Constitutionalism, Resistance, and Openness: Comparative Law Reflections on Constitutionalism in Postnational Governance

Summary:

The aim of this essay is to reflect on the relationship between openness and constitutionalism through an examination of some constitutional experiences, which present interesting case studies on the origins of constitutional openness.

Openness in this article means an established ‘friendliness’ in the constitution towards legal sources that are, from a formal point of view, external to the national system, or those that are not produced by national legislative actors in accordance with the constitution. As such, these legal sources are not traceable to the general will of the people.

This article demonstrates, against this background, how a comparative law analysis can help overcome the false dichotomy between pluralism and constitutionalism that the literature in this field presents.