Temporality, emotion and legitimation

To frame the shift from a past-oriented to a future-oriented constitutional theory as responses to different emotional experiences of time, I will first consider the emotional experience of time and its role in processes of legitimation.

Temporality is not a neutral ‘spatial’ line in which to allocate events: on the contrary, temporality is a human, embodied and communal experience. Lazar argues that ‘time itself’ cannot be experienced; all human experience with temporality is mediated. While Lazar focuses on modes of mediation that refer to and quantify the passage of time, I highlight the emotional filter of experience. This means that the experience of time is not objective or neutral, but subjective, historically and culturally contingent.Footnote ⁶ Lazar contends that if there is such a thing as ‘time itself’ or an ‘objective’ temporality, it is not with this external time that we engage in our individual or collective experiences. We experience time through, among other things, clocks, daylight or the crowing of a rooster. However, it is not only through technologies of counting the passage of time that we engage with temporality. I argue that temporality is also experienced through emotion, stirring, confirming or creating feelings of anxiety, security, melancholy or optimistic anticipation. Emotion, in this context, is the mediator that structures our experience of time as time itself.

Emotion is here understood as a process that is both conative and cognitive: an embodied knowing of the world. In other words, it is by judging something to be dangerous (whether that judgement is correct or not) that I am afraid of it; and it is only through my fear that I can recognise danger.Footnote ⁷ In terms of temporality, it is through this conative and cognitive process that we experience time. In the context of the nineteenth century, if time seems to be accelerating and if it is being known as disruptive and unstable, it is because acceleration, disruption and instability were felt; if time felt accelerated, disruptive and unstable, it is because it was known as such.

That time is relative to the individual experience has been studied and established in psychoanalytic scholarship.Footnote ⁸ But time is also relative in the collective and communicative dimension of experience. It is relative because we experience it through emotion. It is because emotion is communicable and experience is shared that we can talk about a collective emotional experience of time. This collective emotional experience of time, in turn, informs and is informed by processes of legitimation.

By a ‘collective emotional experience of time’, I mean the points of convergence and identification that can be found in diverse cultural, literary and historical articulations of temporality in the West throughout the nineteenth century. Rather than suggesting that the emotional experience of time is uniform, even in its collective dimension, what I aim to highlight are the emotional components of these points of convergence.

That which various studies on modernity call ‘acceleration’,Footnote ⁹ the ‘shared feeling of living in a revolutionary age’,Footnote ¹⁰ the ‘break with the past’Footnote ¹¹ or the ‘melancholy for the stability of the past’Footnote ¹² refers to an experience of time that cannot be entirely (if at all) explained without recourse to something less-than-conscious, something I am here naming emotion. Whether articulated in text, image or normativity, what the category of ‘collective emotional experience of time’ aims to highlight is the commonality and communicability of traits of an experience that happens not purely in the realm of ‘justification’, but are not entirely identifiable within a logic of ‘discovery’ either: it is an experience that happens at the less-than-conscious and the conscious levels. The two are indissociable.

Studies relating temporality and constitutional theory, such as Parker’s analysis of originalism and the re-insertion of constitutionalism in history post-World War II,Footnote ¹³ and Forbath’s study of the ‘politics of history’ in ‘constitutional change’,Footnote ¹⁴ show that the accusation that lawyers produce a ‘law-office history’ (the deployment of history for purposes of legitimation of continuation, creating a past that ‘serves’ the present) is not always accurate.

Parker indicates that the historical concern of constitutional theory in the twentieth century made for a recognition that history is human-made, and for a shift in constitutional focus from ‘truths, ends’ to ‘means, methods, procedures and processes’.Footnote ¹⁵ This is a consequence, among other elements, of the recognition and acceptance of uncertainty: foundational history must be replaced with antifoundational history when a direction can no longer be found. The twentieth century, Parker points out, saw the same antifoundational history dismantle the idea that law was composed of ‘truth, morality, logic and rationality’.Footnote ¹⁶ This is also part, and a consequence of, an emotional experience of time: first, the nineteenth century abandons foundational history when a history of continuities is replaced by one of discontinuity, replacing it with ‘truths’ – which are a-historical; second, although not the object of this article, twentieth-century constitutionalism must abandon timeless truth and instead turn to regulating the processes of making and changing the constitution.

The emotional experience of time also plays an important role in understanding constitutional historiography. Allowing for a past that is contingent and leaves the future open-ended, the historian, as opposed to the legal historian, produces a more future-oriented work, Forbath concludes in his analysis of Ackerman’s We the People: Transformations. Footnote ¹⁷ That is because the legal historian is more concerned about the past as binding. This evidences the claim to a-historicity that appears in the constitutional debates of the seventeenth and nineteenth centuries: rather than a claim for a contextualised, contingent past that allows for different possible futures, the legal historian seeks to control the future through present claims of an a-historical past. Whether this a-historical past takes the form of a past that is ‘immemorial’ in the seventeenth century, or of the timeless truth of the nineteenth, law’s claim for stability requires distance from historical contingency.

In ‘Temporality and Liberal Constitutionalism’, Dann brings temporality to the forefront of constitutional debates. By recognising that liberal constitutionalism shaped and was shaped by conceptions of past, future, sequence and pace, he develops a framework to analyse these four categories in contemporary constitutional theory. Dann begins this discussion by attributing a future-oriented character to liberal constitutionalism: rather than being bound by the past, liberal constitutions open space for the future to be shaped by the majority. The tension between allowing the law to be shaped by the majority and guaranteeing security and continuity makes itself present still.Footnote ¹⁸

Considering Dann’s investigation of the role of temporality in the constitutional debate through the lens of the emotional experience of time, I propose a new lens for understanding the future-orientedness of modern liberal constitutionalism.

Analysing crises and processes of legitimation, ‘[c]laims to legitimacy’, says Lazar,

The nineteenth century, characterised by a ‘break with the past’, or ‘the end of history’,Footnote ²⁰ saw the first well of legitimation Lazar refers to, that is, the recourse to the familiar, to the past, become increasingly less helpful than the second. Within an emotional experience of a time of disruption, where continuity and tradition once dominated, claims to the capacity to ‘maintain just order and security’ became more important than the ‘order that is already accepted as legitimate’.Footnote ²¹

This is what Körtvélyesi recognises in his comparative study of the Hungarian and the American constitutional processes:

Edelstein analyses the legitimation of revolutionary regimes as a legitimation in the ‘future perfect’, where non-elected regimes, not being able to rely on the approval of the majority, instead placed their claims to legitimacy in the future achievement of order and ‘progress’, which Edelstein characterises as ‘prospectively retrospective’ legitimation.Footnote ²³

The emotional experience of time thus shapes the rhetorical framing that participates in the legitimation process of liberal constitutionalism in its future-orientedness.

Temporality is not regarded here as a naturally occurring unidirectional line in which events can be allocated. This ‘spatialised’ view of time has been criticised by studies in law and temporality, ranging from Mawani and Grabham to Chowdhury, van Oorschot and Lazar.Footnote ²⁴ These different accounts cannot be unified into one definition of temporality, nor is providing a definition of temporality the aim of this article. They show, however, certain common traits: time as malleable; time as created by and creator of law; and time as an experience.

Analysing the idea of ‘social time’ from DurkheimFootnote ²⁵ and through anthropological studies of time that draw from and at times challenge this notion,Footnote ²⁶ Greenhouse indicates that ‘anthropological writing on social time naturalizes social practice by refashioning time as the aggregate time sense (rather than the collective representation) of people who experience time the same way – as motion, moments, repetition, consciousness of mortality, and various forms of activity’.Footnote ²⁷ Questioning this, Greenhouse points to the creative aspect of law, administration, bureaucracy and the State in relation to time: ‘social time’ might be better understood not as the totalising ‘concept of time’ that unites and mediates individual experiences of time, but as arising from ‘the temporal assumptions embedded in specific state practices (…) and through a variety of executive, legislative, and judicial powers’.Footnote ²⁸

It is my argument that besides the mediating devices that allow us to ‘count’ time, the experience of time is mediated through emotion; that is, the experience of time is an emotional experience. In this role of creating and mediating time, the time of the State as constitutive of this ‘social time’ is mediated, too, by emotion.

Nineteenth-century constitutionalism could not be past-oriented because the nineteenth century no longer had access to a past that would flow seamlessly into the future. This is not to indicate an univocal and unidirectional causal connection between the emotional experience of time and nineteenth-century future-oriented constitutionalism. On the contrary, as much as the emotional experience of time underlies the future-orientedness of nineteenth-century constitutionalism, nineteenth-century constitutionalism creates the very break with the past that characterises this emotional experience of time.

Nineteenth-century English modernity was marked by the effects of the French Revolution, by the fast-paced industrial, technical and scientific developments, and by the process of urbanisation that accompanied industrialisation. Considering the nineteenth century as a time of disruption, of an anxiety about the future and an emphasis on the ideas of progress and individualism means to consider temporality in its emotional dimension. It means to consider this experience as the result of the conative and cognitive process of recognising time as disruptive and therefore feeling anxious about it; and recognising time as disruptive because we feel anxious about it.Footnote ²⁹

The French Revolution, according to Fritzsche, was an unprecedented reality, leaving historians, journalists and political commentators at a loss. He attributes this to the unfamiliarity of the present and the impossibility of reaching into the past to inform this unknown reality. This, according to him, left the nineteenth century stranded in the present, claiming for modernity ‘the special consciousness of transition and indeterminacy’.Footnote ³⁰ There was ‘a history of the new, and it prepared people to see themselves not simply as contemporaries, but as inhabiting a particular time and place, a quite particular context, which is familiar and makes preceding epochs and periods unfamiliar’.Footnote ³¹

The particularity of acceleration that Koselleck identifies in modernity is one that relates to ‘progress’. Acceleration, Koselleck notes, is ‘old’ and refers to a framework of repetition apparent in political and constitutional crises. The acceleration brought by the French Revolution is the kind that, he writes, ‘draws on something long familiar, merely seeing it as taking place in a much shorter time period’.Footnote ³² It is the industrial revolution that brings about the experience of a new time. The acceleration of time towards a new order, the acceleration that is produced by the political crisis of the French Revolution, is one that simply shortens the time-span of political change. But the singularity of the experience of acceleration in modernity, as compared to the acceleration towards the Apocalypse that, too, is ‘old’ and characteristic of Christian tradition ‘is that the end was no longer approaching more quickly; rather, compared to the slow progress of the previous centuries, the current steps of progress come about ever more quickly. The telos of mastering nature and organizing society more justly became a sliding goal and every over-ambitious intention lent itself well to being interpreted as long-delayed progress’.Footnote ³³

Although recent studies on the French and the industrial revolutions point to less drastic discontinuities than generally assumed in scholarship, these events have left ‘cultural marks’Footnote ³⁴ that represent and contribute to the emotional experience of ‘acceleration’.Footnote ³⁵ It is to this acceleration in the name of progress that the romantic literary movement responds.

This article focuses on the ‘cultural marks’ of the industrial and French revolutions that added to the ‘shared feeling’ as described by Berman ‘of living in a revolutionary age, an age that generates explosive upheavals in every dimension of personal, social and political life’.Footnote ³⁶

Fiction provides one lens through which to identify the experience of time in the nineteenth century. I borrow from Koselleck’s analysis of fiction as constitutive of and constituted by ‘historical reality’Footnote ³⁷ to consider constitutional theory as constitutive of and constituted by the emotional experience of time. In the same way that the collected narrated dreams at the eve of the Second World War that Koselleck refers to at the same time ‘point to the conditions’ that made them possible and ‘are modes of implementing’ the terror they represent, legal and constitutional theory ‘point to the conditions’ that made them past- or future-oriented and ‘are modes of implementing’ an emotional experience of time as continuous or disruptive.

Highlighting the always-present distance between experience and their linguistic expressions, Koselleck provides a good framework to the role of fiction as a historical source: the historian is always looking for something that is beyond the text, ‘what constitutes historical reality is not only decided on the methodological level of source control, but already occurs whenever the attempt is made to articulate this reality linguistically’.Footnote ³⁸ The gap between experience and its linguistic articulation is what approximates history and fiction, but it is also what allows fiction to be a window of exploration of experience.

Within this framework, one can understand romanticism as symbolically representative but also constitutive of the emotional experience of time in the nineteenth century. As proposed by Bode:

Romanticism appears here as a response to the modern emotional experience of time. It is my claim that so is the future-oriented character of nineteenth-century constitutionalism.

Time as a destructive force appears in nineteenth-century romanticism in many different, and sometimes contradictory, forms. Percy Shelley’s Ozymandias is one example of the danger of the passage of time, destroying even the mightiest king; Edgar Allan Poe’s The Pit and the Pendulum depicts Time himself as the executioner; the horror of repression in Blake comes alongside the torture of industrialisation; Coleridge discussed the ‘problems of commerce, war and sexual exploitation’Footnote ⁴⁰ in his works; Mary Shelley’s Frankenstein as the first science-fiction novel questions the myth of origin, warns against the pursuit of progress at all costs and materialises in the creature the encounter of past and present, alchemy and galvanism, dead body parts and new life; Walter Benjamin famously analyses Klee’s Angelus Novus as representative of history being carried by the storm of progress; the image of the train in Adelbert von Chamisso’s ‘Das Dampfroß’ (The Steam Steed) prefaces and illustrates Koselleck’s analysis of the acceleration of time in the nineteenth century; and the image of the ruin represents the nineteenth century ‘stranded in the present’ for Fritzsche.

Considering fiction as a symbolic representation of experience,Footnote ⁴¹ and considering the romantic movement as a response to the experience of the nineteenth century, ‘acceleration’, or what I call the emotional experience of time, allows us to also insert the shift from a past-oriented to a future-oriented constitutionalism as a response to the experience of temporality. In other words, we need to look at this shift as inserted in, but also constitutive of, the experience of a time when a history of continuity is replaced by one of dis-continuity and constant change. The romantic longing for a past that flows seamlessly into the present, and the sense of instability and anxiety about the future, are therefore also present in the nineteenth-century constitutional debates that will be analysed in the third part of this article.

The sword giveth and the sword taketh away: ‘time out of mind’ and the ancient constitution

Considering the experience of time as an emotional experience, and considering that legal and political processes of questioning and creating legitimacy are informed by emotion, this article frames the constitutional debates of the seventeenth and nineteenth centuries as partly responding to the experience of time. This section will explore Sir Edward Coke’s defence of the English constitution, like his defence of the common law, as reliant on the continuity of its past. As chief justice of the Court of Common Pleas, Sir Edward Coke is now known as the main seventeenth-century jurist to defend the authority of the common law against the centralising efforts of King James I.

The legitimation of the English constitution in the seventeenth century draws primarily from the first of the two wells Lazar refers to. Because the constitution had been legitimate since ‘time out of mind’, highlighting and relying on the continuity between past, present and future, the appeal to the capacity to maintain order is also seeded in this claim to historicity.Footnote ⁴²

If the constitution, as the common law, existed as such since before historical record, that meant it had been merely confirmed by the crown in the past, but had never been a creation that could be attributed to any one king or parliament. The English constitution was therefore, in Coke’s historical thinking, protected from the centralising wishes of the crown: it was not subject to alteration by any one power.Footnote ⁴³

Engaging a very particular form of historiography, Coke traces the constitution of England to a ‘time immemorial’. The English constitution, insular and particularly created, had its origin in custom and had never been the object of a parliamentary or monarchicalFootnote ⁴⁴ creation. It was on this basis that Coke defended the supremacy of the common law over King James.Footnote ⁴⁵

The Magna Carta was considered but a declaration of ancient laws that had been in use since ‘time out of mind’ rather than a document creating new law.Footnote ⁴⁶ The constitution and the common law are, in Coke’s view, essentially associated: the common law determined the constitution because the constitution originated in the common law.Footnote ⁴⁷ Parliament, like the common law and the constitution, existed since before the conquest, before any register, and derived its legitimacy from its antiquity and continuous existence through time.Footnote ⁴⁸

Coke’s approach in the Second Part of the Institutes, says Williams, limits the powers of the monarch in borrowing from the medieval ideas of ‘bodies politic’ and integrating the king, as analogous to a corporate body, ‘into the legal system, rather than outside it’.Footnote ⁴⁹ The king was always subject to the law and had no power over it: if a lawFootnote ⁵⁰ by the monarch or parliament was unjust, the judges were not to take it as law, and overrule it in adjudication; all law depended on confirmation through its use in the common law. In this sense, he presupposed the supremacy of law: not even the king could act contrary to law, at least in the sense that unlawful actions would not be enforceable’.Footnote ⁵¹

The Parliament is considered in the first chapter of Coke’s Fourth Part of the Reports as a court of law.Footnote ⁵² To him, ‘all governmental bodies were courts and their activity was “judicial.”’Footnote ⁵³ This is a consequence of Coke’s view of the constitution as arising from and being part of the common law: as the common law was the supreme evidence of reason, having been through the trial of time, it was the basis of every governmental power, and, therefore, all governmental bodies were judicial bodies.

The fourth part of the Institutes suggests that Parliament holds the highest legislative power in the kingdom, over the king, and it seems to suggest that its laws are superior.Footnote ⁵⁴ However, in the preface to the third part of the Reports,Footnote ⁵⁵ Coke seems to argue that Parliament ought not to change the common law. Moreover, in Dr. Bonham’s Case, he asserts that the courts of law can judge parliamentary acts to be void and unapplicable.Footnote ⁵⁶

It is nonetheless a constant in Coke’s writing that the king holds no power to alter the common law: he must abide by it and not interfere with adjudication because he lacks the ‘artificial reason’ of judges to declare the immemorial custom that makes the common law.Footnote ⁵⁷ More importantly, the king lacks artificial reason because he is not trained in the study and analysis of the long history of interpretation of this ancient law. The king must not interfere with the laws of the kingdom because these laws predate him and all previous kings in history. In fact, these laws predate history. The ancient character of the common law, as the ancient character of the constitution, is the main source of legitimacy for seventeenth-century English constitutionalism.

History, however, is less a legitimating concept and more evidence of a legitimacy that is anchored in a previous, ‘immemorial’ past. It is perhaps not the historicity of the constitution that legitimised it, but its a-historicity, and history served merely as proof of its a-historical character. This indicates a point of continuity into nineteenth-century constitutionalism: the categories of past and future are not enough to characterise the ‘orientation’ of the constitutional theory in the seventeenth and nineteenth centuries. It is necessary that they are a qualified ‘immemorial’ past in the seventeenth century and a qualified eternally ‘progressive’ future in the nineteenth. A-historicity, therefore, is an indispensable category of temporality in constitutionalism, albeit one that is so far underexamined.

The constitutional debate in the seventeenth-century revolution evidences the importance of the ancient character of the common law to seventeenth-century lawyers in the question of the Conquest. This both evidences and constitutes a particular emotional experience of time: one where the continuity of the past is assumed and relied on in the present. Just as the accelerated time of the nineteenth century can be seen in romantic and gothic fiction, Koselleck notes that prior to the nineteenth century, the literary references to the mechanical clock were associated with order and regularity and stabilityFootnote ⁵⁸; even the ‘merchant’s time’ that competed with and increasingly took the place of the ‘church time’ is one that ‘became measurable, took a direction and could be foreseen’.Footnote ⁵⁹ I identify these as evidence of an emotional experience of time. The perception that time is slowing down or accelerating, that it is continuous or disruptive, cannot be wholly understood with reference to any measurement of time or concept of temporality, but indicates an embodied knowing, part of a process of understanding, sharing and communicating experience.

During the Interregnum, Pocock identifies a royalist reaction in historiography. He analyses Hyde’s work in trying to determine that the king had sovereignty and power to change the laws and constitution: criticising Hobbes, Hyde mainly attacked the idea that William I had been a conqueror and therefore the laws confirmed by him ‘continued to exist only by his will, and that his right over them had consequently been absolute and had descended intact to his successors’.Footnote ⁶⁰

Pocock highlights the continuous attempts by those who subscribed to Coke’s theory of the ‘ancient constitution’ to undermine the idea that the conquest had brought any change to the English law – even if the claims that it had done so by the royalists were rare. Noting this seemingly unprovoked defence, Pocock suggests that the rarity of the royalists’ attempt to date the English law to the Conquest may have been because this argument would only give the law ‘an appeal to the sword’, which would, as a theoretical explanation to the power of the king, ‘seem impermanent and subject to fortune’.Footnote ⁶¹

Instead, what royalists searched for was an appeal to reason that did not depend on the consent of the people. When the House of Lords was abolished in 1649, Filmer claimed that the decision of the House of Commons was illegitimate because, unlike the House of Lords, its summoning was dated. The debate, according to Pocock, was whether one could identify a year in which the Commons had been summoned. If that was possible, ‘they owed their being to some pre-existing authority’, whereas if there was no record of a first summoning of the Commons to counsel, ‘then they were immemorial and their privileges were secure’.Footnote ⁶²

These two points are representative of the justification of the present in the past and the role of a-historicity rather than historicity in constitutionalism.

If the immemorial character of the House of Commons would secure their legitimacy and their role within the English constitution, whereas the possibility of dating their origin would mean that their power was dependant on the higher authority that created them, then the reliance on the ‘time out of mind’ is also the reliance on an undated, perhaps mythical origin: one that cannot be identified, contextualised or questioned, because it is out of history.

If the argument that the power of the king to legislate arose from the conquest, ‘from the sword’, rather than from an ancient constitution which, having been followed continuously, made it ‘subject to fortune’, the importance and the danger of historicity is highlighted once more. The debate was not only about how old the constitution was, but about the constitution being older than record, older than history, and therefore not originated, but only confirmed, by history. The role of the time out of mind is thus the role of an a-historical past, not just of a past that is so ancient that it is ‘out of mind’.

If constitutionalism is considered as, partly, a response to an emotional experience of time, then the a-historicity of this past reveals something that may be one point of continuity in this shift between a past-oriented and a future-oriented constitutional theory: the recognition of the danger of historical contingency.

The seventeenth-century defence of the ‘ancient constitution’ claimed that it was bound to continue to uphold order and security because it had done so since ‘time out of mind’. However, as Pocock notes, the role of the historical record, for Coke, was proof that the common law (and the constitution) predated historical record. The discussion on the dating (or not) of the summoning of the House of Commons and of the House of Lords, and the discussion on dating (or not) the origin of the common law to the Conquest, indicate that the ‘past’ that could legitimise the constitution was an a-historical past. The legitimising past had to be a-historical, because a historically contingent past is a past that can be overthrown and overridden; in other words, it is subject to change.

Moreover, if the ‘perfect balance’ of the three powers was held by this reliance on the continuity of a timeless past, when the nineteenth century can no longer rely on this continuity, then the issues of representation and democracy can also be explained, among other elements, as responses to the emotional experience of time. If the consent of the people cannot be proven to originate in an insular and communal customary creation from ‘time out of mind’, this consent will need to be renewed: future-oriented constitutionalism relies on the majority of the present to uphold the future because it cannot rely on the majority of the past.

Eighteenth-century constitutional theory, although informed by theories of social contract such as those defended by Rousseau or Locke, seemed, if Blackstone can here be considered as representative, to follow Coke’s arguments on the supremacy of the English ‘mixed’ monarchy.Footnote ⁶³

Although the eighteenth century will not be studied in depth in this article, it is important to understand that projects to ‘rationalise’ the law did not emerge suddenly with the advent of the nineteenth century, nor did the shift in the emotional experience of time that I propose to address. On the contrary, the Enlightenment and ideas of progress that inform the legal and political theories of the eighteenth century inform, too, the events and culture of the nineteenth century. From linear progress and Blackstone’s rationalisation of common law into a didactic course to the defence of projects of codification and a time of constant change, seventeenth- to nineteenth-century legal theories demonstrate the shift in the emotional experience of time with clarity. This does not mean, however, that the French, Industrial or American revolutions completely overturned the perception and emotional experience of time in one single moment.

The emotional experience of time in nineteenth-century claims for ‘pure’ democracy

In the seventeenth century, reliant on the continuity of history, the ‘immemorial past’ occupied the constitutional legitimising space; in the nineteenth century, it is not only the a-historical but also the a-temporal truth that takes its place to guarantee stability for the future.

What I suggest is a possible thread of continuity that has not been explored in the shift from past-orientedness to future-orientedness of the constitutional debate. If we consider constitutionalism as partly responding to an emotional experience of time, and if we consider that the past that upheld the constitution until the nineteenth century is this a-historical past, then the ‘classical’ constitutionalism fails in the nineteenth century in two instances: first, because the nineteenth century was especially conscious of its historicity and ‘always historicise!’ was the maxim to be upheldFootnote ⁶⁴ – an ‘immemorial past’ is therefore inaccessible; second, the ‘immemorial past’ is less useful because the nineteenth century can no longer rely on the continuity of history that underlay the argument of the ancient constitution. Because continuity could no longer be expected of history in the nineteenth century, it is no longer on a mythical origin in a past that is lost to memory that the English constitution must rely for its legitimacy. It becomes, then, a matter of looking to the future: a (perhaps equally mythical) future-oriented claim for legitimacy bases the constitution on the promises of progress and expectation, effectively evidencing and simultaneously contributing to the break with the past that characterises the nineteenth-century emotional experience of time.

The nineteenth-century democratic critique of the mixed government, contrary to Coke’s justification of the constitution based on time out of mind, shows a future-oriented view of what makes a government good and legitimate. The second well of legitimacyFootnote ⁶⁵ thus gains force in a history of discontinuity.

This is inserted in an emotional experience of time that can no longer rely on the seamless flow of past into present but, on the contrary, sees a history of rupture and revolution, one in which even the mightiest OzymandiasFootnote ⁶⁶ is destroyed by the sands of time.

When ‘revolutions’ become ‘the locomotives of history’,Footnote ⁶⁷ the focus shifts from Coke’s argument on the permanence of the constitution since before the conquest – since before history – to Paine’s illegitimacy of the constitution as the product of a conquest: discontinuity and instability become the centre of the legal-historical argument. It is here too that the ‘break with the past’ Dann refers toFootnote ⁶⁸ creates the need for an alternative source of legitimation for the constitution: questions of democracy and representation arise as possibilities for the present to uphold and maintain order for the future.

Godwin’s ideals were not in contrast with the principle of change that characterised the nineteenth century.Footnote ⁶⁹ The five principles Godwin believed would make it possible for government to disappear (for him, as for Paine, an evil), seem instead to incite and praise change in the form of improvement of humankind and general progress:

Education played a key role to Godwin in the constant improvement of humankind. He upheld the notion that humans are not born with a tendency to either good or evil – if anything, justice is the only constant humankind will seek – but ‘our virtues and vices can be traced to the incidents which make the history of our lives, and if the incidents could be divested of every improper tendency, vice would be extirpated from the world’.Footnote ⁷¹ Education was the way through which humans would improve to a state in which government would no longer be necessary.

Although human improvement and change seem to be a constant to Godwin, the truth he refers to throughout his Political Justice is not ever-changing and evolving, but rather an immutable truth. Truth is there to be found by the inquiring mind – the inquiring mind that has learned, or been taught, the virtues of justice. It is in the broader context of nineteenth-century scientism that the inquiring mind seeks to learn the immutable laws of the universe. It is, in other words, the timeless truth. A-historicity, thus, is also present in the process of legitimation and the constitutional debate in the nineteenth century, although under a different guise: rather than an undated past ‘out of mind’, it is the timeless truth of nineteenth-century scientism that underlies constitutional theory and protects the constitution from historical contingency.

The past-looking justification of the common law and of the English constitution in Coke’s time out of mind is no longer appropriate. The new debate focuses on whether the constitution, as it is, serves the purpose of progress.Footnote ⁷² Forward-looking nineteenth-century theory is not, as the seventeenth-century theory was, satisfied with an ancient constitution. In other words, the question is no longer how old the English constitution is – if it predates history – but rather for how long and in which ways the present constitution can promote progress.

Given this break with the past, Godwin was did not subscribe to the theory of the social contract. On the contrary, to him, no past could sufficiently justify a present government: even if my ancestors had decided to gather under a specific form of government and had freely chosen the government to be one or another, that does not – in fact, it cannot – bind me to their decision. Even the promise made (by me or by my ancestors) of obedience is not enough to justify my acquiescence with the government. The only acceptable cause and source of legitimation to an authority is the sense of justice, as a means to the improvement of the individual and collective through virtue.Footnote ⁷³ Justice, it is important to keep in mind, is a constant, a-historical truth.

On the English government, Godwin believed that monarchy and aristocracy, founded upon the principle of inequality, were unacceptable.Footnote ⁷⁴ Weston points out that, according to Godwin, ‘to teach men that kings and nobles were wiser than their humble neighbours, he insisted, was to practice deception and fraud and to violate reason and truth, the triumph of which would secure the perfectibility of mankind’.Footnote ⁷⁵ Merit, for him, should be the only source of distinction of a man in society.Footnote ⁷⁶ Similar to Paine, Godwin’s project for the government did not have two parliamentary houses, but one, which would discuss in six rounds the projects of law.

By 1800, however, ‘Napoleon had overthrown the French Republic. And the English idealists who had looked to France for inspiration saw there only a military despotism, a confirmation of the statement so generally received in the eighteenth century that a pure, “unmixed” democracy was a form of government unsuitable for states as large as France and England’.Footnote ⁷⁷

Early in the nineteenth century, Weston identifies a return of the critique towards the English-mixed government. Bentham, who had previously defended that any government would be able to create and maintain justice as long as it followed the utilitarian principle, in his later writings instead adhered to Paine and Godwin’s ideas of unmixed democracy. Bentham’s Constitutional Code, published in 1823 after the Portuguese government had accepted his offer to write a civil and a penal code, attests to such a shift. By this time, disappointed with the failure of his Panopticon and the failure of monarchies to listen to his utilitarian projects of codifying law, Bentham prescribed the ‘democratic ascendancy of the House of Commons’Footnote ⁷⁸: the interests of the people should be the only ones to inform government policies; and the House of Lords could only represent those of the monarchy and of the few who composed aristocracy.

The utilitarian test, then, could not be passed by a mixed government, but only a democratic one. As Bentham seems to understand in his later works, any other type of government would, even having the power to promote the greatest happiness to the greatest number, prefer to promote the greatest happiness to those in power. This is why, for Bentham, the objective of a constitution is not to be a bill of rights protecting the interests of the people against the power of the government. He dedicated his Constitutional Code to the rules of appointment and duties of government officials, ‘from determining the location of supreme power to specifying the duties of the lowliest official’.Footnote ⁷⁹

His view of the constitution, as well as his late works’ disbelief in forms of government other than republican democracy, also stemmed from utilitarianism and his conclusions about human nature – the premises for which are mainly found in his earlier work, Principles of Moral and Legislation. Footnote ⁸⁰ Having rejected the theory of the social contract, there were only two premises to all constitutions, which needed to be joined by a third one: the first is that the objective of any good government was to procure the greatest happiness to the greatest number; the second is that the interest of the persons in the government were, in reality, to procure the greatest happiness only to themselves. This is why a third premise was necessary: that the constitution should guarantee that the greatest happiness of the government would be dependent on the efficient provision of the greatest happiness to the greatest number.Footnote ⁸¹

It is important to note that these premises are based, once again, on timeless truths that Bentham claims to have discovered: part of the scientism recognised in the nineteenth century, Bentham’s analysis of law also stems from the assumption that there is an immutable ‘human nature’ that can be engaged in proposing social analyses. Once again, one can note the role of a-historicity in nineteenth-century constitutional debate.

The highest power should, then, lie with the people: they would, on the principle of ‘one man, one vote’ and with the guarantee of the secrecy of the vote, choose their representatives for the legislature; and the public opinion would be offered a mechanism to remove from office those who were no longer serving their purpose of promoting the greatest happiness to the greatest number.Footnote ⁸² In this sense, attending to the interests of the people would be in the interests of those in power because they were subject to being punished by public opinion and losing their office if they acted against them.Footnote ⁸³ Sovereignty, then, as described by Bentham, seems to be the power to legislate,Footnote ⁸⁴ and it is ‘in the people. It is reserved by and to them’.Footnote ⁸⁵

What is important to note in Betham’s theory is that it is also detached from a past-oriented justification of power: it is, like Godwin’s, future-oriented. Bentham’s constitutional theory, in fact, is so future-oriented that he objected all mechanisms to restrict the amendment or change of any laws, including constitutional ones: no legislature can be so sure of having made an infallible law.Footnote ⁸⁶ What is necessary is that changes to this law must come from Parliament, the legislative power elected by the people. Although Godwin’s and Bentham’s theories differ in various ways, Godwin also believed that the past decisions of a legislature or people should not bind future generations.Footnote ⁸⁷ When the power to shape the future can no longer depend on the power of the past ‘out of mind’ to shape the present, it is in the present majority, the regularly renewed consent of the people, that the constitution must find its legitimacy. Considering these theories as responses to an emotional experience of time as disruptive, where change is inevitable, provides a new level of explanation to the constitutional debates and institutional changes that relate to and rely on matters such as democratic vote and representation.

These ideas, represented in this section mainly by Godwin and the later works of Bentham, did not overturn the reliance on a mixed government, but they did change the role of the House of Lords, which, although still a part of the constitutional elements of the English government, was no longer the place where its balance resided. The balance was now placed in the House of Commons, where representatives were elected by the people.

The theories of representation, as Dann recognises, are part of this movement from past to future, from tradition to modern liberal constitutionalism. ‘The “lens of temporality,”’ says Dann, is revealing of liberal constitutionalism in the shaping of its ideals: it is the linearity and ‘openness to an uncharted future’ that underlies how liberal constitutionalism ‘leaves room for any legislature and new political majority to shape the future, to change policies, approaches, procedures, even institutions – as long as the modification takes place in the framework of the constitutional order. According to Dann, this ‘is a central contrast to illiberal or other conceptions that LC is not bound by “laws of history,” traditions, or assumed fixed parameters (culture, race, religion), but it is open to try whatever strikes the political majority at a time to be the best path forward’.Footnote ⁸⁸

This is part of the liberal emphasis on the capacity of individuals to shape the future. Constitutionalism in the nineteenth century, thus, both evidenced and participated in the break with the past or the ‘end of history’ that Dann refers to, and the originalism Parker identifies. My emphasis here is not on nineteenth-century constitutionalism as the operator of the break with the past,Footnote ⁸⁹ but on highlighting the role of the emotional experience of time in shaping nineteenth-century constitutionalism. I argue that one is necessary for the making of the other: as liberal constitutionalism tries to pave the way to the future and steps away from the traditional justification of the governmental and legal institutions, the emotional experience of time is also an active agent in the need for a different, future-oriented justification for the new orders that emerge in this ‘revolutionary age’.Footnote ⁹⁰