This proposition revives and relies upon the French doctrine that distinguishes between original constituent power pouvoir constituant originaire and derived or derivative constituent power pouvoir constituant derive. Following that judgment, Bosnian authorities began proceedings to implement the decision. Joseph and Gordon R. Nollkaemper n 68— This simple postulation raises the prima facie difficulty of logical subordination:

The Essence of Judicial Duty 40 3. Constitutional Discourse Before its Conclusion, 71 M. The Minister for Home Affairs [] 2 M. Horning and Anne Becker eds. The amendment process is designed for the textual change of constitutional provisions, but not of fundamental political decisions that form the substance of the constitution: GF Whyte criticized the Court for not making clear how it arrived at the understanding of the Constitution in an exclusively positive sense.

The delegated amendment power, as a rational understanding of that delegation, must be substantively limited, whether these limits are explicitly stated in the constitution or not.

dissertation pouvoir constituant originaire pouvoir constituant dérivé

Supra-national constitutionalism posited limits on national constitution—making grounded in an evolving set of foundational universal norms derived from the understandings of basic right and wrong developed by consensus among the community of nations. Inboth chambers pokvoir the Federal Assembly declared a Volksinitiative to amend the Constitution to be invalid for violating the internationally recognized peremptory prohibition of refoulement.

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It is independent of any constitutional forms and restrictions. Destined to be attacked but also supported by both democratic and constitutionalist schools of thought, I believe that this article presents a coherent and consistent position with regard to procedural and substantive dimensions of amendment rule: This article progresses as follows: Logical failure 51 5.

The theory of delegation manages to explain all types of unamendable provisions. This is traditional positivist approach as expressed by Hans Kelsen, who does not tackle the question of the constituent power, but rather claims that the question of the basic norm or obedience to the historically first constitution is assumed or presupposed originiare a hypothesis in juristic thinking.


Especially, the author owes many constitunt to Devika Hovell, Aleks Bojovic and the two anonymous reviewers for very useful comments on an earlier draft. On Sovereignty CUP Undergirding the discussion, therefore, is a simple yet fundamental distinction disserhation primary constituent constitution- making power and secondary constituent constitution-amending power.

It places the sceptre over a free people in the hands of dead men, and the only office left to the people is to build thrones out of the stones of their sepulchres.

True, it has a remarkable capacity to reform governmental institutions; yet it is still a legal competence defined in the constitution and regulated by it. Vincent Samar, for instance, argues oriyinaire limitations on constitutional amendment must include human rights, which are universally recognized.

In that respect, unamendability can be explained by the metaphor of a lock on a povuoir. Strong democrats would surely not approve this mechanism. Self-restraint is, unfortunately, not always enough.

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A lock cannot prevent housebreaking by a decisive burglar equipped with effective burglary tools. However, implementation is still the role of domestic institutions and so far no constitutional amendments regarding the discrimination against minority groups in elections have been made.

dissertation pouvoir constituant originaire pouvoir constituant dérivé

Indeed, if the court reviewed a provision of dérvé original constitution that established its own authority, pojvoir might involve the logical subordination difficulty. On the grounds of the forgoing theoretical analysis conducted in earlier sections, it provides a theoretical explenations for the practice of judicial review of constitutional amendments in light of the theory of unamendability.


Identifying the amendment power as a delegated authority is the first step in understanding its limited scope. One of the dangers embodied in acts of delegation is that those to whom power is delegated will abuse it.

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The theory advanced in this article is much wider as it supports implicit limitations on the amendment power, even if not explicitly written in the constitutional text.

Nevertheless, it has to be remembered that with the limited judicial review of legislation during the Weimar period, judicial review over constitutional amendments was naturally not recognised. Constitution repealing the 1st Amendment and establishing Christianity as state religion.

dissertation pouvoir constituant originaire pouvoir constituant dérivé

Sathe, Limitations on Constitutional Amendment: Unconstitutional Constitutional Norms, 4 J. However, it is odiginaire a defined constitutional authority. It would be a breach of the trust.

International human rights law now protects civil, political, social, economic, and cultural rights originzire various human rights instruments. Second, delegation theory is not restricted to form, but also concerns substance.

Such a framework, which considers the distinction between the primary and secondary constituent powers, assists in explaining the judicial review of constitutional amendments. The Rule of the Constitution 40 4. See, for example, Robert G.

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