Constitution-Making: Process and Substance

Claude Klein and András Sajó

in The Oxford Handbook of Comparative Constitutional Law

Published in print May 2012 | ISBN: 9780199578610
Published online November 2012 | | DOI:

Series: Oxford Handbooks in Law

Constitution-Making: Process and Substance

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This article considers the procedural and resulting legitimacy issues of constitution-making and fundamental constitutional amendment. These procedures are partly related to the different historical scenarios and substantive (material) factors that give rise to e-constitutions. It considers only those political and economic factors which contribute to specific constitution-making features. In this regard, revolutions, regime change, and state-building are particularly relevant. In the case of revolutions there is a deliberate departure from, a rupture with, the existing constitution and the processes of legal and therefore legitimate change. This raises a fundamental issue of legitimacy: What gives the right (authority) to enact a new constitution? The article refers to the process that is not based on pre-existing rules of procedure as one of creation and the related constitution-making is called creation ex nihilo. In the case of regime change or reform the procedural modalities of the existing constitution might be observed.

Keywords: constitution making; constitutional amendment; revolutions; regime change; state-building; legitimacy

Article.  13494 words. 

Subjects: Law ; Comparative Law ; Constitutional and Administrative Law

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