Constitutional Change and Contractual Revision: Principles and Procedures

Abstract

This paper tackles the modes and procedures of institutional change, as well as those of constitutionalisation. The starting point for discussion is the current debate on the gradual/factual ‘constitutionalisation’ of the European Union: a constitutionalisation which seems, to a large degree, to derive from the rulings of the European Court. The decisive question, however, is one of whether such a mode of institutional/constitutional change might be considered to be ‘adequate’ within the current European setting. Following a brief explanation of the diverse notions of ‘constitutions’ and ‘contracts,’ the various modes of effecting ‘constitutional’ change—change by usage, by authoritative interpretation and by formal amendment—are contrasted with the primary method of ‘contractual’ revision; or, change through mutual consent. The various differences between the highlighted methods of change are investigated with reference to (1) the respective roles of the constituent and the constituted powers and (2) the respective relations between notions of ‘exit’ and ‘voice’. This theoretical exercise is followed by illustrations which highlight German and Swiss practice. The conclusion is drawn that in a context of ‘competing identities’, heterogeneity and segmentation, as well as one of ‘a polity in the making’, the contractual mode of institutional revision must be the preferred option.