Revolutionary Constitutionalism: Law, Legitimacy, Power published in 2020, is the result of a major international conference held at Yale Law School. It contains contributions from leading scholars in public law who engage critically with Bruce Ackerman’s path-breaking book. The book also features a rebuttal chapter by Ackerman in which he responds directly to the contributors’ essays.
Bruce Ackerman makes several choices to handle the sheer number of cases, but also to give his work a distinctive face. I count two fundamental choices that characterize his work. The first is temporal and follows from the purpose to describe and explain the rise of worldwide constitutionalism. The second choice is spatial which means that the critique of many comparative works that their basis is too small does not apply to his work.
A Global Tour of Constitutionalism
Nearly 25 years ago, Bruce Ackerman uncovered a series of contrasts and convergences among the constitutions of the world, opening our eyes to new possibilities for understanding how the many peoples in our modern-day have arrived at their particular form of constitutionalism. Ackerman’s provocative and innovative analysis was an early expositor of what Ran Hirschl has described as comparative constitutional studies. It inquires across jurisdictions that go beyond doctrinal analysis and deep into other spheres, for instance, history or political science, to explain the differences and similarities uncovered in law.
In August 2018, just after Ackerman put the finishing touches to his manuscript for Revolutionary Constitutions, 20 of the world’s leading scholars in public law gathered at the Yale Law School for a two-day conference to debate the themes in the book. The conference offered the first structured opportunity to engage critically with Ackerman’s new project. Some advanced his thesis, others attacked it and still, others refined it – but all agreed that the ideas in the book will reset the terms of debate on the most important questions in constitutionalism today.
The conference was an occasion both to celebrate the completion of a work that will become a focal resource in the field and also to test its groundbreaking ideas. The papers delivered at that conference have since been revised and updated, and they now appear as chapters in this volume.
Why Constitutions Need not be Representational
Ackerman’s Revolutionary Constitutionalism is among the few books in constitutional theory that transcend the boundaries of a single jurisdiction and makes a bold effort to explore the underlying logic of constitutionalism as such rather than constitutionalism of a particular jurisdiction.
Revolutionary Constitutionalism has many virtues, but the author points out two prominent virtues. By highlighting these virtues, the author urges future theorists to follow Ackerman’s lead in these respects. Revolutionary Constitutionalism resists two seductive temptations which often inflict constitutional theory: monism on the one hand and normative judge-mentalism on the other. Monism refers to the view that there is a single theory that can capture all forms of constitutionalism. The seductiveness of monism rests on its theoretical elegance and its aesthetic simplicity.
Normative judge-mentalism is also a common seductive trap. Constitutional theorists often use their own normative commitments to interpret, understand or explain constitutional realities. Ackerman wisely distances himself from engaging in evaluative judgments.
In examining the underlying shared features of revolutionary constitutionalism (or constitutionalism more generally), Ackerman believes one should focus on the shared structural features of revolutionary constitutions rather than on the merits of particular constitutions or even the merits of constitutionalism as such.
Ackerman’s point of departure is legitimation. Founders or, like we say, drafters of constitutions strive to realise legitimation and it is this impetus which provides the key to the understanding of their decisions. The primary challenge of the founders of political revolutions is how to reach legitimation. Legitimation is crucial for the success of any constitutional order, but it is particularly crucial at the time of political revolutions and yet, as Ackerman pointed out, the legitimation of revolutionary constitutions is a tricky process.
After all, the revolutionaries disrupt the existing constitutional order; such disruption is often the byproduct of delegitimizing an established existing legal order.
The author believes that Constitutions can be legitimated in two ways: representational legitimation and reason-based legitimation. Representational legitimation grounds legitimacy in claims concerning the popular will, consent, voluntary endorsement, active engagement, participation etc.
The constitution is binding because we want it; we have agreed to it, we have voted for it, it reflects our identity as a community etc. To put it crudely, it is binding because it is our constitution – the constitution to which we agreed and which we cherish. Most typically, it is also the constitution which we (or, at least our representatives) ratified on the grounds that it entrenches the values that are constitutive of our political or collective identity.
Non-representational or reason-based legitimation rests on judgements concerning the institutional, procedural or substantive justness, correctness or usefulness of the constitution. The constitution is binding because it establishes good institutions, entrenches just norms and is worthy therefore of our allegiance. In short, under representational legitimation, the constitution merits our allegiance because it is ours, while under reason-based legitimation, it is ours because it merits our allegiance.
Constitutionalism and Society
The book shows how constitutional values and mechanisms are at the same time universal and in need of local adaptations. This is an old lesson, from Aristotle’s natural law to Montesquieu’s experiences universelles (universal experience). Yet old lessons need to be taught again when they are lost sight of.
This is one of the book’s most significant accomplishments. The author argues that in the process or worldwide expansion, the concept of constitutionalism has undergone two things, viz. first, enlightenment values have not lost their appeal. Ackerman shows how Western constitutional values have spread outside of and sometimes against the will of Western countries. They may even have been revived in the process. This is the lesson from some impressive restatements of revolutionary constitutional values, as in the case of South Africa.
Second, these various constitutional experiments shed important light on the meaning of constitutionalism. Ackerman makes the point that Western constitutional values are not all there is to constitutionalism. Rather, a certain principled practice of power seems to be more characteristic of constitutionalism than the acknowledgement of the values of the American or French Revolutions of the eighteenth century. This is certainly one of the book’s key lessons: constitutionalism ‘is not synonymous with liberalism’.
In this regard, the Iranian case study could not have been better chosen. Where do you find a nation in which Western values have been so strongly repudiated, yet in which institutional checks and balances, in addition to a carefully designed representative system, have been more consciously established? The Iranian case is relevant because it allows us to analytically distinguish values and mechanisms in constitutional law.
There have been constitutional law ever since it has been understood that power was necessary to balance power and thus to avoid arbitrariness, which stems from confusion and concentration of power. Liberal pluralist democracy and human rights are not the necessary premises of this mode of reasoning; it existed before their generalization in Europe and America’s ‘constitutional revolutions’, and it can exist without them. ‘The rise of world constitutionalism’ can thus thrust its roots in those constitutional mechanisms without entailing adhering to Western values.
Sustaining Revolutionary Constitutions: In light of Indian and African Constitutions
Revolutionary Constitutions is a real tour de force. With this book, Bruce Ackerman demonstrates his enormous learning across varied constitutional jurisdictions including India, South Africa, France, Italy, Poland, Burma, Israel, Iran and America. The book deftly introduces the reader to the rich constitutional and political histories of these countries.
I also really like Ackerman’s choice of case studies. His is not a methodology that compares a so-called more established country of the Global North with a newer democracy from the Global South. For instance, a comparison of India with the US. It also does not restrict itself to liberal constitutional democracies. One of the most dazzling chapters is the study of Iran and its semi-presidential system, with fascinating little links between the French-inspired Iranian Constitution of 1979, which draws on the semi-presidential French system, that is replaced by a Guardian Jurist (supreme religious leader) and a popularly elected President, who are competing seats of power, envisaged by the Iranian Constitution.
The book commences with its first two case studies being two success stories from the Global South: India and South Africa. Both have much in common; well-known movement parties and charismatic leaders. Ackerman’s comparison of the Indian National Congress (INC) and the African National Congress (ANC) make for fascinating reading. He also points to the differences between the two, owing to the nature of the opposition they confronted.
Ackerman correctly captures that while the INC had decades of organising and electoral experience under the British, while the ANC did not. Its organisation was brutalised by the apartheid regime. This lack of organisational hierarchy hampered the ANC as it came to power and Mandela provided the legitimacy that was needed. And while Mandela had to contend with the military wing of the ANC, the Spear of the Nation, Nehru’s INC had no such armed wings to negotiate with. But, apart from this, it is unclear that being a dominant movement party with a majority in constituent assembly with charismatic leadership is enough to ensure a successful constitution-making project and a constitution that enjoys enduring legitimacy.
For instance, Pakistan, created after the partition of India, had the Muslim League, a movement party that enjoyed an overwhelming majority in the Constituent Assembly (CA). The party had a charismatic leader, Mohammad Ali Jinnah, considered to be the founder of Pakistan. Yet, unlike India, Pakistan did not adopt a new constitution and instead contended with years of military rule and successive military coups throughout the 20th century. In fact, India and Pakistan at partition had a common military, common Federal Court and even the same interim constitution, i.e. the Government of India Act 1935.
The INC, India’s movement party, was integral to the drafting and adoption of her Constitution. Ackerman explains part of its success largely as being a ‘hegemonic movement party’ with little opposition both within the CA and outside, given a post-partition Muslim population of 11 per cent. Hence the INC dominates the assembly proceedings. Yet, this only partially explains the INC’s success in drafting and adopting an enduring constitution. While India’s constitution was being drafted by its ‘hegemonic movement party’, Pakistan also commenced its crafting project. Like in India, the post-partition minority population of Hindus and Christians in Pakistan was approximately 11 per cent.
Yet, the Muslim League was not able to draft an enduring constitution and was only able to pass a draft in 1954, seven years after independence. In fact, in the post-partition Pakistan Constituent Assembly, Hindu members from the Pakistan National Congress were steadily leaving the country after being unable to convince their fellow members within the Assembly of a move against the creation of the Islamic Republic to the apparent detriment of religious minorities.
Conclusion: The Race against Time
Ackerman has divided the time period resembled in the book around a four-stage dynamic of legitimation. Some chapters advance Ackerman’s theory, others attack it, and still, others refine it – but all agree that the ideas in his book reset the terms of debate on the most important subjects in constitutionalism today: from the promise and perils of populism to the causes and consequences of democratic backsliding, from the optimal models of constitutional design to the forms and limits of a constitutional amendment, and from the role of courts in politics to how we identify when the mythical ‘people’ have spoken. A must-read for all interested in the current state of constitutionalism.