Temporality and Tenuousness: Rethinking the Concept of Timing in Founding Moments
In the reductionist view, a founding moment occurs within a particular timeframe, whether a revolution, civil war or abolition of apartheid; it may span months, years or decades, but it has clear temporal demarcations.
It has a beginning and an end. The chapters in this volume have challenged this simplistic understanding and by doing so have also opened the door to future scholarship in this area.In her chapter on Pakistan, Maryam S Khan argues that a founding moment can be incremental. Although Pakistan had one permanent constitution, she argues that through multiple suspension-amendment-revival cycles, the country was able to have an ‘extended public discussion on the Constitution and its meaning over a significant period of time’. [1041] Khan's chapter raises several questions. First, should subsequent ‘rebirths’ - the revival of a constitution following a suspension - be considered founding moments at all? If so, would future leaders not have the incentive to suspend and revive the constitution and thereby re-define the meaning of the constitution order - or constitutional identity - by manufacturing another founding moment? Second, her argument assumes that the spirit of a so-called permanent constitution can survive despite multiple suspensions and amendments. How tenuous can the relationship between the original - or permanent - constitution and the ultimate constitutional order be, especially if the constitutional suffers numerous suspensions? Juliano Zaiden Benvindo’s chapter on Brazil and Chile raises similar questions regarding so-called incremental founding moments.
Sagy’s Chapter on Israel also requires us to delve further into both temporal questions about founding moments and questions regarding its tenuousness. In the Israeli context, there was a clear founding moment - the creation of the State of Israel.
However, there was no formal written constitution. Sagy argues that instead of a formal constitution, a ‘distinct Israeli constitutional order’ came into being about four decades after the foundation of Israel when a ‘Constitutional Revolution’ occurred after the adoption of two basic laws in 1992 in addition to a short list of basic human rights.[1042] This fascinating chapter leads to questions that are slightly different from those arising from Khan’s chapter: should claims of legitimacy regarding a declared constitutional order - and the claim that it stems from the founding moment - be entertained if the initial project was abandoned and was followed four decades later not by a formal written constitution, but by a largely informa I one?In addition, Sagy's chapter leads us to consider several other assumptions about founding moments. While many contributions in this volume focus their attention on what constitutes a founding moment, Sagy's chapter forces us to consider what constitutes constitutionalism. In other words, in the absence of a formal written constitution, can basic laws or a list of rights be considered a constitutional order? Moreover, should we understand founding moments only as they exist in relation to a constitutional order? That is, is a ‘nation-making' event still a founding moment in constitutionalism if it does not lead to a formal written constitution?
Lin's chapter on Taiwan adds an interesting dimension in our understanding of the relationship between founding moments and the constitutional order. Lin separates the notion of a constitutional identity and a national identity, assuming that different national identities can result from a shared constitutional identity. He argues that multiple amendments in Taiwan have moulded a different understanding of national identity, despite sharing its constitutional identity with the PRC. He also argues that the old constitutional identity was retained because of the ‘high bar of constitutional revision'.
The question of whether the old constitutional identity can be said to remain intact after multiple significant amendments and where we should draw the line is an important one. In other words, can national identity change while constitutional identity remains the same, especially if the former traces its legitimacy from the latter? If subsequent amendments help change the n ational identity of the country, can it do so by retaining the same constitutional identity?Mazo's chapter on the former Soviet republic represents unchartered territory for our understanding of temporality and founding moments. Mazo notes that the founding moment that established the presidential system came not after but before the creation of modern independent states that were once part of the former Soviet Union. His chapter parts with our reductionist view that founding moments are those that break with the ancien regime; in fact, he argues that some aspects of a new state - post-founding moments - may even come directly from the ancien regime.
The varying examples and arguments in this volume have shed new light in our understanding of temporality and the tenuous relationship between founding moments and constitutional order. In doing so, the authors have opened the door for future scholars to continue the debate on this issue.
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