Vito Breda (USQ School of Law and Justice) has posted Constitutional Patriotismn (IVR Encyclopaedia of Jurisprudence, Legal Theory and Philosophy of Law, M.N.S. Sellers and S. Kirste. Springer, Dordrecht, 2017) on SSRN. Here is the abstract:
Constitutional Patriotism is a political theory that seeks to provide an explanation for the sense of ownership that most individuals have toward their national constitutional system. Specifically, constitutional patriotism assumes that free thinking individuals involved in a discussion over the common good will reach agreements that are perceived, at least by those involved in the debate, as having a normative value. The awareness that such a deliberative process has been historically part of the constitutional system also induces a sense of ownership of past historical accommodations of constitutional principles. The shared perception of being part of historically grounded institutions of a deliberative democracy is sometime called ‘normative surplus effect’ or ‘normative spill-over effect’ of the deliberative process.
Debates over the common good might take place informally or within the state’s institutions. Pell-mell informal debates, with few exceptions, have limited effects on amending constitutional norms. Yet, the prerogative to discuss openly laws and policies legitimised by constitutional norms is normally sufficient to develop an inner sense of belonging to a constitutional system. Deliberative debates within public institutions (e.g. parliaments and courts) are more likely to change the functioning of a constitutional system but they are, by a way of comparison with informal political discussions, normally constrained by the system of rules that regulate representative democracy and the administration of justice. So, the theory of constitutional patriotism provides an explanatory model for a historical development of a democratic constitutional system.
As one of the most persuasive explanatory theories of modern pluralist democracy, constitutional patriotism has attracted a series of well-articulated critiques. It has been suggested, for instance, that constitutional patriotism might not provide a plausible model of social integration for international organisations such as the EU. In this essay, I will provide an overview of the theory and a selection of its critiques.
