Balkinization: Three Paths to Constitutionalism – and the Crisis of the European Union

Three Paths to Constitutionalism – and the Crisis of the European Union

Guest Blogger

Bruce Ackerman

I’m in Berlin this year as a Fellow at the American Academy, where I presented a lecture last Thursday that sketched out my current project in comparative constitutional law. You can watch the lecture, and the interesting question-and-answer period, at http://www.americanacademy.de/home/media/videos/general-theory-world-constitutionalism-%E2%80%93-and-crisis-european-union (Skip the first ten minutes or so, which show preliminaries before the talk begins.)

Here’s a brief summary of my argument.

Three Paths to Constitutionalism – and the Crisis of the European Union

Law legitimates power. Constitutionalism is part of this larger project. But how do Constitutions gain their claim to authority?

I will be exploring this question in the spirit of Max Weber, who famously distinguished three ways in which power seeks to legitimate its authority – by appealing to tradition, charisma or bureaucratic rationality. But this famous list does not enlighten the appeal of constitutionalism as a mode of authority in today’s world. It’s past time to move beyond Weber and build a new series of ideal-types that does justice to constitutionalism’s legitimating logics.

In making this effort, my aim is not to pass philosophical judgment on the merits of constitutionalism. I am instead inviting you to embark on a sociological and historical inquiry into the ways in which elites, and the general public, may come to believe that their Constitution has transformed the sheer exercise of power into the legitimate exercise of authority.

Under the first scenario, a movement of revolutionary outsiders mobilizes against the existing government at Time one. Many would-be revolutionaries are crushed at this point, but other movements have triumphed over the status quo. This sets the stage for the founding of the new regime at Time two. During this period, the revolutionary movement culminates its triumph by elaborating a Constitution codifying the fundamental principles of their new regime. Twentieth century examples include India, South Africa, Italy, the French Fourth and Fifth Republics, and Poland.

Constitutions also emerge from a very different pathway. In this second ideal-type, the political order is constructed by pragmatic insiders, not revolutionary outsiders. When confronting popular movements for fundamental change, the insider-establishment responds with strategic concessions that split the outsiders into moderate and radical camps. When this strategy works, the insiders reinvigorate their authority by enacting landmark reform legislation which invites “sensible” outsider-groups to desert their more radical brethren and join the political establishment to govern the country. Britain, Australia, Canada, and New Zealand serves as familiar examples.

Under the third scenario, the old system of government begins to unravel but the general population stays passively on the side-lines. The emerging power vacuum is exploited instead by previously excluded political and social elites, who proceed to play a key role in the creation of a new constitutional order. Modern Spain, Japan, and Germany provide variations on these elitist themes.

I conclude by applying my general theory to suggest that the European Union’s current crisis is cultural as well as economic. Leading members of the Union emerge from different pathways – with the constitutions of France, Italy, and Poland emerging from revolutionary achievements; Great Britain, from insider-adaptations; and Spain and Germany, from elite constructions. This disparity in legitimating logics makes it especially difficult for the Union to sustain European-wide credibility as it seeks to sustain its authority during the present crisis.

Posted 10:00 AM by Guest Blogger [link]