3 - The historical formation of modern constitutionalism: the empire of uniformity

Summary

Constitutions ancient and modern

This chapter is a survey of the tendency to cultural uniformity in the formation of the language of modern constitutionalism. It answers the question of why it is so difficult to recognise and affirm cultural diversity in the schools of modern constitutionalism discussed in the last chapter. Or, put differently, why does the black canoe appear to us as a ‘strange multiplicity’, rather than as a normal negotiation among members of a culturally diverse society over how they are going to recognise and accommodate their differences and similarities over time as they paddle the ship of state? The answer is that the language of modern constitutionalism which has come to be authoritative was designed to exclude or assimilate cultural diversity and justify uniformity.

The design is difficult to see because this ‘modern’ language has become the customary way of thinking about, reflecting on and envisioning a just constitutional order. Since all three schools share it, disagreeing only over the interpretation and application of some of its terms, forms of critical reflection and narratives, the debates over the legitimacy of cultural diversity reinforce the shared vision. As Wittgenstein described this sort of philosophical problem: ‘A picture held us captive. And we could not get outside it, for it lay in our language and language seemed to repeat it to us inexorably.’

Hence, the tendency is not to notice the philosophical and ideological debates over the last three hundred years between the successful modern theorists and the defenders of diversity who struggled against them in theory and practice.