Law, Political Reconstruction and Constitutional Politics

Abstract

The purpose of this introductory article is to put the constitutional reconstruction that followed the collapse of Communism in 1989 in historical and macrosociological perspective. The `new constitutionalism' is considered the novel feature of the post-1989 transition to democracy, and is analytically contrasted with the old constitutionalism and the classic idea of rule of law, and with the ideological constitution-making of the intervening era. The role of constitutional courts as the typical institution of the new constitutionalism is highlighted. The concept of `constitutional politics' is developed to throw light on the process of political reconstruction, and the variation in its interface with the law is considered along a spectrum ranging from the `judicialization of politics' to the `politicization of the judiciary'. Contemporary constitutional regimes are compared with respect to their distance from ideological politico-legal regimes, the extent to which the emergency powers of the head of the state creates a situation of `dual legality', and in terms of the contribution of their major institutions to the transition to democracy.