Advertisement

About this book

Introduction

This second volume of ReConFort, published open access, addresses the decisive role of constitutional normativity, and focuses on discourses concerning the legal role of constitutional norms. Taken together with ReConFort I (National Sovereignty), it calls for an innovative reassessment of constitutional history drawing on key categories to convey the legal nature of the constitution itself (national sovereignty, precedence, justiciability of power, judiciary as constituted power).

In the late 18th and early 19th centuries, constitutional normativity began to complete the legal fixation of the entire political order. This juridification in one constitutional text resulted in a conceptual differentiation from ordinary law, which extends to alterability and justiciability. The early expressions of this ‘new order of the ages’ suggest an unprecedented and irremediable break with European legal tradition, be it with British colonial governance or the French ancien régime. In fact, while the shift to constitutions as a hierarchically ‘higher’ form of positive law was a revolutionary change, it also drew upon old liberties. The American constitutional discourse, which was itself heavily influenced by British common law, in turn served as an inspiration for a variety of constitutional experiments – from the French Revolution to Napoleon’s downfall, in the halls of the Frankfurt Assembly, on the road to a unified Italy, and in the later theoretical discourse of twentieth-century Austria. If the constitution states the legal rules for the law-making process, then its Kelsian primacy is mandatory.

Also included in this volume are the French originals and English translations of two vital documents. The first – Emmanuel Joseph Sieyès’ Du Jury Constitutionnaire (1795) – highlights an early attempt to reconcile the democratic values of the French Revolution with the pragmatic need to legally protect the Revolution. The second – the 1812 draft of the Constitution of the Kingdom of Poland – presents the ‘constitutional propaganda’ of the Russian Tsar Alexander I to bargain for the support of the Lithuanian and Polish nobility. These documents open new avenues of research into Europe’s constitutional history: one replete with diverse contexts and national experiences, but above all an overarching motif of constitutional decisiveness that served to complete the juridification of sovereignty. (www.reconfort.eu)



Keywords

Precedence of Constitution Normativity and Constitution Constitutional History of Europe Constitutionality of Revolutions American Constitutional History Constitutional Normativity Fundamental Laws Old Liberties in European History Unconstitutionality of Statutes Judicial Review Normativity and Precedence Constitutional precedence of the 3 May System Constitutional Precedence and Polish Substantial Criminal Law 1815 Constitution of the Kingdom of Poland Belgian Constitution of 1831 1815 Constitution of the United Kingdom of the Netherlands Constituent Power and Constitutionalism in 19th Century Norway Spirit of the Albertine Statute Hans Kelsen and Adolf Julius Merkl Open Access

Editors and affiliations

  • Ulrike Müßig
    • 1
  1. 1.Advanced Grantee of the ERC (ReConFort)University of Passau PassauGermany

Bibliographic information

  • DOI https://doi.org/10.1007/978-3-319-73037-0
  • Copyright Information The Editor(s) (if applicable) and The Author(s) 2018
  • Publisher Name Springer, Cham
  • eBook Packages Law and Criminology
  • Print ISBN 978-3-319-73036-3
  • Online ISBN 978-3-319-73037-0
  • Series Print ISSN 2198-9842
  • Series Online ISSN 2198-9850
  • Buy this book on publisher's site