Immutable Values – Durability of the Constitution from a Historical Perspective and Contemporary

LAW AND ADMINISTRATION IN POST–SOVIET EUROPE

Vol. I(VI)/2019: 37–45

DOI: 10.2478/lape-2019-0004

Łukasz Szymański Europejska Wyższa Szkoła Prawa i Administracji, Warszawa

IMMUTABLE VALUES – DURABILITY OF THE CONSTITUTION FROM A HISTORICAL PERSPECTIVE AND CONTEMPORARY

Key words: constitution, change, amendment, durability, law

Abstract

On the dogmatic basis, many constitutional classifications stand out, some of them have been functioning for hundreds of years based on a few basic statements, others update in different intervals temporal internal political forces of individual states. Factors influencing the durability of basic legal acts are numerous and diverse. The assumption of the construction of constitutional acts is their durability and rigidity of the rules they regulate. The features of constitutional laws are the invariability of provisions, the scope and detail of regulations, the degree of public involvement in the process of making them, and superiority in relation to other legal acts established by state authorities. It seems impossible to indicate the factors implying the necessity to make changes in the basic acts. However, one may wonder how much influence on their functioning exerts, for example, changes in the system of international forces and international law, ongoing armed conflicts or international integration pro- cesses. The aim of the article is to indicate the catalog of factors determining the constitution’s durability as a fundamental legal act in the state. The author would like to answer the question whether it is possible in the rapidly changing modern world to maintain the basic principles from a few or several decades ago. The comparative analysis will be based on the indicated objective of the basic laws of selected countries.

Introduction been expanded1. Nowadays, the term constitution is defined as an important legal act that has political sig- The word constitution is not a new concept. It comes nificance. It defines the principles of organization and from the Latin language of the verb constituere, which functioning of a given country. The constitution has means to establish, arrange. Today’s meaning of this three fundamental attributes. First of all, the relevant word does not deviate far from the original translation. legal act contains a specific content. Second, in the sys- In general terms, the constitution means arranging the state. However, nowadays the scope of the word has 1 M. Bartoszewicz, M. Haczkowska, op. cit., p. 9. 38 Law and Administration in Post-Soviet Europe tem of sources of law is the most important act of law. The third basic law in the world was the Polish Con- And thirdly, the constitution is characterized by dura- stitution of May 3, whose main goal was to reform the bility, and therefore it is difficult to make changes2. As system of exercising power in Poland considered to be the act of the highest legal force its resolution and pos- inefficient and harmful. The legal act with the highest sible change is subject to a special procedure, different legal force was to ensure and confirm the inalienable from ordinary laws.3Constitution is therefore the most rights of the citizen, as well as protect him against ex- important law act of each state4. Its superior power is cessive interference of the state in the sphere of private the starting point for the entire legal system of a given life8. The original name of the first Polish constitution state. This means that other normative acts and the legal is Government Act9. The Great Seym, also called the norms they contain must comply with the Basic Law. Four-Year-Old in 1791, passed the first Polish Basic The Constitution is of a general nature. Its development Law. It was the first such act in Europe, according to and concretization are precisely normative acts5. many authors, the third, after Corsican and American The first constitutions in the modern sense of the in the world. Officially, the document was registered on word arose in the eighteenth century6. In the literature May 5, however, due to the fact that Polish society its on the subject, the first Constitution is often considered solemn manifestation of striving for Poland to become the first Constitution of Corsica, adopted in 1755, by modern, as for those years the state adopted two days Pasquale Paoli. The legal act contained a declaration of earlier is called the Constitution of May 3. It is empha- the liberation of the island in the Mediterranean from sized that the Polish Basic Law was a well-thought-out the rule of Genoa, independence and the creation of document, although its adoption was accompanied by a new state. It was modeled on the work of Jan Jakub haste10. Rousseau. The Constitution of the Corsican Republic By many historians, it is called a plot and even was in force only until 1769, when the French con- a coup d’état. Others call the adoption of Constitution quered the island. The fourteen-year period of validity 3 May a normal parliamentary procedure of gaining of the Basic Law in Corsica is considered by many to be supporters by playing on emotions and dramatically an insignificant attempt to constitutionalize state law. portraying the position of the state. Yes, the first basic The Constitution of the United States adopted in 1787 law in Poland was passed in violation of the regulations in Philadelphia is considered a more significant legal of the meeting’s rules, but for a harmonious parliamen- act. Together with the general Declaration of Indepen- tary majority11. dence, the United States established a new republican It is also worth mentioning the first constitution of civil state made up of thirteen American colonies. The France. Its creation is connected with the French Revo- Constitution of the United States is considered a mod- lution. This is a period of deep socio-political changes. ern legal act deliberately formulated by intellectuals. Its The main slogan of those years is freedom, democracy adoption was a breakthrough for two reasons. First of or secularism of the state, which are the fundamental all, under it was created an anti-feudal economic, so- components of French statehood12. As a result of the cial and political system, which constituted the legal Great Revolution, on September 3, 1791, the first con- foundation of a new revolutionary form of statehood stitution of France was passed. The Constituent As- for those times. And secondly, the US Constitution was sembly, that is, the National Assembly, worked on the proof that it is possible to create a new form of govern- ment7. 8 M. Zieliński, Obowiązki konstytucyjne a ustrój państwa, (in) Aktualne wyzwania ochrony wolności i praw jednostki, Wro- 2 Leksykon Politologii, A. Antoszewski, R. Herbut (eds.), cław 2014, M. Jabłoński, S. Jarosz-Żukowska (eds.), p. 401. Wrocław 1998, p. 183. 9 M. Bartoszewicz, M. Haczkowska, op. cit., p. 9. 3 L. Garlicki, Polskie prawo konstytucyjne. Zarys wykładu, 10 T. Pawluk, Sprawy wyznaniowe w Konstytucji 3 Maja, Warszawa 2009, p. 34. „Prawo Kanoniczne: kwartalnik prawno-historyczny”, No. 4 P. Okarmus, Czynniki wpływające na trwałość konstytucji, 35/1–2, 1992, p. 4. „Administracja: teoria, dydaktyka, praktyka”, 2013, No. 4(33), 11 W. Uruszczak, Konstytucja 3 maja 1791 r. Testament po- p. 129. lityczny I Rzeczypospolitej, „Przegląd Sejmowy”, P. Tuleja (eds.), 5 M. Bartoszewicz, M. Haczkowska, op. cit., p. 10. Year XIX, No, 2(103)/2011. 6 Ibidem, p. 9. 12 A. Łysiak-Łątkowska, O rewolucji francuskiej w niektó- 7 A. Ławniczak, Geneza Konstytucji, Wrocław 2015, p. 315– rych polskich zasobach bibliotecznych. Przyczynek do problematy- –316, 334. ki, „Słupskie Studia Historyczne”, No. 18, 2012, p. 101. Łukasz Szymański: Immutable Values – Durability of the Constitution... 39

Constitution. The first French constitution changed the its 230-year history of functioning, only 27 Novels were system to a limited constitutional monarchy based on introduced to it. Of course, legislators recognize the the division of power and supremacy of the nation13. need to introduce changes to the Basic Law. However, The process of establishing the basic act is influenced the process of introducing them is long and complicat- by a number of political, legal, social, cultural or eco- ed. During the 112 term of office of the United States nomic factors that take place in a given country14. In the House of Representatives altogether more than 10,000 case of the United States of America, France and Poland, proposals for amendments were submitted. The num- it is worth noting that the adoption of the first constitu- ber of amendments introduced so far since the adoption tion was a break with the old order as a result of a revo- of the US Constitution indicates that only a fraction of lutionary breakthrough which was the will of the nation. a percent of the proposal passed through the legislative All three above-mentioned legal acts of superior power process17. introduced the Montesquieu division of power, the prin- The manner of changing the US Basic Law is de- ciple of state sovereignty, and religious tolerance15. termined by the content of articles V of that legal act. It should be emphasized that the analysis of the con- There are two procedures for amending the United tent of the thematic constitution of different countries States Constitution. The initiator of the changes in the allows us to indicate that there is a catalog of objects constitution may be the Congress or at the request of that must be included in the legal act in order to be individual states. In the first case, the amendment must called the basic law. The basic issues include, among be proposed by two-thirds of the votes of the bicam- others, defining the subject of power, that is, indicating eral US parliament. In the second case, the changes are how the sovereign exercises power, as well as the system requested by two thirds of the states during the nation- of government, including the powers of state bodies. In wide assembly convened by Congress. The amendment, addition, the legal status of citizens, as well as what is in order to enter into force, must be approved by legis- important in the case of the above considerations is how lative bodies or state assemblies in three-quarters of the to change the constitution16. US states. It is indicated that so-called The Founders’ fa- thers deliberately complicated the process of introducing changes to the Constitution. Of the twenty-seven Ways of changing the constitution ratified amendments, only one was approved by the in selected countries state assembly. The United States Constitution does not indicate a specific time during which states are obliged An analysis of the ways of introducing changes to the to ratify the proposed amendment. However, the US constitutions of selected countries is worth starting with judicial system has clearly indicated in its jurisprudence the constitution, which is considered by many histori- that it should be approved within a reasonable period, ans to be the oldest. In this text, she was designated as the length of which is determined by Congress. It is the second fundamental act in the world. The Constitu- worth noting that the twenty-seventh amendment to tion of the United States is one of the shortest docu- the US Constitution, proposed on September 25, 1789, ments of this type in the world. The US Basic Law only concerning the remuneration of members of the US bi- has 7 articles, the total content of which is over 20,000. cameral parliament was passed with the consent of the words. The United States Constitution is still the most Congress only on May 7, 1992, ie after 202 years. It effective legal act in force. It is worth noting that despite should be added at the same time that from the 20th century, a requirement to ratify changes within seven 13 K. Trzciński, Początki nowożytnego obywatelstwa w Eu- years from the proposal was introduced18. ropie – obywatel państwa i katalog jego praw w dokumentach Rewolucji Francuskiej, „Studia Europejskie”, 2/2005, p. 69–70, 79–80. 17 Z. Lewicki, Od demokracji przedstawicielskiej do demo- 14 J. Zaleśny, Tworzenie konstytucji z 1997 roku. Przejaw kracji prawniczej: Konstytucja Stanów Zjednoczonych a ewolu- kooperacji czy rywalizacji elit politycznych, „Przegląd Sejmowy”, cja ustrojowa państwa, „Zeszyty Prawnicze UKSW”, No. 11.3, No. 6(143)/2017, p. 177. 2011, p. 13–14. 15 Z. Libiszowska, Wartości uniwersalne i narodowe w kon- 18 O Ameryce: Konstytucja Stanów Zjednoczonych Ameryki stytucjach schyłku XVIII, „Acta UniversitatisLodziensis, Folia z objaśnieniami według The World Book Encyklopedia, 2004, do- Historica, No. 53, 1995, p. 55–57. kument online: https://photos.state.gov/libraries/adana/30145/ 16 M. Bartoszewicz, M. Haczkowska, op. cit., p. 11–12. /publications-other-lang/The_US_Constitution_Polish.pdf, 40 Law and Administration in Post-Soviet Europe

The Constitution of the French Republic in its con- parliament. It does not matter who is considering the tent does not have a clearly defined way of amending change project first. In connection with the equaliza- the Constitution. This issue is also not specified in the tion of powers of both chambers, the French Senate has regulations of the two chambers of parliament. Only a constitutional veto. That is why the navette procedure the content of art. 89 of the Constitution of France was introduced as well as a joint arbitration commit- indicates a different procedure than in the case of acts tee22. Mediation between the chambers, sometimes re- that allows for an effective amendment of the Basic Law. ferred to as the shuttle method, consists in transmitting Different in the mode are numerous. First of all, the the bill from the National Assembly to the Senate and regulation indicates entities that may initiate amend- vice versa. The navette procedure lasts until both cham- ments to the Basic Law. It is worth adding that art. 89 of bers agree to the same wording of the amendment23. the French Constitution forces the executive authorities Due to the fact that the basic law does not specify spe- to cooperate in this respect. In addition, the provision cific quantitative requirements, it is indicated that it is in question requires that Article 42 par. 3 of the Con- necessary to establish a quorum, i.e. a minimum num- stitution, which blocks the possibility of introducing ber of members of the basic body of the legislative au- a short story. The amendment to the French Consti- thority. The quorum was set by the National Assembly tution must comply with the time limits used in the Regulations and constitutes an absolute majority, which ordinary legislative procedure. Pursuant to art. 89 of is counted from the number of filled seats24. the Constitution, the temporal and material limits of The current constitution in Poland was adopted on the amendment were introduced. The law amending April 2, 1997. It is worth noting that it was adopted the French constitution must be adopted in the same on the basis of the Basic Law of April 23, 1992, in ac- way in front of both chambers of parliament. In other cordance with the rules laid down in it. For the pur- words, the procedure of amending a legal act of superior poses of the above analysis, the current constitution of nature brings the French legislative authority, that is, the the Republic of Poland will be discussed. The literature upper and lower chambers to equivalent entities affect- on the subject indicates that it is relatively extensive for ing the amendment of the constitution. In addition, the this type of legal act. The content of the Polish Basic provision of art. 89 clearly states that the amendment Law consists of 243 articles. In terms of subject matter, to the Constitution must be approved by referendum it is considered standard but extended to include issues or by the Congress of the French Republic19. The for- not appearing in previous constitutions. It belongs to mal requirements for a draft amendment to the French rigid basic laws. In other words, the procedure for its constitution are the same as in the case of ordinary amendment is clearly specified. The issue of changes acts20. The initiative can be submitted by parliamentar- is regulated by the provision of art. 235 of the Polish ians, both individually and in groups. However, in the Constitution, which is the whole chapter of this docu- subject literature it is emphasized that all the changes ment. In contrast to the ordinary procedure of adopt- of the French constitution of 1958, which is still valid ing the Act, the amendment to the Act is justified by today, were the initiative of the executive. And all the a special procedure consisting of four differences. First procedures for amending the Basic Law at the request of of all, only three entities can initiate a change of the the parliament have never been completed21. It is worth constitution. The President of the Republic of Poland, adding that the amendment to the French constitution deputies in 1/5 of the statutory number of deputies and must be passed by a simple majority in both houses of the Senate have the right to submit a bill amending the Constitution25. Secondly, the amendment must sup- 19 R. Grabowski, Zasady zmiany Konstytucji V Republiki port the Seym by a qualified majority of 2/3 of votes Francuskiej, „Przegląd Prawa Konstytucyjnego”, No 2 (18)/2014, in the presence of at least half of the statutory number p. 132–133. of deputies10 and absolute the majority of senators in 20 E. Gdulewicz, Zasady zmiany konstytucji Republiki Francuskiej, (in) Zasady zmiany konstytucji w państwach europejskich, R. Grabowski, S. Grabowska (eds.), Warszawa 2008, 22 R. Grabowski, op. cit., p. 136–137. p. 132. 23 Z. Machelski, Modele parlamentów dwuizbowych. Uję- 21 K. Kubuj, Tryb zmiany Konstytucji V Republiki Francu- cie porównawcze, „Wrocławskie Studia Politologiczne”, No 13, skiej (zagadnienia proceduralne), (in)Tryb zmiany konstytucji 2012, p. 160. w wybranych państwach członkowskich Unii Europejskiej, K. Ku- 24 R. Grabowski, op. cit., p. 136–137. buj, J. Wawrzyniak (eds.), Warszawa 2010, p. 60. 25 M. Bartoszewicz, M. Haczkowska, op. cit., p. 17–18. Łukasz Szymański: Immutable Values – Durability of the Constitution... 41 the presence of at least half of the senators, the text ad- The first Polish Basic Law assumed that it was possible opted by the Seym and then by the Senate must have to amend its provisions with a simple majority of votes the same word”26.The Polish Chamber of Higher Edu- every 25 years. In turn, the constitution of Ireland ad- cation can not change the text of the act of changing the opted in 1922 indicated the possibility of introducing constitution, which was passed by the Seym. The Senate changes to the ordinary legislative procedure during the can only accept or reject it. Thus, the Polish Chamber first five years of its adoption. However, the legislators, of Higher Education has lower powers than the lower realizing the threats that may result from too frequent house in the mode of constitutional changes, unlike in and thorough changes to the Constitution aiming to the case of France. The 1997 Basic Law introduced ad- ensure the durability of its provisions introduced a spe- ditional formal requirements for the initiative to change cial mode of its amendment. This procedure is found chapters I, II and XII. The Seym can not pass an Act in almost all modern constitutions, some of them have amending the provisions contained in these parts of the been described above. A special28way of introducing Constitution earlier than the sixtieth day after the first changes to the constitution is a characteristic feature of reading of the draft of this legal act. Additionally, in this legal act with the highest legal force. The procedural the case of proposals for changes concerning these chap- difference is to distinguish the constitution from ordi- ters at the request of the initiators of the amendment, nary acts. The Basic Law is a special legal act because of which was submitted 45 days after the Senate passed its content, legal force and form with the procedure of the law, there is a possibility of holding a nationwide reviewing its provisions. Its change is always a unique approval referendum. People’s voting is ordered by the legal, socio-political situation and is the result of an Marshal of the Seym in an immediate manner. He has agreement on the need for amendment29. 60 days from the date of submitting the application. The second option to ensure the constitution’s du- An extremely important requirement is the necessity of rability is to introduce provisions of the Constitution signing by the President of the Republic of Poland the that are not subject to change. This solution was first act on the change of the constitution. It can not, as in used in 19th century France. In modern constitutions the case of ordinary acts, refuse to submit its signature such a provision can be found, inter alia, in the French on this legal act. The President of the Republic of Po- constitution of 1958 or the German Basic Law of 1949. land has 21 days to sign the amendment. Then the short The catalog of regulations that are not subject to change story is announced in the Journal of Laws27. is diverse in different countries. For example, the constitution of France indicates one such record, and the basic law of Portugal has a comprehensive catalog. Ar- Factors affecting durability and change ticles and unchanged rules are introduced by direct ex- of the constitution change of existing provisions. Another option is to indicate in what direction and scope the constitution can Considerations on the duration of the Constitution be changed. An example is the Norwegian Basic Law have already begun in the process of drawing up the first of 1814, which allows only such an amendment of the US constitution. Thomas Jefferson was critical of the provisions, which does not violate the main principles stiffness of this legal act. One of the authors of the Unit- contained in it. On the other hand, the French II, IV ed States Declaration of Independence believed that and V French Constitution protects the republic from the change should take place every 19 years. Thanks to change to a different political system. In the literature this, each generation will be able to constitute the fun- of the subject, it is pointed out that in some countries damental rights to which its generation applies. Many the durability of the constitution is ensured by prohib- of the basic acts in their content somewhat agree with iting the introduction of changes to the overall funda- the view of Thomas Jefferson, because their provisions mental act. Such restriction is defined, inter alia, by provide for periodic possibility of introducing changes the provisions of the Mexican constitution of 1917. It by means of a special, simplified procedure. An example should be added that although this solution prohibits is the May 3 Constitution adopted in 1791 in Poland.

28 P. Okarmus, op. cit., p. 129–130. 26 Ibidem, p. 18. 29 J. Szymanek, Zabezpieczenia konstytucji przed zmianą 27 Ibidem, p. 18–19. konstytucji, „Prawo i Polityka” Tom 6/2015, p. 7–8. 42 Law and Administration in Post-Soviet Europe the amendment of the Constitution in its entirety, it al- same time, defining the possibility of making a short lows for the amendment of individual parts of the con- story when the need arises31. tent. Constitutional judiciary is another element that The introduction of changes in the constitution of ensures the Constitution’s durability. As the guardian of a given country is an exceptional event, which is why the content of the constitution, she protects her against the review of the Constitution should be carried out amendments that would distort her fundamental ideas with extreme caution. Ensuring the durability of this on the basis of which she was created. An example of act of law with the highest legal force is a systemic value. the body responsible for this type of protection is the The more so that amendments to the constitution are Constitutional Tribunal in Poland or the German Fed- introduced in justified situations. The amendment to eral Constitutional Court. It is worth noting that the the Constitution should be a consequence of the inabil- above solutions have one significant weakness. They do ity to make these changes in a different way, such as by not have absolute protection of the clause itself, which means of ordinary legislation32. prohibits changes to the regulations and principles of The possibility of introducing changes to the con- the Constitution. Therefore, such provisions have only stitution does not necessarily mean that the legislator relative unchangeability. Their change can be made in violates its durability. Due to the fact that the basic law the form of an exchange of rules and interference in is an act passed at a given time, but binding at the turn their content, as well as through the adoption of a new of the years, it must be up-to-date with the reality in constitution30. which the state functions. The content of the Constitu- The literature of the subject emphasizes that in con- tion should reflect the realities and changes that have stitutional law it must be possible to amend the basic occurred in relation to their change. However, the con- law as well as amend its content. The rigidity of the stitution should not be a document recording these constitution in the discussed area is a mistake. There transformations, because it would lose its fundamental must be some available scope of changes. As a result, character of supremacy. The primary law is to set the di- the basic law will fully respond to the socio-political rection and boundaries of transformations related to the and legal situation of a given country, and will also ful- functioning of the state. The text of the constitutions fill the functions entrusted to it. The reason most of of democratic countries should be subject to a process the amendments are primarily objective factors. An ex- of continuous evolution33. The procedure for making ample of this type of determinants at the level of law changes to the Basic Law should be resistant on the one is membership in the European Union and the need hand to the transformation of its provisions, which are to adapt the standards of the community to national the result of the interests of the ruling group, on the legislation. On the other hand, objective non-legal fac- other hand flexible enough to allow the amendment tors result primarily from the development of the state, to be a response to the changing reality and the grow- which forces the legislators to adapt the existing regula- ing needs of the state and the nation. The dynamism tions to the problems of reality. Therefore, it is indi- of constitutional changes should be a prerequisite for cated that it is simply impossible to completely exclude ensuring its durability34. changes to the basic law. The constitution of Greece Another factor that affects the durability and imple- adopted in the mid-19th century is an example of the mentation of changes in the Basic Law is its content. highest-level law act that contains provisions that make It is emphasized that constitutions that have a limited it unchanged. The literature on the subject emphasizes scope of regulation based on general wording are less that the Greek legislator is very careless because the ba- frequently changed. Thanks to the generality of the con- sic law is not a perfect law act, which will be able to tent of the provisions, the basic law can be adapted to fully fulfill its functions without introducing changes to it. In the end, the world is constantly evolving. The 31 J. Szymanek, op. cit., p. 10–11 main problem of ensuring the constitution’s durability 32 W. Skrzydło, Zmiana konstytucji czy zmiany w konstytu- is therefore the provision of a complicated procedure cji Rzeczypospolitej Polskiej z 1997 roku?, „Teka Kom. Praw. – for introducing changes to the constitution and, at the OL PAN”, 2008, p. 176. 33 L. Garlicki, Aksjologiczne podstawy reinterpretacji konstytucji, (in)20 lat transformacji ustrojowej w Polsce, Warszawa 2009, p. 42. 30 P. Okarmus, op. cit., p. 131–132. 34 P. Okarmus, op. cit., p. 133–134. Łukasz Szymański: Immutable Values – Durability of the Constitution... 43 the changing reality in which the given state functions. introducing changes that are an expression of the inter- The adaptive tool is its interpretation, which is the con- ests of a given political option each time such a group cretisation and development of the provisions contained has a constitutional majority. The37stable political situ- therein. The basic acts, the content of which refers to the ation of a given state is conducive to ensuring the dura- current events at the time of its adoption, are more often bility of the basic act38. changed. However, the constitutions, whose wide scope As it was already mentioned above, the stressed of provisions are detailed, have greater durability of their change in the constitution may be the result of amend- provisions. However, such basic laws require the intro- ments implemented in other countries. It is emphasized duction of numerous novels, which is why they should that a given country is more willing to introduce novels be characterized by flexibility. It is pointed out that con- in the Basic Law on the basis of good practices of its stitutions containing specific provisions take into ac- neighbors. The diffusion of changes is connected with count the interests of a larger group of citizens, which other determinants affecting the constitution’s durabil- allows the public to better understand its provisions. The ity. An example of this type of action was the boom of detail reduces the interest in the possibility of making amendment of the basic laws after the end of World changes to the constitution or adopting a new act of law War II or after the collapse of the Union of Soviet with the highest legal value. The Republic of Poland has Socialist Republics. The amendments to the constitu- a detailed and extensive constitution of 199735. tion were the result of the influence of countries aim- The level of citizens’ involvement in the process of ing at European integration in the community, which enacting and implementing the provisions of the Ba- has now adopted the shape of the European Union. sic Law is another factor affecting the durability of this A glaring example of such a process was the changes act. Inclusion of society in both work on the content of in the constitutions of the Member States as a result of the constitution, as well as information on the course the ratification of the Maastricht Treaty. On the Pol- of activities aimed at its establishment positively affects ish ground, the phenomenon called euronovelization its stability. It is important, however, that the basic act of the Constitution is a conviction that in connection protects the interests of various social groups and is with the adoption of novels by the majority of countries a response to their expectations. Otherwise, citizens making up the EU, such changes should also be made concentrated between others in political parties will be in Poland. Diffusion is an external factor affecting the big to amend its content or introduce a new constitu- constitution’s durability39. tion36. Therefore, it is important to maintain a high lev- The above-mentioned determinants are not all that el of democratic and transparent procedures associated have an impact on making changes to the content of with this in the process of enacting the constitution. the basic acts. It should be added that their number is The path to establishing a fundamental act should be huge, but among the important conditions should also characterized by a genuine sense of public participation include the form of government, the level of constitu- in the constitutional process. Participation in the con- tional culture of a given country or war. Of course, the stitution should take place on two levels. First of all, it level of influence of particular factors affecting the con- should be a broadly understood social inclusion with stitution’s durability is conditioned by the geopolitical democratic procedural forms, and secondly, the mode situation, transnational and international law, the con- of introducing changes to the basic law should be a gen- stitutional and electoral system or the legal culture of eral consensus. An example of consent is the conclusion a given state. Therefore, it is shaped differently in differ- of a political coalition that approves the introduction ent countries. The literature on the subject emphasizes of novels into the constitution. The amendment of the that the most important determinants are those that Basic Law should not be carried out only by one socio- exert the greatest influence on the mode of changing political group, even if it has a constitutional majority. the constitution as well as the scope and detail of its Thanks to this, the importance of this legal act with the provisions40. highest legal force is preserved. It also allows to avoid

37 J. Szymanek, op. cit., p. 11–12. 35 B. Banaszak, Porównawcze prawo konstytucyjne współcze- 38 P. Okarmus, op. cit., p. 137. snych państw demokratycznych, Warszawa 2007, p. 88–89. 39 Ibidem, p. 138–139. 36 P. Okarmus, op. cit., p. 136–137. 40 Ibidem, p. 142–143. 44 Law and Administration in Post-Soviet Europe

The constitution is a social contract that constitutes Gdulewicz E., Zasady zmiany konstytucji Republiki Francuskiej [The not only the government, but also the nation. Consen- rules for amending the Constitution of the French Republic], (in) Zasady zmiany konstytucji w państwach europejskich [The rules of sus is binding and constitutes the foundation of the leg- amending the constitution in Europeancountries], R. Grabowski, islation of a given country. It is not an expression of the S. Grabowska (eds.), Warszawa 2008. power of the ruling class, which is why the basic act has Grabowski R., Zasady zmiany Konstytucji V Republiki Francuskiej [The rules for amending the Constitution of the Fifth Republic of the unique status of a legal act that was created in a spe- France], „Przegląd Prawa Konstytucyjnego”, [Review of Constitu- cial mode of constitutional consensus. 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