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Gaudreault-DesBiens on Constitutional Patriotism

By Lawrence Solum

Jean-François Gaudreault-DesBiens (University of Montreal - Centre de recherche en droit public) has posted The Fetishism of Formal Law and the Fate of Constitutional Patriotism in Communities of Comfort: A Canadian Perspective (TIES THAT BIND. ACCOMMODATING DIVERSITY IN CANADA AND THE EUROPEAN UNION, pp. 301-330, J.E. Fossum, P. Magnette, & J. Poirier, eds., P.I.E. Peter Lang, 2009) on SSRN. Here is the abstract:

This paper suggests that, as appealing as they may be from a normative viewpoint, philosophies such as constitutional patriotism, when a-contextually understood or ideologically overloaded, may problematically induce some, be they citizens, scholars or politicians, to assume the inevitable emergence of genuine reciprocal commitments in complex polities. In such polities, neither the sharing of a political space nor the experience of democratic participation within a single, and potentially culturally-embedded, legal framework guarantee the emergence of any form of patriotism, be it constitutional or otherwise. On the contrary, they may obscure the existence of a form of democratic parallelism that bears witness to the presence of deep political fractures. On a more positive note, they may also render political life with these fractures easier by relegating them to the realm of the non-dit or by neutering them. But while such an outcome enhances social peace, there is no evidence that it is also conducive to patriotism, constitutional or otherwise.

The paper further examines how, in complex polities, the implementation of aspirational philosophies may prove delusive. Indeed, the idealism underlying such philosophies is susceptible of preventing normatively committed observers from acknowledging the gap that may exist between their normative conceptions of a polity and the possibilities of implementing these conceptions in the actual circumstances of that polity. In other words, such philosophies may provoke the creation of ?ideal realities?, at the risk of obscuring thicker sociological ones. Moreover, such ideal realities are more likely to be believed if they find support, symbolic or otherwise, in the structuring norms of these complex polities. Indeed, as these norms may become ?obscure objects of desire? for citizens, scholars or politicians, they risk becoming at the same time objects of fetishism, a fetishism that will only render more difficult the acknowledgment and evaluation of possible gaps between ideals and realities.

Full post as published by Legal Theory Blog on March 16, 2010 (boomark / email).