Casuistry or Eurocentrism: How to Write a Global History of Constitutions?

Markus+Beham_full.jpg — Markus P. Beham

University of Passau

Editors’ note: as stated in our mission statement, the IACL-AIDC Blog aims at engaging in selected collaborations with global leaders in the field of constitutional law and foster new partnerships. As part of this strategy, the IACL-AIDC has entered a partnership with the Max Planck Encyclopedia of Comparative Constitutional Law (MPECCoL). Today, we are pleased to publish the following post by Markus Beham which explores the possibility of developing a global history of constitutions.

Any history of constitutions must concern the historical foundation and development of constitutional instruments or, more broadly, the formation of basic rules of governance. Scholarly interest in the topic can look back on a long tradition of legal historians tracing the developments of constitutions and constitutional lawyers looking to understand the functioning of present instruments through their past.

In tracing the development of constitutional instruments, typologies are created according to the written or unwritten and the declaratory or prescriptive nature of a constitutional instrument, whether it codifies or innovates, whether it was created or octroyed, and its rigidity or flexibility. Depending on the scope of regulation, specific lines of enquiry may include forms of government, institutional rules, suffrage, and fundamental rights.

Beyond such formal aspects, the study of basic rules of governance includes the political history of organisation and institutions of states. In particular, the French tradition of constitutional history includes the study of sociological factors in constitutional development. The boundaries between the history of ideas and philosophy may be fluid, both in the area of governance and fundamental rights.

National and regional approaches to the topic exist in abundance today. Surprisingly, there exists no ‘global history of constitutions’. Might a reason be that such a ‘global history’ must fall into the trap of descriptive casuistry, tracking and complementing the Eurocentric narrative with other regional or precolonial examples? Out of these and other concerns, the editors of the Max Planck Encyclopedia of Comparative Constitutional Law decided to strike out the entry on the ‘history of constitutions’.

This blogpost suggests that the project of a ‘global history of constitutions’ should focus on the two main functions of a constitution – the conceptualisation and the limitation of government – and its international dimension as the smallest common denominators to head off into such an endeavour. Naturally, such a project will require tools of both history, sociology, and comparative legal scholarship. After all, a history of constitutions is not just a history of political developments but also of legal dialogue. Whereas the character of constitutional instruments may reflect societal progress, often they take inspiration from specific (European) constitutional models or reflect a colonial past. Any enquiry will have to think about how this formative – or perhaps limiting – process can be unravelled to reveal the voices preceding, moving alongside, or surpassing the Eurocentric narrative.

Conceptualising Government

A global history of constitutions – understood as part of the project of global history – must begin with the efforts to conceptualise government and governance in their full variety, the creation of rules for the functioning of institutions, or the regulation of society at large. From the earliest stages, constitutional instruments were developed at various levels, from the local to the regional to the global. While all such instruments regulate the relations between the ruler and the ruled to a certain extent, they do not necessarily limit the powers of government against the individual.

Written archaeological evidence points to codifications of basic rules of governance as early as the 3rd century BC. Specific forms of government were conceptualised throughout antiquity where the foundations for the modern understanding of fundamental concepts such as monarchy, republic, and democracy were laid out. It would still take feudal monarchy to be overcome throughout the middle ages where instruments of governance often originated from ecclesiastical writings. It would take until the 17th century for a tradition of constitutional monarchy to arise in Europe while government was still mostly conceptualised in oral traditions in other parts of the world. Particularly, the age of exploration and colonisation facilitated the spread of such ideas across all continents (far beyond the process of decolonialisation). Such developments, for better or worse, are may also be determinative for the creation of national identities.

A global history of constitutions would look at the conceptualisation of government with regard to their

commonalities and distinctions in scope, depth, and normative aspiration;
regional fluidity or isolation, irrespective of modern boundaries or nation states;
tradition of ideas and their reception elsewhere;
impact upon the narrative of constitutional history.

Limiting Government

The narrative of constitutions as a limit to power usually sets out with the Magna Carta of 1215. It is predated by the Charter of Liberties of 1100 that already provided for limitations in the treatment of certain strata of society. Equally, the principle of habeas corpus contained in the Magna Carta only applied to ‘free men’. Throughout the following centuries, the provision was gradually expanded to cover all of society. But similar instruments were adopted in other parts of Europe and beyond.

Still, the limitation of government found its clearest expression in the ‘Western’ liberal revolutions of the 18th century. With the American War of Independence and the French Revolution came the birth of the written constitution in the modern sense, conceptualising government while limiting its scope through fundamental rights. The inclusion of catalogues of rights created the idea of liberal constitutional instruments as a guarantee for the individual against the government.

In the 20th century, fascism, national-socialism, and communism juxtaposed the idea of the liberal constitution, opting instead for totalitarian forms of government that operated either through revolutionary programmes, such as the 1918 Soviet Russian Constitution, or erosion of existing constitutions, as in the case of Nazi Germany where the 1919 Weimar Constitution continued in force. Meanwhile, the 1917 Mexican Constitution had become the first in the world to enshrine what today we know as socio-economic rights with discussions on how far this could have taken influence on subsequent constitutional developments across Europe. Following the end of the Second World War in 1945 and the fall of the Communist bloc after 1989, most succeeding states made efforts to implement the ideal of the liberal constitution. At the same time, China carries forward a Communist governmental system, albeit less ideological and open to a free-market economy but not enforced so as to limit governmental authority. Attempts at constitutional reform as part of the ‘Arab Spring’ have produced mixed results in strengthening constitutional court powers and fundamental rights. Authoritarian pull puts pressure on the limitations of government through constitutions across the world, including in Member States of the European Union. During the on-going Covid-19 pandemic, states have taken varying views on executive power and proportionality, possibly impacting constitutional developments in this area for the long-term future.

A global history of constitutions would look at limitations of government with regard to their

development, be it parallel or interconnected, in the form of an intellectual history;
conceptualisation as negative or positive duties;
narrative of originating in the concept of habeas corpus, detached of the ‘Magna Carta narrative’;
validity as a progressive project of constitutional law together with the continuities and ruptures throughout political developments and how these may correlate.

Internationalisation

Increasingly, the domestic scope of constitutions has been supplemented by international instruments and the idea of a ‘supranational’ organisation with constitutional functions pervades the discourse in Europe today. A global history of constitutions must also consider this international dimension. There are numerous historical examples. The Golden Bull of 1356 provided for the constitutional structure of the Holy Roman Empire. The 1648 Peace of Westphalia ending the Thirty Years’ War established a set of principles to secure the peaceful coexistence of sovereign states. The 1815 Congress of Vienna created the German Confederation.

The creation of the United Nations in 1945 brought about the adoption of documents by the General Assembly in the formal guise of constitutional instruments, ranging from the 1948 Universal Declaration of Human Rights to the 1970 Friendly Relations Declaration to guide the international relations of states. International treaty-making has created a net of multilateral obligations among states that provide a universal constitutional structure.

Of the regional human rights instruments, the most advanced regarding compulsory jurisdiction is the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. It is considered as a self-executing international treaty in most domestic legal systems and even has constitutional status in some of its state parties. Similar instruments exist in Africa, Latin America, and for other regional groups of states. In different aspects, these have gone beyond the sometimes conservatively measured margin of appreciation granted to states by the European Court of Human Rights. The Inter-American Court of Human Rights has made a distinct contribution to the advancement of individual rights through dynamic interpretation of the American Convention on Human Rights, whereas the African Charter on Human and Peoples’ Rights expands the concept of group rights.

Moreover, among European states, the 1957 Treaty of Rome paved the way towards a supranational constitution. While the Treaty establishing a Constitution for Europe was rejected in 2005 in referenda in France and the Netherlands, many of its provisions were introduced through the Treaty of Lisbon in 2007, entering into force in 2009.

A global history of constitutions would look into the phenomenon of international constitutionalism with regard to

models imported from domestic constitutions;
impact on domestic constitutional developments;
conservationist effects on constitutional narratives and the reflection of a colonial past;

the singularity or model character in the supranational project of European Union.

Outlook

Will these basic suggestions facilitate the creation of a ‘global history of constitutions’? The classic problem of Eurocentrism is exemplified throughout this short contribution. Yet, there must be a third path. For instance, looking at constitutional developments in Latin America, where predominantly presidential republics restrict power by (among other things) restricting terms of office, or in former British colonies (such as India, Pakistan, or South Africa, for example), where the classical ‘Westminster system’ of parliamentary rule has been replaced by a system of constitutional courts of Kelsenian origin might guide the way out of this dilemma. The ideas and institutions initially developed in Europe travelled across the world but they may appear in surprising combinations. A global history of constitutions must track such innovations developed outside Europe to follow their influence within the dynamic setting of constitutional dialogue.

Markus P. Beham, Assistant Professor, Chair of Constitutional and Administrative Law, Public International Law, European and International Economic Law, University of Passau, Germany.

Suggested Citation: Markus P. Beham, ‘Casuistry or Eurocentrism: How to Write a Global History of Constitutions?’ IACL-AIDC Blog (1 April 2021) https://blog-iacl-aidc.org/2021-posts/2021/04/01-casuistry-or-eurocentrism-how-to-write-a-global-history-of-constitutions.