Historical sub-disciplines do not always enter into dialog with each other. In the historical sciences in particular, constitutional history is located in a wide variety of institutes, from Eastern European history to Contemporary history. A conference in Munich from June 26 to 28, 2024, attempted to initiate a conversation not only between the different disciplines of history but, above all, with legal science.
The conference at the Historisches Kolleg in Munich was based on the question formulated in the CfP of how we can learn from history now that constitutions globally are under pressure. According to organizer YVONNE KLEINMANN (Halle/Munich), there was a deliberate decision not to limit the conference in terms of time or space, but to encourage an exchange between different disciplines on broad questions regarding amongst others the study of unwritten constitutions, the interpretation of constitutions, the contribution of non-state and underprivileged actors or the narration of constitutions.
During the three-day conference in the imposing Villa Kaulbach, the claim of applying history to present issues was hardly addressed, but rather there were in-depth historical discussions on a wide range of topics and methods. The disciplinary background of the participants was as broad as the topics presented, including, for example, Germanists and a Roman law expert, in addition to historians and lawyers.
In a first panel focusing on unwritten constitutions, PIERANGELO BUONGIORNO (Macerata) and THEODOR BÜHLER (Winterthur) presented very different methodological approaches for their respective research time. Pierangelo Buongiorno opted for a plural approach when talking about Roman constitution(s), although even the word constitution is difficult as the Roman “constitution” was a material one, respecting certain principles, which since the mid-republic were guaranteed by the senate. The unwritten constitution of the Roman Republic prevailed during the principate, as it was built upon older constitutional traditions. So that there was not a change of system but coexistence with the principles of the Republic.
Barbara Stollberg Rillinger emphasised the importance of rituals for the institutional order of the Holy Roman Empire, as norms lacked validity without the performative dimension.1 Theodor Bühler talked about these medieval rituals manifesting constitutional law. In his presentation on legal iconography, using images as a historical source to interpret law rather than a legal source itself, he thoughtfully explained how oaths, coronations and state representation were part of constitutional practice. Thereby, he showed a total of 22 pictures ranging from medieval paintings to modern-day oath practices.
How does context matter? This long-debated question dominated the debate on the second panel. CHRISTOPH KÖNIG (Osnabrück) proposed a philological method to analyze law and literature by comparing the reading practices of both, rather than applying one’s method to the other. Therefore, he interpreted Rilke’s 9th elegy and the German Grundgesetz for three different aspects: Authority, necessity and the “essence” or “nature” of a text. König made a strong point for the authority of texts, while Yvonne Kleinmann, who analyzed preambles of constitutions, focused on context, comparing the German Grundgesetz (1949) and the preamble of the Polish Constitution of 1952.
In a beautiful presentation, visualized with contemporary images, Kleinmann interpreted both preambles and their drafts as well as the context of their creation. Preambles only rarely have normativity but matter for their narration, contextualization and interpretation of a constitution. With an approach through law and literature studies, the stories preambles tell were analyzed. While the German Grundgesetz has a preamble vague on guilt and crimes during the Nazi period and is in general rather short and abstract, the Polish preamble was described as a “battlefield” by Kleinmann, where conflicting interests of Polish nationality and Soviet ideology become visible. Both constitutions did not evolve in a sovereign state. While the German constitution was influenced by the occupying Western Allies, the Polish constitution was created through Soviet interference.
ENDRE SASHALMI (Pécs) explained how the theory of absolutism shaped Russian constitutional history in the 18th and 19th centuries. Absolutism, the established form of rule in the Russian Empire since Peter the Great, was not abandoned even by the first so-called "Fundamental Laws" of 1832 and the Constitution of 1906. Western ideas of the constitutional state, which had been received in Russia from the 18th century onwards, were reinterpreted in terms of the tsar's omnipotence, and constitutional acts were understood as voluntary self-restriction and the state as an object under the rule of the tsar, an attitude that, according to Sashalmi is still present in Russian constitutional thought.
Chair JANA OSTERKAMP (Munich) asked how this formal constitution could be combined with constitutional practice, which was addressed by the second presentation of this panel. Also, ARTUR KULA’S (Warsaw) lecture was shaped by competing ideas of Western and Russian constitutionalism. He dealt with legal debates on the periphery of empires through the Free City of Krakow (1815-1848) where a constitution was octroyed after the French conquest as well as following the Russian occupation in 1815. Nevertheless, the constitution was deliberately referred to in political debates by actors of the city. This focus on republicanism was also intended to preserve "Polishness" as a Polish state did not exist after partition and occupation. Kula compared the arguments of the Polish representatives with the later Grundnorm formulated by Hans Kelsen.
The two other lectures in this third panel on the overarching theme of concepts in constitutional history focused on constitutional historiography in the 19th century, the German influence on English constitutional history, and the importance of medieval constitutions in said historiography. FATIH DURGUN (Istanbul/Bochum) illustrated Ranke's influence on the two historians Georg Waitz (d. 1886) and William Stubbs (d. 1901). Both were historians, who attached great importance to constitutional history but did not focus on the modern constitutions, but rather on the medieval period. Stubbs for example, who wrote an English constitutional history, emphasized the common teutonic past of Germany and England.
SEBASTIÁN PROVVIDENTE (Malibu) showed how historian John Neville Figgis (d.1919) presented alternative methodological suggestions for English constitutional history against the Whig narrative then focused on the Glorious Revolution of 1688 as the ultimate point of historical development, as well as the Hegelian strand that incorporated those opposing the constitution as participants in historical evolution. Figgis included marginalized political traditions as for example ecclesiology in a book called “state and the church”, that Provvidente recently translated to Spanish with Pablo Ubierna.
What is the connection between women in Weimar, Germany and Non-profit Organizations in the post-WWII USA? The fourth panel of the conference dealt with actors hardly mentioned in the other presentations, as MARION RÖWEKAMP (Mexico City) pointed out at the beginning of her talk on the Weimar constitutions “unfulfilled promises for women’s citizenship rights”. The Weimar Constitution of 1919 granted women equal rights in two articles: Art. 109, that declared the equality of women, and article 119, which declared equality in matrimony but at the same time protected the family. Röwekamp outlined the debates that were held in parliament in the 1920s by women elected there on family law and how the demands of the women's movement and the rights guaranteed by the constitution were undermined in legislation. In the presentation, hope and disappointment with the Weimar Constitution were reflected by drawing on a wide range of women's rights activists, from Gertrud Bäumer to Anita Augspurg.
BENEDIKT NEUROTH (Leipzig) spoke about the links between law and society on the basis of "privacy" in US fundamental rights. These were shaped by non-profit organizations and individuals who organized lawsuits and shaped the content of privacy law. Three phases of the "privacy struggles" before the US-American Supreme Court were portrayed. From lawsuits about contraception and freedom of expression in the 1950s to surveillance and abortion litigation in the 1970s to the Dobbs decision on abortion in 2022. Constitutions are not only enforced but also interpreted by courts and other actors. This also links these two lectures, which did not deal with the creation of constitutions, but with ongoing constitutional practice and interpretation, in which otherwise excluded actors can influence constitutional law.
The last panel of the conference dealt with a broad temporal arc that was located on the edge of empires and in the (post-)colonial world. KOSTAS ZIVAS (New Haven) explained how constitutional debates were conducted in the Duchy of Warsaw after the occupation by the Russian army in 1813. Napoleonic France had given the duchy a constitution after the conquest in 1807. Until a second constitution was established by Alexander I after the Congress of Vienna in 1815, Polish representatives referred to the 1807 constitution to criticize the actions of the Russian occupiers. Zivas explained how even Russian officials invoked the constitution. He pointed out that the Russian Empire relied on law just like all other empires to gain control and warned to conflate law with lawfulness as a big part of the picture is missed when thinking of the occupied Dutchy of Warsaw as a lawless place.
MOIZ TUNDAWALA (Oxford) looked at the formation of constitutions in India and Pakistan, promoting a historiography that distances itself from older narratives that place the blame for partition on either the Pakistani Muslim League or the Indian National Congress. Instead, he explores contemporary concepts of federations through Hannah Arendt's theory as well as in concrete Indian and Pakistani debates, for which he draws on contemporary authors from both sides and illustrates their ideas on a possible federation. The third level of actors are Dalits who, as a minority, would not have benefited from a federation. This is more productive than the comparison of India with the German or South African constitutions, which, according to Tundawala is prevalent in research.
JAKOB ZOLLMANN (Abu Dhabi/Berlin) posed the question of the extent to which legal ideas travel. He presented constitutions in the history of sub-Saharan Africa on the basis of cases spread over a large period of time. The constitution of Liberia in 1847 and the constitutions issued by colonial powers in the late 19th century. A special focus lay on the 1996 constitution of South Africa, in whose creation many legal experts, also from Germany, were involved, with the idea of legislating democracy into practice through western legal concepts without considering South Africa's legal reality. This must be taken into account, Zollmann appealed, when criticism of the constitution as part of legal imperialism is voiced in South Africa today.
The conference, as Yvonne Kleinmann emphasized in the concluding discussion did not attempt to present a universal history of constitutional law with its wide range of topics, but rather to bring various sub-disciplines into dialogue. In the final discussions, it was critically noted that the claim to talk primarily about methods was not always fulfilled. However, debates on methods ran through the entire event. A wide variety of approaches were balanced, from an intellectual history focused on academic writers to analyses of constitutional practice methods were presented and intensively discussed, albeit not always explicitly. These intensive debates were made possible by large overlaps in content and common questions that arose despite the different spatial and temporal foci. For example, the questions of sovereignty, constitutions in (semi-)peripheral space, or non-state actors ran through the various panels, which led to a lively exchange and joint abstraction at this highly successful event.
Conference overview:
How To Consider Unwritten Constitutions?
Chair: Yvonne Kleinmann (Halle/Munich)
Pierangelo Buongiorno (Macerata): Principate and Roman Constitution: Between History and Historiography
Theodor Bühler (Winterthur): Vom Nutzen der Rechtsikonographie für die Staats- und Verfassungsgeschichte
Normativity, Narration And Interpretation
Chair: Maximilian Schuh (Berlin/Munich)
Christoph König (Osnabrück): “Having to Be Human”: On Necessity in Rilke's Ninth Duino Elegy, with some Reflections on Understanding in Jurisprudence and Literary Studies
Yvonne Kleinmann (Halle/Munich): Beyond Normativity? About Preambles of Constitutions in Comparative Perspective
Concepts Of/In Constitutions
Chair: Jana Osterkamp (Augsburg)
Endre Sashalmi (Pécs): Constitutionalism in Russia versus Persistance of Historical Legacy, 1700–1832
Artur Kula (Warsaw): The Spirit of the Constitution. The Free City of Kraków and its Entangled Republicanism, 1815– 1846
Fatih Durgun (Istanbul/Bochum): Revisiting Rankean Influence on Early Professional Constitutional Historiography: The Case of Georg Waitz and William Stubbs
Sebastián Provvidente (Malibu): Constiutionalism – a History of a Concept: John Neville Figgis on the Medieval and Modern Devide
Powerless constitutions? Developing Constitutions?
Chair: Mieke Roscher (Kassel/Munich)
Marion Röwekamp (Mexico City): Constitution on Paper: the Weimar Constitution and its fulfilled promises for women’s citizenship rights
Benedikt Neuroth (Leipzig): How non-profit organisations shaped privacy claims in the USA in the 1960s and 70s
Beyond The National: Imperial And Colonial Settings
Chair: Yvonne Kleinmann (Halle/Munich)
Kostas Zivas (Yale): Constitutional Continuity in Russian-Occupied Duchy of Warsaw and the Kingdom of Poland (1813-1817)
Moiz Tundawala (Oxford): From a federation to a nation-state: self, other and stranger in the Indian founding
Jakob Zollmann (Abu Dhabi/Berlin) Exporting/importing constitutions? Ideas and practices as seen in anglophone African history
Note:
1 Barbara Stollberg-Rilinger, The Emperor’s Old Clothes. Constitutional History and the Symbolic Language of the Holy Roman Empire, New York, 2015, 270–272.