The role of public participation and legal certainty in lawmaking in a special legal order – with particular reference to Central European practice

Abstract

This study deals with the issue of public participation and legal certainty in the context of legislation in special legal order. The hypothesis of the research is that in times of crises, we cannot fully disengage from the rule of law, as the special legal order does not result in a situation of extra-legalism, as its purpose is to restore normality. The aim of this thesis is to examine how the principles of quality legislation (e.g., the right to be consulted by society, the prior assessment of the impact of legislation, or the requirement for preparation time before the legislation is put into force) that can be defined in the normal legal order apply in special legal order situations. In examining this question, the study draws on literature and case law. After clarifying the basic doctrinal concepts, the study examines the qualitative legislative requirements in the normal legal system, and then takes these as a starting point to examine the differences in special legal order. The conclusion of the study is that public participation in legislation can be restricted in special legal situations (e.g., the right to consult on legislation or the right of assembly for the collective expression of opinions), while legal security requirements such as the requirement for the adequate preparation time or the linking of special legal norms to empowerment cannot be ignored. With regard to the latter, it is particularly important that the legislator does not deviate from the purpose justifying the introduction of the special legal order, as failure to do so will cause legitimacy problems both with regard to the legislation issued and the sustainability and social support for the special legal order introduced. Only by adhering to these principles can special legal order legislation remain a process within the constitutional legal order and not outside it, and only in this way can it effectively serve the quick and efficient return to normal legal order.