Introduction: Constitutions and Politics

This is an extremely ambitious book. Its point of departure is that the study of the origins, status and functions of constitutions was a central element of early sociology. It is argued that classical sociological scholars such as Tönnies, Durkheim and Weber initiated a break with the normative ideals of the Enlightenment and established the defining features of a positive-descriptive political sociology through the study of constitutions. The strong centrality of the study of constitutions in political sociology, however, drastically declined in the post-war period. Instead, constitutional theory and practice became dominated by formalist-normative approaches developed within the realm of legal and political philosophy. The book is aimed at turning this development around by introducing a fully-fledged empirically founded, essentially positivist, sociological theory of constitutions capable of re-establishing constitutional sociology as a specific sub-discipline within law, politics and sociology.

The modern idea of the constitution is closely tied up with the political form of the nation-state, but the post-national age assists to various challenges to this idea, not least due to the emergence of constitutional or quasi-constitutional regimes both beyond and below the nation-state. While a good, and steadily growing, amount of research probes the constitutional dimensions on the international and supranational levels, the domestic dimensions and related transformations, and in particular the implications of constitutional pluralism for meaningful democratic practice, seem, however, less prominent in current debate. I argue that domestic constitutional dynamics and conflict, not least regarding democratic participation, can be fruitfully analysed through the lens of a political-sociological approach to constitutions and constitutionalism. In order to outline such an approach in one specific way, I briefly discuss, firstly, the recent (re-)emergence of constitutional sociology. Secondly, I will situate constitutional sociology within a wider debate on constitutionalism and democracy. Thirdly, I will propose a sociological, ‘historical-functionalist’ approach to the analysis of constitutions, which, I will then, fourthly, relate to a comparative and interpretative political sociology of constitutional discourses and political, legal, and social critique.

The debate on political constitutionalism has completely neglected the dimension of constitution making. This is probably due to the reason that constitution making usually brings with it undesirable outcomes like entrenchment of rights or structure. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling this disagreement: majority rule and equal vote. This article aims to show that political constitutionalists may regret the complete absence of any claim about constitution making. Either they are overlooking certain problems inherent to the electoral process that is supposed to tackle with disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims are actually undermining the political dimension of constitutionalism.

Uncodified Constitutions and the Question of Political Legitimacy, 2022

https://wydawnictwo.umk.pl/pl/products/5844/uncodified-constitutions-and-the-question-of-political-legitimacy This book seeks to examine and explore an issue within the study of constitutionalism that is an extensive phenomenon that cannot be easily reduced merely to the written legal document. Now this claim is a quite obvious truth, yet the scope of uncodifiable – that is to say, those aspects of law and constitutionalism that escape or avoid being framed in codified or written form are hard to embrace by legal science. Hence, our intention in this volume was to explore the issue from many different points of view and provide a useful reflection on this topic.

Uncodified Constitution and the Question of Political Legitimacy, 2022

Unwritten or uncodifiable aspects of constitutionalism are examined in the theoretical and empirical frameworks. The common ground for all research presented in this book is the question of political legitimacy. As we believe, by asking about legitimacy (not merely about legality), one can reach a full spectrum of the constitutional order

SSRN Electronic Journal, 2000

ABSTRACT This chapter of the Oxford Handbook of Political Institutions provides an overview of the social and political functions of constitutions and the range of debates concerning those processes of interpretation by which constitutions achieve operative force. It shows how debates over judicial review relate to theories of legitimate government and anticipates future research directions for constitutional theorists.

A constitutional framework, built on a prudent regard for human beings, must enable the government to control the governed. No less important, however, is the auxiliary precaution of checking and balancing within government itself. If human law departs from the law of nature, it is no longer law but a perversion of the law. The general idea is captured in James Otis ' Rights of British Colonies, Asserted and Proved (1764), wherein he stipulates: The Law of nature was not man's making, nor is it in his power to mend or alter its course. He can only perform and keep or disobey and break it. The last is never done with impunity, even in this life, if it is any punishment for a man to feel himself depraved, to find himself degraded by his own folly and wickedness from the rank of a virtuous and good man to that of a brute, or to be transformed from the friends, perhaps father, of his country to a devouring lion and tiger. Under constitutional theory, however, government must be just and reasonable, not only from the viewpoint of majority sentiment but also in conformity with higher law, what the Declaration of Independence Act of 1977 refers to as "Laws of Nature and of Nature's God". Constitutionalism means that the power of government and Leaders should be defined and Limited by the dictates of the body of the fundamental laws of the land known as the constitution. As a body of political and legal doctrine, it refers to government that is, in the first instance, devoted both to the good of the entire community and to the preservation of the rights of individual persons. Problems of constitutional governance in the 21 st century will likely be problems within government recognized as democratic. The modern day phenomenon of "illiberal democracies" gains legitimacy, and thus strength, from the fact that these regimes seem reasonably democratic. Illiberal democracy, that is, nominally democratic government shorn of constitutional liberalism is not simply inadequate but dangerous, bringing within the erosion of liberty, the abuse of power, ethnic divisions, and even war. This paper examines the nexus of constitutionalism and democracy. It is argued that the spread of democracy around the world has not always been accompanied by a corresponding spread of constitutional liberty.

R Bellamy and J King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press, 2024), 2024

This chapter is the Introduction to R Bellamy and J King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press, 2024), Section 1 explores three varieties of constitutional theory: normative, conceptual and positive. Section 2 then offers an account of the basic concept of a constitution, noting how it differs from its various conceptions. This section also defends the analytical structure of this volume into values, modalities and institutions as part of the basic concept of a constitution. Section 3 then turns to constitutional norms, both written and unwritten, and their role within even a codified constitution. Finally, section 4 looks at the variety of constitutionalisms as a product of the essential contestability of the values, modalities and institutions of any conception of the constitution, be that conception theorised normatively, conceptually or positively (or draw on elements of all three approaches). This diversity is exemplified by the contrasting views of the contributors to this volume.

Sociological Constitutionalism, 2017

The sociological analysis of constitutions and constitutionalism is, in important respects, concerned with the analysis of the emergence of constitutional structures outside of the formal political realm of the nation-state. Such constitutional sociology places emphasis on the conceptual and historicalempirical exploration of functional and more or less comprehensive equivalents of the modern political constitution, which are to various extents distinct from the state. Such constitution-like sets of norms are seen as increasingly prominent particularly in the transnational domain (and with significant repercussions in national arenas), either in terms of privately generated constitutional norms emerging in the global economy (Teubner in this volume; Teubner 2012) or public constitutional norms, resulting from legal action by various supra-and international courts (Kjaer 2014; Thornhill 2016). This Chapter will focus on a potential underestimation of the political dimension in this line of constitutional sociology. While I agree that the attention to the diffusion of norms, constitutional narratives, and a constitutional 'governmentality' beyond the state is of the highest importance, my main concern is that constitutional sociology has a tendency to steer the sociology of constitutions away from the problématique of the political as well as that of politics in modernity. The former problématique includes questions of collective autonomy, the legitimation of power, and the possibility of democracy as a modern system of rule, while the latter is concerned with irreducible conflict over perceptions of the common good. In other words, the sociology of constitutions in this vein seems increasingly to subscribe to an apolitical or depoliticized view of governance and rule-making, grounded in background assumptions regarding the authority of extra-political, higher principles (cf. Thompson 2015; Priban 2012).