Review: Bezemek, Constitutionalism, 2030 [German]

Christoph Bezemek (publ.), Constitutionalism 2030, Oxford: Hart Publishing 2022, 219 pages, 109.95 €, ISBN 978-1-50994-270-1

in: Zeitschrift für öffentliches Recht (ZöR) 78 (2023), pp. 765-769 [in German]


According to a common classification, innovation is divided into two categories: incremental and radical (or disruptive). This is also helpful when looking at legal research. German-language legal scholarship, especially that which works dogmatically, generally delivers incremental progress: a concept is refined, a term is honed and systematically better adapted, a court decision is criticized because it breaks with a line of case law, etc.; the invention of a new term—the »administrative act«, for example—or the discovery of a new claim, on the other hand, has become rare. In a post-war world and with the end of devastating ideologies, this concentration on subtle, cautious, incremental developments in legal doctrine was an understandable development, a successful epistemic strategy: on the one hand, it was possible to fall back on the tried and tested—as in civil law—and on the other hand, newly introduced norms—such as those intended to deal with the horror of National Socialist terror and ensure »Never again!«—had to be developed with caution. We can no longer meet the challenges that have increasingly presented themselves to our societies in recent years and decades—critical, sometimes hostile populist demands on democracy; climate change; digitalization, platform creation and »social« media; globalization of the economy and the emergence of international mega-corporations that are not just taking on small states—with this modest approach. When it comes to the future of democracy and the rule of law, we need more radical innovations: »If we want everything to stay as it is, then everything has to change.« (Legal) science is essential for this: what other social subsystem is supposed to think about the future, thoroughly explore alternatives and scenarios and carefully weigh up the risks? Further development cannot be expected from politics, from those who have succeeded in the current order, who are also a »product« of this order; apart from the fact that they are so busy dealing with the major and minor day-to-day crises that they simply do not have the time to deal with fundamental issues. Legal scholarship must therefore regain the courage to tackle such big questions on a much broader scale, without falling into new or old ideologies—in order to secure freedom, security and prosperity in the next era of human history.

This is exactly what the volume »Constitutionalism 2030«, edited by Christoph Bezemek, undertakes, and this is precisely what makes the volume both commendable and exciting. In order to describe the program not only in words but also impressively in pictures, Bezemek reaches into the past and uses Ambrogio Lorenzetti’s »Allegory of Bad Government« for the cover, not only for aesthetic reasons—which almost reveals more about the content of the book than the pleasantly concise, unadorned and subtitle-less title, »Constitutionalism 2030«. The fact that reading the book actually begins with looking at the cover becomes clear in the first sentence of the foreword, when the editor asks readers to first close the book again to look at the cover and only then open it again. The »Allegory of Bad Government« is part of a fresco created in 1338/39 by the Italian painter Ambrogio Lorenzetti in the old town hall of Siena, with which he admonished those in power to live up to their (governmental) responsibility and visually showed them the consequences of failure. In addition to the »allegory of bad government«, it shows an »allegory of good government«. While the »allegory of good government« depicts the cardinal virtues of justice, moderation, prudence and bravery alongside peace and generosity, tyranny forms the center of the »allegory of bad government«, surrounded by the cardinal virtues of avarice, arrogance and vanity, as well as cruelty, betrayal, deceit, anger, quarrels and war. Justice lies shackled on the ground.

Christoph Bezemek sees this gloomy warning as a call to science to do its utmost to prevent this prophecy from coming true. He has more than succeeded in doing this with the book reviewed here. He has brought together cleverly selected topics with international authors, and the result is an extremely coherent and highly readable book.

In his introduction, which sets the stage for the authors, Bezemek sketches a picture of a constitutionalism in crisis, which, like an old building, has aged and fallen into disrepair. He identifies three phenomena as the causes of the dilapidation, which already anticipate the later structure of the work: The foundations were shrinking, the bricks were crumbling and there was a lack of maintenance efforts on the part of those responsible. And although there is no doubt about the fragility of constitutionalism, there is little effort to address the question of how to deal with this fragility, how constitutionalism should develop and how it can be strengthened.

This is where this volume picks up. Christoph Bezemek asked the authors to look ten years into the future and make predictions about how constitutionalism would develop up to the year 2030. This assignment was combined with the request to subject these predictions to a critical review in ten years’ time, which all authors promised to fulfill.

Thematically, the book is divided into three parts, which are based on the previously outlined image of constitutionalism as a dilapidated building. In the first part, entitled »Aspects«, which refers to the dwindling foundations of constitutionalism, the fundamental structural principles of democracy (Matthias Klatt), the rule of law (Yaniv Roznai) and federalism (Bilyana Petkova) are examined. The second part, »Areas«, is devoted to the »building blocks« of constitutionalism: (international) human rights (Andreas T. Müller), international criminal law (Stefanie Bock) and world trade (Antonios Kouroutakis). Finally, the third part (»Actors«) is dedicated to the actors responsible for the maintenance and cultivation of constitutionalism and provides prognoses on institutions (Stefanie Egidy), political parties (Paulina Starski) and global political movements (Tomas Dumbrovsky).

Matthias Klatt sees the greatest challenge for democracy (p. 13) in the loss of the capacity for discourse and believes that strengthening society’s capacity for rational discourse is a key factor in stabilizing democracy. He looks to the future with confidence and is not worried about democracy.

In the very stimulating analysis of the rule of law in 2030 by Yaniv Roznai (p. 31), it becomes clear that the populism that can be observed worldwide poses a major threat to the rule of law. Populists and autocrats are shifting the focus of the rule of law away from its substantive legal perspective and the principle of the rule of law based on democracy and human rights, towards an authoritarian rule based essentially on the formal aspects of law through laws that are instrumentalized to achieve precisely these authoritarian political goals (p. 43). At the same time, however, Roznai sees digitalization in particular as having the potential to (positively) change the rule of law in the long term. In his opinion, the possibilities of mass individualization through big data and artificial intelligence will not stop at the law and will lead to the law losing its claim to general validity through the possibility of mass individualization, but at the same time the individual’s loyalty to the law will be strengthened if the addressees know better what behaviour is expected of them. This chapter is probably the most pessimistic in the book – and yet it does not leave the reader feeling resigned. On the contrary, thanks to the intelligent and clear analysis of the concept of the rule of law, one learns to (re)appreciate its value and is encouraged to protect it and preserve its achievements.

In her chapter (p. 53), Bilyana Petkova warns federalism as another fundamental element of constitutionalism that, in view of Brexit, ongoing discussions about a »Polexit«, but also the independence aspirations of Scotland or Catalonia, it is necessary to reflect on the constitutive elements of federalism and find ways to reconcile them with the changing role of cities as the new global actors to strengthen it.

Deliberately turning away from the crisis narrative surrounding constitutionalism, Andreas T. Müller chooses a narrative of ambition in the first chapter of the second part on international human rights (p. 73). He calls for a proactive approach to the inevitable changes, to be open to new institutional configurations and to take greater account of the political, economic, social, demographic and ecological parameters within which human rights are developing. Both the personal scope of application (keywords: animal rights, natural rights) and the target group (terrorist groups, mafia, transnational corporations, social media) of human rights have developed further; in the interest of a prosperous development, these changes should be accepted and accompanied with commitment for the further development of human rights. This perspective is particularly beneficial for human rights in the face of the loud chorus of pessimists.

Stefanie Bock’s analysis of international criminal law in 2030 (p. 91) sees great opportunities for decentralized, national enforcement of international law. The two major challenges of international criminal law are overcriminalization – i.e. unjustified or disproportionate use of criminal law – on the one hand and deficits in the enforcement of criminal law (national jurisdiction, weak ICC) on the other. Globalization and digitalization are expected to lead to a territorial expansion of jurisdiction, and international crimes will increasingly be tried in national courts, according to her prognosis.

Antonios Kouroutakis believes that global trade in 2030 (p. 109) will be challenged above all by (neo-)nationalist efforts by individual states to weaken supranational systems such as the WTO, or specifically to undermine and paralyze them by blocking their dispute settlement mechanisms. This is where globalization and the nationalist aspirations of numerous states come into conflict, which, according to the author, will be the greatest challenge of the next decade.

The third part of the book on the actors of constitutionalism opens with Stefanie Egidy’s chapter on institutions in the year 2030 (p. 129). It differs methodologically from the other chapters in the volume, as it is designed as a methodologically rigorous, so-called foresight study: a research method aimed at understanding and forecasting long-term future developments and their effects in a methodical and systematic manner. In such a study, experts from various disciplines are brought together with key stakeholders and citizens to examine a future issue from a wide variety of perspectives and, as a result, propose possible (political) responses and strategies. Public institutions and companies use this method in particular to identify and prepare for transformation processes. It is therefore ideally suited to taking a look at institutions in the year 2030 – and Stefanie Egidiy uses it to identify the need for a resilient institutional design as the key to their future viability. It is characterized by the fact that it uses the possibilities of digitalization, does justice to the fundamental role that information and data play for institutions and uses them in the context of empirically based decision-making or experimental legislation. The article uses a highly innovative method to produce extremely illuminating insights – exemplary for jurisprudence dealing with the serious needs of our time.

Paulina Starski’s contribution on political parties (p. 157) is characterized by the fact that she convincingly succeeds in making the antagonisms that determine the role and work of political parties in the present fruitful for a constructive vision of parties in 2030, which does not merely continue the narrative of political parties that are flawed but ultimately without alternative, but understands parties as a Europeanized actor that is changing, especially in its internal party organization, alongside other institutionalized political actors. She succeeds in making a forward-looking contribution to the legal and political science literature (which is only hesitantly turning to fundamental questions about the future of the party state) by providing innovative food for thought that encourages reflection and research on the further development of the party system.

Tomas Dumbrovsky (p. 185) sees political movements as such actors complementing political parties. They are often characterized by a rejection of the concept of universal rights, a main element of constitutionalism, and a turn towards a (limited) collective identity, which is often based on nationalism and sectarianism. Constitutionalism in its »classical« form could only deal with this with difficulty. A transformation to a more political and communal approach to constitutionalism (reminiscent of what is often referred to as »consociationalism« in the USA) is needed in order to capture and integrate this spectrum of relevant institutional actors in public discourse.

It is a great benefit for the reader that the authors have taken up the challenge of using the various elements of constitutionalism to take a visionary look at concepts and institutions that are basically known and proven and have been the subject of extensive legal and political science analysis for decades. Breaking away from established perspectives and looking to the future is a difficult task, and not only because the authors make themselves vulnerable to the tasteless criticism of the supposed »preservers«. This challenge is not only accepted in the present volume, but for the most part mastered brilliantly. It is a stroke of luck for the volume that the editor has given them every freedom in terms of content, focus and methodical approach to their topic. The result is a diverse compilation of visions of the future that shows the entire range of possible developments and makes the book an extremely stimulating read. Populism, climate change, digitalization and globalization run like a common thread through the contributions as triggers and drivers for necessary change and make it clear that these greatest challenges facing society are also leaving their mark on constitutionalism. Only occasionally would one wish for more »courage for vision«, for example in Matthias Klatt’s chapter, which remains very much rooted in the present and lacks a real vision for democracy in 2030, or in Antonios Kouroutakis and his reflections on world trade in 2030.

If concerns about an overly gloomy picture of the near and distant future make you hesitate to pick up this work, we can promise you at this point that it does not indulge in pessimism but, despite all the worrying developments and crises, shows how much potential constitutionalism has to overcome them and constructively adapt to changing circumstances without losing its essentials.

Not only should the authors pick up their predictions again in 2030, readers are also advised to re-read the volume in 2030. Let’s all hope that the follow-up volume in 2030 deserves to be illustrated with the »allegory of good government«.

Emanuel V. Towfigh

[Translated by DeepL]