engleski

Process, consequences and means of (de)constitutionalization: a reconstruction of Guastini's concept of constitutionalization

The second half of the twentieth century witnessed a modification of many legal orders by a process called “constitutionalization”, although it is not always obvious what exactly has changed or how. Any theoretical endeavour to explain this phenomenon will be faced with questions such as how this process differs from other transformations of the legal order, what the conditions required for the process to arise are, whether there can be differences in the degree of this process, whether the process is reversible, what the consequences of this process are in the legal system, what kind of practice is necessary for the process to happen and what the ultimate cause of this practice is. Furthermore, different explanations can be more or less suitable for use in empirical research. The theory of constitutionalization advanced by Riccardo Guastini is a suitable conceptual tool for describing this phenomenon although some of its presuppositions should be made explicit. Based on his theory, constitutionalization will be understood as referring to a specific legal political model of the legal order and its description will consist of the following elements: process, consequences and means. In addition to a detailed analysis of the main elements of Guastini’s concept of constitutionalization, the concept of the reverse process of deconstitutionalization will be introduced. Since both concepts include the attitudes of judges and other actors as a necessary element, the concept of the legal consciousness as an integral part of both concepts will be proposed. The analysis provided in this article may contribute to theoretical and practical perspectives on constitutionalization and deconstitutionalization.

constitutionalization, deconstitutionalization, legal consciousness, constitution, Riccardo Guastini

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