The Constitutional Preamble and its Effects on Croatian and Comparative Constitutional Law

Abstract

Although nearly all contemporary constitutions around the globe contain preambles, they continue to be persistently disregarded in both practice and the discipline of constitutional law. This paper aims to prove that preambles are not trivial political proclamations without any legal implications and that the substantial reasons for their application indeed exist. Initially, the paper addresses general theory of constitutional preambles. In that respect, it first presents the concept of the preamble and its common elements, and discusses the functions it can perform within the broader constitutional order. After that, it raises the most significant issue – the question of the legal effects of constitutional preambles. The question is approached first from a theoretical aspect, providing a brief overview of contemporary constitutional theories on the legal value of preambles, and then from a practical viewpoint, analysing preambles from a comparative perspective. Accordingly, a concise summary is given of the preambles of the United States of America, France, Serbia and Germany, primarily due to their substantially different treatment in constitutional practice. Finally, the paper provides a detailed analysis of the preamble of the Constitution of the Republic of Croatia (the so-called “Historical Foundations“). In the beginning, the paper outlines its origin and development over time and then examines each of its paragraphs individually, highlighting its structural components and functions. The final part examines the frequency and manner of the preamble’s application in the practice of the Constitutional Court of the Republic of Croatia.