—Bryan Dennis G. Tiojanco, Project Associate Professor, University of Tokyo, Graduate Schools for Law and Politics. Twitter: @botiojanco
[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]
Motivating Gary Jacobsohn & Yaniv Roznai’s Constitutional Revolution (2020) are a series of Machiavellian moments, times when a profound political crisis makes the birth or death of a free republic seem near at hand. “At the time of this writing,” they report, “Israel is experiencing a counterrevolution to the constitutional revolution, with the Supreme Court absorbing the most sustained political attack in its history” (at 217). In Hungary, their first case study, a “second constitutional revolution” had already turned the formerly liberal democracy into an illiberal authoritarian regime (at 89). In Germany the Federal Constitutional Court has “disturbingly positioned itself to become the designated instrument of German counterrevolution” against runaway European integration (at 116). And in India the “long democratic revolution” continually faces the counterrevolutionary trenches of traditional society (at 147). These sorts of Machiavellian moments have become commonplace across the globe. “By one estimate, about four or five constitutions are replaced with new ones every year” (at 62). And even without such a replacement, it is Jacobsohn & Roznai’s main thesis that a constitutional revolution not only “often proceeds incrementally, without a decisive rupture or violent usurpation”, but also usually establishes a “condition of disharmony” which “remains a continuing source of potential counterrevolution” (at 15).
Constitutional Revolution is hardly alone in confronting these moments. Since 2016, real-world events have pushed scholars around the world to ask questions such as how democracy dies, or ends, and how to save it. Together they have brought us to a worldwide Machiavellian moment, in the second sense of the term: the moment when methodical thinking about the sources of and threats to a republic’s stability makes its appearance.[1] Constitutional Revolution brings fresh light to this moment by refurbishing a couple of Machiavellian insights.
Constitutional Revolution cites Machiavelli only twice, both to start off chapter three. One exposes a historical irony. The other, the chapter’s epigraph, is a psychological point: those seeking to reform a free state should retain “at least the shadow of its ancient modes” (at 59), because people “always praise ancient times and condemn the present”,[2] and “are often moved more by things as they appear than by things as they really are.”[3] Both citations are to the Discourses on Livy, whose status as a classic of political theory, and perhaps of comparative constitutional law theory, is arguably unrelated to these citations.[4] The emphasis of the Discourses is rather on what Machiavelli calls ordini, which refers to “something very like the laws that define the constitutional order.”[5] Constitutional Revolution features a similar emphasis on the formerly underexamined interrelationship between the architecture and stability of a constitutional system, and is part of the worldwide Machiavellian moment precisely because of it.[6]
Machiavelli advocated a mixed constitution, where monarchic, aristocratic, and democratic forms of government are combined so that, “allocating to the kings, the aristocrats, and the people their respective roles”, “one keeps watch over the other.”[7] From this advocacy flows his “most original and controversial view of politics,”[8] one which his contemporaries had found “shocking”:[9] that it was continued sociopolitical conflict between the classes and the masses which made the Roman Republic stable, free, and strong.[10] This view repudiated both classical and Christian political theory’s utopian designs for maintaining social harmony and eliminating political conflict.[11] Similarly, Jacobsohn and Roznai’s thesis that “[t]he characteristic of constitutions prevalent in all forms of constitutionalism is a condition of disharmony that functions as the engine for change” (at 15) is at odds with liberal legalism’s utopian belief in a Dworkinian Judge Hercules who can find the best, right answer to even the hardest of cases.[12]
The condition of disharmony Jacobsohn and Roznai find in all constitutions features another Machiavellian insight which Isaiah Berlin teased out of the Florentine’s writings:
that ends equally ultimate, equally sacred, may contradict each other, that entire systems of value may come into collision without the possibility of rational arbitration, and that not merely in exceptional circumstances, as a result of abnormality of accident or error…but…as part of the normal human situation.[13]
Constitutional Revolution’s case studies reveal that constitutions enshrine ultimate ends which insurmountably contradict either each other or their society’s systems of value: Israel’s “dual commitments to democracy and Jewish identity” (at 12); India’s “dual commitment to socioeconomic transformation and liberal democratic rights” (at 155); Hungary’s “universalist liberal-secular values…and particularistic national-religious values” (at 216), etc. Like Machiavelli’s discovery of the normality of contradictory ultimate ends, Jacobsohn and Roznai find that the “more familiar” example of a constitution’s disharmonic condition is that of Germany, where “a tension or inconsistency in the constitutional order may lie largely dormant, occasionally emerging to establish the contours within which a difficult issue gets addressed, and receding from prominence after it passes from scrutiny” (at 118).
It is a credit to Constitutional Revolution that there is much more to be said about its Machiavellian ancestry. Machiavelli’s famous advice that “in order for a religion or a republic to have a long life, it is often necessary to bring it back to its beginnings”,[14] for example, resonates with the theme of constitutional redemption which runs through Jacobsohn and Roznai’s case studies of the United States, India, and Germany. Machiavelli was, in his day, unmatched both in his originality as a “philosopher of liberty”[15] and in his commitment to the cause of republican freedom.[16] While I disagree with Jacobsohn and Roznai’s main project of placing substance over process in our understanding of constitutional revolutions (I reserve my critique of this effort for another time), its insights enlighten our own Machiavellian moment in much the same way Machiavelli’s writings threw light on his turbulent times.
Suggested citation: Bryan Dennis G. Tiojanco, Jacobsohn and Roznai’s Machiavellian Insights for our Machiavellian Moment, Int’l J. Const. L. Blog, Sept. 7, 2022, at: http://www.iconnectblog.com/2022/09/jacobsohn-and-roznais-machiavellian-insights-for-our-machiavellian-moment/
[1] J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition vii-viii, 554 (Princeton: Princeton University Press 2009)
[2] Niccolò Machiavelli, Discourses on Livy 149 (New York: Oxford University Press 2008)
[3] Id. at 79
[4] Isaiah Berlin claims that Machiavelli’s works featured an “often excessively primitive” psychology and had “no historical sense”:Isaiah Berlin, Against the Current: Essays on the History of Ideas 73 (London: Hogarth Press 1979)
[5] Alan Ryan, On Politics 384 (Great Britain: Penguin Books 2013)
[6] See Tom Ginsburg & Aziz Huq, How to Save a Constitutional Democracy 170 (India: Oxford University Press 2019)
[7] Id. at 26
[8] Julia Conaway Bondanella & Peter Bondanella, Introduction, in Niccolò Machiavelli, Discourses on Livy xviii (New York: Oxford University Press 2008)
[9] Alan Ryan, On Politics 386 (Great Britain: Penguin Books 2013)
[10] Machiavelli, supra n.2 at 27–31
[11] Bondanella & Bondanella, supra n.8 at xviii; Ryan, supra n.9 at 386
[12] Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press 1986); Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press 1985); Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press 1978)
[13] Berlin, supra n.4 at 74–75
[14] Machiavelli, supra n.2 at 246
[15] Quentin Skinner, Machiavelli 48–77 (Great Britain: Oxford University Press 1981)
[16] Erica Benner, Be Like the Fox: Machiavelli’s Lifelong Quest for Freedom xxii (Great Britain: Penguin Books 2018)
Comments