Narrative Legitimacy: Rethinking Agency in Founding Moments
The reductionist view of founding moments in constitutionalism would assume that the so-called ‘spirit’ - the new normative character of a nation that follows a founding moment - is agreed upon and largely uniform.
However, a key variable largely left uninvestigated by this basic understanding is agency: who should be trusted to dictate or interpret what the ‘spirit’ is? Who decides what the founding moment means for the country? If it is the ‘people’, are they the citizens, the founding fathers, or the current or former government? The contributions in this volume delved into the issue of narrative legitimacy and offered a broad range of views. Some found that narrative legitimacy should reside in the citizenry; others offered examples where the courts, legislature, national institutions and even historians held agency. As a result, the chapters in this volume have expanded our notion of agency and narrative legitimacy in founding moments.The opening chapter by Kuo lays the theoretical foundation for questions of narrative legitimacy. For Kuo, it is desirable that the citizens are in control of the narrative. He argues that contemporary constitutional theories can be divided into the historicist view and the normativist view. In the historicist view, the founding moment is fact only, ‘a historical object to be faithfully represented’,[1034] and, in the normativist view, those historical events and political actions are seen ‘as the embodiment of normative principles and values’. [1035] Alternatively, Kuo proposes a ‘relational’ approach to constitutionalising founding moments - one between fact and norm - where the ‘founding moment is related to the constitutional order by virtue of narratives that substantiate the constitutional order with meaning’. [1036] His argument that the relational view is superior because citizens will be the driving force behind the narrative assumes that democratising this process is desirable.
However, for many people, a constitution should also serve an anti-maj oritarian purpose - it is a document that cannot and should not be easily swayed by the whim of the people. Does the relational approach not strengthen the potential for the ‘tyranny of the majority' by giving citizens in every era the right to dictate the meaning behind the country's founding moment? Further scholarship stemming from Kuo’s contribution could also explore another predicament left largely unanswered by the author: certain citizens will have louder voices in creating that narrative under the relational approach. In other words, how does the relational view of constitutionalism deal with the predictable problem that the socioeconomic elite - politicians, the media and the wealthy elite - may have more influence than other citizens in crafting this narrative in each generation?
Simon Gilhooley's chapter provides another dimension in understanding agency and narrative legitimacy in founding moments. While Kuo posits that citizens can narrate and therefore re-interpret the meaning of the founding moment at a later point in time, thereby also democratising the process, Gilhooley suggests that the founding moment itself can be reconceptualised. '1 hal is, instead of future generations giving meaning to one singular moment in history, Gilhooley believes that the founding moment can be ‘reconfigured... not just in terms of what the founders advocated, but actually in terms of whom exactly the founders were and what it was that they founded'. [1037] In doing so, his contribution demonstrates that not only the ‘normativist' narrative - to use Kuo’s terms - but even the ‘historicist' understanding of founding moments can be reconfigured. Gilhooley opens the door to the question of whether there is any objectivity in the historical founding moment. In other words, if we re-create founding moments as we need them, and in a way that suits our desirable narrative at a given time, will these historic events be condemned to be victims of revisionist history?
Swati Jhaveri's chapter adds another dimension to the debate on narrative legitimacy and agency, arguing that the courts in Hong Kong and Singapore may be able to play a role in constitutionalising the founding moment.
Jhaveri, however, realises the potential pitfalls of the argument. Throughout the chapter, she acknowledges that ‘the judicial branch lacks democratic legitimacy' and is cautious not to propose ‘judicially initiated’ constitutional moments.[1038] Her contribution returns us to the dilemma in Kuo's opening chapter regarding the question of narrative agency and legitimacy. Jhaveri's argument assumes that the courts will play a democratising or constitutionalising role by funnelling the will of the people into the process of constitutionalisation through the courts - as the author notes, courts will be ‘a proxy for ventilating issues on the part of the citizens'.[1039] '1 his leads us, once again, to ask the following: should citizens be trusted with controlling the narrative of the founding moment and thereby influencing the process of constitutionalisation? Additionally, should the courts - as the supposed proxy of the people - be trusted with controlling the narrative? Finally, to a more fundamental assumption, can courts and jurists understand and faithfully carry out the will of the people given that they themselves ‘lack democratic legitimacy'?In this regard, Mikolaj Barczentewicz's chapter offers a different perspective on narrative legitimacy, one that posits a standard for narrative legitimacy for founding moments in constitutionalism. Barczentewicz argues that in order to be a ‘ legally relevant' constitution-maker, that entity should either: (1) exercise pre-existing legal authority to make the constitution; or (2) have one's intentional act purporting authoritatively to make the constitution as law recognised as the reason for acceptance of the constitution as law.[1040] Judging Kuo's relational approach according to Barczentewicz's understanding, the citizenry of the future may not be a legally relevant constitution-maker. Under Barczentewicz's definition, it would be arguable whether the citizenry have the legal authority to make the constitution or retrospectively have the legitimacy to purport authority to make the constitution as law.
Jhaveri’s argument that the courts may play a pivotal role in constitutionalising founding moments may also be problematic according to Barczentewicz's standard. First, the courts in Hong Kong and Singapore did not exercise pre-existing legal authority to make the constitution. Even with regard to the second prong - that one's intentional act purporting authoritatively to make the constitution as law recognised as the reason for acceptance of the constitution as law - would be a difficult argument to make, as courts lack not only democratic legitimacy, but also the legal authority of constituent assemblies and similar bodies entrusted with the responsibility of crafting constitutions. Thus, under Barczentewicz's rubric, while the citizenry and courts may be viewed as ‘agent[s] behind making a constitution as law, they may not be ‘constitution-makers' per se.Regardless of whether scholars agree with Barczentewicz's standard for narrative legitimacy, he helps us appreciate that a standard is perhaps needed. Not having a standard would risk the founding moment - an historical event - being re-interpreted in subsequent generations to fit their narrative as needed.
The chapters by Sagy, Chien-Chih Lin and Mel A Topf offer other examples of how the narrative of founding moments can be influenced by other actors. Sagy's contribution on Israel demonstrates the role of historians and historiography in forming the narrative about founding moments. Lin, on the other hand, demonstrates how through the amendment process, Taiwan's legislature was able to craft a national identity distinctly different from that of the People’s Republic of China (PRC), despite having the same constitutional core. Topf's chapter adds to the debate about narrative legitimacy by injecting the idea that institutions - not just the citizenry, courts or founding fathers - can have agency.
The chapters in this volume have expanded our knowledge of agency and narrative legitimacy in founding moments. While the question of who should have the legitimacy to give meaning to the founding moment is anything but resolved, the aforementioned writers have nonetheless laid the foundation for future scholars to continue this debate.
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