Michał Bożek

The Integral Legitimacy of the Constitution

The aim of the article is an attempt to formulate main assumptions of the concept of integral legitimacy of the constitution. The first one is an opinion that the integral legitimacy is included in the nature of the constitution and is a necessary element of the core of constitution. The second one is an opinion that there is an unbreakable bond between the form and the content of the constitution, which decides about legitimacy of the constitution. The third one is an opinion that the integral legitimacy of the constitution is two-stage legitimacy. The first degree is a necessary element of each constitution. It provides the overall framework of the constitutional order. The second degree is an extension of the first degree of legitimacy and results from the decision of the society concerning the form and the content of the constitution. The last one is an opinion of multidimensional character of the legitimacy of the constitution. The legitimacy is based on belief in social acceptance for the principles of the idea of constitutionalism, which are reflected in rules and values creating the core of the constitution.

Breaking the Constitution in Weimar Constitutionalism

The aim of the article is an analysis of the phenomenon of breaking the constitution. It comes from expierence of the german legal positivism from the second half of the nineteenth century and it is firmly rooted in the constitutional practice of the Second Reich. This practice was the passing of the laws in the mode required for the constitutional change. Their result was the modification of some of the constitutional norms without any change of their text. Such laws didn’t repeal the binding force of concrete norms directly, but they did it indirectly. Such laws didn’t become the part of the constitution in formal meaning, but they became the part of it in a material sense. This practice was accepted by the majority of the german constitutionalists and other representatives of legal science. Supporters of the practice were especially the authors of liberal­democratic views. While the authors of the conservative views rejected the provisions of the legal positivism and the practice of breaking the constitutional norms traeted as an extraordinary measure of the repealing of the binding force of them and it cannot violate the fundamental rules and values of the constitution. Nowadays the weimar authors discussion is the important source of inspiration for the participants of the global debate on the limits of the constitutional change and the need for separation and the protection of constitutional identity.