In this Volume
This book consists of 11 chapters and a conclusion. The chapters delve deeply in the theory of founding moments, draw from history to identify and contextualise the significance of momentous events in the life of a state, and highlight jurisdictions that do not figure in the conventional list of ‘usual suspects’ in comparative constitutional studies.
In Chapter 1, ‘Between Fact and Norm: Narrative and the Constitutionalisation of Founding Moments’, Ming-Sung Kuo seeks to shed light on how the construct of a founding moment is related to the constitution itself, problematis- ing the ambiguities about the relationship between the founding moment and its ensuing constitutional order in constitutional theory. Kuo’s chapter takes up these issues at the core of constitutional theory by examining the idea of a founding moment in light of the antimony between fact and norm. He argues that contemporary constitutional theories fail to account for the role of the founding moment in the constitutional order because they are preoccupied by matters of constitutional interpretation and less so by the construction of the constitutional order. He concludes by underlining the implications of the relational approach to the constitutionalisation of the founding moment to constitutional theory in terms of substance, process and structure.
In Chapter 2, ‘The Role of Courts in Advancing Constitutional Moments: Constitutionalising the Constitution in Singapore and Hong Kong, Swati Jhaveri explores the role of courts in founding moments. Her chapter draws from Hong Kong and Singapore in particular to highlight that founding moments are necessarily ongoing and cannot be compartmentalised or viewed as fixed periods of time. This analysis is used to further highlight the important work to be done after a ‘founding moment' to translate these moments into new and sustainable constitutional orders.
Using the Asian experience, her chapter looks beyond political actors and citizens to the role of the courts in legitimising, consolidating and furthering the objectives of founding moments and in their overall translation into the establishment of the new order. National courts, she argues, have played a critical role in transitional situations in one key respect: explicating the ‘meta-constitutional identity' of the system.In Chapter 3, ‘Foundation and Revolution: Hannah Arendt and the Problem of Legitimacy and Stability in Constitutional Consolidation', Mel A Topf investigates the relation of revolutionary consolidation to the American constitutional founding. He suggests that the ideas of consolidation and augmentation - and their relation to the question of constitutional legitimacy - have received insufficient attention. He argues that Hannah Arendt's theory of revolution is paradigmatic in this respect, yet adds that she does not give sufficient attention to the pragmatic role of consolidation in acts of constitutional founding. He focuses on Arendt because he believes that within her political thought on what for her was the uniquely successful consolidation of the American Revolution lies an explanation for that success that she herself does not expressly develop.
In Chapter 4, ‘I am Not Your (Founding) Father', Mikolaj Barczentewicz distinguishes between an ‘agent behind making a constitution as law' and a ‘constitution-maker'. In advancing his distinction, he explores three jurisdictions - Australia, Canada and the US - to answer two fundamental questions in constitutionalism: who made the constitution and how do we know? He argues that in order to truly be a maker of the constitution, one must either exercise pre-existing legal authority to make the constitution or have one's intentional act purporting authoritatively to make the constitution as law recognised as the reason for the acceptance of the constitution as law.
Chapter 5, ‘“And Then They Begin to Look after the History of Their Founders”: (Re)configurations of the Founding in the Early Republic' by Simon Gilhooley, turns to an historical assessment of founding moments and offers a reconceptualisation of the American founding itself.
Gilhooley suggests that rather than interpreted or narrated anew, the moment of founding itself is reconfigured to be something it previously was not, which is to say that the present relocates the precise temporal moment of the founding in ways that conform to the political necessities of the present. In order to explore this possibility, he turns to three periods during the early American Republic: discussions of the electoral crisis of 1800-01; the debates surrounding McCulloch v Maryland in 1819; and the debates around slavery in Washington DC in the early 1830s. He proposes that these accounts show that even in close proximity to the concrete events of a founding, the people who emerge from it can radically reconfigure its history and meaning.In Chapter 6, ‘Under the Shadow of the Constitutional Revolution? Revisiting Israel's Founding Moments', Yair Sagy sets out to analyse and evaluate a new string of recent Israeli literature revisiting the 1950s, Israel's founding decade. In particular, he looks closely at three books, each one published in Hebrew by three distinguished Israeli legal scholars: Nathan Brun, Law, Passions and Politics: Judges and Lawyers Between the British Mandate and the State of Israel; Nir Kedar, Ben-Gurion and the Constitution; and Daniel Friedmann, Before the R evolution: Law and Politics in the Age of Innocence. In critically examining these three books, Yair's chapter highlights common threads and collages them into a distinct appraisal of Israel's founding generation that is represented in them. What results is a novel reconceptualisation of Israel's founding moment and its generation. Sagy states that, however essential, the 1950s were a transitory generation, cut off on both ‘ends': that the decade had departed from the pre-state, colonial (British-Mandatory) oppressive constitutional regime, while, at the same time, its constitutional orthodoxy had been arcane and irrelevant to the brave new postrevolutionary constitutional era.
In Chapter 7, ‘Path-Dependency in Soviet and Russian Constitution-Making', Eugene D Mazo begins from the proposition that one theory of constitutionmaking posits that new constitutions result from a path-dependent process.
As such, these constitutions tend to reflect those constitutions that were in place before. To understand constitution-making, according to this view, it is necessary to study the period of time between the fall of a one regime and the creation of the new one. This is the period of transitional uncertainty when the ‘constitutional moment' takes place. This chapter explains how one constitutional moment was exploited during the Soviet Union's transition from communism. It examines the distinctive features of that transition and why they led many countries in the post-Soviet region to adopt dual-headed executive structures, ones that created a role for a president and a prime minister. There are theories that explain why presidential or parliamentary constitutions are adopted, but few treat dual-headed semi-presidentialism as a distinguishable category. Given that this constitutional model dominates in the post-communist world, the lack of an explanation for why it was chosen seems problematic. This chapter argues that the reason why so many semi-presidential constitutions were adopted in the post-Soviet world is because they already existed there when these states gained their independence. Thus, for Mazo, the theory that goes furthest towards explaining post-communist constitution-making is path-dependency theory.Chapter 8, ‘“Founding Moments” in Latin America? The Brazilian and Chilean Constitutional Histories and the Rise of the Forgotten People’, features Juliano Zaiden Benvindo's study of Brazil and Chile. He suggests that constitutional scholarship normally connects the concept of ‘founding moments' to radical events such as revolutions, but little has been written about the association of this concept to gradual political transitions, and particularly transitions whose constitutional moments differ in the ‘timing' of constitution-making. His chapter fills this gap by linking this concept to two relevant experiences in Latin America: Brazil and Chile. By focusing on the distinct ‘timing' of their constitution-making - Brazil, where a new constitution was drafted right after the transition to democracy, and Chile, where a new constitution is just now being discussed - this chapter examines whether and how constitution-making may have a significant impact on the founding of a new democratic moment and how it is intertwined with the rise of active and meaningful citizenship.
In Chapter 9, Chien-Chih Lin brings us to Taiwan in ‘We the Taiwanese People: A Constitution with Two Antagonistic Constitutional Identities'. He notes that despite the ubiquitous usage of ‘We the People' in preambles of national constitutions, the concept of the phrase remains elusive. He observes that the plethora of studies within a ‘Eurocentric' context largely ignores ideas of ‘constitutional identity' in other corners of the world. His chapter therefore zeroes in on the formation of the constitutional identity embodied in the Constitution of the Republic of China, suggesting that, unlike in many other countries, there are two distinct and antagonistic constitutional identities - the Chinese constitutional identity and the Taiwanese constitutional identity - that have been forged by formal and informal constitutional practice. He concludes that in such a divided society, the development of constitutional identities is deeply embedded in, and reflective of, the dispute over national identities.
Chapter 10 continues our global voyage with Maryam Khan's contribution on ‘What is a Founding? Founding Moments and Pakistan's “Permanent Constitution” of 1973’. Khan explores Pakistan’s founding, suggesting that rather than the traditional narrative of ‘Jinnah's Pakistan' as a founding, the period of constitutionmaking between 1967 and 1973 was one of greater constitutional trailblazing. Her chapter conceptualises the constitutional bargaining underlying the 1973 Constitution as a founding. She advances the argument that, from the perspective of both the genesis of a democratic constitutional framework and the continuing political identification with that framework, the creation of the ‘permanent' Constitution of 1973 is central to Pakistan's constitutional politics and identity. As a legal scholar of Pakistan, Khan makes this claim with a conscious appreciation of Pakistan's troubled constitutional journey, the failure attributed to the 1973 Constitution to forestall military coups, the repeated ‘suspension' of the 1973 Constitution and its bill of rights, and the many ‘constitutional deviations' introduced into the text by dictators attempting to fundamentally alter the design of the state and its institutions.
In Chapter 11, ‘A Founding Moment in Iraq: A Gender Perspective', Noga Efrati focuses on an interim period in Iraq's constitutional past: the period between the introduction of the British-backed Iraqi Constitution in 1925 and the promulgation of the American-backed Transnational Administrative Law in 2004.
In particular, she looks to women's history to argue that a gender perspective undermines the prevailing notion of this period as a constitutional void. She concludes that only when one understands how the 1925 Constitution constructed female citizens of the new Iraqi state can one appreciate the significance of legislation and actions affecting women that were inspired by the constitutional replacement in 1958. She argues that this was a founding moment in Iraqi history.
This volume closes with a concluding chapter by Nishchal Basnyat, in which he continues the discussion that runs through the earlier chapters - asking what is a founding moment and what is its significance to constitutionalism.