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Constitutions and the Legitimisation of Power: Statement

Organised by Kelly Grotke and Markus Prutsch, University of Helsinki, The Research Project Europe 1815-1914

Points of Departure and Outline

One of the most enduring formulations of European teleological self-understanding is the idea that constitutions marked a transition from the monarchical legitimisation of authority to parliamentarism and the sovereignty of the people, thereby advancing liberalism and democracy; in other words, the constitutionalisation of Europe put power securely in the hands of its peoples. The working group will challenge this understanding by exploring a counter-hypothesis: constitutions legitimised monarchical and authoritarian regimes and channelled citizen autonomy in directions that served the interests of such regimes, thereby suppressing alternative conceptions of autonomy.
The working group will be organized around five critical themes:

1) Constitutions were anti-revolutionary devices. Without the revolutionary urge, would there have been any constitutions? In what ways did constitutions serve as tools to restore and stabilise lost authority? Once drafted, exclusion of revolutionary activity originating outside the sphere of state authority became key. However, the drafting process itself was a trial of strength between conflicting social and political forces in each instance, and individual cases reveal traces of these struggles even within the search for compromises. Comparative study will allow a better understanding of the interrelation of constitutional debate and revolutionary activity. Other crucial areas of investigation will be the role of the military within constitutions, the question of constitutional control of the military, and the power to proclaim state of emergency.

2) Constitutions justified new (capitalist) modes of production via legal definitions and legitimisations of private ownership. Constitution-making is commonly understood as a state activity in the field of public law, a view which takes the public/private division for granted by assuming that “public” activities constitute the sphere of state regulation, whereas “private” activities comprise a realm of spontaneous social interaction (i.e., “civil society”). The stability of this division will be tested by investigation of the ways constitutions delineated property regimes and conceptualised private power; the degree to which the rhetoric of private rights became a part of constitutional vocabulary will also be addressed, as will the emergence of new inequalities (e.g. social, gender) in the wake of new production modes and their constitutional legitimisation.

3) Constitutions promoted nationalism. To have a constitution is to close the frontiers of the commonwealth: it is now “we” whose identity lies in the possession of a “constitution” that gives legal and political form to our “nationhood”. It has been said that a constitution is the outcome of a “tradition”, that it contains the “special character” and “experience” of a nation, as expressed in the form of either a liberal or welfare state. To what extent can such a view be challenged or supported by specific histories of constitutional creation? How does the “organic,” national whole that is articulated in constitutional texts correspond with European historical circumstance? How do constitutions mark or secure the frontline of a nation? Did the multinational Russian, Habsburg and Ottoman empires defer constitutionalisation processes due to their perceived need for “internal closures”?

4) Constitutions were instruments of imperialism. Constitutions could be used for “external opening” (i.e., as instruments of imperialism), especially in cases where there was a high degree of overlap between empire and nation (e.g., Britain and France). In these cases, it has been argued that constitutions promoted liberal empire. In “Universal History with a Cosmopolitan Purpose” and the ironically-inflected essay on “Perpetual Peace”, Kant envisaged republican constitutions as a prelude toward the unification of humankind through a future world constitution, or cosmopolitan federation. Kantian constitutionalism is expansively inclined, but to what degree did national constitutions actually promote such a future, or did they instead prevent it? How did 19th century imperial empires (e.g., France, Britain, Spain, Germany, Russia) extend their constitutional principles to their colonies, and how was the centre/periphery divide articulated therein? What was the image of the “cosmopolitan future” portrayed by this process?

5) Constitutions are legal and political texts. A constitution is (by definition) a formalisation of the local political process. As such, it acts as a mechanism of inclusion and exclusion, defining permissible and impermissible kinds of arguments as well as determining who may act and which procedural channels must be followed in order to address a grievance. Too formalist a perspective, however, can obscure questions of embedded bias and the ways in which apparently neutral procedural forms actually favour some interests over others, thereby depoliticizing and dehistoricising constitutional development. A “constitutional” political process is often conceived as a legal-formalist political process (as evidenced in the way in which the German legal community took on the law of the united Reich after 1871, as the basis for their abstractions under the label of Begriffsjurisprudenz). With its theories of “legislative will” and the objective content of “rules”, how might legal formalism (“traditional legal theory”) itself be understood as having political consequences that provoke crucial questions about the connections between law and politics?

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