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1
Castillo-Ortiz, Pablo. « The Illiberal Abuse of Constitutional Courts in Europe ». European Constitutional Law Review 15, no 1 (mars 2019) : 48–72. http://dx.doi.org/10.1017/s1574019619000026.
Texte intégralRésumé :
Legal constitutionalism – Political constitutionalism – Emergence of illiberal constitutionalism as a tertium genus – Examination of constitutional courts under three illiberal governments: Poland, Hungary, and Turkey – Illiberal governments’ strategies to seize control of constitutional courts – Illiberal governments’ aim to secure leverage over constitutional judges and restrict the powers of review of the court – Constitutional courts under illiberal rule invert the traditional functions that were assigned to them under the original Kelsenian approach – Instead of a check on power, illiberal constitutional courts become a device to circumvent constitutional constraints and concentrate power in the hands of the ruling actors.
2
Slinko, T. M. « Сompetence of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine : comparative legal analysis ». Uzhhorod National University Herald. Series : Law 2, no 73 (15 décembre 2022) : 215–18. http://dx.doi.org/10.24144/2307-3322.2022.73.63.
Texte intégralRésumé :
Reflections on «possible constitutions of Europe» can have two directions. On the one hand, one can wonder about the legal form of the European Union: the fact that it is no longer a confederation of states, but not yet a federal state, requires a legal classification, for which a new concept of Verfassungsverbund was created in Germany, that is, a constitutional union. On the other hand, the question arises as to which national constitutions, or which parts of these constitutions, or which individual norms of these constitutions are best used to build a constitutional order in Europe. Solving this issue is not only a classic mission of comparative jurisprudence, but also of the current law of the European Community, since Article 6 of the Treaty onthe European Union declares certain principles of the Western constitutional state «common to all member states» and orders to consider fundamental rights «arising from common constitutional traditions of member countries, as general principles of Community law». Within the framework of the second way of formulating the question, the following description refers to the experience gained during the use of elements of the German Constitution to build other European constitutions. In this article, we will conduct a comparative legal analysis of the powers of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine. The possibility of legal review guarantees the supremacy of the constitution by sanctioning theviolation of the law of the constitution by repealing the law. According to the experience accumulated so far, an autonomous and independent constitutional court with the possibility of a constitutional appeal is a good way to protect human rights. Constitutional courts have a part of each existing state monopoly, namely the power of parliament to make laws and the power of the supreme court to interpret and apply laws passed by parliament.
3
Cartabia, Marta. « Europe and Rights : Taking Dialogue Seriously ». European Constitutional Law Review 5, no 1 (février 2009) : 5–31. http://dx.doi.org/10.1017/s1574019609000054.
Texte intégralRésumé :
Judicial dialogue – protection of fundamental rights – common constitutional principles – judicial activism – Charter of Fundamental Rights – pluralistic nature of Europe – national particularism – preliminary reference procedure – duty of constitutional courts to participate in dialogue – protection of national constitutional values and traditions – judicial style of European Court of Justice
4
Goldoni Barijan, Gustavo. « OS MODELOS DE JUSTIÇA CONSTITUCIONAL E O SUPREMO TRIBUNAL FEDERAL ». Revista Científica Semana Acadêmica 10, no 223 (26 juillet 2022) : 1–19. http://dx.doi.org/10.35265/2236-6717-223-12163.
Texte intégralRésumé :
The present work seeks to analyze the evolution of the review of constitutionality of the infra-constitutional order from the social evolution itself and the concept of supremacy of the Constitution in two moments: the first with the formation of national States and their own Constitutions, and then with the emergence of the constitutionalism. Afterwards, it will develop the two main forms of exercising this control, the first one arising in the United States, through the judicial control of the acts. The second, by the emergence of Constitutional Courts in Continental Europe. After analyzing these two models, Brazil's position on this issue will be demonstrated, especially the Federal Supreme Court.
5
Miljojković, Teodora. « Emergency governance (un)bound : A brief reflection on Southeast Europe's response to Covid-19 pandemic ». Pravni zapisi 12, no 1 (2021) : 123–45. http://dx.doi.org/10.5937/pravzap0-29534.
Texte intégralRésumé :
Relying on the Madison-Schmitt dichotomy in the theory of emergency governance, this article will explore to what extent constitutional courts of Southeast Europe imposed warranted limits to the executive power in their responses to the Covid-19 global pandemic. The specific aim of this article is to illustrate how the constitutional courts of Croatia and Serbia responded to the question of whether the Covid-19 pandemic called for the introduction of the state of emergency. The dilemmas that emerged in the Covid-19-related rulings of these courts reflect the heated constitutional theoretical debates on emergency powers, which could be roughly reduced to three main points of examination: (1) Is the executive de facto Schmitt's sovereign , who decides on the case of exception even when the constitution states other-wise? (2) Should the courts, following the historically repetitive practice, demonstrate special deference to other branches of government in the time of crisis such as the Covid-19 pandemic? (3) Are the courts in the position to assess the constitutionally envisaged facts and conditions for introducing the emergency regime, e.g., to go into a formal and substantive review of the declaration of the state of emergency? The analysis will conclude that the constitutional courts of Serbia and Croatia failed to set out a robust doctrine of emergency powers and constrain other branches of governments effectively. In Serbia, that resulted in a constitutionally legitimized NEO-Schmittian model, which presupposes that in the time of a crisis, the powers of emergency decision making significantly shift to the executive. On the other hand, the Croatian Constitutional Court missed the chance of entrenching a strong Madisonian model based on the interbranch checks and balances and cooperation.
6
Moraski, Bryon J. « Constructing courts after communism : Reevaluating the effect of electoral uncertainty ». Communist and Post-Communist Studies 46, no 4 (29 octobre 2013) : 433–43. http://dx.doi.org/10.1016/j.postcomstud.2013.10.001.
Texte intégralRésumé :
A prominent view in political science is that electoral uncertainty leads institutional designers to prefer independent and powerful courts. Yet few scholars have examined the design of constitutional courts systematically across Eastern Europe and those who have employed the results of elections held after constitutions were adopted to estimate the actors’ perceptions of the balance of power prior to the court’s design. This work reevaluates the effects of electoral uncertainty in post-communist Europe using more appropriate data and fuzzy-set qualitative comparative analysis to outline the different causal configurations linking electoral uncertainty to the initial judicial empowerment.
7
Voβkuhle, Andreas. « Multilevel cooperation of the European Constitutional Courts : Der Europäische Verfassungsgerichtsverbund ». European Constitutional Law Review 6, no 2 (juin 2010) : 175–98. http://dx.doi.org/10.1017/s1574019610200020.
Texte intégralRésumé :
Broad concept of constitutional jurisdiction – Triangle between Karlsruhe, Strasbourg and Luxembourg – European vocation of the German Constitutional Court and Basic Law – European Convention on Human Rights – Karlsruhe decisions can be reviewed in Strasbourg – Human rights-related constitutional court – European Court of Justice developed into constitutional court of the Union – Verbund between three courts – No simplistic hierarchy – Verbund techniques – Dialogue in Human Rights; Interplay in Integration – Federal Constitutional Court and European Court of Human Rights functionally comparable – Both Courts seek substantive coherence as Verbund technique – Federal Constitutional Court commits all German authorities to the Convention – Federal Constitutional Court and ECJ – Principle of openness to European Law – Sharing and assigning responsibilities in complex system – Solange, ultra vires and identity review – Responsibility for integration, due by Court and other German bodies – Federal Court contributes to common European Constitutional order – Europe-wide discursive struggle and ‘Lernverbund’
8
Chakim, M. Lutfi. « A Comparative Perspective on Constitutional Complaint : Discussing Models, Procedures, and Decisions ». Constitutional Review 5, no 1 (31 mai 2019) : 096. http://dx.doi.org/10.31078/consrev514.
Texte intégralRésumé :
The constitutional complaint is one of the important constitutional court jurisdictions that can be described as a complaint or lawsuit filed by any person who deems his or her rights has been violating by act or omission of public authority. Currently, the constitutional court in many countries have adopted a constitutional complaint system in a variety of models. However, the first application of the constitutional complaint jurisdiction came from Europe. In Austria, the constitutional complaint is allowed against the administrative actions but not against the court decisions. While Germany and Spain have a similar model that is a complaint against an act of the public authority including court decisions. In Asia, it is imperative that the court in Asia actively participate in the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). The AACC members have adopted a system of constitutional adjudication in a variety of models, and when it comes to jurisdictions, out of sixteen AACC members, there are four countries (Azerbaijan, South Korea, Thailand, and Turkey) have the constitutional complaint in their jurisdictions. In Azerbaijan, constitutional complaint is comparatively broad. Azerbaijan’s Constitutional Court can handle constitutional complaint against the normative legal act of the legislative and executive, an act of a municipality and the decisions of courts. In contrast, even though constitutional complaint in South Korea and Thailand can be against the exercise and non-exercise of state power, constitutional complaint cannot be filed against court decisions. In Turkey, the constitutional complaint mechanism is coupled with the regional system of human rights protection. The Turkish Constitutional Court handles complaints from individuals concerning violations of human rights and freedoms falling under the joint protection of the Turkish Constitution and the European Convention on Human Rights (ECHR). This paper argues that constitutional complaint represents the main part of the constitutional court, and through a comparative perspective among three countries in Europe and four AACC members are expected to provide lessons for the other AACC members that do not have a constitutional complaint mechanism, such as Indonesia.
9
Komárek, Jan. « The Place of Constitutional Courts in the EU ». European Constitutional Law Review 9, no 3 (5 novembre 2013) : 420–50. http://dx.doi.org/10.1017/s157401961200123x.
Texte intégralRésumé :
Going beyond ‘judicial dialogues’ and ‘conflict-and-power’ approaches to the analysis of national constitutional courts' role in the EU – The idea of European constitutional democracy – National constitutional courts constrain individual autonomy expanded by European integration – National constitutional courts defend the scope for political autonomy – Against national constitutional courts' displacement – Simmenthal II – After the ‘Rights Revolution’ in Europe – National constitutional courts' references to the ECJ – Ordinary courts challenging national constitutional courts through the preliminar y reference procedure – Parallel references – National constitutional courts enforcing EU law – National constitutional courts challenging EU law
10
Paris, Davide. « Constitutional courts as European Union courts ». Maastricht Journal of European and Comparative Law 24, no 6 (décembre 2017) : 792–821. http://dx.doi.org/10.1177/1023263x17747232.
Texte intégralRésumé :
In principle, constitutional courts do not review questions of domestic compliance with EU law, as these are considered to be outside their jurisdiction. But there are several exceptions in which EU law serves as a yardstick for constitutional review. This article focuses on these exceptions from a comparative perspective. First, it describes the ‘state of the art’ by examining whether and to what extent constitutional courts already use EU law as a standard for their decisions and invalidate domestic legislation or courts’ decisions that conflict with EU law. Then, it explores the limits within which EU law can be invoked as a yardstick for constitutional review without jeopardizing the principle of primacy of EU law. Finally, it argues that constitutional courts should not be afraid to embrace EU law as a standard for review: Doing so would not only contribute to a better protection of fundamental rights and the rule of law in Europe, but would also further the interests of constitutional courts.
11
Cartabia, Marta. « Europe as a Space of Constitutional Interdependence : New Questions about the Preliminary Ruling ». German Law Journal 16, no 6 (décembre 2015) : 1791–96. http://dx.doi.org/10.1017/s2071832200021349.
Texte intégralRésumé :
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.
12
Hein, Michael. « Do constitutional entrenchment clauses matter ? Constitutional review of constitutional amendments in Europe ». International Journal of Constitutional Law 18, no 1 (janvier 2020) : 78–110. http://dx.doi.org/10.1093/icon/moaa002.
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Abstract Do constitutional entrenchment clauses matter? And if yes, how? This article examines these questions by analyzing a comprehensive collection of 154 decisions issued by European constitutional and supreme courts from 1945 up to 2016, on the constitutionality of constitutional amendments. The article shows that entrenchment clauses do matter: in the vast majority of decisions studied, the claimants and/or the courts referred to a constitutional entrenchment clause. About one-fourth of these cases resulted in the invalidation of a constitutional amendment, most of which were based on an “eternity clause,” that is, the most extreme type of entrenchment clauses. However, the article also demonstrates that most of these invalidations can be assessed as instances of democracy-adverse judicial activism. The article concludes, therefore, that entrenchment clauses cannot be considered an unambiguous instrument for the protection of democratic constitutionalism.
13
Petkova, Bilyana. « The Notion of Consensus as a Route to Democratic Adjudication ? » Cambridge Yearbook of European Legal Studies 14 (2012) : 663–95. http://dx.doi.org/10.5235/152888712805580453.
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AbstractBuilding on the theory of democratic constitutionalism, I assess the political implications of the constitutional space formed by the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and national constitutional courts in Europe. Democratic constitutionalism helps situate the role of constitutional courts in stimulating a degree of consensus, necessary for governance of heterogeneous communities such as the United States and the European Union. Questions of legitimacy and confidence in the judiciary come to the fore. I examine a mechanism used by the US Supreme Court, the CJEU and the ECtHR alike to foster democratic constitutionalism: in order to confront challenges to judicial legitimacy and remain responsive to the extra-judicial environment, these courts rely on majoritarian trends, or consensus, inspired by, but not limited to, the constitutional law of federal states and member countries.
14
Mak, Chantal. « Civil Courts as Constitutional Courts : Polity-building through private law in Europe ». European Review of Private Law 28, Issue 4 (1 octobre 2020) : 953–72. http://dx.doi.org/10.54648/erpl2020056.
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What can and should be the role of national civil courts in a European private legal order? This article explores the courts’ position against the backdrop of experiences in the ‘failed’ projects envisaging a European Civil Code and a European Constitution. It is held that rather than aspiring to find a lasting settlement in such static foundational texts, which courts should interpret and apply, the more dynamic interaction of national and European sources and institutions should be embraced. Descriptively, civil courts’ contributions can be accounted for in terms of ‘hybridization’, insofar as their judgments merge elements of EU law with rights and remedies under national private laws in a deliberative process that transcends national and European boundaries. Normatively, it is submitted that civil courts may be considered to perform a constitutional task insofar as they contribute to a dynamic process of polity-building in Europe.
15
Drinóczi, Tímea. « Constitutional Identity in Europe : The Identity of the Constitution. A Regional Approach ». German Law Journal 21, no 2 (février 2020) : 105–30. http://dx.doi.org/10.1017/glj.2020.1.
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AbstractThe issue of “constitutional identity” is a topic the relevance of which emerges in contemporary constitutional democracies in the context of constitutional changes. It has already attracted multilayered approaches, but its legal conceptualization is still underexposed. Based on regional European jurisprudence and doctrinal works, “constitutional identity” in a legal context is suggested to be viewed as the “identity of the constitution.” The identity of the constitution is found among provisions of constitutional texts and related jurisprudence that specifically and exclusively feature a status that was constituted during the constitution-making process and shaped by either formal or informal constitutional amendments. The legally applicable “identity of the constitution” comprises those articles that can be employed vis-à-vis EU law and unconstitutional amendments, and which are arguably intended to be applied in the face of international human rights obligations. It is posited that Germany and Hungary exemplify the “confrontational with EU law model,” while the model that emerged in the jurisprudence of the Italian Constitutional Court should be called the “cooperative model with embedded identity.” Today, it seems that the very content of the identity of the constitution of a particular Member State may be shaped and preserved through an active and cooperative dialogue between the supranational and national courts, if there is an inclination to find uniqueness in a community based on common legal traditions and values—Germany and Italy. Another way of determining the content of “constitutional identity” is to fiercely try to demonstrate that uniqueness. This is what Hungary seems to be engaged in, and that is why it may be proposed to call the Hungarian model a model of confrontational individualistic detachment.
16
Lachmayer, Konrad. « Constitutional Reasoning as Legitimacy of Constitutional Comparison ». German Law Journal 14, no 8 (1 août 2013) : 1463–91. http://dx.doi.org/10.1017/s2071832200002352.
Texte intégralRésumé :
For ten years, the legitimacy of constitutional comparison in courts has been intensely debated. The case law of the U.S. Supreme Court led to an intense discussion on constitutional comparison and reached its peak with the Great Debate between Justice Scalia and Justice Breyer. Justice Breyer argued in favor of constitutional comparison while Justice Scalia refused the comparative approach. Justice Scalia stated:[Y]ou are talking about using foreign law to determine the content of American constitutional law—to be sure that we're on the right track, that we have the same moral and legal framework as the rest of the world. But we don't have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that we're to be just like Europe, they would have been appalled. If you read the Federalist Papers, they are full of statements that make very clear the framers didn't have a whole lot of respect for many of the rules in European countries. Madison, for example, speaks contemptuously of the countries of continental Europe, “who are afraid to let their people bear arms.’
17
Hartwig, Matthias. « Much Ado About Human Rights : The Federal Constitutional Court Confronts the European Court of Human Rights ». German Law Journal 6, no 5 (1 mai 2005) : 869–94. http://dx.doi.org/10.1017/s2071832200014000.
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On October 14, 2004 the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) delivered a judgment which gave rise to vivid reactions in the mass media and to a dispute between the European Court of Human Rights (ECtHR) and the German Federal Constitutional Court. In interviews, members of the Strasbourg court spoke about their disappointment in the German Court's unwillingness to implement decisions of the ECtHR while members of the German court referred to the necessity to respect national particularities. Whereas, normally, the ECtHR and the constitutional courts of the Member States of the Council of Europe are fighting side by side for human rights and, therefore, consider themselves as natural allies, this time their decisions, which seem to be incompatible, led to a dispute which attracted as much public interest as a film or theatre premiere.
18
Canivet, Guy. « Principes fondamentaux et transposition des directives communautaires Le contrôle du Conseil constitutionnel sur les lois de transposition des directives communautaires ». European Review of Private Law 18, Issue 3 (1 juin 2010) : 487–99. http://dx.doi.org/10.54648/erpl2010038.
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Abstract: In France, the Conseil Constitutionnel did, at first, not consider the control of the transposition of European directives as its task. This has changed by the approval of the Maastricht Treaty. Inspired by other constitutional courts in Europe, the Conseil Constitutionnel has started to exercise a limited control as of 2004. It may even be foreseen that, after the example of the Italian Constitutional Court, the Conseil Constitutionnel will in the near future pose prejudicial questions to the European Court of Justice. Résumé: En France, le Conseil constitutionnel n’a pas exercé, au départ, de contrôle de la transposition des directives européennes. Cette situation a changé avec l’approbation du Traité de Maastricht. Inspiré par d’autres Cours constitutionnelles en Europe, le Conseil constitutionnel a commencé à exercer un contrôle limité à partir de 2004. Il est à prévoir que, à l’instar de la Cour constitutionnelle italienne, le Conseil constitutionnel posera, dans un proche avenir, des questions préjudicielles à la Cour européenne de justice. Zusammenfassung: In Frankreich hat der Conseil constitutionnel die Kontrolle über die Einhaltung der Umsetzung von europäischen Richtlinien zunächst nicht als eine seiner Aufgaben angesehen. Mit der Annahme des Maastrichter Vertrages hat sich das geändert. Inspiriert durch andere europäische Verfassungsgerichte, hat der Conseil constitutionnel seit 2004 eine beschränkte Kontrolle ausgeübt. Es wäre sogar abzusehen, dass der Conseil constitutionnel nach Vorbild des italienischen Verfassungsgerichts in absehbarer Zukunft dem Europäischen Gerichtshof Fragen im Rahmen des Vorabentscheidungsverfahrens stellen wird.
19
Hinarejos, Alicia. « Social Legitimacy and the Court of Justice of the EU : Some Reflections on the Role of the Advocate General ». Cambridge Yearbook of European Legal Studies 14 (2012) : 615–33. http://dx.doi.org/10.5235/152888712805580525.
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AbstractThe Court of Justice of the European Union (CJEU, Court of Justice or Court, for short) operates in circumstances that are similar to those of a national constitutional court; at the same time, some significant features set it apart and make it more difficult for the Court of Justice to command the institutional loyalty or public support that national constitutional courts seem to enjoy in Europe. This chapter will, first, offer a brief overview of how and why the Court acquired a markedly political, and problematic, role within the judicial and legal system of the Union (Section II). Section III will then examine the different concepts of legitimacy that may be applied to courts and their decisions, focusing more specifically on the social dimension of legitimacy. This chapter will argue that the fact that the Court of Justice has to operate in a transnational context leads to a shortfall in its social legitimacy, at least when compared to national constitutional courts in Europe. Finally, Section IV will focus on the figure of the Advocate General as a mechanism that may lend some extra social legitimacy to the Court and its decisions—obviously without solving the problem completely—and that, more generally, may foster dialogue, debate and deliberative democracy in the Union.
20
Varlamova, N. V. « The European Model of Constitutional Review Before the Challenges of European Integration ». Courier of Kutafin Moscow State Law University (MSAL)), no 9 (17 décembre 2022) : 102–12. http://dx.doi.org/10.17803/2311-5998.2022.97.9.102-112.
Texte intégralRésumé :
Integration processes developing on the European continent have a significant impact on the legal systems of the Council of Europe and EU member states. The author considers the changes which in this context the European model of constitutional review, accepted in most European countries, is subjected to. All its classical features are subject to erosion. The legal systems in which it operates are no longer strictly hierarchically organized; the national constitution ceases to be the sole and irrefutable benchmark of constitutional review; constitutional courts are largely losing their unique position as bodies authorized to make final decisions on constitutionality, sharing these powers with supranational courts and national courts of general and special jurisdiction. The author substantiates that in conditions of decentralization of constitutional control the legal certainty and coherence of legal order can be ensured only by achieving a coherent understanding of basic constitutional principles within different jurisdictions
21
Cruz, Julio Baquero. « The Changing Constitutional Role of the European Court of Justice ». International Journal of Legal Information 34, no 2 (2006) : 223–45. http://dx.doi.org/10.1017/s0731126500001463.
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The process through which the founding Treaties of the European Communities came to function and be regarded as a constitution and the role of the Court of Justice in that process are well known. According to a widespread view, the Court would have been the main or even the only actor in the constitutionalization of the Treaties, transforming them into constitutional entities by virtue of some judgments of the 60s and 70s. For many, in those judgments the Court would have been excessively prointegrationist, too audacious, almost “running wild”. At some point, a number of constitutional courts, in particular the German Constitutional Court with its Maastricht decision of 1993, would have voiced their concerns, tracing potential limits to judicially driven integration. As a result, the Court of the 90s would have become wiser, more self-restrained, at times even minimalistic – more like a court and less like an omnipotent legislator or “pouvoir constituent.” With the calling of the European Convention and the drafting of the Treaty establishing a Constitution for Europe, the Court would have been more than ever on a second plane, as if constitutional matters had finally returned to the political actors to which they belong.
22
Sadurski, Wojciech. « Judicial Review in Central and Eastern Europe : Rationales or Rationalizations ? » Israel Law Review 42, no 3 (2009) : 500–527. http://dx.doi.org/10.1017/s0021223700000704.
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Constitutional judicial review in Central and Eastern Europe has become an entrenched and powerful factor in the politics and constitutional life of these countries; indeed, it would be impossible to give even a rough account of these new democracies without bringing constitutional courts into the picture. For all their importance and activism, their introduction had not been preceded by any thorough debate concerning the merits and demerits of the model transplanted from Western Europe—especially, from Germany—and the developing jurisprudence of the courts was strangely silent about the grounds and the limits of the courts ‘legitimacy, especially when replacing parliamentary choices on rights implicating matters with the courts’ own views about the proper articulation of vague rights-provisions. This Article explores some of the reasons and consequences of this silence.
23
Gyarfas, Juraj. « Constitutional Scrutiny of Arbitral Awards : Odd Precedents in Central Europe ». Journal of International Arbitration 29, Issue 4 (1 août 2012) : 391–403. http://dx.doi.org/10.54648/joia2012026.
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In addition to an application for setting aside, losing parties in some jurisdictions have been trying to challenge an arbitral award by means of an individual constitutional complaint. In many European jurisdictions, such complaints heard by the constitutional court are remedies of last-resort against decisions of public authorities. However, it is highly questionable that this remedy should be available against rulings of arbitral awards. Nonetheless, constitutional courts in some Central European jurisdictions have deemed such complaints admissible and have even annulled arbitral awards, thereby opening intriguing questions on the nature of arbitration and potentially upsetting the institutional setting of judicial scrutiny over arbitral awards and the principle of finality.
24
Theil, Stefan. « What Red Lines, If Any, Do the Lisbon Judgments of European Constitutional Courts Draw for Future EU Integration ? » German Law Journal 15, no 4 (1 juillet 2014) : 599–635. http://dx.doi.org/10.1017/s2071832200019064.
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The lingering European financial crisis continues to threaten the Eurozone and, in the opinion of German Chancellor Angela Merkel, the very survival of the European idea. With this apocalyptic rhetoric, it is easily forgotten that only nine years earlier Europe overcame a predicament that was, at the time, equally described as the most challenging in its history. Two failed referendums in Member States of the European Union (Member States)—namely, in France and the Netherlands—stopped the Treaty establishing a Constitution for Europe (Constitutional Treaty) in its tracks and led to an extended “period of reflection” for Europe's leaders. From this emerged a reboot of the Constitutional Treaty, now dubbed the Treaty of Lisbon, with few substantial changes, but more success throughout the ratification procedures. The final hurdle presented itself in the form of institutionally strong Constitutional Courts (CC) and Tribunals (CT) of the European Member States. Of these, the following were at one time or another seized with complaints against the ratification of the Lisbon Treaty: The AustrianVerfassungsgerichtshof(Austrian CC), the Belgian CC, theÚstavní soud České republiky(Czech CC), the FrenchConseil Constitutionnel(French CC), the GermanBundesverfassungsgericht(German CC), the Hungarian CC, theLatvijas Republikas Satversmes tiesa(Latvian CC), the PolishTrybunał Konstytucyjny(Polish CT), and theTribunal Constitucional de España(Spanish CT).
25
Szyszczak, Erika. « CURRENT DEVELOPMENTS : IV. CITIZENSHIP AND HUMAN RIGHTS ». International and Comparative Law Quarterly 53, no 2 (avril 2004) : 493–501. http://dx.doi.org/10.1093/iclq/53.2.493.
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Citizenship and human rights continue to play an important role in the evolution of Community law. Both sets of principles have appeared in the case law of the European Courts and in the creation of a Constitutional document for Europe. Part II of the draft Constitution incorporates the Charter of Fundamental Rights of the Union. Additionally, the first report from the independent network of experts in fundamental human rights details the various international human rights obligations which the Member States are subject to, analysing Member State policy in a number of areas in the light of the international obligations.1Paradoxically, at a time when greater emphasis is being paid to the constitutional recognition of human rights there are indications of divisions between some of the Advocates General, the Court of First Instance and the European Court of Justice (the Court) on the constitutional role of fundamental rights in relation to access to justice.
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Frowein, JA. « Constitutional law and international law at the turn of the century ». Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 1, no 1 (10 juillet 2017) : 1. http://dx.doi.org/10.17159/1727-3781/1998/v1i1a2898.
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Constitutional law and international law operate in simultaneous conjunction and reciprocal tension. Both fields seem to have overcome the great challenges of destruction and neglect in the course of the 20th century. Both after World War I and World War II the world experienced new waves of constitution making. In both cases the current German constitutions (the Weimar Constitution of 1919 and the Grundgesetz of 1949) were influential. Characteristic of constitution-making in this century, is the final victory of liberal constitutions based on the rule of law, the Rechtsstaat, fundamental rights, meaningful control of public powers and the establishment of constitutional courts. Following the destruction of World War II, the notion of the Sozialstaat emerged strongly in Germany. In contrast to the Constitution of the United States of America, the principle of the responsibility of the state for social justice has emerged in almost all new constitutions, including Russia, Poland, South Africa, Spain, Italy and Portugal. Where courts are given the mandate to interpret bills of rights, fundamental rights have been developed into foundation stones of the legal system. The presence in a Bill of Rights of restrictive clauses, is important for its analysis. Generally restrictive clauses in new constitutions try to limit the possibilities of restriction. The importance of constitutional rules establishing and legitimizing the political organs, must not be overlooked. Of particular importance is the degree of control over the head of state, a positive attitude among political actors towards the constitution and the protection of the interests of minorities in a democratic system. In the field of Public International Law much of Kant's ideal of an international confederation of peace has been realized. Since 1990 the United Nation's Security Council has shown the potential of becoming a directorate for the community ofnations. International law has also been instrumental in the worldwide recognition of human rights. Especially in Europe, Convention Law has had a strong impact. Furthermore, global and regional systems of regulation have tended to alter the legal attitude towards state sovereignty. It may be that the South African constitutional approach in terms of which international law is subject to constitutional and other national law, is not in line with international tendencies.
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Rozhok, Lidia. « Globalization and standards of constitutional interpretation ». Law Review of Kyiv University of Law, no 2 (10 août 2020) : 164–68. http://dx.doi.org/10.36695/2219-5521.2.2020.28.
Texte intégralRésumé :
The article examines the problems of constitutional interpretation through the prism of globalization and modern world modelsof constitutional interpretation. Emphasis is placed on the fact that the main trend in the implementation of constitutional interpretationin modern conditions is the use of the case law of the European Court of Human Rights and reference to the decisions of the constitutionalcourts of foreign countries. This is the result of globalization, the practice of modern constitutionalism and dialogue betweenjudges of constitutional courts in the world. Such a constitutional combination of practices is not only a tool for improving judicial decisions,but also for building a “global legal system”. The globalization of constitutional law means that constitutionalism is no longerthe privilege of the nation-state, but a world concept and standard. The use of international law in the constitutional interpretation isjust one example of the migration of constitutional ideas through legal systems, which also includes the use of foreign constitutions asmodels in the process of adopting a constitution.It is concluded that Ukraine, like the countries of Eastern and Central Europe, has no choice but to adopt liberal-democratic constitutions.These are common constitutional values and constitutional rapprochement. Therefore, the constitutional interpretationthrough a comparative reference to international (and foreign) law and soft law acts of the Council of Europe is part of the modernimplementation of the concept of international law, the concept of friendly attitude to international law and the migration of constitutionalideas.
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Kelemen, Katalin. « Dissenting Opinions in Constitutional Courts ». German Law Journal 14, no 8 (1 août 2013) : 1345–71. http://dx.doi.org/10.1017/s2071832200002297.
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Although long considered alien to the civil law tradition, the publication of separate dissenting or concurring opinions is now permitted by the majority of European constitutional courts, the only exceptions being the Austrian, Belgian, French, Italian, and Luxembourgish constitutional courts. The decades-long history of dissenting opinions in the practice of several European constitutional courts calls for an analysis. While there is an extensive literature in the United States regarding the use of dissenting opinions, comprehensive empirical research is still absent in Europe. American scholars have conducted research from several different points of view. Legal scholars have dealt primarily with the relationship between dissenting opinions and the doctrine of binding precedent, and have tried to solve the problem of the precedential value of plurality decisions, e.g. decisions lacking a reasoning shared by the majority of the judges. Political scientists, for their part, have studied the policy-making role of judges and strategic opinion-writing. Scholars of law and economics have analyzed the costs and benefits of writing separately. Even judges themselves have often expressed their own thoughts in essays or conference speeches on the matter.
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Feehily, Ronán. « Creeping compulsion to mediate, the Constitution and the Convention ». Northern Ireland Legal Quarterly 69, no 2 (8 juin 2018) : 127–46. http://dx.doi.org/10.53386/nilq.v69i2.89.
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The court backlog in some European countries has inspired the introduction of compulsory mediation schemes to deal with various commercial claims. The article reviews the developing jurisprudence from various courts throughout Europe, to assess the seemingly relentless public policy move towards compulsory mediation and the implications that this has for commercial parties in dispute, lawyers involved in the process and the administration of justice in Europe. The potential that such an approach could amount to a violation of the rights guaranteed by Article 6(1) of the European Convention on Human Rights, as enshrined within the European Convention on Human Rights Act 2003, and Article 40.3 of the Irish Constitution is analysed. The article ultimately discusses the optimal approach for the courts and the legislature to follow to strike the appropriate balance between strong encouragement and coercive compulsion that would avoid offending constitutional and Convention rights and foster a mediation culture.
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Metcalf, Katrin Nyman, et Ioannis F. Papageorgiou. « Regional Courts as Judicial Brakes ? » Baltic Journal of Law & ; Politics 10, no 2 (1 décembre 2017) : 154–91. http://dx.doi.org/10.1515/bjlp-2017-0016.
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Abstract The article examines how regional integration courts can act as judicial brakes, at a time when “constitutional coups” – leaders staying in power past constitutional time limits or other forms of actions against the spirit if not always the letter of the constitution – are alarmingly common. The article discusses how regional courts can be used to modify or protect national rule of law and the constitutional order from the outside (i.e. from the regional integration aspect) and the extent to which this can be valid particularly to promote a uniform interpretation and application of human rights. Although this trend is visible in Europe, it is more striking, because less expected, on other continents, in particular Africa and the Americas, where the developments take place in less than perfect democratic environments. The article contains evidence from cases dealt with in the various regional courts, supporting that a system of political and judicial oversight, especially in regions with weak or fragile democratic systems, can be a useful addition to national judicial or other mechanisms of protection of rule of law and control of the executive. Action by regional courts helps defeat perceptions of majoritarian politics, which in many countries allow for the winner to take all. Under a system of regional oversight, states become aware of the limits they themselves have set and citizens become aware of their possibilities to challenge political power.
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Poto, Margherita. « Democracy and Europe : New Times, Old Dilemmas ». European Public Law 13, Issue 4 (1 décembre 2007) : 633–70. http://dx.doi.org/10.54648/euro2007036.
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Democratic instances in European legal systems are still part of a developing phenomenon, even whilst the process towards a European Constitution is decelerating. The paper will analyse possible solutions to the lack of democracy and participation in European context, in order to understand if philosophical and economical approaches could give an effective contribution to the legal system. In particular, it will be asked whether the principles of subsidiarity and proportionality, as applied by the Constitutional Courts of different Member States pave the new way towards democracy.
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Wendel, Mattias. « Lisbon Before the Courts : Comparative Perspectives ». European Constitutional Law Review 7, no 1 (février 2011) : 96–137. http://dx.doi.org/10.1017/s1574019611100061.
Texte intégralRésumé :
Lisbon decisions of the constitutional courts in Austria, the Czech Republic, France, Germany, Hungary, Latvia and Poland from a comparative perspective – Democracy, sovereignty and identity – Permeability of national and supranational law – Ratification of the Lisbon Treaty and its constitutional foundations – Procedural background and legal outcome of the Lisbon decisions – Differences of institutional self-conception – Parliamentary responsibility for integration – Prior parliamentary assent to the future application of ‘dynamic treaty provisions’ – Different conceptions of national and multi-levelled democracy – Popular vote – Constitutional limits to European integration – Limits indicating the necessity of an amendment and limits protecting the inalienable substantial core of a constitutional order – German Bundesverfassungsgericht only court in Europe spelling out an eternity clause in a detailed, catalogue style manner – Judicial restraint – Ultra vires and identity review – Article 4.2 TEU as an integration clause of EU law and not a derogation clause – Comparative dialectics
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Psychogiopoulou, Evangelia. « Judicial Dialogue in Social Media Cases in Europe : Exploring the Role of Peers in Judicial Adjudication ». German Law Journal 22, no 6 (septembre 2021) : 915–35. http://dx.doi.org/10.1017/glj.2021.57.
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AbstractThis Article aims to examine the social media jurisprudence of national courts in a selected set of EU Member States by focusing on judicial dialogue specifically via references to the case law of other courts. Do judges in social media cases engage with the case law of peers, and if so how and to what extent? The analysis investigates whether national judges draw on the jurisprudence of higher domestic courts, foreign courts and/or European supranational courts—the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR)—and explores the use of such jurisprudence. It is based on 147 cases from the constitutional and/or supreme courts of Bulgaria, Croatia, Greece, Italy, Latvia, Slovakia, and Slovenia. Although judicial dialogue is generally limited in the cases under study, the analysis illustrates the different ways in which courts interact with the rulings of peers and informs on the latter’s contribution to judicial assessment.
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Smithey, Shannon Ishiyama, et John Ishiyama. « Judicious choices : designing courts in postcommunist politics☆ ». Communist and Post-Communist Studies 33, no 2 (1 juin 2000) : 163–82. http://dx.doi.org/10.1016/s0967-067x(00)00002-7.
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One area which has been generally overlooked in the literature on institutional choice in post communist politics has been the design of judicial institutions. This paper seeks to evaluate a number of different explanations for judicial systems choice in post communist politics, especially those which emphasize the influence of socio-cultural factors, economic factors, the judicial legacies of the past, and political bargaining. As an empirical test of these explanations, we examine variations in the amount of judicial power that constitution makers granted to the constitutional courts in the countries of the former Soviet Union, Mongolia, and Eastern Europe.
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Teršek, Andraž. « A Populist Monster and the future of Constitutional Democracy ». Open Political Science 4, no 1 (1 janvier 2021) : 83–100. http://dx.doi.org/10.1515/openps-2021-0010.
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Abstract The central objective of the post-socialist European countries which are also Member States of the EU and Council of Europe, as proclaimed and enshrined in their constitutions before their official independence, is the establishment of a democracy based on the rule of law and effective legal protection of fundamental human rights and freedoms. In this article the author explains what, in his opinion, is the main problem and why these goals are still not sufficiently achieved: the ruthless simplification of the understanding of the social function and functioning of constitutional courts, which is narrow, rigid and holistically focused primarily or exclusively on the question of whether the judges of these courts are “left or right” in purely daily-political sense, and consequently, whether constitutional court decisions are taken (described, understood) as either “left or right” in purely and shallow daily-party-political sense/manner. With nothing else between and no other foundation. The author describes such rhetoric, this kind of superficial labeling/marking, such an approach towards constitutional law-making as a matter of unbearable and unthinking simplicity, and introduces the term A Populist Monster. The reasons that have led to the problem of this kind of populism and its devastating effects on the quality and development of constitutional democracy and the rule of law are analyzed clearly and critically.
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Palazzo, Nausica. « ʻJudicial Activismʼ in Europe : Not a Neat and Clean Fit ». ICL Journal 14, no 4 (20 décembre 2020) : 399–422. http://dx.doi.org/10.1515/icl-2020-0019.
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Abstract Achieving a proper balance between enforcing the constitution and avoiding that the courts exercise a policy-making function that that is better left to legislatures is not without its difficulties. In the United States, this issue has gained substantially higher traction giving rise to intense activism talk. The relevant American literature has exerted a deep fascination abroad, also in the light of the current globalization of constitutional discourse. Yet, the article intends to advance two claims: first, it warns against an uncritical import of US-style notions of judicial activism to continental Europe; second, it argues that contemporary research on comparative judicial activism currently has low explanatory utility. The first section takes a glimpse of the relevant US literature ‒ both legal and empirical ‒ to shed light on the multidimensional essence of the concept. Section 2 proceeds to articulate three sets of tentative reasons why activism talk should be ʻhandled with careʼ. These reasons pivot on considerations around structure, culture, and type of decisions in continental Europe. After parsing out each aspect, an argument is made that US-style judicial activism is too dependent on the US form of government; too divisive and as such unsuitable to the different European legal professional culture; and misleading, as the way European constitutional courts display activism in their decisions is distinctive. Ultimately, the article argues for the avoidance of US-style notions of judicial activism in European constitutional discourse.
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Geddis, Andrew. « Some Questions for the United Kingdom’s Republican Constitution ». Canadian Journal of Law & ; Jurisprudence 19, no 1 (janvier 2006) : 177–89. http://dx.doi.org/10.1017/s0841820900005646.
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This book provides an important addition to the debate about the nature and normative basis for the United Kingdom's constitutional ordering. It combines a strong argument against moves to adopt forms of "legal constitutionalism" with a defence of the country's existing "political constitution", one sourced in the ideals of republican government. This critical review explores the structure of Tomkins' claims, and raises three questions about how they might apply to certain aspects of the United Kingdom's constitutional order: the place of a republican United Kingdom in an increasingly integrated Europe; the place of the courts in a republican constitutional order; and the role of political parties in a republican parliament.
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Varvaštian, Samvel. « Current Legal Developments Climate Change and the Constitutional Obligation to Protect Natural Resources : The Pennsylvania Atmospheric Trust Litigation ». Climate Law 7, no 2-3 (1 septembre 2017) : 209–26. http://dx.doi.org/10.1163/18786561-00702006.
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When it comes to climate litigation, environmental plaintiffs in the United States have demonstrated a remarkable ingenuity in terms of utilizing various legal avenues to compensate for the persisting regulatory gaps. In the last few years, the public trust doctrine and constitutional law have been present among these, in an attempt to put the risks associated with climate change on the map of human rights in relation to the environment and natural resources. However, despite a nationwide occurrence of such lawsuits, courts have been cautious in their approach to them. Similar lawsuits have emerged outside the United States, in Europe and Asia, demonstrating some viability. This analysis addresses the recent litigation in Pennsylvania, where petitioners asked the court to order the state government to take action on climate change and to declare such action a constitutional obligation under the state’s Constitution. 1
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Schmidt, Susanne K. « A Sense of Déjà Vu ? The FCC's Preliminary European Stability Mechanism Verdict ». German Law Journal 14, no 1 (1 janvier 2013) : 1–19. http://dx.doi.org/10.1017/s2071832200001693.
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Over the summer of 2012, the pending verdict of the German Federal Constitutional Court (FCC) was a topic of much speculation not only in Germany and in the European Union (EU), but also on the international level. Christine Lagarde, the managing director of the International Monetary Fund (IMF) was quoted as threatening to leave a meeting, were she to hear again “Bundesverfassungsgericht.” That decisions of a German non-majoritarian institution have such transnational repercussions while being guided by German laws and national considerations is nothing new. The Bundesbank's D-Mark rule was comparable and effectively pushed the introduction of the euro along. But also previous landmark rulings of the FCC on European integration raised cross-border attention, given that the Constitutional Court has the final say on German politics, and the biggest member state and economy of the EU can hardly be ignored. Moreover, being one of the most powerful constitutional courts in Europe, and certainly the one whose judgments receive most attention, rulings of the FCC are not only often cited but may also serve as a role model for other constitutional courts. Protest coming from this angle may therefore multiply.
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Navarrete, Rosa M., et Pablo Castillo-Ortiz. « Constitutional courts and citizens’ perceptions of judicial systems in Europe ». Comparative European Politics 18, no 2 (25 janvier 2019) : 128–50. http://dx.doi.org/10.1057/s41295-019-00154-9.
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Leelapatana, Rawin, et Abdurrachman Satrio Pratomo. « The Relationship Between a Kelsenian Constitutional Court and an Entrenched National Ideology : Lessons from Thailand and Indonesia ». ICL Journal 14, no 4 (20 décembre 2020) : 497–521. http://dx.doi.org/10.1515/icl-2020-0013.
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Abstract Hans Kelsen was a pro-democracy Austrian jurist, who, owing to his Jewish ancestry, was forced to flee to the United States of America after Adolf Hitler’s rise to power. His well-known theory of centralised constitutional review has not only influenced the design of many constitutional courts in Western Europe. It has also expanded to other parts of the world, including Thailand and Indonesia. Having determined to break with their authoritarian pasts, these two Southeast Asian countries decided to establish a Constitutional Court (in 1997 in Thailand and in 2003 in Indonesia), to consolidate their democratic transition as well as to safeguard democracy from attack. This decision inevitably brought the liberal-democratic assumptions underlying Kelsen’s model into competition with entrenched national ideologies traditionally exploited by political power holders and the military to preserve their hegemony – Thai-ness in Thailand and Pancasila in Indonesia. In contrast to Kelsen’s original theory, both these ideologies advocate strong leadership, national harmony and social hierarchy. This paper explores the extent to which the ideological hegemony of Thai-ness and Pancasila affects the performance and jurisprudence of the Thai and Indonesian Constitutional Courts respectively. An alternative understanding of the implementation of the Kelsenian-style Constitutional Court in the absence of its facilitative conditions will ultimately be proposed.
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Pollicino, Oreste. « From Partial to Full Dialogue with Luxembourg : The Last Cooperative Step of the Italian Constitutional Court ». European Constitutional Law Review 10, no 1 (15 avril 2014) : 143–53. http://dx.doi.org/10.1017/s1574019614001084.
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The year 2013 will be remembered as a very good year for the evolution of the judicial conversation between the Court of Justice and the constitutional courts of the member states. This is true at least with regard to the particular form of judicial cooperation that may be considered the institutional channel of dialogue between the Luxembourg Court and national judges: the preliminary ruling mechanism. In 2013 the French Conseil Constitutionnel for the first time in its history sent a request for a preliminary ruling to the ECJ and the latter answered the first preliminary ruling sought in 2011 by the Spanish Tribunal Constitucional. Moreover, the Italian Corte Costituzionale decided for the first time to raise a preliminary reference to the Luxembourg judges in the context of incidenter proceedings. This represents a second step, following an initial one taken in 2008 in so called direct proceedings. The new judicial path of the Italian Constitutional Court (ICC) is in line with the new season of cooperative constitutionalism in Europe.
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Rychetský, Pavel. « Post-Revolutionary Europe ? » osteuropa recht 64, no 4 (2018) : 561–69. http://dx.doi.org/10.5771/0030-6444-2018-4-561.
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The crisis of the rule of law is a threat rather than a real and present danger. The rule of law has many facets and it is firmly rooted in European thought. The current situation in Central and East European countries is, rather, an erosion of their system of values. Constitutional courts, which are the safeguards of basic values of each state, must therefore face pressure from inside their respective nations, which weakens their independence, along with pressure from outside their countries, which narrows the scope of their power.
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CURT, Cynthia Carmen. « "Romanian Commitment to Independence of Justice and Anticorruption Reforms under CVM and Rule of Law Incentives. Some Considerations on Case-Law of the Constitutional Court" ». Transylvanian Review of Administrative Sciences, no 65E (25 février 2022) : 48–63. http://dx.doi.org/10.24193/tras.65e.3.
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"During 2017-2019 Romania faced a controversial justice laws’ ‘reform’, undermining the rule of law and independence of justice principles, challenging the commitments established under Commission Decision 2006/928/EC in the areas of judicial reform and the fight against corruption. In the context of democratic backsliding in Central and Eastern Europe, Romanian evolutions could be seen as following a regional pattern. The study proposes a critical analysis of the most important legislative evolutions in the area of justice and fight against corruption in the region, as reflected by the Cooperation and Verification Mechanism for Romania (CVM) and Rule of Law Reports, European Court of Justice and European Court of Human Rights judgements. The analysis focuses on some controversial decisions of the Constitutional Court, concerning justice laws ‘reform’ and the application of primacy of EU law principle. The study expresses a strong concern related to Romanian Constitutional Court’s tendencies to walk along the authoritarian path of politically captured courts of Poland and Hungary. The conclusions reveal the requirement for new political instruments of EU supranational intervention to safeguard democratic EU core values."
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Ziller, Jacques. « European Union Law in the Jurisprudence of French Supreme Courts : Europe-Friendliness with a French Touch ». European Public Law 21, Issue 4 (1 décembre 2015) : 765–80. http://dx.doi.org/10.54648/euro2015043.
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This paper tries to explain the present day attitudes towards EU law of the three French Supreme Courts to a public of non-French lawyers, with the aim of revisiting the traditional view of a slightly sceptical jurisprudence in European Union matters, which dates from the 1970s; that former attitude could be compared to the present day attitude of the Bundesverfassungsgericht. Nowadays however, while the latter Court appears often to pay lip service to the development of European integration with its own concept of Europafreundlichkeit – which is repeatedly used in the Lisbon Judgment of 2009 of the German Constitutional court and in its following rulings – French supreme courts appear having a truly Europe-friendly attitude since a decade or so, because they have understood that the best way not to be overflown by the tide of EU law is to participate again in its further development, a point that lawyers such as Maurice Lagrange had well understood since the early 1950s.The paper starts with a summary presentation of the French judicial system, in order to clarify why it would not be accurate to concentrate comparisons on the sole constitutional court (section 1), before analysing French jurisprudence on the issue of treaty revision (section 2), and on the application of EU law in France, especially on the transposition of directives (section 3). As a conclusion, the paper tries to explain the intricacies of the apparently diverging jurisprudences of French supreme courts as to the compatibility between the recent system of ‘priority question of constitutionality’ as illustrated by the Melki and Abdeli case of 2010 (section 4).
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Sulikowski, Adam. « Konstytucja — system — hegemonia. „Antypolityczna” funkcja argumentów systemowych w orzecznictwie konstytucyjnym ». Przegląd Prawa i Administracji 104 (19 octobre 2016) : 251–63. http://dx.doi.org/10.19195/0137-1134.104.15.
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CONSTITUTION — SYSTEM — HEGEMONY. ON THE ‟ANTI-POLITICAL” FUNCTION OF SYSTEMIC ARGUMENTS IN CONSTITUTIONAL JURISPRUDENCEThe main purpose of this paper is to examine the function of arguments based on so called systemic interpretation of law in constitutional jurisprudence, using methods and tools offered by the post-analytical, critical philosophy in the field of legal theory. The author notes that constitutional courts apply the systemic argumentation to hide real, political motives of their decisions. The author tries to diagnose the potential impact of this phenomenon on the functioning of liberal democracy, refering to theories developed by C. Lefort, Ch. Mouffe, E. Laclau and J. Habermas. In the Author’s opinion the constitutional activism, which has been masked by the systemic interpretation, is based on the liberal utopia of creation of law without ‟the political”. The rise of populist political forces in Europe can be considered as reaction to the constitutional activism and the crisis of the ‟liberal dream”.
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Kiiver, Philipp. « Book Review : Constitutional Transitions in Central and Eastern Europe, Rights before Courts. A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe, EU Enlargement and the Constitutions of Central and Eastern Europe ». Maastricht Journal of European and Comparative Law 13, no 1 (mars 2006) : 127–44. http://dx.doi.org/10.1177/1023263x0601300106.
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Belavusau, Uladzislau. « Hate Speech and Constitutional Democracy in Eastern Europe : Transitional and Militant ? (Czech Republic, Hungary and Poland) ». Israel Law Review 47, no 1 (11 février 2014) : 27–61. http://dx.doi.org/10.1017/s0021223713000241.
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This article departs from the normative assumptions about the status of militant democracy in transitional countries, while drawing on the constitutional appraisal of free speech and non-discrimination in Central and Eastern Europe during the period 1990–2012. It explores two models (‘American’ and ‘European’) of legal engagement with hate speech, targeting this recurrent constitutional theme to trace the militant in the transitional discourse on freedom of expression. The study scrutinises the legislative framework and the adjudication of the higher courts (constitutional, supreme and appellate courts) in three selected countries of Central and Eastern Europe – the Czech Republic, Hungary and Poland – in an effort to address the dearth of literature in the English language on hate speech laws and policies in these jurisdictions. The author concludes that the discourse on transitional democracy in this post-communist constitutionalism has been substantially constructed as a form of militant democracy, despite some visible influence of the American free speech narrative.
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Sadurski, Wojciech. « ‘Solange, chapter 3’ : Constitutional Courts in Central Europe-Democracy-European Union ». European Law Journal 14, no 1 (19 décembre 2007) : 1–35. http://dx.doi.org/10.1111/j.1468-0386.2007.00400.x.
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Pinelli, Cesare. « Constitutional Reasoning and Political Deliberation ». German Law Journal 14, no 8 (1 août 2013) : 1171–81. http://dx.doi.org/10.1017/s2071832200002212.
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In the recent Anglo-American scholarly debate, contrary to that of continental Europe, judicial review of legislation raises strong criticism for various aspects. Among these, I will examine the claim that legislators are better equipped than courts in constitutional reasoning, on the ground that the institutional settings and procedures affecting the former ensures a better protection of rights than those that characterize the judicial function. The following questions will be posed: Do legislators primarily deal with rights as such? Do they reason about rights, and in that case for which purposes? Are these purposes sufficiently similar to those affecting the judicial reasoning about rights? Why in most legal orders courts are bound to reason-giving? While answering these questions, I will outline the different meaning that consequentialist reasoning is likely to acquire, respectively, in representative assemblies and on the bench. I will then classify the kinds of juridical consequences, and of the corresponding premises, that might affect constitutional reasoning according to the different weight of judicial construction. Finally, I will attempt to demonstrate why the indeterminacy of principles on which constitutional reasoning is expected to rely should be viewed as enhancing, rather than as distorting, the insight of courts on the right at stake.