[pp.int.general] where is the manifesto?
r.bakels at pr.unimaas.nl
Tue Dec 30 01:12:44 CET 2008
Reinier Bakels wrote:
we now get into the basics of democracy. afaik there are two alternative views:
1. Democracy is an expression of the sovereign will of the people - so it is always correct. This principle does not allow for the unavoidable distortion on the way from the will (votes) of the people until actual legislation. The only correction mechanism isyet another democratic decision.
2. The rule of law in some cases has priority over the will of the people. The example most familiar to me is the German constitution - which is enforced by a constitutional court. The first 20 articles can not be changed, at least not in essence.The German constitutional court can reject statutes. But it is restrictive in making political decisions. So often it decides that a certain statute should be corrected (improved) *by the parliament* before a certain date. If not, the statutue is no longer in force.
Maybe you mean that cannot be changed without a prior change of UDHR/ECHR -or withdrawing UDHR (thus exiting UN), ECHR (thus exiting EU) or both-. Or you merely state that simply can not be changed? Because, while I don't know German Constitution, Spanish Constitution formally allows an total reform of itself -even of articles regulating how to make constitutional changes-.
I was reacting to RMS's comment on the correction mechanisms for incorrect legislator decisions. In alternative view 1, legislators can not
make incorrect decisions by definition - because the legislator = the people in a democracy. Of course, this is only the formal truth - reality is that systems are not perfect. Alternative 2 is about a case were the principle of the "people's sovereignty" is subject to an exception: a correction by a constitutional court. This constitutional court basis it decisions on - obviously - the constitution. So to make the system consistent, the democratic legislator should not always be allowed to change the constitution. So art. 79(3) of the german constitution decides that art. 1-20 (or at least its essence) should alwaysbe maintained.
TheDutch constitution is very old fashioned, and we do not have a constitutional court. In NL, only the European court of justice is an (effective) safeguard.
Constitutions often are a reaction to history. The German constitution dates from 1949, and it was areaction to WWII and the Weimar Republic of the 1920s. The Dutch constitution dates from 1848, and solves the problems caused by thefact that NL became a kingdom in 1815 because the Vienna congress decided so - after NL had been a republic for centuries (from 1579 or 1648, depending on your view - NL has been in a an independence war against the Spanish from 1568-1648) The Spanish constitution is probably a reaction to the Franco era ...
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