Dilemmas of Democratization. From Legal Revolutions to Democratic Constitutionalism?

The ideas of the rule of law and constitutionalism have become an intrinsic part of any process of democratization around the world. This was equally the case in the radical changes that occurred in East-Central Europe (ECE) around the year of 1989. The adherence in the region to a form of ‘new constitutionalism’ has been frequently seen as an indispensable contribution to the process-es of democratization. However, in this too little attention has been paid to the dilemmas, ten-sions, and perverse effects that may emerge in the institutionalization and practice of new consti-tutionalism, not least in terms of an enduring tension between constitutionalism as an ordering and stabilizing device and democracy as an uncertain and indeterminate process of verification of public views on the common good. The experiences in ECE since 1989 with regard to new constitutionalism are ambiguous. It is undeniable that an emphasis on a higher law with en-trenched rights and robust constitutional review has involved important ‘corrections’ of certain outgrowths of democratic politics and in this prevented forms of ‘tyranny of the majority’ or the endangering of the guarantee of universal rights. But it is equally true that new constitutionalism has been adopted at a price, not least with regard to the emergence of more widespread, publicly shared constitutional cultures as well as in terms of underexplored potentials of democratic constitutionalism and endorsement of civic engagement in the region. Democratic dilemmas and perverse effects have emerged in terms of domestic tensions, in particular regarding democratic debilitation, but also stem from tensions with legal orders beyond the national arena.