We are quickly learning that living through interesting times comes close to being a curse. Those of us who are lucky not to be at the wrong end of the different unfolding catastrophes feel nonetheless that all that was solid is rapidly melting into thin air. There are many reasons to worry and be concerned, but certainly not to despair. The darker it gets, the more we should be striving to change the world. How can we, as legal scholars and legal practitioners, contribute to it?
My key thesis is that the first thing to do is to learn from the achievements, the failures and the shortcomings of those who have trodden the road which we feel the urge to travel, that is, of our colleagues and comrades of the past. My point, let me render it clear from the very beginning, is not to seek refuge from a catastrophic present into a romanticized mythical rendering of yesteryears. Rather, I hold that looking back is of essence to get inspired, to strengthen our sense of community, to get our moral and sentimental education and, why not, to acquire a modicum of gravitas. If that is so, then three things follow:
- First, what should count is not whether ideas are new, even less fashionable or obscure, but whether they are good, or whether they can contribute to transform the way we relate to each other and to the planet. Pretending one has discovered the Mediterranean last night is, next to being a true believer in the status quo, the best recipe to make a meteoric academic career. However, it tends to be counterproductive when the task is to make real and lasting contributions. If you allow me the jocular mode, emancipatory law will not be written with PowerPoint presentations or tweets.
- The second reason why we should make our acquaintance with the past is because we need to realize we are part of a community which is made not only of our contemporaries but is rather a community which dates back thousands of years, and is not bound by herd feelings, but by reasons and moral sentiments. True, we always must determine what is alive and what is dead in the thought of our colleagues from the past. Or what is the same, what they got right and what they got wrong. But their presence is of essence to combat bouts of pessimism, precisely because learning from our past we notice that the cause of human emancipation has registered victories against all odds.
- Finally, third, the experiences of those who challenged the common sense before us with a view to realize their (and our) emancipatory aspirations contain fundamental moral teachings. When one reads about the courage of the resistants against imperialism (Margaret Ekpo or Xanana Gusmao) or against Nazifascism (Joyce Lussu or Luciano Bollis) one gets a lesson in much needed moral gravitas.
Let me then invite you to consider why a provision dating more than 75 years, Article 3.2 of the Italian Constitution, remains a fundamental provision which we should strive to make part of the material constitution of all political communities, and therefore part of the common constitutional law of the world.
Article 3.2 reads “It is the duty of the Republic to remove all economic and social obstacles which, by limiting the freedom and equality of the citizens, prevent the full development of the individual and the participation of all workers in the political, economic and social organization of the country”
Why should this be so important for us? Let me rehearse three reasons:
- First, because it encapsulates the inheritance of democratic constitutionalism, from the 1848 revolutions to Weimar constitutionalism, and projects it to the future. The constitution cannot any longer be seen as a document legitimizing the status quo (and turning the constituents into the saints of a new religion) but into a tool with which to be constructively in polemics with what is wrong with the status quo. The constitution has always to keep an eye open, even when it is sleeping. Not because humans are Hobbesian beasts, but because if we persevere, but only if we persevere, we can get closer to a community of free and equal citizens, Notice that the provision is far from being purely procedural. Article 3.2 requires us to strive for material not formal equality, which entails first and foremost that workers become citizens and citizens should become workers. That implies an emancipatory horizon in which we are fully autonomous beings both in our political and in our economic life. The latter requires thinking seriously about economic democracy, and consequently, reviving the discourses on self-management and cooperatives, but also about different forms of money and of banking.
- Second, Article 3.2 has immediate repercussions on the role of judges, lawyers, and jurists. It breaks for good with the idea that legal concepts are “technical constructions”. Not only are they most of the time borrowed from other fields of knowledge or social practices, but they brim with political implications. So, there is so little we can say about law from a “pure” perspective, so much we can say when taking seriously that we have to approach law in its social, economic, political and cultural context. We cannot be neutral, but we can be honest in our work of conceptual reconstruction and therefore when describing and assessing the law.
- Third, Article 3.2 contains an implicit call to normative imagination, capable of projecting itself into institutions, procedures and substantive norms. But it is also a powerful reminder of the need of avoiding both solipsistic individualism and mythological communitarianism when thinking that “in between” that is democratic politics. What Article 3.2 is vindicating is a methodological individualism centered on the person, based on which we can build political and ecological relationships based on reciprocity and care, not exploitation, and which is not automatically “progressive” or “conservative”, but which can build bridges between different political sensitivities, as far as they are genuinely in polemics with the status quo.
Reading this blog post, I am told, takes about five minutes. These five minutes I have taken from your time will not have been wasted if I persuaded you that we cannot build the future without learning from the past, and that the democratic constitutional project which was launched with the 1917 Mexican Constitution and the 1919 Weimar Constitution, and renovated after 1945 has not run its course. There is much alive in radical democratic constitutionalism, and particularly in Article 3.2 of the Italian constitution.
(Photo: Antonio Vivace)
