Circumstances and Techniques of Formation and Modification of Constitutions with Special Regard to the Emergence of the Constitution of the Cech Republic
Abstract
The presented paper responds to the recent debates on the possibilities of change of the Constitution of the Czech Republic and provides theoretical background for the question in which circumstances are constitutions changed in general, whether it is a partial change or new constitutional document is accepted. The aim of the paper is to provide readers with an insight into the issue and to open up some problematic questions among which the issue of the legitimacy of the changes made to the constitutions is crucial.
Since the people are now generally perceived as the bearer of the sovereignty in terms of the dichotomy of the constituent power and constituted power, the people should be able to participate in the process of the change of state's basic law. Such participation may be realized in a variety of ways.
The paper deals with some cases where such possibility was given to the people. It focuses on the case of the Constitution of the Czech Republic which was adopted under specific historical circumstances.
It is precisely the question of legitimacy that is attacked as insufficiently accented in the process of adopting this constitution. This paper therefore presents concepts that are able to overcome this deficiency which in 1992 was evident.
At the same time, it deals with the question of how the future constitution should be adopted in the light of the issue of legitimacy.