The contribution aoffers a short analysis of Bruce Ackerman's book "Revolutionary Constitutionalism: Charismatic Leadership and the Rule of Law". In particular the Author focuses on two key issues of Ackerman's analysis. The first relevant aspect is the role played by the judiciary, especially by constitutional and supreme Courts, in the revolutionary dynamic. The second one is the cultural diagnosis of the EU crisis and of its legitimacy, read in the light of the different constitutional paths (elite-driven, revolutionary and establishmentarian) taken by EU Member States

N. Zanon

English

AIR Universita degli studi di Milano

ITALIAN JOURNAL OF PUBLIC LAW, VOL. 12         ISSUE 1/2020 
 
 5 
ARTICLES 
 
SOME REMARKS ON BRUCE ACKERMAN’S 
“REVOLUTIONARY CONSTITUTIONS: CHARISMATIC 
LEADERSHIP AND THE RULE OF LAW” 
Nicolò Zanon* 
 
Abstract  
The contribution offers  a short analysis of Bruce Ackerman’s 
book “Revolutionary Constitutions: Charismatic Leadership and 
the Rule of Law”. In particular the Author focuses on two key 
issues of Ackerman’s analysis. The first  relevant aspect is the  role 
played by the judiciary, especially by constitutional and supreme 
Courts, in the revolutionary dynamic. The second one is the cultural 
diagnosis of the EU crisis and of its legitimacy, read in the light of 
the different constitutional paths (elite-driven, revolutionary and 
establishmentarian)  taken by EU Member States. 
 
 
1. This is a short analysis on Bruce Ackerman’s new book 
“Revolutionary Constitutions: Charismatic Leadership and the Rule of 
Law”. 
Despite the title of his famous essay on “The Rise of World 
Constitutionalism”1, at the very beginning of the new book, 
Ackerman puts a warning: Constitutionalism is not a “one-size-fits-
all” ideal that animates a common project throughout the world. 
Instead, there are different pathways trough which 
Constitutions have won legitimacy. 
The big issue is precisely “Legitimacy of Power”: Bruce 
Ackerman is overtly on Max Weber’s pathway and spirit. 
He is well aware that also for Constitutionalism the key point 
is legitimacy of power. According to him, the rule of law has two 
                                                   
* Justice at the Italian Constitutional Court; Full Professor of Constitutional Law, 
University of Milan.  
1 B. Ackerman, The Rise of World Constitutionalism, 83 VA. L. REV. 771 (1997). 
NICOLO’ ZANON – SOME REMARKS 
 
 6 
very different meanings: on one hand, rule of law involves the 
imposition of significant constraints on top decision-makers. But on 
the other hand the broader “rule of law ideal” deals primarily with 
the techniques by which top decision-makers try to control 
everybody else: rule of law is a fundamental legitimating principle. 
We can’t forget it. Quoting from the Introduction: “the presence or 
absence of a widespread belief in constitutional legitimacy can play 
an important – sometimes all-important – role in shaping political 
and social life”2. 
As I said, according to Ackerman there are different 
pathways trough which Constitutions have won legitimacy over 
the past century all over the world: and this is the first of a series of 
books that explore these different pathways. 
Ackerman analyzes three ideal-types.   
The first scenario and the first ideal type is precisely 
“Revolutionary Constitutionalism”. Under this the scenario, a 
revolutionary movement makes a big effort to mobilize the masses 
against the existing regime. Ackerman focuses on success stories, in 
which revolutionary-outsiders manage to oust establishment-
insiders from political authority. He indicates two pairwise 
comparisons: in Europe France and Italy after the Second World 
War, but also Poland in the 80’s. Outside Europe: India and South 
Africa, but also Iran.  
The goal of the first volume is precisely to understand the 
legitimating dynamics, in a revolutionary scenario, through which 
one or another Constitution gains its central claim to authority in 
organizing the new regime - both for the newly ascendant 
governing elites, and for the millions of followers who supported 
the collective effort to revolutionize the system.  
Revolutionary scenario, I said, but I think it’s very important 
to highlight that the book discusses what Ackerman calls 
“Revolutions on human scale”. It’s a particular kind of Revolution, 
very different from revolutions in a totalitarian perspective. This 
kind of Revolution remains a very ambitious affair but doesn’t 
attempt a total makeover of the society: it’s a Revolution that 
focuses on particular spheres of social or political life. This kind of 
Revolution doesn’t aim to create a “brave new world” or to change 
the human nature: it’s a new beginning not for heroes but for 
                                                   
2 B. Ackerman, Revolutionary Constitutions. Charismatic Leadership and the Rule of 
Law, 3 (2019). 
ITALIAN JOURNAL OF PUBLIC LAW, VOL. 12         ISSUE 1/2020 
 
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ordinary people: “time and again we will see movement leaders, in 
collaboration with grass-roots activists, channel their high-energy 
politics into constitutions that credibly serve, both to elites and 
ordinary citizens, as an enduring legacy of their great acts of 
collective sacrifice”3. 
Anyway, in all those examples of Revolution a central role is 
played by charismatic leaders: De Gaulle, Nehru, Mandela, 
Khomeini, Walesa and in Italy Alcide De Gasperi (whose role is 
much emphasized in the chapter regarding Italy).  
The main problem for all these leaders, in what Ackerman 
calls time 2 of the revolutionary dynamic (time 1 is the time for 
struggle against the old regime) is the constitutionalisation of 
revolutionary charisma. The insurgent leaders and movements 
translate their high-energy politics into a Constitution that seeks to 
prevent a relapse into the past and commits the new regime to the 
new principles proclaimed during the hard struggle in time 1. In this 
dynamic, crucial relationships and contrasts arise between new 
political and constitutional actors - especially Courts, on one hand, 
and the new political class, on the other.  
The second ideal-type will be the subject of the second 
volume, but on the first one we have some previews, and it’s very 
useful to speak a little about it because second and third scenarios 
help a better understanding of the first one. 
Under this second scenario (the second ideal-type: 
establishmentarian pathway), the political and constitutional order 
is built by pragmatic insiders, not by revolutionary outsiders. In 
this ideal-type, when confronting popular movement seeking a 
fundamental change, the insider-establishment responds with 
strategic concessions that split the outsiders into moderate and 
radical camps. They then invite the moderate outsiders to desert 
their radical brethren and join the political establishment in 
governing the country. The Reform Act of 1832 and the Parliament 
Act in 1911 in Great Britain are paradigmatic examples, in which 
moderate insiders and sensible outsiders join together.  
Under the third scenario, in the third ideal type (elitist 
pathway), subject of the third book, regime-change occurs without 
the pressure of a massive popular uprising, and we are in presence 
of an “elite construction”. The examples here are the Basic law of 
Germany and the Constitution of Japan after the second world war 
                                                   
3 Ibidem, 42. 
NICOLO’ ZANON – SOME REMARKS 
 
 8 
II, but also the Constitution of Spain (1978) after Franco’s death. The 
other important case-study is the European Union and its 
“Constitution” (am I authorized saying so? I think I’m not).  
As we see, in this book the research methodology is not a 
strictly positivistic one. Instead, political science and comparative 
constitutional law are masterfully related with history, of course, 
and sociology.  
I think the message of this new book is clear. As Italian and 
European citizens we are now facing huge challenges and crisis, 
and only an high degree of consciousness allows scholars to 
develop plausible analysis.  
Ackerman’s aim is diagnosis not cure, but a correct diagnosis 
is an essential requirement. 
 
 
2. The first short remark is about the role played by the 
judiciary, especially by constitutional and supreme Courts, in the 
revolutionary dynamic.  
Ackerman’s approach is not a Court-centered approach, as 
we are used to read amongst European scholars. These traditional 
approaches are very sensible to the common law/civil law split, 
because of the big differences existing between Anglo-American 
and Continental styles of judicial review. Instead, Ackerman’s key 
point is the problem of the legitimating the regime as a hole in the 
revolutionary dynamic. In this dynamic, the Courts are important, 
but not always all-important: «my challenge is to explore the 
dynamic process through which courts may – or may not – play an 
increasingly legitimate role in the evolving system over time».  
Regimes traveling down the pathways described by 
establishmentarian and elitist pathways confront very different 
legitimation challenges from those encountered along the 
revolutionary track. So judges play different roles in meeting these 
challenges, and so do Supreme and Constitutional Courts.  
Ackerman reports that much recent works obscure these 
differences, and treat Constitutional Courts as if they were merely 
engaged in a world-wide conversation about the meaning of “free-
speech”, “human dignity” and so on.  
I join this concern and, if I may, I say that it would be better 
for scholars to stop with the rhetorical connection to the delights of 
“dialogue” between constitutional and European and supreme 
ITALIAN JOURNAL OF PUBLIC LAW, VOL. 12         ISSUE 1/2020 
 
 9 
Courts all over Europe and all over the world4. I’m afraid it risks to 
be just the self-centred illustration of selected values shared only by 
a “new class” of intellectuals, justices, academics, without any real 
connection with historical, political, institutional dynamics.      
Instead, I will take seriously the role (drawn by Ackerman) 
of Constitutional or Supreme Courts in the revolutionary dynamic, 
and especially in time of the “constitutionalisation of charisma”. 
And I’m not sure to share Ackerman’s point of view, at least when 
speaking of Italy.   
In what Ackerman calls time 3, in the revolutionary 
dynamic, as the founding generation (the Framers) dies off, the 
revolutionary regime faces a “legitimacy vacuum”. Usually we 
have a series of “succession crisis” in which an increasingly 
confident judiciary will confront an increasingly normalized 
political class in an intensive struggle to occupy the legitimacy 
vacuum left by the preceding generation. In many cases the 
judiciary successfully manages to gain the grudging recognition of 
its claims from the political branches. That’s precisely the rise of the 
judicial review.  
According to Ackerman, after the De Gasperi’s failure the 
Italian constitutional Court emerges from a succession crisis to gain 
broad political recognition as a privileged legal guardian of the 
nation’s revolutionary principles.  
I’m not sure to share this idea and I think the way in which 
the Italian constitutional Court has gained its role and legitimacy is 
quite different.  
First of all, I think in Italy the constitutionalisation of 
charisma has been a more shared, cooperative, collective 
procedure, if I may say so: Alcide De Gasperi has been an 
extraordinary political leader for Italy, but he was not the only one.  
In 50’s and 60’s the party system in Italy was strong. After 
all, the antifascist parties, all together, have been the key player of 
the constitutional revolution; the Parliament’s legitimacy was 
strong too, and the role of the other balancing power, the President 
of the Republic, has been quite important. So, I’m not sure we had 
a real “legitimacy vacuum” in time 3.  
On the other hand, when speaking about Italian 
Constitutional Court, the first group of justices fully understood 
                                                   
4 See a non-conformist analysis in G. De Vergottini, Oltre il dialogo tra le Corti. 
Giudici, diritto straniero, comparazioni, (2010). 
NICOLO’ ZANON – SOME REMARKS 
 
 10 
that the role of this totally new actor would depend more on the 
concrete acceptance of it by all the other constitutional and political 
actors than by its legal force within the Constitution. The 
acceptance of the Court in public opinion, it’s legitimacy, was very 
important, but, more important, I think, was the acceptance of the 
Court among the other political actors. And the Italian Court had 
successfully the chance not to confront directly against the political 
majority and the sitting Parliament in an intensive struggle to 
occupy the “legitimacy vacuum” left by the preceding generation.  
The “vacuum” was in fact occupied by a strong party-
system, and from 1956 to 70’s the Court rarely considered the 
constitutional validity of statutes enacted by a post-Constitution 
Parliament, and till 70’s the Court never considered the validity of 
statutes enacted by a Parliament sitting at the time when the 
decision was given5. Rather, as we know, the Italian Court played a 
central role in the modernization of our democracy removing from 
our legal system many unconstitutional statutes dating back to the 
nineteenth century and, above all, from the Fascist era.    
So, Parliament and party-system, on one hand, and 
constitutional Court, on the other hand, did different jobs, and the 
Italian Constitutional Court has gained its legitimacy through a 
way not corresponding with Ackerman’s view. 
 
 
3. The second short remark is about European Union. 
Although the subject isn’t directly the European Union, this 
book includes a cultural diagnosis about its crisis.  
The leading nations of Europe, Ackerman says, come to the 
Union along very different constitutional paths. The Constitutions 
of Germany and Spain are elite constructions. France, Italy and 
Poland have moved down the revolutionary path. Great Britain 
emerges from the establishmentarian tradition. Little wonder, the 
Author concludes, these countries have troubles in finding a 
common pathway to a more perfect Union, or just to a Union. They 
don’t even converge on the appropriate path to take in resolving 
the crisis that threaten to rip the Union apart.  
                                                   
5 See V. Barsotti, P. Carozza, M. Cartabia, A. Simoncini, Italian Constitutional 
Justice in a Global Context (2016), 37 ff. 
ITALIAN JOURNAL OF PUBLIC LAW, VOL. 12         ISSUE 1/2020 
 
 11 
But the main issue is always legitimacy and European Union 
has a problem with constitutional legitimacy. I would like to 
underline some Ackerman’s remarks on that issue.  
As we know, a decade ago the member states of the EU met 
at the Brussel Convention to launch an appeal to “the Peoples of 
Europe” to ratify a Constitutional Treaty. I remember discussions 
on technical, legal and theoretical objections against a European 
referendum. After all, does an “European People” exist? Can we 
say “We the people”? That’s the right question for Professor 
Ackerman… (an affirmative answer is now given by M. Luciani, Il 
futuro dell’Europa. Note a margine, in www.nomos-
leattualitaneldiritto.it n.2 del 2018). 
Anyway, the voters in France and in the Netherland rejected 
the proposed Treaty. But then, political elites met in Lisbon and 
hammered out a new agreement which contains many of the same 
terms and rules, and which currently provides the basic framework 
for the Union. Scholars, Ackerman says, emphasize the importance 
of this new Treaty. I should say: not only scholars, Courts all over 
Europe do the same. Both scholars and Courts usually ignore that 
Lisbon and others Treaty like Lisbon are elite constructions that 
avoided, as much as possible, consideration of their merits and 
contents by ordinary citizens. According to Ackerman: “this decade 
of evasion is allowing rising protest movements to present the 
Union as an alien force dominated by harsh technocrats, with 
Union-politicians serving as pseudo-democratic ornaments”6. I 
know, it sounds brutal, but I think it’s true.  
So, again, the message is clear. To face huge challenges we 
are confronting, we need a self-consciousness analysis and a large-
scale overview: Bruce Ackerman’s book give us both.  
 
 
 
                                                   
6 B. Ackerman, cit. at 2, 23. 


Some Remarks on Bruce Ackerman&apos;s &quot;Revolutionary Constitutionalism : Charismatic Leadership And The Rule Of Law&quot;

https://air.unimi.it/bitstream/2434/760382/2/2.ZANON.pdf

Some Remarks on Bruce Ackerman's "Revolutionary Constitutionalism : Charismatic Leadership And The Rule Of Law"

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AIR Universita degli studi di Milano

Some Remarks on Bruce Ackerman&apos;s &quot;Revolutionary Constitutionalism : Charismatic Leadership And The Rule Of Law&quot;

Abstract

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Full text

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AIR Universita degli studi di Milano

Some Remarks on Bruce Ackerman's "Revolutionary Constitutionalism : Charismatic Leadership And The Rule Of Law"