Unpacking the Concept of Constitutional Transitions

Drafting a new constitution symbolically marks the writing of a new chapter in the history of post-conflict societies. Recently, a paradigm shift has been observed in constitution-making processes moving from the legal fiction of the unconstrained constituent power to their increased internationalisation as it has been observed in South Sudan, Kosovo or Timor Leste. Constitutional transitions are commonly defined as a process where ‘a constitutional order has been abandoned and a new one is about to emerge’. This definition is however unsatisfactory when it comes to fully grasp the concept of constitutional transitions. Are there different forms of constitutional transitions? What distinguishes a constitutional transition characterised by a formal process such as a constituent assembly with more tacit invisible forms of legal transformation of fundamental norms? This paper aims to sketch the contours of the concept of constitutional transitions drawing on seminal concepts developed by Boaventura de Sousa Santos such as the concept abyssal line, the sociology of absences, the sociology of emergencies to shed light on a blurring concept with a post-colonial perspective.