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Abstract

The idea of human dignity, found in almost all legal and political cultures, now plays a very significant role in political and legal discourse. The concept occupies a prominent place in many national constitutions and international human rights conventions. Some constitutional and conventional laws in fact claim that the pursuit of dignity is (or should be) the central organizing principle of every government. Yet, it is not always clear what this seemingly central concept means or entails. Its popularity seems inversely related to its clarity. Dignity is often invoked in support of opposing positions on the same issue. Using an approach that the article refers to as dignity pragmatism, the author advances the argument that careful examination of the use of dignity in national constitutions and international human rights documents and their elaboration by the relevant tribunals shows that the idea of human dignity is often used in the context of defending the integrity of the person. Here integrity is defined as the condition of wholeness or completeness. The article details what the conditions for integrity are and how human dignity is invoked in its defense. On this account, dignity is an existential value. It is about personhood in its various dimensions – physical, psychological and social. When integrity as wholeness is threatened, existence itself is threatened. Viewed this way, indignity is the effacement of personhood.

Abstract

Depending on how we define a peace regime, we can determine whether we have reached a peace regime on the Korean peninsula, or what and how we have to pursue to reach a peace regime. A new definition of a regime should not be too broad to admit the current balance of powers based on hegemonies and states’ patterns of behaviors, or too restrictive and formal to codify as a multi-national treaty; a simple peace treaty cannot cover everything a peace regime needs to have and reflect the complicated process of peace building, cooperation and tension-reduction. In this paper, I will attempt to find the most-realistic definition for a peace regime to provide an ultimate peace on the Korean peninsula. Further, I will think about how to reach the newly defined peace regime on the Korean peninsula and the obstacles to overcome to reach this peace regime, including: (1) Denuclearization; and (2) How a peace regime can be transnationally supported and peacefully digested and incorporated into the domestic level processes and norms, especially considering that reaching a regime reflecting national interests is a daunting task. Lastly, I will conclude with recommendations for states surrounding the Korean peninsula.

Abstract

This paper discusses the transfer of judicial sovereignty in Kosovo from a comparative perspective. In particular, it addresses the transfer of constitutional jurisdiction to the Special Court of Kosovo. This court was formed as a result of Kosovo’s commitment to address allegations made by the Council of Europe in a document known as the Dick Marty report. The report alleges that war crimes and crimes against humanity and international law were committed during and in the aftermath of the Kosovo war (1998–1999). It took several years for the Court to be formed as constitutional amendments, legal infrastructure, and other practical steps were needed to make the Court operational. These preparatory measures have been taken, but practical results are missing, and there is fear that the Court might end up like previous UN- and EU-led justice systems, which did too little and were too late to address the culture of impunity in Kosovo.

Abstract

This article studies the debate between Schmitt’s theory and legal positivism, which Schmitt identifies as a typical liberal theory of law. Schmitt’s theory, I argue, provides a powerful critique of legal positivism, while offering a meaningful, alternative understanding of law that begins not with norms, but with the will of a legitimate decider. To demonstrate the continuing relevance of the debate Schmitt had with legal positivism, I turn to what I describe as a similar legal positivism/Schmitt debate in American constitutional scholarship. Ultimately, I take a side in this debate, arguing for a fully Schmittian understanding of the Constitution as the will or continuous decision of the people, rather than as positive constitutional norms existing independently of politics.

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Abstract

The issue of protecting the natural persons has been triggering a lot of interest due to the need for providing them with proper means for this purpose. In Romania, the court of guardianship and family plays an important role in protecting this category of persons, court established as a result of the entering into force of the new Romanian Civil code in 2011. The legal norms distinguish between the prerogatives of this court on the protection of the major persons and its attributions in this matter towards the minors. Further on, it will be analyzed certain prerogatives of the guardianship and family court meant for the minor persons.

Abstract

Indication of conditions constituting necessity of modifications within the scope of the Constitution shall be considered while perceiving the leading role of the Constitution in Polish legal order. Constitutional regulations determine standards for the entire legal system of the Republic of Poland. It is also worth a while to consider the need for unambiguous determination of relations of constitutional norms, also with regard to the law of the European Union. Doubts appearing within the scope of systemic rules concern mainly regulations specifying the rule of division and balancing of powers. Actually, they consist in lacks with regard to organization of bodies of each of three powers. Another issue is improvement of solutions determining coexistence of government and local government administration within the broader scope of principles of uniformity of the state and decentralization of public power. The article presents an analysis related to the aforementioned issues.

Abstract

The Icelandic constitutional movement was created to address and develop a new constitutional form based upon transparency, responsibility and participation. Taking into consideration the events, which took place in 2008 this expectation appeared more than legitimate. Furthermore, the quality of the debate, which took place within the civil society and in the cooperation between civil society and Constitutional Council, are very meaningful elements supporting a genuine possibility of change. The aim of implementing a participation-based constitution may lead to the diversification of the Icelandic project with respect to the typology of the existing constitution. This may produce as a result the development of new checks and balances. For this reason the development of public local services may be an opportunity to develop a social balance with respect of the constitution in force, as well as a living constitution starting from below. In this way the values purported by civil society may lead to higher levels of political freedom and finally to the approval of a new constitution. To keep the Icelandic process communicatively open in a transnational perspective may thus permit other persons to contribute to the development of Icelandic democracy. It may furthermore offer the Icelandic example as a useful tool that could be used by many world societies aiming to implement transparency, responsibility and participation in their public life. Indeed, even though the Constitutional Bill of 2011 will not finally be validly approved as the Icelandic constitution, the problems that it posed, and the possibilities that we see are stemming from them, have in our opinion a general importance for constitutional reflections.

Abstract

The overture of the paper provides a brief survey of the philosophical positions (from Aristotle to the contemporary debate) focusing the conjecture of the legal and constitutional continuum as a problematic presupposition of theories of constituent power. The positions of the authors that we can call as continuist authors (up to Kelsen and the neo-normativism, including Soviet jurists and theorists of the constitutional cycles) constitutes the dominant part of the theoretical evolution. We discuss it (respectfully) even if we openly criticize it, with a peculiar debate involving that other position called as discontinuist (whose authors are especially Marxists philosophers, anti-fascist intellectuals like Piero Gobetti, and their references in philosophy such as Leibniz and Vico).

In the first movement of the paper, we reconstruct the equivoque at the basis of the conjecture of the continuum. It corresponds to a «three-time» scheme of constitutional dynamics: (revolutionary) rupture – transition – constitution. This structure makes useless (conceptually unusable, and perhaps sources of logical contradictions) both rupture and transition.

The second and final movement underlines the theoretical demand to consider the transition and the constitution as coextensive domains. Transition is, in other words, already Constitution, and the constitution is always a transition. To the latter ones, we introduce and add another phenomenon characterizing the historical phase of the transition, namely the Resistance.

The fact of resistance escapes the constitutionalisation, and imposes upon the latter a necessary character of transition.

Abstract

The constitutional catalogue of the sources of law, clear and unambiguous division of acts into commonly binding and internal ones, is of fundamental meaning for the realization of the state of law rules, i.e. legalism and the rule of law, from the perspective of European democracies. Since it is the essence of every democratic legislation to base its functioning on the law established by organs that have been assigned for that aim, binding its addressees and executed by public authorities, also with the use of the means of coercion.

This article aims at presenting the outline of the constitutional system of the sources of law in the Russian Federation and illustrating it, as much as it is possible, with acts regarding the conservation of the environment. In particular, the objective of this work is to determine the name of a given source, an organ competent to issue it, its function and position in the hierarchy, as well as the rule of promulgation. The key research issue here is the distinguishing between the sources of commonly binding law and the ones of internal law, as the regulation of the Russian Federation Constitution does not preordain explicitly. Yet this issue is of crucial significance when it comes to the status of law subjects. Acts of internal character may be directed merely at organizational units submitted to an organ issuing the acts and may not directly regulate the sphere of rights and obligations, neither constitute the bases of decisions concerning citizens, legal entities or other subjects.