The Guardian of the Distinction: constitutions as an instrument to protect the differences between law and politics

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The inflationary use of the terms constitution and constitutionalism has led to more and more irritation about their meaning. The terms have become the more uncertain the more they seem to dwell in the twilight between description and justification as well as between different legal, political or even moral claims. But the inflation may also express a legitimate demand for a more general framework to describe a rapidly developing phenomenon. The following contribution tries to work with the assumption that even an open understanding of constitutionalism has to interpret it as an institutional phenomenon that links law and politics without completely accommodating the differences between both. Constitutionalism connects law and politics in order to keep both apart from each other. If this is correct, many recent phenomena of constitutionalism may be seen rather as a problem than as a solution. The author develops this analysis on a conceptual and on an institutional level, leading to a consideration of phenomena in a “post-State” world

I. Introduction

The inflationary use of the terms constitution and constitutionalism has led to more and more irritation about their meaning [1]. The terms have become the more uncertain the more they seem to dwell in the twilight between description and justification as well as between different legal, political or even moral claims [2]. But the inflation may also express a legitimate demand for a more general framework to describe a rapidly developing phenomenon. The following contribution tries to work with the assumption that even an open understanding of constitutionalism has to interpret it as an institutional phenomenon that links law and politics without completely accommodating the differences between both. Constitutionalism connects law and politics in order to keep both apart from each other. If this is correct, many recent phenomena of constitutionalism may be seen rather as a problem than as a solution. This has to be developed on a conceptual (II.), and an institutional (III.) level especially with regard to phenomena beyond the state (IV.).

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