Tully's Constitutional Agonism

Political philosopher James Tully has in a variety of writings interpreted the Supreme Court of Canada's reference decision on the secession of Québec. Université de Montréal Michel Seymour has proposed various criticisms of Tully's approach. This paper discusses both the general approaches to political theory of Tully and Seymour, Tully's thinking on Canadian affairs with regards to Québec, and Seymour's general understanding of Tully's work along with his specific criticisms

This dissertation is inspired by the small but growing number of political and social theorists whose works have been highly influenced by the later philosophy of Ludwig Wittgenstein.These authors developed their theories at least in part by taking Wittgenstein’s thought to have normative implications on methodological and substantive issues in political and social theory. The aim of this dissertation is to narrate and analyse the influence of Wittgenstein in political theory as a contribution to the intellectual history of twentieth century political thought. To that end, Hanna Pitkin’s “Wittgenstein and Justice” and James Tully’s “Public Philosophy in a New Key” present an exemplary (in both senses of the word) pair of works that allow us to compare contrasting approaches to using Wittgenstein’s ideas and methods. The dissertation begins with an introductory chapter that sets out the main problem: Ludwig Wittgenstein’s influence in political theory is fairly under-narrated and under-analysed, especially in a dissertation-length project. The purpose of this chapter is to give a brief historical overview of this identified gap in the literature. The second chapter provides a brief introduction to the concepts and methods of Wittgenstein’s later work, as well as an explanation of some of his basic philosophical commitments since the “Tractatus-Logico Philosophicus”. The third chapter is an exposition and analysis of Hanna Pitkin’s social thought in Wittgenstein and Justice. I show how Pitkin built her social theory by taking Peter Winch’s and J. L. Austin’s methodological work to complement and expand the fundamental ontological and epistemological precepts she draws from Wittgenstein’s later philosophy. The fourth chapter is an exposition and analysis of Pitkin’s political thought in “Wittgenstein and Justice”. I show how she built her political theory by taking Wittgenstein’s ontology to flesh out and expand the fundamental political values she draws from Kant and Arendt. The dissertation continues with James Tully. The fifth chapter is an exposition and analysis of James Tully’s social thought in “Public Philosophy in a New Key”. I show how the social theory of James Tully is primarily inspired by the post-structuralist works of Michel Foucault and the later philosophy of Ludwig Wittgenstein. The sixth chapter is an exposition and analysis of James Tully’s political thought in “Public Philosophy in a New Key”. I show how Tully’s belief that the role of public philosophy is to address public affairs cashes out in i) critical surveys of practices and languages that set the context of practical social and political problems and their proposed solutions, and ii) historical or genealogical surveys that place those languages and practices in their larger contexts in order to see how forms of subjectivity are shaped by historically specific trends in thought and action. I end the dissertation with a concluding chapter that compares my findings about Pitkin and Tully under the light of Wittgenstein’s anti-theoretical commitments and his beliefs regarding the second-order nature of philosophy. I argue that Pitkin, in sailing too close the modernist wind, takes a narrower view of the political than Wittgenstein’s social ontology might suggest. And therefore, Tully’s work, by being more resolutely anti-theoretical and anti-foundational, is more consonant with Wittgenstein’s ethos. My final evaluation of Pitkin’s and Tully’s Wittgensteinian political theories will highlight the strengths and weaknesses of their diverging approaches, while holding on to the caveat that we need not agree with everything Wittgenstein has laid out in order to find something useful from him that can help in our work.

The modern idea of the constitution is closely tied up with the political form of the nation-state, but the post-national age poses various challenges to this idea, not least due to the emergence of constitutional or quasi-constitutional regimes both beyond and below the nation-state. While a good, and steadily growing, amount of research probes the constitutional dimensions on the international and supranational levels, the domestic dimensions and related transformations, and in particular the implications of constitutional pluralism for meaningful democratic practice, seem, however, less prominent in current debate. I argue that domestic constitutional dynamics and conflict, not least regarding democratic participation, can be fruitfully analysed through the lens of a political-sociological approach to constitutions and constitutionalism. In order to outline such an approach in one specific way, I briefly discuss, firstly, the recent (re-)emergence of constitutional sociology. Secondly, I will situate constitutional sociology within a wider debate on constitutionalism and democracy. Thirdly, I will propose a sociological, ‘historical-functionalist’ approach to the analysis of constitutions, which, I will then, fourthly, relate to a comparative and interpretative political sociology of constitutional discourses and political, legal, and social critique.

Tully’s Constitutional Agonism “A just form of constitution must begin with the full mutual recognition of the different cultures of its citizens.” J Tully, Strange Multiplicity: Constitutionalism in the Age of Diversity (CUP, Cambridge: 1995) 8. James Tully’s constitutional agonism has been primarily developed in a series of lectures published in book format in Strange Multiplicity Ibid. and Public Philosophy in a New Key: Vol. I & II. Public Philosophy in a New Key Vol I (CUP, Cambridge: 2008); Vol II (CUP, Cambridge: 2008). Whilst Tully’s agonism has understandably developed throughout the writing of these three books, his approach to constitutionalism has continued to be essentially agonistic in nature. This chapter will chart and analyse Tully’s agonism. Tully develops and situates his agonism in a broader context of thought. He was influenced deeply by Wittgenstein Foucault, and Arendt. Indeed, this constitutional agonism can be described as a “detailed application of Wittgenstein’s method to political theory and practice.” M Wenman, ‘Agonistic Struggles for Independence: James Tully’ in M Wenman, Agonistic Democracy: Constituent Power in the Age of Globalisation (CUP, Cambridge: 2013) 127-8. From these thinkers Tully draws a defence of the idea that the study of politics should focus on the practice of politics in favour of theory. Tully’s agonism is centred on reciprocity and mutual respect. Unlike a number of other theorists of agonism, he prescribes a framework within which agonistic struggles must take place. He argues in favour of high intensity forms of local and global democracy, self-determination and legal pluralism that would enable the people subject to those low intensity structures of law and politics to bring them under their shared democratic authority by the exercise of their constituent powers. J Tully, ‘On Law, Democracy and Imperialism’ in E Christodoulidis and S Tierney (Eds.) Public Law and Politics: The scope and Limits of Constitutionalism (Ashgate, Aldershot: 2008) 95. Much of Tully’s work is animated by “one of the most difficult and pressing questions” in contemporary political science and constitutionalism, that of whether the “modern constitution [can] recognise and accommodate cultural diversity.” Ibid 1. Whether this is possible forms a “political centre of gravity of the age, held firmly and irrepressibly in place by the conflicting struggles for recognition that lie around it.” Ibid 15. His solution is a form of agonistic recognition. Tully’s Agonistic Constitutionalism Tully commences his agonistic formulation by criticising the dominant form of constitutionalism. He contends that Western constitutionalism is a form of imperialism. He argues that European constitutionalism developed in response to the external imperialism of the Holy Roman Empire and internal imperialism of feudal absolutism which, ironically, caused them to create a new form of imperialism over much of the rest of the world: the imperialism of the monolithic Westphalian sovereign states. Strange Multiplicity 15-29. This led to the anti-imperialism of national liberation movements, from the United States in the 18th century, through twentieth century decolonisation and the fall of the Soviet Union in 1989, which, in turn, created its own imperialism, this time over aboriginal and indigenous peoples. Tully argues that this group of peoples’ demands for self-government represent a perpetuation of the tradition of anti-imperialism, rather than the post-modern discontinuity. In accommodating this multi-faceted and contestable view of constitutionalism instead of monolithic and universalist constitutionalism, Tully suggests that a constitution could “be both the foundation of democracy and, at the same time, subject to democratic discussion and change in practice.” Ibid 29. Strange Multiplicity demonstrates that the conventional conception of constitutionalism is under threat from a familiar set of forces pulling apart the nation state: the monolithic conception of unitary nation states is pressured from below by subnational ethnic, cultural, linguistic and intellectual minorities and from above by supranational forces like the European Union, North American Free Trade Agreement and the World Trade Organisation. Minority claims are “caught in the interstices” of these supranational organisations and the concomitant forces of globalisation, and “advance claims of cultural recognition and protection.” Ibid. Much of Tully’s work focuses on the constitutional claims of indigenous and aboriginal peoples, and he points to them as an “exemplar” of the “strange multiplicity of cultural voices that have come forward in the uncertain dawn of the twenty-first century to demand a hearing and a place, in their own cultural forms and places, in their own cultural forms and ways, in the constitution of modern political associations.” Ibid 3. Tully argues against the segmentation of minority or sub-state claims of recognition and participation. By concentrating on the distinctions between different forms of these claims it is possible to miss the “disregarded resemblances” between them, which “disclose the landscape of contemporary political conflict [and] raises the questions of constitutionalism and cultural diversity.” Ibid 4. There are three areas of overlap between the claims. Firstly, they are all demands for self-rule. The essential nature of these claims has been occluded by their allocation to broader categories of claim, such as nationalism and identity politics, which “segment[s them] into a cacophony of heterogeneous claims.” Ibid 5. Further, the specific form of self-rule to which each claim aspires has obscured the fundamental claim of self-rule itself. Secondly, these claims contend that the existing political and constitutional structure is fundamentally unjust in that it “thwart[s] the form of self government appropriate to the recognition of cultural diversity.” Ibid. The inability of the minority group to express their political will invalidates any claim to a singular popular sovereignty and support for the constitutional status quo in that it imposes hegemonic structures which render minority consent impossible. Lastly, these claims are contingent upon an understanding of politics that views culture as an essential component of any political and constitutional discourse. There exists an irreducible multitude of cultural practice that could form the basis of constitutional politics, but a constitution must select one or formally embrace the multiplicity of citizenship cultures. It cannot, however, “eliminate, overcome or transcend this cultural dimension of politics.” Ibid 6. Culture here is meant in the sense used by Taylor in Multiculturalism C Taylor, Multiculturalism: Examining the Politics of Recognition (Princeton, Princeton University Press: 1988)., namely the space in which citizens “develop their goals of self-fulfilment and self-realisation.” Strange Multiplicity 28. Taken together, these claims form the following argument: …if the cultural ways of the citizens were recognised and taken into account in reaching an agreement on a form of constitutional association, the constitutional order, and the world of everyday politics it constitutes, would be just with respect to this dimension of politics. Since the diverse cultural ways of the citizens are excluded or assimilated, it is, to that extent, unjust. Ibid. Tully argues that contemporary liberal constitutionalism is inadequate to the task of accommodating sub-national, non-monistic claims to representation. It is, however, not immediately clear that liberal constitutionalism is incapable of this accommodation. Liberal constitutionalism has been able to accommodate a variety of liberty-based self-rule claims. Could it not be amended in order to accommodate these claims? Tully rejects this possibility. He suggests that the common language of contemporary constitutionalism created and preserves an “empire of uniformity.” Strange Multiplicity 58-98. He levels this charge against a substantial chunk of the canon of political and constitutional theory and practice, including Rousseau, Adam Smith, Kant, Constant, Hegel, Paine, Locke, and Hobbes. Ibid 42. He claims that, while they disagree on a wide range of significant aspects of constitutionalism, they all possess a “shared horizon” Ibid. of political and constitutional thought that is antagonistic toward constitutional diversity. For Tully, this hostility “constitutes” liberal constitutionalism’s “very core.” W Scheuerman, ‘Constitutionalism and Difference’ 47 U. Toronto L.J. 263 1997, 266. It creates a non-rebuttable presumption of uniformity within contemporary constitutionalism that suppresses minority practices and discontent. Constitutionalism, Ancient and Modern To evidence this point Tully points to a range of examples of monistic nation-building to the exclusion of dissenting minority voices, ranging from Fichte’s Addresses to the German Nation to John Jay’s portrayal of the American people as being one connected country to one united people – a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence. A Hamilton, J Madison, and J Jay (C Rossiter Ed.), The Federalist Papers, (Penguin, New York: 1961) 38. Modern constitutionalism is portrayed as being a continuation of this monistic nationalism. Liberal constitutionalism cannot overcome this using its default of approach of creating new sovereign states, as creating the number of distinct nation states required to reflect these different identities would be implausible, impractical, and may weaken many of the groups seeking recognition. Liberal constitutionalism is, therefore, in this sense inadequate to the task of accommodating diversity due to its inability to disassociate itself with its empire of uniformity. This leads to the “firm convention of modern constitutionalism… that the aim of constitutional dialogue is a uniform and comprehensive legal and political association.” Strange Multiplicity 55. This goes beyond a mere tendency, and leads to a sense that, in Gavin Anderson’s words, the “historic mission of modern constitutionalism… has been to prevent key aspects of constitutional knowledge being opened to debate.: G Anderson, ‘Imperialism and Constitutionalism’ in E Christodoulidis and S Tierney (Eds.) Public Law and Politics: The scope and Limits of Constitutionalism op. cit. 137. In contrast with the pre-nationalist “ancient” constitutional structures, sovereign peoples now create legally and politically uniform constitutional orders, in which citizens are treated “identically rather than equitably, of one national system of institutionalised legal and political authority rather than many, and a constitutional nation equal in status to all the others.” Ibid 66. It is immanent to contemporary constitutionalism that citizens engage with the constitutional order in an array of essentially undifferentiated ways, for example through voting. It leaves no room for unconventional or alternative methods of constitutionalism or democratic participation; it precludes “truly open and free-wheeling constitutional dialogue” as “from the outset, certain forms of participation and decision making are excluded, whereas other are given a privileged status.” W Scheurman, Constitutionalism and Difference op. cit. 268. Tully challenges those theorists, like Habermas, who seek to divine and celebrate universal constitutional devices as being blind to the potential diversity of constitutional forms. Strange Multiplicity 131. Taken together, this monolithic contemporary constitutionalism and the blanket application of its consequential principles – e.g. the separation of powers – form an imperialistic imposition of dominant Western values. There can be no presupposed universal “shared, implicit norms” within diverse societies. Ibid 131. Modern constitutionalism, therefore, is an inappropriate set of intellectual tools with which to seek to embrace the multiplicity of cultures that are the hallmark of the contemporary world. Walker describes Tully’s view of this formation of constitutionalism as arguing that “the deep rules of the game are… skewed in favour of empire…” N Walker, ‘The Reframing of Law’s Imperial Frame: A Comment on Tully’ in E Christodoulidis and S Tierney (Eds.) Public Law and Politics op. cit. 119. In its stead Tully argues in favour of what he variously calls common and ancient constitutionalism. This form of constitutionalism was the standard set of practices which formed, Tully contends, the progenitors to the Westphalian nation state conception of constitutionalism. No single model of constitutionalism was dominant in that period. Instead, a diversity of approaches and principles governed constitutional dialogues, a selection of which he discusses. Tully’s prescription is a ‘form of accommodation’ for cultural diversity, and he proposes a “simple and somewhat obvious answer” to this problem in creating a vision of a constitutional order that is seen as a form of activity, an inter-cultural dialogue in which the culturally diverse sovereign citizens of contemporary societies negotiate agreements on their forms of association over time in accordance with the three conventions of mutual recognition, consent and cultural continuity. Strange Multiplicity 30. These conventions come into being and are deemed authoritative “in the course of constitutional practice, including criticism and contestation of that practice” and “gradually gain their authority by acts in conformity with them and by appeals to them by both sides, as warrants of justification, when they are transgressed.” Ibid 116. In noting this, Tully argues that the varied claims of political recognition form a “motif”, that can be reduced to the demand for the rejection of an “alien form of rule and the aspiration to self-rule in accord with one’s own customs and ways.” Ibid. This he places in the broader context of claims of political liberty, which he defines as the republican freedom from domination and to rule one’s self. Tully augments this traditional understanding with an acknowledgment of the multiplicity of recognition demands. The recognition of this multiplicity is distinctly modern, and requires the creation of a constitutional structure and political culture that enables all participants to express their political views and culture in such a way that “renders everyone their due, so that all would freely consent to this form of constitutional association.” Ibid. This, drawing on the language of Charles Taylor Multiculturalism op. cit., he terms mutual recognition. Arendt’s Table of Mutual Recognition To begin with, Tully defines his mutual recognition as what it is not. He discards traditional constitutionalism’s exclusionary imposition of a monolithic culture on the constitutional order. At the same time, he rejects what he colourfully terms “Esperanto constitutionalism”, the liberal ideal of constitutionalism which seeks to avoid the recognition of any culture at all. Strange Multiplicity 7. Much like how purportedly ideology-free political and economic philosophies like neoliberalism are deeply dogmatic in practice For a broader discussion of this point in relation to neoliberalism, see W Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books, New York: 2015)., this illusory permissiveness conceals the true nature of the constitutional culture, which is as imperialistic as nationalist monolithic constitutions. Such an approach fails to “unit[e] the citizens on a constitution that transcends cultural diversity” and instead “fosters disunity.” Ibid. These nationalist and liberal conceptions of constitutionalism have each contributed to the current state of political disharmony across the world. Tully cautions against eliding the idea of mutual recognition with the recognition of cultures exclusively through the creation of nation states. Whilst this would be possible in certain instances E.g. Scotland., with the scale of diversity in the world today it is not possible to create a sovereign nation state for each cultural group. Instead, a recognition that there are various forms by which a cultural “nation” may be recognised that do not result in the creation of a Westphalian nation state is necessary. This necessitates a break from the traditional understandings of a variety of constitutional, legal and political concepts, such as popular sovereignty, citizenship, and democracy. The very idea of a cultural identity must be reformed. Contemporary societies are not multicultural but intercultural, in that they interact and evolve with and in dialogue with, rather than being hermetically sealed from, each other. Strange Multiplicity 11. Moreover, cultures themselves are not internally static; they are “constantly contested, imagined and reimagined, both by their members and through interaction with others.” Ibid Like Arendt’s table “To live together in the world means essentially that a world of things is between those who have it in common, as a table is located between those who sit around it; the world, like every in-between, relates and separates men at the same time.” H Arendt, The Human Condition (2nd Edn) (University of Chicago Press, Chicago: 1998) 52., they are both distinguished from and connected to each other. It is in this sense that instead of the traditional conception of a monistic collective expression of the will of the people, that a “tangled labyrinth of cultural voices constitutes the popular sovereignty of contemporary societies.” Strange Multiplicity 13. This means that cultural difference necessarily forms part of one’s own cultural experience; it is this “aspectival intercultural space” Ibid. that puts each citizen on “to some extent a negotiated [and] intercultural… ‘common’ ground with some degree of experience of cross-cultural conversation and understanding” who spend their lives “encountering and being with diverse others who exhibit both cultural similarities and dissimilarities.” Ibid 14. This creates a shared space and starting point for all citizens. It is on this shared terrain that Tully’s politics of mutual recognition takes place. Mutual recognition, therefore, is the practice of intercultural dialogue which is itself aimed at creating constitutional structures within which unavoidable difference and plurality can be recognised and accommodated. Consent and Cultural Continuity Consent and continuity are related concepts. True consent can only take place within a structure of mutual recognition and respect. Consent in Tully’s formulation is inferred from cultural practice. Ibid 61. It is predicated on the Latin maxim quod omnes tangit ab omnibus comprobetur (what touches all should be agreed by all). Ibid 122. The example of this that he gives is the American Supreme Court case of Worcester v State of Georgia 31 U.S. (6 Pet.) 515 (1832)., in which Chief Justice Marshall’s opinion embraces the idea of the Aboriginal peoples of North America as as self-governing nations who engaged in free negotiations with the British Crown. Each side of the negotiations between the Crown and the aboriginal peoples recognised the other as a consenting nation or proto-nation, and negotiated treaties to acquire land between the two. The aboriginal people’s practice and custom developed to recognise these treaties, meaning that the notion that the aboriginal people are consumed as minorities within a single constitutional whole or are incapable of consent are dispensed with. The convention of consent, therefore, ensures that “a constitution or… amendment to it rests on the consent of the people, or the representatives of the people who are touched by it.” Strange Multiplicity 122. The convention of continuity flows from and is related to the convention of consent. It exists in contrast with the Norman doctrine of discontinuity. It respects the continuity of “mutually recognised cultural identities of the parties… through the constitutional negotiations and associations agreed to unless [the party/ies] explicitly consent to amend them.” Ibid 124-5. This convention is illustrated by the creation of the federation of Canada. Contemporary constitutionalism perceives this as the sublimation of the provinces into the federal infrastructure, and the resultant creation of sub state units. Common constitutionalism regards it as the “creation of a federal government by the delegation of some provincial powers and the continuity and co-ordinate sovereignty of the diverse Provinces.” Ibid 141. This meant that the provinces’ legal and political institutions endured through confederation to create “an equality between them [and the federal state] or rather a similarity of powers, and that each of the two powers [was] sovereign within its respective spheres.” L Loranger, Lettres sur l’interpretation de la constitution fédérale: premiére letter (1883) quoted in Strange Multiplicity 141-2. Diverse Federalism – Irregular and Multiform Assemblages With these three conventions extricated from the the universalist conventions of contemporary constitutionalism, the “politics of cultural recognition … can now be seen as the extension of this common constitutionalism … a third cluster of anti-imperial struggles against the seven features of modern constitutionalism and for the liberty to engage in self-rule in accord with citizens’ diverse cultural ways.” Ibid 184. This creates a continuity with the ancient common constitutionalism. This leads Tully to an idea that terms “diverse federalism.” Ibid 140. As discussed above, modern constitutionalism struggles to recognise intersecting legal and political cultures within states. The creation of a singular people, “nation and… uniform order of modern legal political institutions make the recognition and accommodation of diversity impossible” leaving “assimilation or secession” as the only available options for diverse groups. Ibid. Diverse federalism is a means by which different groups can “mutually recognise and reach agreement on how to assemble or federate the legal and political differences they wish to continue into the association.” Ibid. It allows for sub-state units to continue to exist and co-ordinate their sovereignty. The clearest discussion of this diverse federalism is found in Justice Thomas-Jean-Jacques Loranger’s discussion of the creation of Canadian federation. Letters sur l’Interpretation supra, quoted in Strange Multiplicity 141. The federation of the four provinces was characterised by Loranger in the following two most salient ways: i) each province recognised each other’s autonomy, which had developed and been recognised through usage, which had been “guaranteed to them by Treaties and Imperial Statutes” Ibid. “founded on the consent and recognition of those principles which guide the British Constitution” Chief Justice Dorion (1874) quoted in Strange Multiplicity 141.; and ii) each province “retained their own government for their local affairs.” Ibid. Taken together, this meant that the legal and political institutions of the provinces remained intact. Their autonomy over their internal governance continued within the federal structure, which resulted in an “equality between them or rather a similarity of powers, and that each of the two powers is sovereign within its respective spheres.” Ibid. This “irregular and multiform assemblage” Quoted in Strange Multiplicity 142. is embodied in principles of equal recognition and autonomy. It is well suited to asymmetrical power sharing, with some provinces retaining greater authority than others, and results in the creation of overlapping and multifaceted political identities for its citizens. This form of federalism also requires majority rule governed by the principles of consent and continuity, and is intimately related to early liberalism, with its focus on voluntary association; as Loranger said, “a right or a power can no more be taken away from a nation than an individual, except by law which revokes it or by voluntary abandonment.” Ibid 143. In a passage of relevance beyond Quebec, Loranger rails against the idea that a nation would sublimate itself entirely to a union: Why should the Province of Quebec, for example, have, on an inauspicious day, with utter want of thought, abandoned its rights the most sacred, guaranteed by treaties and preserved by secular contests, and sacrificed its language, its institutions and its laws, to enter into an insane union, which, contracted under these conditions, would have been the cause of its national and political annihilation? And why should the other provinces, any more than Quebec, have consented to lose their national existence and consummate this political suicide? Strange Multiplicity 144. Tully, citing Locke, explains that contemporary constitutionalism is predicated on the presumption that this has taken place. It, thus, provides a straitjacket into which all states must squeeze themselves. Diverse federalism is more complex and onerous than contemporary constitutional forms, necessitating cultural sensitivity and the complex weighing of competing values. This is worth it, Tully contends rather flamboyantly, as if the three conventions were followed then the situations in Northern Ireland and the Middle East would be resolved more easily. Ibid 174. Nonetheless, Tully’s observation that “constitutions are not fixed and unchangeable agreements reached at some foundational moment, but chains of continual intercultural negotiations and agreements in accord with, and violation of the conventions of mutual recognition, continuity and consent” holds. Ibid 183-4. Diverse federalism creates the structures in which diversity of constitutional understanding can be accommodated, and recognises that the aims of cultural negotiations over cultural recognition is not to reach agreement on universal principles and institutions, but to bring negotiators to recognise their differences and similarities, so that they can reach agreement on a form of association that accommodates their differences in appropriate institutions and their similarities in shared institutions. Ibid 131. Tully and Wittgenstein Wenman describes Tully’s agonistic work as “a rigorous application of Wittgenstein’s late philosophy to an analysis of political thought and practice.’ Op. cit. 150. It is accordingly necessary to summarise some relevant aspects of Wittgenstein’s late philosophy. Wittgenstein describes the “traditional essence of the human language” in the following terms: The individual words in language name objects – sentences are combinations of such names. In this picture of language we find the roots of the following idea: Every word has a meaning. This meaning is correlated with the word. It is the object for which the word stands. L Wittgenstein, Philosophical Investigations (Blackwell, Oxford: 1967) 1. This understanding can be traced back to Augustine: When they [Augustine’s elders] named some object, and accordingly moved towards something, I saw this and I grasped that the thing was called by the sound they uttered when they meant to point it out. Their intention was shewn by their bodily movements, as it were the natural language of all peoples: the expression of the face, the play of the eyes, the movement of other parts of the body, and the tone of voice which expresses our state of mind in seeking, having, rejecting, or avoiding something. Thus, as I heard words repeatedly used in their proper places in various sentences, I gradually learnt to understand what objects they signified; and after I had trained my mouth to form these signs, I used them to express my own desires. (Confessions. 1. 8.) This conventional understanding is present throughout Wittgenstein’s earlier work. In his later work, however, he demonstrated the insufficiency of this approach, and developed a fresh approach to language aimed at separating language from such referential understandings of the world. A Ahmed, Wittgenstein’s Philosophical Investigations: A Reader’s Guide (); A Matar, Modernism and the Language of Philosophy () CH.2. Wittgensteinian language, therefore, is not a function of correspondence to the physical world, but a series of language-games in which we all participate. Language-games can be understood in the context of Wittgenstein’s idea of “forms of life.” Forms of life are generally accepted practices and require “not only agreement in definitions but also (odd as it may sound) in judgments.” 242. Forms of life are “changing and contingent, dependent on culture, context, history, etc” A Biletzki and A Matar, ‘Ludwig Wittgenstein’ in E Zalta (Ed) The Stanford Encyclopedia of Philosophy <https://plato.stanford.edu/archives/fall2016/entries/wittgenstein/>. and can be understood as “shared human behaviour… the system of reference by means of which we interpret an unknown language.” More specifically, the notion of language-games makes clear that language is governed by rules. Wittgenstein’s conception of rules is intimately related to the concepts of conventions. Rules are not comprehensive or immutable, but flexible and contingent. This fits into his broader “rejection of general explanations, and definitions based on sufficient and necessary conditions…” Ibid. Instead language is best understood through the metaphor of “family resemblance”: There is no reason to look, as we have done traditionally—and dogmatically—for one, essential core in which the meaning of a word is located and which is, therefore, common to all uses of that word. We should, instead, travel with the word’s uses through “a complicated network of similarities overlapping and criss-crossing.” Family resemblance also serves to exhibit the lack of boundaries and the distance from exactness that characterize different uses of the same concept. Ibid. Language, therefore, possesses no metaphysical and essential meaning in language; it is, instead, a function of cultural practice. The rules are not immutable and can be altered in a straightforward way through practice. For Wittgenstein, “the term ‘language-game’ is meant to bring into prominence the fact that the speaking of language is part of an activity, or a form of life…” Philosophical Investigations 23. Meaning, therefore, “for a large class of cases of the employment of the word… can be explained in this way: the meaning of a word is its use in the language.” Ibid 43. The significance of this for Tully’s philosophy is that it means that we cannot detach ourselves from our cultural understandings of meaning. This can be contrasted with much of the contemporary Western tradition, most notably Habermas’ universalism. J Tully, ‘Wittgenstein and Political Philosophy: Understanding Practices of Critical Reflection’ in Political Theory 17(2): 172–204,174-8. Tully’s view proceeds upon a rejection of this, arguing that there exists “no metacontextual political theory” against which political demands can be judged. J Tully, ‘Political Philosophy as Critical Activity’ in Political Theory 30(4): 533–55, 544. This leads him to reject the idea that any “type of critical reflection can play the mythical role of founding patriarch of our political life.” Ibid 554. In doing this, Tully does not offer “yet another solution, but… a survey that brings to critical light the unexamined conventions that govern the language games in which both the problem and the range of solutions arise.” Strange Multiplicity 35. For Tully, the language and practices associated with the neo-Kantian world order which remains dominant today – that of nation states that are more or less equal on the international plane – is a direct descendant of the overtly colonialist past. J Tully, ‘The Kantian Idea of Europe: Critical and Cosmopolitan Perspectives’ in A Pagden (Ed.) The Idea of Europe: From Antiquity to the European Union (Cambridge: CUP, 2000) Moreover, this conception is so hegemonic that most are unable to think of it as anything other than the unassailable natural order of things, and consequently do not subject the international order and its power imbalances which have developed from it to scrutiny. Applying and modernising Foucalt’s analysis of governmentality, Tully maps the new modalities of control. These are intrinsically linked to the logic of the market and neoliberalism and render citizens passive consumers by coordinating their activity “behind their backs, without their say through the market, bureaucracy, or the functional intermeshing of the unintended consequences of their actions.” Vol II 50. The operate supranationally and seldom possess any democratic values. This process of globalisation has affected a “shift from the direct, territorial forms of control characteristic of the long age of European and American imperialism to new forms of non-territorial imperialism based on control of peoples and markets by indirect, infrastructural control.” Ibid 58. This has had a disproportionate impact on developing countries and indigenous peoples. The ‘hegemonic great powers and their accompanying institutions recognise the imperialised or subalternised peoples as self-governing constitutional states and they interact with them on this basis, yet within the deeply unequal hegemon-subaltern relations of economic, political, legal, educational and military power laid down over centuries of Western expansion…” Ibid 196. Significantly, Tully explains that the impersonal forces of neoliberalism outlined above and the philosophy that underpins it are fiercely individualistic. As a result, rights associated with the respublica are deprioritised and diminished. Neoliberalism’s focus is on “the modern liberty to participate in the private economic sphere and not to be interfered with… to engage with the capitalist economy… [and] the modern civil liberty of private property and contracts”, and has successfully expanded many of these rights to artificial corporate persons. Ibid 251. The position has perhaps been taken to its logical conclusion in the United States Supreme Court decision of Citizens United v Federal Election Commission 558 U.S. 310 (2010), the absurdity of which was summed up in a dissent by Justice Stevens (76): It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established. The bizarre implications of the decision were inadvertently revealed by the Republican Party’s nominee for President in 2012, Mitt Romney, when he declared at a campaign event that “Corporations are people too, my friend.”: A Parker, ‘Corporations Are People, Romney Tells Iowa Hecklers Angry Over His Tax Policy’ New York Times August 11, 2011. Popular participation and influence over issues once at the centre of political life have waned, creating a mutually reinforcing cycle of anomie leading to the fetishization of “capitalist patterns of consumption” and “religious and cultural identities.” Ibid 217. Taken together with technological advances which transcend the ordinary mechanisms of democratic and legal control and “reproduce the unequal nodes of communication, commerce and military rule laid down over five hundred years of European-American imperialism” Ibid 176., the hold of contemporary constitutionalism is increasingly tenuous and traditional responses irrelevant. Indeed, “the classic picture of a bounded people overthrowing their unjust regime and setting up a new government as they see fit within new states has quite limited application, and yet it continues to prevail, perhaps because it hides the unjust reality.” Ibid 299. These processes were and are enabled and subject to historical revisionism by the language of contemporary constitutionalism. Language associated with invasions, genocides, and “the imposition of European economic and political systems” is “replaced with the captivating picture of the inevitable and benign progress of modern constitutionalism.” Ibid 78. Any deviation from these dominant conceptions is discouraged and marginalised consciously and subconsciously by dominant language-games. Tully further utilises Wittgenstein’s philosophy to his model of agonistic dialogue. Tully applies the aforementioned concept of forms of life to constitutional discussion. Interpretation is secondary to “pre-reflexive understanding.” Constituent Power op. cit. 154. Interpretation is used only “when your customary understanding and use of signs is in some way problematic or in doubt.” ‘Wittgenstein and Political Philosophy: op. cit. 196. Taken together with Wittgenstein’s interpretation of rules Tully suggests that it “is always possible to interpret and apply it [a rule] in various ways.” Strange Multiplicity 106. Language rules are continually subverted in day to day life. In this sense they are like all social rules, as opposed to immutable laws of nature. Wittgenstein uses the analogy of a series of signposts to illustrate this: “… is there only one way of interpreting them? So I can say, the signpost does after all leave no room for doubt. OR rather: it sometimes leaves room for doubt and sometimes not. And now this is no longer a philosophical proposition, but an empirical one.” Ibid 85. Tully applies this conception to agonism. If “rule following is interactive rather than passive obedience to a prescribed norm” Vol I 296. then the “conflict, negotiation and discussion” Ibid 303 that characterises societal interactions represents the struggle of peoples to “free themselves from and modify” J Tully, ‘‘Struggles over Recognition and Distribution’ in Constellations 7(4): 469–82, 479. the constitutional rules of the game. Laugier notes that this implies a “sceptical dimension in the rule itself.” S Laugier, ‘Wittgenstein and Cavell: Anthropology, Scepticism, and Politics’ in A Norris (Ed.) The Claim to Community: Essays on Stanley Cavell and Political Philosophy (Stanford University Press, Stanford: 2006) 37. All aspects of the legal, political, and social structures of society are subject to disagreement and contestation. The goal, therefore, is not “final agreements on universal principles or procedures,” but “ensuring that constitutional democracies are always open to the democratic freedom of calling into question and presenting reasons for the negotiation of the prevailing rules of law, principles of justice, and practices of deliberation.” J Tully, ‘Exclusion and Assimilation: Two Forms of Domination in Relation to Freedom’ in M Williams and S Macedo (Eds.) Political Exclusion and Domination (New York University Press, New York: 2005) 208. Glocal Citizenship Intimately related to this is Tully’s idea of Glocal Citizenship. This is the “global networking of local practices of civic citizenship.” Ibid 246. Marginalised groups around the world have resisted the language-games of neo-Kantianism been able to sustain their “diverse practices and forms of life” outside the realms of conventional constitutional and political power. J Tully, On Global Citizenship: James Tully in Dialogue (Bloomsbury, London: 2014). His depiction of vertical glocal power is conventional, but his interpretation of horizontal citizen to citizen glocalism is innovative. A range of unsanctioned and inventive forms of “cooperative federations” exist around the world which “avoid assimilation and sustain alternative worlds”, taking place “beneath the dead machinery of conformity.” Ibid 293, 256. In the “modernised West” a “vast repertoire of local citizenship practices have survived within the interstices of state-centric modern citizenship.” Ibid 75. This new form of constituent power is of increasing significance. Agonistic Liberty and Democracy: “Freedom is the practice of freedom.” Vol I 36. As we saw above, Tully distinguishes between ancient constitutions, which were multiform in character in that they accommodated various interpretations and implementations within their territorial reach, and modern constitutions which are uniform in character, in that they require a single sovereign people with a singular understanding of the constitutional order. In a contemporary reimagining of the ancient constitution, Tully proposes a “diverse federalism” of “more or less self-governing and overlapping political associations with somewhat dissimilar legal and political ways.” Strange Multiplicity 164. In order to manifest this in reality, “legal pluralism acquires concrete institutional form through a constitutional dialogue between the different groups vying for cultural recognition.” H Lindahl ‘Democracy, Political Reflexivity and Bounded Dialogues: Reconsidering the Monism-Pluralism Debate’ in Public Law and Politics op.cit 105 This is realised through the application of three conventions of mutual recognition, consent, and continuity. Once realised, a highly contestatory constitutional order exists in which all aspects of the constitutional order are open to challenge. In practice, however, quotidian disputes must take place within a framework which is not typically open to contest for fear of infinite regression. This means that whilst recognising the essential struggle regarding “fundamental values and structures of political life” within democratic societies, Tully suggests that this struggle “can and should take place within a framework which encourages mutual respect for and meaningful communication between different values and identities.” E Wingenbach, Institutionalizing Agonistic Democracy: Post-Foundationalism and Political Liberalism 2nd Edn. (Routledge, London: 2016) 54. Rules will always regulate political activities, but they must be distinguished from the practices they exist to nourish. These rules are essential, as unrestrained disputation will almost inevitably lead, paradoxically, to the anti-democratic perpetuation of the control of the already powerful, but must be available for contest and cannot constitute a “permanent foundation or framework which underlies democratic debate and legislation... [the rules are] open in principle to democratic challenge, deliberation and amendment.” J Tully ‘The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy’ 65 MLR 204 (2002), 207, 208. For Tully, the establishment of such rules which are subject to potential contestation forms the basis of constitutional agonism. Tully imagines contestation and disruption as the core of the political and configures it at the centre of democratic regimes. He perceives this as playing constructive role within democratic frameworks, and seeks to have these frameworks secure participation and co-operation while institutionalizing dissent. Thus far, his perception of agonism is similar to Mouffe’s and others. This distinction comes with Tully’s focus on “dialogical participation”, the “ways in which practices of civic freedom – practices of having a say and modifying the rules of the democratic game” work in tension with government practice. P Tambakaki, ‘The Tasks of Agonism and Agonism to the Task: Introducing “Chantal Mouffe: Agonism and the Politics of Passion”’, Parallax, 20:2, 1-13, 4. He is heavily influenced by Foucalt’s agonistic understanding of freedom: Rather than speaking of an essential freedom, it would be better to speak of an “agonism” – of a relationship which is at the same time reciprocal incitation and struggle; less of a face-to-face confrontation which paralyzes both sides than a permanent provocation. M Foucault, Beyond Structuralism and Hermeneutics (Harvester, Brighton: 1982) 222-3. Following this and in echoes of aspects of Pettit and Skinner’s contemporary republicanism, Tully creates a binary between domination and confrontation. Freedom is characterised by the ability to engage in the latter. Freedom is manifested in self-determination, the refusal to be dominated and the confrontation of dominant forces in society. This means that a free subject can struggle against the “sedimented” practices of society. Political practices of society will be carried out by the government. This agonistic resistance and struggle is the essence of Tully’s freedom. This reveals, in turn, that agonism for Tully means that collection of “provocations, frictions and modifications that arise between governance and freedom.” Tambakaki ‘The Tasks of Agonism’ 4. Democracy, for Tully, is synonymous with freedom as If it is always possible to go on differently, if a consensus on the rules has an element of ‘non-contestability’, then an important aspect of concrete human freedom will be ‘testing’ the rules and purported meta-rules of the current game, ensuring that they are open to question and challenge with as little rigidity or domination as possible, and experimenting with their modification in practice, so humans are able to think and act differently. Public Philosophy in a New Key: Vol I (CUP, Cambridge, 2008) 144. Democracy exists “in the extensive sense: the exercise of the abilities of the governed to negotiate the way their conduct is guided.” Vol II 57. This means that the constituent power is omnipresent and presents the possibility of “irreversible change… [which] surrounds all significant action, no matter how ‘rule guided’.” Vol II 207. The agonistic constitution exists to “express the current best understanding of how a particular society has negotiated the process of democratic contest.” Institutionalizing 54. Constitutions, therefore, are secondary to democratic practices. A constitution, for Tully, is legitimized not by its “approximation to some ideal consensus, but rather on the mutual relationship between the prevailing rules of law and the democratic and judicial practices of ongoing disagreement, negotiation amendment, implementations and review.” Vol II 209. The constitutional order sustains and is in turn sustained by democratic praxis. Tully argues that agonism need not impose constant struggle, however. What is necessary is that contestation of all aspects of a democratic order is possible: Particular negotiations will proceed in accord with some principles, rule and procedures which are not questioned in the course of negotiations, on pain of infinite regress, to be constitutionally legitimate, but which must be open to democratic review in the future, to be democratically legitimate. Ibid 208. In order to have democratic discourse, there must be at least a temporary agreement to the rules of the debate. This creates a state of stable dissensus. This is the essence of the democratic within agonistic constitutionalism: the constitution is a negotiated product of struggle, is subject to revision at any time in response to the democratic agonism of the political, the enabling of which is the purpose of the constitution and from which it derives its legitimacy. Institutionalizing 56. The agonistic constitution does not create a terminus for dispute; to do so would be inherently antagonistic. Instead, the agonistic constitution acts as another venue of contestation. Debates and arguments continue after a constitutional act (e.g. a supreme court decision) and continue to be contestable by those who have “lost” from such acts. This revocability means that “the dissenters remain attached to their democratic society because they know that the reconciliation they lost is in turn potentially open to contestation, negotiation and amendment in the future.” Vol II 216. What renders Tully’s agonism more recognisable and, perhaps, realistic than the work of Mouffe and other agonists as a set of coordinates for constitutional action is his reliance upon a set of “constituents [that] are held firm and provide the ground for questioning others.” J Tully, ‘The Agonic Freedom of Citizens’ in Economy and Society 28(2): 161– 82, 170. The alteration of any given rule or principle is possible only within a broader structure that is not contested in each given potential rule alteration. These “take place against, and [are] justified with reference to, the broad and relatively stable background of customary agreements in judgment that are not questioned in any given critical discussion.” Strange Multiplicity 40. It is this role that mutual recognition, consent, and cultural continuity perform. They are “immune from direct criticism.” Ibid 177. This entrenchment develops through the adherence to these conventions from representatives of all sides of constitutional and political debates. They are mutually reinforcing and, with the resultant adherence to the principles of reciprocity and mutual recognition, conducive to the popular belief that diversity itself is a common good. Ibid emphasis added. In this sense, Tully’s agonism operates to buttress the principles of modern liberalism and contemporary constitutionalism. His project is not to entirely supplant liberalism, but to reconfigure it on more intellectually stable and coherent foundations in order to protect its values. Indeed, Tully is frequently pragmatic. He suggests that even in circumstances in which a constitutional order “harbours elements of injustice” it may be legitimate if its fundamentals are open to “disagreement, negotiation, amendment, implementation, and review.” ‘Exclusion and Assimilation’ op. cit. 196. The key is to ensure that constitutional principles are not passed down generations in a monologistic manner, but through a dialogistic or multilogistic process of mutual recognition. Vol I 303-310 The guiding principle of Tully’s agonism, therefore, is audi alteram partem, “’always listen to the other side’, for there is always something to be learned from the other side.” ‘Exclusion and Assimilation’ op. cit. 208. Tully on Multinational States The final section of this work will focus on Tully’s treatment of multinational states. Although the primary focus of his work is the treatment of indigenous and aboriginal peoples, Tully does discuss plurinational states at certain points in his work. Multinational states present a complex challenge to traditional conceptions of constitutionalism. The primary examples – the United Kingdom, Spain, Belgium, and Canada – are marked by varying degrees of ill-treatment of national minorities in their (sometimes very recent) pasts, but each now possesses advanced constitutional accommodations of the nations which make up their states. At the same time, each state remains subject to secessionist and sub-state nationalist demands for enhanced recognition. Tully’s intention is not to create the “crystalline purity of a theory of multinational democracy”, but to offer many complimentary, specific, theoretical, and institutional sketches of the ‘rough ground’: that is, the activities, practices, dynamics, tensions, institutions, administrative arrangements, policies, procedures, structures, movements, citizenship, parties, struggles for and against recognition, obstacles, disagreements, laws, constitutions, shared sovereignty, values and norms that characterise these emerging polities. Vol I 185-6. This “provisional toolkit” Ibid 188. is not of constitutionalism in its narrow sense of government (indeed, the constitution is not mentioned until near the end of that list), but of the broader Foucaltian governmentality. That is, the various mechanisms of state control over citizens and groups beyond the ordinary use of sovereign power and conventional state apparatus. M Foucault, Security, Territory, Population: Lectures at the Collège de France 1977-1978 (M Senellart, ed; G Burchell, trs) (Palgrave Macmillan, Basingstoke: 2007). Discussed at length in M Dean, Governmentality: Power and Rule in Modern Society (Sage, London: 1999). Multinational democracies are i) constitutional associations of multiple states of more or less equal status, not merely a single nation with minority groups within it seeking recognition; ii) the citizens and substate governments of the association participate in the politics and government of the broader association; iii) the individual nations are discrete constitutional democracies in their own right; and iv) the democracies are multicultural and “the struggles over minority and multinational diversity overlap, compete and undergo democratic negotiation as well.” Vol I supra 188. Tully argues that the extent to which multiple nations can be accommodated within one associative state has “reached a historical limit and is passing though a transition to a new orientation; a new self-understanding of the citizens, politicians and civil servants involved.” Ibid 189. This is due to the recognition of the inability of these broader states to resolve with any degree of permanence their internal struggles to the mutual satisfaction of the participating states. This “plurality of contests over recognition” is a function of the insoluble nature of the internal struggles and the process of this struggle, the “intersubjective activity of striving for and responding to forms of mutual recognition”, generates legitimacy for these states. This is termed the activity of mutual disclosure and acknowledgment. Ibid The central question of constitutionalism, therefore, is no longer how to provide definitive answers to these unsettled questions, but how to create structures, institutions, mechanisms, forums, and principles in which the different perspectives on them can play out to the satisfaction of participants. In a sense, to transform constitutional politics from exceptional, special questions which require quasi-definitive solutions, into ordinary, contingent politics. Placing this into Tully’s broader philosophical approach, the central question of constitutionalism is transformed into one of what constitutional formats are best suited to facilitate this with “as little domination as possible.” Ibid. Here we see the application of his recognition that there may be some domination within an otherwise legitimate constitutional structure. Noted above. The central issue for Tully now becomes one of freedom, therefore. More specifically, the freedom to reject the traditional understanding of self-determination and popular sovereignty as the definitive sublimation of one’s identity or culture within a uniform whole and replace it with an understanding of it that allows for an “enduring dimension of modern politics: the public disclosure of misrecognised identities and the demand that the other members [of the broader community] acknowledge these and respond.” Ibid 190. For a sustained discussion of the agonistic problematizing of popular sovereignty see J Frank, ‘Staging Dissensus: Frederick Douglass and ‘We, the People’’ in A Schaap (Ed.), Law and Agonistic Politics (Ashgate, Edinburgh: 2009). The response must be the creation of constitutional and political structures that have contestation and amendment built in to it. If not, the structure constitutes a form of domination. Tully references the liberal conception of democratic societies espoused by Rawls J Rawls Political Liberalism (Columbia University Press, New York: 1993). and Laden. A Laden, Reasonably Radical: Deliberative Liberalism and the Politics of Identity To be a free and democratic society, it is necessary for it to be largely self-sufficient, and exhibit a fair system of social, political, and economic cooperation. Rawls describes cooperation as “guided by publicly recognised rules and procedures that those cooperating accept and regard as properly regulating their conduct” regulated by the “fair terms of cooperation… that every participant may reasonably accept, provided that everyone else likewise accepts them.” Political Liberalism supra 16. These structures of cooperation form the constitutional norms of a given society. This establishes the framework in which substate national claims are made. In this context freedom is exhibited by individual citizens and societies overall. All participants in society are free to accept these principles, seek to amend them, or reject them entirely and secede from it. The substate challenge to a constitutional identity and structure problematizes the constitutional identity of the overall demos. Tully draws repeatedly on the Quebec Secession Reference decision to illustrate and buttress his point. In this case the Supreme Court of Canada described the Constitution as “embrac[ing] unwritten, as well as written rules… [and] the global system of rules and principles which govern the exercise of constitutional authority.” Reference Re Secession of Quebec [1998] 2 SCR 217 32 quoted in Strange Multiplicity 195. In this sense, the constitution “is the present system of rules of mutual recognition that gives a society its constitutional identity.” Ibid. This identity is in four parts: i) it recognises the constitutional whole’s members; ii) it regulates the relations between the organs of the state, and between the organs of the state and its citizens; iii) it regulates the process of amendment and contestation of the constitution itself: and iv) it expresses the “principles, values and goods that are brought to bear on the identification of members, the relations among them, and the discussion and alteration of their identities and relations over time”, which are “many, none is trump, different ones are brought to bear in different cases, and there is reasonable disagreement and contestation about which ones are relevant and how they should be applied in any case.” Ibid 195-6. Tully argues that constitutions must also be guided by the principles of freedom – in both the private and public sense – equality – in the thick liberal constitutional and social democratic sense, as well as between different peoples within the state – and distinctness – in that each people has its own separate and distinct identities. These principles interplay to regulate constitutional activity within a state. The rights and principles invoked by a constitutional people seeking new or enhanced recognition is a function of the right of civil participation that each citizen possesses. This right is met, for Tully, by a duty of the other peoples of the state to recognise a reasonable demand for recognition or amendment of an existing recognition (which itself flows from a universalisation of the latter people’s right to civic participation). This is a function of the democratic principle, which leaves society in constant state of negotiation. Even in ostensibly settled constitutional structures, “inevitable, there will be dissenting voices.” Re Quebec 68, quoted in Strange Multiplicity 199. “What is definitive and permanent,” Tully argues, “is the democratic discussion and alteration of the rules over time.” Ibid. Why is this dissent inevitable? Recognition demands call for an amendment of not just the claimant, but the remainder of society. They are “taken up and struggled over by the other parties [those advocating status quo, constitutional change and/or secession] in discussions and negotiation… [and] take place in the processes and institutions of the third constitutional dimension and appeal to the principles, values and goods of the fourth.” Ibid 200. In this sense, a claim of recognition or enhanced recognition is reasonable if it takes into account and engages with the other existing identities and the identity of the constitutional whole. Any attempt at unilateral amendment, secession or, conversely, ignorance of the claims of others is unjust and contrary to the principles of democracy. At their worst, they lead to instability as the substate claim seldom, if ever, goes away. This means that the only democratic, free, and reasonable way to deal with substate claims of recognition is through the process of negotiation and contention associated with agonism. Each participant must have a voice in order for any individual to have a voice. This reciprocity lies at the heart of Tully’s agonism. There exists, therefore, an obligation to recognise and address a constitutional demand. The claimant is then obliged to respond to this response, and the quality of the claimant’s incorporation of these responses. Tully identifies three “free and democratic processes of identity discussion and formation that occur simultaneously in the procedures and institutions of discussion” of substate claims. 202. Emphasis in original. Firstly, a clear majority of citizens must be convinced that they are misrecognised (or, we may add, inadequately recognised) and that they should be recognised as a nation (or as a nation in a new sense); secondly, the broader unified whole is engaged in a discussion about how and if to amend the broader identity to incorporate this new recognition; and thirdly the other members of society debate whether to alter their own status recognition, separately from the original claimant. These three processes can be concomitant, and relate with each other in unexpected ways. At each stage, however, the arguments will be put in favour and against secession, constitutional renewal, and the status quo. 204. This activity, therefore, is “intersubjective, multilogical, continuous and agonistic.” 205. It is intersubjective in that each potential and actual identity within the state is altered by the claim. It is multilogical in that there is an almost infinite number of combinations of experience and culture that can combine to create individual logics of identity. Thirdly, it is continuous in that there is no possible terminus for the debates; there is no possible definite solution to the inherently irreducible questions of identity posed. Lastly, and most importantly for our purposes, it is agonistic in that it necessitates an ongoing struggle. Each claim of recognition necessitates acknowledgment and response from other citizens. In turn, they respond with their own claims of recognition. Claims are disclosed and then acknowledged, in an infinite loop of constant response and revision. These actions are ends in themselves. Nietzsche and others suggest that the mere act of participating in this process, even if unsuccessful, can “generate the levels of self-respect and self-esteem that recognition theorists claim can come only with formal recognition.” 207. Ironically, the creation of forms of final identity generally create new forms of oppression and control. These agonistic processes constitute “the activities of democratic freedom itself, of participation in accordance with the rules laid down by the last struggle for recognition and the challenging of these rules against the principles, values and goods” of the constitutional order. 208. Formal recognition, whether though formal constitutional change or secession, is not the end of the debate on recognition. A remainder will seek a return to the status quo ante, some will seek to enter or leave other transnational organisations, some will seek to challenge the limiters of sovereignty that come through globalisation. All any form of recognition can hope to create is a “form of acknowledgment [that] will count as recognition for a time in the course of the continual ‘conversation’ among the members of a constitutional association.” 208-9. Tully turns to who distinguishes a legitimate claim from an illegitimate one, and then to the mechanism for making this decision. This is no longer self-evident and unconsidered; instead, it forms part of broader political conversations. In the deepening of the commitment to democracy and the revival of the Latin maxim quod omnes tangit (what touches all must be approved by all), the universal nature of all claims of identity recognition have been acknowledged. Moreover, recognition claims outlined above lend themselves to intrinsically participatory and democratic processes: if a recognition claim is not placed through such a process, it will be “experienced as imposed, as misrecognition, and the struggle for recognition will be exacerbated…” 213. This democratic structure, if properly executed, is a process of citizenisation to the broader state and to the minority state. If the “processes of identity discussion, formation and claims-making are open and fair to those who choose to agree and disagree” then, as evidence by the English speaking minority in Quebec’s increased fidelity to the Quebec state when their recognition claims are taken seriously and incorporated into the Quebec state structure, participatory membership of the demos is possible. When these interests are minimised and foreclosed, either by binary and shrill referendums or by the failure to recognise competing cultural demands as legitimate, then that sense of belonging and participatory citizenship diminish, and the connection to the minority claim strengthen. The process of agreement is marked by free and democratic negotiations. Firstly, members formulate a constitutional demand for recognition in response to a misrecognition and in dialogue with the concerns of the other members of society. If supported by the other members of the proposed nation, then negotiations with the other members of society must begin anew. The competing principles and values of the overall constitutional whole will be weighed and prioritised by the constitutional whole. A decision will be made, and the recognition will take place. This will then be reinterpreted once viewed in practice in the constant and agonistic process outlined above. There is not and can not, by definition, be a definitive answer to the question of mutual recognition: “any form of mutual recognition, within the society or by secession, will always involve reasonable disagreement and varying degrees of the injustice of misrecognition.” 215. There will always be what Honig calls a remainder. The concept of “remainders” is explored in B Honig, Political Theory and the Displacement of Politics (Cornell University Press, Ithaca, 1993). Contrary to currently dominant liberal theories of recognition, therefore, the goal should not be to create arbitrary senses of resolution, but to value structures and processes of agonistic struggle of self-determination. “The way through the current impasse of failures to reach agreement on recognition in multinational societies,” Tully states, is to realise that such societies will be reasonably just and stable to the extent that the present constitutional identity is well supported in the three free and democratic processes of identity discussion and formation… and, most important of all, as the present constitutional identity is open to the exercise of the democratic rights of the members to challenge, discuss and amend it over time. 215. Tully’s treatment of multinational democracies is sophisticated and nuanced. He successfully alludes to the unavoidable limitations of all forms constitutional recognition, including secession, which is often erroneously presented as a nuclear option kept in reserve to escape the limitations of shared sovereignty. This more realistic conception of the reality of constitutional dialogue lays bare the unavoidably contestatory nature of recognition debates. Lindahl and Other Critics Liberal criticisms of Tully are obvious: his agonism seeks to open up to contestation fundamental norms that liberalism contends ought not to be contested. For a fuller discussion of this see M Blake ‘Liberal Foundationalism and Agonistic Democracy’ in Political Exclusion and Domination op cit. Their arguments are best summed up by Weinar’s assertion that there are in fact many rules in a liberal society that should never be open to democratic challenge and amendment. Here are three perfectly obvious rules: there should be no chattel slavery, there should be no persecution of religious nonconformity, and women should have the vote. It is a great achievement of our civilization that these rules have been insulated from democratic disputation, and we should resist any attempt at democratic negotiation or conciliation that attempts to change these rules. Our societies are more, not less, legitimate because these rules are permanently off the agenda of democratic deliberation, and we must try to keep them off that agenda. Our resolution of these issues is "definitive," and concerning them there is no "possibility of reasonable disagreement.” L Weinar, Democracy and Legitimacy: A Response to James Tully's "Exclusion and Assimilation" in Exclusion and Domination op cit. 245-6. In a similar vain, Patchen Markell provides a robust critique of Tully’s conception of recognition. P Markell, Bound by Recognition (Princeton University Press, Princeton: 2003) 16. He argues that Tully’s ideas concerning the conception of recognition do not go far enough, for they leave the notion of successful recognition in place as a regulative idea, a constantly receding horizon toward which our politics nevertheless ought to strive, interminably. They treat recognition as necessarily provisional, but… they do not force us to consider the more challenging possibility that the pursuit of recognition… might be an incoherent and therefore potentially costly enterprise. This criticism rests on the belief that a constitutional order’s goal is to create a terminus for political dispute. It suggests that the primary focus of a constitution should be to seek to resolve political disputes, and create mechanisms by which these disputes are formally entrenched. Agonism rejects these perspectives as impossible in practice due to the irreducible nature of conflict, and seeks to find value in the processes of disputation themselves. These criticisms are not of Tully per se, but instead of agonism. Such critiques were discussed in the previous general chapter on agonism. The more provocative response to Tully comes from Hans Lindahl. H Lindahl, ‘Democracy, Political Reflexivity and Bounded Dialogues’ op. cit. Lindahl at first reinterprets Tully. Lindahl demonstrates that immanent to the idea of self-rule which underpins Tully’s philosophy is the idea of collective action: in order for there to be a diverse federalism, there must be a reason to federate diversity. There must exist a an interest or a set of interests that is deemed to be common.” Ibid 108. Plurality and unity are not mutually exclusive: “to be intelligible as a defence of political self-rule, legal pluralism is not simply an argument against the unity of a legal order… but rather a thesis about how legal order is to be constituted as unity.” Ibid. Lindahl interprets Tully’s agonism and its focus on dialogue as essentially monistic as it is an attempt to achieve a form of unity in which a plurality of perspectives can recognise themselves as being parts of a whole. The task of a politics of cultural recognition is to overcome plurality, albeit provisionally, in a constitution that is culturally – and politically – ‘neutral.’ Ibid 110. It is in this sense that Tully fails to recognise the the irreducibility of political conflict inherent to the recognition of plurality. Lindahl charges that Tully is a less radical agonist than he thinks, and contends that in any form of real world agonism there is a degree of monism. There must be an ultimate use of political power, a closing off of the debate if only for now. In this sense, Tully’s agonism is reasonable in nature and possesses the “aspiration to regulate or transcend conflict that underpins all forms of rationalism in politics” as opposed to the “properly tragic vision of agonistic democracy, where conflict is more fundamental , and were the best we can achieve is an artful redirection of conflict, but where we also relinquish any hope of doing so without moments of genuine loss.” Wenman, Agonistic Democracy op. cit 162-3. This flows from Tully’s wish to circumscribe conflict within constitutional structures. A simplistic view would be to suggest that this more conventional approach is in contrast with the more radical visions of other agonists, like Mouffe, who who seek to channel rather than circumscribe conflict. The reality, however, is that even the most radical agonists do not reject liberal values. They too seek to harness the power of agonism to secure liberal values. The primary distinction between Tully and other agonists is that he is more precise, thorough, and explicit about the constitutional structures in which his agonism takes place. The others remain highly abstracted and theoretical. It is hardly surprising that, when ultimately seeking to protect liberal values, the structures and practices of agonistic constitutionalism in the real world are not dissimilar to the structures and practices of liberal democracy as it stands. What sets agonism apart from liberalism is that it does not permanently entrench certain constitutional norms; Tully seeks to place the broader rules of the game out of reach of lower order debates. To not do so would simple lead to all political disputes regressing to contests over first order principles. Instead, the possibility that first order principles can be disputed on their own terms at a separate point is radical in and of itself in liberal democratic constitutions. Conflict is harnessed and redirected, not marginalised or occluded. In utilising a normative approach Tully is “subject to the gravitational pull of constitutionalism’s deep grammar, and so is debating within its assumptions.” Anderson, ‘Imperialism and Constitutionalism’ op. cit. 134-5 Lindahl’s second critique of Tully relates to the status of the constituent power. Lindahl draws a distinction between illegality and alegality. The former “concerns the distinction between legal and illegal acts.” H Lindahl, ‘The Opening: Alegality and Political Agonism’ in Schaap (Ed.), Law and Agonistic Politics op. cit. 57. Alegal moments are a “primordial form of legal disorder” that “involves acts that challenge the very distinction between legality and illegality as drawn by a particular community.” Ibid. It is to this later form of legality that foundational acts of the constituent power belong as they do not take place within an existing legal order; instead, they “institute the distinction itself between legality and illegality.” Ibid 59. Wenman connects this distinction to Arendt’s differentiation between augmentation and revolution. Illegality is analogous to augmentation as it “ruptures a given framework of norms, but nonetheless emerges from and remains explicable within its broader horizon of meaning and legitimacy”, whereas alegality is a form of revolution is a “moment of radical origin, one which is entirely unaccounted for in a pre-existing framework of normativity.” Agonistic Democracy op. cit. 163. For both Lindahl and Arendt, these are substantively different manifestations of freedom. A Wittgenesteinian conception of freedom, however, cannot conceive of this distinction; rules are followed in myriad creative ways and are therefore subject to inventive alteration and amendment through repetition. For Lindahl, this leads Tully to “level down alegality to (il)legality.” Ibid 67. Tully resists this distinction. There exists no meaningful distinction between the two types of action. Both exist on a continuum of norm-alteration activity. Freedom is necessarily intrinsic to the following of rules and adherence to norms. Rules are always followed for Wittgenstein, although creatively. For Arendt, there exists the possibility of complete innovation, where sui generis norms, rules, and structures are generated. Thus, a new norm or rule is created, rather than the augmentation of an existing one. Arendtian action itself is “saved from its own arbitrariness” by the fact that “it carries its own principle within itself, or, to be more precise, that beginning and principle, principium and principle, are not related to each other, but are coeval.” H Arendt, On Revolution (Faber, Croydon: 1963) 214. In both Latin and Greek there are separate words for action that commences something and that which continues it. H Arendt, Between Past and Future (Penguin, New York: 1977) 164. Tully’s subjects are doomed not to generate new structures, norms, and rules, but simply to augment existing ones. Conclusions Amongst its contemporary advocates, Tully provides the most detailed, robust, and thorough realisation of agonism. His focus on multinational states and the capacity of multiple nations to be accommodated in internally coherent states renders his work deeply relevant to the contemporary United Kingdom. Indeed, his understanding of the awkward understandings of constitutional principles like popular sovereignty offered by conventional contemporary constitutionalism were unwittingly echoed by the Prime Minister, Theresa May, when she told the Scottish Conservative Party’s conference that “we are four nations, but at heart we are one people.” ‘Theresa May speech to Scottish Conservative conference’ accessible at <http://www.scottishconservatives.com/2017/03/theresa-may-speech-to-scottish-conservative-conference/>. His focus on the need for recognition of difference, the unavoidably relational of identity find close reflection in the contemporary United Kingdom. Whilst “the most familiar form of the politics of cultural recognition is the claims of nationalist movements to be constitutionally recognised as either independent nation states or as autonomous political associations within various forms of multinational federations and confederations” J Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, CUP: 1995) 2., this recognisability is more of a function of the hegemonic nature of contemporary constitutionalism than of the inherent suitability of this aspiration. A near infinite array of constitutional accommodations is available to those who seek enhanced constitutional recognition. So-called Glocal Citizens have been able to sustain and revive their own approaches to constitutionalism and culture. Perhaps an example of this could be found in the Scottish Constitutional Convention. Tully rejects many of the artificialities of contemporary constitutionalism, most obviously and relevantly the idea that member nations of multinational states dissolved their statehood at the point of the latter state’s formation. By abandoning these increasingly inconvenient fictions, devised post-hoc to explain away problematic aspects of substate recognition demands, we are able to deal with the reality of our own multinational state. His framework of diverse federalism, his understanding of the necessarily rules-based structure of constitutionalism, and his sympathy toward understanding constitutionalism in practice rather than mere theory lends his What is inadequate, however, is Tully’s treatment of constitutional invention. His Wittgensteinian understanding of rule amendment does not properly capture the Arendtian ursprung. That is, the capacity for radical, novel constitutional moments. This element of his analysis must be deviated from. The core of his Wittgeinstenian adherence to the possibility of rule alteration through diverse applications of that rule, however, remains relevant to the Scottish Question. Whilst he is distinct from other agonists in his prescription, Tully’s diagnosis of the problems of liberalism is no less severe. Tully’s critique of liberalism is sweeping. It is connected to work of a variety of other theorists Wenman, Agonistic Struggles op cit 140. who argue that liberalism’s ‘neutral’ approach to the citizenry are a disguised “reflection of one hegemonic culture.” C Taylor Multiculturalism and the ‘Politics of Recognition’ (Princeton, Princeton University Press: 1992) 43. To achieve true equality and/or freedom, constitutions, and, in particular, their institutions, must treat groups differently. I Young, ‘Structural Injustice and the Politics of Difference’ in A Laden and D Owen (Eds.) Multiculturalism and Political Theory (Cambridge: Cambridge University Press: 2007) 62. He is able to demonstrate that liberalism’s ostensible neutrality is a disguise for hegemonic and imperialistic constitutionalism. In this sense, his critique of liberalism is more severe than that of his agonistic contemporaries. Finally, Tully’s treatment of the three conventions of diverse federalism are instructive. These conditions create the space of reasonable dialogue and discussion. He is able to create a structure which is itself agonistic and within which contestation can take place without descending into a state of anarchical argument. It perceives the purpose of constitutional agonism as to create the medium through which identity, culture, and community are agonistically discussed, rather than as a “vehicle through which conflicts of interests are negotiated.” D Owen, ‘The Expressive Agon: On Political Agency in a Constitutioanl Democratic Polity’ in A Schaap (Ed.) Law and Agonistic Politics op. cit. 71. He seeks to create structures which avoid meta-arguments about those structures themselves in most cases, whilst leaving open the possibility of broader contestation. In this sense, Tully has created a form of reasoned and pragmatic agonism that is far more likely to be realised in practice than most other agonists. Federalism, often a set of static enumerated powers, rights, checks and balances, is reimagined by Tully as dynamic and malleable. He goes beyond the recognised principle of “pluralist federalism” M Tushnet, T Fleiner, and C Saunders (Eds.) The Routledge Handbook of Constitutional Law (Routledge, London: 2015) 143-5. by seeking a deeper degree of contestation and ductility. An application of his approach to the United Kingdom could give new life to the stale and often vague formations of federalism currently advocated by many politicians, think tanks, and academics. It also adds a broader and deeper contextual understanding of various political-constitutional debates, such as on the role of proportional representation and the status of the devolved legislatures. It is from this position that this work will continue. 34

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Tully's Constitutional Agonism

Tully's Constitutional Agonism