Constitutional History on Trial – Status Quo, Combined Methods and New Sources
In many countries, the rule of law, fundamental rights and the purviews of constitutional institutions are increasingly subject to restrictions, causing heated public debates in some of them. The numerous studies on this topic from the perspectives of legal scholarship and political science usually underrate historical factors or neglect them completely. Contributions from legal and, more narrowly, constitutional history yet lack, though legal history in particular has the potential to examine and critically reflect on the practice as well as the fragility of the rule of law over the longue durée.
The ahistoricism of current debates about the rule of law and related topics has deep roots in the precarious state of legal and constitutional history. The status quo is sobering. Legal history is a core subject at law schools, where, due to their largely practical orientation, it occupies a specialised niche. At the same time, legal history is also a subdiscipline of history, though it is not firmly established in history departments, with only scattered individual representatives. Real discourse on terminology and methods between legal scholars and historians takes place only occasionally. Larger collaborative projects are limited to a few interdisciplinary centres and research institutes.
However, in recent decades, legal history has drawn inspiration from other fields, especially from legal sociology and legal anthropology, new cultural and political history, gender studies, the law and literature movement, global history and the study of transnational phenomena. Numerous questions for an interdisciplinary constitutional history arise, including:
– How can we grant non-state actors proper consideration?
– What methods help to analyse unwritten or uncodified constitutions?
– How do constitutional norms relate to interpretation and practice?
– What patterns of meaning and interpretations of the world do constitutions represent?
– How does normativity relate to narration in constitutional texts?
– What social and religious norms compete with constitutions?
– How do underprivileged groups become subjects of constitutions, and what role do social movements play?
– How can we detach constitutional history from its national framework and develop it into a history of entanglement?
– What neglected sources should we analyse, and what familiar sources require re-reading?
The aim of Constitutional History on Trial is to bring together scholars from various disciplines and discuss methods of constitutional history of modern and pre-modern times. The point of departure is a broad understanding of constitutions as the basic orders underlying communities. All contributions should include both theoretical and empirical aspects.