constitutionalism stresses sovereignty, regularity and uniformity, and this contrasts
with the implied rejection of sovereignty and the irregularity and pluralism of
‘ancient constitutionalism’. Although there are notable exceptions, Tully maintains
that the process of colonisation entailed the confrontation of these two forms of
constitutionalism, and contemporary cultural conflicts in, for example, the Americas
have their roots in the imposition of an alien constitutional form on Native
Americans (Tully, 1995: 34). This imperial legacy is still with us, not simply in
political practice, but also in political theory. Writers such as Rawls and Kymlicka,
while arguing for cultural diversity, do so in the language of modern constitu -
tionalism (Tully, 1995: 44).
Drawing on Geertz and Wittgenstein, Tully contrasts two models of intercultural
communication (he prefers the term ‘interculturalism’ to multiculturalism). The first
requires shared terms of reference – so, for example, we might disagree about what
rights people have, but we implicitly assume that rights have certain features (Tully,
1995: 85). The second is based on ‘family resemblances’ between cultures: we find
common ground not through an implicitly agreed shared language, but by a
piecemeal case-by-case agreement, based on affinities between our different cultural
traditions (Tully, 1995: 120). This suggests that constitutional formation cannot be
understood from an abstract standpoint, such as Rawls’s original position. And
Europeans have resources within their own culture(s) to engage in such case-by-
case communication; English Common Law is an example of an ancient constitution,
and Tully considers it significant that there were examples of interaction between
Europeans and Native Americans based on recognition of the affinitiesbetween
their legal systems.
Tully’s argument, while interesting and provocative, has a number of weaknesses.
First, there is a tension between his espousal of a semiotic theory of culture, which
stresses looseness of cultural boundaries, and his talk of 12,000 ‘diverse cultures,
governments and environmental practices’ struggling for recognition (Tully, 1995:
3) (he provides no source for that figure) and ‘15,000 cultures who demand
recognition’ (Tully, 1995: 8) (again, no source). To count something you have to
identify it, and identification implies ‘hard boundaries’. Second, he says very little
about how cultural conflicts can be mediated in the contemporary world, despite
the underlying purpose of his work being to show the relevance of ancient
constitutionalism. It is not clear what institutional forms would express cultural
diversity, especially for geographically dispersed minorities. Third, and most
important, he fails to address the charge that protection of culture can have
detrimental consequences for individual freedom. He does maintain that culture is
the basis of self-respect, such that to be denied recognition is a serious thing, but
he offers only metaphorical observations to support the claim that interculturalism
is not a threat to individual freedom (Tully, 1995: 189).An overlapping consensus (John Rawls)
We have encountered Rawls’s work in previous chapters. The focus there was on
his first book, A Theory of Justice(1972). In a later book, Political Liberalism(first
published 1993), Rawls engages in a critique of the earlier work, arguing that it
did not fully account for the ‘fact of reasonable pluralism’. The idea that principles346 Part 3 Contemporary ideologies