What is Transnational Constitutionalism and How Do We Study It?

Abstract

It is a great pleasure to introduce this Symposium on transitional constitutionalism. The papers present a thorough and topical investigation into the role of constitutions and constitutionalism surveying a number of jurisdictions across the globe. With our call for papers on `transitional constitutionalism', we hoped to gather a comparative investigation of constitutional change, and the role of constitutions and constitutionalism in processes of legal and political change. The call for papers was intentionally broad: it was not restricted, for example, to post-conflictual settings, nor was it couched in terms of transnational constitutionalism or transitional justice. Nor did we seek comparative case studies of substantive constitutional laws only. Rather than being structured by type and length, the Symposium is organised by category: the first part contains analyses focused primarily on a single jurisdiction, while those in the second part take either a broader comparative or a thematic approach. In this Introduction, I give an overview of the papers as they are presented, before moving on to suggest a methodology for studying transitional constitutionalism as a field of enquiry at the nexus of legal theory, political philosophy, and international law. In keeping with the comparative and international focus of the Journal, the papers collected here explore whether general or universal principles of `constitutions' exist as a feature of political organisation that warrant the suffix constitutionalism. We would not describe the Third Reich as a `constitutional' legal order, let alone a `constitutionalist' legal order, because it was characterised by absolute, arbitrary rule. On the other hand, it is coherent to talk about the `constitution of the Third Reich'. To this extent we must be careful with the concept of constitutionalism, because it may assume too much. But certainly it points to a de minimis concept of legality as a characteristic of the