Preliminary communication

https://doi.org/10.31297/hkju.17.4.4

The Stability of Constitutions and their Role in Promoting Intergenerational Justice

Fruzsina Gárdos–Orosz ; acting director and senior research fellow, Institute for Legal Studies, Centre for Social Sciences, Hungarian Academy of Sciences

Abstract

This article argues that the legal normative concept of the constitution, with its inherent stability, does not hinder, but instead serves intergenerational justice. The author has two main observations. One is that unamendability belongs to the nature of the constitution no matter if this is specified in the constitution as an eternity clause or not. Even constitutions that do not contain eternity or other entrenchment clauses are not completely flexible, as this is the nature of the constitution. The strength of the stability in the normative sense depends partly on the jurisprudence of the constitutional court. The author argues that this a
key element to prove that constitutions are able to serve intergenerational justice. The second argument that follows from the first one is that if constitutional courts play this role in interpreting the constitution, future judges can always adapt the constitution to the understanding of the law according to future generations. However, this argument is valid only if we accept that constitutionality is a normative concept and the level of abstraction of the constitution helps to preserve the competences of future generations. The popularity of adopting a
constitution and unamendable rules saw renewed enthusiasm globally after the Second World War. Ensuring stability on the other hand yields solid ground to build on for new interpretations, but due to the limited concept embedded in the normative world, it allows for complete change as well, by stepping aside and adopting a new constitution. Therefore, the normative approach serves the best interest of future generations by requiring the implementation of constitutional
adjudication. The constitution as a normative concept does not recognise different generations, even if it is intragenerational and intergenerational, but rather presupposes and safeguards the continuity of the law. By allowing the flexible adaptation of the interpreted rules, while providing stability, it leaves equal room for change for all generations.

Keywords

constitutionalism; intergenerational justice; eternity clause; constitutional court

Hrčak ID:

193942

URI

https://hrcak.srce.hr/193942

Publication date:

20.12.2017.

Article data in other languages: croatian

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