Debates over the Relationship between Fundamental Rights and State Power Regulations in the Weimar Constitution (2017.12)
2017.12.01
- Author : Hyang Mi Oh
- Journal : Journal of Parliamentary Research
- Publisher : Korea Parliamentary Research Institute
- Volume : 12(2)
- Publication Date : December, 2017
- Abstract : This article reviews debates over the internal coherence of constitutional law that accepts fundamental rights alongside the regulation of a political power system. Its object is a modern written constitution, the German Weimar Constitution, which encompasses comprehensive fundamental rights, including active rights with moral and philosophical contents, as well as traditional passive rights. The modern written constitution regulates abstract and philosophical human rights along with political power, which cannot be wholly ruled. As a result, constitutional theoretical problems appear, namely problems of infringement or limitation of fundamental rights through legislation, constitutional amendments, and emergency powers. The collision between the regulation of powers and fundamental rights in the development of modern written constitutions is manifested in different way in the modern state, but the debates over the collision in the Weimar Republic remind us that the extension of fundamental rights is inalienable from the alteration of a power system, an issue which is key to constitutional amendments in Korea today. The regulation of political rights influences power formation, and the extension of active rights allows a state to intervene widely in individual life, possibly bringing about an expansion of judicial power not authorized under political rights.