On the Legitimacy of a New Constitution - Remarks on the Occasion of the New Hungarian Basic Law of 2011

Miodrag A. Jovanović – Đorđe Pavićević (eds): Crisis and Quality of Democracy in Eastern Europe (The Hague: Eleven 2012) pp. 61-76

11 Pages Posted: 4 Apr 2012 Last revised: 16 Aug 2013

Date Written: April 3, 2012

Abstract

One of the most frequently asked questions in any constitution-making process, in terms of both the former Hungarian constitution and the new Basic Law, is to what extent they were, are or will be legitimate. To be able to answer this, one needs to enter into some general theoretical considerations as to the function of constitutions.Modern constitutions are generally expected to do three things: to be a means of legal self-restraint for the political power (as expressed by the protection of fundamental rights and the idea of the separation of powers), to establish (constitute) the most important institutions of the state in a democratic way, and to be symbols that bind the community together. This essay examines these three requirements, arguing that any constitution that fullfills these may be regarded as legitimate (i.e. worthy of being obeyed). The closing part of the essay, in turn, contends that the procedure of constitution-making is not important in terms of legitimacy.

Keywords: legitimacy, Hungary, constitution, basic law, the Doctrine of the Holy Crown, judicial review, procedures of constitution-making

JEL Classification: K10, K30, K40

Suggested Citation

Jakab, Andras, On the Legitimacy of a New Constitution - Remarks on the Occasion of the New Hungarian Basic Law of 2011 (April 3, 2012). Miodrag A. Jovanović – Đorđe Pavićević (eds): Crisis and Quality of Democracy in Eastern Europe (The Hague: Eleven 2012) pp. 61-76, Available at SSRN: https://ssrn.com/abstract=2033624 or http://dx.doi.org/10.2139/ssrn.2033624

Andras Jakab (Contact Author)

University of Salzburg ( email )

Kapitelgasse 5-7.
Salzburg, 5020
Austria

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