A constitution's minority protective function - Theory and Reality

  • Christoph Bezemek (Speaker)

Activity: Talk or presentationScience to science

Description

Formalized Constitutional Law allows a political community to grant additional stability to provisions it considers fundamental, thereby comforting a certain desire of steadiness with regard to the state s foundations within the community.
With this approach of granting elevated status to fundamental legal provisions concerning i.a. the state s structure or the fundamental rights and freedoms its citizens enjoy by the means of formal requirements, the constitution is withdrawn from a random majority s volition. A sphere of formally recognized constitutional law therefore serves per se a minority-protective function, evening out the problem that has been referred to by Tocqueville as Tyranny of the Majority insulating constitutional law from the absolutism of majority will by protecting it against acts that do not enjoy the same extent of political legitimacy as the constitutional provisions themselves feature.
However, such an ideal-type description is just one side of what may come along with the formal creation of a sphere of constitutional law. Giving it closer scrutiny this approach consequently also causes detachment of these formally elevated laws from the idea inherent to a substantive conception of constitutional laws as described above, subsequently creating the fundamental character attributed to a legal provision by granting it elevated status.
From this perspective basically everything may be considered as constitutional. And many examples show that it has not to be a noble goal that is being pursued by enacting certain provisions on a constitutional level. To explore the theoretical foundations of this phenomenon and to compare examples of how select legal systems dealt and still deal with it shall be the aim of the paper presented.
Period11 Nov 201012 Nov 2010
Event titleThird Asian-European Dialogue on Comparative Constitutional Law
Event typeUnkonwn
Degree of RecognitionInternational

Austrian Classification of Fields of Science and Technology (ÖFOS)

  • 505017 Comparative law
  • 505016 Legal theory