Journal articles on the topic 'Eternity clauses'

This paper explores the conceptual possibility and implications of the concept of unconstitutional constitutional amendments. In the first section, the author argues that unconstitutional constitutional norms are conceptually impossible within the conventional hierarchical model of norms. In the second section, the author discusses the normative particularity of the amending power and concludes that an unlimited power may endanger the constitution. In sections III and IV, the author explains why so-called “eternity clauses,” in order to fend off such a danger, have been designed to place certain immutable elements of the constitution beyond the limits of the amending power. The paradigmatic case is the German Basic Law and a recent decision by the Federal Constitutional Court that discusses the implications of the “eternity clause” with reference to the distinction between constituent power and the constituted amending power. The author develops an alternative understanding of that distinction and its consequences for the amending power. The possible adverse effects of “eternity clauses” on the normality of the constitution are briefly considered in the final section.

Objective:This study aims to investigate whether eternity poison pills influence the earnings management level of Brazilian public companies.Method: We collect data from the bylaws obtained on the website of the Brazilian Securities and Exchange Commission, aiming to identify the use of poison pills and “eternity” clauses by 235 non-financial companies. The information needed to estimate discretionary accruals using the Jones Modified model, and the control variables included in the econometric model, were obtained through the Bloomberg® database. For the data analysis, we use quantile regression, considering the outliers present in the sample.Originality/Relevance: This study fills a gap in the literature regarding the effect of eternity poison pills on discretionary accruals, given that this relationship has not been explored in the Brazilian context. Thus, it is relevant for investors and regulators because it provides evidence on the effects of implementing this anti-takeover mechanism.Results: The main results provide novel evidence on the relationship between poison pills and earnings management in the Brazilian context, demonstrating that this anti-takeover device, when associated with an “eternity” bylaw clause, is positively related to discretionary accruals.Theoretical contributions: It contributes theoretically by showing that the managerial entrenchment caused by the adoption of poison pills with “eternity” clauses may reduce the accounting information quality, shedding light for investors and regulators about this effect of implementing this anti-takeover mechanism.

Since the concept of democracy made its premiere, popular sovereignty has always been one of its fundamental characteristics. Nevertheless, many democracies have adopted eternity clauses (non-amendable constitutional provisions) as well as the unconstitutional constitutional amendment doctrine (the judicial power to strike down amendments to the constitution on substantive grounds), seemingly betraying the established democratic tradition. Including eternity clauses in a constitution certainly poses a challenge to any democracy, namely that of resolving the tension between their freezing effect on the legal system and the democratic notion of popular sovereignty. The intuitive question is why bother? Why address this challenge in the first place rather than uprooting eternity clauses from the constitutional system altogether, thereby resolving the inner tension they generate? One answer is that eternity clauses are presumably here to stay. More to the point, however, is that their presence in a legal system is desirable, since their absence would leave a modern democracy vulnerable to irresponsible normative acts by an incompetent body of representatives. Although Israel's Basic Laws do not include formal eternity clauses, its legal system tends to limit the scope of amending power where the Zionist project is concerned, thereby freezing the imperfect founding formula of the Jewish state. As a result, Israel as a Jewish democratic state faces the same challenge of resolving the tension between the freezing effect and popular sovereignty. This article argues that this challenge can be successfully met as soon as eternity clauses are integrated within a three-track democracy—a holistic constitutional system and theory. As a constitutional system, it distinguishes between three decision-making tracks and identifies the basic norm of the legal system with a nation's collective will or dynamic founding narrative. As a constitutional theory, it justifies constitutionalism and judicial review mainly for the purpose of regulating a nation's evolution. Eternity clauses play a pivotal role in three-track democracies by blocking the first decision-making two tracks in order to force revolutionary movements to engage in the consensual third track. This protects society from a unilaterally-imposed revolution—an act liable to be detrimental to the delicate evolutionary process.

Abstract Do constitutional entrenchment clauses matter? And if yes, how? This article examines these questions by analyzing a comprehensive collection of 154 decisions issued by European constitutional and supreme courts from 1945 up to 2016, on the constitutionality of constitutional amendments. The article shows that entrenchment clauses do matter: in the vast majority of decisions studied, the claimants and/or the courts referred to a constitutional entrenchment clause. About one-fourth of these cases resulted in the invalidation of a constitutional amendment, most of which were based on an “eternity clause,” that is, the most extreme type of entrenchment clauses. However, the article also demonstrates that most of these invalidations can be assessed as instances of democracy-adverse judicial activism. The article concludes, therefore, that entrenchment clauses cannot be considered an unambiguous instrument for the protection of democratic constitutionalism.

Abstract:The literature on entrenchment as a means to achieve constitutional endurance has grown in recent years, as has the scholarship on unamendable provisions as a mechanism intended to safeguard the constitutional project. However, little attention has been paid to the promise and limits of eternity clauses in transitional settings. Their appeal in this context is great. In an effort to safeguard hard-fought agreements, drafters often declare unamendable what they consider the fundamentals to the political deal: the number of presidential term limits, the commitment to human rights and to democracy, the form of the state (whether republican or monarchical), the territorial integrity of the state, the territorial division of power, secularism or the official religion. This article explores the distinctive role and problems posed by eternity clauses in transitional constitution-building, as guarantees of the pre-constitutional political settlement in such fragile periods. The article also compares unamendability to other techniques of constitution-making in uncertain times, such as sunset clauses, deferring hard choices and other forms of constitutional incrementalism.

The question discussed in the articles published in this issue of the Israel Law Review is not really new. In 1978, published an article in this review dealing with the issue. At that time, it looked much more like an academic question with very few potential practical consequences. The reason for this is clear. It was like the discussions that took place in European countries a century ago regarding judicial review (of legislation). Even those who favored it were not able to consider any form of implementation. In the absence of an established principle of judicial review, the problem looked purely theoretical. Later, after World War II, judicial review of legislation became very fashionable and conquered almost all modern occidental democracies. The question arising now is whether we can expect a similar development as regards the validity and efficacy of eternity clauses. On the one hand, there is a growing number of eternity clauses; on the other hand, we have witnessed an extraordinary development in the field of judicial review, which is the result of the general growth of judicial activism in all countries. In other words, two parallel trends are coming increasingly close to one another and will certainly give rise to a new chapter in constitutional theory and practice.In April 2010, the International Association of Constitutional Law (I ACL) held one of its two annual round tables in Jerusalem. Entitled “Unconstitutional Constitutional Amendments,” it was devoted to the issue of constitutional review. In this issue of the Israel Law Review, we present some of the papers presented at the round table by experts from various countries.

In the beginning, humans had a tongue (gjuhën, Shqip). Then, they could or couldn’t let go of the tongue (len…gjuhën, Shqip). Albanian natural tongue (Shqip) implies the use of the tongue in the mouth for articulating (shqiptoj, Shqip) words. The eternity of Shqip (Speech) is in its words that are wordy clauses, phrases, parts of or short sentences. The Speech (Shqip) and other lan…guages (len…gjuhët, Shqip) carry these kinds of wordy clauses to prove the permanency of Shqip.The Speech (Shqip) had local and schooled forms in distant antiquity. Therefore, various types of writing appear now. Since the schooled style was in general use and carried later in the papers and books of lan…guages (len…gjuhëve, Shqip), it has been preserved unchanged. Its pieces, no matter how small are, every time get easily read and quickly understood using contemporary Shqip.The Speech (Shqip) was the first stratum in the Euro-Mediterranean area. It was the Speech (Shqip) of Nephilims (Nëfillimëve). The Shqip of today can be used to read and understand both words in other idioms and ancient writings.

Abstract Across a number of countries including Venezuela, Colombia, Bolivia, Ecuador, Honduras, Costa Rica, and Nicaragua, incumbent presidents in Latin America have recently sought to amend their constitutions to eliminate or weaken presidential term limits. In some cases, these efforts to extend terms have been part of broader projects to consolidate power, weaken other state institutions, and tilt the electoral playing field in favor of incumbents. From a legal perspective, these cases are interesting because they highlight the limits of tools limiting constitutional change, such as eternity clauses and the unconstitutional constitutional amendment doctrine, to constrain potentially anti-democratic or anti-liberal forms of constitutional change. Although constitutional texts in most of these cases gave courts ample ammunition to reject attempts to eliminate term limits or at least to force those changes down more demanding paths, courts did not stand in the way of most of these efforts and in some cases even used the doctrines to eliminate rather than protect term limits. The case studies highlight the extent to which the “superficial” spread of doctrines controlling constitutional change may fail to block, and indeed may promote, forms of constitutional change that threaten liberal democratic constitutionalism. It also suggests possibilities for deepening the effectiveness of transnational dialogue on these issues.

Lisbon decisions of the constitutional courts in Austria, the Czech Republic, France, Germany, Hungary, Latvia and Poland from a comparative perspective – Democracy, sovereignty and identity – Permeability of national and supranational law – Ratification of the Lisbon Treaty and its constitutional foundations – Procedural background and legal outcome of the Lisbon decisions – Differences of institutional self-conception – Parliamentary responsibility for integration – Prior parliamentary assent to the future application of ‘dynamic treaty provisions’ – Different conceptions of national and multi-levelled democracy – Popular vote – Constitutional limits to European integration – Limits indicating the necessity of an amendment and limits protecting the inalienable substantial core of a constitutional order – German Bundesverfassungsgericht only court in Europe spelling out an eternity clause in a detailed, catalogue style manner – Judicial restraint – Ultra vires and identity review – Article 4.2 TEU as an integration clause of EU law and not a derogation clause – Comparative dialectics

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Continuing sovereignty of member states under the EU Treaty – Extended constitutional limits to European integration (‘eternity clause’) under German Constitution, but these are not violated by Lisbon Treaty – Composition of European Parliament does not satisfy fundamental requirement of democracy but does not violate German Constitution since EU is not a state – Critical assessment of conceptual foundations of decision

The world's second-oldest written constitution (1814) still existing presumably also contains the world's oldest substantive “supra-constitutional” or “eternity” clause. According to its text, the “spirit “ and “principles” of the Constitution cannot be amended.However, it is less than clear that the clause is meant to exclude not only “amendments” but also the adoption of a brand new constitution. Moreover, the meaning of the clause two centuries later cannot be determined without regard to subsequent changes to other parts of the Constitution. The examples discussed include the constitutional monarchy, affected not only by the radical shift in our perception of the role of a hereditary king but first and foremost by formal amendments. In this way, “principles” that may initially have been protected may no longer enjoy a similar status.Who has the last word as to the substantive limits to amendments? The widely held view in Norway is that the judiciary should stand back. While judicial review of legislation leaves the last word about what norms to apply in the future to the constitution-amending power, judicial review of constitutional amendments would leave the last word about the future meaning of the Constitution itself to judges. Another argument refers to our inherent right as human beings to resist oppression. This argument deserves attention even if it is not substantiated in the text of the Constitution.Are the “spirit” and “principles” of the Constitution of Norway well protected? If the clause is understood as a contribution to the smoothness of constitutional development over time and thereby to the relative success of the Norwegian Constitution, the assessment is likely to be rather positive.

AbstractThis article reflects on the protection of territorial integrity in the Ukrainian constitution, especially on its provision of unamendability, against the backdrop of the 2014 Crimean crisis. At the general level, we examine whether constitutional theory can offer answers when confronted with the apparent inefficacy of a constitutional claim to eternity. More specifically, we focus on what the Ukrainian case can teach us about the implications of designating territorial integrity or indivisibility of a state as an eternal/unamendable constitutional principle. Building on insights from the Crimean crisis, we argue that the unamendable protection of territorial integrity is an especially ineffective type of eternity clause because it is subject to both the internal threat of secession and the external risk of forceful annexation, The preservative promise of unamendable territorial integrity is severely curtailed by this double vulnerability, even when backed by a constitutional court with far-reaching powers of judicial review. Territorial integrity as an eternal constitutional principle then remains merely aspirational. Moreover, we argue that the act of entrenching territorial protection as an unamendable principle is in clear tension with the idea of popular sovereignty and with mechanisms for expressing popular will.East-Central European constitutions play like songs of the liturgy on a very old gramophone. You hear the expected music performed in the service of constitutionalism, but you hear it with a crackle in the background. The performance is old-fashioned in order to receive thenulla obstatof the Council of Europe and sometimes (when territorial integrity comes up) the soprano's voice suffers from hysteria.

Recently, extremist ‘populist’ parties have succeeded in obtaining large enough democratic electoral mandates both to legally make substantive changes to the law and constitution and to legally eliminate avenues to challenge their control over the government. Extremists place committed liberal democrats in an awkward position as they work to legally revolutionize their constitutions and turn them into ‘illiberal democracies’. This article analyses political responses to this problem. It argues that the twin phenomena of legal revolution and illiberal democracy reveal a latent tension between the constitutional commitments to democracy and liberalism, that is, the equal chance to have one’s political goals enacted into law and individual basic rights. Political extremists make the latent tension real when they use the procedures of democratic legal change to abrogate constitutional commitments to liberalism, among other things. Although the two commitments normally coexist side by side, exceptional times raise an existential dilemma for liberal democracies: is it constitutional to democratically amend liberalism out of the constitution? After analysing the moral legitimacy of both the democratic and liberal arguments, this article concludes that liberal constitutionalism is constitutive of genuine democracy. In other words, it is unconstitutional to abrogate basic liberal commitments and it is legitimate to adopt constitutional mechanisms to guarantee liberalism – even if it means constraining democracy to do so. This article then situates ‘constrained democracy’ within the liberal current as a way to conceive of and respond to this pressing problem. It concludes by discussing four constitutional mechanisms – inspired by the German Grundgesetz – to guarantee liberalism: unambiguous lexically prior commitment to liberalism, limits on negative majorities, the eternity clause and party bans. It concludes that constrained democracy is an important constitutional guarantee of liberal democracy and that the four mechanisms, among others, are essential to enact constrained democracy.

A ReplyBy Kaj ThaningIn this article the writer protests against what he calls »two attacks on his thesis »Man First - «« (1963). First, against Regin Prenter’s review of this book, which is quoted in J.H. Schjørring’s obituary of Prenter, then against W.Michelsen’s article »The Way from Force to Freedom in Grundtvig’s Life and Works«, both printed in Grundtvig Studier 1991. Thaning claims that the word .conversion. can be used both about turning to God and about turning to His Creation, which Grundtvig did in »Norse Mythology«, 1832. According to Thaning, Prenter has not rendered it probable that this conversion was provoked in Grundtvig by »the unshakable fact of the Church«.In his article, W. Michelsen refers to »Handbook on World History« I (1833), in which Grundtvig states that for »school use« he now prefers the Greek view of human life and history to the mosaic-Christian, because the Greek view lends itself more easily to being »practised scientifically«, but that he still considers the Mosaic-Christian view »the only divine, true, and eternal one«. Thaning claims, however, that from 1832 the word .view. denotes a contrast to the Christian »faith«. The Biblical view was of no avail on Greek soil, Thaning claims. In 1833 Grundtvig went over to »Polybius’s heathen view of history«, which built on the contrast between the truth and the lie. As he could not employ simultaneously the three concepts, a Greek view of history, a Biblical view, and the Christian faith, »the Biblical view now slips over to the side of the Church and becomes identical with faith (divine, true, and eternal)«. In 1832, it is true, it was called divine because of its historical effects, but not eternal. It became so, however, in 1833. According to Thaning it was on this background that Grundtvig spoke about the contrast between church and school, faith and science, the temporal and the eternal.In 1833 - unlike in 1832 - the Mosaic-Christian view has moved on to the side of the Church, faith and eternity, and is thus not entitled to impose ecclesiastical forms on state and school. Here, according to Thaning’s understanding of Grundtvig, the Greek view must prevail, and it thus becomes clear that Grundtvig now »has a changed view of life«, which further appears from his enthusiastic outbursts at »thus escaping from the chaos of the thought-world that we have found ourselves in through many centuries«. It is this constant consideration for life which is the need of the time, Grundtvig says. And this is what Thaning calls a »conversion«.Thaning also finds that Michelsen’s reference to the small pamphlet .On the Clausen Libel Case. is misunderstood, as is also his conjecture about the influence of Clara Bolton on Grundtvig’s view of freedom. According to Thaning, it was in the pamphlet .On the Baptismal Covenant. that the idea arose that it would be possible for Grundtvig and his opponents to be in the state church together, if only it was made legal for the individual churchgoer to frequent a church of his own choice. Later this thought leads to the church being renamed, in Grundtvig’s usage, »a social institution« (1834).There should be a generous competition, not a struggle in the church, Thaning writes, »....the thought of the Biblical view as common to people of spirit, among them the naturalists (H.N. Clausen) means that Grundtvig can offer them reconciliation and cultural cooperation«, he says. »It is a manifestation of a new view in Grundtvig,« he claims, »and of the new view of freedom which is proclaimed in the dedicatory poem of Norse Mythology which ... is a far cry from the small pamphlet against Clausen from 1831«.

AbstractThe article raises one principle question: Does the Czech Eternity Clause pose a possible threat to a further integration of the European Union? In a concise introductory part, the article analyses the concept of the Eternity Clause of the Czech Constitution from both the substantive and procedural point of view. Afterwards, the article goes on to eval­uate whether certain aspects of the Eternity Clause (as interpreted by the Czech Constitu­tional Court) might indeed create practical problems for the EU. The opinion of the author is that the ‘danger’ is quite negligible. This is mostly due to the fact that the Czech Consti­tutional Court generally (with an exception that is not to be overestimated) adheres to euro-friendly interpretation and it has even interpreted the Eternity Clause itself (espe­cially concepts like democracy or sovereignty) with respect to the logic and nature of Eu­ropean integration. The euro-friendliness of the Czech Constitutional Court is further com­plemented by the respect that the EU law pays to national (especially constitutional) iden­tity of the member states.

AbstractThis article looks at the constitutional label of Romania as a ‘national state’ and the constitutional discourse surrounding it. It argues that this label is unavoidably linked to a project of constitutional nationalism. The article examines the origins of the provision enshrining this state characteristic, as well as the eternity clause declaring it unamendable, so as to reconstruct the genealogy of the idea of the national state in Romania. The article traces the origins of the concept to early-twentieth century nation-building discourse but links its current incarnation to the distinctive type of nationalism promoted in late communist and early post-communist Romania and its fear of the Hungarian ‘other’. This fear seeped into debates in the 1990–1991 constituent assembly debating the new constitution, which proceeded to disregard calls for a more pluralist definition of the state and clearer constitutional protection for national minorities. While some of these choices were revisited during the 2003 revision of the constitution, the fundamental law retains its emphasis on the national state. To this day, Article 1 (1) continues to be contested, especially by representatives of the Hungarian community. At the same time, it is invoked and creates confusion every time administrative territorial reorganisation is entertained. The article argues that greater clarity is required in understanding the concept and operation of the national state provision, as well as openness to an inclusive national dialogue surrounding this constitutional unsettlement. Only by moving the constitutional discourse beyond the highly politicised debates of years past, and the ‘us versus them’ mentality informing them, can Romanian constitutionalism show a maturity in keeping with its recent 25-year anniversary.

L’obiettivo fondamentale di questo articolo è quello di confrontare due versioni del giuramento di Ippocrate: quello famoso pagano e il “Giuramento secondo Ippocrate per come dovrebbe essere prestato da un cristiano”, pressocché sconosciuto. L’atteggiamento dei primi cristiani verso la medicina è stata guidata dalla loro memoria viva di Gesù, che, come guaritore e consolatore, non ha mai negato il suo aiuto ai malati, non solo ebrei, ma anche samaritani o pagani. I primi medici cristiani, di conseguenza, non ponevamo i pazienti in una posizione preferenziale, e quindi erano in grado di sviluppare una sintesi specifica di abilità professionale, di amore fraterno e il senso salvifico della sofferenza. Essi hanno risposto alla malattia umana non con esorcismi e magia, ma con la medicina e con un’etica medica sorprendentemente “moderna”. La versione cristiana del Giuramento presenta, nonostante l’accoglienza alla lettera di molti principi del giuramento pagano, alcune novità rivoluzionarie. La sostituzione nel giuramento alle divinità pagane con l’invocazione a Dio Padre e la dichiarazione di “non mentire” pone la nuova formula in una prospettiva di trascendenza e l’eternità. L’alleanza tra maestro e discepolo con l’aggiunta dei propri doveri di aiuti finanziari e dipendenza pratica si è mutata in un aperto riconoscimento del reciproco rispetto tra insegnante e studente. Nel nuovo contesto, l’essere posseduti da una forte vocazione professionale, diventa l’unico requisito per l’accesso all’apprendimento dell’arte medica. Ora la lealtà verso il paziente ha la precedenza sulla sottomissione al maestro: il corporativismo medico è bandito. La versione cristiana omette anche la la “clausola chirurgica”, così che le vecchie barriere alla pari dignità di tutte le specialità mediche sono state rimosse. In considerazione di questi e di altri valori del Giuramento cristiano, l’autore si rammarica della quasi universale ignoranza di questo importante documento, e della scarsità di studi dedicato alla sua storia e ai suoi contenuti. Il confronto delle due versioni, pagana e cristiana, aiuta a comprendere l’impatto emotivo e permanente che i medici cristiani dell’antichità hanno determinato all’etica della medicina. ---------- The basic aim of this article is to compare two versions of the Hippocratic Oath: the famous pagan one and the almost unknown “Oath according to Hippocrates in so far as a Christian may swear it”. The attitude of early Christians toward medicine was guided by their lively remembrance of Jesus, who, as healer and comforter, never denied his help to the sick, not only Jews, but also Samaritans or Pagans. Early Christian physicians, in consequence, placed patients without discrimination in a preferential position, and so they were able to develop a specific synthesis of professional prowess, brotherly love and a redemptive sense of suffering. They responded to human disease not with exorcisms or magic, but with medicine and with a surprisingly “modern” medical ethics. The Christian version of the Oath introduces, despite its literal acceptance of many tenets of the Pagan Oath, some revolutionary novelties. The substitution of the swearing by the pagan deities for the invocation to God the Father and the declaration “I lie not” places the new formula in a perspective of transcendence and eternity. The old covenant between master and disciple with its added duties of financial help and practice dependence is changed to an open recognition of mutual respect between teacher and student. In the new circumstances, to be possessed by a strong professional calling becomes the only requirement for access to the medical art’s learning. Now loyalty to the patient takes precedence over submissiveness to the master: medical corporativism is banished. The Christian version omits also the “surgery clause”, so the old barriers to the equal dignity of all medical specialties are removed. In view of these and other values of the Christian Oath, the author regrets the almost universal ignorance surrounding this important document, and the scarcity of studies devoted to its history and contents. All the same, the comparison of both versions, Pagan and Christian, of the Oath helps to understand the impressive and permanent impact that Christian physicians of the Antiquity brought about to the ethics of medicine.