Feb. 15, 2022

Contesting the unity of constitutional orders from a property perspective

Author: Petra Gümplová

I was recently invited to discuss a new book titled Constitutional Imaginaries. A Theory of European Societal Constitutionalism by Jiří Přibáň, a prominent Czech constitutional theorist, in a roundtable organized for the 13th CEE Forum of young legal theorists in Prague. I gladly accepted, of course. It was my first face-to-face academic event after a two-year pandemic hiatus. More importantly though, this book offers guidance on how to analyze sovereign territoriality as a property order and on how to critically question exclusive claims made by states on the natural resources within their territories.
Přibáň works in the interdisciplinary field of sociological constitutionalism, which focuses on the growing importance of constitutionalism in both domestic and transnational politics. Scholars in this field see constitutions not merely as sets of higher legal norms defining and limiting the system of political governance, but as broader normative structures which mediate conflicts and policy reforms in modern societies. A look at the wide variety of contestations in contemporary democracies reveals that these conflicts are either framed as questions of constitutional or human rights, or come down to the question of limits, scope and separation of powers, including the role of constitutional courts. The issues framed in constitutional terms include migration, gender equality, sexual and reproductive rights, minoritarian politics, public health and, most recently, conflicts over how to mitigate effects of the pandemic and climate crisis.
As it turns out, however, the contestations concerning the scope and extent of power over material objects (e.g. natural resources, lands and territories) and property rights more generally have not often been reflected upon in this field. Přibáň’s book challenges the apparent unity behind the constitutional order, and, in so doing, provides a possible blueprint for such an inquiry.

Constitutional Imaginaries and Contested Unities

Constitutional Imaginaries builds on Přibáň’s previous work, which analyzes how highly differentiated modern societies, which are also increasingly confronted with global problems and integrated into transnational legal and economic orders, deal with problems of legitimacy and the symbolic representation of ‘unity’. Přibáň’s latest book asks: what kinds of ‘imaginaries’ have traditionally underwritten the constitutional structure of nation states? Moreover, what imaginaries are reinforcing the above-mentioned ‘new’ role of constitutions to mediate an ever-expanding catalogue of conflicts in contemporary democracies?
How does Přibáň define ‘constitutional imaginaries’? In his view, they are clusters of ideas and narratives which represent societies as distinct wholes and are integrated by shared values and visions of a common good. According to Přibáň, there is a ‘classic’ version of the constitutional imaginary which informed the rise of modern nations and constitutional democratic statehood. This classic version assumes an overlap between ‘the people’ as a collective with a distinct identity, their state understood as a form of political organization of this collective identity, and a particular and separate legal order.
Přibáň’s main claim is that societies have become so pluralistic and globally interconnected that constitutional imaginaries can no longer invoke a unity of particular ethnos, topos, and nomos to fulfill their important functions, i.e. to mediate conflicts and legitimize decision-making. Merely assuming the unity of a particular society as one demos in one state on one land illustrates the point well. Přibáň reminds us that maintaining the unity of ‘the people’ as one political community often relies on the construction of one national culture, understood as collectively shared norms, languages, and practices which are then reformulated as the foundational values of a given polity and used to justify specific laws and policies. But in today’s pluralistic societies, invoking culture to integrate demos is doomed to failure. The task of integration and representation of unity requires an appeal to universal values that transcend particular communities. The global language of human rights and its emphasis on non-discrimination, inclusion, participation, and welfare is a prominent example of such a set of values which fulfills this role today.
In order to perform their important functions, Přibáň claims, constitutions internalize ‘imaginaries’ which do not rely on the unity of a distinct people, state or legal order, making an appeal instead to universalistic norms. The transnational legal and political order of the EU demonstrates that the imaginaries now used to legitimize domestic policies in member states often rely on non-parochial norms of legal and societal pluralism, administrative efficiency, economic performativity, social justice, and democratic mobilization.

Imagining Territorial Disunity

I think that Přibáň’s critical questioning of unity of a demos, topos, and nomos as empirically and morally untenable is plausible. It can serve as a critical analytical tool which helps to address a range of conflicts, for example contestations over conservative policies (strict abortion laws in Poland, opposition to gay marriage in the Czech Republic) or over the extent to which democracies are obliged to uphold the human rights of alleged ‘outsiders’ (refusing refugees at the borders and denying them the right to apply for asylum). Moreover, as the term topos suggests, I wondered if Přibáň’s call for post-national and universalistic constitutional imaginaries can also be used to question the very entrenched unity of a constitutional order within a bounded geographic space – and the state’s exclusive control of the territory that very much resembles private property rights over land.
Curiously, Přibáň does not understand topos in this sense, referring instead to the unity of a territorial state with its legally constituted political authority and the danger of deriving its legitimacy from that state’s raison d’état, or national interests. Topos, however, literally means place. This simple meaning invites us to think about a very concrete spatial location as the overlap between people, the state, and the legal order. Nation states have indeed developed as geographically situated and territorially exclusive entities. This dimension of territoriality implies not only spatial limits on the application of laws, but also the state’s ultimate authority to distribute property rights within its borders and claim valuable natural resources for its exclusive benefit.
In the contemporary international system, the territorial unity of states is expressed by norms of territorial integrity and sovereignty over natural resources. While the former protects states against aggression, the latter gives states exclusive rights to control the environment and freely use natural resources within their territorial borders. Following Přibáň’s method, we can identify the narratives that have supported this unity. They evoke principles of attachment, self-determination, common origin, history of occupation and cultivation of the land, and the effective use of resources. More importantly, we can ask what tensions are immanent in these imaginaries, and whether they should still support states’ exclusive control over natural space and exploit its resources in today’s world.
There are, in my view, tensions inscribed the territorial unity of states. To begin with, territories have been imposed on Earth’s geography primarily as a result of wars, conquests, colonial settlements, and superpowers’ agreements and territorial purchases. The exclusive claim to territorial space by a state and its people is thus (predominately) morally arbitrary. Yet it authorizes exclusive access to resources, allows the exploitation of parts of global commons (e.g. pollution, deforestation), and allows the use of resources which can be harmful for others. Just think of how much harm is inflicted on the neighboring country of Czechia by the (the damage to ground water resources, dust and noise pollution, risks of landslide). There are also internal tensions which are usually caused by problematic distributions of property rights to resources or the usurpation of resources by illegitimate governments who use them to maintain their corrupt or authoritarian rule.
Many thinkers, including myself, have questioned the scope of this sovereign territorial privilege and its structural similarity to property (Gümplová 2021, Armstrong 2015, Barnes 2009). Following Přibáň’s blueprint, we can ask what imaginaries might help loosen the possessive hold on natural resources implied in the territorial embeddedness of constitutional orders. Such imaginaries are indeed necessary. States’ overuse of environmentally valuable assets, their unsustainable use of natural resources, and other political and distributive injustices following from states’ usurpation of resources cause global environmental crises, harm the interests and rights of future generations, and reinforce global inequality. While constitutional scholars are starting to take the property structures of sovereignty seriously, it is necessary that we start cultivating imaginaries that weaken states’ property claims on nature and its resources. Common ownership of the Earth, common heritage of life, states as trustees of the environment (Wood 2013), or rights of nature (Kauffmann/Martin 2021) are the most compelling recent candidates.

Literature cited:
Armstrong, Chris. 2015. “Against ‘permanent sovereignty’ over natural resources,” Politics, Philosophy & Economics 14 (2): 129-151.
Barnes, Richard. 2009. Property Rights and Natural Resources. Oxford:  Hart Publishing.
Gümplová, Petra. 2021. “Sovereign Territory and the Domination over Nature,” In: Arthur Bueno, Christoph Henning, and Hartmut Rosa (eds.), Critical Theory and New Materialism. Abingdon: Routledge, 31-41.
Kauffmann, Craig M. and Pamela L. Martin. 2021. The Politics of Rights of Nature: Strategies for Building a More sustainable Future, Cambridge: MIT Press.
Přibáň, Jiří. 2012. Constitutional Imaginaries. A Theory of European Societal Constitutionalism. Abingdon: Routledge.
Wood, Mary Christina. 2013. Nature’s Trust: Environmental Law in the New Ecological Age, Cambridge: Cambridge University Press.