Constitutionalising patriotism: The simile of the cave?

By V.T. Thamilmaran

This article attempts to evoke some discussion on the emerging discourse on patriotism which has increasingly become a driving force in shaping affairs of State management. The modern State, being a constitutional State by all means, should be considered as a distinct entity from a brutal political power. It is through constitutionalism that the State is tamed and rationalised in all of its activities. The banner goes as the rule of law, in all jurisdictions.

However, going by the recent events in the post-Cold War world, what becomes manifestly evident is the arduous challenge posed by patriotism to constitutionalism and the responsive compulsion on the part of the State in a manner that is not always within the expected civic limits of a tamed and rationalised entity. Hence, there arises the need to revisit the scope and functional characteristic of the concepts of constitutionalism and patriotism in the modern world.

The numerous writings on constitutional patriotism, by castigating both liberal nationalism and national patriotism, attempt to promote a universalistic approach to political attachment of citizens to a particular nation State. Here, nationalists are seen as adopting the particularistic approach in having their loyalty pinned to the identity which is represented by their State. The attachment is purely based on the belief that loyalty results from identity. In contrast, constitutional patriotism is understood as ‘a civic form of loyalty’, a model based on parent-child relationship. In this context, loyalty results from a particular ‘political morality’.

Building on this idea of political morality and by examining the conceptual underpinning of these two concepts, this brief intends to go beyond the constitutional patriotism of Juren Habermas and argues that patriotism should be constitutionalised by adopting universal standards of ‘improvement’ via adhering to the principle of rule of law. It is argued that without ‘rule of law’ conformed to universal standards, patriotism is nothing but self-destructive. Again, the metaphor of parent-child relationship is invoked to elaborate this point.

It is attempted to look at the objective criteria of reasons for which a person becomes a patriot by loving his/her country and taking pride in it.

Constitutionalism and patriotism

Constitutionalism does not simply mean strict adherence to law. Not even the submission to the letter and spirit of the constitution. James Tully observed that “in modern constitutional polity, democracy is unavoidably linked to law. It suggests that, first of all, there should be a set of higher values and principles on which the (constitutional) polity has voluntarily agreed to come together and accordingly adopted the procedure for its ‘will formation’. This is what is meant by rule of law. In other words, the principle of constitutionalism clearly draws the distinction between rule by law and rule of law. In the latter instance, constitutionalism demands that even the will of that polity should not be exercised unreservedly but subject to those values and principles on which they have already agreed upon. It means that rule of law in a constitutional democracy sets limit on the very people’s sovereign self-determination. 

Accordingly, the will formation of the polity cannot violate human rights that ‘have been positively adopted’ as basic features or fundamentals of a constitution.Whereas patriotism, on the other hand, necessarily demands distinctiveness from “others” and for the purpose of it, sometimes, forces to forge an identity on the basis of convenient differences. Racial, ethnic, religious and linguistic differences could help the patriots to identify the others very easily, but, of course, with a sense of enmity. Furthermore, they don’t see any problem in supporting the enactment of any (positive) law for the sake of maintaining the status quo. This would either create a new group of minorities who would be totally alienated from the mainstream politics or marginalise the existing numerical minorities.

As opposed to constitutionalism, patriotism does not bother about equating political majority with numerically permanent majority within a State. The rise of nationalism in the aftermath of the Cold-War clearly demonstrates this phenomenon where what we witness is that all groups of people want to become a permanent majority for the sake of enjoying the power legitimately owned by the political majority. When the State responds to this desire of different small groups with much political clout, political morality bids farewell and particularistic narratives become success stories for the patriots. 

The sliding side of this exercise lies in the fact that they may even lead to the point where justification of assimilation policies adopted by a majoritarian State could be actively supported by the patriots. It has been proved time and again the possibility of evil regimes becoming led by patriots.Since these dangers were experienced by many of Germans by themselves during the World War II, they started to look for the way out and came with the idea of constitutional patriotism.

Constitutional patriotism

Although, originally, the concepts of constitutionalism and patriotism were forged together by some German scholars like Dolf Sternberger in the 1970s, it is the German philosopher Jurgen Habermas who started the academic discourse on the theory of constitutional patriotism almost during the same period.

The theory caught the attention of many academics in Germany as a response to ‘the general moral bankruptcy’ that engulfed the German society in the aftermath of the World War II. This academic treatise focused on the need to address the demand for a common German identity and thereby create a sense of ownership of affairs of a State in the minds of the citizens and advocating a form of civic empowerment. For this purpose, he advocated constitutional patriotism going beyond constitutionalism in legitimiding patriotism coupled with political morality.

However, Habermas’ conception of constitutional patriotism has created more confusion and invites severe criticism for varying reasons, one of which is the allegation that it is more Eurocentric and thereby loses its applicability as a universal theory. Also, with the unification of Germany, his theory of constitutionalism based on citizens’ mutual justification of political rule to each other becomes redundant. It doesn’t mean that the theory’s contribution to current constitutional and political debate on democratic accountability and understanding of the partnership between individual rights and the formation of constitutional norms is underestimated.

Constitutionalising patriotism

Constitutional patriotism presupposes the existence of a set of liberal principles such as freedom of speech and equality. But, since patriotism and nationalism remain as the two sides of the same coin, it is inevitable that one would trigger off the other. This would finally lead to what Habermas himself identified as ‘democratic deficit’ where rule by law is justified for the love of the country.

For anyone who lives in a constitutional State, attachment to his or her constitution is based on the premise that it represents the citizens’ legal and moral values. This representation becomes possible only if those norms are having the characteristics of rationality and legitimacy. If the Constitution does not provide for testing the legitimacy of the very legal system then the document would remain as a springboard for patriotism sans any political morality.

Constitutionalising patriotism simply means identifying those features of a constitution for which the citizens might perceive as ‘worth fighting for’. Consequently, love and loyalty would be tied down to certain core values according to which the ‘child’ should be protected and improved. Improvement is a relative term in constitutional matters as well.

Conclusion

One can only be rational in the practical life by the knowledge of the ‘other’ realm — the realm of pure truth. The real knowledge is only of use if one returns and applies it to the practical life. Those with the real knowledge must be prepared to fight hard for its acceptance and ensure their societies are governed according to the precepts of that knowledge. Otherwise, the cave will continue to smile at us.
(The writer is a law professor at the University of Colombo) – www.sundaytimes.lk