MODULE 1.31
Ancient Constitutionalism
Ancient Constitutionalism is a collection of medieval and early modern doctrines that opposed royal absolutism, state centralization, and the doctrine of reason of state. These doctrines appealed to a “traditional fundamental law,” often rooted in medieval rather than classical times. The term "ancient" here signifies something "previous" or "old," akin to the French ancien in ancien régime. The laws and constitutions referenced were medieval, sometimes referred to as "Gothic," a term used during the Renaissance to describe the nonclassical, feudal, and Germanic periods preceding it.
During the Renaissance, "Gothic" often carried a derogatory connotation, evoking memories of Germanic tribes like the Visigoths and Ostrogoths as barbaric destroyers of Roman civilization. However, ancient constitutionalists occasionally embraced this heritage, idealizing the freedoms of the Germanic tribes in contrast to the perceived absolutism of Roman emperors.
Nature of Ancient Constitutions
Ancient constitutions, as imagined by early modern constitutionalists, were not unified written documents akin to modern constitutions. Instead, they were a mix of written charters, public law codes (such as Magna Carta), customs, institutional traditions, feudal oaths, and political compromises framed as "fundamental law." Central to the ancient constitutionalist argument was the claim that exercises of royal or centralized power were new, disruptive, and illegitimate, violating longstanding rules, customs, or laws.
These appeals were often inconsistent and occasionally contradictory. For instance, aristocratic privileges and urban liberties were both defended under the banner of ancient constitutionalism, despite the historical tensions between feudal lords and urban centers.
Influence in England
Ancient constitutionalism reached its zenith in 17th- and early 18th-century England. Ideas about a Saxon (Germanic) common law predating the Norman Conquest, Magna Carta as a restatement of preexisting rights, and the authority of Parliament to consent to taxation and legislation framed the Stuart kings’ actions as illegal innovations. These doctrines informed the ideologies of the Parliamentarians and Whigs, who framed events like the execution of Charles I and the Glorious Revolution as restorations of an ancient legal-political order.
Critics of ancient constitutionalism, such as Thomas Hobbes, argued against its premises. Hobbes maintained that customs did not gain legitimacy with age, that Parliament and common-law judges derived authority solely from sovereign kings, and that aristocratic privileges were discretionary grants, not enforceable rights. Later, David Hume subjected ancient constitutionalist history to rigorous critique in his History of England, arguing that the post-Glorious Revolution constitutional monarchy was a novel creation rather than a restoration of medieval institutions.
Broader European Context
Ancient constitutionalist rhetoric was widespread in early modern Europe, often emerging in conflicts between growing central state authority and traditional provinces, cities, or aristocratic lords. Kings frequently clashed with parliaments or estates representing various social groups. In France, for example, Calvinist monarchomachs in the 16th century and parlementaires in the 18th century used ancient constitutionalist arguments to resist royal power and advocate for summoning the Estates General, contributing to the French Revolution.
Montesquieu’s The Spirit of the Laws (1748) reconstructed French constitutional history in an ancient constitutionalist framework. He argued that respecting traditional rights and privileges of intermediary bodies safeguarded the rule of law in monarchies and distinguished them from despotisms.
Cross-Fertilization of Ideas
Although ancient constitutionalism was tied to the customs of specific regions, its ideas often crossed borders. For example, monarchomach writings were translated into English to support Whig arguments, Montesquieu drew on English constitutional practices, and Edmund Burke praised England for preserving the ancient constitution of Europe. Burke suggested that France could have reformed its constitutional order along English lines rather than undergoing revolution.
Decline and Legacy
From the French Revolution onward, most European states broke radically with their legal and political pasts. The rise of written, enacted constitutions in the 19th and early 20th centuries offered new ways to limit state power and bind governments to the rule of law. While these modern constitutions drew on ancient constitutionalist traditions, they aimed to provide clearer, more democratic frameworks, moving away from conflicting customs and aristocratic privileges. Nonetheless, the ideas and rhetoric of ancient constitutionalism left a lasting imprint on the development of constitutional thought and political ideology in Europe.