Unravelling the paradox of political power and constitutional rights

08 February 2013

An acclaimed book by Professor Chris Thornhill which examines the social role and legitimating status of constitutions was the focus of our latest book colloquium, held on 7 February at the Centre for Socio-Legal Studies.
The author was joined by fellow academics to discuss his thesis that, rather than protecting the rights of citizens against abuses of power by the state, constitutions paradoxically serve to increase the power of political systems. In the book, A Sociology of Constitutions, Professor Thornhill reconstructs the evolution of constitutions throughout history to explore the reasons why modern societies require and place such value on constitutional texts.
Commentary on the book was provided by Denis Galligan, Professor of Socio-Legal Studies at Oxford; Richard Nobles, Professor of Law from Queen Mary University London; and Vincent Miró from CEU San Pablo University, Madrid.
Professor Galligan opened the discussion with an assessment of the definition and legitimacy of constitutions, exploring in which other ways states entrench political power, as well as alternative possible explanations for the development of modern constitutions, both in terms of their diffusion across nations, and through the influence of external factors such as international law.
Professor Nobles followed with an exploration of the influence of the sociologist Niklas Luhmann’s thinking on the debate, in which he argues that the historical development of the state saw the evolution of private, feudal forms of power to public, more abstract forms of power, directed through institutions. By a process of inclusion, citizens are made participants in the application of this power, through the creation of subjective legal rights, claimed from a central authority.
In Professor Thornhill’s analysis, Professor Nobles showed how weak states attempt to rule through law without balancing this inclusion of the citizen, but questioned his definition of weak states with reference to Stalinist Russia and Nazi Germany.
Vincent Miro brought a perspective from Continental Europe to his assessment of the book, focusing on the role of the Reformation, which was identified by Professor Thornhill as the defining moment in an ongoing process in which the state begins to rely on legal principles for articulating its legitimacy.
In his response, Professor Thornhill acknowledged that there may be room for greater consideration of feudalism in his analysis, before returning to his central thesis that constitutional rights are generated from within the political system. He closed by delivering a robust defence of his admittedly counter-intuitive conception of statehood, which equates strong states with a high degree of autonomy and the ability to implement statutory decisions in an inclusive way without extreme reliance on external actors.