On the legitimacy of the Constitutional Courts and institutionalization of the right to resistance, with reference to the legitimacy of church authorities

Abstract

The concept of legitimacy has a dual meaning: it is both the form of supreme power of the state and the justification of that power. Max Weber distinguishes three types of legitimate authority: traditional authority, charismatic authority, and the rational-legal authority. The prevailing form of power in the modern world is the third type of legitimate authority, which is reflected in the concept of 'the legal state' or 'the rule of law rather than the rule of people'. In that regard, the rational-legal authority is based on Jean-Jacques Rousseau's idea on law as the expression of the 'general will'. This idea was introduced into the French Declaration of the Rights of Man and the Citizen (1789): 'Law is the expression of the general will. Every citizen has a right to participate, personally or through his representatives, in its foundation. It must be the same for all, whether it protects or punishes...' Consequently, except for the entire body of citizens (referendum legislation) and their representatives (parliamentary legislation), all other state authorities emerge as the holders of the particular will. In this original article, the author lays down the theoretical standpoint that 'the general will' is in fact a totality of (normative) legal principles. Today, the institution of a constitutional court (or some other equivalent institution) is recognized in almost all legislations of the European-Continental legal tradition falling into the Roman-Germanic-Slavic legal family. There is no dispute on whether such an institution may examine the compliance of by-laws with the Constitution and the applicable law because, in that case, the holder of one particular will controls the holder of another particular will. However, it is disputable whether the constitutional court, as the holder of particular will (and the only administrative authority whose members are selected by the legislature), may invalidate the laws which it considers to be unconstitutional because, in that case, one particular will rises above the general will. According to Rousseau, this is despotism, which is indisputably a form of illegitimate power. Yet, law need not necessarily be the expression of the general will. Rousseau clearly distinguishes between man as an individual (who is a holder of the particular will and the citizen (who is a holder of the general will). Thus, we cannot rule out the possibility that these particular wills may exercise different forms of oppression over the general will, under the shroud of law. Rousseau does not explicitly propose the solution for such a state of affairs but merely points out that the holders of the particular will 'shall be forced to be free'. This raises the question of the right to resist oppression. This right was a much debated issue at the turn of the Middle Ages and the New Age. The leading proponents of political philosophy, Monarchomachs and John Locke consider that this right does not belong either to an individual or to the masses of common people but to the nations organized in corporations. The ultimate message in this paper is the need for the revival of corporations as the holders of the right to resist oppression, in the best tradition of Roman tribunes and Spartan ephors. The addendum deals with the 'external legitimacy' of church authorities which entails their recognition by the state as an essential presumption for the existence of Church Law; in that context, the author elaborates on different types of relations between the state and the Church.