Abstract
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Government and Governance under Pressure of Political and Legal Constitutionalism
Dr. István Stumpf
Member of the Hungarian Constitutional Court
Professor
University of Győr, István Széchenyi Faculty of Law and Political Sciences, Department of Constitutional Law and Political Sciences
This paper will be presented at the General Session of the 26th NISPAcee Annual Conference, May 24 -26, 2018.
Iasi, Romania
Government and Governance under Pressure of Political and Legal Constitutionalism
István Stumpf
Abstract
The global financial and economic crisis forced national governments into a special political field where mainly the quick decision making ability must compete with the measure of the interference with fundamental rights.
During the last decades, the transformation of the structure and dynamics of the principle of separation of powers became the focus of dogmatic interests. In different forms of constitutional democracies, the judicial power’s strengthening was taken into consideration. The controversy about the following topic was sharpened: the balance between the Parliament (primary depository of popular sovereignty) and courts exaggerating the protection of fundamental rights. In the academic literature certain publisher dissert about the rising of ‘juristocracy’ (see: Ran Hirschl: Towards Juristocracy) and at the same time the decline of majority democracy. In parallel with the mentioned academic discussions, the negotiation about ‘the political and legal constitutionalism’ evolved in Europe. According to the representatives of political constitutionalism, the courts (especially the constitutional courts) expropriated those decisions which were in the parliaments’ scope of authority. Through their activist jurisdiction, without authorization, governance by constitutional courts was achieved. According to this theory, the rights of majority democracy must be taken back, and the governance must be entrusted to the elected leaders of the people.
The aforementioned theoretical backgrounds can be used to define international (and national) political process.
Nowadays the quarreling about the theory of ‘Deep State’ in another frame, but it seems to repeat the old conflict. This distends between the measure of elected leaders’ authority and the administrative, judicial ‘Deep State’ which protects stability, continuity, and professional rationalization.
The aim of the paper is to examine the mentioned political and legal process, and to make a comparative analysis of the American and European theory of ‘Deep State’.
Keywords: crisis, principle of separation of powers, judicial power, fundamental rights, ‘juristocracy’, political constitutionalism , legal constitutionalism, constitutional courts, majority democracy, ‘Deep State’
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