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Journal articles on the topic 'Views on constitutional law'
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1
Barak, Aharon. "Unconstitutional Constitutional Amendments." Israel Law Review 44, no. 3 (2011): 321–41. http://dx.doi.org/10.1017/s0021223700018082.
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This paper deals with the question of an amendment to the constitution that has been made pursuant to the formal requirements of the constitution but deviates from its basic structure. The paper explores different views regarding this question in comparative law. It also examines the applicability ofthe doctrine of unconstitutional constitutional amendments in Israel.
2
Gageler, Stephen. "James Bryce and the Australian Constitution." Federal Law Review 43, no. 2 (June 2015): 177–200. http://dx.doi.org/10.22145/flr.43.2.1.
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James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.
3
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.
4
Larkin, Dani, and Kate Galloway. "Constitutionally entrenched Voice to Parliament: Representation and good governance." Alternative Law Journal 46, no. 3 (May 30, 2021): 193–98. http://dx.doi.org/10.1177/1037969x211019807.
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In 2017, the Uluru Statement from the Heart provided a consensus position on constitutional reform derived from Regional Dialogues drawing on experiences, views and aspirations of First Nations people. Among its recommendations is a constitutionally entrenched Voice to Parliament. While the government supports a watered-down Voice, this article identifies the key features of constitutional enshrinement that would enhance Australia’s institutions of governance. It focuses on its capacity for representation and its contribution to good governance and articulates the imperative for Voice to be an institution under the Australian Constitution, outlining the risks of settling for a legislated body alone.
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Emery, Robert. "Church and State in the Early Republic: The Covenanters' Radical Critique." Journal of Law and Religion 25, no. 2 (2009): 487–501. http://dx.doi.org/10.1017/s0748081400001223.
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Constitutional scholars pay particular attention to the historical context of the First Amendment, to the relationship between the state and religion in the early republic. Missing from this academic examination of church-state history, however, is any serious consideration of the views of the Reformed Presbyterian Church, popularly known as the Covenanters, views that challenged the fundamental presuppositions of the United States Constitution, both as established in the early national period and as applied today. A typical modern American, citizen or scholar, cannot help but be startled by a coherent, closely reasoned body of doctrine that trenchantly criticizes such fundamental American assumptions as government by consent of the governed or the free exercise of religion. Covenanter criticism of the church-state relations not only presents a model of church and state radically different from today's conventional American theories, but also throws light on the American paradigm as it existed during its developmental period. Reformed Presbyterians of the early republic criticized the federal Constitution from a world view so radically different from that of the founders that their criticisms highlight aspects of the generally accepted constitutional regime in ways that conventional constitutional scholars have scarcely considered.
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Baranger, Denis. "The Language of Eternity: Judicial Review of the Amending Power in France (or the Absence Thereof)." Israel Law Review 44, no. 3 (2011): 389–428. http://dx.doi.org/10.1017/s0021223700018112.
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In several rulings from 1962, 1992, and 2003, the French Constitutional Court (Conseil constitutionnel) has denied jurisdiction over constitutional amendments. This article shows that this solution can only be understood in the light of the doctrinal background that provides its intellectual justification. While refusing to judicially review constitutional amendments, the Constitutional Court is in fact deeply involved in the ongoing process of altering the Constitution. Also, while the quasi-official doctrinal analysis insists on the absence of material limits to the amendment of the Constitution, and on the absence of any “supra-constitutional” rules, an analysis of the language used by the Court in these rulings offers reasons to diverge from this view. While the Court has refused to review constitutional amendments, it has done so in a way that comes very close to the language used by those courts that stated that such amendments were justiciable. Far from adhering to a mere policy of neutrality and self-restraint, the Constitutional Court speaks a “language of eternity” with a rich substantive content.
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Romeo, Graziella. "The Conceptualization of Constitutional Supremacy: Global Discourse and Legal Tradition." German Law Journal 21, no. 5 (July 2020): 904–23. http://dx.doi.org/10.1017/glj.2020.50.
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AbstractThis Article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated, and b) the common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this Article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualized. It then examines the embryonic conceptualization of constitutional supremacy in the British legal culture by addressing the “constitutional statutes.” It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions that are affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, this Article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies.
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Peabody, Bruce G. "Congressional Constitutional Interpretation and the Courts: A Preliminary Inquiry into Legislative Attitudes, 1959–2001." Law & Social Inquiry 29, no. 01 (2004): 127–75. http://dx.doi.org/10.1111/j.1747-4469.2004.tb00332.x.
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Through theoretically informed inquiry into congressional attitudes toward the Constitution and the courts as well as survey research of two modem Congresses, this study considers the prospects and implications of a more salient legislative role in constitutional affairs. By analyzing survey responses from the 86th (1959–61) and 106th (1999–2001) Congresses, and the political context in which these views were formed, this essay explores the legislature's evolving conception of its role and capacities as a constitutional interpreter. Among other findings, Congress demonstrates a persistent and somewhat surprising interest in asserting an independent, distinctive constitutional voice, although it has somewhat conflicted and underdeveloped views about how to achieve this objective. While this essay points to significant barriers to fostering a coherent and forceful congressional presence in constitutional decision making, it also suggests institutional organizations and strategies that may be promising bases for promoting this goal.
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Lerner, Hanna. "Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey." World Politics 65, no. 4 (October 2013): 609–55. http://dx.doi.org/10.1017/s0043887113000208.
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The article addresses the question of what role formal constitutions play in mitigating intense conflicts over the religious character of the state. In contrast to common views in constitutional and political scholarship, it demonstrates that the ideal of liberal constitutionalism is not compatible with the political reality and types of conflicts that characterize religiously divided societies. Analyzing four processes of constitution drafting in which issues of religious law and religious identity were at the heart of the debate—India, Indonesia, Israel, and Turkey—it argues that under deep disagreement over the state's religious character, the drafters adopt either a permissive or a restrictive constitutional approach. While the former implies strategies of constitutional ambiguity, ambivalence, and avoidance in order to allow the political system greater flexibility in future decision making on religion-state relations, the latter approach uses repressive constitutional constraints designed to limit the range of possibilities available to future decision makers. The article further explores the long-term consequences of the two approaches and argues that (1) permissive constitutional arrangements, more than restrictive arrangements, are likely to promote the democratic functioning of future governments; and that (2) permissive constitutional arrangements may facilitate greater freedom of religion, but they are also likely to lead to greater restrictions on freedom from religion, compared with restrictive constitutions.
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Zalewski, Bartosz. "Conceived child as a subject of right to life." Legal Culture 1, no. 2 (December 30, 2019): 46–57. http://dx.doi.org/10.37873/legal.2018.1.2.22.
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The aim of this article is to outline the arguments in favour of acknowledging an unborn child as a subject of constitutional law with the right to life (Article 38 of the Constitution of the Republic of Poland). For this purpose, the article presents an overview of the case law of the Constitutional Tribunal as well as views of legal academics and commentators and judicial decisions concerning the right to life, the concept of subject of law, and the legal position of an unborn child. Furthermore, the article reviews the international law and the case law of international tribunals. Although the Constitutional Tribunal stipulates that every person, including an unborn child, is entitled to legal subjectivity (in the judgement on case No. K 26/96), it may seem that the reasoning in this judgement is still rejected in the literature regarding both constitutional and civil law.
11
Tafani, Ismail, and Renata Tokrri. "Some Reflections on the Constitutional Review in Albania in a Comparison Key." Mediterranean Journal of Social Sciences 12, no. 2 (March 7, 2021): 22. http://dx.doi.org/10.36941/mjss-2021-0009.
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In this study we will try to analyze the foundations of the Constitution as a pillar and as a guarantee for its solidity. The study will also address the need for revision of the constitution as a fundamental element of its existence and continuity. Particular emphasis will be given to the comparison of the constitutions of the most important countries in the world as regards the procedures and limits to the constitutional revision. In this sense, the constitutions of some Balkan Peninsula countries will be analyzed to draw a comparison and analyze the Albanian Constitution as regards the procedure for its revision. The study intends to analyze the procedures for the revision of the Constitution as well as the explicit and implicit limits to these revisions. In the Constitutional revision in Albania in 2016, the role of the Constitutional Court on the control of the constitutional legitimacy of constitutional revision laws was clarified. Formal constitutionality is usually emphasized since the Albanian constitutional reform underlined that the Constitutional Court in Albania could express itself on the constitutionality of the Constitutional revision law only from a formal point of view.
Received: 2 January 2021 / Accepted: 27 February 2021 / Published: 7 March 2021
12
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
13
Himonga, Chuma, Max Taylor, and Anne Pope. "Reflections on Judicial Views of uBuntu." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 5 (May 17, 2017): 372. http://dx.doi.org/10.17159/1727-3781/2013/v16i5a2437.
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Since S v Makwanyane, ubuntu has become an integral part of the constitutional values and principles that inform interpretation of the Bill of Rights and other areas of law. In particular, a restorative justice theme has become evident in the jurisprudence that encompasses customary law, eviction, defamation, and criminal law matters. This contribution explores the scope and content of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape. Two major epochs are highlighted in the development of ubuntu, marked by the constitutional decisions in Makwanyane and PE Municipality respectively. The former carved the central avenue of development for ubuntu, while the latter marked the start of the thematic development of the concept in the direction of restorative justice. Furthermore, the article engages critically with the use of ubuntu, with criticisms levelled against the conceptualisation of ubuntu as a legal notion, ranging from its ambiguity to its redundancy, to perceptions of dichotomies, and issues of exclusion. The paper also questions the manner in which the courts have applied the legal concept of ubuntu uncritically, without reference to African sources to illustrate its meaning in different contexts, and without questioning its compatibility with the Bill of Rights. Finally, it attempts to reveal the connections between ubuntu and the values underlying the Bill of Rights.
14
Górnisiewicz, Arkadiusz. "Dispute over the Guardian of the Constitution. Hans Kelsen, Carl Schmitt and the Weimar Case." Politeja 18, no. 3(72) (June 5, 2021): 193–214. http://dx.doi.org/10.12797/politeja.18.2021.72.10.
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The paper discusses one of the most important debates on the meaning of constitutional adjudication in the 20th century that engaged two eminent legal and political thinkers Hans Kelsen and Carl Schmitt. The paper focuses on the constitutional dispute over the guardianship of the constitution in the final years of Weimar’s Germany and reconstructs the arguments of the two major protagonists in this dispute concerning the Weimar constitution and the fundamental question whether the guardian of the constitution is (or should be) the constitutional court or the president of the Reich. The debate highlights the complexity of the political problems of a democratic state, as well as the intricate relationship between law and state and has retained high level of topicality. The paper also pays attention to the philosophical-political premises that underlined the distinctly different views on the relationship between law and politics in the thought of Hans Kelsen and Carl Schmitt.
15
Ladychenko, Victor. "History of constitutional and legal traditions in the USA." European Historical Studies, no. 4 (2016): 156–60. http://dx.doi.org/10.17721/2524-048x.2016.04.156-160.
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The development of constitutionalism in the United States is described in this article. The distribution of power by the US Constitution in 1787 is analyzed. Certain continuity of law from the time of the American Revolution to this day is noted. Founding fathers views of the value of the constitutional norms in the political development of the United States are shown.
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Butt, Simon. "CONSTITUTIONAL RECOGNITION OF “BELIEFS” IN INDONESIA." Journal of Law and Religion 35, no. 3 (December 2020): 450–73. http://dx.doi.org/10.1017/jlr.2020.39.
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AbstractConstitutionally, Indonesia is a state “based on Almighty God,” but the Constitution does not specify any religions or belief systems. This is left to statute, which establishes six official religions that the state supports and helps administer: Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism. But Indonesia is home to a rich kaleidoscope of other beliefs (kepercayaan), ranging from indigenous practices predating the arrival of many of the official religions to new age spiritual movements. The constitutional status of these beliefs is contentious, and their followers have long complained of government discrimination, primarily in matters of civil registration services, education, and employment. This reinforces the view, propounded by some adherents to official religions, that beliefs are inferior to official religions. This view, in turn, perpetuates the socioeconomic and cultural marginalization of belief-holders. In 2017, Indonesia's Constitutional Court was asked to examine the constitutional status of these beliefs. Its decision appears to constitutionally recognize these beliefs; accordingly, it has been heralded as an advance for religious freedom in Indonesia. Indeed, it has spurred limited administrative reforms to remove discrimination in several parts of Indonesia. But the Court's decision is muddled and inconsistent. It does not clearly establish that beliefs enjoy the same level of constitutional protection as do religions—if they are, in fact, constitutionally protected at all. The likely result is continuing faith-based discrimination and marginalization in Indonesia.
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Bichkov, Іgor. "The Kelsen model of constitutional jurisdiction as the theoretical basis of the European system of constitutional justice." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 131–36. http://dx.doi.org/10.36695/2219-5521.1.2020.25.
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The article is devoted to the study of the content of the model of constitutional jurisdiction proposed by H. Kelsen, which at one time actually became the theoretical basis of the modern European system of constitutional justice. It is stated that the model formulated by a well-known Austrian law theorist not only envisaged instrumental-institutional proposals for the creation of a new public authority, but also embodied the definite concept of common sense of law defined by Kelsen, which was based on the ideas of a hierarchical legal system acts of the Constitution as the law of the highest legal force. It is substantiated that the model proposed by H. Kelsen substantially outstripped the existing legal reality and was used almost in its purest form by most European countries, and in particular was directly reflected in the domestic model of constitutional jurisdiction.
It is noted that, according to Kelsen's concept in a number of papers, in particular in the Judicial Review of Legislation: A Comparative Study of the Austrian and American Constitutions, the constitutionality of legislation can be ensured in two separate ways, both of which were enshrined in the Austrian Constitution of 1920: the responsibility of the body that issued the unconstitutional norm and the non-application of the unconstitutional norm. Non-application of a constitutional rule could be achieved by giving law enforcement authorities the power to review the constitutionality of a rule they must apply in a particular case and refuse to apply it in that particular case, if there is reason to consider such a rule unconstitutional. A similar mechanism has actually been introduced in the United States. The fact that a law enforcement authority recognizes a general rule as unconstitutional and does not apply it in a particular case meant that that authority was empowered to revoke the general rule for a particular case, and only for a specific case, since the general rule as such (normative act) remains applicable and may be applied in other specific cases. The disadvantage of this fuse is that different law enforcement agencies may have differing views on the constitutionality of a law, whereby one authority can apply it as it considers constitutional, while another authority will refuse to apply it because it will see signs of unconstitutionality. The lack of unanimity in deciding whether a law is constitutional, that is, whether a constitution is violated, carries great danger for the authority of the constitution.
In most European countries, it is stated that H. Kelsen's concept was used almost in its purest form, with one exception: the powers to directly protect constitutional rights and freedoms were given to a separate judicial authority. The extension of the appropriate model of judicial constitutional control and the formation of constitutional courts fell in the second half of the twentieth century, when the need to prevent the return of Nazism caused a qualitatively new level of attention to the phenomenon of constitutional justice. The formation of new post-war constitutional-democratic regimes in Germany, Italy, Austria, and later in Spain and Greece, provided for the creation of a mechanism by conferring on the constitutional courts powers to protect constitutional rights and freedoms from usurpation of public power.
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Pérez, Aida Torres. "On Judicial Appointments and Constitutional Adjudication: A Reply to Fernando Muñoz." German Law Journal 14, no. 8 (August 1, 2013): 1209–13. http://dx.doi.org/10.1017/s2071832200002248.
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What do public debates on the appointment of constitutional judges tell us about the view of the law and judicial adjudication? Fernando Muñoz's article focuses on the debates regarding the appointments of Justice Sotomayor to the U.S. Supreme Court and Minister Bertelsen to the Constitutional Court in Chile. According to the author, these debates reflect the tension between two views of the law and judicial adjudication—autonomy and responsiveness—as to how judges should deal with extra-legal considerations in performing their functions. While the autonomy position tries to “defend the substantive values of the law by policing the distinction between the legal and the extra-legal,” the responsiveness position claims that “the law ought to extract its substance from social expectations, needs, and priorities, serving them as a means to an end.” In the author's view, Sotomayor's supporters and Bertelsen's opponents would uphold responsiveness and defend the need of the judiciary to respond to social expectations and needs, whereas Sotomayor's opponents and Bertelsen's supporters would uphold autonomy. The participants on these debates seek to gain hegemony regarding their views on what the law is and how constitutional adjudication should be conducted.
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Eleftheriadis, Pavlos. "Parliamentary Sovereignty and the Constitution." Canadian Journal of Law & Jurisprudence 22, no. 2 (July 2009): 267–90. http://dx.doi.org/10.1017/s0841820900004690.
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The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty as a legal and constitutional doctrine shows that this first impression is false. The nature of the British unwritten constitutional order is entirely similar to the written one prevailing in the United States or Germany. This is because the doctrine of parliamentary sovereignty, contrary to Dicey’s classic view, does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a ‘pouvoir constituent‘. The constitution emerges from the law as the result of moral and political principles that breathe life into our public institutions.
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Madjid, Abdul, Triya Indra Rahmawan, and Mohamad Jainuri. "Indicators of Regulatory Legal Immunity Rights in the Perspective of the Indonesia State Constitution." International Journal of Multicultural and Multireligious Understanding 8, no. 3 (March 8, 2021): 405. http://dx.doi.org/10.18415/ijmmu.v8i3.2480.
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The birth of Perppu 1/2020 as passed into Law 2/2020 presents the pros and cons of views in society. Article 27 of Perppu 1/2020 which regulates state financial policies and financial system stability for handling the Covid-19 pandemic turns out to give privileges to certain officials to be immune from the law. The rule of law universally prioritizes the main principle of equality before the law or everyone is equal before the law and the rule of law. But on the other hand, there is a concept called emergency constitutional law. Emergency law is a law that is deliberately enacted in and for emergencies, namely conditions that are narrow and precarious, very dangerous situations.This research is normative juridical research (normative legal research) which aims to analyze the suitability of the regulation of legal immunity rights with the concept of emergency constitutional law in Indonesia; analyze the impact of legal immunity rights regulation on the protection of citizens' rights; and finding indicators of regulating legal immunity rights by the concept of emergency constitutional law in Indonesia and the 1945 Constitution.
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Himsworth, Chris, and Alan Paterson. "A Supreme Court for the United Kingdom: views from the Northern Kingdom." Legal Studies 24, no. 1-2 (March 2004): 99–118. http://dx.doi.org/10.1111/j.1748-121x.2004.tb00242.x.
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Of the four Consultation Papers produced by the Department for Constitutional Affairs over the summer of 2003, in many ways the most interesting was Constitutional Reform: A Supreme Court for the United Kingdom, not just for what it did say, but also for what it did not. For example, respondents were not asked whether the Government should replace the House of Lords with a Supreme Court or not. That was taken as a given. Yet the omission was all the more curious in the light of the fact, as subsequently became clear, that at least half of the current Law Lords do not favour the introduction of a Supreme Court.
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Rozhkova, Daria Dmitrievna. "Constitution of the Russian Federation within the system of sources of judicial administrative and procedure law." Административное и муниципальное право, no. 6 (June 2020): 31–38. http://dx.doi.org/10.7256/2454-0595.2020.6.33587.
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This article explores the question of sources of judicial administrative procedure law of the Russian Federation. Attention is turned to the special role of the Constitution of the Russian Federation among other sources of this branch of law, since its provisions are basic for the development of judicial administrative procedure in modern Russia. Emphasis is made on the Chapters 2, 3 and 7 of the Constitution of the Russian Federation, the prescriptions of which develop in the Code of Administrative Procedure of the Russian Federation. From the administrative and procedural perspective, the author analyzes the results of the constitutional reform of 2020, which put to the forefront the question on the Constitution as primary source of the Russian public law. The main conclusion the conducted research consists in specification of thesis on the Constitution as a source of judicial administrative procedure law in the provision that the constitutional text views administrative proceedings as equal and sovereign form of legal proceedings alongside other forms, the essence of which lies in hearing administrative cases. At the same time, the Constitution employs the term “administrative procedure legislation” that implies a set of normative legal acts, which serve as the basis for the activity of judicial authorities with regards to hearing administrative cases. The author gives positive assessment to the results of the constitutional reform of 2020, although notice that certain proposals made by the representatives of public legal science were unimplemented by the legislators.
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La Pergola, Antonio, and Patrick del Duca. "Community Law, International Law and the Italian Constitution." American Journal of International Law 79, no. 3 (July 1985): 598–621. http://dx.doi.org/10.2307/2201889.
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For more than 20 years the Italian Constitutional Court and the Court of Justice of the European Communities have disputed the proper relation between Community and national law. In S.p.A. Granital v. Amministrazione finanziaria, the Constitutional Court recently adopted a position consistent with the Community Court’s view of the supremacy of Community law. Italian constitutional law doctrines on international law profoundly affected this development and may in turn be altered as the implications of the Constitutional Court’s view of Community law are worked out.
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Byelov, D. M. "Legal space of the state: certain doctrinal principles." Uzhhorod National University Herald. Series: Law, no. 63 (August 9, 2021): 37–40. http://dx.doi.org/10.24144/2307-3322.2021.63.6.
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The article considers the features of the category "legal space". The author cites the views of scholars engaged in the study of this legal concept. By linking the category of "legal space" to constitutional law, a conclusion is made about space as a constitutional-legal category.
It is indicated that the development and assertion of Ukraine's own path and place in the geopolitical environment, its inclusion in European and world integration processes are inextricably linked with the organization of rule-making and law enforcement activities of public authorities and local governments, which would meet modern trends and international standards. in this area. New trends in the constitutional and legal construction of the country, the formation of civil society institutions, optimization and reform of public administration determine the new conditions for the implementation of state power, a prerequisite for effective operation of which is the unity of the legal space.
It is established that legal space as a constitutional-legal category is a specific functional category of the science of constitutional law, which reflects certain spatial boundaries of the origin and development of any constitutional-legal action, the constitutional process, constitutional norm, state or event. Thus, space is a spatial boundary established by the Constitution, which can overcome itself and be replaced by more progressive in the implementation of constitutional and legal reform. They also simultaneously form a certain boundary, beyond which begin to develop constitutional relations.
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Angelo, AH. "Essays on the Constitution." Victoria University of Wellington Law Review 26, no. 3 (September 2, 1996): 595. http://dx.doi.org/10.26686/vuwlr.v26i3.6161.
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This article is a book review of Philip A Joseph Essays on the Constitution (Brooker's, Wellington, 1995) pp xxx 411, price $110 (+GST) (hardcover), $57.78 (+GST) (softcover). The book contains 15 essays which cover a unique record of New Zealand's constitutional and political life. Angelo argues that most of the essays are provocative, present new views, and suggest areas for reform. Angelo does lament the lack of pre-Treaty New Zealand constitutional law, and also notes that some of the essays are purely descriptive in nature. Nonetheless, Angelo concludes that the book is compendious and essential reading for those with a special interest in New Zealand political life – constitutional lawyers, political scientists, politicians and public servants alike.
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Guzeeva, O. S. "The Subjects of Constitutionalization of Criminal Law." Pravosudie / Justice 2, no. 2 (June 11, 2020): 170–94. http://dx.doi.org/10.37399/issn2686-9241.2020.2.170-194.
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Introduction. The constitutionalization of criminal law, assuming the proper implementation in the theory and practice of criminal law regulation of constitutional principles and values, is a conscious, controlled process that has a strictly defined group of entities with their respective roles. Internally, the complex issue of the subjects of constitutionalization of criminal law has not yet been scientifically considered, which makes addressing the problem significant and timely. Theoretical Basis. Methods. The study is based on two major theoretical concepts developed by domestic experts: the theory of constitutionalization of the branches of law and the theory of systemic relations of criminal law. The methods of systems analysis, the method of constitutional examination, the analytical method, modelling and forecasting – all were used in this work. Results. The constitutionalization of criminal law presupposes the coordinated work of all state bodies to translate constitutional norms and principles into criminal law and practice. Moreover, each of the subjects of constitutionalization fulfills its functional role in this process. The institutional constitutionalization mechanism of criminal law, which is considered from an institutional point of view, includes: conducting a legal (including conformity with the Constitution of the Russian Federation) examination of draft criminal laws in the State Duma; conducting a legal examination of adopted criminal laws in the Federation Council, and interpreting criminal laws on the subject their compliance with the Constitution of the Russian Federation by courts of general jurisdiction; a ban on the application of criminal laws that are doubtful from the point of view of the court; an appeal to the Constitutional Court with a request for constitutional assessment; verification of the constitutionality of the criminal law in the Constitutional Court of the Russian Federation, and the execution of its decisions by the legislator and enforcer. Discussion and Conclusion. Understanding the subjects of constitutionalization of criminal law and their powers enables us to identify weaknesses in the organization of this process, and to outline ways of optimising it. Among them, of particular importance are the conduct of a constitutional examination of draft laws on criminal liability, systematization of the legal positions of the Constitutional Court of the Russian Federation on criminal law issues, and the formation of a constitutional and legal awareness of the law enforcement.
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Guzeeva, O. S. "The Subjects of Constitutionalization of Criminal Law." Pravosudie / Justice 2, no. 2 (June 11, 2020): 170–94. http://dx.doi.org/10.37399/issn2686-9241.2020.2.170-194.
Full textAbstract:
Introduction. The constitutionalization of criminal law, assuming the proper implementation in the theory and practice of criminal law regulation of constitutional principles and values, is a conscious, controlled process that has a strictly defined group of entities with their respective roles. Internally, the complex issue of the subjects of constitutionalization of criminal law has not yet been scientifically considered, which makes addressing the problem significant and timely. Theoretical Basis. Methods. The study is based on two major theoretical concepts developed by domestic experts: the theory of constitutionalization of the branches of law and the theory of systemic relations of criminal law. The methods of systems analysis, the method of constitutional examination, the analytical method, modelling and forecasting – all were used in this work. Results. The constitutionalization of criminal law presupposes the coordinated work of all state bodies to translate constitutional norms and principles into criminal law and practice. Moreover, each of the subjects of constitutionalization fulfills its functional role in this process. The institutional constitutionalization mechanism of criminal law, which is considered from an institutional point of view, includes: conducting a legal (including conformity with the Constitution of the Russian Federation) examination of draft criminal laws in the State Duma; conducting a legal examination of adopted criminal laws in the Federation Council, and interpreting criminal laws on the subject their compliance with the Constitution of the Russian Federation by courts of general jurisdiction; a ban on the application of criminal laws that are doubtful from the point of view of the court; an appeal to the Constitutional Court with a request for constitutional assessment; verification of the constitutionality of the criminal law in the Constitutional Court of the Russian Federation, and the execution of its decisions by the legislator and enforcer. Discussion and Conclusion. Understanding the subjects of constitutionalization of criminal law and their powers enables us to identify weaknesses in the organization of this process, and to outline ways of optimising it. Among them, of particular importance are the conduct of a constitutional examination of draft laws on criminal liability, systematization of the legal positions of the Constitutional Court of the Russian Federation on criminal law issues, and the formation of a constitutional and legal awareness of the law enforcement.
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Zackin, Emily. "“To Change the Fundamental Law of the State”: Protective Labor Provisions in U.S. Constitutions." Studies in American Political Development 24, no. 1 (February 12, 2010): 1–23. http://dx.doi.org/10.1017/s0898588x09990083.
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As the United States industrialized, its state constitutions began to include protections for laborers. In this article, I describe the origins of these constitutional provisions and ask why labor organizations and other reformers pursued their inclusion in state constitutions. I argue that they saw state constitutions as a vehicle to prompt reluctant legislatures to pass protective statutes, to entrench existing protections against future legislatures, to safeguard labor legislation from constitutional challenges in state courts, and to facilitate further union organizing. Labor activism in this arena is particularly interesting in light of the literature on constitutional change, which contends that constitutional development is a tool through which actors attempt to usher courts into political conflicts; in contrast, I will argue that unions turned to constitutional change in large part to exclude courts from policymaking. Further, the union activism on behalf of constitutional change serves as a challenge to the prominent view among many scholars of American political development and law that judicial hostility to worker rights and union organizing discouraged unions from demanding state protection or institutionalizing their demands through law.
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Eric Khushal Murkens, Jo. "Preservative or Transformative? Theorizing the U.K. Constitution Using Comparative Method." American Journal of Comparative Law 68, no. 2 (June 2020): 412–40. http://dx.doi.org/10.1093/ajcl/avaa015.
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Abstract The complexities of the United Kingdom’s decision to withdraw from the European Union while simultaneously honoring its prior commitments to its decentralized, autonomous, and constituent regions have put constitutional questions back on the map. The dominant approach analyzes these questions premised on the “preservative” view of the constitution. This view prioritizes the stability and continuity of the institutions in Westminster (Parliament) and Whitehall (central executive). However, the preservative view of the constitution is theoretically and practically deficient as it cannot give an account of the multipolar and decentralized developments of the past twenty years. Another interpretation regards the legal and political changes to the constitution as “transformative.” This view accentuates the fragility of the U.K. constitution due to a plurality of constitutional rules and the ongoing processes of devolution of powers within multilevel systems of government. This Article discusses that evolution of the U.K. constitution through the prism of comparative constitutional law and its appropriate methodology. The preservative model of the constitution favors a universalist method, whereas the transformative model requires a contextualist method. I argue that the experience of supranational (European Union) and infranational (devolution) power sharing has fundamentally altered the United Kingdom’s central constitutional concepts. To stabilize its fragmentary forces, the United Kingdom needs to adopt concepts that reflect the state as divided, the constitution as transitional, sovereignty as an attribute of the state rather than Parliament, and democracy as conflicted. Nothing less than the future of the United Kingdom as a state is at stake.
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Larsen, Bárður, and Kári á Rógvi. "A New Faroese Constitution? – Faroe Islands between Parliamentary Sovereignty and Sub-Sovereign Constitutionalism, between Statutory Positivism and Pragmatic Reasoning." Yearbook of Polar Law Online 4, no. 1 (2012): 341–63. http://dx.doi.org/10.1163/22116427-91000097.
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Abstract The Bill for a Faroese Constitution [StjórnarskipanFøroya] submitted to Parliament [Løgtingið] on 6 March 2010, proposes a comprehensive Constitution for the Faroe Islands, for the first in history. This seems left somewhat on the late side, since the Faroes are an ancient polity with similar historic developments to Norway and Iceland, both of which got their full-bodied constitutions as sub-sovereign entities, in 1814 and 1874 respectively. Furthermore, few metropolitan powers should prima facie be more accommodating to sub-sovereign constitutions as Denmark, to whose Crown the Faroes have been associated, as she has historically recognised both an Icelandic constitution ‘besides’ and both a Common Constitution1 and EU quasifederal2 structure ‘above’ the Danish one. However, the same proud civil service that produced a beautiful construction of federation with the ‘Basic-Law on the Rights of Nationality’ of 1756 with its elaborate hierarchy of ‘Realms and Lands’ and ‘equivalents’ has perplexingly advised rather strongly against the proposed expression of popular sovereignty of the equivalent Nation of one of these Lands and the intended invitation to continue a long-standing peaceful plurality. In a Note of 2 June 2010, and a supplementary Note of 20 June 2011, the Danish Justice Ministry expressed the disgust of the Danish administrative establishment. The critique mostly focused on the supposed collision course with the Basic Law of the Danish Realm [groundless] and claimed that the Faroese Constitution would create considerable ‘doubt of a constitutional character.’ We argue that the issues raised do not follow from any convincing constitutional doctrine but are more ideological and based on an anti-pragmatic, a-historic and fundamentalist view of constitutional law, best categorised as late-late statutory positivism. As an alternative, we suggest the tradition of the Home Rule compact as a pragmatic and constructive disagreement that the Justice Ministry is about to abandon at its peril. Blocking the development of a living constitutional culture on the Faroe Islands will create tension that will be released somehow. The Ministry’s preoccupation with the proclamation that all power stems from the People of the Faroe Islands is at odds with the classic and almost trivial democratic notion of popular sovereignty. However, this is but the latest skirmish in a larger tragic and unnecessary campaign against realism and, indeed, reality that creates all sorts of problems for a small polity that needs to focus on principled solutions and gradual developments of the particulars of law in all fields.
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Valdo, Riesky Milly, and Afdil Azizi. "KONSTITUSIONALITAS PENGHAYAT ALIRAN KEPERCAYAAN DALAM SISTEM HUKUM NASIONAL DAN HUKUM ISLAM." JISRAH: Jurnal Integrasi Ilmu Syariah 1, no. 1 (January 7, 2021): 57. http://dx.doi.org/10.31958/jisrah.v1i1.2698.
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The main problem in this thesis is where the writer wants to see how the constitutionality of Beliefs in Indonesia is in the national legal system and Islamic law, which in national law has been explained a lot in the legal umbrella starting from the 1945 Constitution to the Decree. The minister and most recently are related to the Constitutional Court Decision Number 97 / PUU-XIV / 2016. The author also wants to see how the views of Islamic law on followers of this belief.Keyword:konstitusionalitas, hukumnasional, hukum Islam
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Daniluk, Agnieszka. "Interpretation of the Principle of Municipality Self-Reliance in the Context of Constitutional Principles of Law." Studies in Logic, Grammar and Rhetoric 65, no. 1 (December 1, 2020): 103–19. http://dx.doi.org/10.2478/slgr-2020-0050.
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Abstract In the science of administrative and constitutional law, administration science and many other sciences, including political science, it is widely accepted that the basic, inherent feature of a municipality, deciding the essence of the territorial self-government unit as an entity of public administration, is the self-reliance it is entitled to. The self-reliance of territorial self-government units is even defined as a constitutional norm. In principle, self-reliance is perceived as a fundamental attribute of a decentralised public authority and constitutes one of the fundamental systemic principles of the Republic of Poland. It was formulated expressis verbis in art. 165 par. 2 of the Constitution of the Republic of Poland, which states that the self-reliance of territorial self-government units is subject to judicial protection, meaning that TSGUs can defend themselves against illegal attempts, not grounded in the law to interfere in their self-reliance. This protection seems to encompass both the private-law and public-law spheres of territorial self-government activity. The essence and guarantees of territorial self-government units’ self-reliance also arise from other constitutional principles, including the aforementioned decentralisation principle, subsidiarity principle, separation of powers, supremacy of the nation and democratic state under rule of law. The goal of this article is to interpret the principle of municipal self-reliance in the context of constitutional principles of law, in the light of the Polish Constitution. The studies were conducted based on analysis of normative acts, doctrinal views and case law.
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Elliott, Mark. "Constitutional Legislation, European Union Law and the Nature of the United Kingdom's Contemporary Constitution." European Constitutional Law Review 10, no. 3 (December 2014): 379–92. http://dx.doi.org/10.1017/s1574019614001291.
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United Kingdom – UK Supreme Court – European Union – The orthodox view of the British constitution: lack of hierarchy of laws – Britain's ‘unwritten’ constitution and the role of ‘constitutional statues’ in Factortame – HS2 judgment makes up for House of Lords' omission in Factortame – Relationship between parliamentary sovereignty and EU law more clearly articulated – A normative-hierarchical constitutional order
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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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Gillman, Howard. "The Collapse of Constitutional Originalism and the Rise of the Notion of the “Living Constitution” in the Course of American State-Building." Studies in American Political Development 11, no. 2 (1997): 191–247. http://dx.doi.org/10.1017/s0898588x00001656.
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In constitutional studies, the topic of “original intent” is typically treated as a debate within normative constitutional theory about the most appropriate way for interpreters to orient themselves to the text of the Constitution. The central question is whether American constitutionalism, properly understood, obligates interpreters to base decisions on what the framers had in mind when they wrote the Constitution or whether it obligates interpreters to adapt general constitutional principles to changing circumstances or more enlightened sensibilities. Originalism views interpretation as a matter of decoding a set of specific instructions but runs the risk that our institutional arrangements and conceptions of justice will be inappropriately tied to the antiquated experiences and prejudices of generations long gone – what Corwin referred to as “rotting structures” or “discarded” and “unworkable” theories. Non-originalism, or some notion of the “living Constitution,” encourages judges to keep the Constitution relevant for contemporary concerns and purposes but runs the risk that this will lead them to enforce a version of the fundamental law that was never formally authorized by the people.
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JHAVERI, Swati. "Reconstitutionalizing Politics in the Hong Kong Special Administrative Region of China." Asian Journal of Comparative Law 13, no. 1 (December 14, 2017): 27–57. http://dx.doi.org/10.1017/asjcl.2017.21.
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AbstractThe question of whether constitutional law can protect, consolidate, and advance democracy has been considered extensively in multiple jurisdictions. The issue has not yet been considered in the context of one of the most problematic contemporary democratic transitions: Hong Kong’s, from an externally governed colonial outpost to a self-governed suffrage-based special administrative region of the People’s Republic of China. The Basic Law of Hong Kong proposes the eventual election of the Legislative Council and Chief Executive of Hong Kong by some form of universal suffrage. These provisions are at the core of the ‘democratic constitution’ of Hong Kong. Achieving this goal requires consensus between the executive in Hong Kong, members of the Legislative Council in Hong Kong, and the legislative body of the People’s Republic of China. Although not a formal constitutional requirement, any democratization efforts will also require popular buy-in from Hong Kong residents in order to function effectively. However, it is increasingly clear that the views of all concerned do not converge on how and when these constitutional aspirations should be realized. In addition, all parties have started moving outside of this constitutional framework when deliberating issues of political reform. This article looks at the problems in the constitutional design of the Hong Kong Special Administrative Region that have resulted in this political deadlock. The article will then look at one solution to mitigate the effect of these design issues and to move forward again on the issue of reform: ‘litigating’ the democratic constitution in the courts. The article discusses the advantages of the courts in the process: primarily the capacity of the courts toreconstitutionalizepolitical debate on electoral issues. This article evaluates the largely unsuccessful use of the courts thus far by Hong Kong residents to correct and advance political reform. It considers possible reasons for the high failure rate in courts and proposes alternative litigation strategies that can better utilize the position of the courts to re-orient all parties to the Basic Law.
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Hatchard, John. "The Fall and Rise of The Cane in Zimbabwe." Journal of African Law 35, no. 1-2 (1991): 198–204. http://dx.doi.org/10.1017/s0021855300008445.
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The legality of judicial corporal punishment is an issue which has caused considerable disagreement amongst jurists, legislators and criminal justice personnel, for its use has serious moral, constitutional and penological implications. In Zimbabwe, two decisions handed down by the Supreme Court together with a later constitutional amendment Act have highlighted the divergence of views on this matter. It is thus the intention of this article to examine critically the issue from a constitutional and penological perspective.In 1987 in S v. Ncube a full bench of the Supreme Court of Zimbabwe unanimously held that the sentence of whipping for adults contravened section 15(1) of the Declaration of Rights which is contained in the Constitution of Zimbabwe in that it constituted a punishment which in its very nature was both inhuman and degrading. In his seminal judgment, Gubbay, J. A., had regard to four factors, namely: (i) the current trend of thinking amongst distinguished jurists and leading academics; (ii) the abolition of whipping in many countries of the world as being repugnant to the consciences of civilized men; (iii) the progressive move of the courts in countries in which whipping is not susceptible to constitutional attack to restrict its imposition to instances where a serious, cruel, brutal and humiliating crime has been perpetrated; (iv) the decreasing recourse to the penalty of whipping in Zimbabwe, especially over the previous ten years and the declining number of laws on the statute book in which it remained a permissible penalty.
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Butler, W. "Five Generations of Russian Constitutions: Russia as Part of the Western Legal Heritage." BRICS Law Journal 6, no. 3 (September 14, 2019): 13–21. http://dx.doi.org/10.21684/2412-2343-2019-6-3-13-21.
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The paper is devoted to the study of the relationship between the Russian constitutional history and Western legal traditions. The author argues the position according to which the constitutionalism has been a part of Russian legal history for centuries. On one view of Russian legal history, a written constitution remained an aspiration of the Russian people that was only partly realized in 1906. Marxist legal thought contemplated, or predicted, the “withering away of law” after a proletarian Revolution; adopting a constitution seemed counter-intuitive to this projected vector of history. This paper explores in general outline the five generations of the constitutions of Russia (1918, 1925, 1937, 1978, and 1993) and the maturing of a constitutional tradition in Russia which has led from a blueprint for communism to fully-fledged constitutional rule-of-law social State in which the constitution acts as a restraint upon the exercise of State power and performs the role that a constitution routinely performs as part of the western legal heritage. The author concludes the 1993 Russian Constitution is, for the first time, a living document that could be considered as a reaction against the Russian past, the embodiment of Russian experience, and the repository of Russian values and desires for its future.
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Doli, Dren, and Fisnik Korenica. "Kosovar Constitutional Court's Jurisdiction: Searching for Strengths and Weaknesses." German Law Journal 11, no. 7-8 (August 1, 2010): 803–36. http://dx.doi.org/10.1017/s2071832200018848.
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Having gone through an international process on status settlement, in the aftermath of the proclamation of independence, the Kosovo Assembly adopted a Constitution and a range of essential laws. One of the very basic laws adopted in the aftermath of independence is the Law on the Constitutional Court. The Ahtisaari Commission had given a singular importance to the latter, having seen the Kosovan Constitutional Court as one of the most important guarantors of democracy in constitutional terms. In an Ahtisaarian view, the Kosovan Constitutional Court is,inter alia, thought of as a guarantor of the ethnic communities' constitutional rights. As a result, the law concerned along with the Constitution of Kosovo determined the organization and functioning of the Kosovo Constitutional Court.
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Sheliazhenko, Yurii. "Against the Odds: Protection of Economic, Social, and Cultural Rights by the Constitutional Court of Ukraine." Constitutional Review 6, no. 1 (June 2, 2020): 67. http://dx.doi.org/10.31078/consrev613.
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The article traces historical development, doctrine, and impact of constitutional review in Ukraine related to matters of social justice. It is shown that international review of Ukraine’s reports on observance of human rights obligations indicated a low level of compliance during the absence of independent constitutional review by the judiciary. After the establishment of the constitutional review, the compliance was improved against all doubts, whether socio-economic rights are justiciable in the Ukrainian context, and whether the judges are empowered enough to reshape authoritarian policies. Constitutional Court of Ukraine developed a doctrine of social justice based on the values of the rule of law, liberty, and equality, founding a pragmatic balance between the imperatives of individual freedom and economic security. In legal reasoning, judges implemented ideas of the human-centered state and personal autonomy in civil society, close to liberal democratic views, expressed by framers of the Constitution of Ukraine.
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Farrar, S. A. "Islamic jurisprudence and the role of the accused: a re-examination." Legal Studies 23, no. 4 (November 2003): 587–604. http://dx.doi.org/10.1111/j.1748-121x.2003.tb00229.x.
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This paper re-examines the Orientalist view that Islamic criminal justice operates without any constitutional protections for the individual. It takes the works of Noel Coulson as representative of the canon and subjects them to critical scrutiny. Rather than mimic Orientalist methods of analysis, the author integrates the views of a contemporary, but traditional Islamic scholar, and demonstrates that an accused receives similar, if not more, protection than in a secular, Western tradition.
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Tkacz, Sławomir. "Law and values in the theory of law of Józef Nowacki." Filozofia Publiczna i Edukacja Demokratyczna 6, no. 2 (June 28, 2018): 255–76. http://dx.doi.org/10.14746/fped.2017.6.2.23.
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The contents of the paper present the basic assumptions of Józef Nowacki’s theory of law. The author was a proponent of Hans Kelsen’s theory. The characteristic of Józef Nowacki’s views was the conviction that the foundations of the study of the aw should be their „purity”. It is understood by him as freedom from any ideological assumption. This approach is consistently presented in his works dealing with issues of a specific nature. In the course of deliberations, the problem of the concept of law was discussed, as understood by Józef Nowacki. His works on the issues of the rule of law were also analyzed. Moreover, they presented his critical attention devoted to the jurisdiction of the Polish Constitutional Court. The conclusions highlight the validity of the author’s view that the consideration of the law should be free of any ideological assumptions
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Arafa, Mohamed A. "The prohibition of wearing veil in public schools in Egypt: an analysis of the Egyptian Supreme Constitutional Court jurisprudence." Revista de Investigações Constitucionais 4, no. 1 (February 16, 2017): 69. http://dx.doi.org/10.5380/rinc.v4i1.50341.
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Case No.8 of 1996 is a landmark decision of the Egyptian Supreme Constitutional Court (“SCC”) and represents one of the most significant judicial rulings of a structural remedy for the interpretation of Article 2 of Egypt 2014 Constitution. The jurisprudence of the SCC is essential to advance a moderate (liberal), rights-protecting interpretation of Sharie‘a. In this case, the SCC held that a rule on face-veiling in public schools is compatible not only with Islamic law, but with certain human rights guaranteed by the Constitution:, as freedom of expression and freedom of religion. This decision dealt with the SCC’s view on Islamic ijtihad (legal reasoning), and, gives insight into the Court’s views on civil and political rights context.
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Primus, Richard. ""The Essential Characteristic": Enumerated Powers and the Bank of the United States." Michigan Law Review, no. 117.3 (2018): 415. http://dx.doi.org/10.36644/mlr.117.3.essential.
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The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. Conventional understandings of several episodes in constitutional history reinforce this proposition. But the reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been fundamental, and agreed upon, from the beginning. But in 1791, Members of the First Congress disagreed about whether Congress needed to point to some specific enumerated power in order to create the Bank. Moreover, Madison’s enumerated powers argument against the Bank seems to have involved two rethinkings of Congress’s enumerated powers, one about the importance of enumeration in general and one about the enumeration’s specific application to the Bank. At the general level, Madison in the Bank debate elevated the supposed importance of the enumerated-powers framework: in 1787 he had been skeptical that enumerating congressional powers could be valuable, but in the Bank debate he described the enumerated-powers framework as essential to the Constitution. At the particular level, Madison’s enumerated-powers argument against the Bank seems to have been an act of last-minute creativity in which he took constitutional objections that sounded naturally in the register of affirmative prohibitions, but which the Constitution’s text did not clearly support, and gave them a textual home by translating them into the register of enumerated powers. Madison’s move may have set a paradigm for enumerated powers arguments at later moments in constitutional history: subsequent enumerated-powers arguments down to those against the Affordable Care Act might be best understood as translations of constitutional objections best expressed in terms of affirmative prohibitions, forced into the register of enumerated powers because the relevant prohibitions are not found in the Constitution.
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Smirnova, Maria, and Chris Thornhill. "A Sociological Approach to the Russian Constitution." Comparative Sociology 15, no. 6 (November 23, 2016): 747–93. http://dx.doi.org/10.1163/15691330-12341411.
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This article promotes a distinctive sociological interpretation of the Russian Constitution. Much literature on Russian constitutional law is defined by the claim that the Constitution has little factual reality and limited foundation in society. This article challenges this view on two grounds. It argues that there are two deep-lying social processes that underlie the Constitution, and condition its evolution: the Constitution is shaped (a) by the importance of constitutional law for the stabilization of governance structures; (b) by the resultant relative autonomy of judicial practices, which means that legal exchanges (especially litigation) have formative impact on the constitutional order. On both grounds, the Russian Constitution is locked into cycles of societal norm construction. To understand the sociological linkages in which the constitution is located, we require a complex construction of society, and we need to observe how different practices within the legal system affect and even produce constitutional laws.
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Sagalane, Andra Bani. "Implementasi dan Implikasi Sosialisasi Empat Pilar Berbangsa Dan Bernegara Pasca Putusan Mahkamah Konstitusi." Jurnal Penelitian Hukum Legalitas 9, no. 1 (August 21, 2017): 1. http://dx.doi.org/10.31479/jphl.v9i1.27.
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<p align="justify">Four Pillars of Nation and State is Pancasila, the Constitution of the Republic of Indonesia in 1945, national unity and the Republic of Indonesia which is articulated by members of the DPR/MPR to the public. This idea is included in item Law of Political Parties that have strong legitimacy. The four pillars of the state and nation reap the pros and cons in the community, especially among experts in constitutional law of the State. The experts have similar views to criticize the concept of it because it is not considered appropriate if it is aligned as the four pillar or column country. The Constitutional Court issued a decision removing the article. The Constitutional Court’s decision is binding and must be executed by all parties. That is the four pillars of the nation and state is forbidden to be disseminated to the public, but the reality is different, the constitutional court ruling was ignored by the DPR/MPR until today. They continue to socialize the four pillars. That is the institution DPR/MPR may be unlawful.</p>
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Mirow, M. C. "The Age of Constitutions in the Americas." Law and History Review 32, no. 2 (May 2014): 229–35. http://dx.doi.org/10.1017/s0738248014000054.
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The late eighteenth and nineteenth centuries have been aptly called the “Age of Codifications.” The same period was also the Age of Constitutions. Although a great deal is known about the migration of prenational and transnational legal sources and ideas that led to national codes of civil and criminal law in Europe and the Americas, much less is known about similar processes on the constitutional level. Constitutional historians have been more parochial than their private law counterparts, most likely because of the relationship between constitutions and nations. In the light of independence, nations immediately needed constitutions to solidify gains and to consolidate state power. The study of these processes becomes national narratives, often in conversation with the former colonial power, which are disconnected from more general or regional trends. As Linda Colley's article in this issue illustrates, it is important to step back to view the constitution-making process from an Atlantic perspective that ties the Americas, North and South, into the area of study. The Age of Constitutions in the Americas must include Latin America and the Caribbean.
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Piszcz, Anna. "Stosowanie prawa a kontrola jego konstytucyjności zdania odrębne Profesora Leona Kieresa do wyroków Trybunału Konstytucyjnego." Przegląd Prawa i Administracji 114 (August 10, 2018): 195–205. http://dx.doi.org/10.19195/0137-1134.114.12.
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THE APPLICATION OF LAW AND THE CONTROL OF ITS CONSTITUTIONALITY DISSENTING OPINIONS FILED BY PROFESSOR LEON KIERES REGARDING THE JUDGMENTS OF THE CONSTITUTIONAL TRIBUNALThis article provides readers with information relating to dissenting opinions fi led by Prof. Leon Kieres regarding the judgments of the Constitutional Tribunal. The intention of the author is to present Professor’s views on the application of law in various contexts. Therefore, separate subsections present a review of his ideas on the following topics: the application of law and the ability to complain to the Constitutional Tribunal, the incorrect application of law/ignorance of law and the assessment of constitutionality, the application of the unconstitutional law and the need for control, the future practice of applying the law and its constitutionality.
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Grzywacz, Anna. "Realizacja konstytucyjnej zasady nullum crimen sine lege certa w świetle art. 115 ust. 3 u stawy o prawie autorskim i prawach pokrewnych." Studenckie Prace Prawnicze, Administratywistyczne i Ekonomiczne 25 (September 24, 2018): 125–39. http://dx.doi.org/10.19195/1733-5779.25.8.
Full textAbstract:
Realization of a nullum crimen sine lege certa principle in light of Article 115 Paragraph 3 of a Polish Copyright ActThe aim of the article is to analyze the content of Article 115 Paragraph 3 of the Polish Copyright Act and to examine the constitutionality of the provision based on the nullum crimen sine lege certa principle expressed in Article 42 of the Constitution. The basis for the allegation of the unconstitutionality of the provision is the Article’s use of the phrase: “Who […] otherwise violates”, which is, in the opinion of the doctrine, imprecise and contrary to the principle of legal certainty in matters of criminal law. Basing on the quoted regulations and the practice the author tries to answer a question whether the content of Article 115 Paragraph 3 of the Polish Copyright Act is constitutional and subjects the issue of using such clauses to the polemics. The article presents arguments for the rightness of such regulation as well as opposing views and the final conclusion based on the judgment of February 17, 2015, in which the Constitutional Tribunal adjudicated on the conformity of the regulation with the Constitution. Despite the approving position of the Constitutional Tribunal the issue of the constitutionality of the provision is still controversial and causes problems in the classification of acts as prohibited under the Copyright Act. Nevertheless, the use of complementary clauses in particular containing the phrase: “Who […] otherwise violates” seems to be unavoidable due to the dynamic development of technology and law. The principle of legal certainty can be implemented using a pro-constitutional interpretation in order to maximize the alignment of legal norms with the objectives and values expressed in the Constitution. This paper will also examine the secondary issue of criminal law protection of intellectual property rights with an emphasis on copyright law.
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Makhtyuk, Svyatoslav O. "Imperative Recommendations: Legal Views of the Constitutional Court of the Russian Federation on Evidence Evaluation." Russian judge 12 (December 10, 2020): 59–64. http://dx.doi.org/10.18572/1812-3791-2020-12-59-64.
Full textAbstract:
The author proposes for consideration an analysis of the current decisions of the Constitutional Court of the Russian Federation, concerning the assessment of evidence in criminal proceedings. The work defines the place and role of the Constitutional Court of the Russian Federation and its decisions in the criminal law system. Analyzed the legal positions of the Constitutional Court of the Russian Federation on the assessment of evidence. On the basis of the considered decisions, the author offers specific practical recommendations for resolving legal issues in judicial and investigative practice.