State and constitution in times of openness: The conceptual crisis the paradigm shift in an intercultural environment

Abstract

This paper analyses the need for a new approach and asks what adjectives are suitable for the new reality that surpasses commonly used adjectives such as “transnational” or “cosmopolitan”. The term “post-national”, coined by Habermas, seems to be more suitable to understand the consequences that the internationalization of law entails for the National State and its constitutionalism. Human rights promote a paradigm shift in modern law, which also results in the need for a conceptual revision in the relationship between domestic and international law. This situation demands a new reflection on the mechanisms and strategies of implementation of human rights by domestic legal institutions of the countries that share the defi nitions of conventional norms. The article first discusses the process of conceptual crisis that is promoting a transition in human rights. Then it shows the challenges of constitutionally mediated interculturality, as well as the resulting risks and challenges, in order to help update the constitutional issue in this “post-national” context. It concludes that the changes of the State and the establishment of human rights in the international sphere promote formal and substantial rearrangements, prompting a redesign in the practices of constitutional law.

Key words: crisis of the state, human rights, constitutionalism, international treaties.