Constitutional patriotism - Cardiff Law School

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ANU E-PressDr Vito BredaConstitutional Patriotism & IdentityConclusionConstitutional patriotism is a theory of deliberative democracy that provides a rationaljustification for the partnership between citizens and their constitution. Starting from theassumption that law is a factual necessity of modern mass society, Habermas proposes atheory of deliberation in which citizens have the possibility of raising and openly discussingany issue that might have constitutional implications. These discussions, depending on theconsensus gathered, might continue in a setting that is perceived to be legally appropriatefor that specific debate. Finally, if the debates over these issues follow some essentialprocedures (e.g. respect for the equality of the speakers, an openness of the deliberationprocess, and acceptance of the best arguments), the decision reached concerning any issuewill be perceived as rational.An important side effect of the open process of deliberation is the formation of a sense ofownership of the decision taken by a deliberative arena. Intervention in the deliberativeprocess transforms individual speakers into committed citizens who perceive theirconstitutional norms as representing a commonly accepted morality. So citizens'constitutional norms are in a patriotic state not self-evident national truths or God given;rather, they are the products of an activity of critical enlistment and persuasion.This conclusion is appealing. It is appealing, at least in Europe, because constitutionalpatriotism cuts across two different topical debates. One debate is over the relationshipbetween state and faith. The second is over the role of national identity. In both debates,constitutional patriotism provides a narrative for a democratically driven endeavour inwhich rationality and constitutional law are married in a common, enlightening project.Are constitutional patriotism's aspirations too good to be true? Probably yes. There is littleconcern regarding the possible implications of considering each deliberation as a set oflogical right answers to constitutional dilemmas. Given that Habermas's deliberativedemocracy lacks a set of criteria for assessing the validity of a claim, logic wants thatprevious decisions be consulted in order to reach logical solutions to constitutional debates.However, without a limit to what could be considered a legitimate reason, there is a strongpossibility that previous decisions might greatly reduce the quality and quantity of thedeliberative process. Recall that previous decisions reached through a deliberative arena areperceived as both logical and morally correct responses to a specify issue. The risk is thatthe process of open deliberation becomes so dependent on the correctness of previousdeliberations that it reproduces, rather than generates, rational decisions. The side effect ofsuch an eventuality is a progressive disfranchisement of individuals and groups whosearguments are not represented in Habermas's rational constitution.This essay tested the possible implications of Habermas's constitutional patriotism indebates concerning both the manifestation of religious beliefs in state institutions and thepartnership between nation and state in a globalised society. In both debates, the possibilitythat a religious or nationalist group might take over the political institution convinced14 | P a g e
ANU E-PressDr Vito BredaConstitutional Patriotism & IdentityHabermas to suggest an exclusion of claims based on unverifiable beliefs. However, theconclusion is posited too strongly. In modern pluralistic societies, the democraticrepresentativeness of constitutional debates depends on protecting the possibility thatarguments are constructed using different perceptions of morality. If these conceptions ofmorality are not protected, constitutional patriotism cannot expect to generate in citizens acommon sense of attachment to their constitutional norms.In conclusion, Habermas's constitutional patriotism has to be read with a grain of salt,particularly when it critiques the framework of the nation-state and religious beliefs withoutconsidering that national identities and religious groups are democratic parts of a pluralisticsociety.Reference type not supported by output styleAnderson, Benedict, Imagined communities : reflections on the origin and spread of nationalism(1983)Bauman, Z., 'Identity in the globalising world' (2001) 9(2) Social Anthropology 121Bauman, Z. and May, T., 'Identity, consumerism and inequality' (2004) 13(3) Sociology Review 24Beck, Ulrich, Power in the global age : a new global political economy (2005)Canovan, Margaret, 'Patriotism is not enough' (2000) 40/3(3) British Journal of political science 413Ciaran, Cronin, 'On the possibility of a democratic constitutional founding: Habermas and Michelmanin Dialogue' (2006) 19(3) Ration JurisCohen, J., 'Reflections on Habermas on Democracy' (1999) 12(4) Ratio Juris 385Cohen, Joshua, 'Deliberation and Democracy' in William Rehg (ed), Deliberative democracy : essayson reason and politics (1997) 35Cohen, Joshua and Sabel, Charles, 'Directly-Deliberative Polyarchy' (1997) 3(4) European Law Journal313Habermas, J., 'Citizenship and National Identity: Some reflections on the future of Europe' (1992)12(1) Praxis international 1Habermas, J., 'The European Nation-State and the Pressures of Globalization' (1999)Review 46New Left15 | P a g e
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Constitutional patriotism - Cardiff Law School

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