This chapter assesses the legal foundations that supported the shift away from militarized constitutions after 1945 and argues that constitution making in different imperial domains (metropolitan and colonial) had crucial significance in this regard. On one hand, it shows how military constitutionalism persisted in many regions after World War II. Yet it explains how after 1945 some constitutions were built on premises that combined national law and international law (human rights law and humanitarian law), and these norms were galvanized to form a more reliable basis for democratic constitutionalism. The chapter proposes a theory of world law to explain this, stating that democracy was consolidated after 1945 as governments conferred more secure legal form on rights first obtained through military bargains. This was achieved through the use of international law to separate constitutional rights from militarism. The chapter examines cases in Germany, Japan, Kenya, Algeria and South Africa to identify these processes. It also discusses other cases, especially in post-1958 South America, where these processes were not effected.

This chapter builds on the analysis in Chapter 6 and assesses further preconditions for the stabilization of democracy after 1945. Here it focuses on the domestic apparatus of constitutional democracy, arguing that post-1945 systems separated their constitutions from war because they developed increasingly universal welfare states which served to balance the effects of constitutional integration and to soften extreme internal conflicts. It attaches this analysis to a theory of individual integration, stating that modern democracy began with processes of social integration released by warfare and it was only as these processes were directed towards welfare provisions that states were reasonably stable (sovereign). It gives particular weight to education policies in post-1945 welfare democracies.

This chapter addresses the three earliest constitutional lineages, in the USA, France and Poland. It shows how these constitutional forms were shaped by imperialism and how the intensification of military policies in the eighteenth century defined the patterns of citizenship that they developed. It also shows how, diversely, each constitutions established a polity with militarized features, so that the different between national and imperial rule was often slight. To explain this, it addresses Napoleonic constitutionalism in Fance and the tiered citizenship regimes that characterized the American Republic in the nineteenth century.

This chapter presents an analysis of the distinctive features of constitutional transitions that took place in Eastern Europe, Latin America and parts of Africa, gaining impetus in the 1980s. It explains that these transitions were historically unique as they marked the first moment in which many states converted to constitutional democracy without general experience of warfare. However, it shows how security policies framed the transitions, especially in Europe. It also examines how in Latin America new constitutions were again stabilized using elements of international law. It contains a case study of Colombia to illustrate this.

This chapter begins an analysis of why some constitutional systems have begun again to show militaristic emphases. It argues that in some cases this is to due to the fact that, since the 1980s, one part of the system of world law constructed after 1945 – namely the internal welfare dimension – has been weakened. This is assessed as part of the global background in constitution-making processes that commenced in the 1980s. The chapter considers a range of cases where constitutions have begun to malfunction with military consequences. It divides these cases into constitutions marked by vertical militarization (Russia, Brazil) and constitutions marked by lateral militarization. It links these developments to weakness in social integration processes under different constitutions.

This chapter reconstructs the development of constitutional law in the Ottoman region from the earlier nineteenth century to the middle part of the twentieth century. It shows how constitution making in this setting gave extreme expression to general militaristic tendencies in constitutional law, as the imposition of norms of citizenship in the Ottoman Empire both induced deep lateral conflicts and stimulated external violence. This is exemplified through analysis of the imperial constitution at the end of the Tanzimat era and of sub-imperial constitutions in Serbia, Bulgaria and Greece. The chapter reconstructs post-Ottoman lineages in constitutional law against this background, showing how internal and external conflicts persistently converged and military units assumed dominant nation-building roles.

Continuing the analysis in Chapter 9, this chapter considers how changing international security constellations have contributed to the remilitarization of democracy. It argues that international antiterror programmes have destabilized the foundations of constitutional law. On one hand, such policies have redefined national security objectives, such that the negotiated component of constitutional law is weakened. On the other hand, such policies have fundamentally altered the role of international human rights law in global society. As a result, states have been able to legitimate more directly militarized actions towards their own populations and towards the populations of other states.

This chapter examines the emergence of constitutional law in South America, showing how military politics in the Spanish and Portuguese empires had enduring impact on the formation of citizenship regimes in this region. It focuses on Brazil and Colombia as two divergent but also overlapping models of militarized constitutionalism. It assesses how both states acquired military and semi-imperialist features as their independence was consolidated. It also discusses how national processes of integration and citizenship formation were conducted by armies, such that, in Brazil in particular, the army was an early trier of democratic institution building.

This chapter assesses the rise of democratic constitutional rule after 1918. It covers a range of societies, but focuses on Germany, Poland and Spain. In different ways, it shows how constitutions created at this time were designed to move government away from imperialist models. However, constitutions remained enduringly attached to military organizations, and most were unsettled by military violence. Distinctively, constitutions of this period tended to weaken the partition between the sovereign nation state and the global military environment, and they resulted in governments that declared war on sections of their own populations. In such cases, governments patterned their own societies on colonial systems of organization.

This chapter discusses how constitutional ideals were reconfigured through the nineteenth century. In the first instance, the democratic aspect of constitutional law was suppressed by the Congress of Vienna in 1815. Over time, however, states began to use constitutions in instrumental fashion, so that a distinct model of imperialist sensationalism took shape in the longer wake of 1848. This model was designed to extract military capacity from society without stimulating deep internal conflict. In some respects, as European expansion gained pace after 1870, this model imposed conditions of military regimentation in both metropolitan societies and colonized societies, as societies were generally structured in accordance with military imperatives. The chapter also considers how these processes were reproduced in societies exposed to European expansion, such as Japan and China.

This introduction explains how constitutions first developed in the context of inter-imperial rivalry in the eighteenth century. In this setting, constitutions formed effective military contracts between rulers and subjects, allowing the extraction of military force in return for certain constitutional rights. It discusses how this process shaped national and imperial societies, and how it instilled propensities for violence in constitutional ordered polities.

This book has sought to illustrate how, through its history, constitutional law has developed in complex conjunction with imperialism. From the beginning, constitutional law took shape as an internal organizational structure that allowed states to adapt their functions to the pressures of an international society increasingly defined by imperialism, and it formed a mechanism for creating governmental legitimacy that was strongly connected to military necessities. This character of constitutional law originated in the intensification of imperialism after circa 1750, when national governments were forced to increase domestic military support for their actions. To achieve this, governments established immediate individual linkages with their subjects and conducted processes of vertical integration in their societies, which reduced the social importance of local and religious bodies. These processes were usually consolidated by constitutional order: constitutions served both to organize the vertical integration of society and to soften or at least control the lateral conflicts that such integration engendered.

Introduction: Constitutional Blind Spots and Theories of Differentiation

This chapter examines ways in which Luhmann’s sociology can be used to enrich empirical understanding of institutional structures in contemporary global society. In particular, it discusses how the formation of the institutions that typify modern societal order, both at the national and the transnational level, can be illuminated by his theory of functional differentiation. To achieve this, it proposes a counter-intuitive way of reading Luhmann. It argues that his sociology provides the most adequate construction of the institutional determinants of world society, not if it is simply employed a literal sociological lens, but if it is observed through a method that probes critically at its conceptual adequacy. Centrally, this chapter advances a dialectical engagement with Luhmann’s theory of functional differentiation: it accepts his account of differentiation as a matrix for examining modern society, yet it argues that institutional organs with a central position in society have resulted from historical trajectories of differentiation that deviate from those imputed to society by Luhmann. It claims that Luhmann’s theory has utility as a framework for distilling many social phenomena in broad terms, but many institutional phenomena come most sharply into focus as they jar against the terms of his systemic observation. As a result, his theory frequently illuminates social institutions in a rather unintended fashion. On this basis, this chapter claims that, more than any direct application of Luhmann’s thought, it is through engagement with the aporia, blind spots and oversights in his work that we obtain the most accurate perspective for describing the underlying institutional form of society. In promoting this approach, this chapter aims to show, using a broadly Luhmannian method, how explanatory simplifications in systems theory hold clues for the comprehension of society, challenging us to think through the given categories of systems theory to generate more complex descriptions of empirical realities.

As its primary object, this chapter discusses Luhmann’s understanding of the legal system and the political system and his interpretation of the processes by which contemporary society structures legal and political communications to produce and preserve its essential differentiated form.