meant, because it is the state and its bodies that author most of the social mechanisms.
   Especially promising is the adoption by the jurisprudence and social sciences of the main notion of the mechanism design theory — the notion of “reverse design”. Developers of constitutions, constitutional and legal institutions and models should, in the first place, shape the desirable image of the future state and society” [46], set their objectives, and then, as though getting back to the current reality, design the procedures, institutions and mechanisms, by means of which those objectives are to be achieved.

1

   See: “Any area of economic life is ripe for mechanism design theory” /Interview with 2007 Nobel laureate in Economics Eric Maskin on game theory subdiscipline. http://serious-science.org/eric-maskin-mechanism-design-theory-1833.