What is Constitutionalisation?

Abstract

Constitutionalisation involves the attempt to subject all governmental action within a designated field to the structures, processes, principles, and values of a ‘constitution’. Although this phenomenon is having an impact across government, its prominence today is mainly attributable to the realisation that the activity of governing is increasingly being exercised through transnational or international arrangements that are not easily susceptible to the controls of national constitutions. Constitutionalisation is the term used for the attempt to subject the exercise of all types of public power, whatever the medium of its exercise, to the discipline of constitutional procedures and norms. This chapter aims to specify the character of this phenomenon, offer an account of its dynamic, and raise some questions about the processes it engenders. It argues that constitutionalisation is best understood by reference to the related concepts of constitution and constitutionalism. It begin by considering the 18th-century movements that gave rise to the modern idea of a constitution and its associated political theory, that of constitutionalism. By situating constitutionalisation in this context, the chapter offers a perspective that will help us to reach a judgment on the question of whether this emerging phenomenon of constitutionalisation signals the global triumph of constitutionalism, its demise, or its transmutation.

Political Constitutionalism and the Question of Constitution‐Making

“…Again, its contested constitutionalization is the result of a quasi‐judicial process (Cass ). In this case, as noted by Loughlin (, 64), the growth of constitutional rhetoric has even altered the perception of the nature of the organization's task to the point of having transformed constitutionalism into an empty word.…”

“…It is at this stage that something really valuable in the criticism of constitutional law as higher law can be retrieved. It should not be forgotten that constitutionalization is not always the outcome of a revolutionary process or mass mobilization, but also the favourite tool of hegemonic social or political elites: “Constitutionalisation presupposes legalisation; as greater swathes of public life are brought within the ambit of constitutional norms, so too are they disciplined by formal legal procedures” (Loughlin , 61). This phenomenon has become visible in recent decades, in particular in supranational settings, where constitutionalization has come to mean a form of elite entrenchment (Nicol ).…”

Why justification? The structure of public power in transnational contexts

“…In practise the 'turn to justification' therefore implies a turn from democracy to the sort of frameworks associated with global administrative law, 38 and thereby a substitution of politics with law. 39 The turn to time therefore also implies a reconfiguration of the relationship between the cognitive and normative dimensions of decision-making in so far as adaptivity becomes central. However, this reconfiguration does not necessarily imply a diminishing centrality of normative modes but rather implies that they gain a more indirect strategic role, providing a second-order stabilisation of increasingly cognitivised processes.…”

Nature as “Grundnorm” of Global Constitutionalism: Contributions from the Global South

“…On the one hand, they reduce the concept of constitutionalization to a sort of judicially operated "graft" of constitutional elements onto any social order (DIGGELMANN; ALTWICKER, 2008) whether local or international, public or private, as if it was not originally a process of constitutional morphogenesis (i.e. a process of determination of specific legal forms concreted from the historical evolution and development of social and legal transformations (LOUGHLIN, 2010). On the other hand, they basically consider the notion of constitutionalization as a mere interpretative tool for the protection of human rights, and not as the result of "decisions" about ways to rationalize power and to exercise democracy (BETTI, 1953).…”