In constitutional law , the term constitutional state is predominantly used in a narrow substantive and material sense: it refers to a certain ideal type of constitutional state, namely the free, democratic constitutional state of western character .
On the basis of the criteria monarchical / republican, presidential / parliamentary, representative / plebiscitary ( indirect / direct ), the following types of constitutional state can be distinguished:
- constitutional monarchies (e.g. the Grand Duchy of Luxembourg ), parliamentary monarchies (e.g. the Kingdom of Spain ),
- Presidential republics (e.g. the USA ), semi-presidential republics (e.g. the French Republic ), parliamentary-representative republics (e.g. the Federal Republic of Germany ), parliamentary-plebiscitary republics (e.g. the Swiss Confederation , see also semi-direct democracy ).
According to the territorial organization principle, a distinction is made between federal or centralized constitutional states . In Germany , the 16 member states each have their own national constitution . The Kingdom of Belgium is an example of a federal parliamentary monarchy . The French Republic is a prime example of a centralized, unitary state .
From the point of view of religious constitutional law , state church law , i.e. according to the legal relationship between the state and religious communities, a distinction can be made between constitutional states with a state church or state religion and secular constitutional states .
- Constitutional states with a state church or a state religion are z. B .:
the Argentine Republic. Article 2 ° of the Argentine Constitution reads:
- "El Gobierno federal sostiene el culto católico apostólico romano."
- "The Federal Government supports the Roman Catholic Apostolic cult." ;
the Kingdom of Norway , according to the Norwegian Constitution Article 2 sentences 2 and 3:
- “The Evangelical Lutheran denomination remains the state's public religion. The inhabitants who profess it are obliged to raise their children in it. " ;
- either with a strict separation of religious communities and the state as in the French Republic (based on the law of 1905 on the separation of church and state ; see also "Prohibition of wearing conspicuous religious symbols in public schools": headscarf dispute ) or with state control of religion such as in the Republic of Turkey (→ Religions in Turkey ),
- on the other hand, the constitutional states with limping separation (according to Ulrich Stutz ), d. H. with cooperation between religious communities and the state, such as B. the Federal Republic of Germany (→ church tax , theological faculty , concordat chair , religious instruction , concordat ) and Switzerland .
France as a constitutional laboratory and as a historical model of European constitutional states
- "France was a model for Europe not only because of the first written constitution that actually came into force, but also as a constitutional laboratory , because no other country offers such a turbulent picture in terms of constitutional history ."
The French constitution of 1791 with the preceding declaration of the declaration of human and civil rights from the early phase of the French Revolution became the model of European constitutionalism . In a single document are recorded in writing: the fundamental rights and the rules of state organization ; The constitution is legitimized by popular sovereignty . A constitutional amendment is denied to the constituted state authority and reserved only to the revolutionary constitution-making authority of the people.
In the years 1791–1958 the French constitutions were amended seventeen times : in this constitutional laboratory , the most varied types of constitutional state were tried out, alternating between four constitutional monarchies, various dictatorships , two empires and five republics. The revolutionary constitutional carousel was repeatedly set in motion by three revolutions, three coups and numerous plebiscites .
The USA as an example of a constitutional state that has been stable for over two hundred years with an integrated constitutional jurisdiction
While France is an example of great constitutional instability - constitutions have been radically eliminated and replaced by new ones - the constitutional state USA shows the opposite picture of a quasi-timeless constitutional continuity:
- "The United States Constitution is the oldest written constitution in the world still in force."
In the United States, constitutional changes take place within the framework of the constitution without the need for a constitutional amendment. From its entry into force in 1787 to the present day, the United States Constitution has been amended only 27 times in more than 220 years by amendments . The original text of the US constitution was extremely short and consisted of only seven articles; the far-sighted founding fathers enjoy an almost mythical veneration. Her Federalist Papers are still important sources of the constitutional discourse.
The constitutional lawyer Martin Kriele assesses the historical development in the contradicting constitutional states France and the USA as follows:
- “The claim that the French have led a much more democratic life than the English and Americans since 1789 can only be defended with the argument that they made so frequent use of the ' pouvoir constituant ' and thus demonstrated popular sovereignty. On the other hand, if you compare everyday political life, the French had much less democracy than the Anglo-Saxon countries. "
The US constitution owes its longevity not only to its brevity and its founding mythical veneration, but above all to its great flexibility. It made it possible for B. the Supreme Court to find yourself competent to review federal laws for their constitutionality and, if necessary, to declare them null and void. This happened in 1803 in the Marbury v. Madison . With this judicial precedence decision , the constitutional jurisdiction , "Judicial Review", was introduced for the first time worldwide . The USA became the model for many constitutional states that emerged later. Their very own contribution, the invention of constitutional jurisdiction , initiated by courageous judges, was adopted with considerable delay in some European constitutional states in the 20th century and further developed there. While constitutional control has only been integrated into ordinary jurisdiction as an additional function in the US pioneering model since 1803, constitutional jurisdiction in Europe became independent and gained institutional independence. First of all, the world's first independent constitutional court was established in Austria in 1920, namely the Austrian Constitutional Court, which goes back to Hans Kelsen . After 1945 the actual “expansion of the institutional constitutional jurisdiction ” began: 1948/1956 in Italy La Corte costituzionale italiana ; 1949/1951 the Federal Constitutional Court in the Federal Republic of Germany ; 1958 in France the Conseil Constitutionnel ; 1978/1980 in Spain El Tribunal Constitucional de España ; 1982/1983 in Portugal O Tribunal Constitucional de Portugal . After 1989, independent constitutional courts emerged in the transition states of the Eastern Bloc . Independent constitutional courts also emerged outside of Europe, e.g. B. 1988 in South Korea and 1995 in South Africa .
The UK as a constitutional state with no written constitution
A special case is the United Kingdom of Great Britain and Northern Ireland , a country that to this day has no written constitution and which is still considered a constitutional state. The Darmstadt historian Hans-Christoph Schröder writes :
- "At a time when other countries were adopting constitutions, England already had essential features of a modern constitutional state."
The United Kingdom has an unwritten constitution that has grown out of the special tradition of the Anglo-Saxon legal system (“ Common Law ”) . On the one hand, it is based on “quasi-constitutional” historical documents such as B. on the Magna Carta , the Petition of Rights, and the Habeas Corpus Act ; on the other hand, it is derived from the legal tradition of common law. In England, for example, constitutionalism was invented but not brought to an end, which is justified in the different constitutional understanding of the English legal system (such as common law, case law and rule of law ).
In the United Kingdom the historically grown principle of parliamentary sovereignty applies , which goes back to the Bill of Rights of 1689. The doctrine of the people's constitutional power, which has been so fundamental to continental Europe since the French Revolution , therefore remained without much resonance in the United Kingdom. An independent constitutional jurisdiction could not develop due to the different legal traditions.
Only recently - in connection with the efforts to give the European Union a constitution - the topics constituent power of the people, popular sovereignty and a written constitution for Great Britain have gained new relevance and are being discussed controversially in the island nation.
Constitutional states with an absolutist or theocratic order
The last absolute monarchy in Europe, the Vatican State, has given itself a written constitution in which absolutism is continued. The pouvoir constituant lies with the monarch ( monarchical principle ) and all state power is concentrated in his hands; there is neither popular sovereignty nor separation of powers nor a catalog of fundamental rights . So it says literally in Article 1 of the New Basic Law of the Vatican State from 2000:
- "As head of the Vatican State, the Pope has the abundance of legislative, executive and judicial powers."
- “According to the Islamic lawyer Shabani, secular states are governed on the basis of the will of the people. The will of the people and the voice of the people are the main sources of power in such systems.
- In states in which, however, 'divine ideas' and Islamic worldview prevail, only the divine will is the source and main reason for rule. Therefore, the main source of the constitution is now the Koran and the Sonnat , on the basis of which the Iranian constitution was established. "
According to Article 94, the Guardian Council has the function of a preventive constitutional jurisdiction. Its task is to review all resolutions of the (unicameral) parliament within ten days for compliance with the principles of Islam and the constitution of the Islamic Republic of Iran; if contradictions are recognizable, the legislative proposal will be rejected.
The Islamic Republic of Afghanistan also legitimizes its new constitution religiously: Islam is the state religion - see preamble and Article 2 of the new constitution. After the elimination of the Islamist Taliban regime, the Petersberg Agreement agreed to set up an Afghan constituent assembly , called Constitutional Loja Jirga , which then drew up the new Afghan constitution and passed it in January 2004:
- “As a typical case of 'law in the books', it is based on the modern principles of democracy and the separation of powers, respects human rights (Article 7) and guarantees all essential fundamental rights [Article 22 ff. AVerf 2004] […]. The unanswered question is how it can be brought into harmony with the holy principles of Islam, to which the form of government of the Islamic Republic is nonetheless bound. "
Because at the same time, the Sharia was reintroduced with the 2004 constitution ; namely in Article 3:
- "In Afghanistan no law may contradict the beliefs and regulations of the holy religion of Islam."
Article 149 of the Afghan Constitution gives Sharia an eternity guarantee :
- "The provisions according to which the principles of the holy religion of Islam and the order of the Islamic Republic must be obeyed cannot be changed."
Constitutional states with the rule of law and democracy
In today's constitutional literature, the term constitutional state is predominantly used in a narrow material sense: it refers to a certain ideal type of constitutional state, namely the free-democratic constitutional state of western character, in which the respective constitution and constitutional reality guarantee citizens basic rights:
- “The constitutional state comprises three essentialia that have been characteristic of every 'constitution' since the French Revolution that 'deserves its name': democracy, fundamental rights and separation of powers. In addition, there are features that traditionally shape the German concept of the constitutional state: the rule of law, federalism and the social goal of the state. "
Features of the rule of law, by which a state is measured so that it can be considered a free, democratic “constitutional state” in this narrower sense, include: a. Human rights , popular sovereignty , separation of powers , pluralism and the existence of an independent constitutional judiciary that monitors compliance with constitutional norms (→ control of norms ) and to which every citizen can turn if he believes that his basic rights are impaired by state authority (→ constitutional complaint ).
Similar requirements for "a constitution that deserves its name" (see quotation above) can already be found in the French Declaration of Human and Citizens' Rights of August 26, 1789 , which preceded many French constitutions and which is still valid in France today . There it says in Article 16:
- "Toute société dans laquelle la garantie des droits n'est pas assurée, ni la séparation des pouvoirs déterminée n'a pas de constitution."
- ("A society in which the guarantee of rights is not ensured and the separation of powers is not established has no constitution.")
The European Union on the way to becoming a constitutional state?
Constitutional comparison - rule of law and constitutional reality
According to the right positivist understanding of the constitution - law, ethics and politics are to be viewed as separate systems ( separation thesis ) - the constitutional state means a value-neutral, formal term without further specification. Non-constitutional states - terms such as “unjust state”, “ dictatorship of the proletariat ”, “ totalitarian state ”, “ police state ”, “ rogue state ” are used in the political discussion - are “constitutional states ” according to this position, provided they have a formal constitution .
Opposed to this right-positivist position is the value-oriented, constitutional understanding of the rule of law , which makes use of natural law ideas (such as human dignity , justice ): it makes moral demands on the law ( connection thesis ). According to this position, both the constitution-making and the constitution-amending legislature are bound to over-positive law , to pre-constitutional, general legal principles that always preceded all established law and by which it is to be measured.
- Legitimacy , monarchical principle , pouvoir constituant , pouvoir constitué , secularization , form of government , separation of religion and state , constituent assembly , comparative constitution , constitutional history of the United Kingdom
Compare the articles from the English language Wikipedia:
- Constitution of the United Kingdom , parliamentary sovereignty , popular sovereignty , rogue state , rule of law
- Josef Isensee and Paul Kirchhof (eds.): Manual of the constitutional law of the Federal Republic of Germany. Volume II - Constitutional State . 3rd edition, ISBN 3-8114-5071-9 .
- Robert Alexy : Concept and validity of law . Alber, Freiburg / Munich 1992, ISBN 978-3-495-48063-2 .
- Alexander von Brünneck: The emergence of the modern constitutional state in the English, American and French revolutions . In: Timm Beichelt: European Studies. An introduction. Third part: law . Wiesbaden 2006, ISBN 978-3-531-14900-4 .
- Thomas Claer: Negative statehood: From the "band of robbers" to the "unjust state". Hamburg 2003, ISBN 978-3-8300-0895-8 .
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- Hans Fenske : The modern constitutional state. A comparative history from its inception to the 20th century. Schöningh, Paderborn 2001, ISBN 3-506-72432-0 ( http: //vorlage_digitalisat.test/1%3Dhttp%3A%2F%2Fdigi20.digitale-sammlungen.de%2Fde%2Ffs1%2Fobject%2Fdisplay%2Fbsb00044216_00001.html~GB%3D~IA%3D~MDZ%3D%0A~ SZ% 3D ~ double-sided% 3D ~ LT% 3D ~ PUR% 3D ).
- Peter Häberle : The cooperative constitutional state - from culture and as culture. Preliminary studies for a universal constitutional doctrine (= publications on public law, vol. 1243), Duncker & Humblot, Berlin 2013, ISBN 978-3-428-84032-8 .
- Hans-Christof Kraus : English constitution and political thinking in the Ancien Régime 1689 to 1789. Munich 2006, ISBN 3-486-57908-8 .
- Martin Kriele : Introduction to the theory of the state. The historical bases of legitimacy of the democratic constitutional state. 6th expanded edition, Stuttgart 2003, ISBN 3-17-018163-7 .
- Alois Riklin: Power sharing. History of the mixed constitution . Scientific Book Society, Darmstadt 2006, ISBN 978-3-534-18774-4 . ( see also the review by Marcel Senn )
- Berthold Rittberger : The European Union on the way to a constitutional state . Campus Verlag, Frankfurt am Main / New York 2006, ISBN 3-593-38181-8 .
- Helmuth Schulze-Fielitz: The informal constitutional state. Current observations of the constitutional life of the Federal Republic of Germany in the light of constitutional theory . Duncker and Humblot, Berlin 1984, ISBN 3-428-05689-2 .
- Hans-Christoph Schröder: Ancient Constitution. On the benefits and disadvantages of the unwritten constitution of England. In: Hans Vorländer (Hrsg.): Integration through constitution . Wiesbaden 2002, ISBN 3-531-13741-7 , pp. 137-212 ( Google Books ).
- Christian Starck : The democratic constitutional state. Mohr, Tübingen 1995, ISBN 3-16-146442-7 ( Google Books ).
- Tine Stein : Heavenly sources and earthly law: religious prerequisites of the free constitutional state . Campus Verlag, Frankfurt am Main 2007, ISBN 978-3-593-38338-5 .
- Rudolf Steinberg: The ecological constitutional state. Suhrkamp, Frankfurt am Main 1998, ISBN 3-518-58269-0 .
- Dietmar Willoweit : Unjust state, rule of law - a right alternative? In: Hans Günter Hockerts (ed.): Coordinates of German history in the era of the East-West conflict. (Writings of the Historisches Kolleg, Colloquia 55) 2004, ISBN 978-3-486-56768-7 , pp. 245-259.
- Franziska Hagedorn and Roman Maruhn: Constitutional comparison of the 15 member states of the European Union , Munich 2003 ( page no longer available , search in web archives: see in particular pp. 10–22: "Tabular short form")
- Christian Walter : Religious Constitutional Law in a Comparative and International Perspective. Jus publicum, vol. 150, Mohr Siebeck, Tübingen 2006, ISBN 3-16-148990-X .
- See Art. 2 ° - Argentine Constitution (in full Spanish text)
- Norwegian Constitution Article 2 Sentences 2 and 3 ( Memento of April 13, 2009 in the Internet Archive )
- Domenico Pulitano: secularism and criminal law. Lit Verlag, Münster 2007, ISBN 978-3-8258-0610-1 .
- Loi du 15 mars 2004 en application du principe de laïcité : "Article 1 - Dans les écoles, les collèges et les lycées publics, le port de signes ou tenues par lesquels les élèves manifestent ostensiblement une appartenance religieuse est interdit."
- Wolfgang Reinhard : History of State Power. A comparative constitutional history of Europe from the beginning to the present. 3rd edition, CH Beck, Munich 2002, ISBN 978-3-406-47442-2 , p. 413.
- See the website of the US Embassy in Germany on the US Constitution .
- Martin Kriele : Introduction to the theory of the state. The historical bases of legitimacy of the democratic constitutional state. 6th expanded edition, Stuttgart 2003, ISBN 3-17-018163-7 , pp. 291-292.
- For a tabular overview of the constitutional jurisdiction in the world and the scope of its competencies as of August 30, 1991, see K.-G. Zierlein: The importance of constitutional case law for the preservation and enforcement of the state constitution. An overview of the legal situation in and outside Europe , in: Europäische Grundrechtszeitschrift. (EuGRZ), (1991), pp. 301-341; Robert Chr. Van Ooyen and Martin HW Möllers: The Federal Constitutional Court in the political system. The Federal Constitutional Court in a European and international environment. VS Verlag für Sozialwissenschaften, 2006, ISBN 978-3-531-14762-8 .
- "The Constitutional Council, Conseil Constitutionnel, can only check a law preventively: once it has come into force, it is immune to legal scrutiny [...]. This review can only take place between the adoption of the law and its promulgation […]. Originally, however, the CC could only be called by the President, the Prime Minister and the Presidents of both chambers. However, since 1974 a constitutional amendment has made it possible for 60 MPs or 60 senators to call the Constitutional Council to have a law reviewed. This made a significant contribution to making the CC the 'guardian of the constitution' in the eyes of the population and significantly improving its initially relatively poor image as a watchdog of the executive. Nevertheless, the CC only limited skills, a concrete judicial review, the constitutional complaint of an individual citizen or reviewing records of the executive on their compatibility with the Constitution, are still outside its remit "(Hannah Tewocht. The French constitutional law and the European Union , ISBN 3-86010-812-3 )
- Hans-Christof Kraus: English constitution and political thinking in the Ancien Régime 1689 to 1789. Munich 2006, ISBN 3-486-57908-8 .
- Hans-Christoph Schröder: Ancient Constitution. On the benefits and disadvantages of the unwritten constitution of England . In: Hans Vorländer (Hrsg.): Integration through constitution . Wiesbaden 2002, pp. 137-212 .
- In its history, England had two written constitutions for a short period of time - see Oliver Cromwell : Instrument of Government (1653–1657) and Humble Petition and Advice (1657–1659).
Memorandum on the British constitution and proposed European constitution, by Professor John McEldowney, University of Warwick ( Memento of December 21, 2005 in the Internet Archive ) - Submitted as written evidence to House of Lords Select Committee on Constitution, October 15, 2003;
David Jenkins: From Unwritten to Written: Transformation in the British Common-Law Constitution. In: Vanderbilt Journal of Transnational Law 36 (2003), pp. 863-960;
Vernon Bogdanor: The New British Constitution , ISBN 978-0-7139-9394-3 ;
Vernon Bogdanor: The British Constitution in the Twentieth Century , Oxford University Press, New Ed 2004, ISBN 978-0-19-726319-8 ;
Martin Loughlin, Neil Walker: The Paradox of Constitutionalism: Constituent Power and Constitutional Form , Oxford University Press 2007, ISBN 978-0-19-920496-0 ;
Constituent Power and Constitutional Form ( Memento of May 2, 2008 in the Internet Archive ) - Conference European University Institute Florence 2006 .
The New Basic Law of the Vatican State of November 26, 2000 in German translation or La nuova legge fondamentale dello stato della città del Vaticano in the original Italian version :
- "Art. 1: Il Sommo Pontefice, Sovrano dello Stato della Città del Vaticano, ha la pienezza dei poteri legislativo, esecutivo e giudiziario. "
- Wahied Wahdat-Hagh : The Islamic constitutional state . In: The Islamic Republic of Iran - The rule of political Islam as a variety of totalitarianism. Lit Verlag, Münster 2003, ISBN 3-8258-6781-1 , Chapter 5, pp. 246–323, p. 247 .
Constitution of the Islamic Republic of Iran of July 26, 1989 ( Memento of April 16, 2015 in the Internet Archive ):
- "Article 94 - All legislation passed by the Islamic Consultative Assembly must be sent to the Guardian Council. The Guardian Council must review it within a maximum of ten days from its receipt with a view to ensure its compatibility with the criteria of Islam and the Constitution. If it finds the legislation incompatible, it will return it to the assembly for review. Otherwise the legislation will be deemed enforceable. "
- (Translation: "Article 94 - All laws passed by the Islamic Advisory Assembly (that is the Iranian unicameral parliament) must be forwarded to the Guardian Council. The Guardian Council is obliged to notify them within ten days of their conformity with the principles of Islam and the To review the constitution. If he sees contradictions, he returns them to the Islamic Advisory Assembly for revision. Otherwise, the resolutions are final. " )
- The Constitution of the Islamic Republic of Afghanistan (full text, PDF) ( Memento from March 15, 2012 in the Internet Archive )
- Axel Schwarz: Judicial reform and Islam in Afghanistan. In: ZaöRV 65 (2005), pp. 257–268 , 260 (PDF; 282 kB).
- Constitution of the Islamic Republic of Afghanistan (full text, PDF) ( Memento from March 15, 2012 in the Internet Archive )
- The very broad, fuzzy term “constitutional state” is specified in the literature using attributes and then used in a narrower sense. So one encounters expressions such as “modern constitutional state”, “modern V”, “democratic V”, “liberal-democratic V”, “V”. western style ”, to name just the most common. Authors who advocate that new state goals should be anchored in the constitution or who would like to emphasize certain state goals also emphasize this aspect through attributive expressions, such as B. The ecological constitutional state (by Rudolf Steinberg. Suhrkamp, Frankfurt am Main 1998, ISBN 3-518-58269-0 ) or The informal constitutional state (by Helmuth Schulze-Fielitz, Berlin 1984, ISBN 3-428-05689-2 ) or The social constitutional state
- Prof. Dr. Josef Isensee and Prof. Dr. Paul Kirchhof (Ed.): Handbook of the constitutional law of the Federal Republic of Germany. Volume II - Constitutional State. 3rd edition, ISBN 3-8114-5071-9 , A. Foreword ( Memento of December 6, 2008 in the Internet Archive ).
- Christian Starck : The democratic constitutional state. Moor. Tübingen 1995 ( at books.google.de )
- Preamble to the Constitution of the French Republic of October 4, 1958
- Article 16 of the French Declaration of Human and Citizens' Rights, August 26, 1789
- Berthold Rittberger: The European Union on the way to the constitutional state , Campus Verlag, Frankfurt am Main / New York 2006, ISBN 3-593-38181-8 . ( Table of contents as PDF )
- Dietmar Willoweit: Unlawful State, Rule of Law - A Right Alternative? In: Hans Günter Hockerts (ed.): Coordinates of German history in the era of the East-West conflict. (Writings of the Historisches Kolleg, Colloquia 55) 2004, ISBN 978-3-486-56768-7 , pp. 245-259 .
- Thomas Dunn: The right constitution. A contribution to the problem of correct law. Schulthess Legal Media 1971, ISBN 3-7255-1361-9 .
On the question of whether restrictions are imposed on pouvoir constituant in constitutional legislation, the Federal Constitutional Court said in a judgment of October 23, 1951 (BVerfGE 1, 14 - Südweststaat, principle 21) as follows:
- "21. A constituent assembly has a higher rank than the representative body elected on the basis of the enacted constitution. It is in possession of the 'pouvoir constituant'. It is incompatible with this special position that restrictions are imposed on it from outside.
- a) It is only bound by the overly positive legal principles which precede any written law and - as a constituent assembly of a nascent member of the federal state - to the limits that the federal constitution contains for the content of the state constitutions. Otherwise it is essentially independent. It can only impose limits on itself. "