Конституционный дизайн: образ государства и образ эпохи (Constitutional Design: Image of State and Age)

                RANEPA




THE RUSSIAN PRESIDENTIAL ACADEMY
OF NATIONAL ECONOMY
AND PUBLIC ADMINI STR ATIO N




         Igor Bartsits

         Constitutional Design:
         Image of State and Age










              Publishing House “Delo”
              Moscow • 2018

УДК 34
ББК 67









     Igor Bartsits, Doctor of Law, Professor, Director of the Institute of Public Administration and Civil Service (IPACS), the Russian Presidential Academy of National Economy and Public Administration (RANEPA)

     Барциц, И.Н. Конституционный дизайн: образ государства и образ эпохи (Constitutional Design: Image of State and Age): на англ. яз. / И.Н. Барциц. — М. : Издательский дом «Дело» РАНХиГС, 2018. — 56 с. — (Научные доклады : государство и право).



     ISBN 978-5-7749-1387-9



      The purpose of this paper is to comprehend, explore and describe Constitutional Design as a phenomenon of constitutional theory and practice from the perspective of its usage as a criterion for the assessment of the aesthetics, beauty and topology of constitutions, as well as a set of tools of legal linguistics and legal writing. The author pays special attention to the evolution of constitutional design as such, constitutional and legal thought, their dependence on profound changes in the course of development of the society, law, and culture.


УДК 34
ББК 67

     ISBN 978-5-7749-1387-9






      © Russian Presidential Academy of the National Economy and Public Administration, 2018

            Contents







   Introduction ....................................................5

   General Definition of Design.....................................7

   The Notion of Constitutional Design. Does it Have the Right to Exist? ...............................10

   Constitutional Design and Constitutional Model........................................12

   The Image of State and Age .................................... 15

   From Constitution of State to Constitution of Society .................................... 20

   Universalization and Development of Comparativism ............. 22

   Beauty in Constitutional Terms..................................31

   Criteria for Constitutional Design Analysis — Empiric and Aesthetic Rules.....................................38

   Afterword — On Constitutional Design without Metaphors . . . . 45

   References .....................................................48

            Introduction










                                  Constitutional act can be compared with a plaster mask or cast of the live face of reality. But, unlike the mask of plaster, the constitutional mask does not only copy the original, but in many ways determines the future development of its features.
V. N. Durdenevsky [11, p. 9]

                                  Constitutions are made, not found. They do not fall miraculously from the sky or grow naturally on the vine. They are human creations, products of convention, choice, the specific history of a particular people, and (almost always) a political struggle in which some win and others lose. Indeed, in this vein one might even want to argue that our constitution is more something we do than something we make: we (re)shape it all the time through our collective activity.
Hannah Fenichel Pitkin [67, p. 168]

              What should a constitution be like? Being a supreme law, should it, in its form or meaning, reflect any special characteristics of the state or people it is intended to serve? Is there any universal project, which could be used as a gold standard or template by those drafting new constitutional texts? Why do printed versions of the Constitutions of Brazil or India look like hefty books capable of comprising all the European constitutions? Why has the US Constitution been able to successfully avoid modification for two and a half centuries, while France and Russia amend the texts of their fundamental laws on a regular basis? Why are the Constitutions of Germany, Spain or Italy so

5

Constitutional Design: Image of State and Age

             easy to read, while the citizens of the UK or Israel require an explanation of the term “unwritten constitution”?
   This list of questions (which bring to the conclusion that there is no universal formula capable of settling in the best possible way all kinds of constitutional relationships or reflecting in full the diversity of constitutional theories and practices) can be continued endlessly. Similarly, there is no ideal set of guidelines indicating, how a state’s constitution should look in descriptive terms, which legal tools should be used for the purpose of its development, drafting, wording or putting on paper — i. e. what the design of the constitution should look like. Such general idea is not present in scientific literature and, therefore, it is not present in constitutional doctrines or practices of states.
   The diversity of constitutional concepts (so called constitutional designs) and significant differences between them give rise to the question, if the ideal (perfect or optimal) constitutional design is possible, even despite the trends of globalization and universalization or the fact that certain approaches or even wordings can be borrowed by constitution designers (due to the migration of constitutional ideas). There is no unanimity on the issue of the mere applicability of the term “Constitutional Design”. While Gunter Frankenberg states positively that “Therefore “design” characterizes quite appropriately what happens when constitutions are made. According to the standard dictionaries, design captures with a fair amount of precision how constitution making works and is anything but a misleading figure of speech or far-fetched analogy” [43, p. 153], Thomas Ginsburg brings strong arguments against it, “Design implies a technocratic, architectural paradigm that does not easily fit the messy realities of social institutions, especially not the messy process of constitution making” [61, p. 1].