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Constitutional history is the area of historical study covering both
written constitution Writing is the act of creating a persistent representation of language. A writing system includes a particular set of symbols called a ''script'', as well as the rules by which they encode a particular spoken language. Every written language ...
s and
uncodified constitution An uncodified constitution is a type of constitution where the fundamental rules often take the form of customs, usage, precedent and a variety of statutes and legal instruments.Johari, J. C. (2006) ''New Comparative Government'', Lotus Press, N ...
s, and became an academic discipline during the 19th century. ''The Oxford Companion to Law'' (1980) defined it as the study of the "origins, evolution and historical development" of the constitution of a community. The English term is attributed to Henry Hallam, in his 1827 work ''The Constitutional History of England''. It overlaps
legal history Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilizations and operates in the wider context of social history. Certain jurists and his ...
and
political history Political history is the narrative and survey of political events, ideas, movements, organs of government, voters, parties and leaders. It is closely related to other fields of history, including diplomatic history, constitutional history, soci ...
. For uncodified constitutions, the status of documents seen as contributing to the formation of a constitution has an aspect of
diplomatics Diplomatics (in American English, and in most anglophone countries), or diplomatic (in British English), is a scholarly discipline centred on the critical analysis of documents, especially historical documents. It focuses on the conventions, pr ...
. By the beginning of the 20th century, constitutional history, associated strongly with the "Victorian manner" in historiography, had come under criticism that questioned its relevance. Both before and after the period of so-called "traditional constitutional history" in the English-speaking world, its themes in political history have been seriously contested. See :Constitutional history.


Overview of national constitutional histories


European background

In the European tradition, Pocock in his book on the ancient constitution of England argued a common pattern, seen in François Hotman, a French lawyer of the 16th century, of valuing
customary law A legal custom is the established pattern of behavior within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudinary or unofficial law) exists wher ...
, in tension with a
code of law A code of law, also called a law code or legal code, is a systematic collection of statutes. It is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the co ...
, and taking support for the customary to the point of creating a "historical myth" around it. Historical priority had political consequences for
monarchy A monarchy is a form of government in which a person, the monarch, reigns as head of state for the rest of their life, or until abdication. The extent of the authority of the monarch may vary from restricted and largely symbolic (constitutio ...
. The status of monarchy in Europe played a large part in its constitutional history until the end of
World War I World War I or the First World War (28 July 1914 – 11 November 1918), also known as the Great War, was a World war, global conflict between two coalitions: the Allies of World War I, Allies (or Entente) and the Central Powers. Fighting to ...
. Shortly after 1918, the surviving European monarchies, diminished in numbers, were all examples of the
constitutional monarchy Constitutional monarchy, also known as limited monarchy, parliamentary monarchy or democratic monarchy, is a form of monarchy in which the monarch exercises their authority in accordance with a constitution and is not alone in making decisions. ...
, and the constitutions involved were all written, with the exception of the
British monarchy The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the form of government used by the United Kingdom by which a hereditary monarch reigns as the head of state, with their powers Constitutional monarchy, regula ...
which is part of an uncodified constitution. Mark Mazower states that "Most of the new constitutions began by stressing their democratic, national and republican character." : :Constitutional history of Austria


North American constitutions

The constitution of the United States, as a historical research area, was considered to be in decline by Menard in 1971, citing also George Athan Billias and Eric Cantor. Harry N. Scheiber in 1981 noted that some historians in the field saw a "genuine crisis", which he reported was widely attributed to competition from newer approaches in
legal history Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilizations and operates in the wider context of social history. Certain jurists and his ...
to the behaviour of
law court Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a Socia ...
s. At this time there was a view that constitutional history was linked to
liberalism Liberalism is a Political philosophy, political and moral philosophy based on the Individual rights, rights of the individual, liberty, consent of the governed, political equality, the right to private property, and equality before the law. ...
and individual rights, and in tension with critical legal studies and its approach to legal history. Lewis Henry LaRue, from the side of critical legal studies, in 1987 defended the proposition that
constitutional law Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in ...
should be studied in the context of constitutional history. : :Constitutional history of the United States


Constitutional courts

Many nations have a
constitutional court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ru ...
deciding matters of
constitutional law Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in ...
. The force of judgements in such a court may be ''
erga omnes In legal terminology, rights or obligations are owed toward all. is a Latin phrase which means "towards all" or "towards everyone". For instance, a property right is an entitlement and therefore enforceable against anybody infringing that right ...
'', in other words applying broadly, rather than just to the case in question. Theodore Y. Blumoff writing of the Supreme Court of the United States stated that "Through its decisions and resulting precedents, the Court makes history as it decides it."


Ancient Greece and Rome

The political history of
Athens Athens ( ) is the Capital city, capital and List of cities and towns in Greece, largest city of Greece. A significant coastal urban area in the Mediterranean, Athens is also the capital of the Attica (region), Attica region and is the southe ...
after the Peisistratids (from about 510 BCE onwards) is amply documented in literary sources, and has traditionally been cast as an evolution away from the
tyrant A tyrant (), in the modern English usage of the word, is an absolute ruler who is unrestrained by law, or one who has usurped a legitimate ruler's sovereignty. Often portrayed as cruel, tyrants may defend their positions by resorting to ...
(absolute ruler).
John Robert Seeley Sir John Robert Seeley, Order of St. Michael and St. George, KCMG (10 September 1834 – 13 January 1895) was an English Liberal Party (UK), Liberal historian and political essayist. A founder of British imperial history, he was a prominent adv ...
in the 19th century took the major difference constitutionally between ancient Athens of that period and the
Roman Republic The Roman Republic ( ) was the era of Ancient Rome, classical Roman civilisation beginning with Overthrow of the Roman monarchy, the overthrow of the Roman Kingdom (traditionally dated to 509 BC) and ending in 27 BC with the establis ...
to be that the
Roman Senate The Roman Senate () was the highest and constituting assembly of ancient Rome and its aristocracy. With different powers throughout its existence it lasted from the first days of the city of Rome (traditionally founded in 753 BC) as the Sena ...
, controlled by the patricians, was a
deliberative assembly A deliberative assembly is a meeting of members who use parliamentary procedure. Etymology In a speech to the electorate at Bristol in 1774, Edmund Burke Edmund Burke (; 12 January ew Style, NS1729 – 9 July 1797) was an Anglo-Irish Po ...
, while the assemblies of the
plebeians In ancient Rome, the plebeians or plebs were the general body of free Roman citizens who were not Patrician (ancient Rome), patricians, as determined by the Capite censi, census, or in other words "commoners". Both classes were hereditary. Et ...
were not. ''
De re publica ''De re publica'' (''On the Republic''; see below) is a dialogue on Roman politics by Cicero, written in six books between 54 and 51 BC. The work does not survive in a complete state, and large parts are missing. The surviving sections derive ...
'', a partially-recovered work by
Cicero Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, orator, writer and Academic skeptic, who tried to uphold optimate principles during the political crises tha ...
, contains some political and constitutional history of the Roman Republic about three decades before its end. It used the concept of a mixed constitution going back to
Aristotle Aristotle (; 384–322 BC) was an Ancient Greek philosophy, Ancient Greek philosopher and polymath. His writings cover a broad range of subjects spanning the natural sciences, philosophy, linguistics, economics, politics, psychology, a ...
, and its evolution. In Cicero's view an "ancestral constitution", an organic development based on the ''
mos maiorum The ''mos maiorum'' (; "ancestral custom" or "way of the ancestors"; : ''mores'', cf. English "mores"; ''maiorum'' is the genitive plural of "greater" or "elder") is the unwritten code from which the ancient Romans derived their social norms. It ...
'', had been ruptured some eighty years before, by the
Gracchi The Gracchi brothers were two brothers who lived during the beginning of the late Roman Republic: Tiberius Gracchus and Gaius Gracchus. They served in the Tribune of the plebs, plebeian tribunates of 133 BC and 122–121 BC, respec ...
and their reforms. : :Ancient Greek constitutions


Medieval Christendom

From the
High Middle Ages The High Middle Ages, or High Medieval Period, was the periodization, period of European history between and ; it was preceded by the Early Middle Ages and followed by the Late Middle Ages, which ended according to historiographical convention ...
in Western Europe, the effective diplomacy of the
Papacy The pope is the bishop of Rome and the Head of the Church#Catholic Church, visible head of the worldwide Catholic Church. He is also known as the supreme pontiff, Roman pontiff, or sovereign pontiff. From the 8th century until 1870, the po ...
, itself regulated by
canon law Canon law (from , , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical jurisdiction, ecclesiastical authority (church leadership) for the government of a Christian organization or church and its membe ...
, played a large part in the constitution of Latin Christendom as a
polity A polity is a group of people with a collective identity, who are organized by some form of political Institutionalisation, institutionalized social relations, and have a capacity to mobilize resources. A polity can be any group of people org ...
, for example in the
Crusades The Crusades were a series of religious wars initiated, supported, and at times directed by the Papacy during the Middle Ages. The most prominent of these were the campaigns to the Holy Land aimed at reclaiming Jerusalem and its surrounding t ...
. The secular constitution of the
Holy Roman Empire The Holy Roman Empire, also known as the Holy Roman Empire of the German Nation after 1512, was a polity in Central and Western Europe, usually headed by the Holy Roman Emperor. It developed in the Early Middle Ages, and lasted for a millennium ...
was uncodified. Its background was studied in depth in the 19th century by Georg Waitz, considered the effective founder of the German ''Verfassungsgeschichte'', as part of legal history. His eight-volume work ''Deutsche Verfassungsgeschichte'' covered the period from the 9th to 12th centuries. The school of Waitz and Heinrich Brunner was later challenged by the "new constitutional history" of Theodor Mayer ( :de:Theodor Mayer (Historiker)), Otto Brunner and Walter Schlesinger. The three-volume ''Constitutional History of England'' (1874–78) by
William Stubbs William Stubbs (21 June 182522 April 1901) was an English historian and Anglican bishop. He was Regius Professor of History (Oxford), Regius Professor of Modern History at the University of Oxford between 1866 and 1884. He was Bishop of Ches ...
was influenced by German scholars, particularly Waitz and Georg Ludwig von Maurer. The
history of Anglo-Saxon England Anglo-Saxon England or early medieval England covers the period from the end of Roman Empire, Roman imperial rule in Roman Britain, Britain in the 5th century until the Norman Conquest in 1066. Compared to modern England, the territory of the ...
had standing in the
Victorian period In the history of the United Kingdom and the British Empire, the Victorian era was the reign of Queen Victoria, from 20 June 1837 until her death on 22 January 1901. Slightly different definitions are sometimes used. The era followed th ...
, to substantiate claims that the Westminster parliament descended from the witangemot and free assemblies. Karl Leyser in the 1980s criticised the type of institutional history given of the Ottonian period Empire, on the grounds that it assumed without sufficient justification that such institutions existed in an operational sense. He also argued that parallels drawn between Germany and Anglo-Saxon England of the tenth century were ultimately quite misleading. Timothy Reuter in 2002 stated in this context that "constitutional history in the old style has clearly gone out of fashion."


Whig history and constitutional history in the university

According to the final volume of '' The Cambridge Modern History'' (1910), Hallam's ''Constitutional History of England'' of 1827 contains the "authoritative Whig presentation of modern English history", and it "immediately took its place as a textbook in the Universities". The context is a contrast with the conservative ''History of Europe'' of Archibald Alison, which pointed to the French Revolution and the dangers of political change. From the 1860s there were in the English-speaking world professors of constitutional history, with Cosmo Innes at Edinburgh becoming one, by change of official title, in 1862.
Francis Lieber Francis Lieber (18 March 1798 – 2 October 1872) was a German-American jurist and political philosopher. He is best known for the Lieber Code, the first codification of the customary law and the laws of war for battlefield conduct, which serve ...
was Professor of Constitutional History at Columbia College Law School in the US from 1865. He lectured on ''The Rise of Our Constitution''. He recommended reading for the
Bill of Rights 1689 The Bill of Rights 1689 (sometimes known as the Bill of Rights 1688) is an Act of Parliament (United Kingdom), act of the Parliament of England that set out certain basic civil rights and changed the succession to the Monarchy of England, Engl ...
, which he took to be foundational for the US Constitution, from Edward Shepherd Creasy's ''Rise and Progress of the English Constitution'', then Hallam's book, then from an annotated edition of Jean-Louis de Lolme's work on the English constitution, before the legal works of
William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, Justice (title), justice, and Tory (British political party), Tory politician most noted for his ''Commentaries on the Laws of England'', which became the best-k ...
and others. With the work of Stubbs, succeeded by Samuel Rawson Gardiner as an author of British constitutional history derived from close reading of documents (traditional diplomatics), it played a central role in British historiography. During this period of "traditional constitutional history", the
Second British Empire The British Empire comprised the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts establish ...
expanded, but its history initially was kept separate. The Whigs of the 18th century had often been supporters of American independence. Radicals of the 19th century distrusted imperial thinking. In the twentieth century, Gardiner's approach was attacked by Roland Greene Usher (1880–1957), and both Herbert Butterfield and
Lewis Namier Sir Lewis Bernstein Namier (; 27 June 1888 – 19 August 1960) was a British historian of Polish-Jewish background. His best-known works were '' The Structure of Politics at the Accession of George III'' (1929), ''England in the Age of the Ame ...
rejected the tradition. The
interwar period In the history of the 20th century, the interwar period, also known as the interbellum (), lasted from 11 November 1918 to 1 September 1939 (20 years, 9 months, 21 days) – from the end of World War I (WWI) to the beginning of World War II ( ...
was, however, still a time when the history of the British Empire was very largely taught through constitutional history. A representative figure is the historian Kenneth Wheare. Butterfield, who coined the term "Whig history" as a criticism, by the period of
World War II World War II or the Second World War (1 September 1939 – 2 September 1945) was a World war, global conflict between two coalitions: the Allies of World War II, Allies and the Axis powers. World War II by country, Nearly all of the wo ...
saw the imperial or "Tory" history as inseparable from it.


Notes

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