ОД ЦЕНТРАЛНОГ МЕСТА ЗАКОНА ДО СУПЕРИОРНОСТИ УСТАВА
FROM THE CENTRAL POINT OF LEGISLATION TOWARDS THE SUPERIORITY OF THE CONSTITUTION

Summary/Abstract: If one takes the French Revolution as the point of departure for the modern idea of the state, one will remark that the fundamental principle is the separation of powers into legislative, executive and judiciary, in which legislative power enjoys primacy. Therefore, in accordance with the understanding of representative democracy, it alone expresses the sovereignty of the people (while the other two, and this includes the judiciary, do not have such legitimacy). That is why the laws, as the product of the institutions, which are solely endowed with democratic legitimacy, are unquestionable as legal acts and cannot be subject to judicial control because the courts do not have democratic legitimacy. It was unimaginable, in such a system, that the judiciary could supervise what was even indirectly the supreme expression of the will of the people. Among other things, this was partly due to the fact that the members of the legislative assembly and the constitutional assembly were, in most cases, the same people. In the beginning, this stance was out of the question even when control consisted merely of examining whether a law was in accordance with the Constitution.

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