To survive, democracy must transcend borders and become inclusive and responsive – Fellows’ seminar by Marcelo Neves

23 August 2017

“To be sustainable, democracy has to care about its political environment and be responsive towards other political systems. Without such responsiveness, there is a trend among today’s democracies to collapse,” said Prof. Marcelo Neves. “It is no longer sufficient to associate democracy with the phrase expressed in the preamble of the US constitution ‘We the People’. Democracy has to incorporate the ‘The Others’, ‘the Peoples’ and ‘Government for the peoples’ into its self-understanding. If this path proves unviable, it would portend the elimination of the external conditions of domestic politics, which would lead to an ecological catastrophe for existing democracies.”

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STIAS Fellow Marcelo Neves during his seminar presentation on 10 August 2017

Neves is Professor of Public Law and Legal Theory at the University of Brasília. His STIAS work forms part of the STIAS long-term theme project Crossing Borders with the subtheme Boundaries and Legal Authority in a Global context.

Our starting point is that from the end of 20th Century legal authority has gone far beyond the boundaries of the national state, and therefore new legal, political and social problems have arisen.”

Prof. Neves began with a discussion of the limits of transconstitutionalism which concerns the fact that often multiple legal orders (state, transnational, supranational, international, local and indigenous) are simultaneously involved with the same constitutional issue or case.

“What is called constitutionalist tends to be glorified, honoured, while what is called anti-constitutionalist is disdained.”

State constitutions usually incorporate a declaration of human rights (often including property and free enterprise; religious, artistic and scientific freedom; the right to vote, and access to legal remedies); the separation of powers and procedural institutionalisation especially concerning the electoral procedure.

“This has been more or less successful, successful or unsuccessful according to the contexts,” said Neves.

“The constitution in a modern sense is an attempt to respond to the problem of emerging structural transformations and the corresponding semantics of rights against arbitrary power in the dominating centres of the emerging modern society,” he continued.

“However,” he added. “Colonial, neocolonial and postcolonial dynamics have had a huge impact. In the 20th Century in the dominating centres (the North) primary inclusion was increased and in the peripheries (the South) structural exclusion has persisted.”

“So, human rights become privileges of the so-called ‘North’ and often the constitutional states become exporters and guarantors of autocratic regimes in the peripheries.”

“In the 21st Century, constitutional problems cross state borders, they go beyond the state. Constitutional claims constitute a challenge to the present world society. The state is no longer the lord over many constitutional problems. Constitutionalism was in part emancipated from the state.”

“The world is an increasingly complex society with unavoidable globalisation. Constitutional problems can often now not be solved with legal orders. There are many things that states cannot resolve in isolation.”

“One of the solutions has been to affirm the existence of an international or cosmopolitan constitutional unity,” he continued. “A constitution of the international community. But it is difficult to equate international law with the constitution of an individual state and to embed an overarching system.”

“Also some states, the ‘superpowers’, and even private organisations are frequently not ready to participate in transconstitutional conversation and learning. They often disregard the legal orders of the others.”

“Yet transconstitutionalism seems to be a functional requirement of world society, because system integration depends on constructive entanglements to solve legal problems. It is not possible to come back to constitutional nationalism, and the construction of a cosmopolitan global constitution is very idealistic.”

Prof. Neves believes this implies a need to move from the focus on autonomy/differentiation to one of inclusion – transdemocracy – which changes the focus from the legal to the political.

Beyond sovereignty to sustainability

Although modern democracy aimed at the universal inclusion of all persons as rights holders, Neves believes it has not taken seriously the idea of world society.

“It has now become urgent for the dominating democracies, as political systems, to take seriously not only their functional environments, i.e. other social systems, but also, and above all else, their political environment—namely, other political systems, foreign states and peoples.”

“Garbage was thrown from the centres to the peripheries in the forms of slavery, invasion, war, supporting of dictatorship, multinational corporate corruption, etc. – both the foreign policies of the United States in Latin America in the 1960s and 70s, which supported dictatorships, and Western foreign policies in the Near East nowadays are impressive examples. These experiences have been described in their different phases using terms such as colonialism, imperialism, neo-colonialism and post-colonialism, each of which is incompatible with democracy as realised political inclusion.”

“More and more the reflux of this garbage comes back without any recycling,” said Neves. “One throws bombs, imposes corrupt rulers, blocks economic development in weak countries and disrupts international relations, but one cannot avoid the human and social pollution, the resulting social-ecological hazards.”

“Not only in the form of the wave of terrorism and global criminality, but also through the uncontrollable refugee flows caused by war, hunger and oppression.”

“We have seen attempts at novel forms of isolationism such as rigid foreigner entry control and, in extreme cases, the building of walls,” he continued. “But it is no longer possible to prevent the reflux. It is not only commodities, money and information that circulate worldwide regardless of political borders, but also human bodies.”

“If states want to protect isolationism, I believe they must abandon their claims to be democratic,” he added.

“Dominating democracies must develop a new imagination to adequately address the social and human environment constructed by other political systems territorially organised into states,” said Neves.

“There is a need for a new understanding of democracy that takes other people seriously.”

“In this context, I believe the concept of sovereignty has to be shifted from an emphasis on autonomy to an emphasis on responsiveness towards world society. Sovereignty may have to cede to sustainability.”

Words: Michelle Galloway, Part-time media officer at STIAS
Photograph: Christoff Pauw

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