Open Political Science, 2021; 4: 45–63

Research Article

Andraž Teršek*

Political alternatives for constitutional democracy:

between utopia, pandemic and dystopia
https://doi.org/10.1515/openps-2021-0006
received September 11, 2020; accepted October 22, 2020.

Abstract: Perhaps there are never too many different theories about the organization of society, ideas about the
normative framework of life in a political community and suggestions on how to institutionalize the political system.
Perhaps they go out in public too early. This could also apply to those reflections on society and to those political
philosophies that bear the label of utopia. There is no doubt about the importance of such human investigations of
what is and what should be. And there is no doubt about the usefulness of constantly imagining what it should be.
However, analytical and explanatory caution is required when the word utopia is used to suggest the utopian nature of
an idea. In other words, what looks like a utopia can already be presented to us as a provable and tangible fact, only
that too many people do not perceive it for too long, and therefore it remains unfulfilled in social practice. Is this really
a utopia? On the other hand, what may seem completely understandable, feasible or even self-evident can appear
extremely utopian when it comes to the normative approaches to social regulation and the conditions for achieving
a “better society.” The deviation of political practice and legal practice from what should be understandable or even
self-evident according to the text of the constitution and international law, the findings of jurisprudence, philosophical
insights and common sense in political decision-making and in the drafting and implementation of the applicable law
is so great that, paradoxically, precisely that which is understandable, feasible or even self-evident appears utopian.
And how can utopianism be combined with the realization that so many major and persistent social problems can
be solved so easily and quickly - even if only by rethinking the legal system and social realm? How can a human
being efficiently oppose neoliberal politics and unbridled capitalist practice, the poor functioning of the rule of law,
the low quality of the welfare state, the excessive threat to fundamental human rights and freedoms, the inadequate
protection of social rights, the insufficient commitment to the value of solidarity and the inadequate role and weakness
of morality in social practice? Can the answers to fundamental social questions and solutions to the greatest problems
only be found in a real and literal utopia? I do not believe so. I believe that communitarianism can be a good political
alternative. Understood as social liberalism and as a social democracy based on the rule of law, morally founded on
social solidarity as a fundamental value. I am convinced that the constitutions of the EU Member States and the EU
legal order enable it. A strong and interventionist state is needed to realize the constitutional possibilities of a high-
quality welfare state, effectively protected social rights, the realized social function of property and a society based on
solidarity. Ideas are needed. Even if they seem so crazy, even if they seem utopian. In these times when the devil has
taken the joke away, when people are again protesting massively in the streets, when they protest (unsuccessfully, of
course), when it is difficult to know exactly what is happening and why, when more and more people are increasingly
confused and frightened, when systemic violence increasingly turns into physical violence, when it is difficult to remain
calm and thoughtful, when it is difficult to tame anger and rage..., it is necessary to step out of the existing coordinate
system, out of the cube, to form and communicate ideas that seem crazy, utopian... Now, right now, ideas are needed,
crazy ideas. We need a utopia. And faith and hope in it. Faith and hope, which will be the driving force of active action,
of striving for realization – of a utopia.

Keywords: Constitutional democracy; 2020 pandemic; utopia; political alternatives; solidarity; morality; welfare
state; fundamental human rights and freedoms.

*Corresponding author: Andraž Teršek, Faculty of Education & Faculty of Humanities, University of Primorska and European Faculty of Law,
New University, Ljubljana, Slovenia, E-mail: 1x2x1x@protonmail.com

Open Access. © 2020 Andraž Teršek, published by De Gruyter. This work is licensed under the Creative Commons Attribution
4.0 International License.
46  Andraž Teršek

1 Introduction1
In this article I will try to do three things. First, I will sketch the basic characteristics of social events and the functioning
of the political process, which I can describe as a “consequence” or “backlog”, perhaps even as “debris” of what began
during the official 2020 Coronavirus pandemic and continued into time after its official end.
In the central part, I will reflect from the perspective of political science and political philosophy on political
alternatives for the future of constitutional democracy - in Slovenia and in Europe. I will start from theoretical and
philosophical reflections on society, which political philosophy calls “utopian theories of society” or “social utopias.”
In doing so, I will draw directly on the famous work of Thomas More Utopia from 1515, which I consider to be an attempt
(not literally, but philosophically) to introduce elements of constitutional law theory and practice, especially with or
about the constitutional principle of the “welfare state.”
In the concluding part, I will try to formulate some short conclusions and theses for the future on the basis of the
central part of the article - politics, the functioning of the political process, political alternatives for the future and the
existence of constitutional democracy as such. In this part I will include the main features of current social events in
Slovenia, which on the one hand show the great desire and need of a growing number of people to finally “change
something”, “move for the better”, and on the other hand the existence of the status quo in dead end, in the repetition
of already seen and experienced approaches of daily politics, which, as so many times before, “scream” so to speak,
that positive social changes are urgently needed “for the better,” but at the same time nothing really happens, does not
move or change - for the better. At most the opposite.

2 What Is Left Of The Experience With An Official 2020 Pandemic?

Spinoza wrote: “We do not feel or perceive anything other than bodies and mindsets” (Spinoza, 1988: 137). And Terzani
added (not literally): “We do not feel or perceive anything else: Would otherwise a life sent with flowers be a blessing or a
condemnation? Perhaps a condemnation, because if you survive it without ever asking yourself what you are living for, you
miss a great opportunity. And only pain makes you wonder “(Terzani, 2008: 676).
I ask myself and other people, what kind of world will we enter after an official “pandemic”? Will there ever be an
end of if? I also wonder if we will enter another, perhaps almost “new” world, in one way or another, awake or dreamy?
What will the world look like when this “extraordinary” medical and social and of course political situation slowly, step
by step, passes into the phase of normalization of social life? And what is “normality” anyway? In a social sense? And
is not the world already in a state of “pandemic” before, just unofficially? Is not everything together, the entire modern
history of mankind, a great and endless, eternal pandemic? The answer eludes me.
When I think of “change”, it reminds me of a quote from a big book about what “morality” is, how people perceive
“morality” and why certain beliefs between people are either very different or just seem to be very different: “But if you
try to change an organization or a society without thinking about how your changes will affect its moral capital, then call
them the devil. I am convinced that this is the original blind spot...” (Haidt, 2013: 338).
In these times of crisis, which are indeed ‘state of emergencies,’ even if they have not been formally declared as
such in all EU Member States, I am again working very hard on legislation and paragraphs. The first reason is the fact
that I recently published an article together with a lawyer colleague in which we analyze the measures that were in force
during the official pandemic in Slovenia. We introduce arguments for the illegality and unconstitutionality of the way
in which measures have been taken that restrict certain constitutional and fundamental human rights and freedoms.
We have addressed the same complaint to the “content” of these measures, of which, from a constitutional point of
view, the “most conspicuous” measure is the strict prohibition of free movement of all Slovenian residents between
municipalities, i.e. the prohibition to leave the municipality of residence without special permission from the state. This

1  The idea for this article came from re-reading a chapter entitled “God is in the house alias A Political Alternative between utopia and
dystopia,” which the author published in a book Pagon (ed.), 2015. It is a book with essays, reviews and sketches based on the famous book
by Thomas More Utopia, from 1515. The first part contains discussions about utopias in history and utopias as such, the second part focuses
on recent social events, from anarchism to 1968 and neo-liberalism, and the third part presents individual “utopian” approaches or practices
as manifested in literature, painting, music, (constitutional) law, etc.
 Political alternatives for constitutional democracy: between utopia, pandemic and dystopia  47

measure was valid throughout Slovenia, although the legislation does not explicitly provide for it, but only mentions
the possibility of enforcing such a measure “in those areas of the country that are strictly considered medically risky”
for the spread of an epidemic (or pandemic, this is my supplement). The measure was adopted by the Government,
although the law provided that it could be adopted by the Minister for Public Health. At the same time we mark this
measure of being unreasonable: it is obvious and logical that the ban on a person not being allowed to take a walk in a
forest in another municipality in order to walk alone, far from other people, but it is possible to walk on public land in
one’s own municipality where all other inhabitants of the same municipality are walking at the same time, is neither
necessary, nor “proportionate.” nor “reasonable,” nor does it imply “the least interference with rights and freedoms”
in order to achieve the otherwise legitimate objective of the State, which is to prevent, slow down or contain the spread
of infectious diseases The opposite is true: the more people who live in the same place, the greater the likelihood of
infectious diseases being transmitted.
These are important constitutional issues. That is why I would like to emphasize that the Constitutional Court of the
Republic Slovenia obviously doesn’t want to decide on this issue (from April, now it is already September 2020), despite
the fact that it has received dozens of initiatives to verify the constitutionality of these measures during the pandemic.
And I do not believe that it will even take a final decision on this.2
The second reason is the fact that even after the official end of the pandemic the government is taking new measures
to restrict certain rights and freedoms of the Slovenian people, based on vague arguments, controversial decrees
(government decrees), while the current government is also taking some controversial, sometimes contradictory and
simply “very strange” legal decisions. Most problematic are those that directly interfere with the rights and freedoms of
citizens. From financial issues, the labor market and employment, social rights and economic measures to legal policy
on rules of conduct and behavior in public, indoors (the so-called “problem of wearing masks”), kindergartens and
schools, colleges and universities, etc.
However, I only mention these legal problems that people in Slovenia face, and I will not analyze them in detail in
this article, although they are very important issues. But this article has a different purpose.3
But I want to be clear about what I consider essential. Everything that happened during the pandemic and after the
official announcement of its end clearly shows that it will be necessary to create and guarantee special, exceptional and
increased control over the State, over governments, over daily (party) politics, over decision-makers. Extraordinary,
determined and courageous surveillance-attention will be required for the functioning of daily politics. In particular,
with regard to the maintenance and development of a democracy based on the rule of law, justified by the rule of law
and the established concept of fundamental rights and freedoms. Particular attention will be needed to ensure that the
so-called “total state” is not created. I am thinking of a state (written about it convincingly and clearly by Carl Schmitt)
which, due to its interest in stability, order and preservation, is beginning to appear more and more as a “total state”
in practice, which functions almost exclusively according to the principle of the “power argument.” In doing so, it
refers to the urgent necessity of “self-preservation,” and at the same time claiming “it defends and takes care for its
people.” Such a state sets itself the overriding goal of literally “destroying,” eliminating, incapacitating its - actual and/
or supposed - internal enemies. To this end, the state can therefore place itself above the individual and above the law.
And the main problem is that the state does not become “illegal” because there is always “some” law as a prerequisite
for the existence of law, which is passed by the state according to a legally pre-planned procedure, even if this law is
“materially” rather just as problematic.
If the state puts itself above the law out of an alleged need for self-preservation and inner peace, we have a serious
problem. And the very existence or appearance of this state need constitutes a “state of emergency.” Therefore, according
to Schmitt, the dictatorship of the state is a reflection of the internal problems and contradictions of democracy itself. A
dictatorship of this kind is then not the opposite of democracy, even if the government has a strong, authoritative leader
or a government, the ruling policy, capable of maintaining the unity of the state and order. The reason for this is that (or
if) the state claims it temporarily suspends the “false democracy” with the aim of establishing a “true democracy,” i.e.
with the aim of restoring constitutional order.4 Yet such a state, such a policy and such a government can in principle

2  See Teršek & Dragan, 2020.

3  For two brief outlines of the basic characteristics of social events during a pandemic, published in English, see Teršek 2020 and Teršek et
al., 2020.
4  See Teršek, 2014: 153, quoting C. Schmitt, 1994.
48  Andraž Teršek

and theoretically be in good faith and have good intentions - with the people, with its people. But historical experience
shows that this is usually not the case. Or rather, it never is.
During the pandemic, a special, far-reaching and gradual fear has taken hold among the people. Not only the fear of
infection as such, but also the fear of other people, potential carriers of the new virus and - the fear of the state. This fear,
even if it is often exaggerated, manifests itself in various forms. It has different forms of expression, patterns of behavior
and generates different ways of thinking. It intensifies and increases the extent of mental suffering, psychosomatic
illnesses, violent behavior (especially linguistic, but also physical: in the family, against children, against women...),
exacerbates the problem of suicide, etc. It increases people’s distrust of other people, hostile attitudes between people,
strengthens thinking like “us and them,” “ours and yours,” “mine and yours,” etc. In particular, it strengthens the fear
of “foreigners” and the negative attitude towards them.5
Of course, it also affects daily political beliefs and relationships. All this will have to be faced as a great problem.
That means we are already confronted with all this. It is to be hoped that we will deal with it appropriately and effectively.
And remain to be at least pessimistic optimists: that we want as many positive consequences of the pandemic state
as possible, that we will make an effort to do so, and at the same time remain prepared to face all the bad, harmful
consequences of this state of emergency. And with the repeated emphasis that we will monitor and evaluate every
step and movement of decision-makers, governments, politicians even more critically and consistently. “People are
resisting not by power or obedience per se, but by the power they consider illegitimate and by obedience to power they
consider usurpatory and oppressive... People today despise authority, but they are afraid of it, and fear takes them away
more, because in the past they showed respect and love for it” (Tocqueville, 1996: 14). And this is what worries me most -
because this is really happening in Slovenia at the moment. And in Europe, according to information in the media and
my personal communication with colleagues abroad.6
All forces will have to be directed to the public healthcare system. And in each person, the individual, in his
personality, in the patients… And to treat them equally and COMPREHENSIVELY. This will have to be a priority: science,
medicine, welfare politics, the media, universities - and the public. Doctors and other medical staff will have to be
rewarded by the state for their hard work, sacrifice, efforts… Also by improving all aspects of their working conditions
and education in the long run. I think the same for all those people who take on the most responsibilities and burdens
during a pandemic. But so far, at least the Slovenian government has not done so (September 2020). At the same time,
increasing awareness, responsibility and care for the quality and effectiveness of palliative care, care for the elderly,
children and families, especially for children with special needs, for the disabled, for terminally ill people…7 And for
people living on the edge or below the edge of poverty.
“I speak to Mother Nature regularly. I know her kindness and beauty, but from a professional point of view, I understand
her anger... Understanding the human host is truly essential. If we want to make progress in improving our health, we can
no longer rely on the idea that our problems can be traced back to a single microbe or even a single gene mutation. Chronic
diseases of modern times, especially those that ultimately paralyze or incapacitate the nervous system and the brain, are
diseases of the entire body system “(Perlmutter, 2017: 303-304). And we will have to be aware of what it really means to
be “free,” to live in freedom and to worship it. How important it is to be able to breathe fresh air, drink unspoiled tap
water and walk through untouched nature, enjoy a healthy environment, and of course, what it means to have, respect
and exercise “rights and freedoms.” That people have to be aware of their moral obligations and ethical duties. That
they then fulfill these obligations and duties with their attitude towards rights and freedoms: one’s own and those of
other people. Finally, the law “grants rights to individuals so that they can best fulfill their moral duties... My right is
actually the right to fulfill my moral duty. On the contrary, it is my duty to protect my right. With his right, man fights for his
moral duty, for his personality “(Radbruch, 2001: 78-79).
Attitudes towards science and education will have to change. The rhetoric of “development”, which refers primarily
to technological development, will have to be substantially supplemented and enhanced by the rhetoric of “progress.”
For they are not synonyms. And the term “progress” must not be left to rhetoric alone.8 The welfare state, which is a
constitutional category and the flame of constitutional democracy, is being put to the test. To a great test. When you

5  See, in more detail, Teršek, 2020a and 2020b (in English).

6  See n.n., 2020 (in English).
7  I wrote specifically about the short-term political priorities of the EU Member States and the EU as such in Teršek, 2020c.
8  Comp. Srnicek & Williams, 2016; Mason, 2016.
 Political alternatives for constitutional democracy: between utopia, pandemic and dystopia  49

experience the state of emergency, people’s expectations may be lowered. But the state’s efforts to rebuild a reorganized
welfare state system must not slacken. Because the real alternative is to create a European welfare state worthy of the
name. The best way is always to strengthen and extend social and economic rights. Because unsustainable differences
between the social status of individual groups are a violation of the principle of the welfare state (Loic, 2003).9
The normative commitment to the indivisible conception of human rights, which includes fundamental social,
economic, cultural and environmental rights, in addition to civil and political rights, also granted by the Slovenian
Constitution, must remain unshakable. The one cannot be exercised effectively without the other, because all human
rights are closely intertwined, interwoven and conditioned, they are expressions of the declared value system of
modern European society, which places the human being at the center as an individual and as a member of society. The
basic starting points are “freedom and security” - as the basic starting points of human dignity. These are the rights of
“positive status,” which require appropriate government action to create real equality of opportunity for all, including
those who, because of their weaker position in relation to others, are not in a position to guarantee it themselves.
Everyone must be offered not only formal but also real and genuine opportunities for the effective exercise of all human
rights. Reference should be made not only to the provisions of the Slovenian Constitution, but also to a wide range
of rights under international legal instruments, to ECHR, to European Social Charter and to the Conventions of the
International Labor Organization, also to the EU Charter of Fundamental Rights (Teršek, 2017).
The geopolitical picture of the world is likely to change. But if, after this crisis, people continue to be no more
important than profit (Chomsky, 2005), then the current crisis will teach us nothing. The events after the situation has
calmed down will be manifold, if the situation calms down at all soon. In any case, there will be many alternatives.
But only apparent alternatives. So what I write about is mainly theoretical. Because real, genuine “politics” has not
existed for a long time. There is only “post-politics” (Crouch, 2013) and “anti-politics” (Kuzmanić, 1995 & 2015, Konrad
1988). Since there is no “community” anymore, only “society,” and very close to no more ethics (it is only post-ethics,
Bauman, 2016). There are not even statesmen, there are simply “political managers.” (Teršek & Kuzmanić, 2015). That is
why democracy has long ceased to exist.
What we have, what we see and experience is a supranational, global oligarchy. But socialism has remained. But
not at the country level, but - and again - at the global level. The policy of financial rescue of crisis-ridden financial
giants threatened by collapse, i.e. the policy described by the terms “to big to fail” and “bail-out,” is the culmination of
socialism. With the difference that it no longer has anything to do with people, but only with legal persons, companies,
organizations, multinational corporations and banking institutions.10
But this is always the case with human history: it can only be analyzed and interpreted with hindsight. But the
moment of decision has come, and already today it is necessary to know what will be done tomorrow. Also about
what happened, what was going on and what was shown publicly (in statistics and information, in the media, with
the government PR) was exactly as it was shown, or maybe a little bit different, or even very different during the 2020
pandemic. This will be discussed in retrospect. I suppose, very polemically and for a long time. Or perhaps to a new
crisis, a state of emergency.
It’s true, the matter is so banal and simple that it is surrealistically unmanageable: “One can be in isolation for a
week or two. The isolation will continue, and even if it gets better, the next wave may come. We will have to struggle to
build another normality” (Žižek, 2020). And I go back to the beginning: What kind? And what is “a normality,” what
is “socially normal.”? At the same time, I realize that the “normality” we have had so far was not “normal” according
to common sense. Therefore, one should not want to return - to the former reality.11 We should not go back anywhere.
Can we go back to the beginning? What is the beginning and where is the beginning? Can we “take a step back” to the

9  Decision of the Constitutional Court of the Republic of Slovenia, no. U-I-31/96, dating 26.11.1998, point 17.
10  Comp. Finley, 1999.
11  I have neither the intention nor the necessity to discuss at this point the theories that society ... that describe our perception of reality as
living “in a matrix.” Even if that were nothing special in itself, nothing particularly eccentric and nothing “crazy” at all. Any idea is better than
a state without ideas. And many clever people have already said or written (presumably even A. Einstein) that an idea that does not appear
“crazy” at first glance is not worthy of special attention. At this point I would like to mention - because it deserves it - a special book by a
Slovenian author, philosopher, in which he deals with lucid analyticism, history, point, dimensions… of intelligent perception of reality with
a detailed analysis of the famous film with the same title: The Matrix. See Rutar, 2003.
50  Andraž Teršek

future? Is it a paradox? Maybe even an oxymoron? I’d rather not get into that. Especially not because of the complication
itself. But I wish we could go back - two steps forward. And I mean that very seriously.12

3 Political Morality As Utopia And Social Reality As Post-Ethics?

Does it still make sense to insist? Does it make sense at all, anything? Persevere? Yes! But to what?
Morality (without its “rationalization,” without its “rational explanation”),13 ethics, fundamental human rights
and freedoms, the welfare state, human dignity, security, reason and freedom, humanity: this must be insisted upon
to the end.
I bring these concepts to the fore when I reflect on the content of Mores’ book Utopia (2014): it is still very useful for
debates on contemporary society, on political practices and on the function of law - in Europe and the World as such.
Eventually more useful than it has ever been.
And freedom? It seems to me to be a social norm, a political goal and commitment, a legal good ... so undeniable
and slippery. Although it is so controversial and elusive, but at the same time so much endangered and limited, all the
more so that I do not want it to float endlessly and aimlessly in the debate.14
I also understand Utopia as a longer essay about social morality and political legitimacy. That is, as a moral starting
point for a political philosophy about a morally good, reasonable and institutionally effective organization of common
life in a politically organized society.15
I have always understood the concept of political morality in direct connection with the concept of legitimacy,
in the sense of a normative, executive and substantive justification of what directly determines the scope and quality
of individual freedom of action and autonomy in self-determination and self-realization. Be it Machiavelli, Rawls,
Habermas and his debatable (discursive) theory of democracy.16 Despite the awareness of the extremely paradoxical,
elusive and controversial relationship between politics as social reality and morality as a categorical imperative of the
Kantian type, which is placed in the function of justifying and realizing humanity, I do not want to abandon the critical
evaluation of political practices with reference to morality and direct normative ethics and legitimacy - as an element
of political and legal concepts of modern constitutional democracy.
I am thinking of the concept of morality as what it should or could be in the political process. But as a concept of
ethics I mean what politics actually is and what actually exists in politics. Aware that in the realm of everyday, real,
pragmatic politics they do not fit together when the ultimate goal of political action is electoral success, and above all
the individual or group common (party) existence in government institutions, in the legislative and executive branches.
So we really need to talk about post-ethics and post-politicsand about our illusions of our own identity. About “illusory
identity.”17
The hope that people would affirm, consolidate and develop the categorical belief that ethics and morals take
precedence - over other things and over other issues - is degenerated by their way of thinking and acting.18 Morality and
ethics, however, should be at the center of human self-questioning, searching, self-determination and self-realization.
Morals (also as normative ethics) should take precedence over practical and pragmatic ethics. Ethical self-questioning
means first and foremost a teleological search for an answer to the question of how a particular political community,

12  But above all, I strongly hope the future which awaits us will not be a »total and absolute subordination.« On this topic see interesting
novel Michel Houellebecq: Podreditev (Subordination). Cankarjeva založba, Ljubljana, 2017. Comp. Teršek, 2015.
13  For an excellent analysis of these issues, see Bauman, 2016.
14  »If someone hurries to a higher position, he will not reach it for sure... A king who does not know how to manage the lives of his citizens
in any other way than to take away their life advantages must openly admit that he is not capable of governing free men. He should give up
laziness and tame vanities « (More, 2014: 48 & 104).
15  Although Utopia is written more literarily and less conceptually than some other books on the search for the best possible social order,
I nevertheless place it alongside other great books such as Plato, The Republic; Aristotle, Politics; Aquin, The State. As well as the classics of
legal philosophy: Dworkin, The Empire of Law; Rawls, A Theory of Justice.
16  See Machiavelli, 1990; Rawls, 2000; Habermas, 1998.
17  Comp. Hood, 2013.
18  Above all, a benefit in the purely economic sense and economic efficiency or productivity that “neglects ethical factors and wider societal
goals.” See Mastnak, in Judt, 2011: 181.
 Political alternatives for constitutional democracy: between utopia, pandemic and dystopia  51

especially a nation or state, understands the fundamental questions of humanity and civilization in the function of
the greatest benefit for all people. Moral thinking, however, means above all a deontological search for an answer to
the question of what is good enough and best for everyone, for every member of a society as “political community,”
i.e. universal.19 But even such a definition is wrong if we are aware that we have to evade the rational definition,
rationalization - just like “love”.20 As soon as we try to explain them (morality and love) rationally, it is no longer about
them, but about something else.21
This is nothing new for political philosophy.22 But that certainly does not mean that the question of morality in
politics and political ethics is not something important. And a problem. That is also the reason why I insist that the
connection between morality (not in its pure form, but) as normative ethics and politics should not be broken. Not in
the theoretical definition of politics, not in the critical analysis and evaluation of current political events. I am aware,
however, that this does not only mean standing on the slippery ground of theory-building, but also taking a particular
form of risk in public debates. This is why I began to use the words “morals” and “ethics” in public with greater
unease. And I am slowly giving them up. But to be in such a situation is paradoxical; precisely because they are used as
synonyms in every election campaign,23 and above all so hollowed out and abused, I find on the other hand the need
for their continuous public use even greater.
I think that we as a society are morally at the bottom. The prevailing attitude of politics, administration and justice
towards the law, AND towards people, is purely legalistic and hollowly formalistic (Note: I hope the bottom does
exist - if the bottom exists, people can push themselves upwards from the bottom).24 There is a clear lack of
minimum moral standards in daily politics. It’s about keeping morality out of the public sphere. The concept and
criterion of morality has been replaced by the fact that decision-makers, influencers and other persons in high and
important positions in the system do not take responsibility for mistakes, even fatal and even obvious ones. The public
disclosure and justification of unacceptable and negative actions of influential and privileged persons actually leads
to an even greater number of even more negative actions. The reason for this is simple: when it turns out that even the
most reprehensible acts are almost never actually sanctioned, the first thing you notice is that you no longer need to
apologize for them, let alone be ashamed of them, and you soon realize that you can carry out such acts in public. And
that is exactly what daily politics does.
Tony Judt has recognized that we are faced with the urgent need to focus finally, reliably and convincingly on an
“ethically based public debate” on common social issues and general political issues and to be aware of the collapse
of morality which is a reflection of “public misery”, including our “collective impoverishment”. To be aware of the fact
that “our moral sense is truly corrupted” and that we have become “insensitive to human cost”, that more and more
people are increasingly accepting all kinds of “humiliation” from everyone, just for the sake of merit. Therefore, it is
necessary to give back “pride and self-esteem” to human beings. We live in a “moral vacuum”, so “political philosophy
must darken the classical economy”. We urgently need a return to the “moral dimension” of the human being and a
reawakening of the “test of the ethical cohesion of the community”.25
At the same time, we have to realize that the street protests are no longer sufficient. “The old levers of mass
movements no longer exist. But we need those levers. Without them, the people jumping up and down in the streets will
achieve nothing. But we have lost the combination of physical quantity and political influence... We must rediscover the
language of rebellion. It cannot be an economic language... We need to rediscover our own language of politics.” It is
believed that “we intuitively know the issues of injustice, dishonesty, inequality and immorality - we have only forgotten
how to talk about them” (Judt, 2012: 248-250).26

19  Or by Habermas: U prinicple, principle of universalization.

20  Maybe that is why there is a saying »to fall in love«, which Žižek and other psychoanalytic theorists are using constantly to describe why
there can be no “love” without “pain and suffering.” Just “falling”, without thinking. In Slovene there is no linguistic term comparable with
this saying.
21  Of course, there are, between ethics and morality, also so-called “extra-moral modes of conduct.” See Frankfurt, 2009.
22  In connection with this, I mention two study-useful collection of papers: Jelica Šumič-Riha (ed.), 2001; Avineri, De Shalit, 2004.
23  See Sruk,1986.
24  I have published an extensive and analytical critique of this worrying and for the rule of law devastating fact in the monograph Ignoranit
Iuris Nocet. A Critique of Legal Practice. Univerzitetna založba Annales, Koper, 2015.
25  See Judt, 2011.
26  See Mastnak, 2011: 184.
52  Andraž Teršek

In a similar manner humanity is addressed by More in Utopia. We as a society, today, in 2020, not as early as 1515,
still do not understand or grasp this, even though we need it most urgently and immediately. In this sense, we then
(again) need exactly what is considered and appears to be unattainable - utopia. So we need a “utopia”. And that is
something quite different from “self-deception.” Waking up from self-deception thus means taking a step forward, even
if it seems utopian or is actually utopian.

4 Post-Politics And The Redefinition Of Human Rights And Freedoms27

However, fundamental human rights and freedoms remain the central criterion for the material legitimacy or material
justification of the established political system and the applicable legal order.28 They represent the foundation of
values and the normative starting point of the political organization of society, of the social order - in our civilizing
environment. They reflect the so-called Neo-Kantian values and the humanistic insights of the Enlightenment.29 Their
content is clear enough, their interpretive meaning is sufficiently known. It is based on the provisions of the national
constitutions of the European countries, legal commentaries on them and on the European Convention on Human
Rights (ECHR). However, its content and scope are mainly determined by the practice of the national constitutional
courts and the practice of the European Court of Human Rights in Strasbourg ECtHR).30 It is the fundamental nature
of these rights and freedoms that is essential for the quality of modern constitutional democracy in Europe and for its
development. Even if, on the other hand, they are only so-called minimum standards for the common protection of
fundamental human rights and freedoms.
These minimum standards are now under threat. This is obvious in Europe - after the official end of the pandemic
and when people are “afraid” of the possibility of a second, even bigger pandemic wave. So my thesis is this: if these
minimum standards had to be fought long and hard in the past, then perhaps now they will have to be fought even
harder and longer.
More wrote in Utopia that the inhabitants of Utopia have few laws, but otherwise their social order does not need
many. They accuse other nations of accumulating huge collections of laws and declarations, but they do not have
enough of them because on one hand there are too many to read them, and on the other hand they are not clear enough
for most of them to understand. Utopians do not have lawyers who are skillful in the judiciary, who are skillful in
interpreting laws. The explanation is: the simpler, the more precise. An ordinary person with his simple way of thinking
should not delve into the laws - his whole life would be too little for that, because he has to survive.
Today this utopia is partially fulfilled. But only in the second part - the people have no time to deal with the laws,
because the vast majority of them have to deal with the livelihood. Only the first part does not apply: there are too
many laws, there are always more and there will be more. That is why today we need a utopia with a partial change:
a significant reduction in the number of laws and greater participation by the people in the legislative regulation and
political control of society. We need a utopia. At least so much so that we begin to believe in it slowly, day by day...
We need to get rid of the problem of society’s oversaturation with legal regulations. And we must resist the
passionate need of the authorities to regulate every detail of social life and every part of the public and private spheres,
while at the same time - and for this very reason - more and more details and more and more parts of social life remain
unregulated or vaguely regulated. This paradox is obvious: the more the legislator strives to regulate the whole of social
life, including the sphere of privacy, in as much detail as possible, the more difficult it will succeed and the more it will
expand and strengthen the awareness that what is not precisely defined by law remains legally completely undefined
and open, empty. That is why there is more and more ambiguity, there are more and more different formally binding
and formally non-binding interpretations of the legally correct solution of the same question, there are more disputes,
less predictability, more disorder, less legal certainty, less regulatory power, less legal legitimacy, the greater the need

27  »It is the duty of the ruler to concern himself more with the welfare of the people than with his own pleasure… Anyone can be their own lawyer
there, because there are very few laws, as I have already said, and the explanation is: the simpler, the more precise. Laws, they say, are made for
one purpose only: to remind everyone of their duties.« (More, 2014: 47 & 105)
28  See, in detail, Teršek, 2014.
29  See, in detail, Weiler & Wind, 2003. Comp. Dolar, 2012.
30  Comp. Mowbray, 2001.
 Political alternatives for constitutional democracy: between utopia, pandemic and dystopia  53

for control and coercion and the lower the degree of democracy and thus the extent of the autonomy and freedom of the
individual in society. And the state becomes more total! This is a problem we must solve. We must believe in this utopia.
It is therefore increasingly considered that compliance with the letter of the law is increasingly the greatest threat
to the rule of law.31
Just as we should do our best not to lower the civilizing standards of legal protection of human rights which have
already been achieved and thus not to push them out of social reality and into the realms of political utopias, we
should maintain and increase concern about the traps of excessive recourse to ‘cultural relativism’ when fundamental
social values and human rights are at stake. Even if they are not “imposed” on other social environments at all costs,
the idea of their universal status must be permanently respected.32 Or, as prof. R. Salecl points out, “this concept
cannot be historicized”, “its exclusionary history does not diminish its inclusive character in modern democracy”, so
that fundamental human rights and freedoms should remain “open projects that are not historically defined” and they
should “open up the possibility of calling into question the society from which they originate.” Above all, however, “’these’
universal rights are essentially empty, which is why we cannot fight for their content. However, this fight must be aimed
at the spread of universal rights and must not be limited to certain cultures. This enlargement is the only way in which
universal rights can acquire a new, hopefully democratic, meaning.”33
Otherwise, it seems unlikely that we would be able to create social circumstances that would not only balance
public rhetoric about “my rights” with rhetoric about “my and our duties.” Not to mention that we would be able to
balance the meaning of rights and duties in a systematic and implementation-oriented way or even shift the emphasis
in social practice from rights to duties. After all, law, as is also taught in the philosophy of law at law faculties, itself
consists of categorical imperatives:

»Law serves morality not by the legal obligations it imposes, but by the rights it grants ... My right is actually the right to fulfil my moral
duty, and conversely, it is my duty to protect my right. With his right, man fights for his duty, for his moral personality« (Radbruch 2001: 78).

There is therefore a direct and intense connection between the human rights and duties of every human being as a
moral person; and where there is insufficient awareness of the importance of the duty and the extent of responsibility,
even rights and freedoms can degenerate into their opposite. More understood this well when he wrote Utopia.34
The future does not bode well for a society that ignores the concept of duty and responsibility. We need a utopia of
a good future.

5 Constitutional Principle Of Social Solidarity As An Alternative Without

The Utopia
“If each one reaches for himself as much as possible, with this or that legal requirement, it becomes necessary that only a handful of people
share everything, regardless of the abundance of goods, while most remain in poverty, and as a rule one is the first to deserve the fate of
others, because the rich are greedy, dishonest and useless, and the poor, on the contrary, are humble, simple and with daily diligence more
useful to the community than to themselves. From here I firmly believe that it will not be possible to achieve an equal and fair distribution of
goods or to manage the affairs of this world happily if private property is not completely abolished. As long as it exists, the majority, the best
part of humanity will be oppressed by the tormenting, inevitable burden of worry and poverty. I admit that this distress could be alleviated a
little, but by no means completely eliminated... They are even more surprised and despised by the madness of people who worship the rich,
even though they owe them nothing, are not dependent on them and they do not respect them, but worship them only because they are rich,

31  Comp. with More’s description of the social function of civil servants in Utopia (2014), pp. 48 and 106; he also points to the problem of
“abuse of rights.” Also in the sense that he refers to “old, stale and outdated laws that have not been in use for an eternity, so that nobody
remembers them and everyone violates them” (p. 45). He also points to the problem of the social function of law using the example of the
function of concluded contracts: on the one hand, they reflect deep mistrust between people, on the other hand they serve as a given
framework to break and reinterpret what has been agreed upon. This problem is symptomatic of the present day.
32  Comp. Salecl, 2011: 153, 157–162, 165–166; Runzo, Martin & Sharma (eds.), 2003.
33  Salecl, 2011: 159, 161, 165–166.
34  Among other things, More pointed out a problem that modern social science describes as “the penalty of poverty.” See More, 2014: 33.
Comp. Loic, 2003.
54  Andraž Teršek

even though it is perfectly clear to them that the miserly scoundrels will never withdraw even a penny from their unknown piles of money... to
relieve the misery and suffering of others as much as possible…« (More, 2014: 52-52, 85, 88)

I have made a thesis regarding the model of Slovenian constitutional democracy in late 2009 and published it in several
places: it is a model of foundational constitutional democracy.35 This model determines the shift of “sovereignty” from
the nation that founded the state and became a nation, through the “authority of the people”, which is neither sovereign
nor sovereign, to basic human rights and freedoms. For me this is an essential definition of the model of constitutional
democracy in Europe, if we think of all the member states of the Council of Europe. This definition is essential in
order to provide correct constitutional answers to some fundamental constitutional questions, such as the normative
power of the Constitution and its provisions on rights and freedoms, the direct enforceability of the Constitution’s
provisions on rights and freedoms and fundamental constitutional principles on the rule of law, democracy, the social
state Political equality and legal equality of all people before public authority and the law.36
From a constitutional point of view, it is essential for the definition of the model of European constitutional
democracy that the establishment of the State is the result of the realization of a durable and inalienable right of the
Nation to political self-determination and self-government. This is the sovereign right of the Nation. Which is a different
concept to “the power of the people,” of the voters. The people are not sovereign, their “will” is not sovereign. Except
on the election day and in a case of plebiscite decision-making on political identity. Decision-making in referendums
does not represent the “decision-making of the Sovereign” but merely the ad hoc legislative decision-making of “the
authority invested in the people” as holders of original authority in the state, which is limited by the Constitution and
international law in the same way and to the same extent as all three branches of government. But, what is essential
here is the fact that Constitution establishes a permanent obligation of the State and its legal system to respect and
protect fundamental constitutional principles (freedom, democracy, welfare state, rule of law) and the human rights
and freedoms. Of all these elements which make the constitutional order as a whole, the fundamental constitutional
principles and fundamental human rights and freedoms are the highest, as a concept and doctrine, they have the
highest value and they are the only ones to which sovereignty can be attributed as a legal and political quality. We must
not abandon this. We must continue to fight for it.
However, this is not enough to properly understand the basic characteristics of the model of constitutional
democracy. It is also necessary to know to what extent the legal protection of these constitutional rights and freedoms
is provided for by the constitution. Indeed, the Constitution does not only protect the so-called negative status of
rights and freedoms, in the sense of “leave us alone, do not interfere with our rights and freedoms.” It is crucial that
fundamental rights and freedoms also have their positive status. Constitutional law describes this moment as a doctrine
of the positive obligations of the state. It is confirmed by the constant jurisprudence and the doctrine of the European
Court of Human Rights. According to this doctrine, the State must do everything it can legally and reasonably do to
ensure that these rights and freedoms can be exercised in practice in a high-quality and efficient manner. For the
legal protection of these rights and freedoms, it is therefore not sufficient that the State does not interfere with or
infringe these rights and freedoms. Each right or freedom requires certain specific conditions in order to be exercised
effectively in practice. Some are provided by the State with high quality legislation, others by control and other policies
to prevent their violation, or by legal remedies and judicial protection when this happens. It is this positive aspect of
the constitutional protection of human rights and freedoms that provides the greatest protection of these rights and,
more generally, of the freedoms and autonomy of the individual. Here lies the core of genuine political social liberalism
within the framework of modern European constitutionalism.
The mere model of such a constitutional democracy seems utopian when viewed from the perspective of political,
legal and social practices. But this is precisely the utopia we need. We must strive for it.
In addition to civil and political rights, social rights are also important. Here, however, there is a political and legal
problem: although it seems clear and understandable in theory, “on paper”, that social and economic rights are equal
to all other rights and freedoms, because there are no objectively justified reasons, let alone urgent reasons it should be
different, the sad difference between the theory and social practice remains. The constitutional principle of the welfare

35  It was based on a book by prof. Bruce Ackerman, 1993. In our personal communication via email prof. Ackerman wrote on my thesis,
explained in short article, regarding the model of constitutional democracy in Slovenia and in the Council of Europe Member States: “I very
much agree with its basic thesis.«
36  See Teršek, 2014, p. 392 and next; Teršek, 2020d (in English).
 Political alternatives for constitutional democracy: between utopia, pandemic and dystopia  55

state and social rights remain granted on paper, in the text of constitutions, conventions and international covenants, in
legal practice and in the decision-making process of administrative bodies and courts, where they are comprehensively
and substantively defined, they are placed in a subordinate position and too often ignored, or at least not sufficiently
protected. In recent years, at the same time as the European political mantra of “economic crisis” and the Brussels’
fantasy of a “general shortage of capital” have appeared, they have even increasingly disappeared from the practice of
administrative bodies and courts as an object of strong, principled, determined and sufficient legal protection.
Especially when the “right to personal property” is concerned. For in a social constitutional democracy, property
has not only a legal and economic function, but also a social function - the function of social corrective, the function
of solidarity. We can already mark such a situation as unconstitutional, although the courts are not listening to this
evaluation (accusation) either.37 Full equality of social and economic rights with other rights and freedoms seems to be
a utopian wish. We need this utopia.
I am determined to conclude that the national constitutions of the Council of Europe and EU Member States and
the EU legal order provide a normative space for communitarianism. This concept does not emphasize the communist
moment of equality, but the social (not socialist) moment of solidarity. This really is first and foremost a moral concept.
It establishes a direct link with the insights of the greats of philosophy and humanism, who have gone down in human
history with reflections and works on humanism, human freedom and autonomy, rights and freedoms and humanity:
the purpose of a politically organized society and the political community of people is solidarity. By claiming this we
can also refer to the treasury of the philosophy of the Enlightenment. “The potential of communitarianism lies in showing
the ways in which we can strive to achieve not only justice but also community through a series of social alliances, among
which the liberal state is the highest social union” (Gutman, 2004: 127).
To this we should add: “The relationship between the welfare state and the market price has always been complex
but almost everywhere the idea prevailed that serious questions of social citizenship had to be separated in some way from
competition and profit. This substitution was fundamental to the idea of democratic citizenship ... The market cannot be an
absolute principle, a categorical imperative, because it is a means to an end, not an end in itself “(Crouch 2013: 75, 80).38
I therefore support the thesis of the need for a strong welfare state, and by this I mean the state as a social entity
and a philosophical and political understanding of the social function of the state as a system, a mechanism, not as a
literal power of a particular party coalition, nor as the current governing coalition, the government. The state is the only
one that can guarantee respect, the functioning and the realization of what is the key emphasis for the foundational
model of constitutional democracy within democratic and constitutional social liberalism: social rights, an effective
welfare state system, the function of social property and the value of solidarity. The state, as I understand it in the
context of modern constitutionalism, must do this. That is its fundamental function.39 Also because, after all, it is “only
a question of political decisions about choices and distribution” (Judt, 2012: 247). It is utopian to expect this, but we need
this utopia.
Perhaps the advocacy of “democratic socialism” is not really a real political alternative, even if it is legitimate and
contains elements or accents worthy of constructive public debate. And perhaps it is not necessary to seek the only
real political alternative to the system under real communism - as a utopia. Or in the revolutionary realization of the
dictatorship of the ploretariat.40 I believe that communitarianism, understood as social (welfare) liberalism and as a
social democracy based on the rule of law and morally based on solidarity as a central value, is a suitable political
alternative.41 I understand it as a pre-utopian alternative, which, precisely because it can signify a political reality here
and now with a different reading and implementation of constitutions, can thus solve the dystopian trap.42
In this sense, perhaps “social democracy represents neither an ideal future nor an ideal past. But among the
possibilities we have today, it is better than anything else “ (Judt, 2011: 178). However, the realization of this possibility
requires a maximum awareness that “the state has been ousted from the regulation of public affairs.” Together with

37  In detail Teršek, 2009.

38  See Žižek, 2012 & 2010.  
39  Comp. Judt, 2011.
40  See Žižek, 2010.
41  Comp. Humphrey Marshall, 2012.
42  See Dilas-Rocherieux, 2004. Comp. Duncombe, 2014: 150-151. On p. 139, however, an important conclusion is central: mere criticism is no
longer sufficient, because it has lost its mobilizing and reforming power and as such has become part of the system that criticizes it and assumes
the function of its (critical) legitimacy. It is therefore necessary to act, to change, to build a political alternative.
56  Andraž Teršek

other policies, it has been reduced to an instrument and support for privatization, to serving private business interests
and covering losses and solving the failures of large private “actors.” So the coalition of the ruling parties (the names
and first names of certain people) is “crucial,” as there is undoubtedly a “practical need for a strong state and an
interventionist government.”43
Mores’ formula according to his Utopia is essentially simple from the point of view of the social function of capital
and economic philosophy: money as a measure of everything + private property + arrogance = hell on earth! Convincing.

6 From The Reality Back And Forth Again Towards Utopianism44

For years and decades, political and related legal practice has been constantly and continuously unconstitutional to
the extent that it prevents the development of the rule of law as the rule of material legal correctness, the exercise of
the power of a rationally convincing and morally grounded argument, genuine human reason and logical thought.
Consequently, and in the absence of the empathy of decision-makers, it also prevents the proper implementation of
the material emphasis on the social solidarity, written in the constitutions of the European states and in numerous
international legal documents, thus it prevents the materialization of a genuine welfare state. It is an unreasonable
feature of social reality.
Above all, however, this social reality is extremely unreasonable, because it would not be necessary to resort to
radical changes in the social foundations, exaggerations, revolutionary interventions in the normative principles of
the political system or even utopias in order to solve the fundamental causes of irrationality. A moderate increase
in the quality of social decision-making practices, the functioning of the rule of law and the social solidarity of the
institutional system is not just a political fantasy, but a quickly attainable goal. To achieve it, it would suffice if, through
more rational behavior on the part of influential and privileged people, we were to recognize what (as has already been
said) the constitutional orders already determine, and if we were to remove the obstacles to the realization of what the
constitutional orders already determine, which are obvious, which have long been publicly spoken about and written
about and which are not difficult to understand, so that they can be quickly and easily remedied.
Among all the negative characteristics of jurisprudence and legal practice, the problem of the devotion of the vast
majority of lawyers and judges to sheer legal formalism is probably the most disturbing, professionally unacceptable
and fatal for the development of the rule of law. Uncritical understanding of written law, reading acts, and statutes,
and sub-statutory legal acts, and decrees letter by letter, letter by word, instead of understanding and realizing their
purpose, spirit, meaning, and goal. Instead, all representatives of all legal professions should be aware of their social
role and responsibility to discover the meaning and purpose of legislation, to recognize material reasonableness and
vital logic in the practical application of law, to exercise justice in this way and thus to achieve legal correctness. Since
this is not the case in practice, the social role of lawyers can rightly be attributed to a greater responsibility for the errors
and problems of the social system and social practices.
That is the way it is, and only with conscious skepticism and ignorance can one argue that it is different. And
because that is so, it is not surprising that the decisions of the ordinary courts are so often not a model example of
correct, professionally sovereign and lucid, intelligent and in bona fide interpretation and direct application of
constitutional principle, provisions, standards, doctrines and possibilities, offered by methods of persuasive legal
argumentation and interpretation. Even less so are findings of legal philosophy, basic principles of constitutional law
and moral foundations of the law. For this reason, the constitutional courts must continue to explain in their decisions
to the judges of the ordinary courts that they must apply the constitution in their work, that they must comment on
constitutional issues and that they must demand constitutional review if they have doubts about the constitutional
admissibility of legal norms.45

43  Comp. Mastnak, In Judt, 2011: 193 in 195.

44  “People are generally ignorant and despise learning. The uneducated and barbarians reject everything except that which is really the cause
of barbarism; he who possesses at least a fraction of knowledge, as a flattering and vulgar person, rejects everything that is not interspersed with
flaky, outdated expressions.” (More, 2014: 15).
45  Of course, what I have in mind is a typical European constitutional court in continental legal tradition. See Mavčič, 2018.
 Political alternatives for constitutional democracy: between utopia, pandemic and dystopia  57

And so, in fact, this court remains the only judicial institution that deals with questions of constitutionality and
the interpretative dimension of constitutional provisions at all. Unfortunately, this institution is becoming the biggest
problem especially in Slovenia. The reason for this is quite simple - it is a daily political reason. The greatest and best
experts in constitutional law, who have proved their worth in the past through academic and public work in this field
in the past, do not come to Constitutional Court. Because they can’t. If they do it is a matter of a statistical mistake,
a coincidence. On the other hand, lawyers who ideologically correspond to the prevailing political option or who are
not problematic for anyone, because almost nothing is expected of them in the sense of knowledgeable, thinking,
determine, principled, argumentatively persuasive and lucid reading, protecting and empowering of the constitution
and constitutionality (constitutionalism), do became constitutional judges. Some can become constitutional judges
because they have good connections and acquaintances. Exceptions only confirm this rule. And it can happen, as
in Slovenia, that the President of the Constitutional Court is a professor of law who has never in his life dealt with
constitutional law, which he more than obviously does not understand, and who has never in his life been able to write
a single article on constitutional law. But because now he is the President of the Constitutional Court, he can act “as an
institution,” not only public official, with an “argument of power” rather than with the power of argument. And it hurts,
it hurts us constitutionalists, when he moralizes and deceives himself and the public when we approach to decisions
of the Constitutional Court with criticism based on rich, verifiable and proven knowledge, with the power of argument.
That is the reality. That is why we need a utopia: that such people cannot even think of being judges of the
constitutional court.
The deviation of political practice and legal practice from what should be understandable or even self-evident
according to the text of the constitution, the findings of the judiciary and common sense in implementing the law in
force is so great that what is understandable, feasible or even self-evident seems paradoxically utopian. How harmful
is that? How disturbing it is to realize that so many major and persistent social problems can be solved so easily and so
quickly simply by a rethink of the legal system? I remain convinced that, in order to enhance the quality of the rule of
law and constitutional democracy, we do not need more law students or legal professions, lawyers and notaries, legal
advisers and legal rules. Even less do we need even more lengthy and literal legislation, even more public servants,
officials, services and functions, or even constitutional amendments. We need to change the way people think about law
and by law, or the prevailing legal thinking as such. The consciousness. The culture. By changing this way of thinking,
it is necessary to change the process of legal education, legislative practice, interpretation of law, legal argumentation
and legal practice as such and as a whole. In this way, it is necessary to start changing social practice as such and as a
whole.
Is this really an unattainable goal? Is it unattainable because it depends directly on the people who are supposed to
achieve it? Are we really prepared to accept the fact that this is an unattainable goal? Is it a utopia? Even if the problem
is understandable and even if it would be reasonable to solve it because it is in itself quickly solvable?
We are dealing with a new paradox here: exactly what is understandable and therefore could reasonably be
expected to be quickly achievable remains unattainable in the long run.46 But there is also another paradox here: for
what remains unattainable, it is the greatest and most enduring undertaking. This is how we keep it feasible. We need
this utopia.

7 Backlogs Of Civil Liberty47

In the introduction to this article I wrote that I will not let the concept of freedom float in space. So I will write something
about civil liberties. I also understand them as directly conditioned by political alternatives and the choice at every

46  As citizens of a free society, we have a duty to look critically at our world. However, if we believe we know what is wrong, we must respond
to this behavior. As the famous observation says, philosophers have so far only interpreted the world in different ways. But it is essential to
change it (see Judt, 2011).
47  “People who are convinced of the opposite do not need to force unusual and alien opinions on them because they cannot influence them; you
should rather go around the corners and try to present your ideas as insightfully as possible so that you can achieve that this or that, if not good,
at least less bad. It is impossible for everything to be good unless all people are good, and we should not expect this to happen for many years.”
(More, 2014: 50).
58  Andraž Teršek

election. This segment of civil liberties poses a considerable problem.48 The fact that it is possible to win an election
without a political program, without ideas, without a content, without answers to questions, without a vision, even
without a political program, and even only through empty and repetitive rhetoric or naked arguments with the
encouragement of one of the two sides, supposedly left or supposedly right, and the space in between is empty, hollow,
is not the only problem of substantive hollowness, lack of a vision of development and conceptual non-articulation in
politics. Nor is the lack of the right political alternatives, i.e. the right political choice, the only problem of substantive
hollowness, the lack of a development vision and conceptual non-articulation in politics. There are even more problems.
These include the research-proven finding that it is very difficult to get voters to vote for a person other than the
one they normally vote for or have already voted for, once voters develop a sense of “belonging” or “attachment” to
a particular political party. Or when they begin to “believe” in a particular politician and a particular political party.
Even more so, if they became the believers in a cult of personality. Regardless of what a particular party or politician or
party-president actually does, even if what it or he or she does is different from what it or he or she formally promotes.
And no matter what the party leader does, how often he or she makes mistakes or lies, or violates law, or violates the
constitution. And no matter how much of what he or she promises, he or she does not keep it because he or she never
intended to keep it at all.
This is also explained in a book The Righteous Mind by J. Haidt.49 Therefore, even substantively convincing, well-
founded, analytically constructed and clearly credible substantive arguments based on verifiable factual evidence will
not persuade determined voters as supporters of a particular party or its president (usually it is all about the party-
leader, the party-president, because the campaigns and elections are so very and irritatingly personalized!) to deny
support to that political party and its leader. On the contrary, the more the object of their affiliation is attacked by critics,
the more justified and the greater the indecency or irregularity in the conduct of the party or its leader, the greater
the voter’s sense of belonging and the less willing the follower is to follow objective truth or other justice. Belonging
demonstrably increases dopamine levels, or simply put, the feeling of comfort. Therefore, on a large scale, voters
cannot be persuaded to vote for someone else by detailed and substantive reasoning. Nor, therefore, with professional
sovereignty or ingenuity, nor with sense and intellectuality. It is all about emotions, beliefs, prejudice, self-deception,
manipulation, concretized beliefs and a habit.50
Then what is to be done? More in Utopia answers this question indirectly. He suggests, similarly to Machiavelli in
The Ruler, that a man with knowledge should still go into politics because the rulers will not listen to his wise advice,
even if he is too wise for the voters. He suggests using his wit and knowledge to convince voters in a way he knows he
can or will succeed. And if he is successful, he should change the social order step by step, not too abruptly and not too
radically, for the better.51
I would like to believe in the existence of hope that with a non-utopian political alternative another social reality
can be created and realized. It is our task to maintain this hope, to try to articulate it, and to try to realize it piece by
piece. I therefore insist that hope exists and that it can be recognized in a paradox; is it not the case that voters cannot
be sufficiently convinced by intellectuality, professionalism, demonstrable moral virtue, knowledge and intelligence,
the reason for trying to constantly question, test and undermine the steadfastness of party loyal, ideologically steadfast
and politically apathetic voters? How about doing this with insightful criticism, legitimate doubts, analytical disclosure,
moral credibility, knowledge and professional sovereignty?52

48  Dahl (1997) explained, among other things, that politicians know what political consequences can and cannot be changed, that voters can
only choose a particular candidate as a punishment for another candidate for a particular and only political decision, and that voters choose
to agree or disagree with an already established policy, but think less about the political future: And he concludes: “Political leaders know this
aspect of the election and often try to avoid making decisions until the election is over, so that they can then act relatively unbound by election
promises. Paradoxically, therefore, some elections may actually prevent rather than enable voters to make political choices”(p. 135).
49  Haidt (2013) among other things, warns that “extreme attachment can literally become addictive.”
50  See Gilbert, 2007; Eddy, 2019.
51  Comp. More, 2014: 51.
52  It should be stressed that the universities, especially in the post-socialist EU Member States, have themselves become a problem of
senseless, rampant and exploitative ultra-neo-capitalism. Instead, they should be aware of this in the first place. It is a growing problem.
Also a growing moral problem. They do not place themselves on the margins of the state, its neoliberal capitalist policies and naked market
logic, but follow it. They adapt to it. They do not educate critical citizens. They do not strive to maintain the social significance of knowledge
as a value and to develop high-quality knowledge as a virtue and educational purpose. They produce graduates, award diplomas and justify
themselves with the same neoliberal or naked market logic. This is a very particular problem, because the moral attitude of an active and
 Political alternatives for constitutional democracy: between utopia, pandemic and dystopia  59

The words of the philosopher prof. Dolar should not be ignored or overheard that “the level of a theoretical
production that is emerging today in Slovenia and around the world, a production of which I am a part is something I can
believe in. I believe it has its substance, and it always emerges and reaches its own in the long run. We must trust in the
power of ideas “(Dolar, 2012).

8 Conclusion
What we are experiencing today in Slovenia and in Europe, locally-nationally and globally, is at best “post-politics”. Or,
in Crauch’s words, “post-democracy.” My friend, prof. Kuzmanić, published the book Creating Antipolitics - already in
1996: it is “anti-politics.”
And it becomes more and more true, more and more obvious, that what the philosopher and theoretical
psychoanalyst Žižek wrote is true when he quotes R. Bernasconi (I paraphrase in part): The rules must be broken, which
is done by following the rules excessively (Žižek: 2007: 66). That is, (according to H. B. Urban), “the violation of public
rules is not an act of the private self, but a product of the same public rules duplicated in itself. This is precisely what
distinguishes such violations from an attitude of tolerant wisdom that permits private transgressions, transgressions that
are beyond the reach of the public gaze (an example of this is the Catholic attitude of ignoring - even implying - occasional
episodes of infidelity, even if it only helps to preserve the marriage). When do we really become adults? When we know
when we have to break the explicit rules to which we are exposed” (Žižek, 2012: 25). For only “divine power measures
precisely / such / brutal interventions in justice beyond the law” (Žižek, 2007: 147).
In Slovenia there have been many “protests in the streets” in recent months. And, of course, as expected, nothing
has been achieved. Or changed. It has only become worse. And we are still on this path – to the point of no return. I hope
not, but as far as it seems from the current social reality, it could be that we have already crossed the border of no return.
Which is, I want to emphasize this once again, not necessarily a bad thing – but only if we think of this problem as
“there is nothing to go back for” and “we don’t want to go back,” what we really want is to go straight forward without
having to go back first. So we need utopia. Crazy ideas. We need to exit the existing coordinate system. We need to think
outside the box, outside the cube.
In addition to the social topicality, a few more remarks of Žižek should be added to this: “The value of protests is
measured by what is left the day after, after the change in our normal everyday life” (Žižek, 2012: 213). And if we also
address the issue of “freedom”, which is addressed both with “systemic violence” and “violence by officials in the service
of the system” and with “protests and resistance to violence,” there is also a remark: “Formal freedom is freedom of
choice within the coordinates of existing power relations, and real freedom is created by changing the coordinates of the
choice itself” (Žižek, 2012: 291).
Addition to this is the rhetorical question: “Is not it the sad fact that resistance to the system cannot be articulated
in the form of a realistic alternative, or at least as a meaningful utopian project, but only as a meaningless outburst, the
sharpest reproach of our predicate? Where is the vaunted freedom of choice, if one can only choose between playing by the
rules and (self)destructive violence, which is almost exclusively directed against one’s own people? Hidden in outbreaks.
What is most difficult to accept is precisely its extreme insignificance” (Žižek, 2007: 72). “The ultimate difference between
radical-emancipatory politics and such outbreaks of impotent violence is that authentic radical politics is active, imposing
itself, imposing its vision, while outbreaks of impotent violence are fundamentally reactive, a response to a disturbing
intruder” (p. 146).
Of course, in the current social, systemic circumstances, the motto “reading the Constitution, international legal
documents on human rights and the European Convention on Human Rights, political and legal respect and implementation
of these documents in everyday social practice should mean the language of the heart and loving indulgence among people,
the lovingly forgiving path of every human being to the Other, the connection of man with man. In the function (and with
the goal) of protecting the freedom, dignity and humanity; and this should be the framework of a genuine “democratic

critical citizen thus has no institutional systemic support. It also captivates young people as passive and politically apathetic consumers, with
no educational ambitions, no motivation to study, no real aims in life, no community vision, no generational aspirations and no critical civic
passion. At last no future. Comp. Galimberti, 2010.
60  Andraž Teršek

community,” which is something quite different from a “naked society,” a multitude and a variety of people, individuals,
legal entities”53 is really not much more than a pleasant sound of beautiful words. Which is not to say that I am ready to
give it up. This is a very different matter. Because I am not (yet) ready to give up the attitude and role of a publicly active
“political animal,” a thinking and acting citizen. A “public watch-dog.”
I want to change the social sphere. I need this utopia, this madness, just to survive. And not to go mad. I need crazy
ideas so I do not go crazy.
“In my philosophical life I did not have the desire to merely know the world, but the desire for knowledge was always
accompanied by the desire to change the world” (Berdjaev, 1998: 5). Or, if we take a short dialog from the cult series
FARGO (Season 1, Episode 5):
Neighbor: Only a fool believes he can solve the world’s problems.
Officer Dimly: “Yes, but you have to try, right?
Or if we take the words of Nick Cave:54 What I already understand no longer interests me. And it is better to have any
idea, even the craziest one, than to have no idea (I add: no ideas “anymore”).
Or, if we take a short dialog from the cult film The Matrix:
Morpheus: Your strength and speed still derive from the rules on which the world is built. Therefore, they will never be
as strong or as fast as you are.
Neo: What are you trying to tell me - that I can avoid bullets?
Morpheus: No, Neo, I want to tell you that you do not have to do it anymore when you are ready.
The first sentence of Rutar’s commentary nails it: “This is not a description of a random act. When Neo is ready, he
will feel, he will know that he is ready, he will be ready... He is looking for an answer, and Neo will accept him when he is
ready, when he wants to. Neo must prepare himself, but preparations cannot become the object of scientific knowledge. In
a radical sense, Neo cannot know what he has to do to be ready, he only has to want, but his desire must be pure, direct,
Neo must be his subject, he must surrender to him, he must trust the unconscious. Free yourself from the crust of all fears,
prejudices, clichés and other things that burden his mind; this way he will open himself to the truth as an event” (Rutar,
2003: 110).
And then, the new issues arise. Such as intrusion into the right to privacy and protection of personal data (with
proposals and already enacted new laws on surveillance via mobile phones, Classification of persons into different
groups according to the degree of their “risk” due to previous illnesses, a positive CIVID-19 test or age), into the right to a
free movement and social association (with the same reason), into personal integrity (with introducing new vaccines as
compulsory, without any control, restraints and limits on legal policies of the governments), enacting law prohibiting
children to enroll into kindergartens and schools if they were not vaccinated, doing the same to the youth regarding
high schools and faculties… And so discriminating, stigmatizing and socially isolating people…55 With the political
knock-down of the people and humanity: all people must wear the so-called “protective masks” at all times and in
all places. Even first graders, on the first day of their first entry into the first grade of primary school. It’s hard to stay
reasonable. Peacefully. And thoughtful. It’s hard not to go crazy. It’s hard not to became furious. And take it on the
street.
Instead of “God save the Queen,” let the reason, struggle, with pain and suffering in trying to do something, even to
provide a crazy idea, a utopic idea, save us all.

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 Political alternatives for constitutional democracy: between utopia, pandemic and dystopia  63

About The Author:

Assoc. prof. dr. Andraž Teršek, holds a Doctorate from Constitutional Law at the Faculty of Law, University of Ljubljana
(2008). He began his academic career from 1999 to 2008 as an assistant to the Chair of Theory and Sociology of Law at
the Faculty of Law, University of Ljubljana. He is a former deputy editor of the Slovenian scientific journal Dignitas - The
Slovenian Journal for Human Rights, editor of several collections of academic papers and author of several monographs
(over 10), numerous scientific and professional articles, essays and research papers. He is the initiator, co-founder
and the first editor of the journal REVUS- International Journal for Constitutional Theory and Legal Philosophy. As a
constitutional scholar, legal philosopher and theorist, he teaches at the Faculty of Educational Sciences and Faculty
of Humanities (University of Primorska) and at the European Faculty of Law (New University). He has twice received
the prestigious academic award “Prometheus of Science - Excellence in the public communication of science.” In 2014
he published his first novel and in 2016 his first book of poetry. He is a regular member of the official national list
“Ten Most Influential Lawyers,” which is sponsored by the largest national media for the legal community. In June
2020, the President of the Republic of Slovenia recommended him to the National Assembly for the empty seat at
Slovenian Constitutional Court. Although he was publicly assured of the required full majority (50/90 votes) and the
public expected him to be easy to vote for, he received only 42 votes - due to political corruption.