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The Constitution in the Process of Denationalization

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Chapter Summary

In 1973 Niklas Luhmann could still assert that a radical change in the state of the constitution and the institutional and operational understanding of constitutional arrangements comparable to the establishment of the constitutional state in the late 18th century has never occurred again. The constitution is of course not only affected when the state disappears. Its claim to comprehensively regulate political rule is already impaired when the identity of state power and public power dissolves, so that acts of public authority can be taken on the territory of the state by non-state institutions. The notion of denationalization allows us to grasp two processes that started in the second half of the 20th century, without their consequences for constitutionalism initially being noticed. They concern precisely the two borders that are presupposed by and constitutive of the constitution: that between inside and outside, and that between private and public.

Keywords:constitutionalism; denationalization; public power; state power



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