Epistemology of constitutional law

Elena Simina TANASESCUTeaching constitutional law in the multilaterally developed socialist Romania could be done solely according to the only admitted methodological approach, namely “dialectical materialism”. Since the state and its legal system were nothing more than instruments in the hands of society’s ruling class, the branch of law which concerned precisely the power of this state appeared as a condensation of this vision. Thus, legal interpretation was synonym of method and the objectivity of the analysis was transfigured into an empty and amorphous formalism. A byzantinism of the legal detail took hold of teaching Romanian socialist law, constitutional law included, while its conceptual framework and epistemological approach have been pushed rather towards the background of the analysis or even forgotten altogether, sublimated as they were in the few mandatory excerpts of the official speeches of the Communist Party’s notables often displayed in the first pages of legal handbooks only to be forgotten later on.

By focusing on the legal dogmatic rather than on its ideological base and its scope, the teaching of Romanian socialist constitutional law managed, on the one hand, to avoid the trap of the unbearable glorification of the political regime thus – nevertheless – served, but, on the other hand, to leave the impression that a certain purity of the legal analysis might exist, stripped of any other influence or circumstance. Legal positivism – thus put forward – was the only possible epistemology for the socialist legal analysis.

Legal positivism may display several forms, among which one can be a certain ‘scientific’ attitude in relation to the studied subject, a detached analysis through a freely acknowledged and rationally used method throughout the analysis, but this wasn’t the case of the Romanian socialist constitutional law. A methodological detachment, even implicit, was rather forbidden by the usus in force under a regime that advocated the struggle between social classes until the final victory of the one once exploited. Having as thin cover the ‘positivist’ method – stripped of any content – the scientific study of constitutional law got metamorphosed into formalism in itself and for itself, done through the fetishising of legal interpretation as sole method.

However, this legal dogmatic has the characteristic that its methods and tools remain rational and perfectly valid despite their pernicious use. Actually, legal interpretation (logical or systemic or grammatical) uses valid techniques and arguments, regardless of the interpreters’ ideology or of the ideological base of the concerned texts, although the result of any form of legal interpretation is ontologically dependent upon these circumstances. In other words, it is not the interpretation tools which vary, but the result achieved through their use, to the extent where this result is in direct relation with the epistemological base of the interpreter and with the ideological base of the texts. The conclusion of the legal interpretation of any given legal text can be very different depending whether the starting point is Kantian idealism or the jus naturalistic transcendence or the dialectical and historic materialism: in the first case, the context of the legal interpretation is the idea of justice dedicated to promoting the individual’s freedom in the society, while in the second case it has to be in accordance with an ontological and structuring principle derived either from the human nature, from the human society’s nature, from the human rationality or from any other metaphysics accepted by that regulatory system, while in the third case the result of the legal interpretation has to be the building of socialism, whose aim is the development of the individual within a state which comprises the entire society and is the only producer of legal rules subject of interpretation. However, this starting conceptual framework, indispensable to any legal interpretation, was – during the communist regime – in the worst case overshadowed and obliterated (especially in the study of private law) and in the best case relegated to the opening pages of the socialist manuals (especially of public law), which much too often were simply satisfied with the mere reproduction of the operational conclusions of the latter Communist Party’s congress at that time. On the other hand, more often than one might believe, the Communist Party’s congresses were pretty explicit regarding the purpose of the socialist legal system.[i]

Devoid of the possibility to actually question the theoretical premises of the analysed legal system and even less the ideological bases of the socialist power’s manifestations the socialist legal science simply entertained itself with variations on the theme of legal interpretation. If nowadays Romanian scholarship tries to distance itself from legal positivism this attitude must be understood not as an altogether rejection of the Vienna school of thought (or else we should consider it a lack of legal taste and tact), but rather as an attempt to reach out to new methods of legal research.[ii] In fact, post-communist Romanian legal scholarship simply wants to distance itself as much as possible from a legal dogmatic which it associates with an epistemology that had been presented as ‘scientific’ without actually being so and which was outdated since long even at the time when the socialist system was trying to impose it as the unique possibility.

The brutal upheaval which interrupted in December 1989 the linear ‘progress’ of the multilaterally developed socialism launched a transition towards democracy and provided the necessary premises for the liberation of minds, including in the field of epistemology of social sciences. The renewal of legal sciences was felt not only at the level of legal rules’ content, but mostly regarding the methods used. A pluralism of legal schools of thought is nowadays implicit in Romania and that includes the methods used for teaching law, particularly constitutional law. In the traditional academic centres, such as Bucharest or Cluj, positivism remains predominant, but it has fortunately overcome the difficulties posed by logical analysis viewed as the sole instrument designed for it and opened to the empirical experience and to the real validation of its concepts through practice. In the academic centres created after the transition to democracy, such as Craiova or Timisoara, the realist perspectives have more easily put down roots: the constructivist and symbolic understanding of knowledge has almost completely abandoned the dogma of the fact and it has transfigured the object of knowledge from a simple common experience to an object that can be preceded by an explanatory theory in order to understand its apprehension. Finally, in the first academic centre of modern Romania, namely Iasi, realism turned out to be rational, it is no longer absolutely a priori but it became familiar with evolutionism and remained open to practical experience.

Legal epistemology at the level of the constitutional phenomenon is thus updated not only with the transformations of the scientific study’s object, but also by the dynamics of the theory of knowledge’s field itself. Methods used for the analysis and teaching of constitutional law in post-communist Romania are multiple; they are no longer exterior to the object of study, posterior in time and speculative, but internalised, concomitant with the process of knowledge itself and adapted to the objectives pursued. Their variety allows for the coexistence of axiomatic and formalist approaches (Bucharest) with empirical ones (Iasi); the relational and structural perspective (Cluj, Craiova, Timisoara) replaces to a large extent mechanical ontology of the past and makes possible the survival of contemporary neo-positivism at the same time as the affirmation of contextual relativism (Sibiu). Interdisciplinarity and transdisciplinarity have become key words; the risk of fragmentation and of potential inconsistency of constitutional law is not negligible, but the postmodern deconstructivism is only here to strengthen constitutional law and not to lessen its importance and impact. Or, even better, this leads to fragmentation, that is to say to the here and there teaching of small parts of constitutional law, scattered throughout several disciplines which no longer bear the “constitutional” label, but which, in fact, treat the same matter. From parliamentary law to European integration and from the protection of personal data to ethics, or even artistic expression, it is always a matter of constitutional law considered as jus commune, but not in classical or traditional terms anymore, rather adapted to postmodernism. Technically, it is about what teachers of constitutional law have designated by the term “constitutionalisation” of law and of society.

Teaching constitutional law in post-communist Romania is now connected to contemporary tendencies in legal epistemology, but just as this one, it continues to give preference to two traditional instruments, namely the comparative method and the exegesis of case-law.

The comparative method is inevitable in a globalised world and in the context of the internationalisation of knowledge; consequently, legal science cannot escape it. But the comparative method is – and must remain – only a method among many others. Very fashionable lately, it cannot be mistaken for the only useful instrument for teaching constitutional law, nor a panacea. Also, it must not be regarded as normative, neither in terms of means, neither in relation to purposes. The migration of the “ready-made” (including) constitutional solutions and the legal transplants, voluntary or not, cannot be justified by a cosmopolitanism fed only by comparativism. Analogy remains a useful tool for teaching law, but it must not be confused with the comparative method nor wrongly considered the ultimate epistemological solution.

As for case-law (and its role with regard to teaching constitutional law), it has been strongly revived and consistently strengthened by the empirical neo-realism abounding within social sciences mostly towards the end of the 20th century. In fact, deduction, as an instrument for the development of knowledge, seems more and more trivial in law, and the success met by constitutional courts over the last half century has helped a lot to reinforce this perception. Often equated with a change of paradigm and with a confirmation of the “legal” character of constitutional law, this tendency only confirms the always important role maintained by analysis and interpretation of words (written in norms and judgments) for the legal epistemology. Teaching constitutional law, particularly in a positivist manner, can’t do without a possible validation of these concepts by the social practice. However, fetishising case-law presents a risk to consider deduction as the sole instrument of knowledge, and both these hypothesis are acknowledged as false since the advent of the theory of knowledge.

Avoiding these two methodological pitfalls remains one of the most delicate tasks for the epistemology of law in general and constitutional law in particular, in Romania as well as elsewhere. Since the dynamics of contemporary epistemology has a great chameleonic ability of transformation and adaptation, it might not be totally out of touch to scientifically analyse while at the same time teach constitutional law as done on a daily basis and watch for evolutions to come.

[i] « Whilst underlining the important role of law for Romania’s current stage of development, the comrade Nicolae Ceausescu showed that this “has to reflect the profound economical and socio-political changes in the revolutionary process and in the socialist constitution” (Report of the National Conference of the Romanian Communist Party, December 1967). » in T.Draganu, Drept constitutional, [Constitutional law], Ed.Didactica si Pedagogica, Bucuresti, 1982.

[ii] Often too simplistic, the vision according to which legal positivism is synonym of the hierarchy of norms theory, as developed by Hans Kelsen, remains now fairly generalized with the young Romanian legal professionals, even though it is deprived of any support. For a vehement criticism of positivism as research method in law, see R. Roghina, Logica si efectele transplantului constitutional din 1866, [The logic and effects of the constitutional transplant of 1866], doctoral thesis defended on 22 September 2014 at the Law Faculty of Bucharest University. For a relativist and contextualized approach of the legal knowledge, see M.Gutan, Transplant constitutional si constitutionalism în România moderna 1802 – 1866, [Constitutional transplant and constitutionalism in modern Romania 1802-1866], Hamangiu, Bucuresti, 2013.

Elena Simina TANASESCU
Professor, Law Faculty, Bucharest University