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Reconsidering Constitutional Formation.Constitutional Communication by Drafting, Practice and Interpretation in 18th and 19th century Europe

Final Report Summary - RECONFORT (Reconsidering Constitutional Formation.Constitutional Communication by Drafting, Practice and Interpretation in 18th and 19th century Europe)

Nations, societies and governments are permanently facing new challenges. They are required to constantly adapt to new circumstances. One basic legal foundation of all political acting and adaption are our constitutions. They define the organisation of the state and acknowledge human and civil rights.
But constitutions are not limited merely to the written text, and are not only logbooks for experts. They communicate basic ideas and transform our political consensus into legal rules. Therefore, the transdisciplinary project ReConFort performed comparative research on the communicative power of historical constitutions in eighteenth and nineteenth-century Europe. Under the guidance of the PI, Prof. Dr. Ulrike Müßig, postdoctoral researchers and doctoral students from Australia, Belgium, Britain, Germany, Italy, Poland and Spain examined the communicative interdependencies of constitutions, extending far beyond the traditional belief in fixed contents of constitutional terms. Constitutional indecisiveness and openness for interpretation, particularly in regard to the very crucial points – such as constituent sovereignty, precedence of constitution, separation of powers, and justiciability of power – is the core element of their communication dependency. The research on the interplay between constitutional processes and public participation is based on a systematic analysis of different constitutional documents and combined with various documents of political actors (for example private cross-border correspondences of the protagonists and their publicist activities, national public media, or exile literature).
The first volume of ReConFort results (Reconsidering Constitutional Formation I – National Sovereignty, the sixth volume in the Studies in the History of Law and Justice series published by Springer Open) appeared in 2016. This edited collection focuses on national sovereignty as a legal starting point for juridification by constitution. The second volume (Reconsidering Constitutional Formation II – Decisive Constitutional Normativity, From Old Liberties to New Precedence) contributes to the same series; this work deals with the decisive constitutional normativity and concentrates on the discourses concerning the legally binding nature of constitutional norms. This series, together with the special edition of Giornale di Storia Costituzionale dedicated to the ReConFort project and focusing on sovereignty (2017/-II) leads to an innovative reassessment of constitutional history.
It is clear from ReConFort’s research that national sovereignty emerged as a ‘big bang-argument’, whereby all references to national sovereignty mark the process of juridification of sovereignty by means of the constitution – or, in other words, political legitimation is turned into legal legitimation. This is coincident with the normativity, which began to complete the legal fixation of the whole political order. This juridification in one constitutional document resulted in a conceptual differentiation from ordinary law, an aggravated alterability and a supreme justiciability for subordinate laws. The early expressions of this ‘new order of the ages’ –in particular, in 1776 and 1789 – suggest an unprecedented and irremediable break with European legal tradition, as they both sought to divest their societies from established power structures (be it from the colonial governance by the British crown or be it from the ancien régime and the entrenched privileges of the noble and clerical ranks). In fact, while the shift to the constitution as a hierarchically ‘higher’ form of positive law was a revolutionary change, it also drew upon old liberties.
The project has also resulted in the creation of an Open Access Database, mainly comprising of previously unknown historical documents concerning the formation process of different historic constitutions from 1791 to 1861. This database enables researchers and the public, from across Europe and around the globe, to trace the roots of the national constitutions and their creation process. The new, deeper understanding of the historical foundations of our common constitutional heritage empowers us to solve the contemporary issues of European integration. Europe’s future depends on an informed public discussion. This is what ReConFort ( seeks to foster.