The Political Dimension of Constitutional Law by Unknown

Author:Unknown
Language: eng
Format: epub
ISBN: 9783030384593
Publisher: Springer International Publishing

5 The Functions of a “Political” Approach

The political approach to constitutional law can pursue very different, more or less prescriptive, objectives since it serves at once to define the constitution, modify the way in which constitutional law is described and, frequently, produce certain representations of constitutional law. The prescriptive element is thus not always situated at the same level of discourse.

Firstly, it may serve to legitimise the exercise of power. The uses of the concepts of political law can provide a limitless resource for legitimising political practices which lack any constitutional basis. Arguments could be drawn from theories of constitutional customs, or from the political constitution, to base an authoritarian use of power in the field of constitutional and political law. It is no coincidence that certain concepts have also been used by authoritarian regimes. Any “violation of the constitution” would thus be dissolved into a “normal” practice of political power. This essentialisation of the “political” self-legitimised by concepts that confer a legal basis upon it can also pose serious problems for the analysis of the law. Indeed it could preclude any critical distance from the exercise of power and its strategies of justification. Therefore, the issue of a “political” approach depends entirely on the preservation of a critical distance through the distinction between several exercises of power: “valid” political law and the violation of the law. Concepts must thus be constructed that make it possible to distinguish uses of power that comply with political constitutional law from those that do not.

This second type of function might be described as “constructive”. It is directed at establishing the conditions in which a constitutional interpretation could be qualified as a custom or convention of the constitution. Outside the Common Law tradition—and thus in systems that rely on the principle of the supremacy of the written constitution—legal actors rarely recognise the notion of a convention of the constitution. When doctrine does make use of such concepts (a convention of the constitution or constitutional custom), they are presented as descriptive of a mode of production of political law that would be accepted and recognised by the actors concerned. Two problems present themselves in this context. Firstly, these criteria are sometimes difficult to use. The example of the criterion of the acceptance of the rule presents serious difficulties depending on whether a subjective approach is adopted—subjective consent to the content of the rule—or rather an objective one—respect (or application) of the rule in practice. Furthermore, such a description is never truly removed from the prescriptive or dogmatic objective. The latter requires pertinent criteria to be devised that allow a distinction to be drawn between valid political law and non-law. While such criteria vary depending on the actors concerned, they also translate certain balances or principles inherent in constitutionalism: the focus might be on the sovereignty of the people and/or on the balance of power. Thus, the final decision by the people could endorse the new constitutional meaning by bringing to power the party or institution behind it.

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