Band 19, Heft 2 - Focus: Constitutional Theory as Literature in the 19th-Century Anglosphere

As the twentieth century neared its end, commentators (including Robert Conquest and James C. Bennett) began to write on the “Anglosphere”. They used this term to denote an “association” of “English-speaking nations” (Conquest) and a “network civilisation” (Bennett). While discussion continues concerning the question of how best to characterise the Anglosphere, it is clearly a social formation with cultural, historical, and geopolitical significance. This essay seeks to deepen understanding of the Anglosphere by focusing on a feature of life in this context that lends it practical appeal. This is its openness (readiness to reconsider, in the light of experience, how things stand on matters of practical concern). With the aim of bringing openness in this sense into focus, this essay analyses the writings of the novelist Charles Dickens and the constitutional lawyer Albert Venn Dicey. Dickens’ commitment to openness is apparent in the emphasis he places on “strong powers of observation”. Dicey points up the practical significance of openness in his account of the role played by “public opinion” in the political and legal life of the United Kingdom. This essay also identifies Dickens and Dicey as bearers of a culture in which the English language, the common law, and the free market give expression to and sustain a commitment to openness. More particularly, it argues that openness is apparent in a distinct model of democracy (“data-stream democracy”) and in constitutional arrangements that facilitate responsiveness to the contingencies that all societies confront. The openness on which this essay focuses is also relevant to a disposition that legal, political, and other institutions in the Anglosphere work to foster. Oliver Wendell Holmes throws light on this disposition when he declares that “[t]he life of the law has not been logic; it has been experience”. Both this disposition, and the openness (institutional and cultural) that fosters it, yield support for the conclusion that the Anglosphere is a distinctive social formation.

The article explores the intersections between constitutional theory and literary discourse in the 19th-century Anglosphere, focusing on the interactions between Britain and the United States, in general, and on “constitutional colonialism” and the related theme of slavery, in particular. Firstly, it examines how constitutional thought was framed through rhetorical, narrative, and literary techniques, also shaping national identity and political ideology. Secondly, it assesses the UK and the U.S. constitutional frameworks through this lens, emphasising the literary and rhetorical features inherent in their constitutional contexts. The article then investigates the tensions between constitutional promises of justice, autonomy, and citizenship, and the realities of colonial oppression, with a particular focus on slavery as one of the most divisive issues of the 19th century. As literature played a crucial role in raising public awareness and influencing political decisions regarding the theme of slavery, the article will finally highlight how some literary texts, such as Anthony Trollope’s North America , acted simultaneously as a medium of resistance and legal discourse.

For a reflection on the role of literature in the construction of constitutionalism within the Anglosphere, the writings of a French salon-hostess in the late eighteenth and early nineteenth centuries might not seem the obvious choice. And yet, to exclude Germaine de Staël from the constitutional dialogue taking place in the Anglosphere at this time is to erase a crucial site of inter-pollination between the Franco and Anglo worlds that, so often, defined themselves in opposition to one another. In re-establishing these ties and cross-border conversations, we can see that de Staël, a prolific writer of both constitutional theory and fiction, makes an excellent candidate for an investigation into the role of literature in constitutionalism. To explore the interrelationship between literature and constitutional theory in de Staël’s thinking, this article reads across her literary texts and political treatises. Firstly, the article situates de Staël within the Anglosphere as a unique commentator on English constitutionalism. It then explores in more detail the co-constitutive role of literature and politics in de Staël’s theories of constitutionalism, and the central role she stakes out for literature in the construction of “the nation.”

This short piece makes some points on the end of Victorian age as perceived and fictionalised by a contemporary author, John Galsworthy. In one of the novels of his Forsyte Saga , first published in 1921, Galsworthy brought back Queen Victoria’s death and funeral procession. After analysing this passage, the piece addresses the issues of historical continuity and legitimacy of the British monarchy.

This essay argues that the Indian Penal Code (1862) served as a surrogate constitution under colonial law. Lacking a framework for civil rights, the Law Commissioners sought to bring clarity to the law by supplementing the criminal code with extensive notes and illustrations. While the IPC aspired to universality in substantive law, the notes and illustrations worked in opposition to this goal by perpetuating racial hierarchies. Using hypothetical narratives, the notes and illustrations painted a portrait of Indians as habitually criminal and unruly in their appetites and affections. The tension between the IPC’s universalist rhetoric and its persistent recourse to racial difference is exemplified in the laws dealing with marriage. Focusing especially on bigamy, the essay examines how the threat of colonial contamination both worked to discipline the Indian population and to reinforce marital normativity in England. In legal trials as well as novels, the bigamy plot captured the Victorian imagination. The fascination with bigamy, however, was also routed toward more cautionary ends. Turning to Charlotte Brontë’s Jane Eyre , which is typically read as a story of Jane’s development into a proper English woman, this essay shows how Rochester’s own development from colonial bigamist into faithful English husband epitomizes the Victorian legal and literary ideal.

After the English Reformation, the Anglo/British constitutional settlement was characterised, both legally and theologically, by the co-extensiveness of Church and body politic. Under this ‘Protestant constitution’, representation and moralisation coincided; and Parliament reflected the English, decisively Anglican, and conformist body politic. The enactment of the Sacramental Test Act 1828 , the Catholic Relief Act 1829 , and the Great Reform Act 1832 put an end to this organic union; Dissenters and Catholics alike could now elect and be elected to Parliament. Reactions were heart-breaking. That of John Keble – the father of the Oxford Movement – was particularly poignant. When the Irish Temporalities Bill was tabled before Parliament, Keble decided to intervene. He addressed the question in a sermon preached at St. Mary’s, Oxford, on July 14th, 1833, under the heading of ‘National Apostasy’. Besides hinting at a possible disestablishment of the Church of England, his sermon was (and still is) a masterpiece in constitutional theory.

The paradigm that only humans, by virtue of being human, are persons and that non-human entities – such as cooperative groups of humans, ecological systems, or artificial intelligences – cannot be legal persons is problematic. This essay advocates for a paradigm shift in practical philosophy and legal theory: instead of viewing personhood in law as something one can be , it should be understood as a fiction – a role that entities can assume. This reframing allows us to ask a more meaningful question: “Who can have personhood in law?” rather than “Who can be a person?” The essay reconstructs the constructive nature of legal personality and explores this idea through the lens of the Apollonian dream. Ultimately, the goal of law should be to unite humans and their personhood – initially conceived – by permitting both legal and non-legal communication for conflict resolution within the legal framework, thus recognizing a right to law and simultaneously a right to non-law.

The essay defends a conception of emotion generated upon witnessing a tragic incident as embedding judgment and hence not to be dismissed as lacking cognition and intelligence. It takes a photograph of lynching as a tragic motif to interrogate the multiple emotions that are experienced by spectators based on their respective and differing emotional and political belief systems. The evaluative framework for emotions involving a thing of value that forms a part of the belief systems of the spectators and the consequent analysis of the belief system upon witnessing a tragedy in the form of emotional outlet is significantly discussed in the essay. Having sufficiently defended emotions as embedding cognitive judgment, the conversation orients towards emotions expressed by a lone spectator as being thickly political revealing the hidden political belief system of the spectator. Consequently, this unravels the unexamined belief system of the polity, breathing and operating under the veneer of a liberal constitutional framework. Having shown the centrality of emotions in shaping, denting or moulding the political belief system, the essay argues that citizens who express varying emotions upon witnessing a tragedy should consciously embrace ethical spectatorship which entails active seeing as opposed to viewing. Ethical spectatorship is a political obligation arising from individuals occupying the shared civic political space as citizens, thereby creating an imagination of a new polity based of duties of civility and felt politics. Through this essay, an avoidable tragedy involving loss of lives of fellow citizens is interrogated and rectified on the plain of belief system that has allowed such tragedy to become routine in a polity while opening avenues for alternative imaginations of shared community and political living.

This paper traces how the Roman notion of fides evolved into the concept of good faith, which is central to contract law theory. It explores how fides was initially understood in Roman society as a divine presence within the inner sphere of individuals, symbolizing honesty and loyalty in social relationships. To illustrate how fides transitioned into the legal domain through natural law and procedural law, the paper examines three key developments over the longue durée of European private law: the emergence of the bonus vir (good and reasonable man) standard, the evolution of consensual contracts, and the doctrine of aequitas naturalis (natural equity). The legal evolution of good faith from a moral-religious phenomenon to a legal principle highlights how loyalty to promises and honesty, which belong to the inner sphere, and their relationship to their outward manifestations were addressed in law. It also demonstrates how the values tied to fides became integral to European legal traditions thereby shaping modern contract law.