Constitutional Values as Legitimation Formulas: a systems theoretical critique

Constitutional values are too unstable and conflictual to provide for normative foundations of constitutional organisations. Values actually may become sources of legitimacy deficits and even illegitimacies themselves. National and post-national constitutions, therefore, require further institution-building and constitution-making to transform values into autonomous structures and semantics such as constitutional rights and supranational or transnational constituent polities. Following Luhmann’s statement that ‘all value lists are waiting lists’, I address the problem of constitutional values as a problem of their temporality. However, it does not mean that constitutional legitimacy is exclusively achievable by legal procedures and entirely depends on their efficiency. Constitutions incorporate values which are internally operationalised and reformulated as intrinsic values of legality, yet remain external to the purely technical concepts of constitutional law and politics.