1. Total Constitutional Transition

Total transitions can result from different events: revolutions, ruptures or reforms. This kind of legal transition is instantaneous. In this sense, transition means a change from one legal system to another as a consequence of replacing the constitution. The enforceability of the new constitution is essential to consolidate a total transition.

A total transition may be due to a major reform in relation to the change in the form of state or government, with which the people and the governing bodies are satisfied, or mostly agree. These processes can rarely be called legal in the strict sense of the word because the legal basis for such a change of the constitution cannot be a provision established by the previous system that the new constitution is overturning, and negotiation generally takes place on a political level.¹⁴ But a change of system is not necessarily the result of a revolution or formally illegal. It may so happen that the change of system occurs through reforms provided for in legal documents issued by competent authorities. And when these legal reforms result in a new constitution, they produce a change of legal system.

However, this is not the usual process in the case of a change of legal system. On the contrary, this generally happens through violence undermining the established legal system and through behaviors the system classifies as criminal. The legal effects are the abrogation of the constitution in force and the creation of a new legal system. When a new constitution is enacted, the previous constitution thus loses its validity, and a legal system transition takes place.

The political effects are the change of regime, the modification of the established order, the substitution of the government and the conformation of a new social order. Ruptures are mostly caused by claims related to a needed transformation of the regulation and operation of any of the fundamental elements of a constitution.¹⁵ A total transition is a system rupture manifested by replacing the constitution. The new contents generally reflect a change in the conformation of the State, but especially in the form of the government’s integration. A transformation can be then perceived when important parts of the subject matter of the constitution are modified based on a specific model.

By enacting a new constitution, a new legal system emerges. Yet, the rules of the previous system (pre-constitutional rules) that do not contravene the new constitution may still be considered applicable and integrated into the new system. This option depends on the provisions of the new constitution and the decisions made by the law-applying organs regarding their compatibility. But those that contravene the constitution will lose their validity due to their newly acquired unconstitutionality. It can be said that after a total transition, the new legal system operates at first by “importing” all legal material than can still be called valid according to the provisions of the new constitution. This was the case in Mexico, for example, after the revisions made were enacted as the new Constitution of 1917.

Legal systems can admit partial constitutional continuity for law originating in a previous constitution and so confer validity to pre-constitutional law by resorting to the principle of coherence. The validity of those rules is more a question of compatibility of the previous rules with the new constitution than an issue of the moment when they were issued. It can thus be said that the rules in effect on the day a new constitution enters into force may be deemed valid if they are consistent with the new order.

2. Partial Constitutional Transition

In relation to changes within a legal system, the constitutional reform procedure allows ad intra transitions while maintaining social peace and order. An internal constitutional transformation can be considered as evolution, and several stages can be identified by analyzing the relevant revisions made. Legal transition, in this sense, is a process, a construction that implies a decision to issue new laws or carry out radical reforms to the constitution.

Due to the dynamic nature of law and as the object that it regulates is human behaviour, the power to modify the constitution is indispensable. The extent of a revision may produce a partial and gradual internal constitutional transition. This kind of transition reflects a need to adapt the constitution so that it preserves the continuity of the legal system. So, a transformation that occurs within the constitution is here considered a partial constitutional transition.

Constitutional transitions can then occur slowly, by amending different legal institutions and preserving legal continuity. An example of a smooth constitutional transition is the amendments to the Constitution of the United States regarding individual rights. When done step by step, it can be considered as legal development, and this can be “channeled through patternborrowing and transplants”.¹⁶ The substantial elements of continuity can be identified by reference to the basic structure of a contemporary constitution, which are key elements of the doctrine adopted by the dominant model in the constitution. This structure is discussed below in section IV, 1. The organization of State power as a system of the highest State bodies is a typical element of continuity and since legal traditions are formed in the process, they are also indicative of it. Constitutional change can be evaluated according to the criteria of model, institutional design and institution provided in sections IV, 2 and 3.

It could be difficult to admit a profound transformation of the constitution that might seem “revolutionary” -in a figurative sense- as legal transition. It would also lead us to reflect upon its identity and even question whether it is formally the same constitution. A constitution is in constant transformation through the interpretation of the competent courts and the revisions made.

A balance between the modification and the application of a constitution is thus necessary to preserve its normative force.¹⁷ A subtle transformation considered evolution of the legal system is also possible by means of its application and interpretation, but it could not be considered a transition because a profound transformation of the constitution is only possible by means of constitutional revisions even if their implementation also has an important impact on the changes of the meaning of its legal institutions.

Constitutional amendments are modifications that do not formally imply the substitution of a constitution, despite the degree of change made. According to a rule of law model, there must be coherence between the actual text and the revisions made to the constitution and intended to reinforce individual liberties and to guarantee the exercise of fundamental rights.

1. The Structure of a Contemporary Constitution

Because legal rules form a system, they do not operate in isolation and their meaning depends on the way they relate to each other. Some constitutional provisions are operative in the form of legal institutions -such as due process, rule of law or separation of powers. This implies that many legal provisions are connected to each other in a special way. One could say that an institution is a group of rights and obligations operating together in unity.

Every constitution is drafted according to certain ideals or following some kind of model. Contemporary constitutions envisage one or multiple models that are modified over time by various institutional designs that transform the meaning of some of the legal institutions regulated in the fundamental norm and these designs can be used to produce a modification of the model itself.

Based on article 16 of the Declaration of the Rights of Man and of the Citizen of 1789,²⁸ modern Constitutions, that is, those following the rule of law tradition, share a common constitutional structure. It is generally accepted by constitutional theory that this basic constitutional structure must include fundamental rights and the separation of powers. These mandatory contents are the elements that identify a rule as a constitution. Most western contemporary constitutions share this common constitutional structure and State power, as regulated in a constitution, is usually exercised by three types of bodies: the legislative, executive, and judicial branches.²⁹ Any modification of the balance of powers assigned to these organs can be indicative of a partial constitutional transition, for example: amendments to increase the powers of the executive branch could indicate a transition to a more presidential form of government while the creation of constitutional autonomous bodies in charge of specific functions could point towards a more decentralized model.

Ever since the constitution began to be considered a legal norm instead of a political document -one could say that the decision in Marbury v. Madison was the turning point in this matter, judicial review becomes the third fundamental pillar in the structure of the supreme norm. In this way, a balance between fundamental rights and the separation of powers is legally warranted. The possibility of a judicial control of the constitutionality is at the core of the effectiveness of the constitution since it ensures its normative force. The purpose of this form of control is to safeguard constitutional supremacy by subordinating legislators and the law to the constitution.

These three pillars form the constitutional structure, but given the complexity of contemporary constitutions it is important to also consider three other elements in order to have a complete picture of the constitution and its operation. The supplements to this constitutional structure are the sources of law, the democratic or participatory procedures and the regulation of the economy, all of which provide a better understanding of the nature and function of a constitution.

As the foundational rule of a legal system, a constitution regulates the sources of law, which are directly related to the control of constitutionality. Competence norms and judicial review are key to explaining the dynamics of law because of their role in the creation and modification of a legal system. The proliferation of sources can be indicative of a transition in a legal system because it shows unbalance in the separation of powers perceptible in the regulatory powers of the Public Administration, for example.

Since the regulation of democracy has become an important aspect of the constitution, provisions on participation in decision-making processes must be considered in the evaluation of a constitutional transition and in relation to the constitutional design of the principle of separation of powers. A democratic transition for example can be explained according to a given theoretical framework, looking for modifications in some institutions made in a specific way. This is also so in the design of a specific kind of democracy, deliberative or participative, for example.³⁰

The third complementary element to consider in the evaluation of a constitutional transition is the role of the State in economic relations in terms of the economic model adopted in the constitution, which is closely related to many fundamental rights.³¹ All these structural elements are correlated and ultimately overseen by means of constitutional controls.

The analysis of constitutional transitions must consider first the three pillars of the constitutional structure, that is, the fundamental rights, the separation of powers and the judicial review of the constitutionality of legal rules, but also the economic model, methods for participation in decision-making processes and sources of law. Constitutional transitions can so be evaluated according to these fundamental criteria, so much so, that they can be considered content references of a legal system that operates according to a certain model.

2. Constitutional Models

Within a constitutional structure, legal institutions operate according to a model which is determined by the relation established in the constitution between each of the above-mentioned elements of the constitutional structure. Regarding the process of constitution-making, the concept of model can be understood as the representation of a certain form of political organization of society recognizable by the way in which distinctive institutions are regulated in its constitution.

When a certain model, be it liberal, social, or democratic, for example, is introduced in a constitution, it sets a goal to be achieved and portrays the kind of society desired. The criteria that outline a model could be the main functions of the State, the guarantee of fundamental rights or specific values, for example. These ideas would act as rules for the interpretation of the constitutional provisions.

The model can be identified by the prevalence of one or other pillar of the constitutional structure and a tendency towards one extreme. The balance between each one of the structural elements goes beyond the mere distribution of power among constitutional bodies -checks and balances-. It also implies, at least, providing for their accountability, the protection of fundamental rights and a warranted constitutional control.

Each model delimitates the legal institutions that can be included in the constitution. There may be more than one model in operation in a constitution, but there is usually a predominant model that determines the general nature and operation of the constitution. Constitutional models can be identified according to certain principles, values, or goals, or by selecting a group of institutions that are recognizable as a whole upholding some common justification or object. The models can interact with each other, and a new model does not necessarily replace a pre-existing one. The degree of how effectively they work together will depend on the extent to which they complement each other.

Models are created following interests deemed relevant at a specific historical moment and answer therefore to historical circumstances and social expectations. The decision to introduce a new model is usually a response to a serious claim that requires immediate attention. The object is to produce a profound transformation of behavioral patterns or to change the form of government, for example.

Whether there is an intent for a genuine transition with a change of model -especially regarding governments fond of reforms- is not always clear. The transformation of the current model cannot be determined a priori because the degree of change of a legal system is only perceived over time. The model is sometimes copied from other legal systems, sometimes instrumentalized. A legal system transition is often carried out by importing a model or receiving legal institutions considered important. International Law and globalization have had an influence in legal transitions that is noticeable in constant legal transfers and the importing of legal institutions in many constitutions. For a constitutional transition, coherence regarding legal institutions brought from foreign models is of the utmost importance; otherwise, they end up being dysfunctional.

So, within the frame of the pillars that form its structure, a constitution contains a model that must be carried out. This model establishes the guidelines regulating the State’s and society’s action. Every new constitution contains a foundational model, which over time can be modified in different degrees to answer to a country’s new needs and expectations. As consequence of current social and political dynamics -whether national or international- other models can later be introduced into the constitution.

Models can coexist even when they seem conceptually contradictory. The introduction of a new model produces a sort of “mutation” to the meaning of the institutions.³² As already mentioned, a new model does not necessarily reject or substitute a previous one; they can function together. They are ordinarily inserted within the constitutional structure successively, and usually interact together. Each model has diverse representative institutions that can be created and modified according to a certain design.

The models are not rigid. Their meaning can change according to the modification or introduction of certain institutional designs to adapt particular legal institutions in a specific way to achieve an object, as well as through court decisions. The designs are rational mechanisms created to provide legal coherence to the existing models. They are answers or reactions to the operative deficiencies of regulated legal institutions to preserve the coherence of a constitution as a whole.

For that purpose, the interpretation of constitutional amendments, especially when new designs are added, is guided by the principle of non-contradiction to eliminate situations that seem to produce contradictions between constitutional provisions. So, when legal sentences allow it, the principle of coherence sees to the compatibility of institutions to preserve the unity of the constitution. If an instance of incompatibility cannot be overcome by interpretation, the legal means to solve it would have to be provided for in the constitution. This could be a case of the so-called “unconstitutional amendments”, but that is another issue. The scope and limits of the ability to interpret the amendments must be adequately regulated to avoid problems due to excesses committed by constitutional courts that can produce transformations in a legal system beyond mutations through interpretations considered acceptable.

The dynamic of the constitution presupposes the existence of a foundational model that establishes the meaning of the institutions regulated by the constitution. In time, the model can either consolidate or require modifications to stabilize it. There are also periods of normalization or review of the model. Historical constitutions with a long life can also experience a process of modernization. “Transition” is perhaps an adequate term to speak of the transformation of a constitutional model as it describes the uncertainty regarding the predominant model and its characteristics.³³ When the drafting of the constitutional model is not premeditated, the new type of model that emerges from the reforms will remain unknown until its effective operation can be evaluated.

From a scientific standpoint and for the purpose of analyzing constitutional transitions, models could be thought of as “ideal types”³⁴ because they do not describe the real world. A model is a mental construct considered desirable and often originally a theoretical product.³⁵ Reforms to a constitution can be evaluated according to certain properties attributed to a specific model, such as the regulation of property or civil rights and liberties in the liberal model. The assessment of a constitutional transition and its degree of transformation is done retrospectively since it can only be evaluated ex post by its effects or success in achieving its objective.

3. Institutional Design

Based on the preliminary notions given, the institutional design is understood here as a group of provisions that are related by a specific criterion, enacted to improve the efficiency of regulated legal “institutions” by modifying the rights or obligations established according to a certain model. The design thus serves to imprint a specific meaning on some legal institutions to fulfill a certain foreseen objective that should be identifiable through the justification of the proposed constitutional revision.

“Institutional design” is a tool aimed at correcting a model and is used for its interpretation and redefinition as it changes the meaning of legal institutions. Its function is to make the institutions compatible, since their meaning has been altered with the introduction and possibly the superposition of different models in a historical constitution. These designs are often created to respond to a situation or offer short-term solutions that should satisfy certain political and social needs within a determined lapse of time.

The design can be identified as a package of constitutional reforms carried out simultaneously or within a relatively short period of time, based on certain criteria that give them a sense of connectedness. Sometimes, when the institutions prove to operate together, the institutional design can be formally identified by the enactments of the reform of various constitutional articles justified in a common end or value.

Institutional design determines the operation and interpretation of institutions because it establishes the way they interact to produce a specific result. The design is made evident by the selection of the institutions connected by the same purpose. A partial transition can be perceived in the incorporation and implementation of an institutional design regarding the form of government, for example.

There are two types of institutional design. Distinguished by their objective, there is a “constructive design” that aims at creating a new reality or form of interaction between the government and the governed. The second type is “justificatory” because it has a legitimating effect on a changing reality. The first one is, so to say, an intellectual creation instrumented to change the reality through regulation by combining some institutions according to a planned design in which the costs and benefits of including said new design in the constitution, as well as its implementation, have been calculated.

In the case of the justificatory design, its object is not only to legitimate and legalize an actual way of behaving, but also to correct unwanted or negative effects of non-regulated uses and practices that have a certain degree of acceptance. When the latter are considered convenient, they can be construed as institutions by adapting them to the legal system in such a way that they can acquire legal force and act as limits and obligations to authorities. This kind of design is frequently used when reality surpasses the lawmakers because of great advances in technology or the increasing speed of the dynamics of international relations, especially in trade matters, for example.

The institutional design assumes a consideration on the suitability of including some institutions in the system or whether their operation and meaning should be modified. The analysis of their compatibility with other institutions in the system and the calculation of possible side effects must also be made. Even if it is true that because of the complexity of law all the alternatives of possible interpretations of a rule in a legal system cannot be determined a priori, when the project is developed, besides the historical reasons and the opportunity of the reform, the coherence and independence of the institutional design must be taken into account. Legal practice is another important factor to be considered when determining the meaning and application of an institutional design.