Revista da EMERJ - V. 21 - N. 3 - Setembro/Dezembro - 2019 - Tomo 1

 R. EMERJ, Rio de Janeiro, v. 21, n. 3, t. 1, p. 55-71, set.-dez., 2019  56 TOMO 1 ruler acquired the power to make law regardless of the contested religious truth. Law became a product of politics. It derived its binding force no longer from God’s will but from the ruler’s will. It was henceforth positive law. Eternal or natural law, despite of its name, was not law, but philosophy. Constitutionalism as it emerged in the last quarter of the 18 th century was an attempt to re-establish the supremacy of the law, albeit under the condition that there was no return to divine or eternal law. The solution of the problem consisted in the reflexivity of positive law. Making and enforcing the law was itself subjected to legal regulation. To make this possible a hierarchy had to be established within the legal order. The law that regulated legislation and law-enforcement had to be superior to the law that emanates from the political process. Yet, since there was no return to divine law the higher law was itself the product of a political decision. But in order to fulfil its function of submitting politics to law it needed a source different from ordinary politics. In accordance with the theory that, in the absence of a divine basis of rulership the only possible legitimization of political power is the consent of the governed, this source was found in the people. The people replaced the ruler as sovereign, just as previously the ruler had replaced God. But the role of the popular sovereign was limited to enacting the constitution while the exercise of political power was entrusted to representatives of the people who could act only on the basis and within the framework of the constitution. Hence, one can say that the very essence of constitutionalism is the submission of politics to law. This function distinguishes constitutional law from ordinary law in various respects. There is, first, a difference in object. The object of constitutional law is politics. Constitutional law regulates the formation and exercise of political power. The power holders are the addressees of constitutional law. Secondly, constitutional and ordinary law have different sources. Since constitutional law brings forth legitimate political power it cannot emanate from that same power. It is made by or attributed to the people. Thirdly, and consequently, the making of constitutional law differs from the making of ordinary law. It is usually a special body that formulates constitutional law and its adoption is subject to a special procedure in which either the people takes the decision or, if a representative body is called upon to decide, a supermajority is required.