Suchergebnisse

Using the contemporary system theories, the author primarily points to the asymmetry of the constitutional law and the political processes it so rarely regulates. Then he goes on to analyse the historical process of separating the custom law, oral law and written law, of the court and the courtroom, the law and the constitution, the constitution and its interpretation, the constitution's interpretation and the constitutional theory, and concludes his study with a description of the difference between constitution and democracy in the postmodern categorial optics. (SOI : PM: S. 45)

The author analyses the relationship between the constitutional law and the political reality. Using the historical material of the German constitutional legal practice to analyze this relationship, the author concludes that a good constitution can function solely in the setting of a good political culture of state's citizens. Citizenry of a certain political culture always goes hand in hand with a good constitution. (SOI : PM: S. 148)

Häberle claims constitutional law is a comparative experiential science closely linked with political science with which it shares the research subject. The constitutional state has been going through a permanent process of changes; the central question is who is the prime mover of constitutional changes: constitutional/legal institutions, constitutional/lega science and political science or public opinion and political culture of citizens? By analysing the recent history of the changes of the German constitutions he suggests that all these factors contribute to constitutional changes. Nevertheless, as an expert for law and political science, who considers himself as belonging to the wider European scientific community, Häberle thinks that the decisive influences in constitutional changes stem from legal and political sciences and concludes: Sine qua (scientia) mortalium vita non regitur liberaliter. (Without science, mortals do not command their life freely). (SOI : PM: S. 186)

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)

The author analyses Schmitt's and Luhmann's theory of democracy and the constitutional state. By comparing them, he concludes that Schmitt's critique of the democratic pluralistic state has ended in the theory of direct or plebiscitary democracy in which the constitution is subject to an unpredictable will of political majority which can change it wilfully in line with the power relations. Luhmann, on the other hand, starts from the assumption of the separation between law and politics and builds his concept of the constitutional state on the bipolar differentiation and the mutual checks between law and politics. The author concludes that Luhmann does not give up on Hobbes' pessimistic conviction that human nature is bestial; he only offers a different strategy for the coexistence of cultured savages. (SOI : PM: S. 67)

The Croatian Constitutional Court by its decision of June 24, 1992 partly rejected a reqest to start proceedings, and partly terminated already started proceedings, to determine the constitutionality of some thirty emergency decrees passed by the President of the Croatian Republic during the undeclared war with Serbia and the Yugoslav People's Army in the second half of 1991. The Court backed its decision inter alia by the following arguments: the President has the power to pass emergency decrees without declaring first the state of emergency; presidential emergency decrees can be retroactive since Croatian Constitution does not forbid specifically their retroactivity. The Court's reasoning which endorses a permanent coup d'etat, is very probably a corollary of the idea, which is taken for granted by some Croatian constitutional lawyers, that the Croatian Constitution has been modelled on the Constitution of the French 5th Republic so that the sweeping powers of the French President belong also to his Croatian counterpart. The paper challenges the idea and discusses the relevance of comparative constitutional theory for Croatian constitutional practice. The first three sections demonstrate that, despite political similarities between the early years of the French 5th Republic and the Croatian Republic the two semi-presidential systems differ in several important constitutional and legal respects so that the powers - especially emergency powers - of the French President cannot be used as a persuasive authority to interpret powers of the Croatian President. Section four indicates that if anything in French law is authoritative in interpreting Croatian constitutional provisions on the state of emergency it is the effort of the French Conseil d'etat to control, even though in a very limited way, the legality of presidential emergency decrees. The last section points out that assumptions with which Croatian Constitutional Court interprets presidential powers are more in accord with the Weimar Constitution than with the Constitution of the 5th French Republic. The paper ends with the warning that the unrestrained exercise of presidential powers in Croatia may lead, as it did in Mussolinni's Italy and in the Weimar Republic, to a dictatorship. (SOI : PM: S. 165)

Mixed government, which is commonly regarded as a distinctly medieval form of government, is relevant also to contemporary constitutional states. It is the best form of government, since the aristocratic element is a continuous source of virtue, especially of justice, and a check not only on the executive, as the monarchical element which is the seat of political power, and the legislature, as the democratic element which expresses the will of the majority, but also groups and institutions that have the might and will to impose themselves as oligarchies. Mixed government is also the form of government that is practised by most developed contemporary constitutional states: USA, UK, France, Switzerland, Germany etc. European nobility is the original aristocratic institution, by virtue of the fact that it was a system for the transfer of both virtue and general conditions of life. Three institutions that emerged in the late Middle Ages assumed structures and functions of the nobility. + The first is the clergy. When, as a result of the differentiation of feudal society ethical and intellectual virtues of the nobility could no longer maintain general conditions of life, the clergy, by virtue of their abstract knowledge that ranged from philosophy and theology to law and medicine, became a class of new experts in generalities and thereby a new aristocracy. The second modern aristocratic institution is the judiciary, which has a structure and function similar to earlier aristocracies. The task of judges is to establish the highest virtue o constitutionalism. It is justice by law, which regulates general conditions of life in the state and society. What qualifies judges for the task is expertise in the new generality. The expertise includes not only education and experience in law but also impeccable private life and demonstrated professional ethics. + The third modern aristocratic institution is the profession, whose most important instance is the legal profession. It shares its structure and function partly with the judiciary and partly with other professions. It seems that modern professions are degenerating. In the key area of data processing, due to rapid changes of technology, professions as systems of the transfer of virtue do not even seem to be possible. Professional aristocracies are replaced increasingly by oligarchies of capitalists and technocrats. (SOI : PM: S. 111)