Counterfactual Constitutionalism: The American Civil War and the Framing of Australia’s Constitution

30 Pages Posted: 4 Apr 2011

See all articles by Helen Irving

Helen Irving

The University of Sydney Law School

Date Written: April 1, 2011

Abstract

Counterfactual history - the construction of imagined, fact-like scenarios arising from the alteration of antecedents and consequents in real past events - is a controversial business. Among supporters, counterfactualism is defended as serving a valuable heuristic function, and furnishing questions to drive research. But can the knowledge generated by counterfactual history have a real-world, functional application? Is it possible to use what we learn from counterfactualism, not just for future research, but to pre-empt or alter the future? Constitution-making provides us with one answer. This proposition is illustrated with a discussion of the use made of the American Civil War by the framers of Australia’s Constitution in the 1890s.

Keywords: constitutional history, comparative constitutionalism, counterfactual history, history and law

JEL Classification: K10, K30

Suggested Citation

Irving, Helen, Counterfactual Constitutionalism: The American Civil War and the Framing of Australia’s Constitution (April 1, 2011). Sydney Law School Research Paper No. 11/26. Available at SSRN: https://ssrn.com/abstract=1800484

Helen Irving (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
114
Abstract Views
839
rank
241,821
PlumX Metrics