Understanding the Founding
It is not always easy to identify and define founding moments. The establishment of a new constitutional identity or the reform of an existing one is almost never encompassed in a single episode, and indeed it may span decades.
Some (though not all) founding moments occur at tumultuous times in a country’s history, for instance, anti-colonial conflict, civil wars, legitimation crises, power struggles and contests for consolidation. The founding as a unit of analysis should not be studied only as an historical event, but also as a modern reality that influences and often drives our understanding of law. From Iraq to Chile and from Taiwan to Pakistan, many countries around the world are undergoing the birth pangs of founding, constitution and reconstitution. They are waging civil wars, mounting revolutions, writing or rejecting constitutions, or amending constitutions in ways that entirely transform the document and the constitutional order.It should come as no surprise that founding moments can and do spring from revolutionary uprisings. A totalising revolution seeks to mark a new beginning and set the state on an entirely new course. Even more restrained political revolutions are driven towards a change. In either case, the path from revolution to founding is not linear and raises questions of its own. How does the culmination of a revolution relate to and influence the promulgation of a constitution? How does the promulgation of the constitution trigger crises in the consolidation process? Is there some danger to entrenching the words, symbology and structures of the revolutionary fervour in the codified constitution? We might also consider the phenomenon of an unfinished founding. It may occur when revolutionary groups overthrow a single dictator, but not the entire ‘old guard’. To what extent, then, is an event properly called a founding moment if it is a partial or incomplete transformation? How do unfinished foundations influence the identity of the country? What is clear is that founding moments, however they arise, often endow certain elements in civil society, such as revolutionary parties or political leaders, with sociological legitimacy, as distinguished from legal or moral legitimacy.[1] A key line of inquiry therefore concerns the relationship between founding moments and ‘founding figures', and the extent to which the future of a nation should be guided by the intentions of those who orchestrated these momentous breaks from the past.