Between liberal constitutionalism and new representations of constitutionalism: when constitutional concepts are swinging

Classical concepts of constitutionalism had to adapt to new realities, new challenges, new political demands. If terminology has remained quite similar, its meaning seems to have changed, sometimes implicitly. These conceptual attempts face epistemological choices that need to be of some interest and useful for constitutional knowledge. In that way, one constitutional concept could be extended, or defined differently, in order to inspire a new way of thinking or to shape another representation of the world.

Rights of Nature or community right in new constitutionalism?

The Ecuadorian Constitution of 2008 and the one of the Plurinational State of Bolivia of 2009 recognized Nature as a subject of law. They indeed broke with the classical constitutional concepts, considered as “anthropocentric”, “ethnocentric”, and disconnected from social, cultural and territorial realities. Tribunals from different horizons established principles inspired of marginalized ethnic and cultural groups cosmovisionss, and reevaluated the constitutional mimetism that followed independencies of colonized territories.
In the continuity of this new constitutionalism, “biocultural rights” where affirmed. They suggested that living entities of nature are subjects of law, since they allow the existence of different cultures and forms of life. What are the cornerstone of this recognition and its practical consequences? Does it present the aim to preserve naturel elements independently of human communities rights to a healthy environment, for example?

The Nature of Constitutional Concepts

If we do not want to pretend that legal expressions have some kind of ontological ‘essence’, then we have two (‘anti-essentialist’) options: either (1) we should view their meanings as their role played in the constitutional discourse (description of the usual meanings of legal terms), or (2) we should recognize that the definition and re-definition of constitutional concepts are never just descriptions, but they are rather suggestions about their meanings which are consistent with our political preferences. The latter option, which I believe is nearer to the reality of constitutional discourses than the first one, means that there is an ongoing political struggle over who defines concepts and how, and concepts are viewed something like squares on a chessboard which can be occupied. Thus, when we ‘describe’ the constitutional concepts we actually do not just describe them but rather implicitly prescribe a use which favors our political preferences.

External actors in constitution making: does constituent power still have its place in constitutional theory

The concepts of “the people”, its constituent power and its sovereignty are fundamentals of the modern constitutional theory. The legitimacy of one constitution is based on the people’s right in the elaboration and adoption of the supreme norm. Two historical events- the American and French revolutions- have contributed to the rise of this “bible” of constitutional theory. Nevertheless History has knew multiple constitutional processes that do not abide by this universal dogma, and involve foreign actors- The purpose of our paper is to relate the discussions on the relevance of the classical concept of constituent power of the people, regarding its theoretical weaknesses (e.g. the impossibility in defining and delimiting a people..) or its applicability in the contemporary context (e.g. the internationalization of constitutional Law), thus justifying these cases of foreign interventions; and the reasons why this classic concept should be either abandoned or remodeled.