“Constitutional Technicity”: Displacing Politics through Expert Knowledge

I. Constitutional Romanticism

What I am calling “constitutional romanticism” has been widely discussed in the field of political theory, and it assumes a plurality of forms. It often appears as an interest in the origins of foundational power or authority. Some forms are preoccupied with the idea that pouvoir constituant cannot be captured within pouvoir constitué; there is something elusive or sacral about the animating force of the constitution that resists transcription into textual form. It may be seen as a mystical source of authority that cannot be concretized or made fully present, as with the figure of the lawgiver, the “general will,” or as an absolute that resides in the act of foundation. Many romanticist approaches are concerned with issues of transcendence and immanence; that is, with whether this source of authority comes from outside or resides within the same frame of what is founded. Other romanticisms may include the idea that a constitution should preserve some of the animating indeterminancy of foundation within the constitution itself, or the need to preserve a space for radical political potential or revolutionary spirit. Finally, some romanticisms regard constitution-making as directed toward a telos of peace or unity, cathecting the constitution with a kind of sacral transformative power.

The earliest constitutions framed in the eighteenth century were products of political revolutions. Their establishment of new political orders appeared as the outcome of a revolutionary spirit grounded in popular agency: the French Declaration of the Rights of Man and the Citizen proclaims that the sovereignty of the French Republic resides in the nation. ⁴ Yet many thinkers have noted a kind of impasse between popular agency and pouvoir constituant, as with Rousseau’s famous observation that “Gods would be needed to give men laws.” ⁵ Some contemporary readers of Rousseau have argued that this claim designates a sacral source of supreme authority, suggesting a liberal theology of sorts at the center of modern constitutional thought. ⁶ Hannah Arendt’s well-known account of the American founding claims that “the truly revolutionary moment in constitution-making” is “the act of foundation,” where the “absolute” resides in this act of beginning. ⁷

In one way or another, these romanticist texts attempt to theorize the figure of the lawgiver and its source of authority as a transcendent or sacral power. Other approaches presume that pouvoir constituant resides within the polity as an immanent force. Here constitutional moments are thought to produce social ruptures that harbor progressive political possibilities. ⁸ Some commentators are particularly concerned with preserving the revolutionary potential of the founding. For example, Antonio Negri claims that there is a revolutionary-counterrevolutionary dialectic between (active) constituent power and (reactive) constituted power. Negri worries that constituent power and its liberatory potential risks being flattened through translation into constituted law, and he calls for revivifying the “radical character of the foundations of the concept of constituent power.” ⁹ Here a more radical “romanticism” takes the form of a desire to preserve political potential by resisting constitutional determinism, retaining an “originary and liberatory quality” of pouvoir constituant.

Finally, constitutional romanticism may be more teleological; that is, it may be oriented toward producing pacific political and social outcomes such as unification and political transition. Speaking at the founding conference of the Organization of African Unity in 1963, Ghanaian president Kwame Nkrumah attempted to persuade representatives from newly independent African states to establish a pan-African constitutional structure, arguing that

We meet here today not as Ghanaians, Guineans, Egyptians, Algerians, Moroccans, Malians, Liberians, Congolese or Nigerians, but as Africans. Africans united in our resolve to remain here until we have agreed on the basic principles of a new compact of unity among ourselves which guarantees for us and our future a new arrangement of continental government. ¹⁰

As with Kant’s ideal of “perpetual peace” through a cosmopolitan federation of states, Nkrumah envisioned a pan-African “continental government” forged through a “compact of unity” with its own executive powers as the basis for pacific relations. Contemporary transitology literature harbors similar romanticist visions of the transformative power of constitution-making. For example, Ruti Teitel argues that the paradigmatic eighteenth-century relationship of the constitution to the polity fails to account for political developments relating to constitutionalism in the latter half of the twentieth century, which was characterized by numerous transitions from authoritarian to democratic regimes. For Teitel, these developments are better explained by the notion of the “transitional constitution,” which serves the purposes of conventional constitutions as well as “more radical purposes in transformative politics.” ¹¹ This more consequentialist romanticism still shares attributes of the other forms. As an orientation, constitutional romanticism may exhibit a reverence toward the pouvoir constituant or a desire to preserve indeterminacy and political potential in the pouvoir constitué, but above all it is aspirational: it presumes that a constitution contains the promise to ground a pacific political community.

II. Constitutional Civility

If romanticism is an external diagnosis of a quality permeating certain approaches to constitutions and the powers which produce them, then “civility” describes an internal view: that is, how actors engaging in practices of constitution-making view their own objectives. Romanticism may be thematically tied to questions of immanence and transcendence – the “from where” of constitutionalism, as well as a concern with preserving radical revolutionary potential or producing a telos of peace, whereas civility is something to be imparted by various actors engaged in territorial occupation, decolonization, and the work of “nation-building.” For these agents of constitution-making, whether contemporary technical advisors or mid-century colonial powers, civility serves as a guiding norm or aspiration. It may be directed toward replicating familiar forms of political order or perhaps even favorable conditions for trade. From without, however, this orientation can appear as an extension of notions of “trusteeship” or as a euphemism for juridical impositions. Constitutional civility also suggests a certain kinship with the colonial “civilizing mission.” The term invokes the political dream of the colonial powers during the period of decolonization: a desire to produce postcolonial states in their own image, and a desire to produce civility between nations for their own economic purposes. Civility may serve as a more palatable justification for intervention, occupation, and constitution-making, as with U.S. involvement in the drafting of the transitional legal framework that would eventually structure the production of an Iraqi constitution. ¹²

Two exemplary forms of what I call “constitutional civility” are Japan’s 1946 Constitution drafted under U.S. occupation and the constitutions developed before and during the transition from former colonies to independent states. The Japanese constitution was drafted in English in roughly a week by American legal officers. ¹³ A eulogy for one of the drafters, “who at 22 almost single-handedly wrote women’s rights into the Constitution of modern Japan,” ¹⁴ reveals the degree of influence wielded by external actors over the normative content of this foundational text. The contemporary provision of assistance in constitution-drafting is not so overtly interventionist, but aspects of “constitutional civility” carry over into the phenomenon of “constitutional technicity” considered in the following section.

If the constitution of Japan is one telling instance of civility as an orientation, the texts and practices of constitution-making during the period of decolonization provide another. Colonial powers attempted to implement constitutions in the colonies they were leaving before or during decolonization, exerting a widespread “formative influence.” ¹⁵ Before decolonization, colonial state-building projects – including constitution-making – were “laboratories,” in the words of one commentator, “for the liberal reformist fantasy that whole peoples could first be grasped as objects of knowledge, and then reconstituted as political subjects through long-term intervention and oversight.” ¹⁶ This oversight continued through the period of decolonization. Colonial authorities introduced legislative assemblies and appointed key political actors from out of their subject populations, bringing them to London, Paris and Brussels to shape the transition to independence. These individuals were often urban elites whose power was shored up further through their complicity with the withdrawing colonial authorities.

These processes frequently yielded post-independence constitutions that reproduced the presumptions and forms of the colonial polity. For example, the constitutions of the territory of Cameroon that had been formerly under French influence as well as the newly independent Côte d’Ivoire were modeled after the 1958 constitution of the Fifth Republic of France; the Democratic Republic of Congo’s 1960 constitution was based upon the constitution of Belgium. Constitutional drafting committee membership was typically determined by the colonial authorities and negotiations would often transpire at the former colonial center. The British hosted constitutional conferences at Lancaster House in London for a number of their former colonies. Reflecting on this prior experience during Zimbabwe’s constitutional negotiations in 1979, the conference chairman remarked,

our proposals are comparable to the basis on which the United Kingdom has granted independence to other former dependent territories, in particular those in Africa. We have no doubt, therefore, that a solution on this basis will be accepted by the international community, as giving effect to the principles we have accepted in granting independence to other former dependent territories. In the case of Rhodesia, as in all other cases, a constitution must take account of special circumstances. But the broad lines of independence constitutions are clear enough … ¹⁷

These efforts to replicate “principles” and “broad lines” derived from the former colonial power as projects of constitutional civility also produced sites of resistance. In response to the chairman’s remarks, and perhaps in a subversive moment of “sly civility,” ¹⁸ a member of the Zimbabwean delegation remarked,

I repeat what you yourself said yesterday, Mr. Chairman: in the case of Zimbabwe Rhodesia, as in all other cases, the constitution must take account of special circumstances … History has shown that many constitutions which have been agreed [at Lancaster House] have not lasted for any appreciable period. We do not want the same thing to happen to us. ¹⁹

Former colonial powers sought to disseminate principles of governance through constitution-making processes, extending normative influence as well as concrete distributions of power beyond the colonial period. In addition to states, the League of Nations’ Mandate System and its successor United Nations Trusteeship Council also engaged in practices of constitutional civility through shepherding former colonial territories to independence. ²⁰ As a former United Nations trust territory, for example, Namibia received UN assistance with its 1990 constitution. The legal framework of East Timor’s constitution-making process was established by the UN Transitional Authority, which had previously exercised all legislative and executive power in the territory for several years. United Nations constitutional assistance has been deployed under peace missions mandated by the UN Security Council and as development assistance through the United Nations Development Program. ²¹ Increasingly this assistance is said to be carried out in the interests of peace and security as well as democracy promotion: a 2009 UN policy framework for constitution-making processes notes that they “are a central aspect of democratic transitions, peacebuilding and state-building.” ²²

The degree of constitutional civility’s interventionism has shifted over time, and it is exercised through different techniques and vocabularies. Even so, as Nehal Bhuta notes, “[t]he new nation-building looks a lot like its discredited imperial predecessor.” ²³ Some scholars have pointed to the tension between liberal commitments to self-determination and the “imposed” constitutionalism carried out under conditions of occupation, such as in Iraq, Afghanistan, East Timor, and the former Yugoslavia. ²⁴ It would appear that the process of constitution-making is less driven by fealty to the principle of self-determination as it is by the normative force of civility, which assumes various appearances as a concern for security and for promoting transition. Civility has become bound up with “transitology”: Bosnia-Herzegovina serves as an extreme example, where the constitution emerged from out of peace negotiations between warring parties culminating in the Dayton Peace Agreement. ²⁵ The externally drafted constitution is appended as an annex to the Agreement, appearing symbolically as a constitutional afterthought to a civilizing process. Rather than a product of political revolution or a pact between a people and their government, the constitution appears as a means to an end of conflict – a technique, an element of a “toolkit” or “peacebuilding package.”

III. Constitutional Technicity

“We live in an era of constitution-making,” a report of the United States Institute of Peace asserts, noting than half of the nearly two hundred existing national constitutions have been either reformed or written in the last thirty years. ²⁶ These constitutions have been increasingly aided by external actors with their own mandates and normative interests. This prevalent orientation to constitution-making thus moves beyond the existential questions of the identity of the figure of the lawgiver or constituting power and its place within the system. It also shifts from constitutional civility’s currency of moral obligation to provide tutelage and assistance. Technicity instead casts constitution-drafting practice as a domain of technical expertise inhabited by neutral and politically divested actors.

As a practice or tactic, constitutional technicity is historically tied to the rule of law “revival” associated with the post-Cold War period. ²⁷ As Balakrishnan Rajagopal explains, “the rule of law has come to be considered the common element that development experts, security analysts, and human rights activists agree upon, and as the mechanism that links these disparate areas.” ²⁸ Despite widespread agreement on its importance, however, there appears to be less consensus on the source and content of the rule of law: instead it appears as a kind of liberal theology. ²⁹ In its elusive origins and pacific telos, the ideal of the rule of law seems to suggest a trace of romanticism within constitutional technicity. Rather than the lawgiver or revolutionary spirit, the rule of law is now taken to be the animating force behind constituting and constitution-making, with a plurality of actors carrying out work in its name. In a circular way, then, the rule of law appears as both the underlying force behind and the desired outcome of constitution-making practices under the sway of constitutional technicity – what Derrida might describe as “a sort of fabulous retroactivity.” ³⁰

Although constitutional technicity has gained ground during the post-Cold War period, the phenomenon of technicity is not new and may be a consequence of modern law itself. Drawing upon Heidegger, Shalini Satkunanandan diagnoses the particularly modern view of law as “an orderable product of human positing.” ³¹ Satkunanandan takes care to explain that what Heidegger describes as “technique” is not to be mistaken for technology, but is rather “an almost inescapable manner of thinking” that offers up the world – and law – as human constructions that can be deployed toward whatever ends we choose. If a certain romanticism obtains in constitutional technicity through invocations of the rule of law, this romanticist strain has no sacral character or attributes of faith, as with some forms of constitutional romanticism; instead it harbors a presumption of human mastery and the orderability of social life through law.

Although technical approaches to constitution-making have appeared before – as with Ghanaian president Kwame Nkrumah’s 1963 appeal for experts to “work out the machinery for a new government of Africa” ³² – I suggest that contemporary practices surrounding the provision of expert advice are of a different order. What “constitutional technicity” attempts to capture is the degree to which it has developed as a discrete field of knowledge and as an object of expertise. This is perhaps best demonstrated by the emergence of the constitution drafting handbook as a cultural phenomenon. In the past two decades a number of handbooks on constitution drafting have circulated between civil society organizations, state actors, and technical advisors, serving as a means of consolidating knowledge about constitution-making practices. These texts are notable for several claims. First is their presumed neutrality, which is defined as independence from political interests. For example, the Stockholm-based International Institute for Democracy and Electoral Assistance (“International IDEA”) notes in its front matter that

This publication is independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council of Member States, or those of the donors. ³³

A similar disclaimer is made by Geneva-based nonprofit Interpeace, an “independent, international peacebuilding organization and a strategic partner of the United Nations” in its handbook on “constitution-making and reform.” ³⁴ These disclaimers reveal a desire to shield the authors from any allegations that they may be pursuing their own political interests, or that the donor-supported economy of constitutional assistance has a particular political stake. “Political” in this vocabulary is seen as something akin to partisanship, particularly in settings where there may be multiple conflicting parties attempting to negotiate a transition; these handbooks thus attempt to reinforce the idea that the field of law – with the constitution as a kind of Kelsenian Grundnorm – is distinct from politics in its origins and applications.

In addition to the claim of apolitical neutrality, this field of knowledge also presumes that there has been a normative convergence around universalizable principles. Like the chairperson at the Lancaster House constitutional negotiations for Zimbabwe insisting on shared principles and “broad lines” of independence constitutions, contemporary constitution-making handbooks maintain that they are merely recounting principles and practices that enjoy widespread consensus. In his foreword to the International IDEA handbook, for example, the former president of Mauritius claims that “[t]here is little need to reinvent the wheel to deal with issues such as incorporating human rights in constitutions, guaranteeing the independence of the judiciary, subsuming security forces under civilian democratic control, and guaranteeing each citizen the exercise of a free, fair and credible vote.” ³⁵ Yet these publications do not simply reflect what they perceive as an existing consensus. They also actively promote the universalization of these norms, as the handbook itself notes:

Constitutions are now being framed in an age when the dispersal of norms and of the principles of good governance is fairly widespread in all of the continents of the world. This would have taken longer without the role of international organizations, in particular the United Nations and others such as International IDEA. ³⁶

The handbook’s invocation of “good governance” captures what I argue is the trace of constitutional civility within constitutional technicity: “good governance” is now the language through which this external oversight and tutelage appear. This is a softer civility and less overt, yet its very terminology suggests the presence of an external actor evaluating whether internal forms of governance are sufficiently “good.” These evaluations are made by United Nations actors and donor governments, in many cases the same entities that participate in or support the constitution-making practices carried out under the influence of constitutional technicity.

For its part, the United Nations issued a 2009 policy framework on constitution-making as an effort to articulate its own guiding principles “derived from lessons learned” from its own past “ad hoc approaches.” Among other things, these principles include the need to ensure “national ownership,” to support “inclusivity, participation, and transparency,” and to mobilize “a wide range of expertise.” On the latter, the policy document notes that

Constitutional assistance requires mobilizing and coordinating a wide range of expertise, both within and outside the UN system to ensure access to international and comparative best practice. Best practice can contribute to expanding national actors’ knowledge of options and help them explore solutions that are technically sound and likely conducive to long-term stability. While national authorities should play the main coordination role, the UN should encourage partnerships with national and international actors, regional organizations and other expert networks both to coordinate the offers of assistance by other actors and to allow national and transitional authorities to draw more effectively on the best expertise available. ³⁷

In addition to a presumed normative convergence around principles such as inclusivity and national ownership, this description of the state of the field reveals an array of actors from “expert networks” seeking to influence constitutional outcomes. These actors include state-funded research organizations such as the Max Planck Institute for Comparative Public Law and International Law (MPIL) based in Heidelberg, which hosted delegations from the government of Sudan and the Sudan People’s Liberation Movement in November 2002 “under the direction of international experts” in order to “elaborate a first constitutional draft for a peaceful Sudan.” ³⁸ Perhaps in order to avoid replicating some of the premises of constitutional civility, organizations such as MPIL take care to emphasize that their support is provided upon request from states and domestic actors, as is the case with a constitution-drafting manual produced following a request for constitutional support from “Somali stakeholders.” ³⁹ Yet these texts harbor tensions between the particular and the general: namely, the need to emphasize the importance of tailoring principles to particular contexts while also speaking with sufficient generality to preserve a space for external “expertise.” Sometimes this generality yields flat, cursory readings of complex histories, as with this account of constitution-making during decolonization that effaces the role of former constitutional powers:

In many countries, in particular on the African continent, constitutionalism has come along with decolonization. On the one hand, the people’s exercise of their right to self-determination aimed at gaining independence and discarding the colonial powers. On the other hand, this exercise of the people’s right to self-determination can be seen as a step towards constitutionalism. ⁴⁰

Constitution-making handbooks adopt formulaic conventions and structures; in this case, through a narrative of colonialism, decolonization, and finally self-determination enhanced through constitutionalism which fails to address the complex imbrications of constitutionalism with the former colonial period and its attendant power relations. Such texts frequently grant that constitutions must be tailored to national contexts, but the very fact that the “expert” or “technical” advice is being provided from outside limits the extent to which this tailoring takes place within the handbooks themselves. Even the widespread assertion that nationals should “maintain ownership of the process,” ⁴¹ a trace of constitutional romanticism wherein agency is seen as immanent to the nation, is rarely elaborated upon and appears to work more as a kind of Kantian ideal than as a concretely grounded practice. Notions of “ownership” tend to be linked to public consultations and popular constitutional referendums, such as in Rwanda in 2003 and Burundi and Iraq in 2005. ⁴² Yet even a former technical advisor for the Iraqi constitutional process notes that “the constitutional drafting process is understood by all participants as a negotiation among local political elites and the occupying power and international organizations capable of exerting pressure … The opinion of the general public, real or imagined, functions as only one – often relatively weak – constraint on the negotiations.” ⁴³

Finally, constitutional technicity produces different relationships between the state and the provider of constitutional assistance. With constitutional civility the figure of the external lawgiver – the former colonial power, the trustee, or the occupying authority – helps to craft the nascent constitutional state. Yet the power dynamics of the agent of constitutional technicity is more opaque: the UN representative, civil society organization or technical expert provides presumptively neutral advice and assistance, sometimes at the invitation of the state. In some instances this even takes on the structure of patron and client, as is the case with the Washington, D.C.-based Public International Law & Policy Group (PILPG), a self-described “global pro bono law firm” that has provided legal assistance in constitution drafting to states including Afghanistan, Bosnia-Herzegovina, Iraq, Kosovo, Libya, Montenegro and Nepal. ⁴⁴ Among PILPG’s offered services are a “Post-Conflict Constitution Drafting Handbook” and the ability to draw upon “Affiliated Experts” who serve as pro bono consultants to client states. The firm’s website features a selection of “client testimonials” casting the state representative or domestic actor in the role of a satisfied customer:

PILPG filled “in the decisive gap between the rhetoric and reality of an open society based upon a functioning democratic legal system and constitution.” — Former Bosnian Foreign Minister

The assistance of PILPG, and its directors, has substantially contributed to the ability of Afghanistan to transition to a stable democratic state . . . — Daoud Yaqub, Director of Policy & SSR, National Security Council, Islamic Republic of Afghanistan

PILPG has provided us expert assistance and capacity building on many occasions, and has been one of our most trusted resources in the peace process. — Spokesperson for a Darfur Movement ⁴⁵

The discourse of constitutional technicity employs market-based terminology, with consultants, agreements, contracts, and client-customers, all oriented toward the production of a successful product. ⁴⁶ In addition to the drafting of the constitution itself and the attendant “best practices” and “lessons learned” from past experience, additional markets open for external actors to assist with its implementation. This technical enterprise is largely populated by Northern organizations engaging in practices of “training the trainers” on such presumptively neutral principles as the separation of powers and human rights. ⁴⁷ This work is regarded as technical rather than political, reflecting a broader shift in contemporary constitution-making: the concern for the identity of the lawgiver or the source of the pouvoir constituant recedes as the discourses of the rule of law and good governance prevail.

What is lost and displaced by constitutional technicity, if we grant that modern law is always-already under the sway of technique? Is this trope of constitution-making enough of a departure from the instrumental or consequentialist approaches already harbored within constitutional romanticism or constitutional civility? We can return here to Kwame Nkrumah’s political dream of constituting a pan-African polity, a dream that appeared to cut across these three tropes, revealing their porous interrelatedness. “Only African unity can heal this festering sore of boundary disputes between our various states,” Nkrumah claimed, envisioning a telos of peace forged through the civilizing force of a constitution. He also called for the provision of expert advice to assist with establishing a constitutional framework. The key difference, however, is the distinct presence of politics: “African Unity is, above all, a political kingdom which can only be gained by political means.” ⁴⁸

Writing shortly after the end of the Cold War, at the dawn of the new constitution-building era, Mahmood Mamdani observed that “the historical routes to the rule of law and the concept of constitutionalism are several and contradictory. The terrain has never been and cannot now be uncontested.” ⁴⁹ Constituting and constitution-making cannot be reduced to technical expertise and political neutrality – even such claims themselves harbor a disavowed politics. The technicity of modern constitution-making thus itself works as a displacement – a move of the emplacing power of the constitution to found a polity away from what Mamdani and others call “social context” and what Heidegger would refer to simply as “world.” What it appears to move toward is a professionalization of pouvoir constituant, and with it a new constitutional epistemology.