Reconsidering Constitutional Formation II Decisive Constitutional Normativity ― From Old Liberties to New Precedence

This second volume of ReConFort, published open access, addresses the decisive role of constitutional normativity, and focuses on discourses concerning the legal role of constitutional norms. Taken together with ReConFort I (National Sovereignty), it calls for an innovative reassessment of constitutional history drawing on key categories to convey the legal nature of the constitution itself (national sovereignty, precedence, justiciability of power, judiciary as constituted power).

In the late 18th and early 19th centuries, constitutional normativity began to complete the legal fixation of the entire political order. This juridification in one constitutional text resulted in a conceptual differentiation from ordinary law, which extends to alterability and justiciability. The early expressions of this ‘new order of the ages’ suggest an unprecedented and irremediable break with European legal tradition, be it with British colonial governance or the French ancien régime. In fact, while the shift to constitutions as a hierarchically ‘higher’ form of positive law was a revolutionary change, it also drew upon old liberties. The American constitutional discourse, which was itself heavily influenced by British common law, in turn served as an inspiration for a variety of constitutional experiments – from the French Revolution to Napoleon’s downfall, in the halls of the Frankfurt Assembly, on the road to a unified Italy, and in the later theoretical discourse of twentieth-century Austria. If the constitution states the legal rules for the law-making process, then its Kelsian primacy is mandatory.

Also included in this volume are the French originals and English translations of two vital documents. The first – Emmanuel Joseph Sieyès’ Du Jury Constitutionnaire (1795) – highlights an early attempt to reconcile the democratic values of the French Revolution with the pragmatic need to legally protect the Revolution. The second – the 1812 draft of the Constitution of the Kingdom of Poland – presents the ‘constitutional propaganda’ of the Russian Tsar Alexander I to bargain for the support of the Lithuanian and Polish nobility. These documents open new avenues of research into Europe’s constitutional history: one replete with diverse contexts and national experiences, but above all an overarching motif of constitutional decisiveness that served to complete the juridification of sovereignty. (www.reconfort.eu)

Ulrike Musig, nee Seif, is the Chair of the Department of Civil Law, German and European Legal History at the University of Passau. After studying law at the Universities of Wurzburg and Cambridge, and as a visitor at the Universite Paris II, Pantheon-Assas, she pursued her doctoral dissertation on comparative law, which was funded by the German National Academic Foundation. In 2000 she completed her postdoctoral qualification (habilitation) in European and German Legal History, Civil Law, Comparative Law and Private International Law at the University of Wurzburg, which garnered her the Bayerischer Habilitationsforderpreis (1996). Her postdoctoral thesis on comparative legal history won the DFG (German Research Foundation) Heisenberg Prize in 2000, was published as a monograph in 2003, in a second edition in 2009, and in a Spanish translation “El juez legal” (Dykinson) in 2014. In 2013 Ulrike Musig won the ERC Advanced Grant ReConFort (Reconsidering Constitutional Formation) for her research project on communication dependency of constitutional formation in 18th and 19th century Europe. Since 2014 she has been a corresponding member of the National Academy al-Andalus in the historic–judicial class (Ilustre Sociedad Andaluza de Estudios Historico-Juridicos), and was elected into the historical–philosophical class of the Austrian Academy of Sciences in April 2015.