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Journal articles on the topic 'European constitutions'
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1
Pernice, Ingolf. "European v. National Constitutions." European Constitutional Law Review 1, no. 1 (October 12, 2004): 99–103. http://dx.doi.org/10.1017/s1574019605000994.
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In federal systems public authority is established by the people and exercised for the people at two levels. The treaties establishing the European Union may be conceptualised as the constitution of a supranational public authority, part of a federal system. And what the European Convention has submitted to the European Council to agree upon is an attempt to give this constitution a more coherent, more complete and more appealing form. The new ‘Constitution for Europe’ will be concluded, formally, by an international treaty. But governments and national parliaments will do this on behalf of the citizens of the Union, and insofar as national Constitutions provide for a referendum, the citizens will directly be involved. This Constitution will, therefore, like national constitutions, draw its legitimacy from the people, citizens of the polity, through their constitutional representatives. Legitimacy obtained is similar to that sought for a regular treaty but specific due to the contents and the explicit constitutional claim of the instrument.
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de Raadt, Jasper. "Contested Constitutions." East European Politics and Societies: and Cultures 23, no. 3 (May 5, 2009): 315–38. http://dx.doi.org/10.1177/0888325409333192.
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What were the effects of constitution-making procedures on the acceptance of the new “rules of the political game” in postcommunist Central Europe? This article sets out to scrutinise the increasingly popular claim among politicians and scholars of democratisation that inclusiveness and popular involvement in constitution-making processes enhance a constitution's legitimacy. The concept of constitutional conflict, referring to political contestation over the interpretation and application of constitutional relations among state institutions, is introduced as a way to assess constitutional acceptance among politicians. The investigation concentrates on constitutional conflict patterns during the five years following constitution-making in seven Central European countries: Bulgaria, the Czech Republic, Estonia, Hungary, Poland, Romania, and Slovakia. Constitution-making procedures varied substantially among the cases, as did the intensity and timing of constitutional conflict. The article finds that differences in constitution-making procedures do not necessarily determine the legitimacy of constitutions among political elites. Instead, ambiguity on the allocation of formal competencies among political actors and increasing political tensions between pro-reform and anti-reform parties during the early 1990s proved to be more important triggers of constitutional conflict. Accordingly, studies on constitution-making and democratisation should focus less on procedural aspects and take into account the fuzziness of important constitutional provisions and the extent to which constitutions can survive periods of intense political polarisation.
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Vetter, Szilvia, László Ózsvári, and Anita Boros. "Protection of Animals in the Constitutions of the European Countries." Pro Publico Bono - Magyar Közigazgatás 8, no. 1 (2020): 170–89. http://dx.doi.org/10.32575/ppb.2020.1.9.
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The aim of the study is to examine how animal protection, especially that of animal specimens, is included in the European constitutions. San Marino and the United Kingdom have no classical, written constitutions, hence, a total of 42 European constitutions were studied. Animals typically appear in the constitution as species that, as part of nature and the environment, must be conserved in order to preserve biodiversity. There are only a few constitutions in Europe that reflect a narrowly defined approach to animal protection. According to this, animals as individuals must be protected because of their intrinsic value. The research has shown that 14% (6 countries) of the European countries examined contain both species and specimen protection provisions in their constitutions. The vast majority, 69% (29 countries) included only animal species protection provisions in the constitution. 17% (7 countries) of the European constitutions do not contain a provision based on any of the criteria. Only Austria, Germany, Luxembourg, Slovenia, Sweden and Switzerland have provisions for individual protection of animals at constitutional level. In Switzerland, a unique legal institution, the “dignity of animals” was given constitutional protection.
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Balaj, Luz. "The Procedure of Constitutional Amendment – Comparative Reviews of European Practices." International Journal of Social Science Studies 6, no. 7 (July 2, 2018): 57. http://dx.doi.org/10.11114/ijsss.v6i7.3402.
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Constitutional changes in a state with written constitution are carried out on the basis of a rule that has been set out by the constitution itself. In practice, many authors refers to articles that define the way of changing the constitution as "rules that define rules" (See for more Tracy Di Fillippo, How to Make Objections to Discovery under the Amended Rules, 25 Pretrial Prac. & Discovery 1, 2016.) Depending on the content of these rules, two sets of constitutions are generally formulated in the theory of constitutional right. The first are the flexible constitutions, which are amended in a simpler procedure, with a simple majority and in a shorter period of time. While in the second category there are the so-called rigid constitutions. Rigid are called the constitutions that have established a more extended or complicated procedure of amendment, with a qualified majority (more than just a simple majority) and a longer period of time.However, the procedure and the number of members of parliament differ. The main goal of this paper is to analyze those differencies, in oredr to find that how the procedure can affect on the constitutionality of the constittuion amendments. Is the rigid procedure a key for constitutional amendments or not? This is another question that is going to be analyzed by comparing different procedures of constitutional amendments in different countries.
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van Nifterik, Gustaaf. "French Constitutional History, Garden or Graveyard?" European Constitutional Law Review 3, no. 3 (October 2007): 476–87. http://dx.doi.org/10.1017/s1574019607004762.
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On 29 May 2005 the French said no to the draft of a European Constitution. And frankly, the French should know about constitutions! One can differ whether the history of France should be considered a fruitful garden of constitutional thought, a graveyard of constitutional experiments, a ‘musée des constitutions’, or a minefield; in any case it is beyond doubt that the French are rather experienced in constitutions and constitutional changes. Since the French Revolution in 1789, France has been a monarchy, a republic more than once, an empire twice and a constitutional monarchy in between; the nineteenth century shows the pattern monarchy, republic, empire; since 1958 the French live in their Fifth Republic.There is a lot to learn from the constitutional history (perhaps struggle is a better word in this context) of this important European country for any political entity in search of a proper constitution. Which constitutional institutions were a success, which were not; why did it or did it not work out the way it was planned?
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Benewick, Robert. "Towards a Developmental Theory of Constitutionalism: The Chinese Case." Government and Opposition 33, no. 4 (October 1998): 442–61. http://dx.doi.org/10.1111/j.1477-7053.1998.tb00461.x.
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CONSTITUTIONS, CONSTITUTIONAL REFORM AND CONSTITUTIONAL conflict are once again commanding attention. The celebrations of the bicentennial of the American constitution, the implementation of constitutional reform in Canada, the Labour government's programme for constitutional change in the United Kingdom, the seemingly intractable conflict in Northern Ireland, and transfers of sovereignty to the European Union from its constituent states, testify to this. Equally, if not more challenging, have been the upheavals in Eastern Europe and the former Soviet Union and its reconstituted states, the ‘third’ wave of democratization across the developing world, the experiment in participatory constitutionalism in South Africa and the return of Hong Kong to China. Of the 179 countries that elect their governments out of a total of 192 countries in the world, 176 have codified constitutions. Constitutions, however, that are not fully mature or operative and are not based on the principles or drafted with the advice of those nations that have developed and entrenched their constitutions tend to be disregarded, or even dismissed. Moreover, writing a constitution is one exercise, implementing, and interpreting it is a far more complex and delicate undertaking. So how are social scientists to evaluate the process?
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Boyron, Sophie. "The ‘New’ French Constitution and the European Union." Cambridge Yearbook of European Legal Studies 11 (2009): 321–51. http://dx.doi.org/10.5235/152888712802730675.
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AbstractFor a long time, French constitutional law did not appear to concern itself unduly with the European Communities and the process of European integration: the French Constitution did not contain any reference to the European Communities and the Conseil constitutionnel had little involvement with international treaties and their enforcement as a result of an early decision. However, the ratification of the Maastricht Treaty in 1992 triggered a process of deep constitutional change in France. Since then, the text of the French Constitution has been repeatedly amended to respond to the quickening pace of European integration. Furthermore, the Conseil constitutionnel has totally transformed its control of the constitutionality of international treaties. An assessment of these constitutional changes seems opportune at this juncture. More specifically, an investigation into the manner in which the French constitution reacted to the changing European Union helps cast some light on the impact of European integration on national constitutions.
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Boyron, Sophie. "The ‘New’ French Constitution and the European Union." Cambridge Yearbook of European Legal Studies 11 (2009): 321–51. http://dx.doi.org/10.1017/s1528887000001622.
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AbstractFor a long time, French constitutional law did not appear to concern itself unduly with the European Communities and the process of European integration: the French Constitution did not contain any reference to the European Communities and the Conseil constitutionnel had little involvement with international treaties and their enforcement as a result of an early decision. However, the ratification of the Maastricht Treaty in 1992 triggered a process of deep constitutional change in France. Since then, the text of the French Constitution has been repeatedly amended to respond to the quickening pace of European integration. Furthermore, the Conseil constitutionnel has totally transformed its control of the constitutionality of international treaties. An assessment of these constitutional changes seems opportune at this juncture. More specifically, an investigation into the manner in which the French constitution reacted to the changing European Union helps cast some light on the impact of European integration on national constitutions.
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Młynarska-Sobaczewska, Anna. "Normatywizacja tożsamości zbiorowej w preambułach do konstytucji państw postkomunistycznych." Filozofia Publiczna i Edukacja Demokratyczna 2, no. 2 (July 14, 2018): 104–33. http://dx.doi.org/10.14746/fped.2013.2.2.18.
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Preambles are parts of constitutions, which are visibly neglected in legal theory and constitutional law. They are defined as solemn introductions to constitutions, which indicate the sovereign, historical and political context of increasing the new constitutional order, main aims and principles – the foundation of constitution. Such elements are also commonly apparent in most of post communist constitutions of European states. The article shows the integrative function of these preambles, achieved by using clauses creating and maintaining the identity of political community. The clauses with this function are identified as: statements regarding national and cultural heritage, declaration of sovereign as people or nation, and expression of common aims and fundamental principles of community. The article investigates these elements in texts of preambles to post-communist constitutions and indicates their role as tending to create the national identity.
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Osuchowska, Marta, and Aleksandra Syryt. "Konstytucyjne podstawy wolności religijnej w wybranych państwach Europy i Ameryki Łacińskiej." Polski Przegląd Stosunków Miedzynarodowych, no. 5 (May 3, 2018): 89. http://dx.doi.org/10.21697/ppsm.2015.05.04.
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The constitutional basis for religious freedom in selected countries in Europe and Latin AmericaReligion helps man keep his own identity. It enables him to participate in a common heritage. The study provides the constitutional basis for religious freedom in the individual dimension in selected countries in Europe and Latin America. The authors discuss the provisions on religious freedom enshrined in the constitutions of Italy, Spain and Portugal, as well as Argentina, Chile and Colombia.The analysis leads to the conclusion that religious freedom is a human right protected both in the constitutions of European countries as well as in the constitutions of Latin American countries.The inclusion of the provisions on religious freedom in the individual dimension in the constitutions is due to certain similarities of the system of European and Latin American. Common features of both systems is that Europe and Latin America belong to the so-called Western civilization. The legal systems of Latin American countries formed primarily on the basis of Roman law.Although the wording of the provisions on religious freedom in the individual dimension in the constitutions of Latin American countries is similar to the editorial rules of the constitution states of Europe, in practice there are other ways to implement this freedom and guarantees its protection.
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Kowalik-Bańczyk, Krystyna. "Should We Polish It Up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law." German Law Journal 6, no. 10 (October 1, 2005): 1355–66. http://dx.doi.org/10.1017/s207183220001436x.
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Just one year after Polish accession to the European Union, the Polish Constitutional Tribunal was provided the opportunity to clarify its position regarding the supremacy of EC and EU law. In its two recent judgments, it joined the long tradition of a rather uneasy relationship between national Constitutional Courts and European Court of Justice (ECJ). The uneasiness of this relationship results from an ever-unsolved dilemma – which of the two judicial fora should have the last word in case of conflict between European norms and national constitution norms? The solution given by European Court of Justice in a series of early judgments seems obvious. It opted for an absolute supremacy of EC norms over national norms. On the other hand, the national Constitutional Courts usually accept the supremacy of EC law - but only as a consequence of transfer of some competences under strict conditions set by national constitutions. They thus accept the concept named by Neil Walker “constitutional pluralism”, meaning that the states are no longer the sole source of constitutional authority. However, national constitutions are still the “primary” source of any such authority.
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Чиркин, Вениамин, and Vyeniamin CHirkin. "GLOBALIZATION AND THE BASIC CHANGES OF MODERN CONSTITUTIONS." Journal of Foreign Legislation and Comparative Law 2, no. 1 (March 16, 2016): 0. http://dx.doi.org/10.12737/18200.
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On the basis of a positive and contrasting comparison, as well as content analysis of new constitutions and fundamental amendments to them the changes in their content, which occur as a result of the modernization, integration and globalization are considered. Modernization and economic (in fact, the economic and political) integration of states leads to the creation of a new form of supranational public legal formation with a different quality of public authorities and supranational law (the most prominent example is the European Union), as globalization leads to the spread of the general regulations of constitutional development in new countries and peoples. The processes of internationalization of the constitutions, the new phenomenon of constitutional convergence, harmonization and antagonisms on a world scale are appeared. Constitutional globalization is seen as the most general direction of development of the constitutional law of the world countries. Modernization and economic integration of states often involves the adoption of the principal amendments to the Constitution, “the Basic Law”, or even the whole constitution in the Muslim fundamentalism countries, where such a document as the Constitution, previously was considered unacceptable and was replaced by the Quran and Sunnah. In the countries of totalitarian socialism the processes of convergence has occurred (on the aspects of regulation of economic relations), but there is no harmonization, there are antagonisms with the constitutional decision of the basic questions of social and political system. In the states — members of the European Union the traditional position of the State Sovereignty is revised, new views on the national and supranational authorities are appeared. The mutual influence of international, supranational (so far only in the EU) and constitutional law takes place.
13
Wojnicki, Jacek. "The constitutionalization of political parties in Poland – evolution or change?" Studia Politologiczne 2020, no. 57 (September 15, 2020): 60–76. http://dx.doi.org/10.33896/spolit.2020.57.4.
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The article discusses the evolution of constitutional solutions concerning the, issue of political groups. The subject of the analysis includes successive Polish constitutions, beginning with the March Constitution1. At the same time the development of statutory, regulations referring to the functioning of political parties is shown. These Polish regulations, are aligned with the European tendency to constitutionalize political parties. Although, Poland experienced a delay compared to the countries of Western Europe, as a result of the, nondemocratic system of the Polish People’s Republic, the principle of political pluralism has, been the key principle underpinning the system of government found in the Constitution of, the Republic of Poland since December 1989.
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Carcassonne, Guy. "France Conseil Constitutionnel on the European Constitutional Treaty. Decision of 19 November 2004, 2004-505 DC." European Constitutional Law Review 1, no. 2 (May 19, 2005): 293–301. http://dx.doi.org/10.1017/s1574019605002932.
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The only real surprise of the recent decision of the French Conseil constitutionnel [constitutional Council] concerning the compatibility between the European and the French Constitutions was the timing of it. According to Article 54 of the French Constitution, a treaty may be submitted for constitutional review at any time before ratification. In this instance, Jacques Chirac acted with unusual promptness, submitting his request on the very day the Treaty was signed, 29 October 2004. The Conseil itself reacted with equal speed, issuing its decision exactly three weeks later on 19 November 2004. Behind both courses of action lies the shadow of political concern related to the Socialist Party referendum on the European Constitution.
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Thornhill, Chris. "The formation of a European constitution: an approach from historical-political sociology." International Journal of Law in Context 8, no. 3 (August 23, 2012): 354–93. http://dx.doi.org/10.1017/s1744552312000250.
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AbstractThis article sets out a sociological reconstruction of the constitution of the European Union (EU). Utilising a methodology derived from historical-functionalist sociology, it explains the distinctive court-led, judicial form of this constitution within a wide comparative-sociological framework, and it cites earlier examples of judicialised constitutions to elucidate the adaptive functions performed by judicial actors in the EU constitution. The article proposes a new method for analysing constitutions in general and that of the EU in particular, and it offers an encompassing sociological perspective for addressing the increasing preponderance of judicial institutions in contemporary democratic polity building.
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Cartabia, Marta. "Europe as a Space of Constitutional Interdependence: New Questions about the Preliminary Ruling." German Law Journal 16, no. 6 (December 2015): 1791–96. http://dx.doi.org/10.1017/s2071832200021349.
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The European continent has become a space ofconstitutional interdependenceand consequently, national Constitutional Courts are now embedded in a constitutional fabric made of national constitutions, European Union (EU) law, European treaties, and conventions. This is all the more evident in the domain of fundamental rights.
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Piqani, Darinka. "Arguments for a Holistic Approach in European Constitutionalism: What Role for National Institutions in Avoiding Constitutional Conflicts between National Constitutions and EU law." European Constitutional Law Review 8, no. 3 (October 2012): 493–522. http://dx.doi.org/10.1017/s1574019612000302.
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Relation between national constitutions and EU law – Constitutional conflict – Role of national institutions in avoiding constitutional conflict – A need for a holistic approach in European constitutionalism – Constitutional courts put forward constitutional requirements next to constitutional reservations – The need to bring constitutions in line with EU law before accession – The role of parliaments and governments in avoiding conflict when implementing EU law – Role of national institutions in decision-making at EU level
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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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Larsen, Signe Rehling. "European Exceptionalism? — A Response to Alexander Somek'sThe Cosmopolitan Constitution." German Law Journal 19, no. 6 (November 2018): 1529–42. http://dx.doi.org/10.1017/s2071832200023142.
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AbstractA major contemporary shift in constitutionalism is manifest in that domestic constitutions, to an unprecedented degree, submit themselves to legal regimes and agencies beyond the state. This is epitomized in national courts taking into account foreign precedent within the system of the European Convention on Human Rights and the government of the Eurozone crisis by the executive apparatus of the European Union (EU). Alexander Somek'sThe Cosmopolitan Constitutionis one of the most important monographs that endeavors to conceptualize this contemporary shift in constitutionalism. This response, however, highlights that the EU plays an uneasy role in the tale ofThe Cosmopolitan Constitution.The argument presented is that there are reasons to question the Eurocentrism that posits European post-WWII constitutional developments as the epitome of contemporary global constitutional developments. These reasons relate to the particularity of the European post-WWII political and constitutional experiences and developments. In contrast to what is maintained by Somek, this response argues that contemporary European trends in constitutionalism do not point in the direction of a universal cosmopolitanism but express a distinct European particularity.
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Levakin, Igor, and Daria Trifonova. "A Brief Historical and Legal Essay on “Economic Constitutions”." Russian Law Journal 6, no. 3 (August 30, 2018): 172–99. http://dx.doi.org/10.17589/2309-8678-2018-6-3-172-199.
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This article explores constitutional regulation as it relates to the foundation of economic relations. The proper norms and divisions of the basic laws (constitutions) of states are analyzed from the historical and legal point of view: the authors develop an idea of“economic constitutions.” This conception is based on the ideas of American and European economists and lawyers, including the works of the Nobel-prize winner James Buchanan, the author of the conception of “constitutional economy.” The analysis of the individual, the most obvious norms of “economic constitutions” is made in their evolution. The common regularities of formation, development, and functioning of “economic constitutions” are researched. “Economic constitutions” are considered as the immanent legal expression of material conditions of life of communities. The research is based on the criteria of the correspondence of “economic constitutions” with the demands of social economic development of state organized communities. The genesis of “economic constitutions” of the USA, France, Germany and other states, for example, Latin American states are researched. Special attention is paid to “economic constitutions” of socialist and postsocialist states, especially to the “economic constitution” of the Russian Federation. The peculiarities in the development of the newest “economic constitutions” based on the basic laws of Finland and Switzerland are revealed. The authors develop an idea that “economic constitutions” are not limited to the questions of the influence of a state on an economy and of the determination of the borders of state regulation. Economic rights and freedoms, questions of interrelations of labor and capital, financial system, taxation, etc. are considered as the components of “economic constitutions.” Taken into account is that modern international standards are refused from the secondary role of the social economic rights of mankind. The conclusion is made about the interrelationship of the progress of “economic constitutions” and socialeconomic rights in the information society that are able to ensure the fundamentally new level of a direct democracy in the management of a state.
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Żbikowski, Wawrzyniec. "Property in some European Constitutions." Przegląd Prawniczy Uniwersytetu im. Adama Mickiewicza 4 (December 1, 2015): 117. http://dx.doi.org/10.14746/ppuam.2014.4.13.
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Jeremy Smith. "European constitutions, laws and austerity." Socialist Lawyer, no. 64 (2013): 18. http://dx.doi.org/10.13169/socialistlawyer.64.0018.
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Stefanovski, Mirjana. "Radivoje Milojkovic’s 1867 constitution draft." Zbornik Matice srpske za drustvene nauke, no. 138 (2012): 1–16. http://dx.doi.org/10.2298/zmsdn1238001s.
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As an authoritative work of an excellently educated writer well acquainted with constitutional theory and foreign constitutional solutions, Milojkovic?s draft constitution is also a product of a serious political reasoning. That draft deserves a particular and very important role in the nineteenth century constitutional history of Serbia. It is an evidence of the character of constitutional transformation prepared during the last years of Prince Mihailo?s reign. Taken for the specimen during the enacting of Regent Constitution of 1869, which followed it in its basic concept, composition of constitutional solutions and framing of more important institutions, that draft determined adoption of the model of constitutional monarchy in Serbia. By catching sight of the Saxony?s Constitution of 1831, it transfers basic German constitutional model, supplemented by taking into consideration other European constitutions. Its distinction is an attempt to adapt foreign model mostly to particular circumstances of the country and to implement harmoniously new institutions in accordance to the Serbian constitutional tradition.
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Rausch, Fabian. "«Constitutional Fever»? Constitutional Integration in Post-Revolutionary France, Great Britain and Germany, 1814–c.1835." Journal of Modern European History 15, no. 2 (May 2017): 221–42. http://dx.doi.org/10.17104/1611-8944-2017-2-221.
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«Constitutional Fever»? Constitutional Integration in Post-Revolutionary France, Great Britain and Germany, 1814–c.1835 This article proposes a comparative perspective on the role of constitutions in European political cultures from 1814 to c.1835. Through its analysis of constitutions first as a means to legitimising post-revolutionary monarchies, and secondly as a means to integrating the divided societies in France, Great Britain as well as the German states, this article suggests two major results: 1) Constitutions were a central instrument that was imagined by post-revolutionary European societies in order to open up an «evolutionary» path to political progress and thereby finally «end» or «prevent» further revolutionary changes. 2) The major challenges to constitutional integration were posed by the emergence of competing political groups that often demanded a strengthening of certain parts of the constitutions or their further reform. The problems, which were faced by almost all political actors regarding the acceptance of these new imperatives of party politics and the different constitutional «solutions» that they had developed to meet these challenges, provide explanations for the different constitutional paths that were taken by Great Britain, the German states and France during the early 1830s. In Great Britain, a common constitutionalist language enabled a precarious understanding amongst the competing groups, whereas anti-pluralist constitutional conceptions led to constitutional instability in France and even damaged the very idea of constitutional integration in Germany thus benefitting a «unification first»-approach in the German states.
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Aláez Corral, Benito. "Soberanía estatal, supremacía constitucional e integración europea a la luz de la jurisprudencia del Tribunal Constitucional federal alemán." Teoría y Realidad Constitucional, no. 30 (June 1, 2012): 359. http://dx.doi.org/10.5944/trc.30.2012.7012.
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A través del análisis de la más reciente jurisprudencia del Bundesverfassungsgericht sobre el control de constitucionalidad del proceso de integración europea, se revisan, desde una perspectiva formalista y estrictamente jurídica, los conceptos de soberanía, supremacía e identidad democrática constitucional, que aparecen habitualmente comprometidos en los conflictos entre la Constitución nacional y el derecho de la Unión Europea. Estos conflictos ponen de relieve una tensión entre pretensiones políticas de avance en el proceso de integración y límites jurídicos, que solo se puede resolver satisfactoriamente para mantener la diferenciación funcional alcanzada por el Derecho desde la perspectiva de una concepción monista de la validez del sistema jurídico como un todo, en el que aún hay que ubicar la supremacía y, por tanto, la competencia sobre las competencias, en la Constitución nacional, en cuya disposición quedan tanto el poder constituyente como el poder de control de constitucionalidad.The article deals from a legal formalism perspective with the concepts of sovereignty, legal supremacy and constitutional democratic identity throughout the analysis of the most recent case-law of the German Federal Constitutional Court on the constitutional review of the european integration process. The conflicts that may arise between the Member State’s Constitutions and the European Union Law show the existing tension between european integration politics and national constitutional law regarding the implementation of the constitutional substantive limitations to the european integration process. This tension can only be relaxed by interpreting the legal system’s validity as a whole from a monist point of view that helps keeping its achieved functional differenciation and that still requires to place supremacy, and therefore the so called competence-competence power, within the national Member State’s Constitution that grants a constituent power to stop or undo the States’s participation in the European Intergration and a constitutional review power to review this process form the point of view of its constitutional limitations.
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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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Šelih, Alenka. "Minor offences as a constitutional category." Glasnik Advokatske komore Vojvodine 78, no. 9 (2006): 139–49. http://dx.doi.org/10.5937/gakv0604139s.
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Slovenian Constitution, like many constitutions of other countries does not define minor offence as a punishable act or breach of constitutional provisions. Administrative system and system of administrative justice can never guarantee such impartiality as judicial system. Repressive role of the administrative authorities is differently regulated in the contemporary European legislation. From the constitutional point of view, the main issue related to the minor offences is whether it is legally justifiable that administrative authorities have repressive function. The new Slovenian legal system insists on broad competences of the specialized administrative bodies provided that protection before the court is guaranteed.
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Patlachuk, Vasyl. "Comparative analysis of quantitative indicators of Polish Constitutions." Legal Ukraine, no. 10 (November 27, 2020): 34–41. http://dx.doi.org/10.37749/2308-9636-2020-10(214)-6.
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The process of development of Polish constitutionalism is considered in the work. The first legal act, which had the features of the Constitution were the Articles of King Henry of Valois. The reason for preparing this document was the need to conclude an agreement between the heir to the French throne and the Polish nobility, who wanted to preserve their rights and freedoms. The content of this document was influenced by the Great Charter of Freedoms «Magna Garta» of 1215, which reflected the mechanism of limiting state power through the establishment of material and procedural requirements for its implementation. In order to conduct a comparative analysis of the Constitutions adopted in Poland, the method of quantitative indicators proposed by O. L. Kopylenko and B. V. Kindyuk was used, which calculated the number of signs in different articles, chapters, sections, parts of regulations. According to this methodology, the Articles focused on the work of the Seimas – 17%, military issues – 6.7%, the judiciary – 5.6%. In jurisprudence, it is common to distinguish four main stages of the formation of constitutionalism: I generation – the end of the XVIII century. — the beginning of the XIX century; II generation — the period after the First World War; III generation — the stage after the end of the Second World War; Generation IV – the time after the collapse of the USSR. Based on this classification, the Polish Constitutions belong to the first generation: the Constitution of May 3, 1791; Constitution of the Duchy of Warsaw of 1807; Constitution of the Kingdom of Poland in 1815. The Constitutions of the first generation include: the Constitution of May 3, 1791; Constitution of 1807; Constitution of the Kingdom of Poland in 1815. The constitutions of the second generation were adopted in the period after the end of the First World War, they reflected the processes of democratization of social and democratic life of countries and enshrined a significant amount of socio-economic human rights. Based on this classification, this group includes: the Constitution of the Polish People’s Republic of 1919; Constitution of the Republic of Poland of 1921; Constitution of the Republic of Poland of 1935. The constitutions of the third generation were adopted in the period after the end of the Second World War, and their content reflected the doctrine of the liberal model. Formally, this group included the Constitution of the Polish People’s Republic of 1952, but it was adopted during the Soviet occupation and introduced the Stalinist model of constitutional relations in the country. Generations of the IV generation were adopted after the collapse of the Soviet empire and reflected a new stage of state formation. In Poland, such a constitutional act was the 1997 Constitution of the Republic of Poland, which was to ensure the transition from a socialist model to a market democratic state governed by the rule of law, the stabilization of national statehood and the proclamation of accession to the European Union. The next stage of the study is a comparative analysis of the quantitative indicators of the Polish Constitutions, which showed that the total number of signs during this historical period varied from the minimum in the Articles of Heinrich Valois — 14 640 zn. to the maximum — 89 524 zn. in the Constitution of the Republic of Poland in 1997. An important indicator of the structure of constitutional acts is the number of articles (articles), which varied in a fairly wide range from 12 in the Constitution of 1791 to 243 in the Constitution of the Republic of Poland in 1997. Key words: Polish constitutionalism, quantitative indicators, comparative analysis, Articles by Heinrich Valois, total number of characters.
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de Raadt, Jasper. "Contestable constitutions: Ambiguity, conflict, and change in East Central European dual executive systems." Communist and Post-Communist Studies 42, no. 1 (March 1, 2009): 83–101. http://dx.doi.org/10.1016/j.postcomstud.2009.02.003.
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This article investigates how ambiguous constitutional design affected president–cabinet relations and constitutional change in post-communist Poland and Hungary. Constitutional provisions related to the prerogatives of presidents and governments were frequently subject to political conflict during the 1990s. The power struggle in the two cases developed and consolidated along two distinct pathways. In Poland, failed attempts to modify the constitution initially stirred up and extended intra-executive conflicts. With the adoption of a new constitution in 1997 the struggle over power between president and council of ministers was finally settled. In Hungary constitutional court rulings were instrumental in the settlement of president–cabinet conflicts.
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Colley, Linda. "Empires of Writing: Britain, America and Constitutions, 1776–1848." Law and History Review 32, no. 2 (April 3, 2014): 237–66. http://dx.doi.org/10.1017/s0738248013000801.
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Approximately 50 years ago, R. R. Palmer published his two volume masterworkThe Age of the Democratic Revolution. Designed as a “comparative constitutional history of Western civilization,” it charted the struggles after 1776 over ideas of popular sovereignty and civil and religious freedoms, and the spreading conviction that, instead of being confined to “any established, privileged, closed, or self-recruiting groups of men,” government might be rendered simple, accountable and broadly based. Understandably, Palmer placed great emphasis on the contagion of new-style constitutions. Between 1776 and 1780, eleven onetime American colonies drafted state constitutions. These went on to inform the provisions of the United States Constitution adopted in 1787, which in turn influenced the four Revolutionary French constitutions of the 1790s, and helped to inspire new constitutions in Haiti, Poland, the Netherlands, Switzerland, and elsewhere. By 1820, according to one calculation, more than sixty new constitutions had been attempted within Continental Europe alone, and this is probably an underestimate. At least a further eighty constitutions were implemented between 1820 and 1850, many of them in Latin America. The spread of written constitutions proved in time almost unstoppable, and Palmer left his readers in no doubt that this outcome could be traced back to the Revolution of 1789, and still more to the Revolution of 1776. Despite resistance by entrenched elites, and especially from Britain, “the greatest single champion of the European counter-revolution,” a belief was in being by 1800, Palmer argued, that “democracy was a matter of concern to the world as a whole, that it was a thing of the future, [and] that while it was blocked in other countries the United States should be its refuge.”
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Golia, Angelo Jr, Laura Hering, Carolyn Moser, and Tom Sparks. "Constitutions and Contagion – European Constitutional Systems and the COVID-19 Pandemic." Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law 81, no. 1 (2021): 147–234. http://dx.doi.org/10.17104/0044-2348-2021-1-147.
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The COVID-19 pandemic has posed an unprecedented challenge, with governments resorting to different legal strategies to respond to the health emergency. This article offers a cross-cuting comparative analysis of measures taken during first six months of the pandemic (the “first wave”) in four European jurisdictions with significantly different constitutional settlements – namely France, Germany, Italy, and the United Kingdom. It explores the influence of specific constitutional features on the legal responses to the pandemic and how, in turn, these responses have the potential to reconfigure the institutional frameworks in place. The inquiry, which unfolds along the analytical categories of (i) legal basis, (ii) horizontal and (iii) vertical allocation of power, and (iv) the role of the judiciary, shows that both constitutional contexts and legal traditions play a significant role in pandemic times and are, moreover, likely to continue shaping post-pandemic governance patterns.
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Craig, Paul. "Constitutions, Constitutionalism, and the European Union." European Law Journal 7, no. 2 (June 2001): 125–50. http://dx.doi.org/10.1111/1468-0386.00124.
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Barber, NW. "The Constitution, The State and the European Union." Cambridge Yearbook of European Legal Studies 8 (2006): 37–58. http://dx.doi.org/10.5235/152888712802731188.
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Is the european Union a state? Does it possess a constitution? And, accompanying these conundrums, if the Union lacks these characteristics, should we seek to confer them on it? There are some questions which are easier to answer than to understand, and questions about the statehood and constitution of the Union are of this nature. Pragmatic scholars have tended to dispose of such matters briskly; confident that their answers were correct, even if unsure of the basis for their confidence. The decision to entitle the product of the European Convention a ‘constitution’ has given these questions new significance. A small portion, at the very least, of the confused debate surrounding the Draft Constitution has been caused by the murky relationship between constitutions and states, and the implications that flow from statehood.
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Barber, NW. "The Constitution, The State and the European Union." Cambridge Yearbook of European Legal Studies 8 (2006): 37–58. http://dx.doi.org/10.1017/s1528887000004651.
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Is the european Union a state? Does it possess a constitution? And, accompanying these conundrums, if the Union lacks these characteristics, should we seek to confer them on it? There are some questions which are easier to answer than to understand, and questions about the statehood and constitution of the Union are of this nature. Pragmatic scholars have tended to dispose of such matters briskly; confident that their answers were correct, even if unsure of the basis for their confidence. The decision to entitle the product of the European Convention a ‘constitution’ has given these questions new significance. A small portion, at the very least, of the confused debate surrounding the Draft Constitution has been caused by the murky relationship between constitutions and states, and the implications that flow from statehood.
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Kneucker, Raoul F. "Gott über der, in der, unter der Verfassung?" Zeitschrift für Evangelische Ethik 48, no. 1 (February 1, 2004): 278–90. http://dx.doi.org/10.14315/zee-2004-0137.
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Abstract Whether in a new Austrian constitution a preamble, with or without reference to God I with or without reference to the religious, in particular Christian legacies, should precede the normative text, is a question that is discussed from a historical and constitutional point of view, and answered negatively: European constitutions since the Enlightenment transform the »subjects«, who would not have any other appeal than to God, into »citizens« who are protected by human rights as constitutional law; citizens are the origin and the goal of all political activities. Their participation in shaping the state's policies is based on their own concience only, even if their concience is determined by religious beliefs
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Hall, M., and T. Young. "Recent Constitutional Developments in Mozambique." Journal of African Law 35, no. 1-2 (1991): 102–15. http://dx.doi.org/10.1017/s002185530000838x.
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Constitutions remain a puzzle. They are not conscious falsehoods, yet they are clearly not in any simple sense “true”. Nor are they a matter of self-deception on the part of their drafters, being as much intentionally aspirational or programmatic as regulatory. There is some virtue in Finer's characterization of them as “autobiographical” but even this becomes problematic when we speak of constitutions in the ex-colonial world which are often documents more easily made sense of in the context of other constitutional documents than the realities of the polities they supposedly regulate. All these issues are brought into very sharp focus by the experience of a country such as Mozambique, which in its short history since independence in 1975 has adopted two quite different societal projects in the form (amongst other things) of constitutional documents. The differences between these two projects are obvious and are commented on extensively in what follows. The categories utilized in both, it may be noted, are rooted entirely in European political and intellectual experience and, arguably, what is striking about the liberal and socialist options that they embody is not so much their (highly advertized) differences but what they have in common, including a profound intolerance and a determination to remake the world in their own image. Seen in this way the study of constitutions and constitution-making have interesting things to tell us about the processes of Westernization of our world.Mozambique's new constitution came into force on 30 November, 1990, replacing the Independence Constitution of 25 June, 1975. It eliminated the leading role of the Frelimo party, introduced multi-party politics, and changed the official name of the country from the People's Republic of Mozambique to the Republic of Mozambique.
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van Biezen, Ingrid, and Gabriela Borz. "Models of party democracy: patterns of party regulation in post-war European constitutions." European Political Science Review 4, no. 3 (January 20, 2012): 327–59. http://dx.doi.org/10.1017/s1755773911000294.
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This article investigates the ways in which political parties are codified in modern democratic constitutions, providing a unique cross-sectional and longitudinal overview of the patterns of party constitutionalization in post-war Europe. Although the constitutions of western liberal democracies traditionally have paid little attention to the role of parties, evidence suggests that in contemporary democracies, both old and new, they are increasingly accorded a formal constitutional status. Little is known, however, about the substantive content of their constitutional position or about the normative connotations of their constitutional codification. In this article, we demonstrate that there is a clear correlation between the nature and the intensity of party constitutionalization and the newness and historical experience of democracy and that, with time, the constitutional regulation of the extra-parliamentary organization and the parties’ rights and duties has gained in importance at the expense of their parliamentary and electoral roles. The analysis furthermore suggests that three distinct models of party constitutionalization can be identified – Defending Democracy, Parties in Public Office, and Parties as Public Utilities – each of which is related to a particular conception of party democracy.
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Bast, Jürgen. "The Constitutional Treaty as a Reflexive Constitution." German Law Journal 6, no. 11 (November 1, 2005): 1433–52. http://dx.doi.org/10.1017/s2071832200014425.
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The “Treaty establishing a Constitution for Europe” elicits divergent scholarly responses. An apologetic view holds that it is the best of all possible constitutions, given the current constellations of political forces. Such a viewpoint is countered by a mixed choir of critics for whom the document is simply another treaty, a “nostalgic project,” or a merely “semantic constitution.” Some even believe that the recourse to constitutional rhetoric endangers the rational substance of the European status quo; others fear that this very conceptuality could be damaged. The present chapter endeavors to find a third approach. It offers a critical stance as regards the unfortunate, phraseological, sometimes even ideological language of the Constitutional Treaty. Simultaneously, the constitutional text is taken seriously in its normative statements. This approach aims to reconstruct the document from a point of view which depicts it, despite its contradictions, as a project with a rightful place in the tradition of Western constitutionalism.
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Rabkin, Jeremy. "Worlds Apart on International Justice." Leiden Journal of International Law 15, no. 4 (December 2002): 835–57. http://dx.doi.org/10.1017/s0922156502000377.
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Differing strategic priorities are only the beginning of the dispute over the International Criminal Court. Americans will not abandon their traditional constitution, as submission to the ICC would require. European states have already subordinated their national constitutions to a German-dominated federation. Americans do not accept international monitors in fighting against evil. Europeans are drawn to relativizing abstractions. For Germans, the ICC promises to “overcome the past,” by licensing German judges to try Americans and Israelis for war crimes. Europeans may feel obliged to fall in step with this latest German project. The US still has the moral self-confidence to resist it.
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Gutnyk, Vitalii, Ivan Bratsuk, Stepan Burak, and Antonina Zubareva. "The concept of constitutional pluralism as the fundamental basis for the development of the European Union legal order." Revista de la Universidad del Zulia 12, no. 34 (September 2, 2021): 361–78. http://dx.doi.org/10.46925//rdluz.34.21.
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The objective of this article is to analyze the concept of constitutional pluralism as a methodological basis for the construction of the legal system of the European Union. In particular, attention is paid to investigating the particularities of the interaction and operation of the different constitutional legal systems within the legal sphere of the European Union, studying the constitutional collisions derived from the interaction of European Union law and the law national of the Member States. Dialectical, comparative legal, historical, systemic-structural and formal dogmatic methods were used in the research. The article concluded that the national constitutional courts of the Member States of the European Union can give priority to their constitutional rules only if those rules are clear and reflect substantial constitutional obligations. However, in any case, in order to maintain the coherence of the legislation of the European Union and the national legislation of the Member States, it is necessary to amend the national Constitutions of the Member States of the European Union.
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Kyrychenko, Yuriy, and Hanna Davlyetova. "Theoretical-legal aspects of constitutional regulation of the right to freedom of opinion and religion in Ukraine and the countries of continental Europe." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 2, no. 2 (June 3, 2020): 15–20. http://dx.doi.org/10.31733/2078-3566-2020-2-15-20.
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The article explores the constitutional practice of normative regulation of the right to freedom of thought and religion, enshrined in Art. 35 of the Constitution of Ukraine and in similar norms of the constitutions of the states of continental Europe. The necessity to state the stated norm in the new version is substantiated. It is determined that the right to freedom of worldview and religion, which is enshrined in Art. 35 of the Constitution of Ukraine, relates to civil rights of man and citizen and consists of three basic elements: freedom of thought, freedom of conscience and freedom of religion. This right includes the freedom to profess any religion or not to practice any religion, to freely send religious cults and rituals, as well as to conduct religious activities. It is noted that in the states of continental Europe the constitutional and legal regulation of the right to freedom of opinion and religion is implemented differently. Thus, in the constitutions of Andorra, Bulgaria, Bosnia and Herzegovina, Armenia, Georgia, Estonia, Lithuania, Macedonia, Romania, San Ma-rino, Serbia, Czech Republic and Montenegro, the analyzed law is enshrined along with other human rights. In other constitutions of European states, the law under study is formulated in a separate article. It is stated that the constitutions of European states use unequal verbal designations of this right. In particular, such terminological expressions as "freedom of conscience and religion", "freedom of cults", "freedom of conscience, religion and other beliefs", "freedom of conscience and religion", "freedom of conscience", "freedom of religion and worship", " freedom of religion ”,“ freedom of choice of religion ”,“ freedom of conscience, religion and worship ”,“ freedom of religion and conscience ”,“ freedom of religious beliefs ”, which differ but have much in common. The expediency of deleting the term “freedom of world outlook” from Part 1 of Art. 35 of the Constitution of Ukraine and the consolidation of the term "freedom of conscience", which in its content, first, covers a broad sphere of spiritual, world-view of human being, and second, acts as the freedom of choice and assertion of the individual in the system of religious coordinates. It is proposed taking into account the European experience of constitutional and legal regulation of the right to freedom of opinion and religion of the provision of Art. 35 of the Constitution of Ukraine shall be read as follows: “Everyone has the right to freedom of conscience and religion. This right includes the freedom to profess any religion or not to practice any religion, to freely send religious or ritual rites alone or collec-tively, to conduct religious activities. The exercise of this right may be restricted by law only in the interests of public order, the health and morals of the population, or the protection of the rights and freedoms of others. Churches and religious organizations in Ukraine are separated from the state and the state education system from the church. No religion can be recognized as binding by the state. Churches and religious organizations are equal before the law. It is forbidden to compel a person to choose and profess any religion or belief, to participate in re-ligious and ritual ceremonies or activities of a religious organization and to receive religious education.”
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Mutiara, Upik, and Romi Maulana. "PERLINDUNGAN DATA PRIBADI SEBAGAI BAGIAN DARI HAK ASASI MANUSIA ATAS PERLINDUNGAN DIRI PRIBADI." Indonesian Journal of Law and Policy Studies 1, no. 1 (May 31, 2020): 42. http://dx.doi.org/10.31000/ijlp.v1i1.2648.
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Protection of personal data as closely related to the protection of personal and private rights. Indonesia does not yet have legislation that specifically regulates the protection of personal data. then the problem that the author raises is: the comparison of the right to personal protection as part of human rights in Indonesia with the constitution in other countries and the concept of comparing the protection of personal data as a manifestation of the human rights of personal protection in Indonesia and other countries. related to the protection of personal rights in Indonesia is a state constitutional obligation regulated in the 1945 Constitution of the Republic of Indonesia Article 28G Paragraph (1). The constitutions of other countries such as in several Asian, African, and European countries as mentioned above have explicitly regulated and mentioned the protection of guarantees and personal rights or privacy rights of their citizens. while in Indonesia such as Saudi Arabia and Madagascar it does not explicitly mention anything about the right of privacy in their constitution. it can be concluded that the concept of personal data protection can be found in international and regional instruments such as the European Union Data Protection Directive, the European Union Data Protection Convention, and the OECD Guidelines.
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Cartier, Emmanuel. "Judicial Independence – French and European Perspectives." osteuropa recht 64, no. 4 (2018): 570–82. http://dx.doi.org/10.5771/0030-6444-2018-4-570.
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Judicial independence within the framework of the rule of law is a broad, complex and controversial subject, which is especially true of France, because of the country’s particular attitude to justice since the French Revolution, and even before this critical and fundamental period. The first part of this article deals, on a broad constitutional scale, with the configuration of judicial independence, its guarantees (material and organic) and its interaction with the rule of law in the constitutions of the member states of the EU. The main purpose is to draw an objective map of the situation from a pure formal and textual (and therefore a slightly partial and narrow) view point. The second part of this contribution considers the specificity of the independence of the French judiciary in relation to the French constitutional principle of the rule of law, which is called the “Etat de Droite” in the French legal tradition.
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Çeku, Nur, and Haxhi Xhemajli. "Constitutional principles and their impact on the establishing of constitutional order and rule of law in Kosovo." Zbornik radova Pravnog fakulteta u Splitu 57, no. 4 (October 29, 2020): 1079–96. http://dx.doi.org/10.31141/zrpfs.2020.57.138.1079.
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Considered as a progressive document based on the models of the Western constitutions, the Constitution of the Republic of Kosovo has established the legal basis for a functional statethat respects rights and fundamental freedoms while guaranteeing the rule of law. In its provisions, the Constitution has laid down basic principles which serve as the foundation for Kosovo’s constitutional order. In this regard, these constitutional principles have been further enshrined in the provisions of laws that emanate from the Constitution, and also have been established in the institutional mechanisms for its appropriate application. In addition, what played a prominent role in defining these principles was the impact of the Constitutional Court’s case-law. Case-law has reaffirmed in many instances the tremendous importance of constitutional principles in enhancing the rule of law, protecting the rights of minority groups and other members of Kosovo’s society, and the right to freedom of belief and secularism by implementing the most modern European standards in human protection. Hence, this paper analyzess the impact that constitutional principles have had on defining the structure of the state, guaranteeing the rule of law, protection of human rights and establishing Kosovo as a multi-ethnic society. Likewise, it examines the case-law of Kosovo’s Constitutional Court by providing some of the most prominent cases.
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Keil, Soeren, and Dragana Nikolić. "The Europeanization of National Constitutions in South East Europe." Southeastern Europe 38, no. 1 (April 10, 2014): 87–111. http://dx.doi.org/10.1163/18763332-03801004.
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The Europeanization of the Western Balkans requires changes of national constitutions to adjust the countries’ supreme laws in accordance with “European Standards.” This article examines the causes, dynamics, and models of these changes in Croatia, Serbia, and Bosnia and Herzegovina based on the experiences of other EU Member States. This comparative analysis reveals not only similarities and differences in democratic transition between former and future Member States, but it also sheds light on the constitutional dimension of the EU Member State Building process. While the EU does not condition membership upon constitutional changes that go beyond the Copenhagen Criteria, it can be witnessed that the implementation of the Acquis Communautaire will lead to far-reaching changes in the political, social and economic systems of future Member States. Consequently, the European Union becomes an active counselor and participant in the process of constitutional evolution in the region.
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Shamrai, V., and I. Sliusarenko. "TRANSFORMATION OF STATE SOVEREIGNTY IN MODERN CONDITIONS OF CONSTITUTIONAL LAW DEVELOPMENT." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 116 (2021): 62–65. http://dx.doi.org/10.17721/1728-2195/2021/1.116-13.
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The article deals with theoretical and methodological approaches to the essence of the state sovereignty in modern conditions of legal globalization and European interstate integration from the point of view of searching for effective means of complex legal modernization of society. The author analyzes the legal content of this category, shows its specific features, reveals the importance of the processes of improving the basic elements of social relations and constitutional modernization of society and the state in modern conditions of legal globalization and European interstate integration. The need for further improvement of constitutional and legal regulation of the most important social relations as a key direction of legal modernization of social relations in a modern democratic state based on the fundamental foundations of European constitutionalism is underlined. At the same time, at the doctrinal level, there is no doubt that the Constitution of Ukraine has a certain degree of almost all the well-known features of the world, in particular, the European, constitutions. Summarizing the above, we consider it necessary to highlight the following main formal and legal features of the Constitution of Ukraine, which is the fundamental ground for modern constitutional and legal reform in our state: 1) a special subject accepting (people's character); 2) the fundamental (institutional) nature; 3) stability is coupled with dynamism; 4) reality; 5) formal and legal properties: the Constitution – the Fundamental Law of Ukraine; its highest legal force; Constitution – the legal base of legislation; A special procedure for making and amending; Special content and structure of the Constitution; Direct effect of its norms. This list is not exhaustive, but in our opinion, it is optimal for defining the main tasks and principles of constitutional and legal reform in the current conditions of legal globalization and European interstate integration. Thus, with the improvement of the Constitution of Ukraine as the main source of constitutional law of Ukraine, it is necessary to focus not only on the modernization of certain institutions that regulate it, but also on the strengthening of its legal properties in general. In other words, the leading role of the Constitution in the system of sources of constitutional law of Ukraine is due to its inherent legal properties, ensuring their effectiveness in society and is a priority task of modern constitutional and legal reform. Thus, under the constitutional and legal reform, in today's conditions of legal globalization and European interstate integration, it is necessary to reform of the sphere of constitutional law directly as a leading national branch of law of Ukraine, the formally-legal improvement and improvement of the constitutional legal material at all its system levels, as provisions, institutions, sub-sectors and industry as a whole. It should also be noted that the subject and object of the branch of constitutional law varies in modern conditions under the influence of a whole range of objective factors of legal and political reality, in particular, it refers to the processes of legal globalization and intergovernmental integration, which, in turn, internally causes the emergence of new branches and subnets of national law, strengthening the internationalization of constitutional law and the constitutionality of international and European law, the adaptation of domestic constitutional laws and to basic European legal standards as a prerequisite quality of the constitutional and legal reform in accordance with objectively existing conditions of society. The need for further improvement of the constitutional and legal regulation of the most important social relations as the most important line of public power in the context of the perception of the European legal system by the national legal system of Ukraine
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Abat Ninet, Antoni. "Kelsen versus Schmitt and the Role of the Sub-National Entities and Minorities in the Appointment of Constitutional Judges in Continental Systems." ICL Journal 14, no. 4 (December 20, 2020): 523–43. http://dx.doi.org/10.1515/icl-2020-0015.
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Abstract In composed and decentralised states, sub-national entities and (ethnic, linguistic, racial) minorities ought to play a determinant role in the process of appointment of constitutional courts justices to obtain a balanced representation in the guardian of the constitution. The necessary appearance of constitutional justice independence can be at stake without a proportionated participation of minorities and sub-national entities in the court. It is not enough to introduce a symbolic presence. The first section of this essay analyses the transcendence and political-legal significance that the system of appointment of constitutional court judges has and its relation to the separation of powers (horizontal and vertical). The second section is a return to the roots, ie the system of appointment the Austrian Constitution of 1920, even that first constitutional court was created in 1919, and Kelsen’s theory on federalism. The third section carries out an analysis from a comparative constitutional law perspective by using as an analytical basis the reports on the composition of the Constitutional Courts of the European Commission for Democracy through Law. The paper ends with a reflection on Schmitt considerations on the Guardians of Constitutions.
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Чиркин, Вениамин, and Vyeniamin CHirkin. "PUBLIC-LEGAL FORM OF THE EUROPEAN UNION." Journal of Foreign Legislation and Comparative Law 1, no. 5 (December 2, 2015): 0. http://dx.doi.org/10.12737/16131.
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This article discusses some of the features of modern international regional associations of states that emerged in the last decades. In such alliances established for the economic, social and cultural integration in order to accelerate economic and social development of member-states, there are sometimes elements of political, public nature, a kind of germ unfinished and non-sovereign power vis-à-vis member states. In the European Union with a high degree of centralization, the boundary elements of its public authority organs include the state powers which, in accordance with the constitutions of the member states have voluntarily handed over to the EU; elements of the public power of its organs include the state authorities which, in accordance with the constitutions of the member states have voluntarily handed over by them to the EU; in the EU there is a possibility of imposing obligations on the member states by taking decisions by a majority of the members of its main institutions (major organs); in the constituent documents of the EU contains some political objectives, and some facts about EU activities are political in nature; on the territory of the EU, in parallel with the law of the member states acted superior, although incomplete (it does not include and cannot include some branches of law) supranational EU law which is created by its organs and without the following: interpellations and ratification such acts by ember states directly apply to natural and legal persons of the member states; the member states by the amendments in the constitutions voluntarily self-restricted some elements of its national sovereignty, but they retain their sovereignty, and the EU, not being a state, state sovereignty has not; in determining the structure of the organs of the EU, their authorities, relationships are widely used approaches the constitutional right, although all of these issues are essential features in the EU; in the EU there are elements of statehood, which naturally: the EU members are states that impose their imprint and the EU. The EU is a public law formation of special kind. Having said that, in determining the form of the EU could be in the categories of politology, science of state and the constitutional right to name the EU regional integrational international governmental (or regional integrational international similar state) public legal formation.
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Kyrychenko, Oleh, and Hanna Davlyetova. "Constitutional regulation of the right to appeal to state authorities and local government bodies." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 4, no. 4 (December 29, 2020): 64–69. http://dx.doi.org/10.31733/2078-3566-2020-4-64-69.
Full textAbstract:
The article examines the constitutional practice of normative regulation of the right to appeal to public authorities and local governments, enshrined in Art. 40 of the Constitution of Ukraine and in similar norms of the constitutions of European states. The necessity of stating the specified norm in the new edition is substantiated. The right to appeal to public authorities and local governments, their officials and officials occupies a special place in the human rights system and is one of the most important organizational and legal forms of public participation in the socio-political life of the country and providing citizens of Ukraine with opportunities to defend their rights. legitimate interests, restoring them in case of violation. The study of the essence of this right gives grounds to state that the appeal by its nature has a dual meaning: first, it is one of the means of protecting human rights and legitimate interests violated by the actions or inaction of public authorities and local governments; secondly, the appeal is a signal of shortcomings in the work of public authorities and local governments. From the content of Art. 40 of the Constitution of Ukraine, it follows that both citizens of Ukraine and persons who are not citizens of Ukraine, but are legally on the territory of Ukraine, and who are marked in the text by the term "all" have constitutional legal personality. By the way, the term "all" is used only in Art. 40 of the Constitution of Ukraine, and therefore it is not clear whether it belongs to the category of subjects of "all people", as enshrined in Art. 21, or to the category of subjects of "all citizens". At the same time, in similar norms of the constitutions of European states, various impersonal terms are used to denote the subject of this right - "everyone", "citizens", "every citizen", "all citizens" and "every person". In connection with the above and in order to unify legal terminology, we believe that in Art. 40 of the Constitution of Ukraine, it would be more appropriate to use, instead of the term «all», the term «eve-ryone», which, in our opinion, covers all categories of subjects of the right to appeal regardless of their legal status and is more in line with European experience in constitutional regulation of the studied law. It should be emphasized that the necessary guarantee of realization of the investigated right is the duty of obligated subjects, ie public authorities, local governments and their officials and officials, to timely and objectively consider the appeal and provide a reasoned response to the merits of the appeal. the term established by the law. A similar provision is enshrined in the constitutions of Azerbaijan, Albania, Belarus, Armenia, Greece, Liechtenstein, Macedonia, Poland, Serbia, Turkey, Croatia, and Montenegro. In this regard, we propose a phrase that is enshrined in Art. 40 of the Constitution of Ukraine: "are obliged to consider the appeal and give a reasoned response within the period prescribed by law" to state in an updated version. In addition, we believe that this article should specify the obligation of these bodies and their officials and officials to take the necessary measures to exercise this right, which will give the subjects of appeal grounds to appeal, including in court , actions or inaction of officials and officials of state bodies and local governments. Therefore, in view of the above and taking into account the European experience in regulating the constitutional right to appeal, we propose Art. 40 of the Constitution of Ukraine to state in new edition: "Everyone has the right to submit individual or collective appeals or to personally address state authorities, local governments and their officials and officials, who are obliged to take the necessary measures and provide a reasoned written response within the period prescribed by law."
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Peers, Steve. "Bosphorus – European Court of Human Rights." European Constitutional Law Review 2, no. 3 (October 2006): 443–55. http://dx.doi.org/10.1017/s1574019606004433.
Full textAbstract:
The position of human rights within the European Union legal order has been an issue since the early years of the original European Economic Community. For many years, the development of human rights as general principles of Community law was characterized by dialogue and debate between the Communities' Court of Justice on the one hand, and certain national constitutional courts on the other, as regards the protection of human rights recognized in national constitutions by the Community legal order. But in recent years, there has been a parallel dialogue between the Court of Justice and the European Court of Human Rights, as regards the Community legal order's protection of the rights guaranteed by the European Convention of Human Rights (ECHR).