Author(s): Irena Pejić
Subject(s): Constitutional Law, Globalization
Published by: Правни факултет Универзитета у Нишу
Keywords: Constitution; globalization; comparative constitutional law

Summary/Abstract: In constitutional theory, the adoption of the first constitutions or the implementation of radical constitutional changes is qualified as the initial act of confirming the constituent power, which shall functionally justify the existence of the national community and its identity. However, as a result of globalization, this function of the constitution may be retained only in procedural terms, which implies that the constituent power “plays” the intended role only formally in order to stabilize and strengthen the regulatory framework for the operation of the state and the exercise of its sovereignty. On the other hand, the substantive aspect of constitutional creation of the legal order has been weakening for years and has has almost disappeared in the conditions of constitutionalizationof international law and globalization of international legal order. Namely, as the constitution-makers are unable to exercise their original “constitutional design” function of “creating” the constitutional order, they have to resort to “borrowing” the constitutional solutions that are considered to be acceptable and proven in practice. In comparative constitutional law, Frederick Schauer uses the new term “migration of constitutional ideas” as an attempt to explain (in milder terms) what has been happening in countries that have experienced a complete constitutional revision. The substantive aspect of the constituent power has been reduced to the level of borrowing legal principles from the “buffet”, although it also does not entail/imply full freedom of choice; namely, the “menu” is limited depending on the position of the specific state in international relations (e.g. the state’s position in the European integration process). Therefore, it seems that the normative analysis of the Constitution (with a capital letter “C”) must be replaced by the analysis of the constitutional practice (constitution in reality - with a small letter “c”), given the fact that in the course of its development the constitutional order has spun out of control of constitution-makers and is now operating as the so-called “living constitution”. It all points to a significant erosion of the traditional constituent power, if not in its entirety, then at least in terms of some of its functions.

  • Issue Year: LVI/2017
  • Issue No: 76
  • Page Range: 35-50
  • Page Count: 16
  • Language: Serbian