Historical Sociology and the Antinomies of Constitutional Democracy: Notes on a Revised Approach

Abstract

This article outlines ways in which more extensive use can be made of historical-sociological methods in legal inquiry, especially in the analysis of constitutional law. It responds critically to other sociological accounts of constitutional law, claiming that they have only insufficiently reflected the social origins of the norms incorporated in constitutional law, and they have tended to replicate a simplified legal construction of the constitution as a vector that translates political decision into legitimate form. As an alternative, this article explains that historical methods bring greatest benefit in constitutional analysis because they allow us to look beyond express constitutional functions, and so to explain the reasons why, in its classical form, constitutionalism did not provide simple and reliable foundations for the legitimation of politics and law. Historical analysis of constitutions in fact has particular value in that it brings to light the deep antinomies in constitutional patterns of government, and it illuminates the ways in which constitutionalism often reflects a deeply conflict-laden mode of legitimacy formation. At the core of this approach is an attempt to question the binary model of the law/politics relation in sociological discussion of constitutionalism, indicating that, to be fully sociological, such analysis needs to renounce this essentially legal, textual precondition.