Incompletely theorized agreements in Constitutional Law
| Autor | Cass R. Sunstein |
| Cargo | Distinguished Service Professor of Jurisprudence, University of Chicago |
| Páginas | 13-29 |
INCOMPLETELY THEORIZED AGREEMENTS IN
CONSTITUTIONAL LAW
CASS R. SUNSTEIN*
How can the members of a society work together with mutual respect while
having deep disagreements between themselves about what is correct and what
is good? To think about this question is to think about those factors that make
social stability possible, a subject that cannot be ignored by judges and cons-
titutionalists. In this article, the American author offers an answer, explaining
how agreements can be reached and decisions made without a complete and
robust theory supporting them. His answer also discusses the virtues and limits
of this path to social consensus.
In many nations, citizens must proce ed in the face of conflict and
disagreement on the most fundamental matters. The existence of diverse
values seems to threaten the very possibility of a constitutional order. People
disagree on rights, on the good life, on equality and liberty, on the nature and
the existence of God. How can constitutional decisions be feasible in these
circumstances? The problem might seem especially serious for democratic
societies, which aspire to self-governance. In this essay I deal with two issues
––constitution–making and constitutional interpretation–– in an effort to
make some progress on that question.
My basic su ggestion is that peopl e can often agree on constitution al
practices, and even on constitutional rights, when they cannot agree on cons-
* Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, University of Chicago. I
have dealt with aspects of this problem in other places. See Cass R. Sunstein, One Case At A
Time (Cambridge: Harvard University Press, 1999); Legal Reasoning and Political Conflict (New
York: Oxford University Press 1996).
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titutional theories. In other words, well-functioning constitutional orders try
to solve problems through incompletely theorized agreements. Sometimes these
agreements involve abstractions, accepted as such amidst severe disagreements
on particular cases. Thus people who disagree on incitement to violence and
hate speech can accept a general free speech principle, and those who argue
about same-sex relationships can accept an abstract antidiscrimination prin-
ciple. This is an important phenomenon in constitutional law and politics; it
makes constitution-making possible. But sometimes incompletely theorized
agreements involve concrete outcomes rather than abstractions. In hard cases,
people can agree that a certain practice is constitutional, or is not constitutio-
nal, even when the theories that underlie their judgments sharply diverge.
This latter phenomenon suggests that when people disagree or are uncertain
about an abstract issue ––is equality more important than liberty? does free will
exist? is utilitarianism right?–– they can often make progress by moving to a level
of greater particularity. They attempt a conceptual descent. This phenomenon
has an especially notable feature: It enlists silence, on certain basic questions,
as a device for producing convergence despite disagreement, uncertainty, limits
of time and capacity, and heterogeneity. Incompletely theorized agreements are
an important source of successful constitutionalism and social stability; they
also provide a way for people to demonstrate mutual respect.
Consider some examples. People may believe that it is important to protect
religious liberty while having quite diverse theories about why this is so. Some
people may stress what they see as the need for social peace; others may think
that religious liberty reflects a principle of equality and a recognition of human
dignity; others may invoke utilitarian considerations; still others may think that
religious liberty is itself a theological command. Similarly, people may invoke
many different grounds for their shared belief that the Constitution should
ensure an independent judiciary. Some may think that judicial independence
helps ensure against tyranny; others may think that it makes government more
democratic; still others may think that it leads to greater efficiencies.
The agreement on particulars is incompletely theorized in the sense that the
relevant participants are clear on the practice or the result without agreeing
on the most general theory that accounts for it. Often people can agree that
a rule ––protecting political dissenters, allowing workers to practice their
religion–– makes sense without entirely agreeing on the foundations of their
belief. They may accept an outcome ––affirming the right to marry, protecting
sexually explicit art–– without understanding or converging on an ultimate
ground for that acceptance. Often people can agree not merely on the out-
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