About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

12 E. Eur. Const. Rev. 78 (2003)
The Self-Protecting Constitutional State

handle is hein.journals/eeurcr12 and id is 206 raw text is: The Self-Protecting Constitutional State Andra's Saj6 The state's most natural characteristic is self- defense. Self-defense incorporates the maintenance of public order and, using this as a pretext, the preservation of the rule of those in power. A constitutional state's self-defense, however, raises a peculiar problem. In such a state, the political regime's democratic nature-majority rule-permits the deformation of democracy and the establishment, within the framework of the democratic process, of a regime that dissolves democracy. It will always remain one of the best jokes of democracy that it provides its own deadly enemies with the means with which it can be destroyed.: This problem may also be related to the self-defensive restrictions of rights undertaken by some countries after September 11, although, unlike the terrorist threat, the destruction of democracy by democratic means has to do with those who openly want to use the means of democracy to undermine democracy. Several democracies, and particularly the post- communist constitutional states, are rather defenseless against emotionally manipulative politics and challenges that exploit constitutional opportunities. The constitu- tional foundations of these states are threatened by not only a politics of emotional radical populism but also racism and corruption. In what follows, using the Hungarian example, I will analyze whether there are legal techniques that may protect the constitutional state preemptively. The statutes regulating the fundamental institu- tions of the Hungarian political system (the rights of association and assembly) were adopted months before the constitutional amendments of 1989. In an era when the neutrality of the authorities could not be trusted, these technically unsatisfactory laws sought to allow the authorities the narrowest possible leeway. Were the constitutional order challenged today, these techniques could protect it only under the most fortunate of circumstances. Strengthening the organs of coercion and facilitating oppression cannot be the answer to such potential challenge. Of course, the protection of democracy is a social and political question. Legal measures are unsuccessful without governmental policies protecting democracy. It is well known that lawyers overrate legal measures. In the absence of a better option, however, even these limited measures must be put into use to protect democracy. Law, similar to the law's symbolic message of authority, is capable of mobilization. I am well aware that the measures of the constitu- tional state's preventive self-protection differ from the solutions that are generally used and accepted in a constitutional state, and, as such, may be capable of undermining the constitutional state itself, the very value to be protected. Moreover, in Hungary during the past decade, and in other democratic countries during the past decades, there has been a shift from the constitutional state in the direction of a police state- all in the name of effectively protecting order and, more recently, fighting terrorism. The constitutional state's erosion is undeniable. What is militant democracy? What should we defend the state against? In the center of this analysis is the arsenal that may be employed by militant democracy. This expression appeared in an essay by Karl Loewenstein in 1937, and the German Basic Law (Constitution) enacted after World War Two was written in the spirit of militant democracy.2 Prior to World War Two, a number of EAST EUROPEAN CONSTITUTIONAL REVIEW

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most