Modern aspects of the legitimacy of constitutional control in European countries

Abstract

Constitutional law has always managed to raise issues for which it is impossible to find a universally recognized solution. Their nature may be different, but in each case there is a conflict (if not to say, a collision) between conflicting principles and values. Such conflicts arise, in particular, when different fields of law and/or political theory overlap. One of the most famous examples is the current debate over the legitimacy of constitutional review. The main dispute arises due to the different points of view of "constitutional positivists", who see the Constitution as a "basic norm" (basic law), and "parliamentary democrats", who are more inclined to agree to the predominance of a democratically elected majority. Although the idea that the majority – despite their democratic legitimacy – should be subject to the fundamental rules enshrined in the Constitution is convincing, its weakness lies in its institutional dimension: effective control over legislative acts can only be exercised by the judiciary, i.e. the government , which lacks direct democratic legitimacy. Constitutional law is in constant development: the number of countries that have agreed to introduce one or another form of constitutional control grows from decade to decade. It is also clear that the exercise of constitutional control very rarely leads to conflicts that can destroy the democratic nature of the state. The legitimacy of constitutional control is confirmed by the actions of both the courts and the parliament. The experience of various Central and Eastern European countries shows that in various cases the parliamentary majority tried to introduce measures that were not compatible with European human rights standards or political decency.