
CONSTITUTIONAL REVOLUTION, by Gary Jeffrey Jacobsohn and Yaniv Roznai. New Haven and London: Yale University Press, 2020. pp. 384. Hardcover: $65.00. ISBN 978-0-300-23102-1.
Reviewed by András Sajó. Department of Legal Studies. Central European University PU. Email: Sajoand@ceu.edu
This book is a felicitous combination of two research interests: Gary Jacobsohn is famous for developing one of the most well known theories of constitutional identity, while Yaniv Roznai is rightly appreciated for his original monograph on (unconstitutional) constitutional amendments. They “understand identity as an interactive process whereby a constitution, much like a person, develops its distinctive character or individuality through engagement with its environment, within the broader context of its being” (p. 125). They agree with the philosopher Charles Taylor’s insight, “[M]y own identity crucially depends on my dialogical relation with others” (p. 125). This dialogical approach is central to the book: the issue is who participates in the dialogue.
The authors are not only interested in how far amendment enables the maintenance or furthers the development of constitutional identity, but also in its fundamental replacement in the form of constitutional revolution. In their account, “a constitutional revolution can be said to exist when we are confronted with a paradigmatic displacement, however achieved, in the conceptual prism through which constitutionalism is experienced in a given polity. In some cases, this achievement unfolds incrementally and without the benefit of the sort of dramatic rupture and follow-up usually associated with generic revolutionary activity” (p. 237).
Continuity of the constitutional system is a fundamental question of legitimacy. This classic legal position was presented by Hans Kelsen about one hundred years ago. The great Austrian legal theorist was of the view that legal revolution means the amendment (creation) of the constitution in a process that disregards the rules of amendment (revision, new constitution making) of the constitution in force. The authors recognize the merit of the formalistic position, but their fundamental thesis is that a constitutional revolution can be a substantive, long-term development that has its own legitimacy. Thereby, the authors oppose a very influential tenet in constitutional theory: Bruce Ackerman’s constitutional moment paradigm (and in certain respects Hannah Arendt’s views too). Their theoretical position is supported by a number of case studies that are offered in support of their theory. Some of these are relatively short, namely on the United States, South Africa, Ireland, and Japan, while separate chapters are dedicated to Hungary, Germany, India, and Israel. Hungary offers two formally legitimate (therefore formally not revolutionary) revolutionary constitutions. First, they moved from communist non-constitutionalism to a constitutional system via the amendments in 1989-1990, and, twenty years later, once again in a formally legitimate way, in accordance with the (poorly drafted) constitution in force. This second time the new Fundamental Law moved away from constitutionalism, creating an illiberal constitutional revolution. In Germany, the making of the Basic Law in 1949 was a one time event that offered a stable identity. The constitutional judiciary considered its task to sustain the results of the revolution. The authors’ critical remarks refer to the lack of flexible development, especially in matters of European integration. As to India, the record of Constituent Assembly remains contested, but the authors seem to endorse the view that the judiciary (relying on the doctrine of unamendability of the basic structure of the Indian Constitution) carried out the promises of a constitutional revolution with respect to equality. Finally, the Israeli model represents substantive constitutional revolution without formal constitution-making. In the Israeli case, the Basic Laws, which can be seen as chapters of a constitution in the making, did not, without radical judicial constitutionalisation, possess the supremacy and entrenchment ordinarily needed for a constitution. In addition, the enactment in the Knesset occurred without a constitution-making mandate.
The country studies rely on the extended analysis of a few judgments in light of the literature. This method is certainly adequate when presenting models of constitutional revolution, but this comes at a price.