Transitional Constitutionalism versus the Rule of Law?

Hague Journal on the Rule of Law, Vol. 8, No. 2, pp. 337-355, 2016

Sydney Law School Research Paper No. 16/56

21 Pages Posted: 24 Jun 2016 Last revised: 19 Oct 2016

See all articles by Wojciech Sadurski

Wojciech Sadurski

The University of Sydney - Faculty of Law

Date Written: June 21, 2016

Abstract

This article considers some of the features of post-communist transitional constitutionalism, and identifies those characteristics which are undisputedly contrary to the rule of law in contemporary democratic constitutional orders. Some aspects of transitional constitutionalism’s “past-orientedness” are in strong tension with the rule of law. First, by establishing a legally protected orthodoxy about the past the law abandons the function of an impartial umpire, and abdicates the aspiration to generality which is one of the main precepts of the rule of law. Second, by suspending statutes of limitations for crimes which went unpunished due to political motivations, transitional constitutionalism aligns itself with the community’s morality but is likely to offend against the precept of lex retro non agit. Third, by applying various measures to remove members of the old elite, transitional constitutionalism is liable to offend against another cherished principle of the rule of law, nullum crimen, nulla poena sine lege.

The article also argues that the device of “transitory constitutional arrangements”, sometimes used in transitional constitutionalism, is incompatible with the rule of law’s requirement of certainty, stability and relative unchangeability of constitutional law. By offending against this principle, transitory constitutional arrangements close the gap between an unentrenched and relatively stable constitutional order and legislative order, thus undermining an important distinction between the fundamental rule of the (constitutional) game and political-legislative decisions taken within that framework.

Keywords: Rule of law, transitional constitutionalism, decommunisation, lustration, statutes of limitation, constitution-making

JEL Classification: K10, K30

Suggested Citation

Sadurski, Wojciech, Transitional Constitutionalism versus the Rule of Law? (June 21, 2016). Hague Journal on the Rule of Law, Vol. 8, No. 2, pp. 337-355, 2016, Sydney Law School Research Paper No. 16/56, Available at SSRN: https://ssrn.com/abstract=2799026

Wojciech Sadurski (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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