Published by De Gruyter

Volume 9 Issue 3

Issue of ICL Journal

Contents
Journal Overview

Publicly Available February 8, 2017

Page range: 289-290

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Articles

February 8, 2017

Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’

Anneli Albi

Page range: 291-343

Abstract

Part 1 of this paper (published in the previous issue) documented comparative case law in a number of areas - from the single market to the Data Retention Directive, European Arrest Warrant, ESM Treaty and constitutional review - where constitutional rights and rule of law safeguards have been levelled downwards in the context of implementation of EU law in different Member States. Here, Part 2 of the paper propounds the concept of ‘substantive co-operative constitutionalism’, exploring how European constitutional law and the European constitutional law discourse could be recalibrated towards a greater responsiveness to substantive constitutional values. Part 2 starts by outlining an increasing shift from the mindset and vocabulary of classic, comparative (continental) European constitutional law, to a more formal, procedural, thin version of EU constitutionalism, where the keywords are supremacy, uniformity, direct effect, autonomy, effectiveness and trust. Indeed in the context of democracy and legitimacy in transnational governance, some scholars have written about the ‘erosion’, ‘twilight’ or ‘decline’ of constitutionalism or ‘the end of constitutionalism as we know it’. More recently, Euro crisis measures have prompted heightened concerns about the prolonged and perhaps even irreversible suspension of constitutionalism, the Rechtsstaat and democracy. Yet in the mainstream EU and transnational constitutional law discourse, such concerns have generally received limited attention. The article traces the reasons for the shift in the paradigm of constitutionalism on the basis of the literature on the epistemology of EU law and of transnational constitutional law, and argues that such a shift is not the only way forward. The paper then proceeds to outline some suggestions on how a more substantive version of co-operative constitutionalism could be operationalised in practice. This includes a significantly more probing and proactive role for the national constitutional courts, supreme courts and national parliaments, as well as the creation of mechanisms in the EU institutional and judicial framework for greater responsiveness to constitutional values and constitutional diversity.

February 8, 2017

Where’s Waldo? Looking for the Doctrine of Proportionality in Indian Free Speech Jurisprudence

Ashwita Ambast

Page range: 344-370

Abstract

The doctrine of proportionality has wide, growing transcontinental application in the realm of constitutional rights adjudication. Indian constitutional law is no exception to this trend. This article documents the use of proportionality analysis by the Indian Supreme Court in cases involving the right to free speech. While it is clear that the proportionality analysis has been employed by the Apex Court, it is argued that the application of the doctrine is partial and inconsistent.

February 8, 2017

Understanding Brazilian Administrative Law, the Related Literature, and Education: A Comparison with the System in the United States

Emerson Gabardo

Page range: 371-397

Abstract

This paper presents research on a typical subject in comparative law: doctrinal thinking about (and teaching methods for) administrative law in Brazil and the United States. The paper’s initial research hypotheses are as follows: 1) in contrast to the United States, in Brazil, legal scholarship (legal academic writing) has significantly influenced the construction of the theoretical principles that form the basis of the public administration system; 2) the Brazilian understanding of administrative legal scholarship is distinct from that of the United States regarding several specific but representative issues; 3) in Brazil, administrative law textbooks and monographs focus on general principles and direct state intervention, whereas in the United States, administrative law education focuses on regulatory issues; and 4) regulatory (and policy or decision-making) concepts are more complex than they initially appear. These initial hypotheses will either be confirmed or refuted at the end of the study. The methodological research scope is an analysis of the study, teaching, and theoretical approach to the science of administrative law through a comparison of the two systems. The conclusions aim to assist legal researchers in both countries by broadening the understanding of the differences in meaning between apparently similar institutions and expressions while analyzing relevant semiological differences. Therefore, the paper does not represent an analysis of the particular legal systems but instead offers a methodology for understanding the two jurisdictions under consideration.

February 8, 2017

The European Court of Human Rights and Transnational Judicial Dialogue

Carla M Zoethout

Page range: 398-416

Abstract

Over the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).

Notes & Essays

February 8, 2017

EU Law in the Czech Republic: From ultra vires of the Czech Government to ultra vires of the EU Court?

Ivo Šlosarčík

Page range: 417-431

Abstract

Before the Czech Republic joined the European Union in 2004, its constitution has been amended with objective to guarantee constitutional conformity of the EU accession. The Czech legal system has been opened to external legal provisions and a constitutional mechanism has been established for transfer of competencies to an external entity, all framed by the explicitly formulated constitutional principle of loyalty to the international obligations of the Czech Republic. However, the ‘European amendment’ of the Czech Constitution has left several important issues unanswered, such as the principle of supremacy of the EU law or relations between the Czech Constitutional Court and the Court of Justice of the EU. This article analyses how the Czech Constitutional Court tackled with EU-related constitutional issues that emerged during the first decade of Czech membership in the EU. Focused on four key cases decided by the Czech Constitutional Court (sugar quotas, European Arrest Warrant, Lisbon Treaty, Slovak Pensions), the article will demonstrate how the Czech Constitutional Court combined a conservative and pragmatic approach in its EU law related case-law by formulating a constitutional doctrine of a ‘EU-friendly’ interpretation of Czech constitutional rules, while, at the same time, leaving the EU law formally outside the frontiers of Czech constitutional law and refusing EU law to be used as the ultimate argument in intra-judiciary disputes in the Czech Republic.

Developments Austria

February 8, 2017

‘No to Meat’-March on Holy Saturday - Freedom of Assembly and the Constitutional Court’s new Standard of Review

Philipp Haas

Page range: 432-437

February 8, 2017

Blackening of Files for Hypo Committee of Inquiry illegal

Martin C. Wittmann

Page range: 438-444

Developments CEE

February 8, 2017

Constitutional Court of Romania: Religion in Schools

Tudorel Toader, Marieta Safta

Page range: 445-450

February 8, 2017

Constitutional Court of Romania: Constitutionalization of the Obligations under International Treaties and European Union binding Acts

Mona-Maria Pivniceru, Károly Benke

Page range: 451-456

February 8, 2017

Slovak Constitutional Court: Citizenship Law in the European Context

Lucia Mokrá

Page range: 457-462

Book Reviews

February 8, 2017

Review Essay: Jeff King, Judging Social Rights, Cambridge University Press, 2012, ISBN 9781107 400 320, 370 pp.

Michael Da Silva

Page range: 463-480

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 9 Issue 3

Issue of ICL Journal

Table of Contents

Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’

Abstract

Where’s Waldo? Looking for the Doctrine of Proportionality in Indian Free Speech Jurisprudence

Abstract

Understanding Brazilian Administrative Law, the Related Literature, and Education: A Comparison with the System in the United States

Abstract

The European Court of Human Rights and Transnational Judicial Dialogue

Abstract

EU Law in the Czech Republic: From ultra vires of the Czech Government to ultra vires of the EU Court?

Abstract

‘No to Meat’-March on Holy Saturday - Freedom of Assembly and the Constitutional Court’s new Standard of Review

Blackening of Files for Hypo Committee of Inquiry illegal

Constitutional Court of Romania: Religion in Schools

Constitutional Court of Romania: Constitutionalization of the Obligations under International Treaties and European Union binding Acts

Slovak Constitutional Court: Citizenship Law in the European Context

Review Essay: Jeff King, Judging Social Rights, Cambridge University Press, 2012, ISBN 9781107 400 320, 370 pp.