David Law

Constitutional Archetypes

PUBLISHER
Texas Law Review
DATE
2016
 

Abstract

It is a core function of constitutions to justify the existence and organization of the state. The ideological narratives embedded in constitutions are not fundamentally unique, however, but instead derive from a limited number of competing models. Each model is defined by a particular type of justification for the existence and organization of the state, and by a symbiotic relationship with a particular legal tradition. These models are so ubiquitous and elemental that they amount to constitutional archetypes. 

This Article contends as an empirical matter that constitutional narratives of the state boil down to a combination of three basic archetypes–namely, a liberal archetype, a statist archetype, and a universalist archetype. The liberal archetype is closely identified with the common law tradition and views the state as a potentially oppressive concentration of authority in need of regulation and restraint. In keeping with this conception of the state, liberal constitutions emphasize the imposition of limits upon government in the form of negative and procedural rights, as well as a strong and independent judiciary to make these limits effective. The legitimacy of the state is contingent upon adherence to constitutional limits. Constitutions in this vein are largely agnostic as to what goals, if any, society as a whole should pursue through the mechanism of the state. 

The statist archetype, in contrast, is associated with the civil law tradition and hails the state as the embodiment of a distinctive community and the vehicle for the achievement of the community’s goals. The legitimacy of the state rests upon the strength of the state’s claim to represent the will of a community. Consequently, constitutions in this vein are attentive to the identity, membership, and symbols of the state. Other characteristics of a statist constitution include an emphasis on the articulation of collective goals and positive rights that contemplate an active role for the state, and an obligation on the part of citizens to cooperate with the state in the pursuit of shared goals. 

The universalist archetype, the newest and most prevalent of the three, is symbiotically intertwined with a post-World War II, post-Westphalian paradigm of international law that rests the legitimacy of the state upon the normative force of a global legal order that encompasses both constitutional law and international law. Characteristics of this archetype include explicit commitment to supranational institutions and supranational law and reliance on generic terms and concepts that can be found not only in a variety of national constitutions, but also in international legal instruments. 

Empirical evidence of the prevalence and content of these three basic archetypes can be found in the unlikeliest of places – namely, constitutional preambles. Preambles enjoy a reputation for expressing uniquely national values, identities, and narratives. If there is any part of a constitution that ought not to be reducible to a handful of recurring patterns, it is surely the preamble. Yet analysis of the world’s constitutional preambles using methods from computational linguistics suggests that they consist of a combination of the three archetypes. Estimation of a structural topic model yields a quantitative measure of the extent to which each preamble draws upon each archetype. 

The empirical analysis also highlights the growing commingling and interdependence of constitutional law and international law. The semantic patterns that characterize universalist preambles mirrors those found in leading international human rights instruments. The adoption of the same conceptual and normative vocabulary by both universalist constitutions and key international legal instruments signals the emergence of a globalized ideological dialect common to both domestic constitutional law and public international law. The rising use of this common language by constitutional drafters since World War II is a quantitative indicator of the growing extent to which constitutional law and public international law influence each other.

Citation

David S. Law, Constitutional Archetypes, 95 Texas Law Review 153-244 (2016).
 

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