—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.]
“An exercise in conceptual clarification.” This is how Gary Jacobsohn described his and Yaniv Roznai’s coauthored book, Constitutional Revolution.[1] For them the term “constitutional revolution is a descriptive—not a normative—concept”,[2] and so their use of it is “normatively neutral”;[3] it is not like coup d’état, a term which they say has “a negative normative connotation.”[4]
Now, I’ve learned a lot from Constitutional Revolution. That a condition of disharmony functions as an engine for constitutional change is a first-rate insight. But I disagree that constitutional revolution is a descriptive, normatively neutral term. Across the globe in the last half-century it has hardly been one.
Certainly not in the Philippines, for example. In the 1970s the dictator Ferdinand Marcos repeatedly marketed his destruction of Philippine democracy as a “revolution from the center”[5] “authorized by our Constitution”[6] while scholars of democracy studies classified it as an “executive coup”.[7] When in 1986 he was deposed after roughly a million-strong citizens peaceably stood off his tanks and soldiers, his successor President Corazon Aquino commemorated the four-day standoff annually as the “1986 Revolution”[8] while Marcos’s apologists called it a “coup d’etat” and not a “true revolution”.[9]
These tagline tussles were par for the course during that time, with American Cold Warriors like Richard Pipes arguing that “[a]lthough it is customary to speak of two Russian revolutions of 1917—one in February, the other in October—only the first deserves the name” because “October was a classic coup d’etat” and not a revolution.[10] But even nowadays, for instance in Egypt, “[t]he very language of revolution is a political choice”,[11] with staunch conservatives bending over backwards “to present a strong, reactionary regime as the fulfilment of revolutionary aspirations”.[12]
These tussles reflect the crucial importance of process to the legitimacy of a regime or constitutional change.[13] The sovereign people is the foremost principle modern democracies affirm.[14] We see this in the “We the People” preambles prevalent in written constitutions.[15] Often, however, the most which can be affirmed is a political proposition, not a sociological fact.[16] The people can be claimed to have actually exercised sovereignty only during extraordinary political events like a revolution:
In action, as indissociably lived and narrated, the people is given tangibility by what it makes happen; sociological doubts are silenced by the evidence of behaviors and activities on the move.[17]
This is why constitutional revolutions (as traditionally understood) enjoy a great deal of legitimacy: a lived and narrated experience of common sacrifice can back up the authenticity of their claim to be the work of We the People.[18] This counts for a lot in today’s world, as Jacobsohn and Roznai themselves point out:
In the modern era, the constitution of a nation is regarded as receiving its normative and universal status from the political will of the people to act as a constitutional authority, through which the entity “the people” manifests itself as a political and legal unity.[19]
The traditional understanding of constitutional revolution (which unlike a totalizing revolution aims to transform only some—not all—aspects of social and political life)[20] captures this dimension of legitimacy. Thus the main argument given for considering Marcos’s overthrow a coup d’etat and not a true revolution is that only a slender slice of the population had faced off against the dictator’s soldiers.[21] Pipes makes the same argument, saying that the capture of governmental authority in Russia on October 1917 was “by a small band, carried out…with hardly any mass involvement.”[22] Similarly, in Hungary the word for revolution is forradalom, which literally means a “boiling over of the masses,” as what happened during the celebrated Hungarian Revolution of 1956.[23]
Roznai regards Hungary’s constitutional transformation under Prime Minister Victor Orbán, from a liberal democracy into an illiberal authoritarian regime, as a “paradigm example” of a constitutional revolution, as he and Jacobsohn redefines the term.[24] That no boiling over of the masses can be claimed for this transformation does not concern them, as their redefinition shifts “focus from the process through which change occurs to the substance of the change wrought”.[25]
The last point hints at why I balk at the whole idea that there is some comparatist heaven where constitutional concepts can remain immaculate, untouched by normative connotations. “Law legitimates power”,[26] and so the term “constitutional,” much like the term “revolution,” is invariably caught up in struggles over legitimacy and power. Referring as they do to a persistently vague yet valued achievement similar to vaunted exemplars from across centuries and continents, these concepts will forever remain essentially contested, inviting “endless disputes about their proper uses”.[27] While scholars might wish to keep these concepts experience-distant, enabling different constitutional systems to be placed side by side so that they may each illuminate the others, their intimate involvement with issues of legitimacy and power unavoidably thrusts them into the common parlance of political contestation. Take Bruce Ackerman’s concept of a constitutional moment, for example.[28] Nothing could be more commonplace than the word “moment,” and yet tack on the adjective “constitutional” to it and you get a former Philippine Supreme Court Justice in a Senate committee hearing opposing a proposed charter change with the argument that “this is not the Constitutional moment for making it.”[29] Is this not even truer of the doubly loaded term “constitutional revolution”? Shall we tell Hungarians that what was attempted in 1956 is conceptually identical to what Orbán has accomplished in the last decade? Shall we tell Filipinos that People Power in 1986 — the most celebrated, seminal, and inspiring assertion of popular sovereign will in Philippine history — was as much a constitutional revolution as Marcos’s martial law proclamation in 1972?
Suggested citation: Bryan Dennis G. Tiojanco, There is no Comparatist Heaven of Constitutional Concepts, Int’l J. Const. L. Blog, Nov. 2, 2022, at: http://www.iconnectblog.com/2022/10/there-is-no-comparatist-heaven-of-constitutional-concepts/
[1] Gary Jacobsohn, in Constitutional Revolution, National University of Singapore Centre for Asian Legal Studies Virtual Roundtables on Asian Law Series, 11 October 2022
[2] Gary Jacobsohn & Yaniv Roznai, Constitutional Revolution 62 (2020)
[3] Id. at 237
[4] Ibid.
[5] Ferdinand E. Marcos, Revolution from the center: how the Philippines is using martial law to build a new society (1978)
[6] Ferdinand E. Marcos, The Democratic Revolution in the Philippines 3 (1974)
[7] E.g. Larry Diamond, Seymour Martin Lipset, & Juan Linz, Building and Sustaining Democratic Government in Developing Countries: Some Tentative Findings, 150 World Affairs 5, 14 (1987)
[8] Corazon Aquino, Administrative Order Nos. 12 (1987), 53 (1988), 103 (1989), 154 (1990), 209 (1991), & 258 (1992)
[9] Remigio Agpalo, Adventures in Political Science 240–241 (1996). See Remigio Agpalo, Ferdinand E. Marcos: a hero in history (2007)
[10] Richard Pipes, A Concise History of the Russian Revolution 113 (1995). See Nancy deWolf Smith, A Cold Warrior at Peace, The Wall Street Journal (New York, 20 August 2011)
[11] Jack Shenker, The Egyptians: A Radical Story 18 (2016)
[12] Id. at 12–13
[13] Simone Chambers, Democracy, popular Sovereignty, and Constitutional Legitimacy, 11 Constellations 153 (2004)
[14] Pierre Rosanvallon, Democracy Past and Future 79 & 82 (Samuel Moyn ed., 2006)
[15] Tom Ginsburg, Nick Foti, & Daniel Rockmore, “We the Peoples”: The Global Origins of Constitutional Preambles, 46 The Geo. Wash. Int’l L. Rev. 101, 119 & 121 (2014)
[16] See Rosanvallon, supra n.14 at 82
[17] Id. at 92
[18] Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (2019)
[19] Jacobsohn & Roznai, supra n.2 at 14
[20] Bruce Ackerman refers to constitutional revolutions as “revolutions on a human scale”: Ackerman, supra n.18 at 28
[21] Agpalo, supra n.9 at 240–241
[22] Pipes, supra n.10 at 113
[23] Victor Sebestyen, Twelve Days: The Story of the 1956 Hungarian Revolution xxvii (2007)
[24] Yaniv Roznai, in Constitutional Revolution, supra n.1
[25] Jacobsohn & Roznai, supra n.2 at 19
[26] Ackerman, supra n.18 at 1
[27] W.B. Gallie, Essentially Contested Concepts, 56 Proceedings of the Aristotelian Society, New Series 167, 169 (1956)
[28] Bruce Ackerman, We the People, Vol. 1: Foundations (1993)
[29] Maila Ager, Federalism may fragment, weaken this country, ex-SC justice warns, Philippine Daily Inquirer (Makati, 1 February 2018)
Comments