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2016 Book Recommendation: Contiades & Fotiadou on “The People”

Richard Albert, Boston College Law School

Xenophon Contiades & Alkmene Fotiadou (eds.). Participatory Constitutional Change: The People as Amenders of the Constitution. Routledge, 2017. P. 217. £ 95.00. ISBN: 978-1472478696.

In a recent I·CON editorial, Joseph Weiler laments the prevalence of low-quality edited volumes in the field of public law. Calling them “unedited books,” Weiler frames his editorial as “advice to young scholars.” He identifies the substantial costs younger scholars incur when they accept an invitation to contribute to an edited volume. The risks include veering away from their own research agenda, denying their energies to major work in favor of a minor piece, and suffering a reputational cost when they produce a paper written hastily or worse yet reprocessed from an earlier one. His critique is typically Weilerian: direct, perceptive and provocative. His editorial also recommends good practices to follow for editing a book, if indeed one chooses that path. Weiler suggests that editors should articulate a focused theme for the volume, offer detailed instructions and constructive feedback to contributors, provide a workshop setting for improving papers rather than piggybacking on a conference where papers are presented without much more interaction, and that editors should publish a meaningful scholarly contribution in the volume. These recommendations, too, are typically Weilerian: helpful, practical and constructive.

As I reflect on my area of research interest in comparative constitutional change, I take heart that this subfield has largely avoided the problem of unedited books. There are several edited volumes on questions concerning comparative constitutional change, many if not all them important to the field insofar as they have set or shifted the terms of debate and they have become necessary points of reference in the literature. One reason—perhaps the reason—for success of the volumes in the field is the strength of their editors. Two of them are longtime collaborators—Xenophon Contiades and Alkmene Fotiadouwho have partnered as co-authors on volumes in comparative constitutional change. The volumes, each edited by Xenophon Contiades, have been planned and designed essentially consistent with the editorial practices Weiler recommends in his I·CON editorial.

In their latest edited volume on comparative constitutional change, Contiades and Fotiadou bring together roughly one dozen scholars to interrogate the role of the people in constitutional change.

Titled Participatory Constitutional Change: The People as Amenders of the Constitution (Routledge 2017, released November 2016), the book is timely in light of the recent referenda around the world in 2016, on Brexit in June, on a new Thai Constitution in August, on the Colombian peace treaty in October, on migration and settlement in Hungary also in October, and on constitutional reform in Italy in December. This book is not only timely but it stands likely to have an enduring impact in a field that is struggling to make sense of whether referenda are a proper and prudent exercise of popular sovereignty, how to operationalize the notion of popular sovereignty beyond simple referenda, and how much fidelity should be given to referenda as one of many devices in the toolkit of constitutional change in our age of multilevel governance, be it in connection with subsidiarity, federalism or supranationalism.

Contiades and Fotiadou begin the book with a short Introduction to the workshop and the structure of the book. Their major contribution to the volume is a jointly-authored chapter in Part I, a discussion that could have doubled formally as an Introduction to the book but that assumes this role functionally. The chapter elaborates what they describe as a “synthetic” approach to the relationship between popularly participatory forms of constitutional change and the rules and objectives of formal amendment. Drawing from theoretical and practical perspectives, Contiades and Fotiadou identify criteria for evaluating how and when the people are and should be involved popular forms of constitution-changing. Their chapter accomplishes three necessary objectives for an Introduction: it situates the theme and the papers in the literature; it identifies the main arguments and fault lines in the field; and it sets a research agenda for further study.

The book is thereafter divided into five subsequent parts. In Part II, Paul Blokker and Jan-Herman Reestman inquire separately into the theoretical and historical dimensions of popular participation in constitutional change, Blokker with reference to a number of countries in Europe and Reestman focusing more squarely on France. Part III features papers by Thomas Fleiner and Claudia Josi on real-life lessons to be drawn from the Swiss and Californian examples of direct democracy; Switzerland, perhaps the world’s premiere referendal jurisdiction, and California, the site of recent tensions pitting majoritarianism versus fundamental rights. Parts IV and V offer a roadmap for the use and misuse of mechanisms of popular democracy. Björg Thorarensen draws lessons from the Icelandic example while David Farrell, Clodagh Harris and Jane Sutter dive into the Irish case. Jörg Gerkrath then exposes readers to referenda in Luxembourgh and Fotiadou returns with an additional chapter on referenda in Greece. Part VI closes the volume with two chapters, one each by Dario Elia Tosi and Helle Krunke on popular constitutional change in the European Union, the former investigating the success, failure and causes of Europe-oriented referenda, and the latter inquiring into the domestic use of direct democracy to reinforce local values in individual member states just as the Europeanization of its member states proceeds apace on a separate track. It is a short book at just over 200 pages but it nonetheless packs a punch in its coverage and in the returns one sees on the relatively small investment of time needed to read it from cover to cover.

Although the book is timely indeed, it leaves readers understandably unsatisfied, though it is no fault of the editors nor indeed of the contributors. The papers for this volume were first presented in December 2014, well before the referenda-related controversies arose after Brexit. We therefore are left only with questions about Brexit and its implications: Is a referendum too rough a mechanism to capture the nuance that a question like Brexit entailed? Are the people well served—and their representatives in government well advised—to hold referenda to begin with? Where a referendum is a political imperative rather than a legal requirement, how should we characterize the nature of the obligation or constraint on political actors to abide by the result of the referendum? And can large-scale popular referenda ever truly be merely advisory? The editors do, however, offer a general framework, higher principles and a basic approach for working through questions like these using their synthetic approach unveiled in chapter 1.

Readers will also be left understandably unsatisfied by the country coverage given in this volume. The editors missed an important opportunity to include new and understudied jurisdictions where popular decision-making has or may soon become a dominant modality of constitutional amendment, namely the countries of Africa, Asia, the Caribbean and South America. Jurisdiction-specific studies on countries in these regions would have enriched the volume and they would have moreover helped by their example to address the gap in the field of public law identified by Ran Hirschl: that our comparator countries are often the same ones, the usual suspects as it were, appearing time and again in studies of comparative constitutional law. True, this volume does bring attention to a few historically understudied jurisdictions—namely Greece, Iceland and Luxembourg—but in the main it is a limited comparative study of only some of the countries of the North Atlantic.

And yet all the seeds are there in the book to grow the ideas into future scholarly studies on participatory constitutional change. The chapters raise fundamental questions about the nature of popular sovereignty, the role of the people in reforming their constitution, how and when to credit constitutional changes as legitimate, and the ways we can measure the procedural and substantive legitimacy of constitutional changes that are authorized either directly or indirectly by the people.

I therefore recommend this book for three reasons. First, it offers an enlightening theoretical anchoring for the popularly-driven changes we are currently witnessing around the world. Second, the Introduction specifically and the entire book more generally highlight problems and inquiries that can be applied across jurisdictions in our continuing search for learning and understanding. And third, the editors and the contributors appear to have been on the same page from start of the project to its very last steps, because the result is a volume that is more than the sum of its chapters.

Suggested Citation: Richard Albert, 2016 Book Recommendation: Contiades & Fotiadou on “The People”, Int’l J. Const. L. Blog, Dec. 28, 2016, at: http://www.iconnectblog.com/2016/12/2016-book-recommendation-contiades-fotiadou-on-the-people

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Published on December 28, 2016
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