The Guiding Constitution And The Crisis In The Theory Of The Constitution

The article examines the complex and strained relations between politics, the State and the Constitution, both by means of the famous debate over democracy and constitutionalism, and by means of the paradoxes of the legal formalism associated with the constitutional law, the political law par excellence. It describes the occurrence of a cycle of master-ideas, developed throughout the history of Public Law. The Constitution was the master-idea during the era of revolutions, in the 18th and 19th centuries. The State became the master-idea only in the 19th century, with the “General Theory of the State” as the most important discipline within Public Law. However, as a result of the challenges to the purely juridical method during the Weimar era, the Constitution becomes the master-idea of the new “Theory of the Constitution”, which replaces the old General Theory of the State. This new discipline aimed at inserting politics in the constitutional analysis, especially in the Post-War period. The fundamental debate within the Theory of the Constitution fluctuated between the substantive and the procedural theories of the Constitution, both seeking to direct politics and the State or to eliminate both of them from the constitutional analysis. This master-idea culminates with the “Guiding Constitution” – which aims at establishing itself as a plan for the future of the entire society – and with the Constitutional Courts and the exhaustion of the debates over politics and legitimacy in contemporary Constitutional Theory. In order to overcome this deadlock, a “return to politics” and also a “return to the State” are required, alongside a new and wholly revised Theory of the State.