On ‘legal continuity’ in the postsovereign model of constitution-making: Three problems

One key notion in the post-sovereign paradigm of constitution-making is the idea of ‘legal continuity’. In The Adventures of the Constituent Power: Beyond Revolutions?, Andrew Arato states that this paradigm emerges from an ‘empirical pattern’ marked by legal continuity throughout transitions from old legal systems to new ones. This would imply that it is possible to conceive of a ‘constituent power’ under the law, i.e., without producing legal ruptures. In this work, I will show that there are three problems concerning the idea of ‘legal continuity’ in this context: 1) a contingent obstacle for legal continuity in a ‘strong’ sense; 2) some conceptual uncertainties regarding the scope of the constitutional amendment power; and, 3) a conceptual inconsistency in the results of this legal continuity, related to the effective emergence of a new legal order.