II. Constitutional imagination

Since the term ‘constitutional imagination’ – with a few exceptions^{Footnote 7} – never rose to prominence in legal and constitutional debates, it is, perhaps, appropriate to start by defining what is meant by ‘imagination’. The locus classicus is Immanuel Kant’s Critique of Pure Reason. There, Kant writes that imagination (‘Einbildungskraft’) ‘is the faculty for representing an object even without its presence in intuition’^{Footnote 8}. This may sound abstract, but largely corresponds to the less theoretical use of the term ‘imagination’ in social sciences. Benedict Anderson argued, for example, that a nation is imagined ‘because the members of even the smallest nation will never know most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the image of their communion’.^{Footnote 9} According to Anderson, modern nations are characterised by the fact that their members never materialise as a tangible group at a particular place and point of time. Through newspapers and novels, people ‘imagine’ themselves as similar to thousands of other people they have never seen (and will never meet). In this sense, imagination extends the scope of knowledge beyond perception. Through imagination we imagine things that we have not seen or experienced. The mind-broadening benefits of imagination are of central importance to Arendt’s (unorthodox) Kantian account of imagination, which is developed in her Lectures on Kant’s Political Philosophy. In her view, imagination is an essential component of judgment and a safeguard against moral blindness. One only needs to think of Adolf Eichmann, whom Arendt blames in Eichmann in Jerusalem for his complete lack of imagination, i.e. for his ‘inability to think, namely to think from the standpoint of somebody else’.^{Footnote 10}

How does imagination guard us from conformism and ‘thoughtlessness’? In order to understand this, we need first to understand what imagination does when it represents things that are not present (including other people’s standpoints). Arendt’s focus is on a specific function of imagination, namely the capacity, as Kant writes, ‘to bring the manifold of intuition into the form of an image’.^{Footnote 11} The functioning of images can be synthesised as follows: ‘If I represent what is absent, I have an image in my mind – an image of something I have seen and now somehow reproduce.’^{Footnote 12} It is only through images that imagination can mediate between perception and knowledge. For images provide a tangible instantiation of an abstract idea. Kant’s own example is perhaps helpful for clarifying this idea. Kant writes that if ‘if I place five points in a row (…) this is an image of the number five’.^{Footnote 13} In other words, the five points are not the number five, but an image of it.

Modes of perception and cognition are important to understand why (and how) imagination is central to the act of thinking. However, what matters to Arendt (and for the purpose of the present article) is that images generated by imagination are crucial for the purpose of communicating and expanding knowledge. According to Arendt, in his Critique of Judgment Kant accords to examples essentially the same role in judgments that images have for experience and cognition.^{Footnote 14} Like images examples contain in themselves, or are ‘supposed to contain, a concept or a general rule’.^{Footnote 15} The difference is that images need not be communicable to achieve a certain degree of generality. Examples, by contrast, must appeal and relate to the viewpoints of others to be regarded as images of a general idea. Let me explain.

Unlike images, examples do not only provide a way to move from the particular to the universal. They simultaneously involve the possibility to move from mere subjective perceptions to intersubjectively valid claims. How is this so? Arendt argues that when we give an example to sustain our point – for instance that Achilles is an example of courage – what we ultimately do is to provide a particular instance of a more general concept, whose meaning is, quintessentially, communal rather than private. In this sense, the choice of suitable examples, while essentially subjective, involves the capacity to take into account other people’s views. This imaginative faculty to place ourselves in the place of others, which Kant famously called sensus communis,^{Footnote 16} brings us back to Arendt’s argument about Eichmann’s lack of imagination. According to Arendt ‘Eichmann seemed unable to recognize a connection between himself and other human beings; he could not put himself in the place of others, that act of moral imagination, which is a condition for moral judgment of any kind.’^{Footnote 17}

I shall return to this issue shortly, but before doing so let me point out how constitutional thinking comes close to Arendt’s Kantian conception of imagination. To do so, two analogies can be offered. The first one relates to the use of examples. Like judgments, the practice of constitutional review would be ‘blind’ (to use Kant’s phrase), if it could not rely on examples that are imagined to the extent that they are not present. For the US legal scholar Edward H Levi the ‘basic pattern of legal reasoning is reasoning by example’.^{Footnote 18} What he means by example are essentially precedents, which are called into memory by judges in order to use them as an authoritative or legitimatory basis for current or future decisions.^{Footnote 19}

The second analogy builds and expands on the first. Recall what was said above about examples, namely that an example ‘is the particular that contains in itself, or is supposed to contain a concept or a general rule’.^{Footnote 20} Essentially, the same holds true for the use of precedents in legal and constitutional discourse. Previous decisions can be regarded as precedents only on condition that their underlying ratio decidendi (i.e. the key reason behind a court’s decision) is capable of generalisation.^{Footnote 21} In this sense, precedents too are particular instances of general (legal) rules.

With this in mind, it is tempting to assume that what constitutional imagination does is, in effect, subsuming precedents to general rules. This, however, would be misleading. Imagination is only the first stage in constitutional thinking,^{Footnote 22} it is an instrument of discovery rather than a way of justifying or ordering claims.^{Footnote 23} ‘Imagination prepares the object so that I can reflect upon it, which is to say, judge it’.^{Footnote 24} This means that, upon reflection, poor examples will be rejected; good examples will become to be regarded as suitable precedents.

Of course, this immediately raises the question of what distinguishes poor from bad examples. A formal criterion has already been mentioned: generalisability. As mentioned, a good example is a particular instance of a general rule (or ‘schema’ as Kant calls it). But, again, reflecting upon the exemplarity of a particular instance does not amount to merely subsuming a particular fact under pre-existing legal categories. For Arendt what is distinctive about imagined examples is that they keep their particularity while striving towards universal meaning. Consider the frequently mentioned examples of the American and French revolutions.^{Footnote 25} Clearly, these two revolutions are events of universal significance in the sense that they reveal patterns and motives that can be read into other revolutions. But at the same time it would be reductive to think of these revolutions as mere expressions of a general rule. By doing so, their particular nature would go unnoticed and less could be learned about them.

A comment to anticipate a possible objection is in order at this point, before going on considering the different ways in which imagination operates in constitutional thinking. It may be argued that my use of the term ‘constitutional imagination’ is both too broad and too narrow. It is too broad because it does not take account of the nature of constitutional reasoning as a particular case of legal reasoning in general. On the other hand, it is too narrow because it rests on a defining feature of common law, namely the tendency to proceed from concrete examples and precedents to abstract rules (or ratio decidendi) by means of analogical reasoning.

To the charge of narrowness my reply is, that civil law thinking is not immune to the influence of imagination. It is just that imagination tends to support a more top-down approach, whereby abstract general principles are deduced first and subsequently applied to concrete cases, such that general principles trigger the example-searching activity of imagination, rather than the reverse. But, again, this does not mean that imagining consists in mechanically subsuming a particular example under pre-existing principles. This is for two reasons: First, imagination, as defined above, is never entirely domesticated by reason.^{Footnote 26} It might eventually produce examples that undermine our beliefs, instead of supporting them. Second, and perhaps more fundamentally, the relationship between principles and examples is not one of single-sided dependence, where examples merely replicate what is already contained in principles. Principles too depend on examples to the extent that they are too abstract to be grasped firmly. Put bluntly, we do not know exactly what broad legal principles (such as liberty and equality) mean, until we have assessed the cases in which they apply.

The charge of excessive broadness is more difficult to deal with. Indeed, constitutional imagination, as described above, is not only undistinguishable from legal imagination roughly defined – it is part of it. Some more effort to work out specific features of constitutional imagination is undertaken in the next section, where I will identify and examine uses and practices of imagination that present traits commonly associated with, if not inherent to, modern and contemporary constitutional thinking. The use of and reliance on founding narratives is perhaps the best example of how modern constitutionalism rests on the work of imagination. But that said, I do not want to rule out the possibility that constitutional imagination might encompass practices and ways of thinking that belong to non-constitutional legal realms. Yet it might well be that the shift toward a cosmopolitan constitutional imagination described below (section V) results in stripping constitutional imagination of some of its most characteristic traits (such as the supporting narrative of ‘We the People’) and eventually turning it into something a ‘traditionalist’ constitutional scholar may regard as less distinctively constitutional in nature.^{Footnote 27}

III. Two uses of imagination in constitutional thinking

Thus far, I have explained why imagination produces examples that support reflective judgment. Notably, most examples mentioned by Arendt are historical ones. It is to history that imagination turns when looking for suitable examples that can serve as a basis for judgment. But historical examples provided by imagination are – in Arendt’s view – not mere historical facts. They are couched in narrative forms, i.e. as parts of meaningful stories. It is Arendt’s conviction that the efficacy and power of an example depends, in large part, on which narrative informs it.^{Footnote 28} To gain ‘exemplary validity’,^{Footnote 29} examples must be interwoven in narrative structures that are anchored in social and political imaginaries. To see why, consider again one of Arendt’s favourite examples, that of the French Revolution: What made the French Revolution a world-historical event, according to Arendt, were not the historical facts themselves, but the narrative meaning that ‘spectators’ (i.e. outsiders or later observers) read into it.^{Footnote 30} As it is well known, the example of the French revolution unfolds, in Arendt’s eyes, as a narrative of a radical new beginning and is instilled with the pathos of political freedom, which inspired later generations of activists in France and elsewhere.

Clearly, on this interpretation, imagination does more than generating examples. It fosters a sense of narrativity. But what about constitutional imagination? Are precedents and legal examples couched in narrative forms? A considerable body of socio-legal scholarship thinks they do. These scholars draw on the insight that a major key to understanding law – including constitutional law – is provided by socially available narratives.^{Footnote 31} To quote Robert Cover: ‘No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.’^{Footnote 32} This means that to take deep root in the minds of the citizens and thus gain their support, constitutions must be anchored in citizens’ social and narrative imaginary. Ideally, citizens must see themselves as part of the story that begins with the establishment of the constitution by ‘We the People’.^{Footnote 33} To this end, ‘the sharing of resonant examples is required. Effectively, the practical judge must become a storyteller who entices his listeners to become co-interpreters of the story being told, and as such co-solvers of the wicked problem being tackled.’^{Footnote 34}

For twentieth-century constitutional theories such as originalism or Ronald Dworkin’s moralism, the founding moment of a constitution plays a decisive role in selecting appropriate examples and precedents. Consider Dworkin’s famous image of constitutional law as a ‘chain novel’,^{Footnote 35} in which the establishment of the constitution is the first and foremost chapter of the novel. Dworkin’s approach to constitutional review rests on the claim that the constitutional development should exhibit the highest possible degree of moral and narrative coherence eventually turning constitutional review into a holistic endeavour: Each chapter of the constitutional novel must adapt to the previous ones.^{Footnote 36} In so doing narrativity in constitutional law has an important heuristic function: it serves as a device for scrutinising the relevance of precedents and examples: ‘The facts of a particular (legal) case are constructed and reconstructed at each stage of the process […], through a selection of those features […] of the situation which […] are regarded as pertinent. That selection of pertinent traits will evoke a mental image or will be judged ‘‘relevant’’ to one of a stock of narratives which represent the social knowledge of the group concerned.’^{Footnote 37}

This is one way of looking at constitutional imagination. There is another. In the last decades, narrative models compete with new strands of constitutional theory for which founding narratives play no decisive role in theorising about the legitimacy of constitutional law. On the contrary, many constitutional theorists are critical of the excessive use of founding narratives – for at least two reasons. The first one has to do with the alleged internationalisation of constitutionalism. A widely shared assumption among legal and political theorists is that the language of constitutionalism is becoming increasingly influent in international legal discourse – with at least one big exception: the grand historical narrative of ‘We the People’ lacks a functional equivalent on the international scene.^{Footnote 38} To date, the idea of a global constituent people is, at best, a theoretical abstraction, with no powerful narrative on democratic self-determination to account for it.^{Footnote 39} What advocates of global constitutionalism illustrate is rather the emergence of a global constitution-like order as an incremental and piecemeal process, without a clearly demarcated beginning, plan, or purpose.

A second source of criticism is normative and can be traced back to Frank Michelman’s talk of an ‘authority-authorship syndrome’^{Footnote 40} in modern constitutionalism. Michelman criticises that founding narratives run the risk of turning the question of the authority into one of authorship. On his view, it is morally deceptive to think that ‘we owe respect to a constitution having such-and-such prescriptive content just because of who that constitution’s authors were’.^{Footnote 41} Normative authority should not be reduced to authorship. In principle, a constitution can be legitimate (both in a normative and empirical sense) even if their authors were usurpers.

Given these criticisms, it is not surprising that many legal and political theorists, and among them especially global constitutionalists, eschew constitutional narratives as means of interpretation and justification. In their view, examples are not meant to conform to shared narratives within a community; that is, they should not function as means that effectively preclude the capacity of taking dissenting or new views into account. Instead, they argue (in a Kantian vein) that imagination should broaden and deepen the context of judgment and, in so doing, foster self-reflective attitudes. The ideal is that of a ‘Socratic’ process of public reasoning^{Footnote 42} in which each participant attempts to imagine and adduce (real or hypothetical) examples that challenge one’s and other people’s positions so as to promote the ability to stand back from and reflect on one’s claims. In this way, judgments can be more easily justified to culturally diverse audiences and better reflect slowly but steadily shifting normative standards within a society.^{Footnote 43}

The gradual move away from constitutional narratives – with the consequent abandonment of the idea of the constituent people – can be considered as a shift from interpreting the constitution as part of a national narrative to continuously justifying it as an object of differing, often conflicting, views.^{Footnote 44} Fundamental to this shift are the different roles of imagination. While for narrative accounts imagination serves primarily to identify meaningful moments in the chain of historical events making up the constitutional story, global constitutionalists keep faith with the Kantian original formula of imagination as a mind-broadening activity.^{Footnote 45}

IV. A shift toward a cosmopolitan constitutional imagination?

As shown in the previous section, global constitutionalism implies a shift from a narrative to a more analytical and reflexive orientation in thinking about (constitutional) law. This is a major shift in constitutional imagination, but not the only one on which global constitutionalism is premised. The second shift concerns the spatial scope of constitutional imagination. Is imagination confined to the scope of the constitution or does it reach out to include foreign experiences? For Arendt, reflecting and judging properly involves training one’s imagination to engage with multiple perspectives or, simply, ‘to go visiting’:^{Footnote 46}

People live in different places, make different experiences and differ in their political views. According to Arendt, imagination does not make these differences disappear, but it fosters understanding. It helps bridging distance to what is unfamiliar and unknown, so that one can better appreciate alien customs and ways of thinking.^{Footnote 48} In Arendt’s view, the images and examples produced by imagination are not only ‘the leading-strings [or go-carts] of judgment’,^{Footnote 49} as Kant noted, but an important condition for the emergence of a cosmopolitan standpoint (what Arendt calls the position of a ‘world-spectator’). In Politics and Truth Arendt explains, what it means to take up a cosmopolitan standpoint:

For global constitutionalism, Arendt’s cosmopolitan account of representative thinking is an ideal feature of constitutional review to which judges should aspire^{Footnote 51}. Translated into constitutional language, representative thinking means not only that judges have to play the case many times in their imagination from different points of view, but also that these points of view should not be confined to a specific cultural or national context. What makes constitutional reasoning truly representative is the fact that the views and, specifically, the examples taken into consideration are not the familiar ones. Constitutional imagination should be free of national constraints. It is by appealing to examples from other legal and cultural contexts that judgments will take on a more ‘objective’ or ‘neutral’ shape, thus strengthening their legitimacy in the eyes of the legal community.

Concretely, then, Arendt’s requirement ‘to go visiting’ translates into the necessity to imagine how foreign legal cultures would deal (and have dealt) with the case in question. Yet there is a host of prominent cases^{Footnote 52} in which judges have done just that – imagining and citing foreign examples and precedents.^{Footnote 53} As is known, this practice has not gone unchallenged in legal and political scholarship. Especially among US legal and political theorists, judicial recourse to foreign law is still far from being a widely accepted practice. For the more traditionalists among US legal scholars, judges should enforce democratically sanctioned legal rules within their legal community, instead of importing foreign law in support of their own reasoning. Ernst A Young, for example, criticises recourses to foreign law as inherently undemocratic. In his view, the major purpose of judicial recourse to foreign law is to sidestep profound democratic disagreements over issues about which there is traditionally profound dissent in democratic societies (such as over issues of abortion, gay/lesbian rights and criminal law).

In general, responses to this kind of criticism are centred on the importance of epistemic modesty: when facing a hard case, it makes perfect sense to learn from the methods and arguments deployed by other trained professionals in dealing with comparable cases, no matter whether domestic or foreign. But this argument, compelling as it is, has two major shortcomings. First, defences of foreign law citations focus on the second stage of constitutional reasoning, that of reflecting upon the appropriateness of (foreign) examples. But they tend to ignore that these examples must first be brought to mind and that this mental process cannot be explained solely in rational cognitive terms. As mentioned, imagination involves a degree of freedom or spontaneity in searching for suitable examples. In this sense, if judges cite foreign law this has not only to do with its alleged usefulness as persuasive authority for resolving constitutional disputes, but also, more fundamentally, with the fact that their imagination moves freely on time and space, thus beyond the boundaries of domestic constitutional law. By way of example, consider Lawrence v Texas, in which the US Supreme Court struck down a Texas law that made homosexual activities a criminal offence. In his majority opinion Justice Kennedy cited examples of how European courts had approached this issue. The degree to which these examples were appropriate is open to dispute, but what is remarkable, in the first place, is that the examples that came to his mind were foreign ones. It may appear to be an obvious fact, but it is one that is easily overlooked.

This brings me to the second, more important, shortcoming. Examining constitutional imagination should not be seen as a privilege of judges and legal experts. Recall Young’s criticism. In his view the recourse to foreign examples aims at evading legal controversies and bypassing democratic disagreements within a society. But this objection has a false presupposition. It falsely presupposes that only the judges’ imagination navigates an ‘implicit map’^{Footnote 55} of a legal space that is not confined to the conventional boundaries of constitutional law. What I am alluding to is the problem that social understanding of legal rules may not necessarily be reflected in the constitutional law. In these cases, it is but natural for citizens appeal to other sources of law to represent their point of view.

According to Perju references to foreign law are justified when social interpretation of law and traditional constitutional law drift apart and the constitution loses its representative function. Thus constitutional judges do not necessarily act illegitimately when they import foreign law to support a specific interpretation of constitutional law that finds no expression in domestic constitutional thinking. On the contrary, they are addressing a responsiveness problem, namely that often minorities’ views do not find any support in mainstream domestic constitutional thinking. In this sense, considering foreign law offers a corrective to the ‘thoughtlessness’ of domestic constitutional law.

I suspect that to many this may sound unduly optimistic. Critics may urge that reference to foreign legal examples might in some cases backfire, engendering unconstitutional or anti-cosmopolitan attitudes, to the detriment of internal minorities, whose voice will remain unheard, if not silenced outright. To give an example, consider the former Hungarian constitution, which allowed lawsuits, the so-called actio popularis, initiated by civil society groups. As Bojan Bugarič points out, the ‘actio popularis provision was unusual in Europe and had become the most effective way in Hungary to keep the government in constitutional line. The new constitution eliminates actio popularis review, substituting instead a constitutional complaint on the German model’,^{Footnote 57} which limits the access to the Court to those invididuals whose constitutional rights have been violated by a public authority. In stark contrast with the Lawrence v Texas case, the case of the new Hungarian constitution shows how an opponent of minority rights (i.e. Orbán’s Fidesz party) can avail itself of a foreign example (i.e. the German model of constitutional complaint) to suppress a progressive constitutional practice (i.e. the actio popularis provision).

Clearly, this example is but one in a series of examples, which illustrate how easily ‘good’ foreign examples can be rejected in favour of ‘bad’ foreign examples.^{Footnote 58} Note, however, that there is nothing in what I have argued so far to suggest that for global constitutionalism reliance on foreign examples alone suffices to expand the imagination of constitutional actors in ways that necessarily engender cosmopolitan outcomes and enhance constitutional responsiveness. Instead, my argument is centred on two related but distinct developments that together make up what I called the shift in constitutional imagination implied by global constitutionalism: (1) a move from a narrative to a more analytical and reflexive orientation in thinking about (constitutional) law and (2) an increasing tendency to ‘go visiting’ to foreign jurisdictions for inspiration and instruction. In the above-mentioned case of the abolition of the actio popularis the example of the German Verfassungsbeschwerde serves a mere substantiating function.^{Footnote 59} It is used selectively and strategically to justify a predetermined legal decision. Its function is not to broaden the spectrum of available legal options and, thus, enhance reflexivity and inform debate. In this sense, the Hungarian case clearly does not serve as an example of the first development.^{Footnote 60}

But while cases like the Hungarian one warn us against idealising the use of foreign examples, it is misleading to think that the ability to ‘go visiting’ to foreign jurisdictions can have a deleterious impact on judicial review. Legal experts or judges do not depend on foreign law as a ‘fig leaf’ to hide their objectives. Domestic examples or other sources could just as easily be deployed to substantiate a predetermined legal decision.^{Footnote 61} By contrast, a truly reflexive orientation in constitutional thinking is premised upon the faculty to let imagination roam freely and engage with examples that may challenge our preconceptions of constitutional law. As mentioned, this does not mean examples supplied by imagination have a privileged normative status or must be regarded as binding. The account of imagination described here is procedural in that it does not require any particular outcome. It values imagination as a remedial to cognitive ‘pathologies’ common in legal or political thinking (such as blind reliance on conventions) that may hinder genuine reflection and affect decision-making.^{Footnote 62}