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 consti- tutional 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 objec- tive 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.