Introduction

One of the main objections concerning the legal value of unamendable provisions within constitutions is that parliaments which represent the will of the nation should not be bound by certain rules adopted by preceding powers.

Additionally, according to this view, constitutional amendments cannot be annulled because, even if it is considered as derived, the parliament is a pouvoir constituant and thus there is no hierarchical difference between it and the original pouvoir constituant who drafts and approves the constitution for first time.

S. Koyba^i (&)

Law Faculty, Bah?e§ehir University, Istanbul, Turkey

e-mail: serkan.koybasi@law.bau.edu.tr

© Springer International Publishing AG, part of Springer Nature 2018 R. Albert and B. E. Oder (eds.), An Unamendable Constitution?

Ius Gentium: Comparative Perspectives on Law and Justice 68, https://doi.org/10.1007/978-3-319-95141-6_10

Therefore, a hierarchically equal pouvoir constituant should not have the right to bind its successor and even if there are some binding rules in the constitution approved by the original pouvoir constituant, the successor has the right to repeal them.

Of course, the fact that undemocratic limitations on elected representatives put in place via unamendable provisions adopted by undemocratic original pouvoir con- stituants is a specific problem that needs to be addressed.^[1031] Therefore, those who defend the aforementioned ideas^[1032] does not lack some justification. However, such suggestions stem from an archaic and majoritarian reading of democracy. Modern democracy has surmounted the majoritarian democracy of Jean-Jacques Rousseau. Specifically, after having experienced numerous emergencies, especially after the World War II, modern democracy accepts that one of its core pillars is limitation of governments by the adoption of checks and balances systems.

2