pouvoir constituant

from Wikipedia, the free encyclopedia

Pouvoir constituant is a constitutional and political science term borrowed from French ; it means constituent or constituent power .

Concept history

The distinction between pouvoir constituant and pouvoir constitué was made 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? ") Introduced into the constitutional discussion:

"Dans chaque partie, la constitution n'est pas l'ouvrage du pouvoir constitué, mais du pouvoir constituant."
("In each of its parts the constitution is not the work of the constitutional authority, but of the constituent authority.")

Constituent authority as a legal and political borderline concept

The pouvoir constituant, the constituent or constitutional power, is the Archimedean point that connects politics and law . It is the top of the legal norms pyramid:

“On the one hand, the constituent power shows the political, historical origin of the constitution, on the other hand justifies its normative claim to validity, then conveys its legitimizing justification and finally brings about its limited duration. Can the constituent power break a constitutional order into revolutionary discontinuity and remove it, as the institute of constitutional amendment is strictly forbidden on the basis of identity and continuity of constitutional validity. "

According to the democratic legitimacy principle of popular sovereignty , the pouvoir constituant is original, elementary and legally independent. The constitution-making power is a power under constitutional law : the people, as the inalienable holder of sovereignty, give and bear the constitution, from which the constituted, constituted state power as pouvoir constitué first emerges and receives its legitimation:

“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 to do so from the people. The right of the people to make a constitution is unlimited and inalienable. A people cannot submit itself or future generations to any constitution or to bind them to procedural regulations. "

The fundamental importance of the doctrine of the constitutional power of the people can be seen, for example, in the fact that this key term is used to explain the validity of the Basic Law for the Federal Republic of Germany . In the preamble , the authors of the Basic Law refer to the “constitutional power of the German people”. Both in the original version of the preamble from 1949 and in the new version on the occasion of German reunification in 1990, the pouvoir constituant of the people acts as the pivot of all democratic legitimation :

"Preamble
Conscious of its responsibility before God and man, inspired by the will to serve the peace of the world as an equal member in a united Europe, the German people, by virtue of their constituent powers , gave themselves this Basic Law. The Germans in the states of Baden-Württemberg, Bavaria, Berlin, Brandenburg, Bremen, Hamburg, Hesse, Mecklenburg-Western Pomerania, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein and Thuringia have in free self-determination completes the unity and freedom of Germany. This basic law applies to the entire German people. "

The political explosiveness of the doctrine of the original constitution- making power of the people - its explosive power - is based on the fact that the constitution can not only be created and supported by the people, but can also be eliminated:

“In situations of revolutionary upheaval, the constituent authority acts as a fighting term: It serves as a lever for overthrowing. As such it was created in the great French Revolution and since then has been used in all the great revolutions, 1848, 1917 and 1918, 1933 and again in 1989. "

According to the principle of popular sovereignty , the people, as the original bearer of the pouvoir constituant, can commission a constituent assembly at any time to draw up a first or a completely new constitution without there being a special written legal basis for this.

In the constitutional state according to this view is the pouvoir constituant precedence over the pouvoirs Constitues , the written state powers . This distinction explains why the people can give themselves a new constitution as part of a revolution without being bound by the legal regulations of the old constitution. The new constitution commissioned by and accepted by the people then forms the legal basis of the newly constituted state powers (pouvoirs constitués) .

Differentiation between amendment of the constitution and amendment of the constitution

In French constitutional law terminology , a distinction is made between the original constitution- making power of the people, the pouvoir constituant originaire , and the derived power to amend the constitution (e.g. of the parliamentary legislature), the pouvoir constituant dérivé .

Even if the original constituent power of the people mostly only manifests itself in a revolutionary environment or in extraordinary historical moments in the form of constituent assemblies , it is still virtually preserved in the state people at all times ; in the free, democratic constitutional state it is in latent limbo. The legal philosopher Hasso Hofmann describes this latent existence of the people's original pouvoir constituant as follows:

"The constitution can only function as a fixed order if it transfigures the revolution into a distant myth of origin."

In order to avoid the constitutional repeal and revision too often, the sovereign people are free to give themselves a so-called flexible constitution .

Flexible constitutions contain articles that specify the terms of their partial revision (partial amendment). If the people-sovereign, original pouvoir constituant transfers the permission to amend the constitution in this way , he thereby gives rise to a new power, namely the derived power to change the constitution , the pouvoir constituant dérivé . This institutionalized power is not allowed to revise the constitution, but it is allowed to revise it.

Various forms of (derived, instituted) constitution-changing violence are conceivable:

  1. The legislature can be empowered to change the constitution. The conditions can become more difficult: for example, a two-thirds majority can be prescribed for constitutional amendments . In addition, an independent constitutional judiciary can be created which checks constitutional changes within the framework of a normative review and which can, if necessary, declare the changes to be ineffective as unconstitutional constitutional law . Furthermore, special constitutional amendments can be laid down.
  2. The sovereign people reserve the final decision and prescribe the ( plebiscitary ) change path exclusively through referendums and referendums .
  3. Mixed forms of 1) and 2) are also possible, such as B. in Switzerland or France . In Germany, some state constitutions provide for this hybrid form to amend the state constitution, such as B. the state constitution of the Free Hanseatic City of Bremen (Article 70d referendum, referendum).

Rigid constitutions, on the other hand, do not contain an article that allows a change initiative or impose such difficult requirements on a change that it is procedurally not feasible. In these cases it is practically impossible for the incumbent state organs to change the constitution . There is no other way out than to resolve in a quasi-revolutionary act to open the way for the elaboration of a completely new constitution; that is, the original pouvoir constituant must reappear in the form of a constituent assembly for the elimination of the constitution and for the revision of the constitution .

An example of such a rigid constitution is the French constitution of 1791 . Title VII, Article 8 states:

“None of the powers established by the constitution have the right to change them in whole or in part [...]. After listening to the reading of the present constitution and having approved it, the National Assembly declares that the constitution has been adopted and that it cannot change anything. "
“Aucun des pouvoirs institués par la Constitution n'a le droit de la changer dans son ensemble ni dans ses parties… L'Assemblée nationale, ayant entendu la lecture de l'acte constitutionnel ci-dessus, et après avoir approuvé, déclare que la Constitution est terminée, et qu'elle ne peut y rien changer. "

Since the legislature could not de facto change the rigid constitution, the original pouvoir constituant manifested itself again and again in France. In the period from 1789 to 1875 alone, i.e. only within 86 years, it appeared thirteen times and gave France thirteen completely new constitutions each time and through revolutions and coups d'état established a wide variety of political regimes (constitutional monarchy, republic, dictatorship, empire). So the subversive constitutional carousel spun like this:

"Constitution de 1791, Constitution de l'an I (1793), Constitution de l'an III ou du Directoire (1795), Constitution de l'an VIII ou du Consulat décennal (1799), Constitution de l'an X ou du Consulat à vie (1802), Constitution de l'an XII ou de l'Empire (1804), Constitution sénatoriale de 1814, Charte de 1814, Acte additionnel aux Constitutions de l'Empire (1815), Charte de 1830, Constitution de 1848 , Constitution de 1852, Constitution de 1870. "

(Un) bondage of the pouvoir constituant originaire

The postulate of the complete independence of the original constitution-making power of the people in a constitution would allow everything. This extreme right-wing positivist position was once formulated by Hans Kelsen :

"Any content can be law."

Whereby Kelsen's sentence is meant more analytically and should not be an agreement to any content. This is seen differently from a non-positivist position , which has drawn the lesson from painful experiences with inhuman regimes. Hartmut Maurer explains this position , which is based on natural law , as follows:

“Of course, independence does not mean freedom. Because the constitutional power is also bound to certain guidelines, to general ideas of justice, over-positive values, ethical precepts or, if one does not want to accept such ties, to historical experiences that teach about wrong decisions and their consequences. "

The member states of the European Union are also bound by agreements that are binding under international law , such as human rights agreements , so that in a hypothetical future Federal German or Union-European Constituent Assembly, the fundamental rights that can not be given up would by no means be at disposal.

See also

literature

  • Klaus von Beyme : The Constituent Power of the People, Democratic Doctrine and Political Reality. JCB Mohr, Tübingen 1968, ISBN 978-3-16-828971-5 .
  • Ernst-Wolfgang Böckenförde : The constituent power of the people. A borderline concept of constitutional law. Metzner, Frankfurt 1986.
  • Kemal Gözler : Le pouvoir constituant originaire. Mémoire du DEA de Droit public. Directeur de recherches: Prof. Dmitri Georges Lavroff, Université de Bordeaux I, Faculté de droit, des sciences sociales et politiques, 1992, 93 pages ( full text of the dissertation: “Le pouvoir constituant originaire” ).
  • Kemal Gözler: Le pouvoir de révision constitutionnelle. Villeneuve d'Ascq, Presses universitaires du Septentrion, 1997, 2 volumes, ISBN 2-284-00072-X .
  • Martin Heckel : The legitimation of the Basic Law by the German people. In: Collected Writings. State, Church, Law, History, Volume III (=  Jus Ecclesiasticum  58). Mohr Siebeck, Tübingen 1997, ISBN 978-3-16-146740-0 , pp. 3-72 .
  • Hasso Hofmann: Introduction to the philosophy of state and law. Darmstadt 2000, ISBN 3-534-05975-1 .
  • Josef Isensee : The people as the basis of the constitution. Myth and Relevance of the Doctrine of Constituent Power. Paderborn 1995, ISBN 3-531-07334-6 .
  • 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 .
  • Martin Loughlin / Neil Walker: The Paradox of Constitutionalism: Constituent Power and Constitutional Form. Oxford University Press, 2007, ISBN 978-0-199-20496-0 .
  • Hartmut Maurer : Constitutional change in the party state. In: Festschrift for Martin Heckel on his seventieth birthday. Edited by Karl H. Kästner, Knut W. Nörr u. Klaus Schlaich. Mohr Siebeck 1999, ISBN 978-3-16-147158-2 , pp. 821-838 .
  • Karlheinz Merkel : The constituent power of the people. Foundations and dogmatics of Article 146 of the Basic Law. 1st edition, Nomos Verl.-Ges., Baden-Baden 1996, ISBN 3-7890-4413-X .
  • Hauke ​​Möller: The people's constituent power and the barriers to constitutional revision: An investigation into Article 79 Paragraph 3 of the Basic Law and the constituent power according to the Basic Law. dissertation.de, 1st edition 2004, ISBN 3-898-25848-3 Full text of the dissertation (PDF; 831 kB) .
  • Dietrich Murswiek : The constitution-making power according to the Basic Law for the Federal Republic of Germany (=  writings on public law 343). Duncker & Humblot, Berlin 1978, ISBN 3-428-04174-7 (also Diss. Univ. Heidelberg 1978).
  • Dietrich Murswiek: Maastricht and the pouvoir constituant. On the importance of the constitutional power in the process of European integration. In: Der Staat 32, Berlin 1993, pp. 161–190.
  • Carl Schmitt : Verfassungslehre, 9th edition, Duncker & Humblot, Berlin 1993 (corrected new edition of the first edition from 1928), ISBN 3-428-07603-6 .
  • Egon Zweig: The doctrine of the Pouvoir Constituant. A contribution to the constitutional law of the French Revolution. Tubingen 1909.

Footnotes

  1. ↑ Emmanuel Joseph Sieyès: Qu'est-ce que le tiers état?, Published January 1789, chapitre 5 . See also 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, de Gruyter, 1987, ISBN 3-110-11057-1 , pp. 247-264 .
  2. ↑ Martin Heckel : The legitimation of the Basic Law by the German people. In: Collected Writings. State, Church, Law, History, Vol. III, Mohr Siebeck 1997, p. 28 .
  3. ↑ Hauke ​​Möller: The constituent power of the people and the barriers to constitutional revision: An investigation into Article 79, Paragraph 3 of the Basic Law and the constitutional power according to the Basic Law. 1st edition 2004, ISBN 3-898-25848-3 , p. 31.
  4. ↑ Basic Law for the Federal Republic of Germany of May 23, 1949 ( Federal Law Gazette p. 1) - last amended by the Treaty between the Federal Republic of Germany and the German Democratic Republic on the establishment of the unity of Germany ( Unification Treaty ) of August 31, 1990 (Federal Law Gazette. II p. 885) in conjunction with the Unification Act of 23 September 1990 (Federal Law Gazette II p. 890).
  5. ↑ So the metajuristic concept of constitutional power contains a certain paradox which - according to Martin Heckel - makes it so difficult for lawyers to understand:
    “The constitution-making power cannot be derived from norms, but it contains a normative decision that creates norms. It is the fruit of a historical moment that demands constancy beyond the moment. It wants to guarantee the continuity of the validity of the norms, although its beginning and end are characterized by the discontinuity of the constitutional relationships. It demands inviolability, although it stems from a breach of the previously applicable constitutional law and can also sweep away the current constitutional order in upheaval. It expresses itself in the - often violently eruptive - revolution of the people , which, however, by virtue of its constituent power, obliges the constituted organs of the state to strictly enforce the constitution against any attempt at revolution, coup d'état and breach of the constitution - as long as it [the people] carries the constitution . "
    (Martin Heckel: The Legitimation of the Basic Law by the German People. In: Gesammelte Schriften. State, Church, Law, History, Vol. III, Mohr Siebeck, Tübingen 1997, pp. 34–35 ).
  6. ↑ Martin Heckel: The legitimation of the Basic Law by the German people. In: Collected Writings. State, Church, Law, History, Vol. III, Mohr Siebeck 1997, p. 37 .
  7. ↑ Kemal Gözler: Le pouvoir de révision constitutionnelle, Thèse pour le doctorat en droit. Directeur de recherches: Prof. Dmitri Georges Lavroff, Université Montesquieu - Bordeaux IV, Faculté de droit, des sciences sociales et politiques, 1995. This derived, constitutional power is also known in French as pouvoir de révision constitutionnelle or, at first glance, confusing as pouvoir constituant constitué , referred to as "constituted constituent power"; because referenda, referendums and partial amendments to an existing constitution by parliament are also elements of the 'constituted state power', since they are carried out within the framework of the norms of a given constitutional order, in continuity with the existing constitution. The original pouvoir constituant is characterized by a total break, by discontinuity in times of crisis.
  8. ^ Hasso Hofmann : Introduction to the philosophy of state and law. Darmstadt 2000, ISBN 3-534-05975-1 , p. 178.
  9. ↑ German text and French text
  10. ↑ Les révolutions et la valse des constitutions. In: Maurice Duverger: Les constitutions de la France. Que sais-je? n ° 162, 15e éd. 2004, ISBN 2-13-054608-0 , Chapitre II p. 34.
  11. ↑ Hans Kelsen: Reine Rechtslehre , 2nd ed. 1960, p. 201.
  12. ↑ Hartmut Maurer : Constitutional amendment in the party state. In: Festschrift for Martin Heckel on his seventieth birthday. Edited by Karl H. Kästner, Knut W. Nörr and Klaus Schlaich. Mohr Siebeck, Tübingen 1999, ISBN 978-3-16-147158-2 , p. 828 fn 20 .