I enjoyed contributing to the volume Law and Morality Revisited, which appeared last July and was edited by Jasper Doomen (Open University), Afshin Ellian, and Gelijn Molier (Leiden University). My contribution, written in 2023 and based on a guest lecture in January of that year, is titled: ‘The State of Western Constitutionalism: An Alternative Problem Analysis and Solution Direction.’
The volume is dedicated to ‘Professor Paul Cliteur’s 38 years of academic work and service at Leiden University.’ Despite or perhaps precisely because of our mutual differences, Paul and I have worked together frequently and well. That resulted, among other things, in the jointly edited volume Rechten, Pichten, Deugden (Rights, Duties, Virtues) (2003).
The abstract of my contribution reads as follows:
The prevailing view is that liberal democracy is, in principle, a good form of government, which has, however, temporarily caught the wind against it. Populism, in particular, is seen as a threat to Western constitutionalism. The Dutch government tries to fight this by a law on party bans. In his contribution, however, dr. Ten Napel gives an alternative problem analysis. This entails that the current state of Western constitutionalism cannot be separated from the fact that the relationship between law and morality within it leaves much to be desired. According to Ten Napel, populism must not be seen as the problem itself but rather as a symptom of a problem. According to him, the real problem is that advancing the common good, the ideal of any political order has fallen out of the picture of contemporary Western constitutionalism. Instead, all is focused on individual autonomy. This development started after the Second World War with modern constitutionalism’s transformation that made the natural law tradition take a back seat. Thus, the traditional human rights model was replaced by a new global one in which social rights are increasingly involved. To materialize these rights, the state has to intervene; simultaneously, the so-called classical rights were also given meaning in a horizontal relationship, i.e., between citizens. The ideal behind all this is realizing the social-liberal goals set out in the newer human rights. As an alternative to social liberalism focusing on individual autonomy, Ten Napel proposes the return to a more classical view of political order in which the objective common good is central again. In terms of constitutional design, this means that the executive must have a primary role again at the expense of the judiciary; at the same time, parliament must be equally focused on promoting the common good. Finally, all this makes only sense when the citizens are morally educated to act in the public interest rightly understood.
You can read the whole contribution here if you are interested.
Hans-Martien ten Napel 