Comparative Constitutional Design and Legal Culture
Studies in Comparative Law and Legal Culture series
Edited by Günter Frankenberg
Chapter 14: Constitutional transfers and experiments in the nineteenth century
Contrary to its reputation as the “dark age of constitutionalism,” nineteenth century Europe was an era of intense, at times feverish, constitution-making – in particular at the beginning, then again around the middle in 1848/9 and also throughout the last decades – witnessing an impressive array of constitutional projects in Europe (and abroad). In 1848/9 alone, forty new constitutions sealed successful or unsuccessful revolutionary upheavals all over Europe. Like their predecessors and successors they oscillated uneasily between the poles of revolution and restoration, constitutional monarchy and parliamentary democracy, monarchic and popular sovereignty as well as rule-of-law principles and royal prerogatives. Rather than recognizing the nineteenth century as a constitutional laboratory and tracing the pathways of constitutional projects, treatises on constitutional history and comparative constitutional law have until fairly recently tended to indulge in surveys of a universal or European constitutional history, often providing only a cursory treatment of this century, or operating with a focus that was either too broad, covering cultural history, or too narrow, such as histories of the state and of nation-building or of fundamental rights. The dominant historical reading of this century’s “constitutional moments” assumes a close nexus between constitutionalism, on the one hand, and revolution/liberation or restoration/reaction, on the other. Quite commonly, constitutional activity in the founding era and thereafter is regarded as translating ideas of the Enlightenment and the ideology of liberalism into normative orders, preferably republic, democracy, and rule of law, and following, however flexibly and with deviations, the teleology of gradual democratization.
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