On Resilience of Constitutions. What Makes Constitutions Resistant to External Shocks?

Abstract

Over the last years resilience has become a key concept in understanding how rule-making choices are made in the context of risk prevention and disaster. This paper probes the relationship between constitutions and resilience in light of the way constitutions responded to the shock of the global financial crisis. What makes constitutions able to anticipate and resist external shocks, or bounce back after a disaster that affects core constitutional functions such as the balance of powers and the protection of fundamental rights? The ability of a constitution not only to withstand a severe shock, but also to enable the legal order whose ground rules it sets out to seek recovery within the constrains of these ground rules, lies at the heart of constitutional resilience. Analysing constitutional functions in terms of resilience could offer a new prism through which to look at national constitutions in an increasingly complex globalized environment. The recent crisis, through the interconnectedness of the multiple pressures it put on the legal orders it struck and the multiplicity of legal responses it demanded, allows exploring how resilience thinking can affect constitutional theory.

Keywords: Constitutional resilience, Constitutional adaptation, Constitutional endurance, Formal and informal constitutional change, Financial crisis and constitutional litigation, Fundamental rights and Euro crisis, Comparative constitutional law