Increasingly, illiberal and authoritarian governments are seizing upon the concept of constitutional identity in order to justify and vindicate their political projects in the face of external criticism. This contribution raises questions about what these invocations tell us about the normative value of constitutional identity. The authors argue that, in the European context of supranational legal integration, constitutional identity should not be seen as an unconditional source of value. Invocations of constitutional identity only deserve recognition to the extent that they serve the ideals of constitutionalism. Where constitutional identity is invoked as a normative argument, the normative expectation of constitutionalism is implied – claims from constitutional identity that stand at odds with the ideals of constitutionalism, in fact, invoke the former ironically and frivolously. Exemplary cases in which constitutional identity is invoked to justify forms of ‘illiberal’ constitutionalism – notably the Polish and Hungarian cases – should be considered abuses of the concept as they do not live up to the normative expectations which they evoke.

This conversation will address the crisis in the concept of constitutional identity, a concept which has been subtly articulated by Gary J Jacobsohn. Conceiving ‘crisis’ as ‘disharmonies’, he speaks of constitutional ‘identity’ in a dialectical relation as a culturally embedded core of varied practices of identification. The preliminary issue is whether, and how, the national and constitutional identity coincide. Second, we consider the matter of identity entrepreneurs and, third, examine the thesis of ‘abuse of constitutional identity’ and the dialectics of robustness and fragility of/in the identity of constitution. Finally, we attend briefly to some questions of related concerns raised by the distinction between ‘We, the people’ and ‘We, the nations’, in relation to the notions of identity.

The conclusion proposes alternative ways to think about Christian normativity, drawing on the concepts of polydoxy and religious autonomy from Alvin Reines, with additional support from Catherine Keller and Laurel Schneider, and the concept of theological disobedience, derived from Louis Michael Seidman’s notion of constitutional disobedience.

This chapter examines the development of public law in South Asia: a legal family that has been defined by its history of British colonialism and continued adherence to the common law legal tradition. It traces the evolution of constitutionalism in four countries – India, Bangladesh, Pakistan and Sri Lanka – since their independence from Britain, focusing on two common regional themes. The first is the judicialisation of politics through the adoption (or at least consideration) of the basic structure doctrine, which permits courts to define and enforce implicit limits on constitutional amendments. The second is the centralisation (and abuse of) executive power, which has imperilled democratic rule in all four countries. While neither of these developments is specific to South Asia, the interplay between them, resulting in separate spheres of unchecked judicial and executive domination, is perhaps unique to the region and warrants further attention from comparative scholars.

This chapter explores the current landscape of Latin American legal systems from a private law and public law perspective. The aim is to show the influences that have shaped each of these fields and their current state of development. The focus is on countries which are leading jurisdictions within the region, or that represent a particular trend or characteristic. Within the private law analysis, after a historical overview of the milestones in its formation process, some select topics are addressed. First, we consider how Latin American legal systems fit into the traditional categories of legal families; then, whether they can form a unique legal family; and, finally, current efforts to harmonise private law. The public law section centres on constitutional law and, in particular, on the New Latin American Constitutionalism (NLAC) movement. We identify the main features of the original NLAC Constitutions and then test them against the recent Chilean experience. The chapter concludes that interesting trends have developed within private and public law in the region but questions their distinctiveness and success.

For a variety of reasons, countries in Sub-Saharan Africa have retained the legal systems that had been imposed on them during the colonial period. The question that this chapter tries to respond to is whether, after six decades of independence, particularly after the fairly fundamental constitutional reforms that started in the 1990s, there have been any significant changes made to these legal systems. In other words, have the recent legal reforms resulted in the emergence of laws that are distinct and better suited to meeting the peculiar challenges of the sub-continent and have a distinct identity within or without the legal traditions they inherited? The chapter, among other things, examines the main trends in legal reforms, and highlights the nature and scope of legal changes in certain key areas. It is against this background that a comparative analysis is undertaken to assess the impact of the different legal reforms on the quality of justice and respect for the rule of law. The chapter concludes by pointing out that although there remains a clear common law/civil law divide on the continent and that no Sub-Saharan African legal system is emerging, there are some distinct sub-regional features, such as a special mix of Roman-Dutch/English common law in operation in southern Africa.

This chapter investigates the reverberations of the Oporto liberal revolution and Brazilian independence on the Portuguese colony of Angola in West Central Africa. Angola was the largest supplier of enslaved labor for recently independent Brazil, yet the ties between the two regions stretched well beyond the transatlantic slave trade. A cultural and social continuum connected the South Atlantic World, and the chapter argues that such ties acquired a political dimension in the wake of the Oporto revolution and Brazil’s secession from Portugal. To trace how Angola’s coastal elites responded to the end of Portuguese colonialism in Brazil, the chapter reconstructs the trajectory of a single individual, the Luanda born Domingos Pereira Diniz, who became the president of the Benguela Junta, a governmental body which endorsed a petition in which Benguela’s elite requested the right to become an overseas province of independent Brazil.

Contrary to the long-standing historical view that describes Brazilian independence (1822) as a peaceful pact among elites dominated by Emperor Pedro I, this chapter examines popular participation in this conflictual process. Recent scholarship has shown how elite divisions opened space for popular political actors, as did conflicts and military mobilizations in several provinces. The public sphere expanded by Portuguese constitutionalism encompassed broad sectors of society. Slaves understood the Portuguese constitution as a liberating document and used military mobilizations to pursue their interests. Indians under Luso-Brazilian rule demanded rights used the new language of citizenship to demand relief from labor and militia service while semi-autonomous groups aligned themselves with the contending parties to defend their claims to land. Widespread worries about the “classes of color” indicate the diverse ways in which free people of color’s demands rights and inclusion in the new polity threatened the status quo. While these popular challenges were largely defeated by 1825, they profoundly shaped the independence process and left a long legacy.

Revolutions sprang from a variety of causes rather than simply from Enlightenment. Iberia and Ibero-America absorbed whatever Enlightened ideas or practices responded to political, economic and social necessities. The Spanish and Portuguese governments sought thereby to tighten imperial control. Individual reformers, often independently of government, regarded the new ideas as instruments of amelioration. International conflicts and revolutionary movements in the United States and France, as well as internal tensions, introduced new factors and pressures. These accompanied the strains on both the Spanish and Portuguese governments during the war years between 1793 and 1808. The Portuguese government escaped the political collapse and crisis of legitimacy which befell Spain and its empire, and managed to reconstitute itself in Brazil. The Enlightenment had contributed greatly to the critique of Royal absolutism in both empires and of metropolitan dominance. A range of influential Enlightened figures emerged in each of the component territories of both monarchies. The roots of Iberian Liberalism may be traced to their ideas and actions. A counter-critique attacked Enlightened ideas along with Liberal constitutional forms. The ensuing polemic and its political manifestation, especially after 1814-15, blamed revolutionary activity on the influence of the Enlightenment.

Constitutions come in shapes and sizes. What do we actually mean by a constitution? Does this conception encompass all fundamental legal practices and norms for organising political societies’ legal and leadership systems – commonly denoted as ‘small c constitutions’? Or are we only referring to the so-called ‘large C’ constitutions: the official, formal legally binding document that countries proclaim as ‘Constitution. This chapter explores the different concepts, definitions and elements thereof. Whatever the definition or character of the document, a constitution will have to have a higher status than other forms of written law, Hans Kelsen held, otherwise it would not be a real constitution. Does that always hold true. The chapter also discusses constitutions as a belief system, and constitutionalism.

This chapters explores the question what the historical analysis from the previous chapters tells us. Although it is difficult to draw lessons from history the analysis shows the way rational and legal humanism have been responsible for the development of modern constitutions. The analysis also reveals different generations of constitutions, most of which have left some mark on present day constitutional thought and modern constitutions.

The colonial state’s institutionalized secrecy had produced an anomaly that reformers were keen to resolve. Britons – even those who prided themselves on their humanitarian dispositions – were seemingly unconcerned about the fates of millions of their fellow subjects on the subcontinent. To address this apathy and provide Indians with a greater role in policymaking, reformers attempted to construct an entirely new social formation that is the focus of Chapter 4: an imperial civil society based on inter-associational linkages. Early reformers in the metropole endorsed the establishment of societies in the Indian presidency towns that could provide reliable information on local conditions. Webs of contact also developed on an individual level, as veteran reformers in Britain advised members of the incipient Bombay Association on constitutionalist techniques. Intent on improving deteriorating race-relations in the 1870s, the East India Association continued to identify strategies to increase Britons’ awareness of Indian issues and facilitate the expression of native public opinion.

The British constitution is typically seen as not only a unique, but a uniquely conservative, set of political arrangements among the constitutions of the world. This characterisation stems from the constitution’s pre-modern origins and continuity over time, and its unwritten, traditional, and organic nature. This historical experience has been far from free of crises, fundamental changes (and reversals), or violent conflict. But the distinguishing feature of British constitutional history is the absence of a modern moment of revolutionary rupture, marking the shift of the state’s foundations from traditional rule to constitutional modernity and documentary constitutionalism.