Hirschl Symposium: Between Empowerment and Emancipation

Updated: Nov 4, 2021

In his latest book, Ran Hirschl has once again set out to expand our constitutional imagination, this time calling on constitutionalists to reckon with the unrelenting reality of urbanization. His core thesis is that the constitutional status of cities needs to be strengthened to ensure that cities are able to do all we expect of them. In this short intervention, I address two points related to this core treatise: first, how much of a change in status we should be looking for, and secondly, how cities themselves can help transform their legal position, something about which I’m more optimistic than Hirschl.

What kind of status change: empowerment or emancipation?

Chapters 1 through 4 of the book offer a dazzling discussion of city power across time and space. These act as a crescendo for the fifth, and most exciting chapter, in which Hirschl formulates a range of original, urban-specific arguments to enhance the status of cities. Assuming that we accept these arguments, as I agree with Ran that we should, an important question is what exactly an enhanced constitutional status for cities should entail. In this regard, the book oscillates between empowerment and emancipation. Here I understand empowerment as the legal strengthening of cities within the existing constitutional order and structures of power. Hirschl rightly criticizes the fact that cities often do not receive sufficient resources from the central State or provincial level. Their inability to govern effectively is compounded by first-past-the-post-rules and electoral malapportionment that privileges rural areas and hamper advocacy for city interests at the national level. Addressing these concerns could be done through a clearer recognition of urban self-government in the constitution, alongside an explicit commitment to make adequate capacity available, like the South African Constitution stipulates. Similarly, changing electoral systems or constitutionally prescribe an urban democracy principle could help ensure greater compliance with democratic ideals. Empowerment along these lines would clearly be important. But it seems to me that it would neither require nor result in a seismic shift in the hierarchical conceptualization of the State, and I wonder whether a status improvement along these lines would be sufficient to vindicate the book’s main thesis.

This brings me to the notion of emancipation, which I take to refer to resisting or challenging existing structures of power. Within the book and in earlier work, Hirschl has criticized the contemporary “state centered perception of legal spatiality”, which hampers cities from truly coming into their own. Mention is made of cities being forced to adopt national visions of ‘the public good’, instead of being able to address socio-economic challenges “more freely, creatively and aggressively” as well as of the option of cities having leeway to fashion their own, localized interpretation of fundamental rights. This seems to me quite a different case from the lack of capacity and a seat at the national table that empowerment is primarily concerned with. While part of me is sympathetic to a bolder strengthening of cities’ legal clout, I have some reservations. How confident can, or should, we be that cities will ‘do the right thing’ when constitutionally emancipated? Much arguably depends on the city’s leadership and administration. Will city inhabitants choose enlightened, progressive leaders? Will vulnerable and invisible city dwellers be given and use opportunities to participate in local democracy? As emphasized in the book, cities are incredibly diverse spaces, faced with marked inequalities between inhabitants, several of whom may not have a strong emotional connection to the city or otherwise be motivated to remain there on a quasi-permanent basis. For instance, even if cities can raise their own taxes, will the city administration be able to resist capture by private business interests – if not for augmenting their available budget, then for reputational purposes, including to attract ‘desirable’ individuals or groups to the city? Moreover, and from a constitutional design perspective, it seems to me that oversight mechanisms or stipulating minimum guarantees of democracy, rights or fiscal management would still be required. Cities cannot, and should not, have unfettered autonomy. Designs that aim to provide such checks and balances are likely to re-introduce hierarchical tendencies and the potential for conflict, as the experience with notions of constitutional pluralism and multi-level governance in the European context shows. This especially since the different spheres of governance (here: national and city) are not entirely distinct, but interlinking and overlapping, raising difficult questions of who has kompetenz-kompetenz. A partial answer might be found in the need to reconceptualize the relationship between cities and higher echelons as truly grounded in interdependence. This has begun to happen in the European Union, which brings me to my second point: how city-steered initiatives can boost standing and influence.

How: role of city-steered initiatives to boost standing and influence

Hirschl’s book notes that international networking by cities in relation to sustainability efforts or to confront human rights challenges has limited constitutional bite, as such initiatives normally operate alongside rather than within formal legal frameworks. While I largely agree, the European experience may offer a twist on this narrative. There is a long tradition of inter-city networking in Europe, which has helped create an environment in which cities are able to advocate for themselves through official channels. I have explored this in greater detail in a recent article on the role of cities in the EU, so let me here just briefly mention two examples. In the early 1990s, the EU added an assembly of local and regional representatives to its institutional configuration to ensure representation of subnational interests. This assembly, called the Committee of the Regions, has the right to be consulted on a wide range of legislative initiatives, with the ability to initiate litigation before the Court of Justice of the EU if this right is not respected. Through this body, which is explicitly mentioned in the European Treaties that are commonly seen as the EU’s constitution, subnational authorities (cities included) have accordingly been provided with a direct voice in EU decision-making. Then in 2016, the EU adopted the Urban Agenda, which is grounded in a vision of cities as active participants in “a new form of multi-level and multi-stakeholder cooperation”. Through this Agenda the relationship between the Union and cities has been upgraded from rule-making-principal and implementation-agent to one based on partnership and reciprocity. Crucially, this revamped conceptualization had long been propagated by urban networks. Under this Agenda, cities can receive grants from the EU to trial-run creative solutions to address a wide range of urban challenges. Relatedly, networks play an instrumental role as additional conduits for urban advocacy efforts regarding policy-making. For instance, the EUROCITIES network has on several occasions launched new initiatives on the floor of the European Parliament and subsequently collaborated with this institution to give effect to such initiatives, while the European Commission has recognized EUROCITIES and other networks as valued dialogic partners in the review of existing and new legislation that implicates the urban level. Through self-directed networking, European cities have thus managed to get a seat at the table as well as improve their financial autonomy. The European experience, thus, offers a fertile ground for future city-focused research as per Hirschl’s clarion call, especially studies that seek to interrogate whether and how bottom-up initiatives to improve cities’ lot can be harnessed legally and replicated across different political landscapes.