Ever since the time of Plato, preambles, or introductory statements the purpose of which is to explain the law, have become commonplace in European legislation. However, there is an increasing number of preambles both in and outside Europe flooded with references to the historical past, which raises several important questions about the inclusion of such introductory statements in constitutional law. Robert Trygg discusses the relationship between law and politics of memory.
This year marks the 10th anniversary of the controversy surrounding the mention of Europe’s Christian heritage in the draft treaty for establishing a constitution for the EU. Ratified unsuccessfully in 2004, this treaty was later replaced by the Lisbon Treaty, which omitted explicit references to Christianity after a proposal to mention the continent’s Christian heritage was ultimately rejected and changed to “the cultural, religious and humanist inheritance of Europe” in the finalised version of its preamble in 2009.
Ever since the time of Plato, who endorsed the use of preambles because, according to him, they provide the purpose and rationale of the law, preambles have become commonplace in European legislation. In fact, so much so that most constitutions in Europe – and beyond – still include an introductory statement. Such statements typically describe a set of principles found particularly important at the moment of a constitution’s adoption, but also how nations came to be as they are, or would rather like to be, known today.
As the Constitution of Finland currently lacks an introductory statement, the legal and political implications of the inclusion of such statements in constitutional law – apart from the 2004 controversy – may be unfamiliar to many legal and political observers in the northern country. However, given their considerable popularity around the world, their implications are still relevant even in their conspicuous absence, as they offer an important glimpse into a territory of constitutional politics not yet visited in Finnish constitutional debates.
History Is Written By the Preambles
Whilst a number of constitutional preambles model themselves after the preamble to the U.S. Constitution, which famously begins with the words “We the People”, their form and composition varies greatly in terms of style and length. Not only do such preambles exceed the latter’s word count of 52 words by hundreds if not thousands, but they also employ a wide variety of rhetorical devices, such as historical arguments. To be sure, the opening statements of constitutional texts around the world draw a great deal of inspiration from the historical past, which sets such documents far apart from their U.S. counterpart, the oldest constitution still in effect.
For instance, the Iranian constitution, or its English translation, has a preamble of more than 3000 words, which includes a lengthy account of the country’s past. This makes it easily the world’s longest preamble. Other such examples, most of which are also authoritarian or heading in that direction, include the Constitutions of Algeria, Egypt, China, Thailand and North Korea, not to mention Hungary (and Croatia, to a lesser extent) in Europe. They, amongst others, refer to past triumphs and struggles as well as heroes and victims in their preambles, whilst advancing Koselleck’s notion of “horizon of expectation” for the future by establishing the meaning of revolutions and other pivotal moments.
The relationship between constitutional preambles and authoritarianism is by no means coincidental: a quick search shows that regimes currently classified as authoritarian by the EIU’s Democracy Index produce by far the longest preambles, which do not shy away from including lengthy accounts of their past deeds and glories or struggles and sacrifices in constitutional law. Meanwhile, most countries classified as full democracies have no preamble at all, most notably the Nordics, which rely on pragmatism as their legal basis rather than solely historical, ideological, or religious grounds.
To Include or Not to Include a Preamble?
Contrary to the Platonic ideal, modern preambles do much more than simply explain the purpose of the law. Their use of salient historical “facts” may seem merely symbolic from a legal standpoint, but their political implications go way beyond their legal context, as seen in the 2004 controversy. This is because historical value judgements imposed through legislation are to be understood as political acts based on the selectivity of such facts, rather than results of critical historical analysis.
When matters of historiography are made matters of jurisprudence, what is of particular concern is the interpretation of highly contentious concepts in constitutional law, such as memory or identity, the fluidity of which sits poorly with the rigidity of the law. At worst, this can result in interpretations of the past that are quasi-sacred, unquestioned, and overall unquestionable. If, as unfortunate as that would be, no critical scrutiny of such concepts takes place, what could be merely a Historikerstreit, or a dispute between historians, becomes a domain of lawyers and judges, a scenario likely to upset the former.
Historically, a disagreement over the contents of a preamble has rarely if ever prevented constitutional adoption. However, this does not mean that they should remain an unquestioned characteristic of modern constitutions. Rather, the 2004 controversy serves as a reminder that introductory statements in constitutional law – both in and outside Europe – should be subjected to public debate or rejected altogether. Because no matter how legally insignificant, constitutional preambles are fully equipped to pass sweeping historical value judgements, such as that concerning the Christian identity of Europe.
Constitutional texts are freely available in English at:
The Comparative Constitutions Project
For further reading, I would recommend the works of John Balkin and Reva Siegel (e.g. “Constitutional Memories”, “The Politics of Constitutional Memory”), Heino Nyyssönen and Jussi Metsälä (“Highlights of National History? Constitutional Memory and the Preambles of Post-Communist Constitutions”) as well as the German constitutional law and politics blog Verfassungsblog.
Author
Robert Trygg (MSocSc) works as part of the EU-funded SolRem project at the Peace Education Institute in Finland. His master’s thesis explores the politics of memory in constitutional preambles.
