Material Constitution: The Case of Kosovo

Abstract The concept of the material constitution serves as an interpretative tool to understand the foundations and characteristics of the constitutional order. This article uses comparative legal theory and a positivist method to analyze the material constitution and its application in Kosovo. Drawing on constitutionalists like Hermann Heller and Costantino Mortati, it argues that Kosovo experienced a fundamental shift in its original constituent power, as expressed on 17 February 2008, when the country declared independence. This shift, reflected in two international agreements between Kosovo and Serbia in 2023, constitutes a unique exercise of constituent power de novo. Unlike the original exercise by Kosovo’s Assembly, this was carried out by the executive, redefining the material constitution established in 2008. The redefinition altered Kosovo’s political unity, fundamental objectives, and institutions while restructuring social relations between rulers and the ruled. It privileged the Serb community of Kosovo, granting it an exceptional position over others, including the Albanian majority.