Published by De Gruyter

Volume 16 Issue 3

Issue of ICL Journal

Contents
Journal Overview

Publicly Available September 9, 2022

Articles

Publicly Available August 22, 2022

Emotion and the Vertical Separation of Powers: Ultra-Vires Review by National (Constitutional) Courts, and EU and International Law

Monika Polzin

Page range: 285-325

More Download PDF

Abstract

Whether national (constitutional) courts are entitled to exercise ultra-vires review of the decisions of the European Court of Justice is not only a controversial question, but also one of the most emotive issues in European and constitutional law. This article questions firstly the general and often emotional criticism of national ultra-vires review in general and answers the fundamental question whether national ultra-vires review represents a threat or rather an asset to the rule of law at a national, European and international level. It argues that a national ultra-vires review is an important instrument to supervise the international judiciary provided that it is not abusive of the law. Secondly, the article analyses the PSPP Judgment and the Polish ultra-vires decision of October 21, 2021. It concludes that only the ultra-vires review of the German Constitutional Court meets the requirements for a rule of law based control. The final argument is that a rule of law based ultra-vires review should be seen as a crucial piece of the puzzle in the current process of delimiting vertical authority.

Open Access July 19, 2022

Contingent Power in the 21st Century Against the Backdrop of Hegel’s Philosophy of Right – Trump and Twitter as Two Sides of the Same Coin?

Elisabeth Paar, Nikolas Raunigg

Page range: 327-351

More Download PDF

Abstract

The Owl of Minerva only spreads its wings at dusk. This Hegelian realization might also apply to the last days of Donald Trump in office which brought about many a precedent in the relationship not only between the then President of the United States and its constitution but also between him and his main means of communication: Twitter. The president’s tumultuous communication surrounding the transition of power climaxed in an angry mob storming the Capitol in a vain attempt to – dependent on whose narrative one credits – either restore or abolish democracy. Twitter’s subsequent decision to ban Trump from using its services for arguably inciting or at least condoning the insurrection quickly led to heated discussions rooted in the issue of the allocation of power within contemporary societies. At the core of these discussions lie two central elements: freedom and the (legitimate) power to restrict it. One side argued that the platform operators had infringed Trump’s freedom of speech. In contrast, the other side claimed that abridging Trump’s ability to communicate whatever came to his mind was an inevitable step to protect the American constitutional order and thus liberal democracy. Meanwhile, attention has gradually been focused on the larger underlying issues. One common aspect is that both positions seem to presuppose a concept of freedom that is all too formalistic. On a more abstract level, the events also boil down to a clash of two separate claims to power: Social media operators opposing the head of state’s claim to do as he wishes. Thus, the paper aspires to analyze the sources of legitimacy for the actions taken by platform operators and their respective counterparts. The analysis is based on Hegel’s Philosophy of Right. In particular, Hegel’s understanding of freedom, the ideal state and of possible legitimate sources for universal rules shall be put to use. The first point of contact in Hegel’s Philosophy of Right is his view of the head of state, his relation to the law, especially to the constitution, and to his constituents. Against this backdrop, it shall be determined how power is distributed in Hegel’s state. Then, an attempt shall be made to transfer the underlying ideas and considerations to the power structure and the legitimizing factors as they are laid down in the US Constitution. Furthermore, the paper examines the state’s possibilities to react to possibly problematic behavior of the head of state. The focus will be placed on the possibility of holding them accountable for actions directed against the state itself or its constitutional order. Particularly against the backdrop of the questionable efficacy of impeachment procedures in deeply divided nations, the question arises as to whether private actors can legitimately intervene. Concretely, whether social media operators may legitimately bar heads of state from using their platforms in order to protect the state, the legal system or democracy.

Notes and Essays

March 22, 2022

Health as a Purpose or as a Right – The Principle of Proportionality and the Measures Against the Covid-19 Pandemic

Gabriel Ducatti Lino Machado

Page range: 353-373

Abstract

The Covid-19 pandemic has given cause for serious restrictions of fundamental liberty rights. In the legal doctrine of fundamental rights, the classical tool for the assessment of the material constitutionality of interferences with fundamental rights is the principle of proportionality. Indeed, the material determinant of the principle of proportionality is the intensity of the intervention in the fundamental right. One preliminary question, however, is often underestimated: the question as to the constitutional status of the interests protected or promoted by the intervening measures. After outlining the structure of the principle of proportionality, this article investigates the constitutional status that the interests protected by Covid-19 measures might have: is the protection of people’s health merely a legitimate purpose or a right? Finally, this article shows, with recourse to decisions of the German and Brazilian Constitutional Courts, the implications that different classifications have for the principle of proportionality.

About this journal

Objective
The Vienna Journal on International Constitutional Law (ICL Journal) is dedicated to the advancement of legal knowledge in the field of International Constitutional Law. Advised by a body of distinguished jurists the Journal publishes high-standard peer-reviewed contributions by scholars and legal professionals from around the globe. 　

Topics

European Constitutional Law
Public International Law
Constitutionalization of International Law
Internationalization of Constitutional Law
Migration of Constitutional Ideas
Legal Theory
Comparative Constitutional Law

By linking these select perspectives the Journal endorses an approach towards a coherent understanding of International Constitutional Law, thus preparing the ground for novel answers to the challenges of a changing global legal framework. The Journal addresses the global scientific community, scholars and researchers in various disciplines working in the field of International Constitutional Law. Moreover, the Journal provides information on recent constitutional developments relevant to practitioners as well as academics, particularly by monitoring the case law of Constitutional Courts in Central and Eastern Europe.

Article formats
Research articles, notes & essays, reports, book reviews.

Volume 16 Issue 3

Issue of ICL Journal

Frontmatter

Emotion and the Vertical Separation of Powers: Ultra-Vires Review by National (Constitutional) Courts, and EU and International Law

Abstract

Contingent Power in the 21st Century Against the Backdrop of Hegel’s Philosophy of Right – Trump and Twitter as Two Sides of the Same Coin?

Abstract

Health as a Purpose or as a Right – The Principle of Proportionality and the Measures Against the Covid-19 Pandemic

Abstract