Constitutional Conflicts between Politics and Law in Transition Societies: A Systems-Theoretical Approach

Post-autocratic transitions are often followed by constitutional confl icts between state powers. With respect to the question of rule of law in young democracies, clashes between the executive and legislative branches, on the one hand, and the judiciary and constitutional courts, on the other, as well as those between ordinary and constitutional courts are particularly virulent. All these confl icts have massively aff ected the key distinction between politics and law that had been mainly violated in the previous autocratic regimes. Based on Niklas Luhmann’s theory, this article presents a systems-theoretical approach in order to explain the occurrence of these constitutional confl icts. The central argument reads as follows: constitutional confl icts between politics and law will occur under two circumstances—if a constitutional order allows the decision of legal questions based on political criteria or vice versa, and if a constitutional order allows the judiciary or the constitutional court to decide political questions based on political criteria. This argument is further substantiated by means of two exploratory case studies with a special emphasis on post-socialist transitions in Central and Eastern Europe. The main results are eight detailed hypotheses on the question of when, in constitutional orders, and under what circumstances are constitutional conflicts to be expected.