THE REIGN OF CONSTITUTIONAL POSITIVISM: REVOLUTION RECONCEIVED IN THE NEW CONSTITUTIONAL AGE.

• Author: Kuo, Ming-Sung

CONSTITUTIONAL REVOLUTION. By Gary Jeffrey Jacobsohn & Yaniv Roznai. (*) New Haven, CT: Yale University Press. 2020. Pp. xii + 269. $65.00 (hardcover).

1. INTRODUCTION: WORD, PHENOMENON, AND IDEA

   Both "constitution(al)" and "revolution" are familiar examples of polysemy. Each can refer to what lies outside the world of social sciences as denoted in terms such as "human constitution" and "constitutional medicine" for the former, (2) and "planetary revolution" for the latter. Both of them can also refer to what interests social scientists most, such as "the United States Constitution," "the French Revolution," and other social phenomena--understood broadly. Thanks to the reification of constitution in the form of a grand master-text and the influence that it exerts on the juridico-political institutions, legal scholars are seeing less trouble with defining the scope of their studies when they refer to constitutions or matters constitutional. (3) Revolution has no such luck. It is as polysemous today as it was in, say, 1962, when the way to make sense of transformative progress in science was unsettled by Thomas Kuhn's paradigm-shifting work that includes "scientific revolutions" in its title. (4) Since then, we have continued to come across sexual revolution, media revolution, green revolution, and even "personal revolution," (5) among others. Constitutional revolution is another addition to this continually growing list. As the meaning of revolution varies, the significance of revolution as a word becomes less clear, even with the help of the "constitutional" modifier, for example. Each revolution variety is more than a set of words, but rather refers to a phenomenon or a set of practices individually or collectively experienced. Constitutional revolution is no exception. Then, what is the phenomenon of constitutional revolution?

   Gary Jeffrey Jacobsohn and Yaniv Roznai's Constitutional Revolution ambitiously takes up this question with a thoughtful conceptual framework. At the heart of this erudite work is "paradigmatic displacement, however achieved, of the conceptual prism through which constitutionalism is experienced in a given polity" (p. 34). Centering on "constitutional vision" (p. 34), constitutional revolution seems to denote "legal change that brings about a displacement in the way constitutionalism is experienced in a given polity" (p. 179), "marking the onset of a new departure in a nation's constitutional narrative" (p. 178). Thus formulated, constitutional revolution in Jacobsohn and Roznai's theory refers to a particular phenomenon in constitutional practice.

   Apparently, as acknowledged in Constitutional Revolution (pp. 23-24), what has already been framed as constitutional revolution in the literature may not share what the authors have in mind. (6) On the other hand, that which lies at the heart of their theory of constitutional revolution is not one monolithic constitutional practice. Rather, it includes social phenomena of which a given polity experiencing "a substantial reorientation in constitutional practice and understanding" is characteristic (pp. 20-21). Moreover, the social phenomena occupying center and front in Constitutional Revolution and their common characteristic feature can be characterized in terms other than revolution, such as fundamental reform or even "commensurate transformation." (7) Jacobsohn and Roznai's deliberate choice of the word "revolution" as their nomenclature to characterize orientation or vision changes in constitutional experiences across constitutional realms in Constitutional Revolution thus indicates an idea--constitutional revolution. (8) "What is the idea of constitutional revolution conveyed in Constitutional Revolution?" is the leading question of this Review.

   In this piece, I aim to make sense of the idea at the core of Constitutional Revolution, in light of the underlying social phenomena, and why such constitutional practices are associated with the polysemous word "revolution." I argue that the idea of constitutional revolution emanating from Jacobsohn and Roznai's theoretical framework mirrors constitutional positivism in recent constitutional scholarship--under which observation of constitutional phenomena is mediated by master-text constitutions and the attendant institutional practices, including judicial review and constitutional interpretation. (9) With the double move in Constitutional Revolution--from free act to changing identity and from lived experience to legal expression--in focus, I shall show that Jacobsohn and Roznai construct a notion of constitutional revolution around the systemic mutation of constitutional orders and its manifestation in constitutional master-texts and jurisprudence. Departing from the traditional idea derived from revolutionary experiences in the modern political project, Constitutional Revolution speaks to an emerging socio-political phenomenon in constitutionalized politics, and marks a paradigm shift--or rather an (anti)revolution, if you will--in the conceptual history of constitutional revolution.

   Part II first discusses the alignment of constitution and revolution in the quest for freedom. Part III identifies the departure from free act of agency for systemic mutation concerning identity in Jacobsohn and Roznai's idea of constitutional revolution. Part IV then looks into how the move from lived experiences to legal expressions in their identification of constitutional revolutions suggests an idea of constitutional revolution that mirrors constitutional positivism. Part V offers concluding thoughts on the delinking of constitutional revolution from freedom as the question of power and authority is mediated and thus obscured by the law in the constitutional project.

2. PROJECTS OF FREEDOM

   Both constitution and revolution have long been associated with the idea of freedom and related to each other in the modern political project of progress. (10) Before we tackle the team-up of constitution and revolution, how each of them pertains to freedom should be examined separately. Consider constitution first. As the modern world emerged from the intensified international armed conflicts in the eighteenth century, constitutions or other legal codes of fundamental importance differently entitled were quickly spreading. (11) Along with the objectives relating to various projects of state building was the promise of freedom. (12) Appealing to the legacy of immunities-granting medieval "charters," constitutions were proclaimed either to rally subjects around the state-building project or to calm civil unrest with the recognition of civil rights and liberties. (13) This corresponds to the idea of the Enlightenment: granted liberty and freedom, people--with the natural or divine gift of reason--were empowered to improve their own lives and the society. (14) Regardless of their authorship, constitutions were taken as the written proof of promised freedom that was considered essential to the self-improvement of humanity. (15) The world saw its first "constitutional age" in the nineteenth century. (16)

   The spawning of written constitutions was not the only phenomenon that featured in the nineteenth century. As Eric Hobsbawm told us, the period 1789-1848 was marked by revolutions. To be more precise, the period 1789-1848 introduced the "age of revolution," which continued into the twentieth century and has since cast a long shadow on modern political experiences. (17) Thanks to Hannah Arendt's classic work, we know that the said age of revolution reflects a curtailed history of modern revolutions with the historical significance of the revolution of 1776-1789 obscured. (18) While the modern variety of revolution began with the American Revolution, the modern tradition of revolution has been constructively imagined around the French Revolution and its progeny. (19) Embedded in this tradition, revolution points to the "constitution of freedom" through a forceful political change that not only brings about liberation from oppression but also leads to a new beginning in history. (20) Regardless of their less bright characteristics, revolutions moulded in the modern political tradition share with their forgotten American precursor one salient feature: the idea of freedom. To the oppressed and those who dare to attempt the end of their oppression, both of whom Arendt would call the "men of the revolutions," (21) the idea of revolution continues to sound the calls of freedom. Revolution is the means to the end--freedom. (22)

   After teasing out how constitution and revolution are each related to the idea of freedom, it is not hard to see how they have partnered to set out a long influential legacy in constitutional ordering: revolutionary constitutionalism. (23) While not all constitutions are revolutionary in character, (24) a revolution that fails to institute a constitutional form either degenerates into a (dis)order of permanent revolution tainted with political purge and violence or ends up being a failed coup, military and otherwise. (25) In this revolutionary tradition of constitutionalism, constitution and revolution move in tandem toward freedom, jointly constituting the political project of constitutional emancipation. (26) Entangled with the constitutional framing of political rule, all political revolutions are constitutional, if you will.

   Yet, just as not all constitutions result from revolutions, (27) they may even enter into a relationship of tension and conflict, competing with each other in finding the way to freedom. (28) As manifested in the Marxist tradition, constitutions are far from the blueprint for freedom. Instead, they are deemed complicit in the bourgeois subjugation of the working class and the perpetuation of the unjust capitalist social structure. (29) The coming of free society relies on the omnipotent power free of constitutional constraints. Only by revolution will the oppressed be...