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Rousseau ’ S Constitutionalism Austerity and Republican Freedom

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Rousseau ’ S Constitutionalism Austerity and Republican Freedom Rousseau ’ s Constitutionalism Austerity and Republican Freedom Eoin Daly OXFORD AND PORTLAND, OREGON 2017 Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Bloomsbury Publishing Plc Kemp House 50 Bedford Square Chawley Park London Cumnor Hill WC1B 3DP Oxford OX2 9PH UK UK www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland , OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © Eoin Daly 2017 Eoin Daly has asserted his right under the Copyright, Designs and Patents Act 1988 to be identifi ed as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright © . All House of Lords and House of Commons information used in the work is Parliamentary Copyright © . This information is reused under the terms of the Open Government Licence v3.0 ( http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3 ) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/ , 1998–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50990-347-4 ePDF: 978-1-50990-349-8 ePub: 978-1-50990-348-1 Library of Congress Cataloging-in-Publication Data Names: Daly, Eoin, author. Title: Rousseau’s constitutionalism : austerity and republican freedom / Eoin Daly. Description: Portland, Oregon : Hart Publishing, 2017. | Includes bibliographical references and index. Identifi ers: LCCN 2017006466 (print) | LCCN 2017008742 (ebook) | ISBN 9781509903474 (hardback : alk. paper) | ISBN 9781509903481 (Epub) Subjects: LCSH: Rousseau, Jean-Jacques, 1712–1778. | Constitutional law—Philosophy. | Constitutional law—Poland—History. | Constitutional law—France—Corsica—History. Classifi cation: LCC K457.R6 D35 2017 (print) | LCC K457.R6 (ebook) | DDC 342.001—dc23 LC record available at https://lccn.loc.gov/2017006466 Typeset by Compuscript Ltd, Shannon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall To fi nd out more about our authors and books visit www.hartpublishing.co.uk . Here you will fi nd extracts, author information, details of forthcoming events and the option to sign up for our newsletters. 3 The Constitution of Symbol and Ritual By having their minds constantly employed on the arts of luxury, [men] grow effeminate and dastardly. 1 I. Introduction While Rousseau ’ s constitutional projects for Corsica and Poland focus a great deal on socio-economic issues and specifi cally on the goal of fostering a virtu- ous autarky, they also place very strong emphasis on symbols, rituals and cer- emonies as an integral aspect of the constitutional order and as an instrument of republican stability in general. While such matters occupy quite a peripheral role in our contemporary, written Constitutions and attract relatively little attention in constitutional scholarship, Rousseau ’ s symbolic and ritual focus is, nonethe- less, arguably quite recognisable in our contemporary constitutional cultures and practices. In fact, it has been argued that Rousseau ’ s constitutional prescriptions for pageantry, festivals, feasts and so forth, presage and resemble in many ways the mild ceremonial practices of our contemporary states, and their function in inte- grating citizens in a common identity. In turn, Rousseau might be thought of as a progenitor of the civic ritualism found in modern constitutional cultures. How- ever, I will argue that despite the apparent parallels, symbols and rituals occupy a wholly different, more radical function in Rousseau ’ s constitutionalism com- pared to ostensible later equivalents. In particular, his rituals and symbols aim not to supplement, but to supplant entirely the private ritual and symbolic practices of liberal society, which he views as fundamentally threatening to the republican order and its virtues. Thus while Rousseau ’ s arguments as to the corrupting effects of cultural practices are well known, I will argue that he offers a critique, pre-emptively perhaps, as to the ineffi cacy, futility and indeed the hypocrisy of piecemeal 1 Adam Smith , Lectures on Jurisprudence ( Indianopolis , Liberty Press , 1982 ) 540 . 74 The Constitution of Symbol and Ritual ritual and symbolic practices in liberal states whose social orders are marked by complex hierarchies rooted in distributions of cultural and symbolic capi- tal. His civic ritualism can only be understood in light of his critique of liberal culture as an instrument of distinction and social hierarchy. Through the lens of Rousseau ’ s wholly more radical understanding, I will consider the tensions, limits and contradictions of civic ritualism, in the broad sense, as it exists in con- temporary constitutional culture. Echoing the book ’ s wider theme, I will argue that Rousseau ’ s focus on the ritual and symbolic dimensions of constitutional design helps to illustrate a liberal blindspot in contemporary constitutional thought concerning the source and constitution of domination itself — and par- ticularly its presence in ostensibly innocent and mundane social forms. How- ever, I will also consider how Rousseau ’ s focus on political affect and emotion speaks to a peculiar object of constitutional design — the cultivation and control of the ‘ passions ’ — that is incongruously absent in contemporary constitutional thought, yet which persists, albeit obliquely, in our wider constitutional culture. I will begin by considering why, and indeed how, contemporary Constitutions address the symbolic and the ritual and relatedly, why this question has been neglected in constitutional thought. I will then compare this with Rousseau ’ s treat- ment of symbolic and ritual questions in his constitutional projects, and argue against any meaningful similarity. Finally, I will show how Rousseau ’ s implicit rejection of piecemeal civic ritualism, coupled with his critique of privatised ritual and symbolic practices, help to illustrate a blindspot in liberal democratic consti- tutional thought concerning both the nature and sources of domination in liberal societies, and the function of Constitutions in fostering and channelling the politi- cal passions. II. Symbolism and Ritualism in Contemporary Constitutional Thought Currently, questions of ritual and symbol lie at the margins of constitutional respectability. Fundamentally, the idea that Constitutions might prescribe, enshrine or even gently cultivate the ritual and symbolic life of the state sits uneas- ily with the standard liberal-democratic way of understanding the proper pur- pose and ends of constitutionalism. According to the standard view, Constitutions properly have an allocative or coordinating function that demarcates governmen- tal powers, usually (although not always) a ‘ negative ’ function in limiting the reach of state power through rights, and in some cases — though not traditionally in the Anglophone world — a socially-directive function, social or economic, which ori- ents state power towards particular substantive policies or goals. While such tax- onomies are of course rough and ready and contestable, the problem, in any event, is that constitutional provisions that prescribe say, fl ags or festivals, ceremonies Symbolism and Ritualism in Contemporary Constitutional Thought 75 and anthems, cannot easily be located within any such plausible, standard account of the functions and ends of liberal-democratic constitutionalism. Constitutions properly defi ne the state, its functions and its relation to the people, but — it is assumed — are, or should be indifferent as to the emotional and spiritual life of both. Perhaps this lack of enthusiasm is explained, in part, by a prevailing belief that such constitutional devices serve aims that are illicit or at least highly suspect. In practice, specifi c symbols and rituals may simply represent constitutional expres- sions of cultural or ethno-nationalist politics, placing them beyond the pale of respectable liberal aims. 2 If anything, contemporary Constitutions — far from pre- scribing symbols and rituals — will tend to constrain and regulate their deploy- ment by public authorities (particularly, but not exclusively where they have a religious character). Some of the celebrated landmarks of liberal jurisprudence have involved courts invoking constitutional principles to protect citizens from mandatory participation in symbolic or civic rites 3 — even where such participa- tion takes the abstract form of tax contributions. 4 For example, in West Virginia State Board of Education v Barnette , a majority of the United States Supreme Court concluded that while compulsory fl ag-saluting in public schools served a legiti- mate aim of fostering civic sentiment, patriotism
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