Published by De Gruyter

Volume 9 Issue 4

Issue of ICL Journal

Contents
Journal Overview

Publicly Available February 8, 2017

Inhalt

Page range: i-i

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Publicly Available February 8, 2017

Page range: 481-482

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Articles

February 8, 2017

Parliamentary Sovereignty – A Doctrine Unfit for Purpose

Alexander Orakhelashvili

Page range: 483-513

Abstract

Parliamentary sovereignty in the British constitutional context is expressive of the utilitarian philosophy which dictates that government is there to gratify the wishes and interests of the majority to the greatest extent possible. This approach, at times cast in more moderate terms as ‘democratic legitimacy’, arguably reflects the majoritarian underpinnings of British parliamentarism. A close look on the workings of ‘parliamentary sovereignty’ reveals, however, that its discrete constitutional relevance is not great. Courts in the English legal system retain their full-fl edged law-making power, and are entitled to balance the legislation-backed public utility by common law constitutional considerations. The examination of the relevant aspects of English law shows that parliamentary sovereignty is neither sufficient nor necessary for properly articulating and giving effect to the demands of public utility.

February 8, 2017

Restoration Constitution-Making

William Partlett

Page range: 514-547

Abstract

This Article will examine an important - but largely ignored - approach to constitution- making: The use of restored constitutional orders as the basis for the creation of a new constitutional order. Looking at this ‘restoration constitution-making’ in post-communist constitutional transition, it will describe how restoration held both advantages and disadvantages. On one hand, restoration improved the politics of constitution-making by helping to avoid the elite manipulation of extraordinary institutions during constitutional drafting. On the other hand, the restoration of decades-old constitutions also led to restored laws that privileged past generations and undermined broad popular participation. Finally, restoration was an important part of gaining international recognition for independence. This international component suggests that constitution-making is about more than just domestic politics. These findings are an important first step in understanding the potential of restoration to ensure a successful constitutional transition.

Notes & Essays

February 8, 2017

You Break it, You Own it: South African Assembly Jurisprudence after Garvis

Stu Woolman

Page range: 548-571

Abstract

Can one square the invariably raucous natures of demonstrations and gatherings, and the fundamental right to assembly, with the imposition of strict liability upon the organizers for any harm to person or damage to property caused by an assembly, demonstration and gathering? The South African Constitutional Court in Garvis 1 suggests that one can. This article contends that a court cannot.

February 8, 2017

On the Obergefell Dissenters′ Selective Judicial Self-restraint

Ronald Turner

Page range: 572-580

Abstract

In its landmark decision in Obergefell v Hodges a five-Justice majority of the United States Supreme Court held that state laws depriving same-sex couples of the right to marry violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Four dissenting Justices - Chief Justice John G Roberts, Jr and Justices Antonin Scalia, Clarence Thomas, and Samuel Anthony Alito, Jr - criticized the majority’s ruling and analysis. Calling for judicial self-restraint and deference to the outcomes of democratic decision-making, the dissenters argued that same-sex marriage bans enacted by state legislatures did not violate the Constitution. This essay argues and demonstrates that the Obergefell dissenters have not restrained themselves in other cases in which they voted to strike down legislative enactments and did not defer to democratic decision-making. This selective restraint reveals that the dissenters have not been unwaveringly committed to judicial self-restraint, and raises the central question of when should the Court defer to legislatures in cases presenting constitutional challenges to state or federal laws.

February 8, 2017

The Use and Abuse of Definitions in Constitutional Law

Alec Walen

Page range: 581-585

Abstract

Justice Roberts′s dissent in Obergefell v Hodges - the case in which the US Supreme Court found a constitutional right for same sex couples to marry - rested on the premise the Court cannot invoke the right to marry as a basis for changing the definition of marriage. But his argument works only if the Court has no obligation to find a constitutional meaning for the term. I argue here that it has such an obligation. I argue further that an analogy with the concept of ‘person’ throws light on how that obligation should work. And finally, I argue that the most plausible constitutional definition would include same sex couples.

Developments Austria

February 8, 2017

Hypo Reorganization Act Violates Right to Property

Claudia Wutscher

Page range: 586-593

February 8, 2017

The Obligation to determine ‘Risk of Absconding’

Eva-Maria Kittl

Page range: 594-599

February 8, 2017

Provisions for Appeals against Detention Pending Deportation violate the Austrian Constitution

Veronika Krysl

Page range: 600-604

Developments CEE

February 8, 2017

Constitutional Court of Romania: National Cybersecurity versus Fundamental Rights and Freedoms

Daniel Marius Morar, Mihaela Senia Costinescu

Page range: 605-611

February 8, 2017

Constitutional Court of Romania: The Requirements for the Registration of a Political Party

Valer Dorneanu, Marieta Safta

Page range: 612-620

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 4

Issue of ICL Journal

Inhalt

Table of Contents

Parliamentary Sovereignty – A Doctrine Unfit for Purpose

Abstract

Restoration Constitution-Making

Abstract

You Break it, You Own it: South African Assembly Jurisprudence after Garvis

Abstract

On the Obergefell Dissenters′ Selective Judicial Self-restraint

Abstract

The Use and Abuse of Definitions in Constitutional Law

Abstract

Hypo Reorganization Act Violates Right to Property

The Obligation to determine ‘Risk of Absconding’

Provisions for Appeals against Detention Pending Deportation violate the Austrian Constitution

Constitutional Court of Romania: National Cybersecurity versus Fundamental Rights and Freedoms

Constitutional Court of Romania: The Requirements for the Registration of a Political Party