The Reign of Constitutional Positivism: Revolution Reconceived in the New Constitutional Age

Abstract

In Constitutional Revolution, Professors Gary Jeffrey Jacobsohn and Yaniv Roznai survey comparative constitutional experiences around the globe and present a substantive conception of transformative constitutional change, which they call “constitutional revolution.” In this way, Constitutional Revolution sheds new light on the idea of revolution in constitutional theory and practice by challenging the conventional wisdom that holds procedural irregularity and legal rupture as the defining feature of constitutional revolutions. Engaging with Jacobsohn and Roznai’s substantive conception of constitutional revolution, this Review looks into the state of the idea of revolution in the light of the social phenomena that underlie the thesis of Constitutional Revolution and asks why such constitutional practices are associated with the polysemous word revolution. It argues 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. With the double move – from free act to changing identity and from lived experience to legal expression – in focus, the notion of constitutional revolution is constructed around the systemic mutation of constitutional orders and its manifestation in constitutional master-texts and jurisprudence. Thus emerges another counterrevolutionary theory of political order aspiring to post-political politics with constitutional revolution and freedom delinked. 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 thus revolutionizes the idea of revolution.

Keywords: constitution, the idea of revolution, freedom, political project, systematic mutation, constitutional positivism, counterrevolutionary theory