<abstract xmlns="http://www.w3.org/1999/xhtml">The <italic>overture</italic> of the paper provides a brief survey of the philosophical positions (from Aristotle to the contemporary debate) focusing the conjecture of the legal and constitutional <italic>continuum</italic> as a problematic presupposition of theories of constituent power. The positions of the authors that we can call as <italic>continuist</italic> authors (up to Kelsen and the neo-normativism, including Soviet jurists and theorists of the constitutional cycles) constitutes the dominant part of the theoretical evolution. We discuss it (respectfully) even if we openly criticize it, with a peculiar debate involving that other position called as <italic>discontinuist</italic> (whose authors are especially Marxists philosophers, anti-fascist intellectuals like Piero Gobetti, and their references in philosophy such as Leibniz and Vico).In the <italic>first</italic> movement of the paper, we reconstruct the equivoque at the basis of the conjecture of the <italic>continuum</italic>. It corresponds to a «three-time» scheme of constitutional dynamics: (revolutionary) rupture – transition – constitution. This structure makes useless (conceptually unusable, and perhaps sources of logical contradictions) both rupture and transition.The <italic>second</italic> and final movement underlines the theoretical demand to consider the transition and the constitution as <italic>coextensive</italic> domains. Transition is, in other words, <italic>already</italic> Constitution, and the constitution is <italic>always</italic> a transition. To the latter ones, we introduce and add another phenomenon characterizing the historical phase of the transition, namely the Resistance.The <italic>fact of resistance</italic> escapes the constitutionalisation, and imposes upon the latter a <italic>necessary</italic> character of transition.</abstract>

The overture of the paper provides a brief survey of the philosophical positions (from Aristotle to the contemporary debate) focusing the conjecture of the legal and constitutional continuum as a problematic presupposition of theories of constituent power. The positions of the authors that we can call as continuist authors (up to Kelsen and the neo-normativism, including Soviet jurists and theorists of the constitutional cycles) constitutes the dominant part of the theoretical evolution. We discuss it (respectfully) even if we openly criticize it, with a peculiar debate involving that other position called as discontinuist (whose authors are especially Marxists philosophers, anti-fascist intellectuals like Piero Gobetti, and their references in philosophy such as Leibniz and Vico).In the first movement of the paper, we reconstruct the equivoque at the basis of the conjecture of the continuum. It corresponds to a «three-time» scheme of constitutional dynamics: (revolutionary) rupture – transition – constitution. This structure makes useless (conceptually unusable, and perhaps sources of logical contradictions) both rupture and transition.The second and final movement underlines the theoretical demand to consider the transition and the constitution as coextensive domains. Transition is, in other words, already Constitution, and the constitution is always a transition. To the latter ones, we introduce and add another phenomenon characterizing the historical phase of the transition, namely the Resistance.The fact of resistance escapes the constitutionalisation, and imposes upon the latter a necessary character of transition.

Constitutional Resilience Between Rupture of History and Continuity of Resistance

Law and Administration in Post-Soviet Europe

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 License.

The overture of the paper provides a brief survey of the philosophical positions (from Aristotle to the contemporary debate) focusing the conjecture of the...

Constitutional Resilience Between Rupture of History and Continuity of Resistance

Publié en ligne: 26 déc. 2019

Pages: 12 - 29

DOI: https://doi.org/10.2478/lape-2019-0002

Mots clés
Constitutional continuum, Resistance, Revolution, Constitutional Transition, Revolutionary State, Resistancial Transition

© 2019 Alessia J. Magliacane, published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 License.

Constitutional Resilience Between Rupture of History and Continuity of Resistance

Publié en ligne: 26 déc. 2019

Pages: 12 - 29

DOI: https://doi.org/10.2478/lape-2019-0002

Mots clésConstitutional continuum, Resistance, Revolution, Constitutional Transition, Revolutionary State, Resistancial Transition

© 2019 Alessia J. Magliacane, published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 License.

Mots clés
Constitutional continuum, Resistance, Revolution, Constitutional Transition, Revolutionary State, Resistancial Transition