On the Legitimacy of a New Constitution - Remarks on the Occasion of the New Hungarian Basic Law of 2011
András Jakab
Max Planck Institute for Comparative Public Law and International Law, Heidelberg
April 3, 2012
Abstract:
One of the most frequently asked questions in any constitution-making process, in terms of both the former Hungarian constitution and the new Basic Law, is to what extent they were, are or will be legitimate. To be able to answer this, one needs to enter into some general theoretical considerations as to the function of constitutions.Modern constitutions are generally expected to do three things: to be a means of legal self-restraint for the political power (as expressed by the protection of fundamental rights and the idea of the separation of powers), to establish (constitute) the most important institutions of the state in a democratic way, and to be symbols that bind the community together. This essay examines these three requirements, arguing that any constitution that fullfills these may be regarded as legitimate (i.e. worthy of being obeyed). The closing part of the essay, in turn, contends that the procedure of constitution-making is not important in terms of legitimacy.
One of the most frequently asked questions in any constitution-making process, in terms of both the former Hungarian constitution and the new Basic Law, is to what extent they were, are or will be legitimate. To be able to answer this, one needs to enter into some general theoretical considerations as to the function of constitutions.Modern constitutions are generally expected to do three things: to be a means of legal self-restraint for the political power (as expressed by the protection of fundamental rights and the idea of the separation of powers), to establish (constitute) the most important institutions of the state in a democratic way, and to be symbols that bind the community together. This essay examines these three requirements, arguing that any constitution that fullfills these may be regarded as legitimate (i.e. worthy of being obeyed). The closing part of the essay, in turn, contends that the procedure of constitution-making is not important in terms of legitimacy.
Number of Pages in PDF File: 11
Keywords: legitimacy, Hungary, constitution, basic law, the Doctrine of the Holy Crown, judicial review, procedures of constitution-makingFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033624
Nessun commento:
Posta un commento