O zloupotrebama ustavotvorne vlasti: ustav za privatni interes ili za mnogo generacija?

Mikić, Vladimir (2014) O zloupotrebama ustavotvorne vlasti: ustav za privatni interes ili za mnogo generacija? Pravni život (12). pp. 722-735. ISSN 0350-0500

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Abstract

The constituent power – understood as the power to frame constitutional documents – in any, even a modern society, can be abused, i. e. used contrary to the principles of the rule of law, democracy, and constitutionalism. The examples are not offered only by the outcomes of the postcolonial, socialist, or other authoritarian modern constitution-making processes, but also by some normative products of liberal constitutional theory. This article provides methods and patterns for the abuse of the constituent power in the purposes of gains of powerful individuals or political groups, which can be found in the contemporary comparative constitutional law. It also indicates the risks for the political and legal stability, legitimacy and sovereignty which could be avoided or overcome by the long-term-oriented, objective and more thoughtful constitution-making, as well as by setting the optimal limits of constitutional change. The article proves that absence of the abuse of the constituent power leads to adopting the (comparatively rather rare) constitutions which have a profound effect of political stabilization and are more long-lasting than the other ones.

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