The Straw that Broke the Back of the Constitution? When Quantity Transforms to Quality

—Yaniv Roznai, IDC Herzliya, Harry Radzyner Law School*

On October 27, 2020, an extended bench of the Israeli Supreme Court held a hearing in HCJ 2905/20 et al. Regarding the Basic Law: Government, Amendment No. 8 and the Temporary Order (the Alternation of Government), a hearing that was broadcast live.

One argument that came up briefly in the discussions is the issue of the “cumulative effect doctrine.” This argument appears in detail in the petition of the Movement for Quality of Government. They argue that the “cumulative effect doctrine has come to examine the legal issues of a set of legislative arrangements and their aggregate significance for the constitutional regime.” The accumulation of legislative arrangements creates an unconstitutional cumulative effect. In other words, a separate analysis of each arrangement misses the point; you see the trees – you miss the forest.[1]

In this short note, I seek to focus on this argument and try to establish a preliminary theoretical basis for the concept of “quantity makes quality” in the context of unconstitutional constitutional changes and judicial review of constitutional amendments.

Throughout history, philosophers and scientists have proposed the thesis that individual small changes, which have no capacity to bring about qualitative change, at some point do just that: quantity transforms into quality. The idea that under certain conditions even small things can cause great changes finds expression in all sorts of modern sayings and proverbs: “the straw that broke the camel’s back,” “constant dripping wears away a stone,” “death in a thousand cuts,” and so on.

This conception was first brought up by the Megarian philosopher Eubulides (4th century BC) who asked the following paradox: Is one grain of sand a pile of sand? The answer is – no. And two grains of sand? Again, the answer is no. If we continue to add individual grains of sand – at what point will they become a pile? Similarly, the ‘bald man paradox’ features a man with a clearly full hair head who is not bald. Removing a single hair from his head will not make him a bald man. And yet it is clear that continuing this process must ultimately lead to baldness. From these examples it is clear that a quantitative accumulation of small changes may lead to a large paradigm shift.

The German philosopher, Georg Wilhelm Friedrich Hegel, was perhaps the first to point out the significance of the transition from quantity to quality in social evolution. The Hegelian dialectic is usually presented in a triangular form, which includes three dialectical stages of development: a thesis, an antithesis, which contradicts or denies the thesis; and the tension between the two was resolved by synthesis. Another important dialectical principle is the transition from quantity to quality. In his book The Science of Logic, Hegel describes a dialectic of existence on which he also expands in the Encyclopedia of the Philosophical Sciences, where Hegel writes that existence contains three levels of quality, quantity and measure: A thing ceases to be what it is if it loses its quality. Quantity, on the other hand, is an external characteristic of existence that does not affect it. For example, a house remains a house whether it is large or small. Red stays red whether it is light or dark. Measure, the third degree of existence is a union of the first two characteristics. This is a ’qualitative quantity’. All things have a measure. That is, the quantitative conditions of their existence are not important within certain limits; But when these boundaries are breached with a certain addition, things cease to be what they are. The quantitative characteristics of existence, Hegel writes, can change without affecting its quality. But there is a limit to this increase or decrease, the quality of which varies. Thus, for example, at some point a gradual reduction in the temperature of water reaches a point where unity undergoes a qualitative change and the water becomes ice. In other words, even gradual and minor change has a limit and at some point, a slight change may lead to a qualitative change. According to Hegel, this is a move that has implications in our practical and ethical lives, as well as in politics.

Trotsky’s In Defense of Marxism expanded on Hegel’s dialectic. He writes that everyone knows that a small addition of salt to soup is agreed upon but at some point, the addition of salt makes the soup inedible. That is, the Hegelian law of ‘quantity becomes quality’ becomes a useful cooking principle! And as any fox knows, rabbits or chickens can be chased, but as soon as the fox watches an animal that surpasses it to a degree, for example a wolf, the fox concludes that quantity becomes a quality and runs for its life. Within the foot of the fox, Trotsky writes, there are Hegelian tendencies, even if he is unaware of them.

In Hegel’s writings there are many examples of the law of dialectics drawn from history and nature. But Hegel’s idealism gave his dialectic an abstract character. Marx and Engels formed a basis for dialectics in their dialectical materialist theory emphasizing the importance of conditions in the real world – Marx mainly within the interrelationships between class, work and socio-economic and Engels within the natural sciences. From reading Hegel’s The Science of Logic, Engels clarified in his work Dialectics of Nature about the law of dialectics concerning the transformation of quantitative changes into qualitative changes: All qualitative distinctions in nature rely on changes in chemical compositions or quantitative changes or forms of energy. It is impossible to change the quality of a body without the addition or reduction of material or movement, i.e. without a quantitative change of the body. The dialectical principle of transitions between quantity and quality can be found in various scientific fields, such as physics and chemistry. It is clear to us, for example, that a change from a gas state to a liquid or solid, is usually related to changes in temperature and pressure. Or the phrase ‘phase transition’ is used in science to denote what is actually a qualitative leap – in which matter passes from one phase to another as a result of a change in a physical parameter. In his writings, Engels provides a series of examples of how, in the natural sciences, a simple quantitative addition of elements creates different bodies in terms of quality.

Indeed, in nature, quantity becomes quality. Thus, for example, in biology we can see the law of quantity transforms into quality in evolutionary processes of species, where at a certain point a new race is created. Paleontologists Stephen Jay Gould and Niles Eldredge have proven that these processes are sometimes slow and lengthy and sometimes extremely fast. They show how the gradual accumulation of small changes at a particular point evokes a qualitative change. The term used to describe long periods of stability, disturbed by sudden bursts of change, is “punctuated equilibrium”, which is now supported by most paleontologists, presents a true dialectical picture of evolution, in which long periods of stagnation are interrupted by sudden leaps and dramatic changes.

It is precisely this idea of ​​cumulative changes that transform into radical changes – or in other words turning quantity into quality – that I want to apply in the analysis of constitutional change.

In a recent article I co-authored with Dr. Tamar Hostovsky Brandes,[2]  we argue that the time has come to consider a cumulative examination during judicial review of constitutional amendments to deal with populist constitutionalism and democratic erosion. This consideration is necessary to deal with the gradual characteristic of erosion of democracy whose central element is incrementalism consisting of many small steps. As Professors Tom Ginsburg and Aziz Huq show in How to Save a Constitutional Democracy:

Democratic erosion is typically an aggregative process made up of many smaller increments. But those measures are rarely frontal assaults on one of the three institutional predicates of liberal constitutional democracy, of the kind that might be associated with an overly totalitarian or fascist regime.[3]

However, when such measures are taken accumulatively, the affect is momentous.  As they state: “a sufficient quantity of even incremental derogation from a democratic baseline . . . can precipitate a qualitative change that merits a shift in classification.”^[4] Likewise, Wojciech Sadurski writes that in Poland the “broad assault upon liberal-democratic constitutionalism produces a cumulative effect, and the whole is greater than the sum of its parts.”^[5] And this is the crucial point. Often, each constitutional change on its own does may not transform the constitutional order or be considered as a constitutional replacement, but the incremental aggregation of the changes may lead to what Gary Jacobsohn and I term a constitutional revolutionary change.^[6]

Suppose you have the following scenario: a country is undergoing a process of democratic erosion. In an attempt to take over the court, the government is making constitutional changes in the judicial system while undermining the principles of separation of powers and judicial independence. Each change in itself does not constitute a prohibited constitutional substitution or a revolutionary constitutional change. None of the changes – on its own – fundamentally abandons the fundamental principles of the constitutional order and replaces them with new ones. We know how to deal with drastic changes that abandon the fundamental principles of the constitutional order thanks to the doctrine of “unconstitutional constitutional amendment” which prohibits constitutional changes that harm the core characteristics of the constitutional order and in fact replace its identity with a new one.[7]  However, when these gradual changes are examined cumulatively, they too may lead to a constitutional replacement or to a revolutionary constitutional change. Thus, one may ask, why should the court not also take into account additional and previous constitutional changes in addition to the one under review. It is possible that the change itself is not dramatic, but – like the grain of sand that turns grains into a pile – it makes a qualitative contribution to changing the constitutional principle or structure affected by the change.

It is this danger that the dissenting judges saw in the German Klass case, disagreeing with the majority that the unamendable provision prohibits only a ‘fundamental abandonment’ of the protected values. “Art. 79, par. 3 means more”, they held. “The constituent elements” protected by the unamendable provision “are also…to be protected against a gradual process of disintegration.”[8]

A cumulative examination has the ability to deal with (even if not completely solve) the challenge posed by the incremental use of subtle and gradual constitutional amendments that violate basic constitutional principles. One method of implementation in such scenarios is to examine the quantitative changes to the basic constitutional principles in order to examine the qualitative impact on them.[9] In other words, although the constitutional amendment under consideration is in itself slightly offensive, when taken along with other prior amendments, it can be seen as “the straw that broke the back of the constitution.”

It seems to me that an examination in this spirit can explain various constitutional rulings. For example, I believe this logic was exactly what underpinned the decision of the Israeli High Court of Justice to issue a notice of invalidation in the biennial budget judgment. When the court was confronted with the fifth time by which the state has passed a biennial budget by way of amending the Basic Law through a temporary provision, it determined that this is an abuse of the basic laws, in a way that has already violated the quality of the annual budget principle. As Justice Hanan Meltzer noted in his ruling: “Quantity has become quality.”[10]

Or, consider the following example from Colombia.[11] The Colombian constitution provides, as a general constitutional principle, a term limit to the office of the President of a single four-year term. In 2002, Álvaro Uribe was elected president, proving to be a successful and popular leader. Uribe sought to pass an amendment to the constitution that would allow him to run for a second term. In 2005, the Constitutional Court examined the constitutionality of the amendment and ruled that it was constitutional.[12] After another successful term, Uribe sought another constitutional amendment that would allow him to serve a third term. This time, in 2010, the Constitutional Court ruled that the constitutional amendment is unconstitutional and already constitutes a fatal violation of the basic constitutional principle that restricts term.[13] The quantity made the constitutional amendment a prohibited constitutional substitution. There is a cumulative effect – an aggregation of constitutional violation, if you will.

As I have tried to demonstrate in this note, in many areas a gradual accumulation of quantity at some point leads to a change in quality. Another such area may be constitutional changes. There is no doubt that it is difficult to know when a constitutional change becomes a constitutional replacement just as it is difficult to draw a clear line between low and high. And there is a lot more research to do in this area. In this brief note, I have only sought to lay the philosophical foundation for the transformation from quantity into quality. It seems to me that courts must maintain an open and credible channel for analyzing constitutional changes cumulatively. For only through a factual examination that effectively and broadly measures change can one determine whether a revolutionary change is taking place.

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Suggested citation: Yaniv Roznai, The Straw that Broke the Back of the Constitution? When Quantity Transforms to Quality, Int’l J. Const. L. Blog, Feb. 27, 2021, at: http://www.iconnectblog.com/2021/02/the-straw-that-broke-the-back-of-the-constitution-when-quantity-transforms-to-quality/

*  This note is based upon: Yaniv Roznai, ‘The Straw that Broke the Constitution’s Back? Qualitative Quantity in Judicial Review of Constitutional Amendments’, in Constitutionalism: Old Dilemmas, New Insights (Alejandro Linares-Cantillo, Camilo Valdivies-Leon and Santiago Garcia-Jaramillo eds., Oxford University Press, forthcoming 2021)

[1]  For more on this doctrine in the constitutional review of primary legislation see Zemer Blonheim and Nadiv Mordechai, ‘Towards the Cumulative Effect Doctrine: Aggregation in Constitutional Judicial Review’ (2014) 44 Mishpatim 569 (Hebrew).

[2] Yaniv Roznai & Tamar Hostovsky Brandes, ‘Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine’ (2020) 14 (1) Law & Ethics of Human Rights 19-48.

[3] Tom Ginsburg & Aziz Z. Huq, How to Save a Constitutional Democracy (University of Chicago Press 2018) 90-91.

[4] Ibid., at 45.

^[5] Wojciech Sadurski, Poland’s Constitutional Breakdown (Oxford University Press, 2019) 58. Kim Lane Scheppele calls this a ‘Frankenstate’: “When perfectly legal and reasonable constitutional components are stitched together to create a monster like this, I call it a Frankenstate … The Frankenstate … is composed from various perfectly reasonable pieces, and its monstrous quality comes from the horrible way that those pieces interact when stitched together.” Kim Lane Scheppele, ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work’ (2013) 26(4) Governance 559–62

[6] Gary J. Jacobsohn & Yaniv Roznai, Constitutional Revolution (Yale University Press 2020).

[7]  See, generally, Yaniv Roznai, Unconstitutional Constitutional Amendments – The Limits of Amendment Powers (Oxford University Press 2017). This is what Richard Albert might term a ‘dismemberment’ rather than ‘amendment’. See Richard Albert, Constitutional Amendments – Making, Breaking, and Changing Constitutions (Oxford University Press, 2019) 78.  

[8]  30 BVerfGE 1, 24 (1970). See English translation in Walter F. Murphy & Joseph Tanenhaus (eds.), Comparative Constitutional Law – Cases and Commentaries (Palgrave Macmillan 1977) 662-664

[9] Compare with Rosalind Dixon and David Landau, ‘Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendmens’ (2015) 13(3) International Journal of Constitutional Law 606 (discussing how courts might use transnational experience carefully to evaluate those kinds of interactions, rather than just looking at norms piece by piece. Their approach would allow the court to strike down “only constitutional changes that it is confident will have a substantial adverse impact, either alone or in conjunction with other changes, on the democratic order”, at 627.  

[10]  Paragraph 7 of his judgment in HCJ 8260/16 Academic Center for Law and Business v. Knesset of Israel (September 6, 2017). On this ruling, see Yaniv Roznai, ‘Constitutional Paternalism: The Israeli Supreme Court as Guardian of the Knesset’ (2018-2019) 51(4) Verfassung und Recht in Übersee 415-436.

[11] See M. J. Cepeda & D. Landau, Colombian Constitutional Law: Leading Cases (Oxford University Press, 2017) 342–60.

[12] Colombian Constitutional Court, Decision C-1040 of 2005.

[13] See Colombian Constitutional Court, Decision C-141 of 2010.