We are today witnessing the emergence of a new phenomenon in the public sphere: the phenomenon of constitutionalization. The term stands as an expression of a set of processes that are now having an impact on decision-making at all levels of government - local, national, regional, international. It concerns the attempt to subject all governmental action within a designated field to the structures, processes, principles and values of a ‘constitution’. Although having an impact across government, its prominence today is mainly attributable to the realization that the activity of governing is increasingly being exercised through arrangements that are not easily susceptible to the controls of national constitutions. Since governmental power is now being channelled through regional, supranational and international agencies, constitutionalization presents itself as a benevolent process, one of subjecting the exercise of all types of public power – whatever the medium of its exercise - to the discipline of constitutional procedures and norms. This paper examines the nature of this phenomenon, offers an account of its dynamic, and raises some questions about the processes it engenders. It concludes by suggesting that, as practised, constitutionalization represents a new stage – the fifth epoch - in the modernizing process of juridification.
Martin Loughlin is Professor of Public Law at the London School of Economics.