Trans-anticonstitutionalism

Abstract

Assuming the existence of non-state normativity, it is reasoned that some typical constitutional problems are currently being settled through anti-constitutional forms, which may stem from non-domestic law and politics. In effect, it is possible to discern movements exploiting the shortcomings of democracy, forming non-state normative flows importing and exporting anti-constitutionalism, and pressuring constitutional orders to change. In this paper, it is demonstrated that anti-constitutional communications can come from both legal and political systems, and from both state and transnational, non-state movements. In my opinion, albeit affecting also the central, rich states, anti-constitutional discourses and practices are finding more fertile ground among the peripheral, weak ones. Illustrating the migration and implementation of anti-constitutional communications with political examples and legal cases, I hold that these phenomena are weakening not only modern constitutionalism as a normative and political fact, but also the conception of democratic constitutionalism as a pivotal normative horizon of world society. Paradoxically, the destruction of modern, democratic constitutionalism through anti-constitutional norms and political decisions appears to be also based on constitutional semantics. I call such a phenomenon 'trans-anticonstitutionalism'.