Why is Constitutional History Back in Fashion? - 5 minutes read


Over the last 50 years or so historians have experienced so many turns – linguistic, material, cultural, spatial, emotional, oceanic, global – that they might understandably feel a little dizzy. And anxious: there has been no fate worse than to find oneself on the wrong side of historiography. Woe betide any clodhopper who has failed to keep in step with the latest call from the cadres of progressive rectitude.

The starting point from which this intellectual conga has been snaking away was, allegedly, constitutional history, conventionally deemed to have dominated university history departments in Britain until as late as the 1960s. That rejected world is epitomised by William Stubbs’ three-volume Constitutional History of England (1874-78), an object of condescension – in particular, from those who have never read it. But the metaphor of the turn, coined by Richard Rorty in 1967, is not suggestive of a linear progress, and the cunning of historiographical reason sometimes works in unpredictable ways.


A curious phenomenon has recently become apparent: the rebirth of constitutional history. Of course, it never went out of fashion in the study of antiquity; or, for more obvious reasons, in that of the United States. In the latter case, though, most of the recent running has been made by legal historians, because mainstream historiography has been even more dominated than that of Britain by the many ‘turns’. The publication of The Cambridge Constitutional History of the United Kingdom (2023) has prompted public reflection in Britain about whether dismissing the subject as a dodo is actually a mistake, even in the case of the English constitution, long a butt of many historians’ disapproval. That Lord Sumption was the author of one such piece underlines that there is much common ground with legal history, which has never gone out of fashion in Britain, as elsewhere, but which tends to be discrete. Constitutional history is its intersection with government and politics. Sumption particularly commended Christine Carpenter and Andrew Spencer’s chapter on later medieval England, in which they consciously attempt to row back from the Namierite approach of Carpenter’s supervisor, K.B. McFarlane, to re-establish the centrality of ideas, which Namier had dismissed as flapdoodle. The commissioning of the book immediately preceded the most heated political and constitutional upheavals of recent years. But those dramas mean that readers will have a newly acute appreciation of crucial constitutional niceties, as Lord Reed pointed out at the book’s launch.


A successful political history of Britain during the period 2015-24 can be written only with very careful attention to constitutional matters; during that time the constitution was tested almost to breaking point by those who refused to recognise its unwritten conventions. The same is true of many other episodes in British history – for instance, the early 17th century, precedents from which were repeatedly invoked by actors, from the President of the Supreme Court down.


But a putative renaissance of constitutional history is not restricted to those of Britain, the US, and Greek and Roman antiquity. And young scholars are in the vanguard. Charlotte Johann has published important essays on the construction of a legal order in Germany between Napoleon’s administering a coup de grace to the Holy Roman Empire in 1806 and the establishment of the Kaiserreich in 1871. Natasha Wheatley’s The Life and Death of States (2023) explores the tensions between the overall sovereignty of the Austro-Hungarian emperor and the subordinate constitutional structures of the empire’s constituent polities. She goes on to examine both the catalytic effect of those tensions in the framing of modern international jurisprudence, and their influence in the states which emerged from the empire’s ruin. In Britain, scepticism has been expressed about the directness of any link between constitutional convulsions and renewed interest in its constitutional history. No such link is apparent in the cases of Germany and Central Europe. Nevertheless, young historians are suddenly delving into 19th-century constitutional and legal antecedents, into the intersections between political life and legal logic.


Readers of Stubbs’ History know that this is the spirit which animates the book. Far from expressing aboriginally English insularity, the migration of the Angles and Saxons from the Continent is both the determinative historical fact for its argument and a metaphor for the modern German thought which lies at that argument’s heart. Stubbs wrote with a luminous intelligence on countries other than England and over an enormous chronological range. He was no intellectual Little Englander. Though he differentiated between ancient and modern history, he remained, as a trained classicist, steeped in the former while writing about the latter. He must have been well aware of Aristotle’s analysis of the varieties of constitutional change, and of the first surviving work of constitutional history, Polybius’ Histories of the Roman republic. Polybius explained the unique success of Rome in the republican period in terms of the balancing of conflicting forces through its mixed constitutional structure, which proved adaptable. This balance staved off constitutional change for centuries. But the process would start almost immediately after the destruction of Carthage in 146 BC, of which Polybius was an eyewitness. He records that Scipio Africanus, the Roman general, clasped his hand and wept as they both looked on, and Scipio predicted the dire consequences for Rome. Polybius considered cyclical constitutional change – anacyclosis – inevitable in the long run.


He does not say that anacyclosis could also be a feature of the types of subject on which historians choose to focus. The recent reappearance of constitutional history suggests that that might nevertheless be the case: there is no constitutional ‘turn’, but a return. That reappearance addresses widespread interest in the political which too many historians have been inclined for too long to disparage as superannuated.


George Garnett is Professor of Medieval History at Oxford University, Fellow of St Hugh’s College and the author of The Norman Conquest in English History: Volume I: A Broken Chain? (Oxford University Press, 2021).




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