Çağrı Gürkanlı (Bilkent University Law School) has posted Two Paradigms of Constitutional Legitimacy in Turkey: Constituent Power Between the ‘National Will’ and Strong Constitutionalism (Cambridge Handbook on Constituent Power and its Limits, forthcoming) on SSRN. Here is the abstract:
Modern constituent power theory promises that a constitution is legitimate when it issues from the will of the people. Critics object that the theory cannot fix what counts as an authentic act of that will. This chapter corroborates their criticisms by showing the theoretical and practical limitations of the theory through an application to Turkey. It argues that the theory, in the Turkish context, (1) leads to an inversion whereby, instead of the will of the people legitimising the constitution, the very standards of constitutional legitimacy are reduced to electoral majority, which converts a desire to govern without boundaries into a myth of the constant constituent power; (2) fares worse than constitutionalism in justifying judicial review of constitutional amendments; and (3) either inevitably licenses authoritarian constitutional outcomes backed by public participation, or can forestall such outcomes only by surrendering its distinctiveness to the tenets of constitutionalism. To make these arguments, the chapter frames post-war Turkish constitutional history as a tug of war between two paradigms of constitutional legitimacy: strong constitutionalism and the national will. The former grounds legitimacy not in the will that created a constitution but in conformity with certain political principles. The latter locates it in the unobstructed expression of the people’s will through the elected branches and is best understood as a Schmittian account of constituent power. This reading unsettles the well-worn ideological and sociological narratives of Turkish constitutional politics as a contest between a republican elite and a conservative periphery. The two paradigms mirror instead the dichotomy between constitutionalism and constituent power.
Highly Recommended!
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