The Curious Case of Brexit, Part 1: What Constitutes a Constitution?

Anytime I mention my favorite movies, Children of Men always comes up. If you haven’t seen it, it’s about the impending extinction of humanity. Fun stuff, right? Purely on its surface merits, it’s an excellent post-apocalyptic thriller, but it also functions on an allegorical level. Philosopher Slavoj Zizek explains the multiple levels of meaning in the movie in one of the special features of its DVD release, excerpted below. Even though Zizek is a crazy old Marxist, he still has some worthy insights into the film’s significance:

Zizek proposes that the UK’s lack of a written constitution makes it fundamentally different from other countries, and also makes it the only country where Children of Men could plausibly take place. That a country can govern itself without a written constitution might sound surprising to Americans, for whom our founding document is an object of reverence, but we should recognize that the US only needed to draft such a document because it established its political system through revolution. Until Enlightenment thinkers demanded that government be systematized in the light of rationally determined principles, there was generally little question that the “substance of tradition,” as Zizek puts it, was sufficient foundation for the rule of law.

In spite of Zizek’s Marxist orientation, his comments on Children of Men echo the godfather of English conservatism, Whig politician Edmund Burke (1729-1797). Burke rejected the Enlightenment dream of rationalizing and systematizing government, insisting that tradition alone should provide England with the basis of its polity. The fact that England had successfully resisted both absolutism and republicanism was sufficient proof to Burke that any effort to re-found its political system according to a specific set of declared principles would be folly. General principles of law could not be positively declared, but had to be discerned out of the messy particulars of centuries worth of individual cases.

The “substance of tradition” at the heart of the English political system is ineffable by nature: one can describe certain attributes of it, but cannot say definitively what it is; only by looking back on its history can one say what lies outside of it. “Revolution,” like that which Britain experienced in 1688, is only permissible in order to shear off artificialities forcibly grafted on without concern for tradition’s organic nature.

Americans in 1776 saw their revolution in just such a way: the Crown repeatedly denied them “the rights of Englishmen” to which they believed they were entitled, demonstrating that it had rejected its own political tradition and thus forfeited its legitimacy in the thirteen colonies. The Bill of Rights attempted to define this tradition, not to supplant it. The first ten amendments to the US Constitution enumerated rights, but could not create them (as they derived from nature), nor did they deny any rights left unmentioned (as stated in the Ninth Amendment). The US Bill of Rights was thus essentially a gloss on England’s unwritten constitution.

The term “constitution” (constitutio in Latin) originated in the Roman Empire to designate an imperial decree that had the force of law. The emperor’s authority to issue such decrees derived from his position as head of the Senate, which, while not a legislature in the modern sense, still had final say in matters of interpreting law. Beginning with the first Roman emperor, Augustus, constitutiones gradually superseded the senatus consultum as the form such legal rulings took. Imperial constitutions stood above ordinary legislation and jurisprudence, marking the boundaries of what the Roman state could and could not do.

When the Western Roman Empire dissolved at the end of the fifth century, the idea that a particular office, institution, or text defined the nature of the state faded away. Custom was now the only true sovereign, but what custom consists of is malleable. Following the Norman conquest of England in 1066, the Crown authorized judges to decide property disputes based on local, pre-conquest customs. Over time, and with royal support, certain customs of landholding and inheritance became standardized and generalized as “common law” across the entire kingdom.

Parliament emerged in the thirteenth century as an assembly of the kingdom’s main landholders — the Church and the nobility in the House of Lords, knights and burghers in the House of Commons — at which they negotiated with the Crown over taxation. Such negotiations offered landholders the opportunity to defend their common-law property rights against royal encroachment, while the legal expertise needed to do so gave parliamentarians influence over the judiciary.

By 1600, judges and lawyers had come to equate English common law with the Roman constitutiones: it determined the boundaries of what the Crown could and could not do. Unlike imperial constitutions, though, no one could decree common law. It existed beyond time, independent of the will of any individual ruler. In the aftermath of the Revolution of 1688, the Crown finally abandoned its absolutist pretensions to legislate by decree and formally recognized parliamentary sovereignty.

Through a process of six centuries of give and take between the Crown, jurists, and landholders, England arrived at the unwritten constitution celebrated by Burke. The Crown could no longer legislate independently, but only through Parliament, which was still constrained by the common law. Individual pieces of legislation can only elaborate elements of that law; its substance remains ineffable and timeless.

Without a founding document to define it, the UK’s constitution is a mystical body, a Neoplatonic form not of our reality, but actualized within it. In short, it is sacred. This is why the spiritual infertility allegorized in Children of Men produces its most profound despair in Britain: however secular British culture becomes, its political system draws upon theology more than any other in the Western world. Watching Children of Men today, it strikes me as prophetic, foretelling the political paradigm shift through which we are now living. And perhaps more than any of the other ongoing upheavals in the Western world, Brexit best reveals this paradigm shift for what it is: a spiritual crisis.

MORE TO COME SOON —

One thought on “The Curious Case of Brexit, Part 1: What Constitutes a Constitution?

  1. Pingback: The Curious Case of Brexit, Part 2: The Body of Britain | postwestphalian

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