Constitutional Crossroads: Political Revolution in the UK and EU?

Abstract

The point of greatest interest in any thesis is often also its point of greatest vulnerability and controversy. Bruce Ackerman’s large and original thesis in Revolutionary Constitutions (Harvard, 2019) provides a good example. He draws a distinction between three ideal typical constitutional pathways; ‘revolutionary’, ‘pragmatic adaptation’, and ‘elite construction’. This new taxonomy provides a platform from which Ackerman argues, against a certain scepticism, that the revolutionary type – more particularly the revolutionary ‘on a human scale’ type – remains a live option in recent and prospective constitutional development. However, how far does his path-dependence approach help explain how and why the revolutionary type remains a viable option? Part of the answer lies in the stepwise trajectory set out by Ackerman, from revolutionary insurgency, through the constitutionalisation of charisma (in the constitution-making event itself) to the legitimation challenges involved in the normalisation of revolutionary politics. However, while this approach tell us how we move along the revolutionary path (more or less successfully), it is less adept at explaining how we get on that path to begin with. For sometimes, we come to the revolutionary path not from a pre-political platform of first foundations or from a context of polity destruction where a new start is imperative, but from another type of constitutional pathway – either ‘pragmatic adaptation’ or ‘elite construction’. These too have their own internal ‘path-dependent’ explanatory logic, but clearly the point where the paths cross, and a new path comes to be followed, is the point where Ackerman’s main explanatory framework runs out. Such ‘crossroad cases’ are not rare today, and they test the outer limits of what is possible by way of a collectively self-conscious political revolution on a human scale. In this paper I examine two important such cases that Ackerman refers to – namely the British ‘pragmatic adaptation’ case and the EU ‘elite construction’ case. In both examples, there are incipient movements towards political revolution and resettlement. The conditions under which this kind of ‘managed revolution’ is likely to happen repay close examination, including the analytical question of how precisely we should distinguish conceptually between such a managed political revolution and a mere turn to or further phase in constitutionalism as pragmatic adaptation or elite construction.

Keywords: law, constitution, EU, UK, crossroads, revolution, elite construction, pragmatism