Interview with our new honorary doctor Jeremy Webber

Dear Professor Webber, we are honored that you will be doctor honoris causa at ELTE. Your studies touch upon subjects among others related to constitutional theory and constitutional law. Why law? Why did you choose law as a profession?

Sorry to say that I didn't have a very good reason to choose law as my profession. As you may know, in North America you have to study something else before you can go into law school, and I was studying political science with a strong interest in political theory.

It was also the time of the constitutional negotiations in Canada that led ultimately to the adoption of a supplementary constitutional document, the Constitution Act 1982, which, among other things, contained the first constitutionally entrenched Bill of Rights in Canada and also the protection of indigenous rights. I was very much engaged in those discussions.

However, when I was applying for Graduate School in political theory, that process persuaded me that I wasn't ready to devote my life to political theory. And in Canada, what does one do with a political science degree if one doesn't want to do graduate work? One goes into law. So, I essentially backed into law school thinking that all I would be getting would be a technical skill. Of course, I was completely surprised to find that law school demanded more of me, more of my imagination, more creativity, than I could ever have thought. The same issues, the same principles, the same themes that were important in my interest in political theory still were operative in law. But law forces one to ask: How do these principles get translated into institutions, into rules, into processes? Into processes that embody some approximation of the principles that a society ought to live by.

What was the first area that you focused on as a scholar?

I really started off working in labor law, that was my primary area. My graduate work was on the history of Canadian labor law and my first publications tended to be in that area.

But what had brought me into law were the constitutional questions that Canada was facing. I was teaching at McGill University, which teaches in both French and English. The first constitutional issue that I worked on extensively was the role of language in shaping political community and how that ought to be reflected within a constitution. What might that mean for constitutional structure? What it might mean in the Canadian context, for example, for the interpretation of the Canadian federal system. That work was occurring at the moment of intensive and fraught constitutional discussions in Canada, which began with one referendum on Quebec sovereignty and then led, 15 years later, to another one. I was trying to think about how this wonderful country of Canada, how its complex character should be reflected in constitutional form.

My sense about constitutional law has always been that constitutions are primarily for their citizens – although that citizenry in any country, especially in Canada, is a complex one. It involves in Canada two major languages, French and English. It also involves still, and will involve, how one makes sense, how one puts in place just relations between indigenous peoples and the other institutions of Canadian governance.

J.M.: Indigenous rights is a recurrent theme in your work. How would you shed light on its constitutional relevance?

J.W.: I've been dean at Sydney University in Australia, I've had a strong Australian connection from my very first day. When I concluded my time as Dean, I was going back to research, and I was thinking about what I should work on. One of the great attractions of coming to this marvelous university to which I'm now associated, the University of Victoria, was that it was engaging seriously with indigenous legal orders.

I actually have to take one step back. A lot of the early work including my own early work on indigenous peoples’ law really focused primarily on the spaces that might exist within Canadian law for indigenous peoples, not on their internal organization and their own law. This latter was for the vast majority of us, a black box. We just didn't know what was in there, and we didn’t think that we needed to know. But it has become very clear over recent decades that one has to have some sense of what's in that box.

And when I was coming back to Canada in 2002, I remember being struck by the fact that even though I'd worked in the area for some time and even though I had paid attention to the internal workings of indigenous legal orders, I really didn't know how indigenous law could work. How indigenous societies could hang together, when they didn't have a central final process of adjudication. They didn't have this hierarchical architectural structure of authority that states have. Thinking about that and working that through has been one of the things that I found most fruitful in the latter part of my career.

And it's fruitful not just for indigenous societies. It's also, I think, hugely instructive about international law, which, if you think about it, is the non-state legal order, without a central final power of decision making, that states participate in as members. There is not a clear hierarchical structure of authority, and yet somehow these institutions work. I found that had a lot of international lawyers, I think mistakenly try to think about international legality in completely state dominated terms.

What I really learned from researching indigenous law is how to look at the processes that are appropriate to non state institutions and how they ought to operate and how law operates in that context and how that allows us to think about those institutions in more fruitful ways. And that's just one example. The model of the centralized state is one that doesn't even work very well within states, certainly not as an exclusive model.

You did not only study in a bilingual context, but also met with different legal traditions. How these shaped your approach towards the law?

I soon realized what a strong and useful metaphor linguistic difference is for forms of difference that exist within law. To take one example, I was trained not only in French and English, but also in the Civil Law and the Common Law. Often the differences in the outcome of private law disputes – for example, in contract law – are not profoundly different between the Civil Law and the Common Law. What really differs is the process of reasoning to get there, and the conceptual categories one uses in engaging in that reasoning. That phenomenon is nicely captured through the analogy of language. Reasoning in the Common Law, versus reasoning in the Civil Law, is like arguing in a different language.

And the difference of language matters. Language captures different conceptual categories that have been internalized within their societies. Even the difference between Canada and the United States or Canada and Australia – contexts in which people are all using English – is striking.

You met many legal systems, one of them is the Hungarian. How did you come across Eastern Europe and Hungary?

What I have learned over the years is how much value I obtain from engaging with people whose societies I don't know or know imperfectly, to see whether the ideas that I'm familiar with from my Canadian or an Australian experience are parochial, limited to that context, or whether they work in broader context, whether they have a broader implication.

That is why I find hugely attractive and informative engaging with my Hungarian friends and scholars. Related to this, there were two moments for me. One was in the years following 1989 when there had been that amazing transformation of the political order across eastern and Central Europe, and the question was now how do we build constitutional structures? How do we put in place the rule of law? I found that for someone interested in the foundations of a constitutional order that was a fascinating period.

I never worked particularly in relation to Hungary. I would never consider myself to be an expert on Hungary. I was rather engaged in conversation with Hungarian scholars. And the first of those conversations took the form of research exchanges between the Hungarian Academy of Sciences and the Royal Society of Canada in 1995. I have worked more practically on transformations from autocratic systems in relation to Ukraine in the 1990s, in relation to Vietnam in the 2000s and 2017-2018, and in relation to Myanmar before the coup.

And the second moment was the opportunity to return to Hungary beginning in 2017. The challenges were, in some ways, leftovers from the challenges of the democratic transition. These challenges were being discussed particularly in terms of populism. Often, for constitutional lawyers, the question posed by populism is formulated as “What should democracies be permitted to do?” But for me, the question really takes the form, ”How do we do democracy in a way that is faithful to its promise?” It distinguishes between a populism which is good, which involves empowering its citizens and thinking that the citizens are the bedrock of the constitutional order – which I entirely accept – and when claims that are made in the people's name begin to deform, to take the place, to usurp the role of the people themselves.

ELTE has been a place for re-engaging with Hungary, for returning to questions that I had so much appreciated decades before. I had the opportunity to reengage with a society that I greatly respect. The 1989 transformation was really courageous, but those transformations are never perfect, and I returned and was invited to again be a student of Hungarian legality, Hungarian constitutionalism, Hungarian society.

This was the greatest of privileges, and I owe that privilege to ELTE. It was ELTE, it was Eszter Bodnár and her colleagues. It was the group of Constitutionalists interested in these issues that was forming in the regional cluster of ICON-S – the International Society for Public Law. It was a wonderful opportunity and it's led to exchanges between our institutions. It led to that excellent conference in 2020 in Victoria that has had a real impact and that was jointly sponsored by ELTE and the University of Victoria, and that has now produced three special issues of journals.

You will deliver your inaugural presentation titled ‘Towards a truly democratic constitutionalism.’ Could you elaborate on what it will be about?

The premise of the presentation is that a lot of constitutional lawyers have lost their faith in democracy, in the ability of a people to govern themselves. I have not!

We, constitutional lawyers, have a range of related tasks. The most fundamental one is to work the constitutional order in a way that really allows, enables and empowers the voice of the people. That doesn't mean that courts aren't important, they are, but the ultimate audience for any discussion of a constitution is the citizens.

And democracy doesn't just mean elections. Democracy means material capacity for participation, for making real choices by the people themselves. Knowing what their government is doing, and providing the mechanisms of accountability and oversight of government so that the people actually know what they're voting on, they can intervene in the debate because they know when something's going to be decided. A healthy democratic system doesn't just mean that every four or five years you get to vote. It also means that you actually are able to see what your government is doing, appreciate it, contribute to it, vote on it.

Constitutional lawyers’ principal focus should not be a matter of constraining democracy, but enabling that kind of ground-up participatory capacity of citizens to know what's going on and to speak their minds.