Kants political and legal theory is now thought to be one of the most important contributions to the theory of modern constitutionalism. The paper is an attempt to distil the fundamental principles of constitutional law as implemented in modern constitutional review from the writings of Kant. It examines the idea of the constitution as a social contract and its relation to popular sovereignty. Second, the principles of “republican constitution”-liberty, equality and independence (autonomy)-follow. These principles condense the essence of what we now call fundamental constitutional rights. Third, the transcendental maxim of legislation, that is, the publicity is analysed; the principle of the publicity of legislation is (under various names like equality, public reasoning and discussion, freedom of speech) fundamental for modern constitutionalism (or neo-constitutionalism). Constitutional courts are organs of the “public use of reason” so important for Kant and revived recently by Rawls. The last section is a discussion of the relationship of morality and constitutional government. Kant regarded the law as a coercive order a precondition for moral autonomy but he did not qualifi ed constitutional principles “moral”. Thus, the Kantian interpretation of constitutionalism does not support the moral reading or interpretation of the constitution; instead, the principles of the “lawful” constitution are based (like the maxims of morality) on practical reason.
In Hungary, the year 2012 brought a significant change in constitutional review. With modifying the competencies of the Constitutional Court, the Basic Law introduced three types of constitutional complaints and abolished actio popularis. Actio popularis was a well-functioning legal instrument in Hungarian law since the political transition of 1989–1990. Up until January 2012 anyone could request the abstract ex post facto constitutional review of a law or regulation. Unlike the former actio popularis, the essence of the new system of constitutional complaints is to have standing requirements for the complainants. Furthermore, new types of complaints are designed to defend constitutionality against personal injuries caused by ordinary courts as well. The article aims to describe actio popularis and constitutional complaints with regard to possible comparison of weaknesses and strong points. The author argues that regarding its effectiveness the new system do not yet provide a complete substitution for actio popularis.
This article analyses the way of the French Constitutional Council, starting with its famous Association decision in 1971, transformed a brief reference to historical declarations of rights in the thin Preamble of the current French constitution (adopted in 1958) into a wide-ranging judge-made catalogue of fundamental rights. This, combined with two important reforms of the procedure for submissions of statutes to the Constitutional Council for review (in 1974 and 2008), are gradually establishing the Constitutional Council as an important actor in the legislative process and a central body for the protection of human rights in France. The article also briefly explores the scope and limits of this protection. It then discusses recent proposals for amending the Preamble. It analyses the only amendment so far, namely the inclusion of a reference to the Charter for the Environment, which aimed at providing a constitutional basis for the protection of environment, as well as other controversial suggestions, such as those aiming at enabling positive discrimination measures towards minorities, the guarantee of media pluralism, the protection of privacy and personal data and the respect of human dignity. It concludes on the use and misuses of comparative law for constitutional reforms.
Sadurski, W.: ConstitutionalReview in Europe and in the United States: Influences, Paradoxes and Convergences. Sydney Law School Legal Studies Research Paper, (2011) 11/15, available at
The present study undertakes the review of one of the essential authorities of the Hungarian Constitutional Court: the issue of abstract subsequent norm control, which is currently amongst the most significant questions. The possibility of the constitutional review of the Supreme Court's directives on unifying the case law is subject to debate in legal literature and in the intercourse between the two organs as well. This study intends to elicit the nature of the problem through the elaboration of relating regulation and by utilizing certain Constitutional Court decisions concerning the subject. It will arrive at the conclusion that the present regulation also gives scope to the Constitutional Court review of directives on unifying the case law. The paper gives a survend evaluation of the solutions involved in the draft of the new Constitutional Court Act too.
functioning of the European Union, published in the Official Journal of the European Union L65/1 of 11 March 20–1.
Valea, D. C. (2012): Constitutionalreview of citizens’ initiatives in Romania. Juridical Current Journal
democracji i institutcji politycznych," Serwis Informacyjny, April 1999.
See Wiktor Osiatynski, "A brief history of the constitution," East European ConstitutionalReview 6:2 and 3 (Spring/Summer 1997); and Pawel Spiewak, "The