Constitution and Legitimacy
Constitution and Legitimacy

Summary/Abstract: Proclamation, changes to and validity of the constitution, with emphasis on the question of legitimacy as one of the principal concepts in the theory of constitution and constitutional law theory Legitimacy of constituent power is here not taken to be a pre-positive legitimacy (accorded with "natural law"). The very fact that there are nine groups of theories of natural law and that, especially in international law, "natural law" is today used as a means of arbitrariness, speak against the construction of legitimacy based on the allegedly "suprastate" law. For us, legitimacy has an empirical, thus alternative character. In our view, the most correct is M. Weber's theory of three types of legitimacy of authority: traditional, charismatic, and rational, to which one may add two more ideas: that of "social justice" and that of "common welfare". Central to this discussion is the difference between the constitution as a multitude of constitutional laws and constitution as the totality of constitutional decisions (C. Schmitt), i. e. principles based on which legitimizing ideas are concretized. Constitutional decisions define the identity of the constitution; as long as they are the same, the constitution remains the same, irrespective of the change of particular constitutional laws. Constitutional reform includes the cancellation of the previous constitution as a whole, or in parts, where constituent power remains the same. Need for constitutional reform arises mostly due to the involution of the constitution - the ever deeper constitutional crises which may end in the actual inability of the state, in both internal and external affairs. Constitutional reform can stem from certain forms of dictatorship. As dictatorship is in general one of the fundamental issues related to constitution and legitimacy, a substantial part of this paper is dedicated to comprehending this phenomenon.

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