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THE PARADOX OF THE WRITTEN CONSTITUTION

Authors
Publisher
Faculty of Political Science
Publication Date
Keywords
  • Autopoietički Sustav
  • Demokratska Politika
  • Neoznačeno Mjesto
  • Ustav
  • Ustavno Pravo
  • Ustavni Sud
  • Autopoietic System
  • Democratic Politics
  • Unmarked Place
  • Constitution
  • Constitutional Right
  • Constitutional Court
Disciplines
  • Law
  • Political Science

Abstract

Using Luhmann’s terminology, the author promotes the thesis that internal changes of constitutions are a non-democratic constitutional/legal process and thus a political problem. Namely, a constitution is exposed to political life, but also to an unmarked place within a constitutional system. This place is marked by constitutional judges who change constitutions on a case by case basis, either innovatively, precedently or, of course, non-democratically. Since democratic politics and constitutional law are different forms of activity, the question is which is the criterion for appraising the new things. How, then, to reject something as unlawful and non-political? The author claims that this judgement can only be done by people with a refined moral sense. This requires the inclusion of those who create and interpret constitutions as the law of the polity so they ought to be selected very carefully. Thus, citizens are doubly burdened: first, they have to understand constitutional changes in order to perceive their interest in them and second, they have to appreciate the architects of constitutions in order to trust into them.

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