Sessions

3202 Transconstitutionalism and the New Symbolic Dimensions of Constitutions II

WG Sociology of Constitutions

Room: B2.04

 

Chair:  Alberto Febbrajo | University of Macerata; CSISC

Jiří Přibáň | School of Law and Politics, Cardiff University

A Sociology of EU Constitutional Pluralism

 

Abstract

 

In this paper, I argue that constitutional pluralism of the EU needs to be comprehended not merely as a jurisprudential problem of the two or more legal systems operating within the EU and mutually recognising each other's normative claims, but as a sociological problem of the plurality of social systems, subsystems and normative regimes constituting the European society by their differentiated self-constitutions. Concepts of constitutional law, such as the basic constitutional norm, polity and constituent/constituted power, subsequently are to be treated as internal constructs of European supranational systems of positive law and politics. In other words, there is no ultimate political constitution and no basic norm to rule the totality of European society but a plurality of differentiated self-constituted normative systems evolving at European level and regulating both state and non-state power structures and operations. The constitutional claim of the EU 'United in diversity' (In varietate concordia), adopted by the European Convention in 2000, only can refer to the systemic concept of society as the unity of differences without any promise of the ultimate normative unity overarching these differences. 

Malgorzata Fuszara | ISNS University of Warsaw

Jacek Kurczewski | ISNS Uviversity of Warsaw

Conflict on Courts in Poland: Reforming the justiceand/or changing the constitution

 

Abstract

 

Organized Injustice in Communist Poland and demands for reform in 1980/1981 – From the Round Table Agreements 1989 to 1997 Constitution: Reform of Polish Justice – „Law and Justice” Party policy since 2016 - Assessment by Public Opinion in 1970s and after 1989 – Stereotypes and Experience with Justice and Attitudes in Kurczewski & Fuszara (2017) research – The constitutional meaning of the actual relationship between judiciary and other powers.

Marta Bucholc | Käte Hamburger Kolleg "Recht als Kultur" Bonn; University of Warsaw

State Sovereignty, Constitution and Post-Colonial Syndrome: the Case of Poland 2015-2018

 

Abstract

 

A variant of national identity which has become dominant in public discourse and in state practice in Poland after the elections of 2015 is based on twofold sense of danger: external (the European Union, the Germans, the Russians and other neighbors, refugees, foreign capital) and internal (post-Communist, liberals, corrupt judges, city professionals, ethnic minorities, etc. ).  An answer to both sets of dangers is a re-evaluation of the concept of state sovereignty in the official discourse of the governing party. In my talk, based on qualitative analysis of public discourses in Poland after 2015 and a selection of visual data, including anti-government demonstrations and events like the public rosary prayer along the national borders on the 7th of October 2017, I will discuss how national sovereignty is construed by the parties to the current political conflict in the country. I argue that the recent developments in legal and constitutional culture form a part of what I call the “post-colonial syndrome” of Polish society, and I will offer a socio-historical explanation of its emergence.  

António Carlos dos Santos | Universidade Europeia

Há cidadania de não contribuintes?

 

Abstract

 

Propõe-se a análise do seguinte tema: A construção da cidadania nos Estados modernos vai de par com a construção do estatuto de contribuinte. Na União Europeia tem-se, até agora, procurado construir uma cidadania europeia desligada do estatuto de contribuintes. Se no plano puramente jurídico tal desiderato parece possível ainda que no quadro de uma cidadania limitada, de segundo grau, mais difícil é aceitar essa separação de estatutos no plano político.  

Hobeth Martínez | IISL - UNAL - Dejusticia

Delicate balance: how the Colombian Constitutional Court has acted upon the current transition using the theory of “Unconstituttional Constitutional Amendments"

 

Abstract

 

The Colombian Constitutional Court must review the whole set of norms which would introduce into the legal system the peace agreement reached by the government and the FARC-EP’s guerrilla in 2016. Some of those norms are constitutional amendments which posed a tension on the Tribunal: either declaring them unconstitutional given that they introduce changes that may transform the political pact embodied by the permanent 1991’s Constitution and come from a political agreement with legitimacy’s deficit, or validating them in order to pave the way for the political transition despite to the significant changes it may entail to the current legal system. This tension is located in a divided society which rejected the peace agreement on October 2nd 2016’s plebiscite and imposed on the Constitutional Court the challenge to balance a weak popular legitimacy to the social and ethical imperative of peace.
Such tension is analyzed from two interconnected perspectives: the socio-legal one would allow to trace the Court’s organic and ideological composition in order to undercover the political basis supporting the judge’s views; the dogmatic one would discuss the decisions themselves in the frame of the theory of unconstitutional constitutional amendments. Such approach is carried out through a close analysis of the decisions adopted by the constitutional court in reviewing the constitutional amendments coming from the peace agreement’s implementation during 2017.
It is argued that the constitutional court’s predominant conservative and formalist composition led to restrictive decisions due to the weak  agreement’s popular legitimacy. The tribunal tried to balance such legitimacy by restricting some of the constitutional changes needed in the transition, and it did by using the theory of  the “Constitution’s substitution” which had not been used in previous transitions but to avoid concentration of power in one of the three branches (judicial, executive, legislative).

 

 

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