Constitutionalism and war: from martial law to “peace” through a transitional period
Journal Article: Constitutionalism and war: from martial law to “peace” through a transitional period
Journal: NaUKMA Research Papers. Law. (National University of Kyiv Mohyla Academy) More information on this journal can be found here and here.
Date of Publication: March 31, 2026
Author: Maksym Bondar, Rule of Law Research Centre, National University of Kyiv-Mohyla Academy, Ukraine
How to Cite: Bondar, M. (2026). Constitutionalism and war: from martial law to “peace” through a transitional period. NaUKMA Research Papers. Law, 17. Retrieved from https://nrplaw.ukma.edu.ua/article/view/356282
Abstract: Background: Contemporary constitutionalism, shaped largely in the post-World War II era, was designed primarily for peacetime. As a result, neither constitutional theory nor practice provides clear answers to questions arising when societies and states face extraordinary situations such as armed conflict, hybrid threats, or terrorism — circumstances that pit state survival against the foundational principles of limited government and guaranteed rights.
Purpose: This article aims to examine how constitutionalism transforms under extraordinary circumstances, particularly martial law, and to identify a viable legal pathway for Ukraine's return to ordinary constitutional order following the termination or lifting of the martial law regime.
Methodology: The study employs an axiological approach, treating constitutionalism not as a static construct but as a dynamic system of values, principles, institutions, and procedures. This framework enables analysis of the relative weight of constitutional principles across varying socio-political circumstances, including crisis conditions.
Results: Under extraordinary circumstances, constitutionalism does not give rise to a distinct or parallel constitutional order — its core identity remains intact. What occurs instead is a temporary shift in the relative significance of key principles: public safety, stability, and statehood come to the foreground, while certain human rights are subject to proportionate restrictions and the rule of law is applied with due regard for the exceptional situation. After overcoming the crisis, the need arises to reassess the relative significance of these principles. The article proposes a dedicated transitional legal regime — positioned between martial law and ordinary peacetime regulation, and conceptualized as a specific instance of a state of emergency — to ensure a gradual and effective return to constitutional normalcy.
Conclusion: Constitutionalism retains its identity even under the most extreme conditions, provided that power remains bound by law. The concept of a transitional legal regime offers a practically grounded mechanism for post-war constitutional recovery, with particular relevance for Ukraine's legal and institutional reconstruction after the lifting of martial law.
The Ukrainian language article can be found in PDF form here.
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