SOCIETÀ ITALIANA DI DIRITTO ED ECONOMIA
Tanja Porcnik (University of Hamburg)
Abstract
Constitutionalism sets a bundle of rules empowering and constraining the state's power and state officials' discretion. Exploring constitutionalism through an institutional perspective, the article in the first step discusses eight rules or bundles of rules (popular sovereignty, limited government, civilian control and oversight of the military and state security, independence of the judiciary, separation of church and state, no one is exempt from the law, faithful execution of laws, and due process) that establish and strengthen the institutions of constitutionalism. The article classifies these rules or bundles of rules, both legal or extra-legal, into four dimensions: structural, substantive, procedural, and popular.
These established rules tend to be relatively stable and self-enforcing, largely because the costs of reneging upon them are assumed to be significant and in the long run the costs of doing it are predicted to be higher than the benefits. Yet, some political actors do not adhere to constitutional constraints as they develop an interest in short-term benefits or are confident the benefits will outweigh the costs in their case. Applying the insights of constitutional political economy, the paper in the second step uses the game theory model to analyze paths for political actors to reassess and change the constitutional text. The paper determines the conditions under which these changes lead to the ‘thickening’ of constitutionalism or its ‘thinning’.