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Transitional Norms in Constitutions
Landau, David
Landau, David
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Abstract
Modern constitutions are ambitious, lengthy, and transformative documents that seek to make widespread changes to politics and society. As such, they often contain a separate section on transitional norms: temporary provisions that aim to serve as a bridge between the old constitutional order and the new one. Transitional norms have been overlooked in the literature, but they play a crucial role in ensuring the success of a constitutional project. Transitional norms govern a polity in the highly sensitive, fluid period after a constitution has been adopted. They guide decisions about when and how to replace old institutions; how to treat old laws and when to enact new ones; and whether to use temporary institutional arrangements to implement the constitutional project. In other words, transitional norms are about which political actors wield power during the initial phases of constitutional implementation. They are phases that usually leave a deep imprint on the political order. This Article relies on a survey of Latin American constitutions since 1988 to develop a typology of the functions played by transitional norms. It carries out in-depth case studies of Chile (2022), Colombia (1991), and Ecuador (2008). These case studies show how transitional norms can either support or frustrate the underlying constitutional project and can also become powerful instruments of abuse for anti-democratic ends. Finally, this Article canvasses case law on transitional norms to develop a normative conceptualization that emphasizes the role that transitional norms should play to support, rather than distort, the underlying constitutional project.