Ustavotvorna vlast naroda - demokratski mit

In: Politička misao, Band 35, Heft 3, S. 46-63

Abstract

The maxim that the people is the agent of the constituent power has, since the French revolution, been a universally accepted answer to the issue of the origin and the degree of validity of constitutional law which, as the ultimate norm of a state's legal order has no other higher positive law norm. But that maxim disregards political reality. Neither is it convincing from the point of view of the theory of state. The people is not the subject of activity but onl of reference. The maxim on the constituent power of the people is a democratic myth. As such it is polyvalent: the reinforcement of revolution or its prohibition determine whether the existing constitutional regime is to be overthrown or legitimised. The doctrine of the constituent power of the people is not cognitively rewarding as a theory of legitimation, either, since the effectiveness of a constitution does not depend on its provenance but on the reception it gets here and now from its addressees: state agencies and citizens. (SOI : PM: S. 63)