Unconstitutional constitutional reforms: a normativist’s perspective

Abstract

Can elements of the «Constitution» be unconstitutional and what would be the legal consequences? Several courts have considered such hypotheses but few of them have nullified provisions pertaining to the formal constitution. Scholarly debates remain highly controversial and convincing explanations for one or another solution seem to be wanting. This paper addresses the puzzle from both the point of view of legal theory and at the level of comparative constitutional law in the perspective of analytic normativism. It makes the claim that this approach allows to better analyse the underlying question as a problem of complex hierarchies, which can provide solutions to cases in legal orders as different as Austria, France, Germany or Israel. Traditionally, the constitution is seen as one bloc on top of the legal system. But what this means remains often mysterious or unclear. If there could be something above this highest element, it could be considered from a moral perspective or in line with legal realism, a mere question of case-law. According to the conception set forth here, whether different levels of legal norms exist and what normative relations apply between them, is a question of positive law. Hence there may be several layers above what is usually considered primary legislation, if there are several legal forms, differentiated by their mode of production. The truly difficult problem, then, is to find out whether these difference are related to organized derogatory superiority, such that lower deficient norms can be nullified. Such structures appear more and more frequently in contemporary law. To better grasp this, we use the concept of non-equivalent polymorphism. The problem of whether courts are competent to annul lower level constitutional provisions is presently not explicitly settled in formal constitutions. It can —and should— nonetheless be solved through means of constitutional interpretation.