pouvoir constitué

Pouvoir constitué is a constitutional and political science term borrowed from French and means constituted or constituted authority , which means the state authority bound to a constitution . Pouvoir constitué says "State violence in violent dividing constitutional state ".

Legitimacy of the constitutional authority through the constitutional authority

The terms pouvoir constitué and pouvoir constituant were used by the statesman Abbé Sieyès in his political pamphlet Qu'est-ce que le tiers état? Published in 1789 at the beginning of the French Revolution . (What is the Third Estate? ) Brought into the discussion on constitutional theory . In the Age of Enlightenment , the philosophical doctrine of popular sovereignty - populus est rex ("the people is king") - which states that "all state authority comes from the people": this formula found its way into the Basic Law as Article 20 paragraph 2 . According to this democratic principle of legitimacy , the people as sovereign have the power to make the constitution , the pouvoir constituant ; the people give and support the constitution (French constitution ). The constitution constitutes the power of the state , the pouvoir constitué :

“The people as pouvoir constituant give themselves a constitution. Only then does the pouvoir constitué , the constitutional state authority, arise . This does not exist outside the constitution and is absolutely bound to it. It only has the power to amend the constitution if it has received special authorization from the people. "

The pouvoirs constitués in the power-dividing constitutional state

The constituted power means the organs and authorities that were created by the pouvoir constituant through the constitution. In free democratic constitutional states the constituted state power is for the purpose of power limitation according to the constitutional principle of the division of power organized and separated state organs distributed, namely, legislative , executive and judicial .

That is why one speaks plural in terms of the "constitutional powers", i.e. of pouvoirs constitués ( au pluriel , in the plural!):

“All constitutional powers are constituted, legitimized and consequently also limited by the constitution-making power, which can give and take away their competences and functions. The pouvoir constituant for its part cannot therefore be authorized, let alone restricted, by the pouvoir constitué, since it is the basis of its validity as its creator and 'master'. "

The constituted state authority as constitutional amendment

Constituted state powers have their origin in the constitution and are bound by it, the highest norm - "the law of laws". In the act of the original constitution , the people can at the same time transfer the right to amend the constitution to organs of the constituted state authority by providing for and anchoring this possibility of revision in the constitution itself. This authorization creates a derived, constituted constitution-making power , a pouvoir constituant constitué , namely power to amend the constitution . In most constitutional states, the constitution only allows them to be changed under considerably more difficult conditions. Such partial revisions , which are carried out within the framework of the norms of an existing constitutional order - be it by parliament or by referendum - are elements of the constituted state power, des pouvoir constitué , because:

“[The 'constitutional power'] is constituted power because it is based on the Constitution and is bound by the Constitution; But to a certain extent it is also constitutive power , because it changes the constitution (the constitution) and thus becomes the basis and standard of legislation . The double reference - constituted and constituting - is expressed in the designation pouvoir constituant constitué or pouvoir constituant institué (in contrast to pouvoir constituant originaire ), which goes back to G. Burdeau . "

In contrast to the discontinuity of a revolutionary revision of the constitution (total revision) - e.g. B. via a constituent assembly - in which the original pouvoir constituant of the people manifests itself volcanically and eruptively at a historically significant moment, constitutional changes are carried out by the legislature of the pouvoir constitué within the framework of constitutional continuity and are only partial revisions. The original constitution-making power of the people remains unaffected and can, if necessary, carry out a (revolutionary) total revision of the constitution:

“The constitution issued by the constituent power cannot therefore be identified with the constitutional legislation by the constituted powers and in no way reduced to them; therefore it cannot be tied to the limits of the constitutional amendment. "

literature

Martin Heckel : The legitimation of the Basic Law by the German people. In: Collected Writings. Volume III: State - Church - Law - History (= Jus Ecclesiasticum 58), Mohr Siebeck, Tübingen 1997, ISBN 978-3-16-146740-0 , pp. 3-72 .
Martin Kriele : Introduction to the theory of the state. The historical bases of legitimacy of the democratic constitutional state. 6th extended edition, Stuttgart 2003, ISBN 3-17-018163-7 .
Hartmut Maurer : Constitutional change in the party state. In: Festschrift for Martin Heckel on his seventieth birthday , ed. by Karl H. Kästner, Knut W. Nörr u. Klaus Schlaich. Mohr Siebeck, Tübingen 1999, ISBN 978-3-16-147158-2 , pp. 821-838 .
Hauke Möller: The constituent power of the people and the barriers to constitutional revision. An investigation into Article 79.3 of the Basic Law and the constitutional power according to the Basic Law. dissertation.de, 1st edition 2004, ISBN 3-898-25848-3 , p. 31 ( full text as PDF; 831 kB ).
Alois Riklin: Emmanuel Joseph Sieyès and the French Revolution. Wallstein, Göttingen 2001, ISBN 978-3892447399 .
Gerhard Robbers : Emmanuel Joseph Sieyès - The idea of a constitutional jurisdiction in the French Revolution. In: Festschrift for Wolfgang Zeidler , ed. by Walther Fürst, Roman Herzog and Dieter C. Umbach, Volume 1, Gruyter 1987, ISBN 3110110571 , pp. 247-264 .

Footnotes

^ Hauke Möller: The constituent power of the people and the barriers of the constitutional revision. An investigation into Article 79, Paragraph 3 of the Basic Law and the constitutional power under the Basic Law. Berlin 2004, online publication, p. 31.
↑ Martin Heckel : The legitimation of the Basic Law by the German people. In: Collected Writings. Volume III: State - Church - Law - History (= Jus Ecclesiasticum 58), Mohr Siebeck, 1997, p. 29, Rn 50 .
↑ Hartmut Maurer : Constitutional amendment in the party state. In: Festschrift for Martin Heckel on his seventieth birthday , ed. v. Karl H. Kästner, Knut W. Nörr u. Klaus Schlaich. Mohr Siebeck, Tübingen 1999, p. 832 (without emphasis in the original).
↑ Martin Heckel: The legitimation of the Basic Law by the German people. In: Collected Writings. State, Church, Law, History , Vol. III ( Jus Ecclesiasticum 58), Mohr Siebeck, 1997, pp. 29–30 .

[Verfassungsgebung-1] Hauke Möller: The constituent power of the people and the barriers of the constitutional revision. An investigation into Article 79, Paragraph 3 of the Basic Law and the constitutional power under the Basic Law. Berlin 2004, online publication, p. 31.

[2] Martin Heckel : The legitimation of the Basic Law by the German people. In: Collected Writings. Volume III: State - Church - Law - History (= Jus Ecclesiasticum 58), Mohr Siebeck, 1997, p. 29, Rn 50 .

[3] Hartmut Maurer : Constitutional amendment in the party state. In: Festschrift for Martin Heckel on his seventieth birthday , ed. v. Karl H. Kästner, Knut W. Nörr u. Klaus Schlaich. Mohr Siebeck, Tübingen 1999, p. 832 (without emphasis in the original).

[4] Martin Heckel: The legitimation of the Basic Law by the German people. In: Collected Writings. State, Church, Law, History , Vol. III ( Jus Ecclesiasticum 58), Mohr Siebeck, 1997, pp. 29–30 .