The role of affect in supranational constitutional identity

“When in each man’s heart the social bond is broken” – Rousseau

Yussef Al Tamimi, 22 October 2017


This post reflects on the role of affect in supranational constitutional identity. When addressing the challenges of constructing constitutional identity at the supranational level, Rosenfeld notes that a major issue for the European Union is the lack of a sufficient ethnos or identity.[1] One way to overcome the lack of transnational ethnos is proposed by Jürgen Habermas. Put succinctly, his idea of ‘constitutional patriotism’ suggests that people’s primary allegiance should be to constitutional principles.[2] Rosenfeld is skeptical and calls the idea ‘highly problematic’. This post picks up on a question Rosenfeld only asks rhetorically: “Can one profoundly and affectively identify with a conceptual ideal?”[3] First, the relation between constitutional identity and affect is briefly discussed, particularly as it appears in Liav Orgad’s book. Subsequently, in a dialogue between Rosenfeld, Orgad and Habermas, the post examines if constitutional patriotism can provide a sufficient affective social bond and, if not, whether national constitutionalism does any better.

Why we need a social bond

Liav Orgad suggests that people have a social want for a bond. He referred to Robert Putnam’s book Bowling Alone, in which Putnam argues that that there has been a statistical decline in the United States in interactions between people and a disengagement from social life. This is problematic for democracy, because it undermines the active civil engagement that a democracy requires from its citizens. Orgad remarked that according to such research the bond that ties a society together need not necessarily be a shared identity, but could also be other things, for instance shared interests. Indeed, Putnam speaks more of social ties and social capital, while identity is rarely mentioned in the book. In any case, for Orgad one sort of bond that can tie a society together is a shared identity.

In Orgad’s book, the relation between affect and constitutional identity becomes explicit in two passages Orgad cites from Rousseau. The sixth chapter on national constitutionalism starts with Rousseau’s writing: “There is therefore a purely civil profession of faith (…) not exactly as religious dogmas, but as sentiments of sociability, without which it is impossible to be either a good citizen or a loyal subject.”[4] Further on, Rousseau is quoted as saying that the social bond resides in “each man’s hart”: “when in each man’s heart the social bond is broken (…) then the general will falls silent.”[5] The social bond was formerly religious, but despite the decline of the importance of religion Orgad notes that a bond of some kind is “still perceived as essential.”[6] He states that the social bond is required for instrumental purposes, namely maintaining a liberal democracy. Note that this is a different argument for the necessity of social bonds than the ‘social want’-argument mentioned above, which was based on an understanding of humans as social animals. Basing the justification on human nature is a more encompassing argument and opens up questions about the role of social bond in nations that are not liberal democracies, which might be why Orgad chose a limited instrumental political identity as a social bond.

His further discussion of restrictions the social bond can justify on migrants is less relevant for this paper. For now, it is important to note that in Orgad’s view people are in need of a social bond (though the reason why is not clear), that the social bond contains an affective dimension, and that this bond can be a constitutional identity.

Does constitutional patriotism provide an affective social bond?

After presenting his view of national constitutionalism, Orgad differentiates it from Habermas’ idea of constitutional patriotism. Orgad sees constitutional patriotism as an attempt to create a “just constitutional regime that expresses universal norms of justice and fairness in specific context.”[7] In contrast, national constitutionalism seeks to preserve essential constitutional principles because they are possessed by particular collectives. As such, for Orgad the difference between national constitutionalism and constitutional patriotism is that the former is less universal.

Rosenfeld argues that the idea of constitutional patriotism is ‘highly problematic’.[8] He points out that constitutional patriotism seeks to redirect patriotism, an affective bond usually directed toward a nation-state, toward the ideals of constitutionalism. Subsequently, he formulates his objections to constitutional patriotism in the form of two rhetorical questions: “Can one profoundly and affectively identify with a conceptual ideal? And even if one could, would that provide a thick enough layer of identity to glue together all those coming within the sweep of a global or transnational constitution?”[9] Therefore, Rosenfeld objects to constitutional patriotism for two reasons: (1) not being a source of affective attachment, and (2) not being thick enough a layer of identity. This paper considers Rosenfeld’s first argument, which to my mind has two components. On the one hand, it explicitly raises the question whether constitutional patriotism provides sufficient affective attachment at the supranational level. On the other hand, on an implicit level, the remark suggests that constitutional identity at the national level does provide sufficient attachment. To examine whether these assertions add up, I will discuss Patchen Markell’s 2000 article ‘Making Affect Safe for Democracy?’.[10]

Markell’s article addresses the relationship between liberal democracy and the affective dimensions of political life. To avoid the dangers and violence that come with passions and strong identification, liberals have sought to exchange sentiments for reason. As a result, critics of liberalism have argued that liberalism leaves no room for belonging, loyalty and allegiance, making it unsustainable because it “cannot inspire the moral and civic engagement self-government requires.”[11] One way to respond to such criticism has been the idea of constitutional patriotism. Like Rosenfeld, Markell writes that liberals like Habermas try to redirect our attachments and sentiments from one subset of objects (nation-state, religion) to another subset of objects (constitutional ideals). Markell calls this the ‘strategy of redirection’.

As such, for Habermas constitutional patriotism provides a safe form of affect because it is directed toward a distinctive kind of object. Markell notes that family, ethnos and nation are pre-political objects of affect and identification. These objects are pre-political because they exist “independent of and prior to the political opinion- and will-formation of the citizens themselves.”[12] In Habermas’ discussion on individual psychology, these forms of affect correspond to the conventional stage of identity-formation, in which the individual secures identity at the cost of blindly accepting the roles assigned to him by others. On the other hand, constitutional ideals are political objects. Attaching to these objects is a sign of having achieved maturity in identity-formation, having outgrown the need to be assigned roles by others, and shows a politics that has “learned to stand on its own two feet.”[13]

The distinction Habermas makes between pre-political and political objects in my view raises many issues: firstly, calling the attachment to one group of objects blind and the other mature sets the debate in an unhelpful frame, because it does not stimulate to see the substantive differences and nuances between the two subsets. After all, feeling a bond with one’s family or nation can be reached through reason, or at least experienced as reasonable by some people, and it is equally thinkable that some people will blindly follow the constitutional ideals of the system they are born into. Indeed, the dichotomy itself between pre-political and political objects seems to fall apart if one considers the developments in feminist theory and critical legal theory in the past few decades, which suggest that institutions such as family and nation cannot be divorced from the political reality that shape our understanding of them.

Perhaps as a result of these shortcomings, Habermas developed the notion of constitutional ideals in his subsequent work, especially regarding the extent to which such ‘ideals’ are universal and/or particular in substance. For Habermas, to create sufficiently strong identifications to sustain social integration, the image of the community to which citizens belong has to be given more definition than an abstract idea.[14] For instance, for Germany, constitutional patriotism should not be viewed as loyalty to universal principles but rather as attachment to “the political order and the principles of the Basic Law.”[15] Habermas also speaks of principles “within the historical context of a legal community.” Thus, constitutional patriotism ties citizens to particular historical institutions and concrete cultures.

With the turn to particularity in Habermas’ idea of constitutional patriotism, the aim of “purifying national loyalties of the cultural particularisms”[16] which seemed the original intent of redirecting affective attachments does not quite succeed. Where does this leave Rosenfeld’s original question: Can one profoundly and affectively identify with a conceptual ideal? It probably proves Rosenfeld right. Conceptual ideals, at least viewed as concepts completely severed from their particular situatedness, do not provide affective attachment unless they are tied to the particularity out of which they are borne.

Does national constitutional identity provide an affective social bond?

In the last section of his article, Markell moves away from the theoretical texts in which Habermas advocates his idea of constitutional patriotism, and rather looks at mainstream pieces where Habermas engages in public German debates. It turns out that Habermas tends to present constitutional patriotism as an act of resistance against other forms of identification, rather than necessarily as a source of affective attachment. For instance, after an attack on German-Turkish citizens by neo-Nazis in Germany in 1992, the massive demonstrations that ensued across Germany where important not because they necessarily expressed an identity but rather because they resisted a particular identification through constitutional patriotism.[17] In fact, this relates very much to the way especially Rosenfeld describes constitutional identity. Rosenfeld tends to describe constitutional identity as working in constant tension against national identity. He writes: “constitutional identity is constructed in part against national identity and in part consistent with it. More generally, constitutional identity must constantly remain in dynamic tension with other relevant identities.”[18]

Markell suggests that rather than regarding constitutional patriotism as a stable source of affective attachment, it should be viewed as holding a critical mirror toward society. It is worth quoting Markell final sentence in full here:

“If normative principles always depend on supplements of particularity that enable them to become objects of attachment and identification but that also never are quite equivalent to the principles they purport to embody, then perhaps constitutional patriotism is best understood not as a safe and reliable identification with some pure set of always already available universals but rather as a fragile political culture that habitually insists on and makes manifest this failure of equivalence for the sake of the ongoing, always incomplete, and often unpredictable project of universalization.”[19]

The question arises, given the similarity with which Rosenfeld positions constitutional identity vis-à-vis national identity, whether constitutional identity can be better conceptualized as a source of resistance or balance in relation to other forms of identification. Indeed, the case for Rosenfeld and Orgad’s national constitutional identity as a source of affect is arguably not much stronger than for Habermas’ constitutional patriotism; both are conceptual, constitutional ideals that derive their authority from the particular societies in which they are constituted. Viewing these ideals as sources of resistance alleviates them of the task of also having to provide society with an affective social bond. Entrusting this task to other forms of collective identity leaves space for the constitution to fulfill a task that seems closer to its original calling: providing a forceful guarantee against illegitimate transgressions resulting from identity clashes in society.


This paper examined the question Rosenfeld poses about Habermas’ idea of constitutional patriotism: Can one profoundly and affectively identify with a conceptual ideal? Rosenfeld could be right. In his later work, Habermas writes that in order to create sufficiently strong identifications to sustain social integration, the image of the community to which citizens belong has to be given more definition than an abstract idea. However, the last section of this paper suggests that constitutional identity, whether national or supranational, faces a similar problem to constitutional patriotism: the case for Rosenfeld and Orgad’s national constitutional identity as a source of affect is arguably not much stronger than for Habermas’ constitutional patriotism, because both are conceptual ideals that derive their authority from the particular societies in which they are constituted. Perhaps it is better to leave the task of creating affective social bonds to the different forms of identification, and focus national constitutionalism on keeping in check the excesses that might result from these identifications.

    1. Rosenfeld, M. (2012) ‘Constitutional Identity’, in M. Rosenfeld and A. Sajó (eds.), Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, p. 7 and 13.
    1. Habermas, J. (1994) ‘Struggles for Recognition in the Democratic Constitutional State’, in C. Taylor and A. Gutmann (eds.) Multiculturalism, Princeton, NJ: Princeton University Press.
    1. Rosenfeld 2012, p. 13.
    1. Jean-Jacques Rousseau 1994, On the Social Contract, Oxford: Oxford University Press, p. 166 (Book IV, Ch. VIII).
    1. Ibid., pp. 134–136 at 135 (n. 1) (Book IV, Ch. I).
    1. Orgad, L. (2015) The Cultural Defense of Nations. A Liberal Theory of Majority Rights, Oxford: Oxford University Press, p. 205-206.
    1. Ibid., p. 214.
    1. Rosenfeld 2012, p. 13.
    1. Ibid.
    1. Markell, P. (2000) ‘Making Affect Safe for Democracy?’, Political Theory, vol. 28, no. 1, pp. 38-63
    1. Habermas, J. (1974) ‘On Social Identity’, Telos 19, p. 100.
    1. Habermas, J. & Cronin, C. (1998) “The European Nation-State: On the Past and Future of Sovereignty and Citizenship,” Public Culture 10, no. 2, pp. 397–416.
    1. Markell 2000, p. 43.
    1. Ibid., p. 50.
    1. Ibid., p. 51, where Markell cites Harbermas’ Sonning Prize speech.
    1. Yack, B. (2001) “Popular Sovereignty and Nationalism,” Political Theory 29, no. 4, p. 530.
    1. Ibid., p. 57.
    1. Rosenfeld 2012, p. 3.
  1. Markell 2000, pp. 57-58.

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