Quotation Bezemek, Christoph. 2010. A constitution's minority protective function - Theory and Reality. Third Asian-European Dialogue on Comparative Constitutional Law, Kalkutta, Indien, 11.11.-12.11..


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Abstract

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or the fundamental rights and freedoms its citizens enjoy by the means of formal requirements, the constitution is withdrawn from a random majority s volition.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.

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Publication's profile

Status of publication Published
Affiliation WU
Type of publication Paper presented at an academic conference or symposium
Language English
Title A constitution's minority protective function - Theory and Reality
Event Third Asian-European Dialogue on Comparative Constitutional Law
Year 2010
Date 11.11.-12.11.
Country India
Location Kalkutta

Associations

Projects
Normative Volatility - Potential and Limits of a positive Stabilization of legal Systems
People
Bezemek, Christoph (Former researcher)
Organization
Austrian and European Public Law (Details)
Research areas (Ă–STAT Classification 'Statistik Austria')
5224 Comparative law (Details)
5251 Theory of law (Details)
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