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Journal articles on the topic 'Constitutional references'
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1
Traser, Julianna Sára, Nóra Béres, György Marinkás, and Erzsébet Pék. "The Principle of the Primacy of EU Law in Light of the Case Law of the Constitutional Courts of Italy, Germany, France, and Austria." Central European Journal of Comparative Law 1, no. 2 (December 9, 2020): 151–75. http://dx.doi.org/10.47078/2020.2.151-175.
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This article examines the relationship among national constitutions, constitutional courts, and the primacy of Community Law in connection with four Member States (Germany, France, Italy, and Austria). It starts with the question of whether national constitutions contain a European Union (EU) clause and explicitly provide for the primacy of Community Law. It examines whether any constitutional restriction or reservation has been elaborated in the case law of constitutional courts, and the extent to which the constitutional courts examined can exercise control indirectly over cases of conformity of EU legislative acts with constitutions or cases of misuse of powers (ultra vires acts). The constitutions examined can be considered uniform in that they contain references to the individual Member States’ relationships with the EU and create the possibility of restricting their competence or sovereignty. However, they do not declare the principle of the primacy of Community Law. As a consequence, the constitutional courts of Member States play a key role in the interpretation of the principle of the primacy of Community Law, including the formulation of constitutional requirements and counterbalances in connection with the enforcement of the principle. A reference to constitutional identity appears in the case law of recent decades, the elements of which are elaborated on and filled with more or less specific content by the constitutional courts on a case-by-case basis. In the event of a possible violation of constitutional identity or principles with unconditional effectiveness, some constitutional courts exclude the possibility of Community Law being invoked against the constitution of a Member State, but at least on a case-by-case basis, they maintain the possibility of inapplicability or of creating compatibility. In the latter respect, the article also addresses the limited nature of the powers of constitutional courts to examine the compatibility of EU Treaties and their amendments with the constitution of a Member State (see ex-ante or ex-post review, procedural or substantive examination).
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Skorut, Paweł. "Odwołania do Konstytucji RP z 17 marca 1921 roku i ewolucja rozwiązań konstytucyjnych w projektach ustawy zasadniczej RP z lat 90. XX wieku. Analiza zagadnienia na wybranych przykładach." Studia Środkowoeuropejskie i Bałkanistyczne 30 (2021): 121–42. http://dx.doi.org/10.4467/2543733xssb.21.010.13803.
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References to the Polish Constitution of March 17, 1921 and the Evolution Constitutional Solution in the draft Constitution of the Republic of Poland of the 1990s. An Analysis of Selected Examples The Polish constitutional drafts from the 1990s were one of the source texts of the 1997 Constitution of the Republic of Poland. Some of them tried very hard to refer to the solutions of the Polish Constitution of 1921. The article carried out an analysis to what extent the individual constitutional drafts referred to the solutions of the 1921 Constitution. The analysis of constitutional drafts and their similarities to the solutions of the 1921 Constitution were carried out on the basis of comparisons regarding, among others, the parliament, the president of Republic of Poland and legislative initiative.
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Komárek, Jan. "The Place of Constitutional Courts in the EU." European Constitutional Law Review 9, no. 3 (November 5, 2013): 420–50. http://dx.doi.org/10.1017/s157401961200123x.
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Going beyond ‘judicial dialogues’ and ‘conflict-and-power’ approaches to the analysis of national constitutional courts' role in the EU – The idea of European constitutional democracy – National constitutional courts constrain individual autonomy expanded by European integration – National constitutional courts defend the scope for political autonomy – Against national constitutional courts' displacement – Simmenthal II – After the ‘Rights Revolution’ in Europe – National constitutional courts' references to the ECJ – Ordinary courts challenging national constitutional courts through the preliminar y reference procedure – Parallel references – National constitutional courts enforcing EU law – National constitutional courts challenging EU law
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Roux-Kemp, Andra Le. "The Enforceability of Health Rights in Kenya: An African Constitutional Evaluation." African Journal of International and Comparative Law 27, no. 1 (February 2019): 126–49. http://dx.doi.org/10.3366/ajicl.2019.0262.
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Kenya's recently promulgated 2010 Constitution has been met with much enthusiasm and expectation after a difficult and protracted history of constitutional development and reform. This article considers and evaluates the key constitutional provisions with regard to the recognition of health rights in Kenya together with other health-related provisions, and with specific reference to the realisation and enforceability thereof. This evaluation will be conducted from a comparative perspective with references made to other African constitutions and case law. It is the objective of this article to offer a critical evaluation of the health rights included in the Kenyan Bill of Rights in relation to its African counterparts and to consider the possibilities and potential obstacles for the realisation and enforcement thereof. It is evident from this comparative evaluation that the Kenyan Bill of Rights contains pioneering provisions with regard to the right to health that can bring about meaningful changes for Kenyan citizens through effective socio-economic rights jurisprudence.
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Gárdos-Orosz, Fruzsina. "The reference to constitutional traditions in populist constitutionalism – The case of Hungary." Hungarian Journal of Legal Studies 61, no. 1 (July 5, 2021): 23–51. http://dx.doi.org/10.1556/2052.2021.00298.
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AbstractThe paper aims to highlight the nature and the relevance of the reference to constitutional traditions in the building of populist constitutionalism, with special regard to the Hungarian case. In Hungary the goals and effects of this reference – especially the references to the achievements of the historical constitution – must be discussed at the level of the constitutional text and with regard to the formation of the new constitutional jurisprudence and, furthermore, to the creation of the constitutional identity. Outstanding political theories have been built about the elements of national populism and all include a political emphasis on a nation's pride in its culture, history and traditions. This paper examines the normative legal consequences of this in a state where the populist political forces have consecutively gained a majority in the Parliament which enables them to adopt and amend a constitution and decide on the personal make up of the constitutional court. It examines the role of the reference to constitutional traditions in the transformation of the constitutional system. The illustrative case studies from Hungary show one element of the alternative to mainstream liberal constitutional democracy: a constitutional perception of the sovereign people with a strong common constitutional heritage, this latter to be respected by all state organs and by domestic, European and international law. The paper offers an understanding of this constitutional concept and assembles disclaimers and serious legal concerns that must be taken into account, at least in Hungary, but probably in many other national populist regimes as well.
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Mansur, Salim. "Constitutionalism and Ethnic Conflict." American Journal of Islam and Society 13, no. 3 (October 1, 1996): 325–52. http://dx.doi.org/10.35632/ajis.v13i3.2313.
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The role of a constitution and a constitutional order in political developmentis generally not discussed in recent literature on the comparativepolitics of developing societies. It is more or less taken for granted that, inthe division between developed and developing societies, the former areidentified with matwe institutions of legitimate order that provide politicalstability, continuity of political authority, and established rules for conflictsettlement; the latter are characterized by the weakness or absence of suchinstitutions. ‘Ibis is the analytical scheme in Huntington’s now classic study,Political Order in Changing Societies.’ In this work, there is no index entryfor “constitution,” “constitutionalism,” or “constitutional order.” The absenceof such references was not considered anomalous, for it was assumedthat constitutional practice and norms, designs and processes, were thedefining characteristics of mature developed societies. Instead of examiningthe role of constitutions in the evolution of developing societies, comparativepolitical studies like Huntington’s focused on the polity’s structuralfoundations and the functional nature of political organizations. Huntingtonclaimed that the difference between developed and developing societies wasnot in the form, but rather in the degree, of government. Constitutionalism,the study of constitutions in the workings of a mature political system, in thisview, rightly belongs to examining the various forms of political systemsavailable in the modem world. Conversely, his study implied, efficacy ordegree of government did not follow from the adoption of a constitution inthe making of political order in a developing society.Recent events in Europe, beginning with the disintegration of theSoviet Union and Yugoslavia, raise once again questions of ethnicity,nationalism, and political development. For much of the second half of thetwentieth century, these were seen as problems pertinent to the developingsocieties of Africa, Asia, and South America and only of comparative ...
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WARREN, MICHAEL. "A Case Study in Federalism - the United States and Michigan Constitutions: Not Double Vision, Double Constitutions." Michigan Academician 47, no. 2 (January 1, 2021): 202–19. http://dx.doi.org/10.7245/0026-2005-47.2.202.
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ABSTRACT Each citizen in America lives under two Constitutions - the United States, federal Constitution which applies to all citizens, and the constitution of the state in which the citizen lives. Often overlooked and basically unknown, the state constitutions play a vital role in governance and preserving our unalienable rights. Perhaps the best way to understand each constitution is to compare and contrast them. Accordingly, as a case study, this article examines the age, length, predecessors, drafting process, conventions, ratification process, and amendment procedures of the State of Michigan Constitution of 1963 and the U.S. Constitution. Furthermore, this article examines how each of these constitutions addresses the separation of powers, legislature, executive, judiciary, local government, transportation, education, finance, taxation, and the protection of unalienable rights. Armed with this understanding, we will be better informed citizens, and more ably equipped to participate in self-governance and protect the unalienable rights of the citizenry. Note: At times this article quotes constitutional text which refers to “he” or “him.” The grammatical convention at the time was to make masculine all generic gender references. That this article quotes the text does not equate to an endorsement of the convention nor did the drafters intend that only men could serve as public officials.
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Hazri, Tengku Ahmad. "Islam and Constitutions." ICR Journal 8, no. 2 (April 15, 2017): 264–67. http://dx.doi.org/10.52282/icr.v8i2.201.
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Across the Muslim world, constitutions frequently make reference to Islam. These references assume various forms. In some constitutions, Islam is declared as a state religion, official religion, or something similar, such as in Malaysia’s Federal Constitution, which proclaims Islam to be “the religion of the federation.” In others (Egypt, Tunisia, Libya), the Sharia is promulgated as a source-if not ‘the’ source-of legislation. Yet others (Iraq, Afghanistan) include ‘repugnancy clauses’, i.e. clauses declaring laws that run contrary to Sharia to be invalid, null and void. Still others require the head of state or government to be a Muslim (e.g. Syria). The various ways in which Islam is incorporated into these constitutions reveals the centrality of religion to public life in most Muslim societies. But they also point to another important aspect, namely the negotiation of Islam and modernity. This is a recurrent leitmotif that runs throughout the constitutional history of the modern Islamic world.
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Hakansson, Carlos. "Una aproximación al constitucionalismo latinoamericano, características principales y nuevas tendencias // An approach to the Latin-American constitutionalism, main characteristics, and new trends." Revista de Derecho Político 1, no. 100 (December 20, 2017): 1239. http://dx.doi.org/10.5944/rdp.100.2017.20732.
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Resumen:El presente trabajo es una primera aproximación a las diversas manifestacionesdel constitucionalismo en América Latina, a partir de algunas referencias comunes: Revolución Francesa, Derecho Comparado y alusiones a la modernidad. Summary:I. The common traits of the latin american constitutions. II. Content of the latin american constitutions. III. The degree of modernity of the latin american constitutions. IV. Constitutional trends. V. An approach to ibero-american presidential model. VI. Prospects for latin american constitutionalism.Abstract:The present paper is a first approximation on the diverse manifestations of the constitutionalism in Latin America, starting from some common references: French Revolution, Comparative Law, and allusions to modernity.
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Doyle, Oran. "Populist constitutionalism and constituent power." German Law Journal 20, no. 2 (April 2019): 161–80. http://dx.doi.org/10.1017/glj.2019.11.
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AbstractConstituent power is a helpful component of constitutional theory because it provides a conceptual and potentially normative explanation of how a new constitution can be made without any existing legal authority to do so. Contemporary theories of constituent power, however, unhelpfully treat constituent power as a fictive entity, typically the people, that subsists through time. This predominant account of constituent power fails adequately to explain examples of constitution-making and also lends support to the populist claim that a unitary and unchanging people has an immanent but continuing role as a constitutional actor superior to the constitution itself. This enables populist leaders to rely on prevalent understandings of constitutionalism to support the sidestepping and/or removal of constraints on their power. In this Article, I trace the connections between mainstream theories of constituent power and the academically peripheral claims of populist constitutionalism. I argue for a different understanding of constituent power as a capacity that, in principle, may momentarily be exercised by any entity. This explains how a new constitution can unlawfully replace a pre-existing constitution yet come to have lawful authority itself, without implying the diachronic existence of the constituent power as an entity. I illustrate this understanding of constituent power with reference to the constitutional development of Taiwan and Ireland. These examples show—contrary to the predominant account of constituent power—that constitutional systems may be created without the exercise of constituent power and that constitutional law can play an important role in constructing an entity capable of exercising constituent power. Seen in this way, popular references in preambles are important not for their account of how a constitution was made but rather for their account of whom a constitution is for. This account of constituent power undermines core claims of populist constitutionalism. But it also provides a salutary lesson for liberal constitutionalists: a constitution adopted for a people must broadly serve the interests of that people.
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Gösken, Urs. "Constitutionalism in Poetry, Poetry in Constitutionalism: Muḥammad Ḥāfiẓ Ibrāhīm’s Imagining of Contemporary Constitutional Movements." Die Welt des Islams 61, no. 2 (January 7, 2021): 181–215. http://dx.doi.org/10.1163/15700607-61010012.
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Abstract This paper focuses on the sociocultural and historical context in which the Egyptian poet Muḥammad Ḥāfiẓ Ibrāhīm (c. 1872–1932) represented contemporary constitutional movements in the Muslim world, with special emphasis on developments in the Ottoman Empire and in late nineteenth- to early twentieth-century Egypt – back then, at least nominally, still a part of it – and extending to Iran’s Constitutional Revolution. References in Ḥāfiẓ Ibrāhīm’s poetry to constitutionalism in Japan will also be discussed in order to point out that the poet, while closely following constitutional movements in the Ottoman Empire and in Iran, in fact viewed constitutionalism as an historical process transcending geographical and cultural boundaries. Therefore, we shall also try to identify the general idea of history underlying Ḥāfiẓ Ibrāhīm’s portrayal of constitutionalism. Comparative references to constitutional poetry in Iran of that time are intended to point out the supra-regional dimension both of constitutionalism itself and of poetical modes of imagining it. Likewise, this approach is designed to make the point that constitutional poetry in the Muslim world at that time was more than just poetic commentary on constitutional movements; it was itself part of them.
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Deets, Stephen. "Constitutionalism and Identity in Eastern Europe: Uncovering Philosophical Fragments." Nationalities Papers 33, no. 4 (December 2005): 489–516. http://dx.doi.org/10.1080/00905990500353956.
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Despite the euphoria surrounding the 1989 revolutions, over the past 15 years voices have warned that resurgent nationalism may bring “democracy in dark times” (Isaacs, 1998; Tismaneanu, 1998; Ramet, 1997). Reflecting this fear, a stream of articles has asserted that nationalism in the East is different from the more civic nationalism of the West (Vujacic, 1996; Bunce, 2001; Schöpflin, 2003). If true, these sentiments should be reflected in the constitutions, documents that define the polity and the foundational values of the state in addition to creating the basic institutional order. Debates over religious references in the European Union constitution and the focus on constitutional change by Albanian forces in Macedonia in 2000 serve as reminders of the centrality of constitutions in contention over identity. However, as all constitutions in East Central Europe and the Balkans set out a democratic structure informed by a tangle of national and liberal ideas, they cannot be neatly divided between those which are nationalist and those which are civic, between those which respect minority rights and those which do not. In fact, what is striking about the constitutions is how they combine ideas of liberal individualism, strong democracy, and pluralism.
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Magliacane, Alessia J. "Constitutional Resilience Between Rupture of History and Continuity of Resistance." Law and Administration in Post-Soviet Europe 6, no. 1 (December 1, 2019): 12–29. http://dx.doi.org/10.2478/lape-2019-0002.
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Abstract The overture of the paper provides a brief survey of the philosophical positions (from Aristotle to the contemporary debate) focusing the conjecture of the legal and constitutional continuum as a problematic presupposition of theories of constituent power. The positions of the authors that we can call as continuist authors (up to Kelsen and the neo-normativism, including Soviet jurists and theorists of the constitutional cycles) constitutes the dominant part of the theoretical evolution. We discuss it (respectfully) even if we openly criticize it, with a peculiar debate involving that other position called as discontinuist (whose authors are especially Marxists philosophers, anti-fascist intellectuals like Piero Gobetti, and their references in philosophy such as Leibniz and Vico). In the first movement of the paper, we reconstruct the equivoque at the basis of the conjecture of the continuum. It corresponds to a «three-time» scheme of constitutional dynamics: (revolutionary) rupture – transition – constitution. This structure makes useless (conceptually unusable, and perhaps sources of logical contradictions) both rupture and transition. The second and final movement underlines the theoretical demand to consider the transition and the constitution as coextensive domains. Transition is, in other words, already Constitution, and the constitution is always a transition. To the latter ones, we introduce and add another phenomenon characterizing the historical phase of the transition, namely the Resistance. The fact of resistance escapes the constitutionalisation, and imposes upon the latter a necessary character of transition.
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Venter, Francois. "Utilizing constitutional values in constitutional comparison." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 4, no. 1 (July 10, 2017): 19. http://dx.doi.org/10.17159/1727-3781/2001/v4i1a2878.
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We are living in an era in which constitutional law has become a comparative science. A cogent, generally accepted methodology for constitutional comparison, however does not exist. There can, it is therefore submitted, be no such thing as a universal, monolithic science or discipline of comparative law, be it in the field of private or of public law. On the other hand, juridical comparison done unscientifically will not yield the fruits of useful knowledge. The law in general is replete with unspecific notions such as justice, reasonableness, public interest, boni mores, and many others. It should therefore not be disturbing to find that values are often foundational to the operation and application of constitutional law. The values underpinning different constitutional systems may be useful as a tertium comparationis in a comparative exercise. This however requires a penetrating consideration of the foundations of the systems being compared. In this contribution "a small comparative exercise" is undertaken by way of demonstration of the method. The South African constitutional provisions relating to equality and affirmative action are set against the background of the relevant norms and practices in the United States of America and Canada. This produces some useful insights:in the USA equality increasingly underpins a strict proscription of discrimination, thus shrinking the scope for justifiable affirmative action programmes;the South African law relating to discrimination and upliftment of the disadvantaged was clearly influenced by, and is therefore better understood against the background of, the equivalent arrangements inCanada, which was in its turn possibly conceived against the backdrop of early developments in this regard in the USA;the Canadian doctrine and law of the constitution deals with affirmative action as an exception to the prohibition of discrimination and does not favour private affirmative action programmes;the South African approach seeks on the one hand to promote equality as a near-absolute prohibition of discrimination, while on the other handaffirmative action is projected not as an exception to nondiscrimination, but as a means of achieving equality;whereas the identification of disadvantage in the USA and Canada tends to focus on discrete and insular minorities, the South African Constitution deals with an obvious reality of past disadvantage of a substantial majority, thus probably giving preferential programmes in South Africa a different character. It is concluded that "comparing with values" has, at the very least, the potential of revealing which foreign sources can justifiably be used locally as authoritative or pursuasive references, and which not.
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Karaźniewicz, Justyna. "Glosa do Wyroku Trybunału Konstytucyjnego z dnia 14 grudnia 2017 r., sygn. akt K 17/14." Przegląd Sejmowy 1(162) (2021): 179–91. http://dx.doi.org/10.31268/ps.2021.11.
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In the commented judgment, the Constitutional Tribunal stated that the provisions of laws and regulations providing for the right of officers of many services to search a person or carry out a personal inspection are inconsistent with the Constitution of the Republic of Poland. The inappropriate division of regulations between laws and sub-statutory acts, violating the constitutional requirement of specifying the principles and procedure of limiting the rights and freedoms of the individual at the level of a law, was rightly questioned. The Tribunal also referred to the obligation to ensure effective mechanisms of protection of individuals against unjustified interference with their rights through the introduction of effective measures of appeal against undertaken actions. Due to the narrow scope of the Ombudsman’s request initiating proceedings before the Tribunal, the consideration was limited only to certain aspects of searches and personal inspection. However, valuable, albeit fragmentary, references to the essence of these activities and their normative shape, desirable from the constitutional perspective, can be found in the judgement.
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Rahman, Faiz, and Dian Agung Wicaksono. "Researching References on Interpretation of Personal Data in the Indonesian Constitution." Jurnal Penelitian Hukum De Jure 21, no. 2 (June 24, 2021): 187. http://dx.doi.org/10.30641/dejure.2021.v21.187-200.
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The discourse on personal data protection has been developed for a long time, even before the advent of internet technology. In the Indonesian context, issues relating to the personal data protection have begun to develop in recent years, responding to the increasingly rapid development of digital technology. Currently the Personal Data Protection Bill is again included in the 2021 Priority National Legislation Program in response to the importance of regulations relating to personal data protection in Indonesia. The fundamental thing that often escapes the discourse on the personal data protection in Indonesia is related to how personal data is positioned in a constitutional perspective based on the 1945 Constitution of the Republic of Indonesia if personal data is considered as something that must be protected. This research specifically answered the questions: (a) how is the conceptual interpretation of personal data? (b) how is personal data positioned in the perspective of the Indonesian constitution? This research is a normative juridical research, conducted by analyzing secondary data obtained through literature review. The results of this research indicated that the conceptual interpretation of personal data is still a growing discourse. As for personal data in the perspective of the Indonesian constitution, it can be seen by looking at the legal-historical aspect in the discussion of the amendments to the 1945 Constitution, especially in Article 28G paragraph (1) of the 1945 Constitution of the Republic of Indonesia which is hypothesized as a reference for personal data protection.
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Johnson*, (Alyn) James. "The Toronto Municipal Election: Judicial Failure to Protect the Structure of the Canadian Constitution." Constitutional Forum / Forum constitutionnel 29, no. 3 (June 2, 2020): 1–9. http://dx.doi.org/10.21991/cf29404.
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In Toronto (City) v Ontario (AG),1 a recent decision on the legality of legislative interference in the Toronto 2018 municipal election, the Ontario Court of Appeal makes an alarming attempt to rewrite the Canadian Constitution. The subject of this revision is the legitimate role of unwritten principles in constitutional interpretation. Robin Elliot maintains, in a leading scholarly treatment of the subject, that unwritten principles can inform constitutional interpretation in two main ways: first, they can provide an independent basis on which to overrule impugned legislation; second, they can assist in interpreting constitutional text.2 Elliot qualifies the former usage by limiting it to those principles that “can fairly be said to arise by necessary implication from provisions of the text of the Constitution … since they have the same legal status as the text.”3 The Court of Appeal, however, states that unwritten principles cannot be used as a stand-alone basis on which to overrule legislation.4
In this article, I draw on numerous Supreme Court of Canada decisions to argue that the Ontario Court of Appeal’s view of the Constitution is, with respect, fundamentally flawed. Unwritten principles inform the structure of a democratic constitution and thereby provide legislation with its claim to legitimacy. Legislation that violates foundational unwritten principles is, of necessity, subject to judicial challenge. I also argue that the Court of Appeal’s doctrinally unsustainable approach to unwritten principles led to a flawed ruling on the legality of Ontario’s interference in the 2018 Toronto election. In Reference re Senate Reform, the Supreme Court of Canada unanimously states that “constitutional interpretation must be informed by the foundational principles of the Constitution.”5 The Court of Appeal failed to provide any detailed consideration of the democratic principle, and thereby failed to recognize the constitutional imperative that protects the integrity of the electoral process.
*PhD in Constitutional and Administrative Law, Queen’s University. Principal of Public Law Solutions, a research firm in Toronto.[1] 2019 ONCA 732 [Toronto v Ontario (CA 2019)].[2] “References, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2001) 80 Can Bar Rev 67 at 83-86, 141-42, and generally 86-98.[3] Ibid at 95. See also 83-84.0[4] Toronto v Ontario (CA 2019), supra note 1 at para 89.[5] 2014 SCC 32 at para 25 [Senate Reference].
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Ekow Daniels, W. C. "The Impact of the 1992 Constitution on Family Rights in Ghana." Journal of African Law 40, no. 2 (1996): 183–93. http://dx.doi.org/10.1017/s0021855300007750.
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One of the important characteristics of the Constitution of the Republic of Ghana, 1992, is the prominence it gives to the constitutional protection of the rights of men, women and children who live for a larger part of their lives as families. Although there are passing references to the family, that word is not defined by the Constitution, but the absence of a definition need not be regarded as evidence of non-recognition of the concept of family in Ghana society. Few will disagree widi the proposition that the basis of every society from the most primitive to the most complicated is the family. As an institution it is of great antiquity.
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Shaw, Timothy M. "Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective." Canadian Journal of Political Science 38, no. 1 (March 2005): 241–43. http://dx.doi.org/10.1017/s0008423905280101.
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Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective, John Hatchard, Muna Ndulo and Peter Slinn, Cambridge: Cambridge University Press, 2004, pp. xxv, 361This is a magisterial tome in both substance and style. It is comprehensive, almost encyclopaedic; it also presents the perspective of “constitutional lawyers” (4), at least until the “retreat” towards the political science in the concluding, thirteenth chapter (310). Reflective of their trade, the trio of authors include lists of cases, constitutions, statutes and other instruments, with page references, as well as a comprehensive index of almost 20 pages. The volume presents the significant conceptual advances in comparative constitutionalism in anglophone Africa since independence, including democratic pressures towards “good governance” advanced through the Commonwealth nexus (1); but it also comes to lament the continuing existential constraints on “constitutional governance” (308). It offers welcome comparative analysis of a dozen countries and myriad regimes over four decades.
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Winczorek, Jan. "Redundancy of Redundancy in Justifications of Verdicts of Polish The Constitutional Tribuna." Informal Logic 36, no. 3 (September 15, 2016): 371. http://dx.doi.org/10.22329/il.v36i3.4724.
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The results of an empirical study of 150 justifications of verdicts of the Polish Constitutional Tribunal (CT) are discussed. CT justifies its decisions mostly on authoritative references to previous decisions and other doxa- type arguments. It thus does not convince the audience of a decision's validity, but rather documents it. Further, the methodology changes depending on features of the case. The results are analysed using a conceptual framework of sociological systems theory. It is shown that CT's justification methodology ignores the redundancy (excess of references and dependencies) of the legal system, finding redundancy redundant. This is a risky strategy of decision- making, enabling political influence.
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Bolonha, Carlos, Henrique Rangel, and Maíra Almeida. "CRÍTICAS SISTÊMICAS AOS ESTUDOS CONSTITUCIONAIS BRASILEIROS / SYSTEMIC CRITICISM TO BRAZILIAN CONSTITUTIONAL STUDIES." Revista da Faculdade de Direito UFPR 59, no. 1 (April 30, 2014): 53. http://dx.doi.org/10.5380/rfdufpr.v59i1.36364.
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O presente artigo se destina a avaliar o estudo em direito constitucional, no Brasil, e suas possibilidades de compreender adequadamente a ordem constitucional. Três perspectivas foram abordadas pelo trabalho, selecionadas devido a seu destaque no cenário nacional: teoria dos princípios, neoconstitucionalismo e jurisdição constitucional. Nenhuma delas pareceu suficientemente apropriada para a promoção de investidas contra este amplo objeto. A hipótese formulada relaciona tal impropriedade com a necessidade de se promover uma análise sistêmica e complexa deste objeto. Os argumentos expostos em suporte à hipótese se orientam por referenciais ontológicos, epistemológicos e metodológicos. As três perspectivas são, assim, brevemente apresentadas e criticadas sob tais referenciais a partir do complexo paradigma sistêmico adotado. PALAVRAS-CHAVEJurisdição Constitucional. Neoconstitucionalismo. Sistema Constitucional. Sistemas Complexos. Teoria dos Princípios. ABSTRACTThis article is intended to evaluate the study of constitutional law in Brazil and its possibilities to properly understand the constitutional order. Three perspectives have been addressed, selected because of their prominence on the national scene: the theory of principles, the neoconstitutionalism and the constitutional jurisdiction. None of them seemed appropriate enough to face this large object. The formulated hypothesis relates this impropriety with the need to promote a complex and systemic analysis of this object. The exposed arguments follow ontological, epistemological and methodological references. The three perspectives are thus briefly presented and critiqued under such references, from the complex and systemic paradigm adopted. KEYWORDSComplex Systems. Constitutional Jurisdiction. Constitutional System. Neoconstitutionalism. Theory of Principles.
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Studin, Irvin. "The Strategic Constitution in Action: Canada's Afghan War as a Case Study." German Law Journal 13, no. 5 (May 2012): 419–48. http://dx.doi.org/10.1017/s2071832200020575.
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What does the Canadian Constitution have to say (or not say) about Canada's recent war in Afghanistan? The question seems intellectually natural, but has seldom been asked – not least because in Canada, the fields of constitutional law and foreign affairs, in both scholarship and praxis, are often near-perfect strangers. The seldom examined second recital of the preamble to the Constitution Act, 1867 (once the British North America Act,1867, and hereafter the ‘1867 Act'), reads that the “Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire.” The only provision of the 1867 Act that explicitly references foreign affairs is section 132, although it speaks to the implementation by Canada (legislative and executive branches) ofimperialor British Empire treaty obligations. One can therefore propose with reasonable certainty that both the character and paucity of explicit language onstrategyin the text of the founding legal document of the modern Canadian state betray a fundamental reality: that Canada,constitutionally speaking, was never intended or expected to be a power player of any note in the world, but, rather, was constituted as a strategic appendage orauxiliary kingdomof the British Empire— its instruments and interests subsumed to the strategic designs and direction of Westminster.
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MIETTINEN, Samuli, and Merita KETTUNEN. "Travauxto the EU Treaties: Preparatory Work as a Source of EU Law." Cambridge Yearbook of European Legal Studies 17 (August 3, 2015): 145–67. http://dx.doi.org/10.1017/cel.2015.6.
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AbstractThe Court of Justice of the European Union has historically rejected references to preparatory work in the interpretation of EU Treaties. However, the preparatory work for the EURATOM, Maastricht, and Constitutional Treaties have played a role in recent judgments. The ‘explanations’ to the Charter of Fundamental Rights are expressly approved in the current Treaties. We examine the emerging case law on preparatory work. Reference to the drafters’ intent does not necessarily support dynamic interpretation, and may potentially even ossify historical interpretations. Even if the consequence of their introduction is a conservative interpretation, their use raises questions of transparency and democracy, and complicates the already difficult task of interpreting the EU constitution.
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Pliakos, Asteris, and Georgios Anagnostaras. "Blind Date Between Familiar Strangers: The German Constitutional Court Goes Luxembourg!" German Law Journal 15, no. 2 (March 1, 2014): 369–82. http://dx.doi.org/10.1017/s2071832200002996.
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Preliminary references by national constitutional courts are not an everyday occurrence in Union law. No surprise, therefore, that they attract considerable publicity and give rise to a significant amount of academic comment. However, the recent preliminary request of the German Federal Constitutional Court (GFCC) inGauweilerconstitutes undoubtedly the most important and historic preliminary reference made thus far by a constitutional court. This is not only because it is the very first preliminary request of this particular court, inaugurating potentially a whole new era in its institutional relationships with the Court of Justice and paving the way for other national constitutional courts to make more regular recourse to the preliminary reference procedure; but also because it relates to an issue of central importance for the process of European integration with far reaching economic and political repercussions.
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Michał Wiszowaty, Marcin. "Shaken or Stirred? Polish Constitutional (Dis)continuity between 1917–2017." Hungarian Journal of Legal Studies 60, no. 1 (March 2019): 95–118. http://dx.doi.org/10.1556/2052.2019.60107.
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Abstract The purpose of this paper is to answer the main research question “is there a constitutional continuity in Poland or even the Polish constitutional identity or rather there was a permanent discontinuation in last 100 years of Polish history of state?” For this purpose, the Polish constitutional history in the 20th and 21st centuries has been analyzed with respect to the changes made in the Polish political system over the past century from republican and democratic governments with a strong parliament to governments more akin to the monarchy, with a strong presidency, and even autocratic. Looking for sources of Polish political inspiration references are made to the legacy of the Polish-Lithuanian Commonwealth.
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Madjid, Neni Vesna, Saldi Isra, Kurnia Warman, and Mardenis Mardenis. "JUDGE’S DECISION ON WORK TERMINATION DISPUTE IN INDONESIA AFTER CONSTITUTIONAL COURT DECISION NUMBER 37/PUU-IX/2011." Jurnal Dinamika Hukum 18, no. 2 (May 9, 2018): 149. http://dx.doi.org/10.20884/1.jdh.2018.18.2.2029.
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Testing the provision of Article 155 section (2) Law Number 13 of 2003 on Manpower has been decided by the Constitutional Court (CC) through decision Number 37/PUU/IX/2011. Prior to the Constitutional Court decision, there are many various interpretations of undetermined clause. The Constitutional Court firmly states that the undetermined clause must be interpreted as “having a permanent legal force ".This study aims to analyze how the judges dismissed dispute of work termination cases in Indonesia after the decision. The research applied juridical normative method by using secondary data literature such as legal documents, previous studies and other references which are relevant to the judges' decision within the Supreme Court after the Constitutional Court decision. Based on the analysis temporary result, the judges within the Supreme Court in 3 regions (Padang, Pekanbaru and Jakarta Pusat) and the Supreme Court itself are not practically guided by the Constitutional Court decision. It obviously results in the lack of legal certainty for the parties, especially workers.Keyword: Constitutional Court, Industrial Relation Court, Interpretation, Supreme Court.
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Fontanelli, Filippo, and Giuseppe Martinico. "Between Procedural Impermeability and Constitutional Openness: The Italian Constitutional Court and Preliminary References to the European Court of Justice." European Law Journal 16, no. 3 (May 2010): 345–64. http://dx.doi.org/10.1111/j.1468-0386.2010.00511.x.
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Buckingham, Louisa. "Race, space and commerce in multi-ethnic Costa Rica: a linguistic landscape inquiry." International Journal of the Sociology of Language 2018, no. 254 (October 25, 2018): 1–27. http://dx.doi.org/10.1515/ijsl-2018-0031.
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Abstract Costa Rica officially became a multi-ethnic, pluricultural nation in 2015. Representatives from the principal minorities, in particular Afro-Costa Ricans and indigenous peoples, played an important role in contesting the erstwhile dominant narrative of Costa Rican’s white European settler heritage. One of the intended consequences of the constitutional amendment was to ensure greater salience of ethnic minorities in public policy and social life. This study investigates the public display of linguistic and cultural diversity on commercial and community signage in six urban centres of Limón, the most ethnically diverse province. Undertaken in the same year as the constitutional amendment, the study examines the inclusion of languages and cultural references attributable to three main minority groups (Afro-Caribbean, Chinese and indigenous), and more recent migrant settlers, in public space. Greater salience was found in locations appearing to target a local readership; references to indigenous cultures were almost completely absent, however. Changes in the public narrative on Costa Rican identity may gradually encourage greater salience of official minority groups on public signage. An immediate challenge entails the effects of the expanding tourism sector, as this appears to favour a proliferation of decontextualized international cultural references rather than an appreciation of locality and historical rootedness.
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Lohse, Eva Julia. "The German Constitutional Court and Preliminary References—Still a Match not Made in Heaven?" German Law Journal 16, no. 6 (December 2015): 1491–508. http://dx.doi.org/10.1017/s2071832200021234.
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So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth:BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by theBVerfGabout the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of theBVerfGremain the same after this single referral and offer explanations as to why theBVerfGhad for nearly sixty years not referred a question to the former European Court of Justice (ECJ).
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Likhovski, Assaf. "Peripheral Vision: Polish-Jewish Lawyers and Early Israeli Law." Law and History Review 36, no. 2 (February 21, 2018): 235–66. http://dx.doi.org/10.1017/s0738248017000669.
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Some of the founding fathers of Israel's legal system were lawyers educated in Polish law schools. What was the impact of this background on their legal thought? There are few explicit references to Polish law in Israeli legal texts. However, indirectly, legal and constitutional ideas taken from Polish law did appear in Israeli law. This article focuses on the legal writing of four Israeli lawyers in the period immediately after Israel's independence in 1948, showing how Polish law was used by these lawyers as a source for occasional precedents, for critiquing Israeli law (dominated by English law), and, mostly, for constitutional precedents.The relatively greater impact of Polish law in the constitutional realm can be attributed to the fact that Poland (like other new countries established in the interwar period in the periphery of western Europe, such as Ireland) offered Israeli lawyers constitutional models that were both more modern, and more relevant to the specific circumstances of the new state, where religion played an important role in defining the identity of the nation. The history of the impact of Polish law on Israeli law can thus serve as an example of interwar constitutional innovation in the European periphery, and its later impact on post-World War II constitutional law.
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Yun, Jeong-In. "Constitutional Review Complaint as an Evolution of the Kelsenian Model." ICL Journal 14, no. 4 (December 20, 2020): 423–46. http://dx.doi.org/10.1515/icl-2020-0024.
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Abstract A centralized constitutional review system, generally known as the Austrian Constitutional Court model established in 1920 by Hans Kelsen, has spread globally after World War II and is now the most active constitutional tribunal in Europe. Interestingly, although the Constitutional Court of Korea was classified as this Kelsenian model, besides a typical kind of constitutional review procedure, the Court runs an additional procedure for the constitutional review of legislation. The latter has some comparatively special and unusual requirements and procedure, but the statistics indicate it has been actively used. It takes the form of a constitutional complaint, but in practice, it is treated as the second type of constitutional review of legislation in Korean constitutional adjudication. Through this special procedure, individuals appear to participate in a tripartite conversation on constitutional interpretation along with the judicial branch and the Constitutional Court. Moreover, to some extent, this sui generis complaint is perceived to make up for the prohibition of constitutional complaint on judgments of ordinary courts (‘Urteilsbeschwerde’) in Korea. In Austria, the individual complaint on constitutional review of statutes was introduced by a constitutional amendment in 2013, whereby the individual parties of the pending cases are entitled to file a constitutional review with the Constitutional Court as of 1 January 2015. In terms of enabling the individual party to request to the Constitutional Court for constitutional review of legislation, the Austrian new complaint is similar to the Korean one, but their requirements and procedures are different. From the perspective of enhanced individual access to the Constitutional Court, however, both complaints may be viewed as an evolution of the Kelsenian model to meet the demands of the times. In this regard, the Korean practice for over three decades may provide useful insights into the implementation of a new practice and further improvement in Austria. This article will examine the Korean ‘Constitutional Review Complaint’ and compare it with the Austrian ‘Gesetzesbeschwerde (Parteiantrag auf Normenkontrolle)’ to explore mutual references that will help improve both institutions. Then, I will assess what this kind of evolutionary invention of the constitutional review implies to the centennial of the Austrian model.
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Thym, Daniel. "Friendly Takeover, or: the Power of the ‘First Word’. The German Constitutional Court Embraces the Charter of Fundamental Rights as a Standard of Domestic Judicial Review." European Constitutional Law Review 16, no. 2 (June 2020): 187–212. http://dx.doi.org/10.1017/s1574019620000127.
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Five decades of interaction between the Bundesverfassungsgericht and the Court of Justice – Reversal of the Solange decisions – Jurisdictional upgrade of the Charter under domestic constitutional law – Continuity of the ultra vires and constitutional identity caveats – Differences between the First and Second Senate in the approach towards EU law – Preliminary references as a new normality – Projection of the experience and doctrinal rigour of the German fundamental rights case law on the European level – ‘Primary’ application of the Grundgesetz as pragmatic guidance – Gradual evolution of overarching standards – Ordinary courts as an institutional counterbalance to the Bundesverfassungsgericht – Insistence on leeway for relative national autonomy in the interpretation and application of the Charter.
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Alicino, Francesco. "The Moroccan Constitutional Transition: The Method of Contextualization and Mutual Interaction." Religion & Human Rights 10, no. 1 (February 11, 2015): 63–88. http://dx.doi.org/10.1163/18710328-12341282.
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In this article the author analyses the influence of Islamic references in the 2011 Moroccan constitutional reform that, far from taking place in a vacuum, was informed both by an internal political perspective and by the broader context of what has come to be called the “Arab Spring”. It will be outlined that, on the one hand, Islamic legal tradition interacts with Western legal principles; while on the other hand the exceptionalism of the “Moroccan Spring” reveals that those very principles are contextualized and adapted within this executive Islamic monarchy.
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Albert, Akume T. "Combating corruption in Nigeria and the constitutional issues arising." Journal of Financial Crime 23, no. 4 (October 3, 2016): 700–724. http://dx.doi.org/10.1108/jfc-07-2015-0034.
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Purpose The purpose of this paper therefore is to identify and examine major issue-areas in law, prominent among which are the Plea-Bargain and S308 Immunity Clause, and how they impact the process of effectively combating corruption in Nigeria. Design/methodology/approach The paper uses documentary sources and analytical method to examine the issues involved. Findings The identified issue-areas are inhibitors rather than facilitators. Research limitations/implications The implication is that the government needs to change the existing laws to strengthen the fight against corruption. Practical implications This is to ensure that the war against corruption is strengthened and effective. Social implications To ensure that offenders face the full weight of the law for their action. Originality/value This paper is the author's original work and all references are appropriately acknowledged.
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FARAHAT, ANUSCHEH. "Enhancing Constitutional Justice by Using External References: The European Court of Human Rights’ Reasoning on the Protection against Expulsion." Leiden Journal of International Law 28, no. 2 (April 24, 2015): 303–22. http://dx.doi.org/10.1017/s0922156515000096.
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AbstractThis article argues that the European Court of Human Rights (ECtHR) uses external references as a tool to enhance ‘constitutional justice’. This technique is illustrated by the Court's contribution to an important shift in migration law beginning in the late 1980s and resulting in an enhanced scheme for protection against expulsion in Europe. This shift reflects the changing role of the ECtHR from a court primarily concerned with providing ‘individual justice’ to a court aiming at enabling ‘constitutional justice’. The aim of the article is to contextualize the aforementioned shift with a historical view and to understand it in methodological terms. It argues that the Court supports its dynamic interpretation of the right to privacy in Article 8 of the European Convention of Human Rights in crucial judgments by reference to often non-binding instruments issued by the Council of Europe and to other human rights treaties. In this regard, the case of protection against expulsion illustrates a particular feature of the Court's turn to ‘constitutional justice’, namely the increased application of the principle of systemic integration. This allowed the Court to develop a meaningful and comprehensive protection scheme in the first place. However, the article reveals that once the substantial standard developed by the ECtHR has been formally implemented in domestic law, domestic decisions are reviewed with significantly less scrutiny. This limitation may again be explained by the ‘constitutional turn’ which results in a pragmatic tendency to proceduralization in the jurisprudence of the ECtHR.
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Ciepły, Filip. "Anthropological foundations of Polish Penal Law in the light of the 1997 Constitution of the Republic of Poland." Nowa Kodyfikacja Prawa Karnego 52 (December 13, 2019): 55–64. http://dx.doi.org/10.19195/2084-5065.52.4.
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When making penal law regulations, the legislator is faced with axiological choices of tremendous impact, hence it should take into consideration the moral conditions that are inherent to the specific civilisation and culture, particularly interpreted from constitutional axiology. In the doctrine of penal law and penal sciences that aspire to influence the content of penal legislation, the perspective of constitutional values, principles and norms should always be taken into account. However, the constitutional context does not only offer strict and express legal rules, precisely formulated guarantees, imperatives and prohibitions, constitutional or competence-related provisions but also generally worded optimising norms and, often only implicit preferences, assumptions and axiological views of the author, among them the vision of human nature. The specific anthropological concept that the constitution-maker has assumed as the axiological basis of its law-making decisions proves to be heterogeneous and becomes a necessary reference point for various law-making and law-applying bodies, all recipients of legal norms, and also the representatives of scientific disciplines recommending changes to the law.The anthropological stance adopted in the Constitution can be inferred primarily from the principle of human dignity as well as from the foremost position of the personal freedom of the individual in the hierarchy of constitutional values or from the interpretation of the constitutional concept of common good. The principle of human dignity entails the axiomatisation of the normative content of the Constitution. The Constitution of the Republic of Poland, in its Article 30, does not aspire to re-invent the concept of the human being or prioritise specific rights and freedoms but only confirms that they exist and obliges public bodies to respect and protect them. The analysis of the content of the Constitution of the Republic of Poland reveals that it is founded on the personalistic concept of a human being. This indeterministic concept implies that the individual takes rational and free choices and socially relevant decisions manifested in their actions and is subject to liability, including penal liability, based on these actions. This is relevant to the definition of the paradigm of expert assessments of penal law and to the legislative effort.Under effective constitutional law, it is impossible to develop a system of penal law response based on such anthropological concepts as behaviourism, determinism, post-humanism, anti-humanism, trans-humanism, biotechnology, trans-species approaches, etc. The idea of the rejection of the subjective nature of a human being and departure from the classic rules of penal liability based on the perpetrator’s actions and guilt are out of the question. These notions should be interpreted in the light of personalistic anthropology. Any concepts that rationalise penal sanctions exclusively on the grounds of protection of public safety or crime prevention which make penal liability instrumental and objectify perpetrators are in conflict with constitutional axiology. Moreover, constitutional anthropology cannot endorse solutions that implement a strictly behavioural vision of crime response, that is, one in which the application of penal sanctions is understood as a kind of social engineering or correctional tool separated from liability. The perpetrator of a prohibited act cannot be subject to interventions regarded as forced therapy or psychotechnical correction of non-conformist attitudes and pathological personality. It is also unacceptable to attempt to treat animals or artificial intelligence as subjects of law or making them fall under penal liability.All in all, due to the hierarchical structure of the sources of law, any proposals and conclusions in the field of penal law-making and interpretation must be aligned not only with the norms but also with the axiology of the Constitution of the Republic of Poland. If criminology and other penal sciences do not want to turn into purely theoretical science, detached from the axiological, legal and social reality of combating crime, and if their findings are to be taken into account in practical state policy, they must follow a paradigm consistent with the context of the fundamental values and norms embedded in the Constitution. From the perspective of constitutional anthropology, the paradigm of penal sciences that corresponds to the axiological assumptions behind the existing political system is the classical paradigm in which a human being is perceived as a rational, self-determining and free being, creating and responsible for their own actions. The property of scientific pursuits within the classical paradigm also confirms the repeated references of the constitution-maker to the concept of justice and the treatment of justice as the fundamental and universal value of the legal system.
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McEvoy, F. J. "Canada, Ireland and the Commonwealth: the declaration of the Irish republic, 1948-9." Irish Historical Studies 24, no. 96 (November 1985): 506–27. http://dx.doi.org/10.1017/s0021121400034490.
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The relationship of Ireland to the Commonwealth during the period of its membership was a tortuous one. Forced to accept dominion status under threat of the renewal of Anglo-Irish hostilities, Ireland was not an enthusiastic member of the club as were the older dominions. The Constitutional Amendment (No. 27) Bill, enacted on 11 December 1936, removed all references to the crown and governor general from the constitution while the Executive Authority (External Relations) Bill, enacted the next day, recognised the crown only for purposes of diplomatic representation and international agreements. These two measures, commonly referred to as the External Relations Act, left Ireland a more or less undeclared republic with ambiguous links to the Commonwealth. Wartime neutrality differentiated Ireland even further from the other dominions, aroused British anger and brought the question of Ireland's constitutional status into even greater prominence. Ireland was, the Canadian high commissioner in Dublin considered in 1944, a more or less unknown quantity' The Canadian government, though it would have preferred a different choice, respected Ireland's neutrality and resented British actions, taken without prior consultation, that might have contrived to drive Ireland from the Commonwealth. The end of the war removed a major cause of grievance but left Ireland's nosition unresolved.
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Martinico, Giuseppe. "The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law." German Law Journal 16, no. 6 (December 2015): 1343–74. http://dx.doi.org/10.1017/s2071832200021179.
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Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”
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Repetto, Giorgio. "Pouring New Wine into New Bottles? The Preliminary Reference to the CJEU by the Italian Constitutional Court." German Law Journal 16, no. 6 (December 2015): 1449–70. http://dx.doi.org/10.1017/s2071832200021210.
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In the ongoing debate about preliminary references raised by constitutional courts, the ItalianCorte costituzionale(Constitutional Court, hereafter, ICC) is apparently a latecomer. Despite its pivotal role in the founding era in which the relationships between Community law and national legal orders were assessed, its reluctance towards preliminary references to the ECJ (since 2009: Court of Justice of the European Union, CJEU) has repeatedly been invoked as a standard in legal scholarship. Whereas from the early 1960s onwards it engaged dialectically with the CJEU, and contributed to some basic tenets of EC lawvis-à-visnational law (direct effect, primacy, limits concerning basic constitutional principles, so-calledcounter-limits), it appeared for a long time to be almost silent on the crucial aspect concerning its ability to enter into a direct dialogue with the CJEU via the preliminary reference procedure. Although this ambivalence may appear contradictory, one should not forget that behind the scenes, dialogue took place along indirect or “hidden” channels. Either in response to claims raised by the judiciary inincidenterproceedings, or in adjudicating disputes between State and Regions inprincipaliterones, the ICC often sent messages and alerts to the CJEU. In so doing, it indirectly contributed to shaping the relationships between EU law and domestic law. In the long run, the absence of the ICC's direct involvement in the relationships with the CJEU has, however, estranged its action from the core of EU law in favor of the partnership between the CJEU and the common judges (both ordinary and administrative).
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Berman, Micah L. "Commercial Speech Law and Tobacco Marketing: A Comparative Discussion of the United States and Canada." American Journal of Law & Medicine 39, no. 2-3 (June 2013): 218–36. http://dx.doi.org/10.1177/009885881303900202.
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In November 2011, U.S. District Court Judge Richard Leon ruled that the U.S. Food and Drug Administration's (FDA’s) proposed graphic health warnings for cigarette packages violated tobacco companies’ First Amendment rights. In doing so, he pointedly refused to consider the experiences of Canada, the United Kingdom, and the more than thirty other countries that had adopted similar graphic warnings in the past decade. Rather, he swatted away all references to those other countries’ experiences by stating (first at oral argument and then in his decision) that “none of [those countries] afford First Amendment protections like those found in our Constitution.”While it is true that no other country uses the First Amendment per se, many other countries do offer constitutional protection to freedom of speech and/or freedom of expression. Indeed, several other countries apply “strikingly similar” legal tests when reviewing restrictions on speech (and on commercial speech in particular). Thus, the statement that other countries do not “afford First Amendment protections like those found in our Constitution” is an oversimplification.
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Bisariyadi, Bisariyadi. "Referencing International Human Rights Law In Indonesian Constitutional Adjudication." Constitutional Review 4, no. 2 (December 31, 2018): 249. http://dx.doi.org/10.31078/consrev424.
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The power of the Indonesian Constitutional Court to review laws is a constitutional adjudication process. It is a forum to resolve constitutional issues where a citizen can challenge Law that has injured his rights. The Court's reasoning provides audiences with the debates for its deliberation. Audiences may find reference to the international human rights law. It is an interesting practice. However, there is no studies yet about the information on the statistic of the Court made reference to international human rights law. As such, this study aims to identify reference to international human rights law in the Court's decision on judicial review cases from 2003 to 2016. Additionally, this study also aims to answer the question of what underlies the Court to made reference to international human rights law. As many studies show, the objective of Constitutional Court's references to the international human rights law is to strengthen constitutional rights protection. Nonetheless, the Court did not pay any interests to the global agenda of transnational constitutionalism or a convergence of rights and legal pluralism. The article is divided into 5 (five) sections, commencing with the introduction. The second part discusses the status of international human rights law in Indonesia. As the third presents information on Court's decision which cited international human rights law. Then, the fourth presents typical function of the decision that made reference to international human rights law. It concluded that the practice of referring to international law demonstrates the open attitude of Indonesian constitutional justices to the universal nature of fundamental rights.
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Vatsov, Mihail. "European Integration Through Preliminary Rulings? The Case of the Bulgarian Constitutional Court." German Law Journal 16, no. 6 (December 2015): 1591–622. http://dx.doi.org/10.1017/s2071832200021283.
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The preliminary reference procedure under Article 267 of the Treaty on the Functioning of the European Union (TFEU) is instrumental for the so-called “judicial dialogue” within the European Union (EU). The goals of the preliminary reference procedure are to ensure the uniform interpretation and application of EU law and to contribute to the harmonious development of the law throughout the EU. It was through the preliminary reference procedure to the Court of Justice of the European Union (CJEU) that the principles of direct effect and supremacy were developed. It took many years before the first request by a Constitutional Court was sent to the CJEU. So far, the Constitutional Courts of Belgium, Austria, Lithuania, Italy, Spain, France, Germany, and most recently Slovenia, have sent requests for preliminary rulings to the CJEU. By far the most active of these in sending requests has been the Belgian Court. The Portuguese Constitutional Court has indicated that it can request preliminary rulings from the CJEU but is yet to do so. In the other Member States (MS) with Constitutional Courts, references have not been sent yet, although worthy occasions in terms of EU-law-related cases have occurred, as also observed in various contributions in this special issue. These MSs include Bulgaria.
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Nebratenko, Olga O. "The Legal Doctrine in the Activities of the Constitutional Court of the Russian Federation." Russian judge 11 (November 19, 2020): 27–31. http://dx.doi.org/10.18572/1812-3791-2020-11-27-31.
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The article is devoted to the study of legal doctrines in the activities of the national body of constitutional justice. In legal science, judicial practice, and state-legal reality, the term “doctrine” in various combinations has become one of the most widely used and ambiguous. At present, the attitude to the legal doctrine is changing, which in a short time has gone from an unused regulator of legal relations in the Russian legal system to an optional one, giving way only to the dominant source (form) of law — a normative legal act. References to doctrines in the final acts of the constitutional Court of the Russian Federation, as well as their direct formulation and use, are a special subject of research activity, which determines the practical significance of the proposed article.
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Higgins, Michael. "The articulation of nation and politics in the Scottish press." Communicating/Doing Politics 3, no. 3 (December 31, 2004): 463–83. http://dx.doi.org/10.1075/jlp.3.3.06hig.
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This article explores the political use of discourses of nation by analysing the use of location formulation across a selection of Scottish newspapers. The article looks at a sample of the election coverage of six Scottish titles and conducts a corpus analysis to set out the patterns in their use of named locales. It argues that references to nation both come in a variety of forms and are driven by the constitutional disputes around the position of Scotland relative to the United Kingdom. In particular, the article finds that the newspapers engage in different rhetorical strategies that emphasise the Scottish dimension of the election, its British dimension, or a negotiated position between the two. The article therefore seeks to highlight the discursive role that the lexical expression of nation and nationhood might have in the articulation between nation and politics, and suggests that in the Scottish case the formulation of nation is employed in the reproduction of competing, constitutionally based political discourses.
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Lacchi, Clelia. "Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU." German Law Journal 16, no. 6 (December 2015): 1663–700. http://dx.doi.org/10.1017/s2071832200021301.
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The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.
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Pankevych, Oleh. "EUROPEAN STANDARDS OF HUMAN RIGHTS IN THE PRACTICE OF THE CONSTITUTIONAL COURT OF UKRAINE." Social Legal Studios 10, no. 4 (December 25, 2020): 21–27. http://dx.doi.org/10.32518/2617-4162-2020-4-21-27.
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The article is devoted to the retrospective analysis of some aspects of the application and implementation of European human rights standards in the constitutional proceedings of Ukraine. It is substantiated that the domestic body of constitutional jurisdiction, realizing its role as an instrument for implementing European human rights standards in national legal practice, actively uses the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the Strasbourg Court as arguments to motivate its decisions. In the future, not only the formal but also the substantive aspect of the use of the Convention and the case law of the European Court of Human Rights in the acts of the Constitutional Court of Ukraine certainly needs special attention. The following analysis will allow to reveal the "quality" of the reference to these international sources and the relevance of references to them. In the motivating part of its decisions, the Constitutional Court of Ukraine also uses as an additional argumentation a wide range of other international legal acts and decisions of other international and foreign judicial institutions. This aspect of the practice of the Constitutional Court of Ukraine obviously deserves to be the subject of our further research. Based on the validity of our conclusion in previous publications that the main philosophical basis of modern decisions of the Strasbourg Court are the postulates of liberal communitarianism as a result of a kind of convergence of liberal and communitarian ideologues, we believe that, in turn, these postulates can�t be found in the decisions of the Constitutional Court of Ukraine (when it uses the provisions of the Convention and the case law of the European Court of Human Rights for additional argumentation of its own legal positions). At the same time, this hypothesis still needs to be thoroughly proved in the following special research.
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Bailly, Mélina, Natacha Germain, Bogdan Galusca, Daniel Courteix, David Thivel, and Julien Verney. "Definition and diagnosis of constitutional thinness: a systematic review." British Journal of Nutrition 124, no. 6 (April 23, 2020): 531–47. http://dx.doi.org/10.1017/s0007114520001440.
Full textAbstract:
AbstractThe existing literature about the definition and diagnostic criteria of constitutional thinness (CT) appears equivocal. The present work systematically reviewed the criteria used in the diagnosis of adult individuals with CT (PROSPERO registration number: CRD42019138236). Five electronic bibliographic databases were searched between December 2018 and November 2019: MEDLINE, Embase, CENTRAL (Cochrane Library), Google Scholar and Clinical Trials. Search terms were combined with Medical Subject Headings terms. The search strategy included any clinical trials that enrolled adults with CT. Studies were systematically excluded if the state of thinness was not due to a well-identified constitutional origin. From the 689 references after duplicate removal, 199 studies were excluded based on title and 164 based on abstract. According to the inclusion and exclusion criteria, 291 other studies were removed. Finally, thirty-five studies remained at the end of the process. The analysis of these studies showed high heterogeneity in the diagnostic criteria of CT. A real need emerged to adopt a common terminology and to systematically exclude potential non-constitutional origins of thinness such as eating disorders, associated pathology or over-exercising, with validated tools. Weight history, physiological menses and weight gain resistance are also important criteria to consider. The present systematic review revealed that our medical and scientific approaches of CT need to be harmonised in terms of terminology and diagnostic criteria. Although further studies are needed, we finally proposed recommendations and a decision tree to help in the recognition and diagnosis of CT.
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Gauthier, Gilles. "Les fonctions argumentatives de la référence aux personnes dans le débat politique télévisé: le débat Bourassa-Parizeau d'octobre 1992." Canadian Journal of Political Science 27, no. 3 (September 1994): 559–80. http://dx.doi.org/10.1017/s000842390001790x.
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AbstractIn televised political debates, opponents refer to different types of persons. This article examines references to persons and the arguments emerging from them. First of all, four main types of reference are identified: self-reference, reference to an opponent, reference to third parties and reference to experts. The article identifies the fallacies and particularly the different typesof ad hominemarguments used by Robert Bourassa and Jacques Parizeau in referring to persons during a debate on the Canadian constitutional referendum of October 1992. Finally, a few theoretical considerations are developed on "peripheral" argumentation of political communication.
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Jilkin, A. D. "Development of the Russian Constitution and Political Alternatives in Early 1992." Russian Journal of Legal Studies 4, no. 4 (December 15, 2017): 86–93. http://dx.doi.org/10.17816/rjls18275.
Full textAbstract:
Working out of the Constitution of Russia in early 1990s was held at the time of dramatic events in our country. Among them the crash of USSR, GKChP action, the conflict between the president and the parliament, contradictions between the central and regional authorities and radical liberal economic reforms. The start of those reforms in early 1992 and attendant conflicts between different political actors made the great influence on the process of working out of the Basic Law of the country and even drove it.The author use institutional set-up in its historical version. The article presents an analysis or alternative constitutional projects written in early 1992 by those who reckoned themselves among supporters of democratic reforms. The author reviews and compares not only key issues of submitted texts, but tries to discern purposes and objectives of the political actors supported each of them. The analysis of researching projects let come to conclusion that even at that time Yeltsin team intended to adopt Basic Law in the version that could empower the president to act without references to the parliament.In general researching alternatives seems to be promising trend which is important for both: understanding of the political discussion content and process in the early 1990s and ways of evolution of the Russian Constitution and state in future.
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Escajedo San Epifanio, Leyre. "La inviolabilidad regia en perspectiva comparada: revisión histórica e interpretaciones contemporáneas." Teoría y Realidad Constitucional, no. 46 (December 16, 2020): 403. http://dx.doi.org/10.5944/trc.46.2020.29120.
Full textAbstract:
Recurriendo a García Pelayo, son bastantes los elementos de los actuales sistemas democráticos en los que cabría hallar, sobre todo en lo formal, una cierta homogeneidad armónica con sus precedentes históricos o referentes de Derecho comparado. De todos ellos, sin embargo, parece que la inviolabilidad regia es uno de los pocos —sino el único— de los elementos en los que se duda si las previsiones constitucionales deben interpretarse dentro del marco sistemático que les da cobijo o si, por el contrario, cabe la posibilidad de eludir ese marco y basarse en antecedentes históricos o referentes comparados para proceder a su interpretación. Pareciera que, al menos respecto del estatuto regio, se defiende no sólo una cierta suprapositividad sino, incluso, la supuesta existencia anclaje preconstitucional inamovible, ubicado lejos del alcance de la soberanía que reside en el pueblo. Desde la perspectiva del Derecho constitucional, aunque sin perder de vista la historiografía y, hasta cierto punto, la Psicología política, este trabajo aborda el estudio de dicho fenómeno, procediendo a una revisión histórica de la inviolabilidad regia y al análisis de las interpretaciones contemporáneas de la misma.Recalling García Pelayo, there are quite a few elements of the current democratic systems in which it would be possible to find, especially in formal terms, a certain harmonic homogeneity with their historical precedents or comparative law references. Of all of them, however, it seems that royal inviolability is one of the few —if not the only one— of the elements in which it is doubted whether the current constitutional provisions should be interpreted within the systematic framework that shelters them or whether, on the contrary, it is possible to circumvent this framework and rely on historical antecedents or comparative references to proceed with its interpretation. It would seem that, at least with respect to the royal statute, not only a certain suprapositive nature is defended, but even the supposed existence of an immovable pre-constitutional anchor, situated far from the reach of the sovereignty that resides in the people. From the perspective of Constitutional law, although without losing sight of historiography and, to a certain extent, Political psychology, this work addresses the study of this phenomenon, proceeding to a historical review of royal inviolability and an analysis of contemporary interpretations of it.