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Caitlin Goss
There are several reasons for considering the theme of the invisible con-
stitution in connection with interim constitutional texts. I define interim
constitutions as those constitutional texts that are deliberately – and
explicitly – temporary in duration. That is, they provide for their obsolescence
and replacement by a future, theoretically permanent, constitution. The rea-
son for defining the category in this way, rather than looking at short-lived
constitutions or transitional constitutions generally, is that the very idea of a
supreme constitutional text which is intended to expire disrupts the traditional
conception of constitutions as permanent and stable.
In ‘On the Authority and Interpretation of Constitutions: Some
Preliminaries’, Joseph Raz provides a seven-part definition of a constitution
in the ‘thick sense’, according to which a constitution is: constitutive of a
legal system; stable, at ‘least in aspiration’; written; superior law; justiciable;
entrenched, i.e., more difficult to change than other law; and expressive of
a common ideology.
1
The conception of constitutions as stable, ‘at least in
aspiration’ and ‘entrenched’ reflects a widely held belief that however long
a national constitution in fact endures, it is typically intended to be perma-
nent or indefinite in duration.
2
For many scholars, part of what makes con-
stitutional law different to ordinary law is the way it claims supremacy and
permanency. Interim constitutions, which achieve many of the features of
Raz’s definition, nonetheless eschew (at least to begin with) aspirations of sta-
bility and entrenchment in the ordinary sense. It is this theoretical tension that
makes interim constitutions an interesting area for further study. Moreover,
the term is used widely in both legal and policy discussions without a clear
sense of definition and interim constitutions have recently been adopted or
proposed in a number of transitional environments. As such, I believe that the
category requires further elucidation and comparative study.
The approach I adopt is explicitly formalistic or ex ante; I address those
constitutions that are intended to be temporary, regardless of their ultimate
duration. Another approach would be to adopt an ex post view of temporary
constitutions and to study those texts that end up being temporary documents
that are replaced after a redrafting process by a second constitution. Variations
of this approach have been adopted by scholars such as Andrew Arato, who
1
Joseph Raz, ‘On the Authority and Interpretations of Constitutions: Some Preliminaries,’ in
Larry Alexander (ed.), Constitutionalism: Philosophical Foundations (Cambridge: Cambridge
University Press, 2001), 153.
2
‘For if a constitution is to be permanent, all parts of the state must wish that it should exist
and the same arrangements be maintained’: Aristotle, Politics IX 350 bc, cited in Raz, Supra
note 1. See also Vicki C. Jackson, ‘What’s in a Name? Reflections on Timing, Naming, and
Constitution-Making’ (2007) 49 William and Mary Law Review 1249.
Interim Constitutions and the Invisible Constitution
169
writes of two-phased ‘post-sovereign constitution-making’, and Vicki Jackson.
3
Jackson divides post-conflict constitutions into those involving ‘a “quick clean
break” from a prior, discredited regime’ as in post-war Japan; those that ‘emerge
from a more incremental process of constitutional change, occurring . . .
over a period that may be closer to a decade’ as in Hungary or Poland; and
the ‘relatively recent innovation’ of transitional or interim constitutions, as in
South Africa.
4
However, for the purposes of this chapter, I believe that the appropriate
starting point is to begin with a more formalistic definition: to include within
the scope of analysis texts that purport to be interim constitutions and then to
analyse the category as a whole. Not all of the constitutions I study meet the
requirements of Arato’s post-sovereign model, and Jackson’s incremental versus
interim approach divides some interim cases into different groups. However, I
believe there is considerable value in charting the group of intentionally tem-
porary interim constitutions and finding not only points of similarity, but of
difference amongst the group, even as they develop. It is valuable to note that
the 1989 constitution of Hungary began in a similar way to those of Albania
and Poland but they charted markedly different courses, as the Hungarian
constitution endured until the Fundamental Law of Hungary came into force
in 2012.
5
Just as constitutions that are intended to be permanent often falter at
an early stage, so interim constitutions may end up becoming permanent or
long-lasting. The formalist approach to defining interim constitutions may be
of particular relevance in the context of the ‘invisible’ constitution; in what
way do constitutions that are intended to be temporary end up having per-
manent effects? I argue that interim constitutions cannot be viewed as mere
placeholders, whose effects may be temporally contained. Interim texts must
be regarded as key decisions taken at critical junctures in a state’s constitu-
tional history, capable of creating path dependencies that guide constitutional
development on a long-term basis. This understanding, I submit, should influ-
ence the way that interim constitutions are drafted and adopted.
Before developing these ideas, it is necessary first to develop a working defi-
nition of the ‘invisible constitution’ and to define and contextualise interim
constitutions. In the first section of this chapter, I deal with these preliminary,
definitional issues. In the second section, I explore each of the ways in which
interim constitutions can generate unwritten or invisible features. In the third,
3
Andrew Arato, ‘Post-sovereign Constitution-Making in Hungary: After Success, Partial Failure,
Now What?’ (2010) 26 South African Journal on Human Rights 21.
4
Jackson, Supra note 2, 1260.
5
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