Tag Archives: Constitution

“Secure the Blessing of Liberty to our Posterity”: The Founding Fathers and Intergenerational Solidarity


On the eve of September 15, 1787, the Philadelphia Convention approved the final draft of the Federal Constitution of the United States of America. Only 39 delegates out of 55 signed it and, according to a harshly critical contemporary scholar, they wrote «a constitution that was very different from the one most Americans expected and wanted them to write», since the Framers «designed the federal government to be insulated from» democratic politics (Klarman 2016: X, 606). Many voices, however, have focused on the long-term standing of the constitutional project: as per this view, «the delegates were acutely conscious of history», and specifically «of their place in its ongoing flow», but in the meantime they looked so much to the future that «they introduced an entirely new concept to the [political] discourse, that of federalism, and in the doing, created a novus ordo seclorum, a new order of the ages» (McDonald 1985: 6, 262). A commitment to what we might call “the politics of future”, in fact, resurfaced in the words of James Madison, who told his colleagues that they «were now digesting a plan which, in its operations, would decide forever the fate of republican government» (Farrand, ed., 1937: 423), but also in the preamble of the Constitution itself:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America (quoted in McDonald 1985: 299).

The future of republican government and collective responsibility towards upcoming generations were not, however, mere constitutional issues: they called into question the very foundations of the body politic, just like in contemporary debates (Meyer, ed., 2012; Thompson, 2013). What kind of motives should drive us to recognise the existence of moral and political obligations towards those who aren’t born yet? Are these commitments to be grounded on rational assumption over the nature of institutions, or may they rely on an intergenerational version of solidarity conceived, according to the taxonomy proposed by Sally Scholz, not only as the most basic social solidarity, i.e. «the bonds of a community united by some shared characteristic», but political solidarity, that is, a «sort of solidarity [which] indicates political activism aimed at social change», and civic solidarity, or «the obligations of civil society to protect citizens against vulnerabilities» (Scholz 2008: 5) as well? I will argue that Thomas Jefferson and James Madison, but also Thomas Paine and his English opponent, Edmund Burke, tried to solve such dilemmas throughout a passionate debate focused precisely on those crucial topics and wonder whether we might consider their dialogue as a fresh look to the role of solidarity within the context of a theory assessing the relevance of future in the shaping of a modern public sphere.

Jefferson and the rights of the living

In 1789, Thomas Jefferson was living in Paris, where he had been engaged on a diplomatic mission for five years. On September 6, he decided to write a letter to his friend James Madison, not only to make him aware of the latest events but to deal with a normative issue, which was evidently the result of long reflections inspired by the making of the French revolutionary process and would have marked his political theory for a long time (Chelsey 2019: 83-124). He asked his comrade «whether one generation of men has a right to bind another» and found it so astonishing that a crucial question alike seemed «never to have been started either on this or our side of the water» (Jefferson 1984 [1789]: 959).

This statement is quite unfair since John Locke, in his Second Treatise on Civil Government, had already addressed the issue and provided an answer that was not free of ambiguity, but which, nevertheless, paved the way for subsequent reflections. Locke, in fact, on one side stated very frankly that «whatever engagements or promises any one has made for himself, he is under the obligation of them, but cannot, by any compact whatsoever, bind his children or posterity: for his son, when a man, being altogether as free as the father, any act of the father can no more give away the liberty of the son, than it can of any body else»; on the other, though, he made crystal-clear that «every man that hath any possession or enjoyment of any part of the dominions of any government doth hereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment», the last clause applying to future generations as well, at least as long as they please to enjoy the property they have inherited (Locke 1823 [1690]: 156-157).

Locke’s ideas had significant impact over American political and constitutional thought (Smith 1985: 13-33, 63-166). Jefferson, however, deemed them incoherent and in need of revision, since intergenerational relations were «a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government» – and his position was immediately clear and unequivocal: «no such obligation can be so transmitted» (Jefferson 1984 [1789]: 959).

Jefferson set his course assessing the axiom, «which I suppose to be self-evident» that «the earth belongs in usufruct to the living, that the dead have neither powers nor rights over it». What does it mean? That, according to natural law, God has granted the planet and the lands it contains to all men and therefore, upon the death of any usufructuary, the land he owned «ceases to be his when himself ceases to be, and reverts to the society». It is true that he can pass on his usufruct to his heirs, or to his creditors in case he has incurred into debts, if allowed by positive laws; however, heirs and creditors «take it, not by any natural right, but by a law of the society of which they are members, and to which they are subject» (Jefferson 1984 [1789]: 959).

For Jefferson a fundamental inference can be drawn from all this, namely, that «no man can, by natural right, oblige the lands he occupied, or the persons who succeed him in that occupation, to the payment of debts contracted by him», for this would imply that he had been allowed to «eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living, which would be the reverse of our principle» (Jefferson 1984 [1789]: 959-960).

Even more transparently, Jefferson wrote Madison that «the earth belongs to each of these generations, during it’s course, fully, and in their own right»; which means that the previous generation cannot «charge it with a debt», since then «the earth would belong to the dead & not the living generation». But if this is true of private individuals, the same applies to institutions, «since the rights of the whole can be no more than the sum of the rights of the individuals». It follows that «no generation can contract debts greater than may be paid during the course of it’s own existence» (Jefferson 1984 [1789]: 960), a severe limit to the emission of public debt but, in the meantime, a clear sign of social and civic solidarity (in Scholz’s terms) for it should have granted, in Jefferson’s view, a full exercise of freedom of choice to future generations. In sum, he «knew that public debts were dangerous, that they brought corruption and threatened republicanism» (Sloan 1995: 3).

On the other hand, though, this measure could bind more closely the living generation, limiting its freedom in contracting debts and investing to enact policies aimed to ensure, for instance, concrete solidarity towards both its less fortunate members and future generations, something James Madison noted very thoroughly – as we shall see soon. In fact, if one looks more closely to Jefferson’s complex argument, many problems seem to arise when it comes to his belief, restated even 24 years later in a letter to John Wayles Eppes, that «we may consider each generation as a distinct nation with a right, by the will of it’s majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country». And since Jefferson, relying on the tables of the French biologist Louis Buffon, determined in 19 years the average life of a single generation, any legal act intended to last longer would violate the principles of natural justice, together with the set of rules designed to «give an artificial continuance» to «the will and the power of man» while, according to natural law, they «expire with his life» (Jefferson 1984 [1813]: 1280).

The same logic applied to laws and constitutions alike, Jefferson tried to maintain in his letter:

On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course, with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right (Jefferson 1984 [1789]: 963).

The logical consequence of Jefferson’s whole reasoning is to recognize that each generation holds the right (and the duty) to write the constitution and the most fundamental laws anew. This would not, however, be a mere power of repeal since, in this case, serious practical obstacles could cyclically arise:

The power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal (Jefferson 1984 [1789]: 963).

Jefferson was deeply persuaded of the positive and progressive nature of man, in which he always believed (Matthews 1984: 53-63). He endorsed a vision of the future where a permanent change would improve dramatically the political outcomes of republicanism, «a republicanism no longer at the mercy of the forces of debt and corruption» (Sloan 1995: 9).  To grant every generation the chance to join the process of acting freely and making this dream come true meant, for him, gifting them with the most relevant amount of solidarity (social, political and civic). He put his faith, ultimately, in future generations of republican citizens, sure as he was they would better democratic politics and share his belief that «nothing is unchangeable but the inherent and unalienable rights of man» (Jefferson 1984 [1824]: 1494). On a similar ground, however, Madison shaped his reasoned reply, which would result in quite a disappointment for his long-time ally.

Madison and long-term solidarity

In his long-pondered letter of February 4, 1790, Madison acknowledged that his friend’s contribution could be, theoretically speaking, «a great one» and stimulate «many interesting reflections to legislators; particularly when contracting and providing for public debts», but in the end it seemed to him a «doctrine…not in all respects compatible with the course of human affairs» (Madison 2006 [1790]: 189-190).

Madison found Jefferson’s perspective on both debt and legal acts highly challenging, but his focus was directed primarily on the latter. And this is precisely where the peculiarity of the Madisonian approach lies: so much Jefferson dreamed of applying a new (intergenerational) principle of justice and solidarity to society, so much Madison doubted that that same principle, once adapted to real life, would have spread the desired effects. And, most of all, he feared that it would bring with it a general delegitimization of republican politics and economics.

As to the application of Jefferson’s theory, Madison detected three levels: constitutional norms, «laws involving stipulations which render them irrevocable at the will of the Legislature», and, lastly, «laws involving no such irrevocable quality». The first troubles, in his view, were to appear on the pure institutional ground:

However applicable in Theory the doctrine may be to a Constitution, it seems liable in practice to some very powerful objections. Would not a Government so often revised become too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age? Would not such a periodical revision engender pernicious factions that might not otherwise come into existence? Would not, in fine, a Government depending for its existence beyond a fixed date, on some positive and authentic intervention of the Society itself, be too subject to the casualty and consequences of an actual interregnum? (Madison 2006 [1790]: 190).

If democracy was to be handed down to posterity and possibly enlarged, Madison wondered, why did one need to prescript periodic revisions and expiring laws that would destabilize political order? Not to mention the undoubted obstacles brought with it by the procedures for convening and exercising the popular will at the given time.

The will of those who had lived in the past, moreover, was not to be dismissed as quickly and painlessly as Jefferson wished; indeed, as to the generational handover of land and debts, it would prove wise to refer to it. For even assuming that «the earth be the gift of nature to the living, their title can extend to the earth in its natural State only», since «the improvements made by the dead form a charge against the living who take the benefit of them». In other words, this inheritance could not otherwise be acquired «than by executing the will of the dead accompanying the improvements» (Madison 2006 [1790]: 190).

These improvements could also include debts, «incurred for purposes which interest the unborn, as well as the living»; such debts could, in turn, consist of loans opened to defend a nation against an invasion or public investments made «principally for the benefit of posterity». In contemporary terms, Madison is arguing that social and civic solidarity could be implemented also by means of long-term policies which imply both spending money on behalf of the generations to come and, therefore, creating moral, political and economic obligations that would be almost impossible to repeal within «the term of 19 years» (Madison 2006 [1790]: 190-191).

Herein lies the reversal of the Jeffersonian view, founded, however, on an alternative vision of equity and solidarity between generations and not its denial. In fact, in his perspective «there seems then to be a foundation in the nature of things, in the relation which one generation bears to another, for the descent of obligations from one to another»; it would be required by justice, since «mutual good is promoted by it». For this very reason, a free commonwealth should find and respect the fairest «account between the dead and the living», so that «the debits against the latter do not exceed the advances made by the former» (Madison 2006 [1790]: 191).

A further danger noticed by Madison, and all but ignored by Jefferson, concerned positive rights (chiefly, property rights) protected by ordinary laws. If the non-enforceability clause were applied without any particular amendment, such as a provision to keep the same laws «in force by new acts regularly anticipating the end of the term», he feared that «all the rights depending on positive laws, that is, most of the rights of property would become absolutely defunct», triggering the risk to witness «the most violent struggles…between those interested in reviving and those interested in new-modelling the former State of property». A similar uncertainty was likely to produce substantial economic damage, on the one hand discouraging «the steady exertions of industry produced by permanent laws» and, on the other, granting «a disproportionate advantage to the more, over the less, sagacious and interprizing part of the Society» (Madison 2006 [1790]: 191).

At first sight, Madison’s concern may seem to relate to his celebrated theory of factions, that is, the need to contain, through the adoption of constitutional checks and balances, the destructive drives of parties, organized opinions, and more or less prominent interest groups ready to conquer power and dominate the citizenry – issues he dealt with in the celebrated Federalist n. 10 (Hamilton, Madison and Jay 2006 [1788]: 42-49; Sheehan 2009: 84-123). But much more was at stake, here: first, the negative role of political emotions, which were likely to subdue the weak (or less active) ones throughout the period of interregnum, if any form of intergenerational solidarity were excluded. While Jefferson thought, as we have seen, that passions and chaos were doomed to burst and forbid each generation to write constitutions and laws anew, in case no expiring date had been fixed, this was precisely the issue which worried Madison, since it would overthrow any attempt to preserve civic fairness and a reasonable equality of opportunities (even though, just to mention the point, he seemed to neglect – at least in that specific moment – the legitimate will to change the distribution of positive rights in the life of a given political community).

But the second, and foremost, principle brought into the scene by Madison was nothing less than the legitimacy of republican institutions: and here, quite surprisingly, the theory of tacit consent already outlined by Locke is taken out of his hat. However weak and inconsistent it might have been, he couldn’t see any other solution available, to safeguard the stability of the body politic:

I find no relief from these consequences, but in the received doctrine that a tacit assent may be given to established Constitutions and laws, and that this assent may be inferred, where no positive dissent appears. It seems less impracticable to remedy, by wise plans of Government, the dangerous operation of this doctrine, than to find a remedy for the difficulties inseparable from the other (Madison 2006 [1790]: 191).

A similar position seems strictly connected with his idea of man and society: in William Lee Miller’s words, «Madison’s view of human nature was mixed and realistic, not relentlessly negative…alongside self-love there was a virtue that it was the task of state-makers to encourage» (Miller 1994: 223). My guess is that one of the most relevant components of virtue was an intergenerational version of both social and civic solidarity, grounded as much on rational arguments than a call to empathy. This is why Madison, in the end, rejected Jefferson’s dreams stating that «a limitation of the validity of national acts to the computed life of a nation, is in some instances not required by Theory, and in others cannot be accomodated to practice» (Madison 2006 [1790]: 192).

Burke vs. Paine; or, how many solidarities are there?

The seeds planted by Jefferson and Madison were not left unnoticed. A great struggle on intergenerational autonomy and solidarity, within the context of a wider dispute on French revolution and the rights of man, took place between Edmund Burke and Thomas Paine (Fennessy 1963). It is presumed that Burke was not familiar with the Founders’ perspective on intergenerational justice, while Paine knew quite well Jefferson’s stance; nonetheless, their contrast shed new light on the topic of solidarity between generations and the political tools to make it real (Levin 2014: 205-222).

Burke published his Reflections on the Revolution in France (1790) in order to warn the Englishmen against the temptation to import the pernicious (in his view) philosophy of the rights of man into their homeland (Bourke 2017: 676-738). But, all along his rhetorically proficient invective, he also dwelt on the origins of institutions and, while not rejecting at all contractarianism, he sought to downplay the scope of the Lockean theory of the origins and continuity of the body politic, which were to be traced back to a primeval connection that ran through the great chain of beings and bound them together:

Society is indeed a contract. Subordinate contracts for objects of mere occasional interest may be dissolved at pleasure—but the state ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, calico, or tobacco, or some other such low concern, to be taken up for a little temporary interest, and to be dissolved by the fancy of the parties. It is to be looked on with other reverence, because it is not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature. It is a partnership in all science; a partnership in all art; a partnership in every virtue and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born. […] This law is not subject to the will of those who by an obligation above them, and infinitely superior, are bound to submit their will to that law (Burke 1969 [1790]: 194).

Burke’s perspective seems, at first glance, antithetical not only to Jefferson’s positions, as widely expected, but also to Madison’s, so much emphasis is placed on the union of the dead, the living and the unborn within civil society. However conservative his aims might have been, he nonetheless contributed to shaping an almost romantic principle of intergenerational social solidarity: it is not surprising, then, that he reaffirmed his duty «to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity—as an estate specially belonging to the people of this kingdom» (Burke 1969 [1790]: 119). The principle of inheritance, then, enabled the defence of liberty and its pursuit by the unborn. The bonds that connected past, present and future generations almost into a living organism meant, though, not only that each generation was expected to move within the path shaped by the previous ones, but also that any change and progress – however small and gradual – would have to be judged in the light of the ancestors’ inheritance. In Scholz’s term, political solidarity enabling positive change had to be sacrificed onto the altar of an emotionally driven, and politically vague, social solidarity.

These shortcomings were duly noted by Burke’s epic foe. In his reply to the English philosopher, The Rights of Man (1791-92), which soon gained him celebrity on both sides of the Atlantic, Paine defended the political fruits of French revolutionary experience (or, at least, of the first phase of it) and tried to refute the legitimacy of the hereditary principle which Burke had so vividly outlined. Thus, for Paine, it was an inviolable axiom that «every age and generation must be as free to act for itself in all cases as the age and generations which preceded it» and he deduced from this principle that «there never did, there never will, and there never can, exist a Parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controuling posterity to the “end of time”». Consequently, «all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void» (Paine 1999 [1791-92]: 9).

But Paine went way beyond that. In his reply to Burke, he openly declared, with words which cannot fail to echo Jefferson’s letter, that he was «contending for the rights of the living, and against their being willed away and controuled and contracted for by the manuscript assumed authority of the dead», while Burke was fighting «for the authority of the dead over the rights and freedom of the living» (Paine 1999 [1791-92]: 9-10).

Moreover, in a short pamphlet titled Agrarian Justice and published in 1797, Paine argued that God had gifted men with land it its uncultivated state as «the common property of the human race»; but because of «the improvement made by cultivation», landed property became sanctioned by inheritance customs and positive prescriptions. Since this state of things did not cherish the principle according to which «it is the value of the improvement only, and not the earth itself, that is individual property», thus violating natural equity and harming a great number of individuals of each successive generation from the introduction of farming, every «proprietor, therefore, of cultivated land, owes to the community a ground-rent» in order to re-establish justice and give the dispossessed «an indemnification» through a sophisticated system of intergenerational solidarity:

I shall now proceed to the plan I have to propose, which is, to create a National Fund, out of which there shall be paid to every person, when arrived at the age of twenty-one years, the sum of fifteen pounds sterling, as a compensation in part, for the loss of his or her natural inheritance, by the introduction of the system of landed property. And also, the sum of ten pounds per annum, during life, to every person now living, of the age of fifty years, and to all others as they shall arrive at that age (Paine 1894 [1797]: 289, 290, 291).

This measure was meant to be financed through an inheritance tax to be demanded upon the passage of property from one generation to the next, that is «at the moment that property is passing by the death of one person to the possession of another». Civic solidarity, then, became the condition for economic redistribution on a generational basis, as well as the tool for reforming «the present state of civilization», where «the contrast of affluence and wretchedness [was] continually meeting and offending the eye» (Paine 1894 [1797]: 292, 295) – something that Burke would see as a challenge to social and political tranquillity.


What could this story teach us? That the intergenerational perspective is really helpful to clarify the nature of solidarity, whether we conceive it as a political emotion or a rational, discursive principle; and, in reverse, that solidarity between generations should be one among the guiding lights for anyone interested in assessing some of the most contested policies within our globalized society – to begin with, anti-climate change remedies (Hiskes 2009; Skillington 2019).

Contemporary debates on intergenerational justice have increased enormously since John Rawls laid down his «just savings principle», according to which «each generation must not only preserve the gains of culture and civilization, and maintain intact those just institutions that have been established, but it must also put aside in each period of time a suitable amount of real capital accumulation». This principle, thus, should be regarded as «an understanding between generations to carry their fair share of the burden of realizing and preserving a just society» (Rawls 1999: 251, 257).

Solidarity, then, has to play an essential role within an intergenerational framework even tough, as David Heyd has argued, in some ways «future-oriented solidarity» could be «of a fairly limited scope», since, for him, it «does not extend beyond two or at most three generations, and secondly, we feel solidarity with previous generations of our society only in the sense that it has to do with our identity rather than with a commitment to carry out their plans and respect their long-term intentions» (Heyd 2009: 184-185).

Looking back to the Jefferson/Madison debate, as well as its Burke/Paine appendix, could help us to approach these dilemmas on a more global scale and revive our sense of responsible solidarity (and not only our rational understanding of it) towards future generations. After all, if «each generation has the usufruct of the earth during the period of its continuance» (Jefferson 1984 [1813]: 1280), we are a sort of planet-keepers, of its environment as well as its democratic institutions, and our solidarity should extend well beyond two or three generations.


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Europe’s Constitutional Law in Times of Crisis: A Human Rights Perspective

In this paper, we aim to survey representative constitutional amendments in the European Union’s (EU) area, whether attempted or accomplished, as well as significant adjudications by constitutional bodies. Then, we proceed to assess these legal phenomena in light of human rights jurisprudence. Pivotal reference in our work is the recently released 7th volume of the Annuaire international des droits de l’homme (Athens: Sakkoulas, December 2014), edited by G. Katrougalos, M. Figueiredo and P. Pararas under the aegis of the International Association of Constitutional Law. Not only does this volume comprise the work of some of Europe’s noted constitutionalists, it also addresses the constitutional matters central to this paper in light of human rights jurisprudence, which is the area of expertise of one of the paper’s authors, i.e. Ágúst Þór Árnason, and the area that the other author, Giorgio Baruchello, has construed axiologically as a pivotal instantiation of civil commons, i.e. “all social constructs which enable universal access to life goods”. Have European constitutions continued to function qua civil commons in the crisis years? That, at the deepest level of value scrutiny, is the question that our joint survey and analysis aim to answer.

Continue reading Europe’s Constitutional Law in Times of Crisis: A Human Rights Perspective

Jón Ólafsson (ed.), Lýðræðistilraunir. Ísland í hruni og endurreisn [Democratic experiments. Iceland in collapse and renaissance] (Reykjavík: Háskólaútgáfan, 2014)


The indications are that the costs are 44% of Iceland’s GDP, meaning that it is internationally the third costliest financial collapse ever (Luc Laeven og Fabian Valencia. 2013. Systemic Banking Crises Database. IMF Economic Review, 61, pp. 225-270). The series of events leading to the collapse and what has happened afterwards has had serious consequences for Icelandic society and government. The most obvious sign of these consequences is that trust levels within Icelandic society have declined. The banks enjoy least trust of all Icelandic institutions, as is to be expected, as only 10.2% of Icelanders said in October 2014, six years after the financial collapse, that they trust Icelandic banks (MMR Market and Media Research). Just 12.8% trust Alþingi, the Icelandic Parliament, according to the same source.


One of the consequences of the financial collapse was that in 2009 the Icelandic republic had the first left-wing government in its history, i.e. since it was established in 1944. This government had to deal with all the most serious consequences of the financial collapse. On top of that, it tried to engineer changes to important Icelandic social institutions like the fishing quota system, which has been controversial since its inception in 1983, and the Icelandic constitution. The reasons behind the changes to the quota system were based on justice and fair allocation of natural resources. The reasons behind changing the constitution were not as clear, but it seems to me that the best construal of them is that the attempt to change the constitution was a confidence-building measure, an attempt to reconstruct the most important legal document of the republic´s legal system and secure general trust in governmental institutions. According to the same survey firm as referred to above, the legal system as a whole enjoyed the trust of 28.9% last November, but in November 2013 the same measurement was 38.1% and in October 2009 the trust in the legal system as a whole in Iceland was 36.5%. There is no reason to read too deep a meaning into these measurements, but they are some indication that the preparation, writing and rejection of the draft constitution have not affected public trust in the legal system. Some may think that we can infer from this that the whole affair surrounding the drafting of a new constitution was in vain. But this may be too hasty.


What actually happened in this process? First, there were public protests against the sitting government ending in its fall in early 2009. Second, after the general election in 2009, the first left-wing government in the history of the Icelandic republic was established. The prime minister of that government had long been of the opinion that the constitution needed revision. Third, some general meetings were arranged early in 2009, trying to find out which were the most important values of Icelanders. The government organised a similar meeting in early 2010 to figure out those values that should govern the revision of the constitution. Fourth, the government established a committee gathering data and evaluating various ideas about such a revision, thus preparing the work of a constitutional assembly. Fifth, the government decided that an assembly should be elected by the general public to write a new constitution or revise parts of the existing one. Sixth, the election to the constitutional assembly was declared null and void by the Icelandic Supreme Court after a legal challenge. The government decided then to establish a constitutional committee with the same mission and the same individuals as voted onto the assembly. Seventh, the constitutional committee delivered in four months a draft of a new constitution. This draft was never assented to twice by the majority parliament with a general election in between, as it must do according to the rules laid down by the present constitution.


This book is a collection of essays in Icelandic about this whole process and other democratic experiments in Iceland’s recent years. It is written by two Icelandic authors and six international authorities on democracy and democratic developments. Jón Ólafsson edits the book and writes an introduction describing the development of the constitutional project and other democratic experiments in Iceland. James Fishkin analyses some of the processes that took place in the constitutional preparation and the drafting of the new one, and he evaluates to what extent deliberation and rational discussion were features of them. His conclusion is that neither the general meetings nor the constitutional committee reflected the general population and we should be careful about drawing any conclusion about the views of the meetings and the committee coinciding with the views of the population as a whole. He is also critical of the lack of rational discussion both in the preparations and the drafting of the new constitution.


Hélène Landemore examines the process of preparing and writing a new constitution in Iceland from an epistemological point of view. She is interested in: how the constitutional committee dealt with the problem of writing a constitution; and how it used “crowdsourcing”, meaning the competence and the intelligence of the general public, especially in writing the draft of the new constitution. She is critical of the role of experts in writing and editing the draft of the new constitution; she believes that the process had serious drawbacks, as she thinks that the general public and its representatives are capable of writing a constitution upon the condition that as many as possible take part in the process. She believes that the current Icelandic method for establishing a change to the present constitution or adopting a new one is too restrictive. Tom Ginsburg and Zachary Elkins approach the preparations and process of writing the draft of the new Icelandic constitution from a comparative point of view. They review various views of transparency in such a process, as well as the role of experts. They are, like the other experts writing in this book, favourable to the opening up of the process for preparing and writing a constitution and the government process in general, but they realise that there is no simple solution or simple recipe for a constitutional process, in Iceland or anywhere else. Thus, they ask the difficult question: If the new constitution was the result of a grassroots movement, why was it so easy to stop it in parliament? Why were those parties that opposed the new constitution elected as the new parliamentary majority in 2013? There is no simple answer to that question and there are two appendices to their article that are informative and interesting.


Paolo Spade and Giovanni Allegretti write about novelties in democracy or new initiatives in democracy, especially participatory financial budgeting as practised in a number of Brazilian cities. They explore the connection between these new initiatives and the new possibilities that have opened up on the net. They realise that these connections are complex and they can easily become counterproductive from the point of view of participation, if not used carefully. Democratic experiments in other places are drawn into the discussion such as Portugal, Germany and the United States, and in Reykjavík, Iceland. This is not directly relevant to the process around the constitution but the discussion broadens the picture of new initiatives in democracy. The last article is by Kristinn Már Ársælsson and is an overview of democratic initiatives in Iceland in the years 2009-2013, i.e. the years of the first left-wing government of the Icelandic republic. These include the preparation and the writing of the draft constitution, plus two national referenda on the Icesave agreements between the Icelandic government and the British and Dutch governments. These referenda were engineered by the refusal of the Icelandic president to sign two laws supported by the majority of parliament. In both cases the general public voted against these laws. These were the first national referenda since 1944, when it was decided to establish a republic. He also discusses the initiatives taken by the city council in Reykjavík.


All these articles are interesting, make important points and throw light on the events that have taken place in Iceland in the last five years. This is of particular value for a small society like Iceland, because very few people outside the country can understand what happens here and why. Icelandic scientists are a part of their own society and sometimes find it difficult to analyse what actually happens. The critical distance of foreign scientists can bring benefits.


This distance has its drawbacks too. This is clear from the discussion of the constitutional process. There is no attempt to relate it to the political culture in Iceland. What is most interesting about this process, which elected a constitutional assembly from members of the general public, is also a major break with the Icelandic tradition of politicians and legal experts discussing and drafting changes to the constitution. Part of this tradition is that all the major parties have had to agree to the changes put forward. Even though this is not literally true of all the changes proposed, it is true of most of them. This has guaranteed that the changes proposed and consented to in parliament before it is resolved, are consented too unchanged in the newly elected parliament. This threshold to changes to the constitution has not proved to be serious or impossible in the Icelandic context. Changes have regularly been made to the Icelandic constitution. It is not fashionable nowadays to take Icelandic political culture seriously, since its vices rather than its virtues have been more prominent in recent years, but it seems to me that one of the reasons working against the new constitution was that there were serious political disagreements about it. Pushing it through parliament would have been a serious break with the national consensus tradition. You may not think very much of this tradition, but it is an historical fact; besides, traditions in political cultures have to be reckoned with.

Suzie Navot, The Constitution of Israel. A Contextual Analysis (Oxford and Portland, Oregon: Hart, 2014)


These “laws” are the completion of an unusual and incremental constitutional process which has established a system whose foundations are to be found firstly in the acknowledged United Nations’ General Assembly Resolution adopted on November 29th, 1947 (providing the constitution of an Israeli state within the Palestinian region); and secondly, through the Declaration of Independence of the newly-born Israeli state, on May 14th 1948 after the failure of the British jurisdiction (ratified by the UK Parliament under the Palestine Act on April 29th, 1948).



According to Suzie Navot, the failure to draft a Charter to be approved by a Constitutional Assembly with effectiveness over ordinary laws was due to the opposition of Prime Minister David Ben-Gurion (rather than the concerns of a part of the Knesset, which considered the Torah as the only exclusive Constitution the Jewish people). In truth, no comprehensive constitutional process was ever deliberately set in motion. This was in order to avoid formulating over rigid principles which would ultimately create cultural divisions within the nation. Such concerns were exacerbated by the fact that the majority of the Jewish people had yet to re-enter the territories of the new state. The first Knesset ultimately approved a compromise (proposed by one of its members, the so-called Harari Resolution of June 13th, 1950), which certainly sets forth a unique precedent in comparative constitutional law. Indeed, the Knesset “decided not to decide” on the matter as it entrusted the Commission for Constitutional affairs and Justice with the task – on-going and with no deadlines – to draft one-by-one the “chapters” of the Constitution –i.e., the “basic laws”- which would then be approved one-by-one by the Knesset.


The 12 “basic laws” that have so far been ratified cover a large proportion of constitutional matters. These laws allow the author to organize the contents and themes of her work adopting a traditional ‘textbook’ approach. The book is both concise and comprehensive with reference first to historical origins followed by analysis of the fundamental principles of the system. The text then proceeds to discuss the powers of constitutional bodies, the sources of law, the form of government, the progressive judicial definition of fundamental rights and the mechanisms in place to protect them.


The unique character of certain institutions certainly demands the attention of comparative constitutional scholars. The very foundation of the Israeli system is to be found in the institutional framework of the British Common Law, as at the end of WWI, after the fall of the Ottoman Empire, the League of Nations granted Great Britain a mandate for Palestine. Indeed, since its very beginning, the government of the Israeli State has reproduced the so-called Westminster parliamentary system. This was except for a brief time-lapse (1996-2001) in which great political instability led (with unsettling results) to an unusual strengthening of the office of prime minister. The consolidation of the post was achieved through direct election simultaneous with the election of the representative Chamber by means of two separate ballot papers (however, even in this phase, the prime minister remained subject to a vote of no-confidence by the majority of the Parliament and, provided presidential approval could be obtained, retained the power to dissolve the Knesset).


Professor Navot provides a deeper assessment which covers the recent development of a strong “judicial activism”. This trend has gradually led to the abandonment of the formalistic approach derived from English law (even though under stare decisis lower courts are still bound by higher courts), in favour of a stronger “Americanisation” of the system. As the author highlights, this development can mainly be attributed to the contribution of the Israeli Supreme Court through its “judicial review” over ordinary legislation. It is above all this process which has led to the establishment of a genuine judicial Bill of Rights (exceedingly important is the acknowledgment of the principle of equality along with other fundamental rights, e.g. freedom of speech, not even included in the “basic laws” of 1992, but however implied in the recognition of the value of human dignity).


The above-mentioned Harari Resolution left unsettled the question of the position, within the sources of law, of the “basic laws” adopted by the Knesset using a regular legislative procedure, however, the dominant opinion, endorsed by the jurisprudence of the Supreme Court, is that such laws limit the legislative authority of the Parliament. Indeed, it is worth remembering the 1995 Supreme Court decision, Hamizrahi Bank v Migdal. This decision followed the 1992 adoption (which the Supreme Court President Aharon Barak considered a “constitutional revolution”) of two important basic laws concerning human rights. For the first time in a judicial review case an Israeli supreme judge stated the principle that if an ordinary law is in contrast with an inalienable right acknowledged by a “basic law”, the former is to be considered invalid. This applied notwithstanding the formal fact that the latter was approved by a mere absolute majority of the Knesset, which has both legislative power and constitutional authority. Suzie Navot’s conclusion (p. 36) is that, following the US example in Marbury v Madison, even without an explicit constitutional mandate, the Israeli Court considered itself in a position to judge whether legislation is in compliance with the contents of the “basic laws”.


Certainly, the most stimulating part of the book is Navot’s interpretation of the political and social reasons for the current obstacles to the approval of a Constitution for Israel. This is for reasons that the author believes lie in the enduring disagreement on the compatibility of the “democratic values” gradually emerging from the “basic laws” and the “Jewish State”. In other words it refers to the “natural right of the Jewish people to be, as any other people, independent in [their] own sovereign state” and reflects the nation’s right of self-determination ratified in the declaration of independence of 1948, but already acknowledged in Palestine’s partition plan approved by the United Nations in 1947. The balance between the two, potentially opposite, principles of this nation is very complex and, according to Navot (p. 73), depends on the notion of the “Jewish State” which sometimes refers simply to the majority of the people, whereas at other times refers to the right of political self-determination of the Jewish nation, and yet others it is used to highlight the peculiar religious features of the law.


However, on this latter point, the Court of Justice (3872/93 Mitral v. The Prime Minister and the Religious Affairs Minister) specified that the notion of “Jewish State” does not contemplate the possibility to approve “religious laws” (given the mandatory right that citizen must enjoy religious freedom as well as “freedom from religion”) and that in any case, it is necessary that the legal system establish a balanced trade-off between potentially threatened religious sentiment and other concerned rights. For instance, it may involve balancing religious freedom threatened by the presence of butcher’s shops selling pork and the freedom of establishment for those engaged in the business of selling food products (953/01 Solodkin v. Bet Shemesh Municipality).


Furthermore, the legal position of non-Jewish citizens (i.e., Arabic) and of orthodox or super-orthodox Jews in achieving substantial equality and equal treatment still remains only partly guaranteed. This is true notwithstanding the judgments endorsing the widest political participation together with the pre-eminent value of the standing electorate’s rights (for example, in the 2003 Tibi case the Supreme Court annulled the provision of the central election committee which excluded from political elections two Israeli-Arab candidates. It found that their political manifesto, even if it was in conflict with the Jewish nature of Israel, it did not lead to the destruction of the State, but rather called for a system for an all inclusive state).


It is not easy to anticipate the evolution of the Israeli constitutional system. According to the author, “in the second decade of the 21st century, the completion of the Israeli constitution still seems unrealistic”. This acknowledges the persistent conflict within political institutions and civil society on fundamental questions, such as human rights, and, in particular, minority rights.


Can we conclude that today Israel has a complete Constitution? In respect to this crucial question Professor Navot expresses some doubts. While it is true, on the one hand, that the “chapters” written so far regulate large parts of the system, comparable to other written Constitutions of democratic States (p. 45) on the other, the current framework still appears “weak” and “unstable” lacking wide consensus on crucial issues. In consequence, it would be very difficult, at least for now, to be able to collect and entrench the “basic laws” in one single constitutional document. Finally, the complexity of many of these unanswered questions is depicted symbolically in the striking multi-coloured cover illustration of the book by the artist Putachad Leyland.

Kári á Rógvi, West-Nordic Constitutional Judicial Review: A Comparative Study of Scandinavian Judicial Review and Judicial Reasoning (Copenhagen: Djøf Publishing, 2013)



The book is clearly organised, with a solid theoretical account of constitutional judicial review filling around the first half. Kári defines his study thus:

The term Constitutional Judicial Review implies an action with three components. First, the review is based on a superior legal norm – constitutional – the archetype being a written Constitution. Second, the review is performed by an independent forum – judicial – the archetype being a Supreme Court. Third, an action of evaluation – review – the archetype being (considering) invalidation of a statutory law (37).


The second half of the book shows this theory in action in the Courts of the selected legal systems and demonstrates the evolution of constitutional judicial review in the West Nordic countries from something that once seemed at best foreign, and at worst laughable, to a feature, albeit still peripheral, of West Nordic law (326). Kári’s account is no simple recollection of cases but situates the legal developments in their unique historical contexts – something essential to any understanding of law, but especially comparative law. However, he also demonstrates wider scholarly foundations beyond the Nordic systems, in particular, an influence of common law legal theory (not least by virtue of his methodology of study – an examination of case law!).


One controversial premise lies at the heart of Kári’s account: that the West-Nordics are “quasi-federal” owing to the influence on their Supreme Courts of the law and judgments of the European Union (EU) (notwithstanding that of the countries studied, only the Danish mainland is inside the EU) and the European Convention of Human Rights and its Court in Strasbourg (46). This view might not be readily accepted – or readily acceptable – to constitutional scholars in the Nordic States, or even be widely admitted by the EU institutions and European Court of Human Rights themselves, but in any case, Kári demonstrates the undeniable influence of the supra-national European Courts on constitutional interpretation in the West-Nordics. If any criticism can be levied at the book itself, they are of a formal nature: in places the editing is wanting and the index is rather thin. The case list is very clear but could have been strengthened by a bibliography of scholars cited, especially given the perfunctory referencing system.


Comparative law is much neglected in West-Nordic legal education – as in most legal traditions – though the reasons for this in the West-Nordic schools are perhaps different: one traditionally learns “the laws” (of the realm) rather than “law” (as an academic discipline) (324). This leads to complacency. Law students are not encouraged to question the law: the law “just is”. An excess of critical thinking is frowned upon. But this comparative study – as comparative law more widely – forces the readers to rethink their legal techniques and revisit their pre-judgments. There is nothing natural or inherent about any particular legal process, let alone any specific legal rules. Law is a product of historical developments as Kári’s study shows, and, most importantly, a product of choice. “Law does not just happen.”[1] This is not widely (enough) recognised in the Nordic legal tradition where law is often viewed as something passed down from generation to generation like some great immutable tablets of stone (73). Thus, by studying other systems, one learns not only those systems but one learns one’s own system better. Most importantly, one understands law better. Zweigert and Kötz have long argued: 

It may indeed be that the mere interpretation of positive rules of law in the way traditionally practised by lawyers does not deserve to be called a science at all, whether intellectual or social. Perhaps legal studies only become truly scientific when they rise above the actual rules of any national system, as happens in legal philosophy, legal history, the sociology of law, and comparative law.[2]


For that reason alone, Kári’s text should be standard reading for all constitutional scholars in the Nordic States, whether they call their field law or political science. This is nowhere more necessary than in those regimes considering radical constitutional reform, such as Greenland, the Faroe Islands and Iceland (though the latter appears to have quietened its calls for wholesale constitutional revision in recent months). But what Kári shows is that irrespective of grand national debates about formal constitutional amendments, constitutional reform is always going on; it is a continuous process. Indeed, Kári cautions against undue reliance on the legislature to maintain the contemporary relevance and aptness of law instead arguing that democracies need active Courts to bring an end to “uncommonly silly” laws (339-40).


Beyond this small corner in the North Atlantic, West-Nordic Constitutional Judicial Review is a welcome contribution to scholars of constitutional comparative law. Most English-language comparative law lumps the Nordic systems in with the Germanic systems – if, indeed, the literature refers to them at all. This may be a result of language barriers and a general want of competence in “skandinavísku” outside the region but this book unlocks that World to the English speaker. With that in mind, it is only a shame that it does not extend to Finland! The Nordic systems, as aptly demonstrated by Kári’s case selection and analysis, are neither simply civil law nor common law but of their own kind and it is time they received this attention.



Editor’s note:

On 14th February 2015, Kári á Rógvi passed away after a short illness. Kári will be sorely missed by the legal communities in the Nordic Countries, not least in the Faroe Islands where he was a leading light in constitutional reform and Professor of Law at the University of the Faroe Islands. This review was written before these sad events and has not been influenced by them but Kári had an opportunity to read it in draft and was aware of the significance of his original contribution to comparative constitutional law in the Nordic countries. Kári, 41, is survived by his beloved wife, Johanna, and three children, Bragi, Brest and Bryndís. The editorial staff and the reviewer extend their sincere condolences to his family.


1 S Vogenauer, ‘Sources of Law and Legal Method’ in M Reimann and R Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP 2008) 877.

2 K Zweigert and H Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998) 4. 

Thomas Jefferson, I dilemmi della democrazia americana, translated and edited by Alberto Giordano, with a preface by Dino Cofrancesco (Novi Ligure: Città del Silenzio, 2007)

On the contrary, the ruling political coalitions in the 1980s, centered on the two-prongs of the Christian Democracy and the Socialist parties, got rid of every sense of measure in spoiling public resources and making recourse to inflation and public debt – which, in those years, rocketed from a normal 60% of GNP to more than 100% (so that we, our daughters and sons, and a host of unpredictable future generations are, and will be, paying dearly for the glorious “statemanship” of those years). 1992 marked a turning-point for the old political establishment: the “Mani pulite” (“Clean Hands”) trials, filed by independent public prosecutors in front of an independent judiciary sent a lot of politicians and fellow transactors and businessmen into jail, and even a former prime minister, acclaimed by somebody as one of the greatest Italian politicians of the XXth century, flew abroad to avoid prosecution. After a while, however, old politicians found a way for taking advantage of the wise advice of Fabrizio, the beloved nephew of Prince Salina (“It is necessary that everything does change for everything to stay as usual”). This way was the founding of a new political party by an influential businessman. This businessman won three elections in the last fifteen-years, qualifying as a perfect demagogue (his party is being defined by his followers as a “charismatic party”), and putting his own private interests on the top of governement and parliamentary agendas. The public sphere deteriorated heavily in those years, and is still deteriorating, for the demagogue and his allies proceeded systematically to turn politics from a civil, though sometimes tough, confrontation of opinions among rival parties into a war against internal enemies, while at the same time undermining the foundations of the Republican Constitution.


In such a situation, the selection of eight writings and seventeen letters by Thomas Jefferson translated, edited, and clearly introduced by Alberto Giordano may indeed provide a sample of an ideal, good, politician, to be used as a standard for criticism and improvement in the Italian political life. For instance, Jefferson upheld free public education for all, as a way to provide future citizens with the learning necessary to control politicians and protect democracy; he opposed public debt, arguing that present generations have not the right to bind future generations to pay for it; he opposed religious “fanaticism”, we would now say “foundamentalism”, as one of the most serious dangers for a democracy, while upholding religious freedom and toleration, provided religion is properly considered as a private business of each believer.

Italians should take the Jefferson model, however, with two caveats.

To begin with, Jefferson supported a few, quite unpalatable, views, even for XVIIIth century standards: think about slavery (he was not an uncompromised abolitionist), women (their proper place is home and family management), and native Americans (to be civilized under the protectoship of wasps). But this is a minor drawback, from our point of view and the way society and culture have evolved in the meantime.

Furthermore – a point I consider the most serious flaw in Jefferson’s political thought – he deemed democracy to be capable, by itself, to protect and guarantee to citizens the individual rights he wisely wanted to be ascribed to them in a constitutional Bill of Rights. On this path, we cannot follow him (though we may appreciate his romantic idea of a democracy made up by small businessmen, small farmers, and small manufacturers, with a small government to decide upon). Nay, democracy by itself is prone to become the prey and toy of demagogues; and only a firmly established constitutional democracy, endowed with a sovereign constitution and judicial review, like the one Madison and Marshall cherished, can do the tremendously important trick of a serious protection of individual rights against abusing majorities and the interest-groups pulling its wires. So, to conclude: welcome to Jefferson’s essays, but, as Don Ferrante suggests, con juicio. The book also contains a learned “Preface” by Dino Cofrancesco, where the most recent essays on Jefferson are analyzed and discussed.