Constitutional Conflicts between Politics and Law in Transition Societies: A Systems-Theoretical Approac
Post-autocratic transitions are often followed by constitutional conflicts between state powers. With respect to the question of rule of law in young democracies, clashes between the executive and legislative branches, on the one hand, and the judiciary and constitutional courts, on the other, as wel...
| Main Author: | |
|---|---|
| Format: | Article |
| Language: | English |
| Published: |
Tallinn University
2011-06-01
|
| Series: | Studies of Transition States and Societies |
| Subjects: | |
| Online Access: | http://www.tlu.ee/stss/wp-content/uploads/2011/06/vol3-issue-1-hein.pdf |
| _version_ | 1811295722642866176 |
|---|---|
| author | Michael Hein |
| author_facet | Michael Hein |
| author_sort | Michael Hein |
| collection | DOAJ |
| description | Post-autocratic transitions are often followed by constitutional conflicts between state powers. With respect to the question of rule of law in young democracies, clashes between the executive and legislative branches, on the one hand, and the judiciary and constitutional courts, on the other, as well as those between ordinary and constitutional courts are particularly virulent. All these conflicts have massively affected the key distinction between politics and law that had been mainly violated in the previous autocratic regimes. Based on Niklas Luhmann’s theory, this article presents a systems-theoretical approach in order to explain the occurrence of these constitutional conflicts. The central argument reads as follows: constitutional conflicts between politics and law will occur under two circumstances — if a constitutional order allows the decision of legal questions based on political criteria or vice versa, and if a constitutional order allows the judiciary or the constitutional court to decide political questions based on political criteria. This argument is further substantiated by means of two exploratory case studies with a special emphasis on post-socialist transitions in Central and Eastern Europe. The main results are eight detailed hypotheses on the question of when, in constitutional orders, and under what circumstances are constitutional conflicts to be expected. |
| first_indexed | 2024-04-13T05:37:47Z |
| format | Article |
| id | doaj.art-c2382d1d50404637984cc0d9048d1dd2 |
| institution | Directory Open Access Journal |
| issn | 1736-874X 1736-8758 |
| language | English |
| last_indexed | 2024-04-13T05:37:47Z |
| publishDate | 2011-06-01 |
| publisher | Tallinn University |
| record_format | Article |
| series | Studies of Transition States and Societies |
| spelling | doaj.art-c2382d1d50404637984cc0d9048d1dd22022-12-22T03:00:13ZengTallinn UniversityStudies of Transition States and Societies1736-874X1736-87582011-06-0131323Constitutional Conflicts between Politics and Law in Transition Societies: A Systems-Theoretical ApproacMichael HeinPost-autocratic transitions are often followed by constitutional conflicts between state powers. With respect to the question of rule of law in young democracies, clashes between the executive and legislative branches, on the one hand, and the judiciary and constitutional courts, on the other, as well as those between ordinary and constitutional courts are particularly virulent. All these conflicts have massively affected the key distinction between politics and law that had been mainly violated in the previous autocratic regimes. Based on Niklas Luhmann’s theory, this article presents a systems-theoretical approach in order to explain the occurrence of these constitutional conflicts. The central argument reads as follows: constitutional conflicts between politics and law will occur under two circumstances — if a constitutional order allows the decision of legal questions based on political criteria or vice versa, and if a constitutional order allows the judiciary or the constitutional court to decide political questions based on political criteria. This argument is further substantiated by means of two exploratory case studies with a special emphasis on post-socialist transitions in Central and Eastern Europe. The main results are eight detailed hypotheses on the question of when, in constitutional orders, and under what circumstances are constitutional conflicts to be expected.http://www.tlu.ee/stss/wp-content/uploads/2011/06/vol3-issue-1-hein.pdfconstitutional conflictsdemocratisationtransitionsystems theoryCentral and Eastern Europe |
| spellingShingle | Michael Hein Constitutional Conflicts between Politics and Law in Transition Societies: A Systems-Theoretical Approac Studies of Transition States and Societies constitutional conflicts democratisation transition systems theory Central and Eastern Europe |
| title | Constitutional Conflicts between Politics and Law in Transition Societies: A Systems-Theoretical Approac |
| title_full | Constitutional Conflicts between Politics and Law in Transition Societies: A Systems-Theoretical Approac |
| title_fullStr | Constitutional Conflicts between Politics and Law in Transition Societies: A Systems-Theoretical Approac |
| title_full_unstemmed | Constitutional Conflicts between Politics and Law in Transition Societies: A Systems-Theoretical Approac |
| title_short | Constitutional Conflicts between Politics and Law in Transition Societies: A Systems-Theoretical Approac |
| title_sort | constitutional conflicts between politics and law in transition societies a systems theoretical approac |
| topic | constitutional conflicts democratisation transition systems theory Central and Eastern Europe |
| url | http://www.tlu.ee/stss/wp-content/uploads/2011/06/vol3-issue-1-hein.pdf |
| work_keys_str_mv | AT michaelhein constitutionalconflictsbetweenpoliticsandlawintransitionsocietiesasystemstheoreticalapproac |