Brexit and the Limits of Constitutionalism, Birkbeck Law, 15 Nov 2019

by | 20 Oct 2019

Lysenko’s The Bull was subject to contested interpretations. It was sometimes called: ‘Fascism Advances’.

Centre for Law and the Humanities

School of Law



Friday, 15th November, 2019, – 6-9 pm. Room TBC



 Marinos Diamantides (Birkbeck Law School)

Nanna Bonde Thylstrup (Copenhagen Business School)

Eva Nanopoulos (School of Law, Queen Mary)

Maria Tzanakopoulou (Birkbeck Law School)

Kojo Koram (Birkbeck Law School)

Stewart Motha (Birkbeck Law School)


The Constitution is Dead. Long Live the Constitution!  These words capture something of the futility of a solely legalistic response to the political and juridical contestations in relation to the UK’s withdrawal from the European Union. Parliament legislated to make withdrawal conditional on an agreement with the EU, the Supreme Court declared prorogation to be unlawful, but these inheritances of liberal constitutionalism have been dismissed as attempts by the ‘establishment’ to frustrate the will of the ‘people.

The Right frame the current political crisis as a conflict between Parliament and the People. This is illusory and dangerously disorienting. The Left claim instead that there is a ‘real’ conflict underpinning Brexit – one between those who profit from globalized capitalism and the marginalised who suffer its material conditions. Both the illusionists and materialists embrace mythic notions of sovereign autonomy and nationalism as means of mobilisation. They also mimic each other in claiming that social and economic disadvantages can be addressed through a domestic political agenda on issues such as public spending or controlling immigration. These trajectories of populism on the Right and Left are combined with a global rise of demagogic leaders who dismiss existing conventions of truth, democracy, the rule of law, and multilateralism.

The spectacle of the rise of populism alongside the erosion of a liberal constitutional consensus need not blind us to a mundane reality: for all the attention they draw, major political ‘decisions’ – by the electorate, by Parliament, by national ‘leaders’- are semblances of sovereign will that thrive on manufactured debates. They are affected by, and seldom result to more than, multiple strategic uses of ‘micro-institutions’ (such as regulations on who can vote, or rules on media balance and campaign spending), as Patrick Dunleavy recently defined them. How the macro-intuitions (such as electoral systems or parliaments) work in practice is massively affected by countless micro codes, practices, and social and cultural relations. This requires that our analyses must become more granular.

New communications technologies have also created constituencies that can be mobilized by transnational forces beyond the established political parties around the world. An increasingly fractured and fragmented demos is being constituted and manipulated with information on the economy, immigration, or security produced outside the previously agreed regimes of contestation. This suggests that several centuries of relatively stable structures and rationalities of the state (which were by no means benign) are collapsing.

This political and constitutional crisis calls on us to attend to the nature of political community and the legal scaffolds that sustain it. This includes addressing the following among other questions:

  • How to distinguish between productive myths (necessary fictions) built on experience to sustain community, and opportunistic lies aimed at dividing and destroying?
  • How to draw on the radical potential of new technologies while constraining their adverse impacts?
  • How to promote plurality in the longue durée of crumbling empires?
  • What will be the constraints on majoritarianism beyond the usual ‘constitutional paradox’ of constituent/constituted power (with its specific theological origins)?
  • How to address the material conditions of social and economic alienation without collapsing these imperatives into sovereignty and nationalisms?

Convened by Prof Marinos Diamantides and Prof Stewart Motha.

 School of Law, Birkbeck.


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