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1
QERIMI, QERIM. „The contents and contours of contemporary cosmopolitan constitution-making: Immanuel Kant in the twenty-first century“. Global Constitutionalism 8, Nr. 2 (13.06.2019): 227–69. http://dx.doi.org/10.1017/s2045381719000078.
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Abstract:This article articulates legal and practical discourse that seek to apply and extend the classic cosmopolitan ideals of Immanuel Kant to the evolving practice and reality of the twenty-first century. It identifies five major strands through which cosmopolitan law ideals express themselves in contemporary constitution-making, forming in turn the major composite cosmopolitan contents. In some sense, the proposed framework re-imagines Kant in the twenty-first century, mirroring a conjoined classic and contemporaneous concept of cosmopolitan constitution-making. Kantian cosmopolitanism is reinterpreted by way of conjoining the classic cosmopolitan moral and normative principles of universal freedom, human worth and global justice to emerging and actual contemporaneous constitution-making trends such as using international or comparative foreign models as a basis for constitutional design, using international law and foreign domestic law in national constitutional interpretation, or using regional or international bodies of adjudication and their jurisprudence as a constitutionally mandated source of law. The outlined framework seeks to transcend the occasional historical setbacks and sceptical objections to cosmopolitanism, while admitting their continuous, albeit gradually unobtrusive presence. This framework is naturally predisposed to be deferential to a bold imaginative project, such as the one embodied in the Kantian vision of cosmopolitanism, which is both rooted in and survived the historical forces that ran contrary to the cosmopolitan ideals, to reach a point of its ever closer materialisation.
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Singh, Avinash. „Contours of Presidential Power Across Constitutional Systems“. Gibs Law Journal 4, Nr. 1 (2022): 46–52. http://dx.doi.org/10.5958/2582-7529.2022.00008.4.
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Issacharoff, Samuel. „The Constitutional Contours of Race and Politics“. Supreme Court Review 1995 (Januar 1995): 45–70. http://dx.doi.org/10.1086/scr.1995.3109609.
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Blokker, Paul. „Symposium on Zoran Oklopcic’s ‘Beyond the People: Social Imaginary and Constituent Imagination’ – Introductory remarks“. International Journal of Social Imaginaries 1, Nr. 2 (25.11.2022): 219–32. http://dx.doi.org/10.1163/27727866-bja00017.
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Abstract This symposium discusses Zoran Oklopcic’s book Beyond the People: Constitutional Imaginaries and Constituent Imagination. The book is an important contribution to the emerging debate on constitutional imaginaries and imagination in constitutional theory, of which this introduction delineates the contours.
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Hirschl, Ran. „Opting Out of “Global Constitutionalism”“. Law & Ethics of Human Rights 12, Nr. 1 (26.06.2018): 1–36. http://dx.doi.org/10.1515/lehr-2018-0003.
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Abstract Much has been written about the global convergence on constitutional supremacy. Yet, a closer look suggests that while constitutional convergence trends are undoubtedly extensive and readily visible, expressions of constitutional resistance or defiance may in fact be regaining ground worldwide. This may point to a paradox embedded in global constitutionalism: the more expansive constitutional convergence trends are, the greater the likelihood of dissent and resistance are. In this article, I chart the contours of three aversive responses to constitutional convergence: neo-secessionism, nullification, and deference to local authority, and draw on an array of comparative examples to illustrate the distinct logic and characteristics of each of these responses. Taken together, these increasingly common expressions of defiance provide ample evidence that global constitutionalism is not the only game in town. Neo-secessionism, nullification, and other forms of constitutional dissent and “opting out” may thus be viewed as a reaction against the centralization of authority and the decline of the local in an increasingly—constitutionally and otherwise—universalized reality.
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Kannabiran, Kalpana. „The Shifting Sands of Citizenship: Dispossessions, Constitutional Ruptures and Borderlands*“. Sociological Bulletin 69, Nr. 3 (12.10.2020): 331–50. http://dx.doi.org/10.1177/0038022920956736.
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This article looks at dispossession through four trajectories—segregation/‘untouchables’; eviction/‘encroachers’; de-citizenisation/‘illegal interlopers’; occupation/ ‘anti-nationals’—each of which destabilise the foundational basis of citizenship, and contain gendered reverberations. Violence and structural inequalities lie at the core of state practice, temper constitutional prerogatives and fuel dispossession. Impunity lies at the heart of these processes. Each of these four methods speak to a historical specificity, have distinct consequences and afterlives, different affects and engender distinct modes of resistance. The articulation of the basic idea of dispossession in these terms I argue is itself recall of the tremendous corpus of writing from the borderlands and recall of border imaginings that help us make meaning of territories by dispossession. The four-pronged rupture of constitution-speak jeopardises the constitutional imagination of the nation and affects the very claim to citizenship in the borderlands as set out within the contours the constitution.
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Masterman, Roger. „The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court: institutional proximity and jurisprudential divergence?“ Northern Ireland Legal Quarterly 71, Nr. 2 (14.08.2020): 285–302. http://dx.doi.org/10.53386/nilq.v71i2.320.
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It is often claimed that the constitutional role of the UK’s apex court is enriched as a result of the experiences of the Judicial Committee of the Privy Council as interpreter of constitutions within its overseas jurisdiction. This paper considers the relationship between the House of Lords/UK Supreme Court and the Judicial Committee and its effect on the importation of external influences into the UK’s legal system(s), further seeking to assess how far the jurisprudence of the Judicial Committee has influenced constitutional decision-making in the UK apex court. While ad hoc citation of Privy Council authorities in House of Lords/Supreme Court decisions is relatively commonplace, a post-1998 enthusiasm for reliance on Judicial Committee authority – relating to (i) a ‘generous and purposive’ approach to constitutional interpretation and (ii) supporting the developing domestic test for proportionality – quickly faded. Both areas are illustrative of a diminishing reliance on Judicial Committee authority, but reveal divergent approaches to constitutional borrowing as the UK apex court has incrementally mapped the contours of an autochthonous constitutionalism while simultaneously recognising the trans-jurisdictional qualities of the proportionality test.
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Bezrukov, Andrey, und Ivan Teplyashin. „The Modern Model of Constitutional Law: The Contours of the Formation“. Journal of Russian Law 25, Nr. 1 (08.07.2021): 1. http://dx.doi.org/10.12737/jrl.2021.008.
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Bruggeman, Robbert, und Joris Larik. „The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity“. Utrecht Journal of International and European Law 35, Nr. 1 (2020): 20–34. http://dx.doi.org/10.5334/ujiel.489.
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MEDEIROS MARTINS, RAFAEL. „LEVANDO AS ESTATAIS A SÉRIO: UMA ABORDAGEM DE FUNDO“. Revista Científica Semana Acadêmica 11, Nr. 234 (19.06.2023): 1–10. http://dx.doi.org/10.35265/2236-6717-234-12627.
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The study investigates the reasons that justify the introduction of state-owned enterprises into the economic domain, thereby shaping the contours of the Brazilian entrepreneurial State. To this end, it examines the relevant constitutional foundations, the economic and political reasons that inspire public entrepreneurship, and the justifying public interest.
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MÜLLER, THOMAS. „Global constitutionalism in historical perspective: Towards refined tools for international constitutional histories“. Global Constitutionalism 3, Nr. 1 (13.02.2014): 71–101. http://dx.doi.org/10.1017/s2045381713000051.
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AbstractThis article raises the question of how the evolution of constitutional structures in international history can be conceptualized and narrated. This question is nurtured by the divergent historical accounts found in the literature on global constitutionalism and the historical-comparative literature on international societies. Although both literatures have so far largely ignored each other, they share a number of common conceptual problems and should therefore engage in a dialogue. The article sketches out the contours of such a dialogue to reveal the insufficient sensitivity of both literatures to the historicity of constitutional structures as well as their inherent political dimension. This article proposes to conceptualize constitutional structures as a set of fundamental and prioritized principles and rules that serves as a framework for the self-ordering of relations between polities. It thereby differentiates between a meta-constitutional and a legal-constitutional dimension and proposes seven analytical tools for more nuanced and empirically sensitive constitutional histories of interpolity relations. Such a historical perspective helps to account for the conditions of emergence as well as to delineate the novelty of contemporary global constitutionalism.
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Yasin, Abida, Taimoor Raza Sultan und Ali Haider Chattha. „DOCTRINE OF JUDICIAL REVIEW: CONSTITUTIONAL STUDY OF AMERICAN LEGAL SYSTEM“. Pakistan Journal of Social Research 04, Nr. 01 (31.03.2022): 657–63. http://dx.doi.org/10.52567/pjsr.v4i1.932.
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The paper comprehensively highlights the contours of Judicial Review, along with historical evolution of doctrine in United States of America. It also attempts to discuss transformative tendencies of judiciary from being a reticent institution to an interventionist one. Furthermore, it extensively dilates upon the conceptual anomalies of judicial review along with its ever-expanding scope in executive and legislative realm. Lastly, it holistically examines the practical limitations as well as philosophical constraints of the concept.
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Doering-Manteuffel, Anselm. „X. Gesetzesbruch als Prinzip. Entwicklungslinien des weltanschaulichen Radikalismus in der Führerdiktatur“. Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung 132, Nr. 1 (01.08.2015): 420–40. http://dx.doi.org/10.7767/zrgga-2015-0113.
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Breaking the Law as a Norm: Contours of Ideological Radicalism within the Nazi Dictatorship. This article analyzes the relationship between Nazi legal experts’ efforts to create a canon of constitutional law for the Third Reich and the ideological radicalism characteristic of Hitler and the SS-state. The attempts of legal professionals to establish “völkisch” constitutional law emerged out of the staunch anti-liberalism that had spread throughout Germany since the end of World War I. However, this “völkisch” constitutional law bore no resemblance to rational European legal thought. It not only proved to be ineffective for this reason, but also because the ideological radicalism that reigned supreme in the Third Reich sought to break the law and let lawlessness rule.
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Marks, Amber. „DEFINING ‘PERSONAL CONSUMPTION’ IN DRUG LEGISLATION AND SPANISH CANNABIS CLUBS“. International and Comparative Law Quarterly 68, Nr. 1 (Januar 2019): 193–223. http://dx.doi.org/10.1017/s0020589318000404.
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AbstractThis article provides an analysis of the normative framework for Spanish cannabis clubs by contextualizing it within the growing body of comparative constitutional law that recognizes legal obstructions to personal drug consumption as intrusions of the right to privacy. Article 3(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 relieves State parties from the Article's obligation to criminalize drug possession and cultivation for ‘personal consumption’ when doing so would conflict with their constitution or basic concepts of their legal system. Spain relied on Article 3(2) in its decision not to criminalize conduct involving personal consumption. The Spanish judiciary has had to consider the legal implications of collective consumption and cultivation in the form of cannabis clubs. In addition to operating in a grey area of domestic law, Spain's cannabis clubs straddle the blurred boundary in international and European legal instruments between ‘personal consumption’ and ‘drug trafficking’. This article explores the theoretical and doctrinal implications of both Spanish law on cannabis clubs and comparative human rights law on drug use to outline the potential contours of a constitutionally protected zone of privacy pertaining to cannabis use in a social context.
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Wyss, Martin. „Die schweizerische Bundesversammlung und das Völkerrecht – Spurensuche zwischen Verfassungsrecht und politischer Praxis“. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law 83, Nr. 4 (2023): 903–24. http://dx.doi.org/10.17104/0044-2348-2023-4-903.
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The constitutional role of parliament in foreign policy in general and in the further development of international law relevant to Switzerland cannot be reduced to a simple denominator. In the small state of Switzerland, the parliament’s understanding of its role oscillates back and forth between fears of commitment, worries about isolation and the desire for active co-responsibility. The Federal Constitution formulates only very sparingly what the Federal Assembly as parliament has to do in the field of foreign policy. Political practice has given new contours to parliamentary self-understanding: The question of the right relationship with Europe, the position and significance of soft law, and the concretisation of the law of neutrality have been in the foreground. Parliament is trying to actively develop the instruments that the federal constitution and parliamentary law place at its disposal: Extensive use is made of consultation rights, and the approval of treaties demonstrates a willingness to play an active role.
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KOMMERS, DONALD P. „The Federal Constitutional Court in the German Political System“. Comparative Political Studies 26, Nr. 4 (Januar 1994): 470–91. http://dx.doi.org/10.1177/0010414094026004004.
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The Federal Constitutional Court is an important policy-making institution in the German political system. As the guardian of the Basic Law, the Constitutional Court has played a critical role in umpiring the federal system, resolving conflicts among branches of the national government, overseeing the process of parliamentary democracy, monitoring the financing of political parties, and reviewing restrictions on basic rights and liberties. In each of these areas, the Court's decisions have shaped the contours of German life and politics. Its influence is fully the equal of that of the Supreme Court in American politics. Despite its “activist” record of nullifying laws favored by legislative majorities, the German Court has managed to retain its institutional independence as well as the trust of the general public.
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Al-Sudairy, Ziad. „The Constitutional Appeal of Shari'a in a Modernizing Saudi State“. Middle East Law and Governance 2, Nr. 1 (2010): 1–16. http://dx.doi.org/10.1163/187633610x12538730567044.
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AbstractIn 2007 and in a drive to modernize its legal system, Saudi Arabia promulgated the new Law of the Judiciary which aims at beginning a process of codifying Shar'ia Law, unifying the Saudi Court System and making the administration of state legislation a function of the reluctant Shar'ia courts. This project, however, entails revisiting traditional Shari's legal principals heretofore held sacrosanct and presumes to redraw the contours of legitimate state power while simultaneously limiting the constraining role of Shar'ia. As such, the new Law of the Judiciary constitutes a major challenge to the Saudi Shar"a establishment and its implementation, or lack thereof, shall reflect on the extent the Saudi constitutional landscape has evolved.
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Roniger, Luis. „Contesting Liberal Citizenship“. ProtoSociology 38 (2021): 229–43. http://dx.doi.org/10.5840/protosociology20213812.
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Political and social research on populism has discussed its development in the framework of modern constitutional democracies. Populism thrives as ‘parasitic’ to those democracies by addressing their unfulfilled promises. Citizens’ loss of trust in the system opens the way for varied forms of ‘populist ruptures’, facilitating the construction of the category of ‘the people’, through which leaders and their followings claim to stand for all citizens and embody the common will. This article analyzes how, both discursively and performatively, populism addresses major parameters and antinomies of Liberal democratic citizenship, e.g., by recalibrating representation and mass participation. Analysis indicates that by impacting the contours of collective identity as much as citizen expectations, entitlements and commitments, populism challenges the Liberal conceptions of citizenship that uphold modern constitutional democracies.
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Doyle, Oran, Erik Longo und Andrea Pin. „Populism: A health check for constitutional democracy?“ German Law Journal 20, Nr. 3 (April 2019): 401–7. http://dx.doi.org/10.1017/glj.2019.21.
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Abstract“Populism” appears everywhere: a frequently proffered assessment—or perhaps diagnosis—of constitutional systems around the world. Both its supporters and opponents emphasise its newness. But its phisiognomy, causes, and impact on legal orders and institutions are a matter of deep controversy. In a few words, its contours and core components adapt to different constitutional settings. Populist forces back a variety of agendas, which often overlap in a more rhetorically than concrete way.The authors of this issue divide themselves among opponents to populism and moderately optimistic observers. In this respect, populism has probably become a catalyst both for its supporters and detractors. Populism identifies through ideas that rally increasing number of discontents. But also opponents identify as populists the perceived threats to liberal democracy as they understand them.Defining populism has not simply proven to be a Sysyphean task; it has also showed that it is all but easy to pin down what a liberal democracy is made of. Contemporary debates about the fate of democracy need to abandon metaphysics for a more realistic, down-to-earth approach that is sensitive of the specificities of each constitutional setting.
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Pozen, David, und Adam Samaha. „Anti-Modalities“. Michigan Law Review, Nr. 119.4 (2021): 729. http://dx.doi.org/10.36644/mlr.119.4.anti-modalities.
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Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters—the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the “anti-modalities” of constitutional law and to investigate their implications. The anti-modalities both stabilize and undermine the modalities. On the one hand, they work in tandem to ensure that constitutional interpretation remains a distinctive legal enterprise. The two argument bundles are in this sense mutually reinforcing, even co-constitutive. On the other hand, by ruling out various important categories of reasoning—from general moral theory to emotional judgment to many cost-benefit calculations—the anti-modalities put continuous pressure on the modalities to accommodate such reasoning in adulterated forms, or else insist on a long distance between the inputs into supreme law and the concerns that most people care about. We call this distance constitutional law’s “resonance gap.” Such a gap arises in all areas of law, but it is especially pronounced in the constitutional realm. Although the anti-modalities play a critical role in preserving the law/politics distinction, they have deleterious consequences for each side of that line. The best response, this Article suggests, is not necessarily to narrow the resonance gap but rather to narrow the domain of constitutional law. If constitutional argument must exclude (or purport to exclude) vital modes of reasoning, we might worry less about refining its grammar and more about restricting its reach.
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Grigorev, Egor, Timur Gulyaev und Svetlana Maximova. „Rough Edges of the Status of a Foreign Agent. Problems of Legislative Regulation“. Baikal Research Journal 15, Nr. 1 (30.03.2024): 276–85. http://dx.doi.org/10.17150/2411-6262.2024.15(1).276-285.
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The Institute of Foreign Agents has gained particular importance in modern Russian legal reality. The adoption of the new federal law contributed to the unification of the regulation of this institution, but the current legislation needs in-depth study. The article is devoted to the legal understanding of the status of a foreign agent - a domestic short story in the constitutional model of rights and freedoms. It was established that the legal regulation of the status of a foreign agent meets the constitutionally significant goals of protecting the foundations of the constitutional system, rights and freedoms, and ensuring the security of the state. The need for legislative consolidation of this institution in Russia corresponds to the evolution of public-political relations. Based on the conducted comparative legal analysis of foreign experience, the contours of the legal model for securing such status in Russia are defined, the problems of the status of a foreign agent as a subject of legal regulation are identified. The authors consider the status of persons affiliated with foreign agents, their role in relation to foreign agents. An analysis of the norms of administrative and criminal legislation regulating legal relations, which arise in violation of legal instructions established for foreign agents is carried out. Based on the results of the scientific study, practical recommendations are proposed for improving and modernizing domestic legislation on foreign agents.
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Stacey, Richard. „The Magnetism of Moral Reasoning and the Principle of Proportionality in Comparative Constitutional Adjudication“. American Journal of Comparative Law 67, Nr. 2 (Juni 2019): 435–75. http://dx.doi.org/10.1093/ajcl/avz015.
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Abstract A constitutional limitations clause manages the conflict between constitutional rights and the legislative pursuit of broader social objectives. In six paradigm postwar constitutional democracies—Canada, Germany, India, Israel, Poland, and South Africa—the principle of proportionality has emerged as the analytical fulcrum of the judicial inquiry into the constitutionality of rights limitations. Criticism of the principle of proportionality has crystallized into three main objections: proportionality analysis devalues rights by exposing them to the ordinary processes of political bargaining; it offends the rule of law because it depends on unpredictable moral reasoning; and it involves the unintelligible balancing of incommensurable goods. This Article considers, first, whether limitations jurisprudence in the paradigm countries contains responses to these objections. It argues that there are ways of meeting the devaluation and incommensurability objections, but suggests that models of analysis that purport to meet the unpredictability objection by minimizing the role of moral reasoning are undermined by the continued judicial reliance on moral reasoning in the paradigm countries. The Article argues, second, that moral reasoning maintains this magnetic attraction over judges because the conception of the rule of law at work in the paradigm countries, and which judges and other public officials are committed to upholding, compels judges and legislators to engage directly and fully with the normative commitments a political community makes and which inform its constitution. Because people reasonably disagree over the content and contours of these normative commitments, judges cannot rely on a de-moralized analysis but must make arguments intended to persuade rational, morally autonomous members of a political community how our most fundamental normative commitments should be understood by the legal system.
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De Wet, E. „THE EMERGING INTERNATIONAL CONSTITUTIONAL ORDER: THE IMPLICATIONS OF HIERARCHY IN INTERNATIONAL LAW FOR THE COHERENCE AND LEGITIMACY OF INTERNATIONAL DECISION-MAKING“. Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 10, Nr. 2 (04.07.2017): 20. http://dx.doi.org/10.17159/1727-3781/2007/v10i2a2806.
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The article examines the contours and implications of the emerging international constitutional order. The "constitutional" nature of this order relates to the fact that it contains certain fundamental substantive and structural norms that form a supreme legal framework for the exercise of public power. The substantive elements primarily include the value system of the international legal order, meaning norms of positive law with a strong ethical underpinning (notably human rights norms) that have acquired a special hierarchical standing vis-à-vis other international norms through state practice. The structural elements refer to the subjects of the international legal order that collectively constitute the international community (polity), as well as the mechanisms for enforcement of the international value system. This vision of an international constitutional model is inspired by the intensification in the shift of public decision-making away from the nation state towards international actors of a regional (for example EU) or functional (for example WTO, UN) nature, and its eroding impact on the notion of a “total” constitutional order, where the fundamental substantive and structural norms that form the supreme legal framework for the exercise of public power are concentrated in the nation state. It is also inspired by the belief that such a supreme legal framework is only possible in a system where different national,regional and functional legal orders complement each other in order to form an international constitutional order.
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Sándor, Lénárd. „The Constitutional Dilemmas of Terminating Intra-EU BITs“. Central European Journal of Comparative Law 3, Nr. 1 (22.02.2022): 177–93. http://dx.doi.org/10.47078/2022.1.177-193.
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The adoption of the agreement for the termination of intra-EU bilateral investment treaties in 2020 is a big step forward in the long saga of these investment treaties. This agreement aims to overcome every point of discord between the investment agreements and the EU legal order by terminating both intra-EU bilateral investment treaties and the pending dispute settlement procedures that arose from them. In light of the landmark 2018 Achmea judgement, the agreement asserts that the key role should be given to the Court of Justice of the European Union in this area. This is a great endeavour since almost one-fifth of the investment arbitrations worldwide came from disputes within the European Union. However, it does not seem that the agreement will have the final say since constitutional questions were raised concerning its application. In this spirit, this article briefly outlines the legal and constitutional dilemmas intra-EU bilateral investment treaties pose in the European Union. Then, it outlines the contours and major provisions of the termination agreement, especially with regard to the pending arbitration proceedings. In light of a concrete case brought before the Hungarian Constitutional Court, the article explores the constitutional dilemmas raised by the termination agreement. It highlights three major questions: the international legal aspects, the question pertaining to the European judicial dialogue, and the constitutional principle of non-retroactivity. The article takes into account the major theoretical aspects of each of these dilemmas.
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Bayir, Derya. „Turkey, the Kurds, and the legal contours of the right to self-determination“. Kurdish Studies 1, Nr. 1 (02.09.2013): 5–27. http://dx.doi.org/10.33182/ks.v1i1.383.
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Within international law, the concept of self-determination has evolved over the years so as to reveal an external dimension, often associated with secession, and an internal dimension, entailing participatory democracy, minority protection in the context of pluralist co-existence within the territories of a state. An examination of the interpretation of self-determination by the Constitutional Court in Turkey shows, however, that the Court has statically endorsed the former, conservative viewpoint, which reinforces Turkey's militantly nationalist, democracy. This article explains the development of the right of self-determination in international law and examines the Turkish Constitutional Court's case law in that light. In a study of the case law on party closures in Turkey, it evaluates the extent to which the Constitutional Court's archaic and anti-democratic interpretation has created a legality undermining the ethno-cultural and political demands for the rights of Kurds in Turkey.Tirkiye, Kurd û derbenda zagonî ya mafê biryardana çarenûsDi nav dorbenda zagona navnetewî da konsepta mafê biryardana çarenûs piştî gelek salan guheriye. Ev guherîn ji aliyekî ve rehendeka derveyî eşkere dike ku bi cudaxwaziyê ve têkildar e; ji aliyê din ve jî rehendeka hindirîn eşkere dike ku vê yekê rê daye demokrasiya beşdar û parastina kêmaniyan di konteksta pevrejiyaneka piranîgir/pluralîst di nav sînorên dewletê da. Lê belê, hûrnêrîneka li şîrovekirina mafê biryardana çarenûs ji layê Dadgeha Qanûna Bingehîn li Tirkiyeyê nîşan dide ku vê dadgehê herdem nêrîna pêşîn ya kevneparêz pesend kiriye ku vê jî rê daye xurtkirina demokrasiyeka neteweperest a mîlîtan. Ev gotar geşebûna mafê biryardana çarenûs di zagona navnetewî da rave dike û bi vê rêkê hewl dide ku dozeka Dadgeha Qanûna Bingehîn a Tirkan vekole. Bi xebateka li ser dozeka zagonî derbareyê girtina partiyan li Tirkiyeyê, ev gotar dinirxîne bê ta çi astî şîroveyên Dadgeha Zagonî yên kevneparêz û dij-demokratîk têgihiştineka qanûnî ava kiriye ku peşkê li daxwazên etno-çandî yên Kurdên li Tirkiyeyê dixe. تورکیا، کورد، و ڕەهێلە یاساییەکانی ماف و مافی چارەی خۆنووسین لە یاسای نێونەتەوەیی دا، چەمکی مافی چارەی خۆنووسین کە بە درێژایی ساڵان لە گەشەکردن دابووە، لایەنێکی دەرەکی هەیە کە گەلێک جاران لە پەیوەندی لە گەڵ دابڕان و جودایی خۆازی باسی لێکراوە، ولایەنێکی نێوخۆیی کە گوزارە لە دیموکراسی بەشداربووانە و پاراستنی کەمینە لە زەمینەی ژیانی هاوبەشی پلوڕالیستی لە نێو خاکی دەوڵەتێک دا دەکات. پێداچوونەوەیەکی دادگای یاسای بنەڕەتی تورکیا لە سەر خویندنەوەی مافی چارەی خۆنووسین، هەر ڕێگا بە هەمان بۆچوونی کۆنەپارێزانە دەدات کە لە ڕاستی دیموکراسی ناسیۆنالیسمی میلیتان بە هێزدەکات. ئەم نووسراوەیە باس لە گەشەکردنی مافی چارەی خۆنووسین لە یاسای نێونەتەوەیی دا دەکات و هەر لەم پەیوەندییە دا تیشک دەخاتە سەر دادگای یاسای بنەرەتی تورکیا و هەڵس و کەوتی لەم کەیسە یاساییە تایبەتە دا. لیکولینەوەیەک کە لە سەر کەیسی یاسا لە پەیوەندی بە داخستنی پارتە سیاسییەکان لە تورکیا ئەنجام دراوە، نیشانی دەدات کە هەتا چ رادەیەک خویندنەوەی کۆن و دژە دیمۆکراتیکی دادگای یاسای بنەڕەتی تورکیا، بۆتە هۆکاری لەباربردن و بنهڵۆل کردنی زەمینەی یاسایی داواکارییە کولتوری، ئیتنیکی و سیاسییەکانی کورد لە تورکیا. وشە سەرەکییەکان: مافی چارەی خۆنووسین، کورد، دادگای یاسای بنەرەتی تورکیا، ئۆتۆنۆمی، دیمۆکراسی
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Alferova, E. V. „THE CONTOURS OF CONSTITUTIONAL DEMOCRACY IN THE CONTEXT OF INTEGRATION PROCESSES IN THE EUROPEAN UNION“. Pravovedenie IAZH, Nr. 4 (2021): 9–21. http://dx.doi.org/10.31249/rgpravo/2021.04.01.
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The review presents different points of view of the authors of three new monographs by foreign scientists - Dieter Grimm, Athanasios Psigkas and Turkuler Isiksel - on such phenomena as constitutionalism and administrative democracy in the context of the crisis of European integration. The key positions of the authors of these books are interpreted by Professor J. Kamarek of the Faculty of Law of the University of Copenhagen.
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Parveen, Nazima. „In the Name of Cow: Legal–Constitutional Discourse and the Contours of Contemporary Indian Politics“. Studies in Indian Politics 8, Nr. 2 (01.11.2020): 214–29. http://dx.doi.org/10.1177/2321023020963519.
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The issue of cow preservation is predominantly seen as a battle between communal/orthodox and liberal/secular ideologies represented by Hindu nationalists and Congress, respectively. In this schema, Hindu nationalists projected themselves as protectors of cow, while Congress seemed to oppose such proposals. The question of how both regimes used cow as a significant symbol for strengthening their politics and positions for favourable political equilibrium in the past 60 years remains under-researched. The article argues that the dynamics of electoral politics in India should not merely be reduced to the ideologies of different political regimes; instead, a critical understanding of successful and timely appropriation of popular religious sensibilities needs to be explored.
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Bhattacharjee, Saurabh. „From Francis Coralie Mullin to Swaraj Abhiyan: Adding Multidimensionality to the Conditional Social Right to Food“. Christ University Law Journal 6, Nr. 1 (01.01.2017): 21–40. http://dx.doi.org/10.12728/culj.10.2.
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Global hunger is widely seen as one of the foremost threats to humanity. The Constitutionality of the Right to Food has been a long-standing debate within the Indian Subcontinent as there is no explicit mention of the said right. Through various judicial pronouncements over a relatively long period of time, the right to food has been construed to be constitutionally ingrained. This paper explores the history of the right to food as a fundamental right in India, as per the Constitution. It analyses landmark cases on the right to food and examines the fundamental right to food, in terms of state obligations. Is the impact of the entrenchment of the right to food as a fundamental right, limited only to its symbolic meaning? Or has such right substantively shaped the contours of governmental policies too? What are the remedial interventions that the judiciary has made in view of the constitutional right to food? These are questions that the paper will explore. In this process, the paper will parse various judicial orders on the right to food and identify whether there are justiciable entitlements that presumptively constitute the core of the right. Further, the paper shall also highlight the multidimensionality of the right to food and illustrate that starting with Francis Mullin in the 1980s, to Laxmi Mandal and Swaraj Abhiyan in this decade. The courts have, through the above mentioned judgments, underscored the interrelatedness between the rights to food, health, shelter and right to work.
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Jebaraj, Abishek, und Srishti Agnihotri. „Identity-Based Electoral Speech and Its Place in a Constitutional Democracy“. Verfassung in Recht und Übersee 53, Nr. 4 (2020): 438–67. http://dx.doi.org/10.5771/0506-7286-2020-4-438.
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India’s ‘Representation of the People Act, 1951’ (RPA), includes two provisions that restrict certain categories of electoral speech. The first such provision is Section 123 (3) of the RPA which restricts electoral appeals made by political representatives on ethnic or religious grounds while the second is Section 123 (3A) of the RPA which prohibits the promotion of enmity or hatred by political representatives between different classes of citizens. This paper examines the impact of these restrictions on political representation in India and its effects on competing democratic constitutional values. Our examination finds that the restrictions on identity-based appeals fail to optimally balance competing democratic values, and this adversely affects Indian democracy. The paper finally makes a case for redrawing the contours of the restrictions placed by Sections 123 (3) and 123 (3A) on Indian electoral speech so as to best strengthen Indian democracy.
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Gligich-Zolotareva, M. V., und N. I. Lykjanova. „New Contours of Transformation of Public Power in the Russian Federation“. Federalism 27, Nr. 1 (28.03.2022): 23–50. http://dx.doi.org/10.21686/2073-1051-2022-1-23-50.
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Constitutional innovations required revision of a large part of legislation, first of all, the “basic” federal laws of October 6, 1999 No. 184-FZ “On general principles of organization of Legislative (Representative) and Executive state authorities of the Subjects of the Russian Federation” and of October 6, 2003 No. 131-FZ “On general principles of organization of local Self-Government in the Russian Federation”. Currently the process of transformation of public power in Russia has started. The recently adopted Federal Law No. 414-FZ of December 21, 2021 “On the General Principles of the Organization of Public Power in the Subjects of the Russian Federation” is being implemented in the constituent entities of the Russian Federation. At the same time, the reform of public authorities at the local level is being developed. Consideration of the project of Federal Law No. 40361-8 “On the general principles of the organization of local self-government in the unified system of public authority” has been postponed. Because of the difficult political and economic situation, the creation of a new organizational management system for regions and municipalities will ensure the development of territories, promptly correcting the process using modern information technologies.
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Murray, Michael D. „Reconstructing the Contours of the Copyright Originality and Idea- Expression Doctrines Regarding the Right to Deny Access to Works“. 2013 Fall Intellectual Property Symposium Articles 1, Nr. 4 (März 2014): 921–40. http://dx.doi.org/10.37419/lr.v1.i4.5.
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ccess to innovative scientific, literary, and artistic content has never been more important to the public than now, in the digital age. Thanks to the digital revolution carried out through such means as super-computational power at super-affordable prices, the Internet, broadband penetration, and contemporary computer science and technology, the global, national, and local public finds itself at the convergence of unprecedented scientific and cultural knowledge and content development, along with unprecedented means to distribute, communicate, and access that knowledge. This Article joins the conversation on the Access-to-Knowledge, Access-to- Medicine, and Access-to-Art movements by asserting that the copyright restrictions affecting knowledge, innovation, and original thought implicate copyright’s originality and idea-expression doctrines first and fair use doctrine second. The parallel conversation in copyright law that focuses on the proper definition of the contours of copyright as described in the U.S. Supreme Court’s most recent constitutional law cases on copyright—Feist, Eldred, Golan, and Kirtsaeng—interprets the originality and idea-expression doctrines as being necessary for the proper balance between copyright protection and First Amendment freedom of expression. This Article seeks to join together the two conversations by focusing attention on the right to access published works under both copyright and First Amendment law. Access to works is part and parcel of the copyright contours debate. It is a “first principles” question to be answered before the question of manipulation, appropriation, or fair use is contemplated. The original intent of the Copyright Clause and its need to accommodate the First Amendment freedom of expression support the construction of the contours of copyright to include a right to access knowledge and information. Therefore, the originality and idea-expression doctrines should be reconstructed to recognize that the right to deny access to published works is extremely limited if not non-existent within the properly constructed contours of copyright.
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Peftiev, Vladimir I., und Galina N. Krasnova. „The social state in Russia: a new agenda“. World of Russian-speaking countries 2, Nr. 12 (2022): 48–60. http://dx.doi.org/10.20323/2658-7866-2022-2-12-48-60.
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The pandemic and recession convergence is shaping new trends and an extraordinary agenda for the social state in Russia. The recombination of social functions was also prepared by the constitutional reform of 2020, which, firstly, carried out the detailing of Article 7 of the Constitution (social state) and, secondly, it established the principles of social justice, the civilization of the state and society. The authorities responded to these challenges by developing an anti-crisis plan for the next three years (2020-2022), which is expected to break the negative trends and help achieve de-escalation of poverty, gradually adapt the Russian economy to the recession, restore growth (up to the level of 2019) and reach new frontiers of development and prosperity. As part of this strategy, the authorities help and assist: a) families with children, the unemployed and low-income people, and the creation of new jobs; b) small and medium-sized businesses; and c) systemic enterprises (tax benefits, investment, maintaining employment, etc.). The article examines the phenomenon of the social state, highlighting the most informative ideas expressed before and after the 2020 constitutional reform. The authors show diversification and intensification of the social mission of the state in Russia, the conditions for moving towards a social contract involving responsible business and active citizens (new partners). The contours of the precariat in Russia (groups in a precarious socio-economic situation) are outlined, and the need for increasing investment in human capital (medicine, education, culture, and sports) is substantiated. Social provisions and investments are needed before and after the 2021 election whatever the rate of economic growth.
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UNLU, Nesrin. „The Case of Zelman v Simmons-Harris and the Shifts in American Secularism“. ISPEC International Journal of Social Sciences & Humanities 5, Nr. 1 (02.02.2021): 32–50. http://dx.doi.org/10.46291/ispecijsshvol5iss1pp32-50.
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Through the lenses of the case of Zelman v Simmons-Harris(2002), this article discusses the American concept of secularism. Unlike the direct government aid to religious activities in various European and Turkish political systems, the American government supports religious instruction only indirectly. Even though the government programs providing financial aid for religion has always faced rigorous examination in the Supreme Court, the current case law of the Court opens the door for a significant amount of unspecified cash flow to religious schools. Thanks to this constitutional pass, it is possible for future politics and legislative endeavors to reshape the contours of state-religion relations in the field of education. Thus, the distinct feature of American secularism based on separation between church and state might bend further.
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Pal, Michael, und Sujit Choudhry. „Still Not Equal? Visible Minority Vote Dilution in Canada“. Canadian Political Science Review 8, Nr. 1 (12.08.2014): 85–101. http://dx.doi.org/10.24124/c677/2014470.
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This article takes the long-standing fact of deviations from the principle of representation by population in Canada as the starting point and asks whether the consequence is the dilution of visible minority votes. It calculates visible minority voting power and compares it to the voting strength of voters who are not visible minorities for the 2004 federal electoral map using 2006 Census data and for provincial electoral districts. We conclude that vote dilution exists and is concentrated in the ridings with the largest proportions of visible minorities. Visible minority vote dilution carries special significance in light of demographic, policy and constitutional considerations. The article concludes by offering some suggestions for how the electoral boundary commissions that set the contours of ridings can address visible minority vote dilution, as well as possible legislative amendments.
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Dezan, Sandro Lúcio, und Ricarlos Almagro Vitoriano Cunha. „O substancialismo jurídico na administração pública concretista de direitos fundamentais: a juridicidade administrativa como instrumento de justiça constitucional | Legal “substantialism” in public administration concretist of fundamental rights: The administrative legality as a constitutional instrument of Justice“. Revista Justiça do Direito 31, Nr. 2 (06.09.2017): 304. http://dx.doi.org/10.5335/rjd.v31i2.6974.
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Resumo: o presente texto tem por finalidade definir o papel da Administração Pública na interpretação e na aplicação do texto constitucional, no que respeita à concreção de direitos fundamentais em países de modernidade tardia, sob o amparo da tensão existente entre o que se denominou de procedimentalismo e de substancialismo jurídico. Busca-se, em linhas iniciais abordar os contornos da tendência de legitimação da função jurídica administrativa de caráter constitucional contramajoritário, a aferir uma nova e importante tarefa ao Estado-executivo, para além de sua comum concepção de “fiel executor da lei”, de modo a concluir que a justiça constitucional envolve a jurisdição (por meio do Poder Judiciário) e a juridicidade (por meio da Administração Pública). Sob essa última perspectiva, busca-se assinalar que a aplicação e concreção do direito também é tarefa da Administração Pública, no âmbito de sua função atípica decisional, ditada pelo próprio texto constitucional, legitimador e impositivo das ações valorativas substanciais no âmbito do Estado Democrático de Direito.
Palavras-chave: Direito Constitucional. Direito Administrativo. Democracia. Princípio da juridicidade administrativa. Procedimentalismo. Substancialismo.
Abstract: The purpose of this text is to define the role of the Public Administration in the interpretation and application of the constitutional text with regard to the realization of fundamental rights in countries of late modernity, under the protection of the tension between what was called “proceduralism” and “legal substantiality”. In an initial line, it seeks to address the contours of the tendency to legitimize the administrative-legal function of a countermajoritarian constitutional character, to assess a new and important task for the Executive State, in addition to its common conception of "faithful executor of the law". In order to conclude that constitutional justice involves jurisdiction (through the Judiciary) and “juridicialism” (through Public Administration). Under this latter perspective, this paper points out that the application and the scope of its atypical decision-making function, dictated by the constitutional text itself, legitimating and imposing substantial value actions within the Democratic State of Law.
Keywords: Administrative Law. Constitutional Law. Democracy. Principle of administrative juridicialism. Proceduralism. Substantialism.
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Im, Hyo Jun. „Governmental Subsidies and Freedom of Speech: Focused on the Unconstitutional Conditions Doctrine of the U.S. Supreme Court“. Legal Studies Institute of Chosun University 29, Nr. 2 (31.08.2022): 65–108. http://dx.doi.org/10.18189/isicu.2022.29.2.65.
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The unconstitutional conditions doctrine is that government may not grant a benefit on the condition that the beneficiary waive a constitutional right, especially freedom of speech. The doctrine has mainly been applied to the case where government may condition subsidies on silencing certain expression. The U.S. Supreme Court established ‘scope of program test’ in AOSI case(2013). Under the test, whereas (1) conditions that define the limits of the governmental subsidies program do not infringe freedom of speech, (2) conditions that seek to leverage subsidies to regulate speech outside the contours of the program do infringe freedom of speech.
The test firstly requires to decide that the purpose of governmental subsidies is (1) to convey government’s own message or (2) to encourage a diversity of views from private speakers. In case of (1), government can impose conditions that force to relinquish certain expression contrary to the viewpoint of government, but in case of (2), government cannot impose those conditions. Even in case of (1), it is needed to decide whether the conditions regulate only expression inside the subsidies program or up to expression outside the subsidies program, secondly. This issue depends on whether the recipient of subsidies can still make the very expression regulated by the conditions through alternative channels or not.
The Constitutional Court and Supreme Court of Korea have dealt with similar cases, such as ‘blacklisting cultural artists’ cases. While it seems that both courts referred to unconstitutional conditions doctrine, some opinions misunderstood the doctrine and an explicit standard determining constitutional validity on these cases has not been established. It might be helpful to consider introducing a doctrine similar with unconstitutional conditions doctrine.
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Nedelsky, Jennifer. „Property in Potential Life? A Relational Approach to Choosing Legal Categories“. Canadian Journal of Law & Jurisprudence 6, Nr. 2 (Juli 1993): 343–65. http://dx.doi.org/10.1017/s0841820900001958.
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The problem of what property is or should be can take many different forms. The debate can focus on what kinds of powers or entitlements should flow from defining an object as someone’s property, or what the grounds are for limitations on those powers and entitlements. One can ask whether the right to property is the sort of right that should be treated as a constitutional right. One can focus on how to define the contours of a particular kind of property, like land or copyright. Or one can ask what sorts of things should be treated as property. And in fact a legalregime of property rights cannot avoid at least some of these questions; they are entailed in the task of defining and subtly redefining property that is inherent in the ongoing process of adjudication.
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LOURENÇON, Jorge Luís dos Santos, und Ana Maria Ortega ALONSO. „A (IN)CONSTITUCIONALIDADE DAS RESTRIÇÕES, POR PREFEITOS E GOVERNADORES, AO DIREITO DE IR E VIR DURANTE A PANDEMIA PELA COVID-19“. UNIFUNEC CIENTÍFICA MULTIDISCIPLINAR 11, Nr. 13 (30.06.2022): 1–18. http://dx.doi.org/10.24980/ucm.v11i13.5452.
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O direito de ir e vir, consagrado no artigo 5º, inciso XV, da Constituição Federal de 1988, é expressão dos direitos de primeira geração, que visam impor ao Estado limites de atuação. Como os demais direitos fundamentais, apresenta natureza relativa, não se sobrepondo irredutivelmente sobre as demais disposições constitucionais, de modo que o próprio Texto Maior autoriza limitações a essa liberdade. Para enfrentar a pandemia pela Covid-19, prefeitos e governadores passaram a restringir o direito de ir e vir a partir de 2020. Este trabalho objetiva discutir se tais limitações encontram respaldo na Carta Maior. Uma primeira corrente dispõe que a restrição da liberdade de locomoção somente se daria durante a vigência do estado de sítio, legalidade extraordinária que prevê a suspensão de direitos fundamentais; com isso, seriam inconstitucionais as determinações dos chefes do Poder Executivo estadual e municipal. Por outro lado, uma segunda corrente sustenta que essas mitigações encontrariam amparo na Constituição Federal, considerando a natureza relativa dos direitos fundamentais, de maneira que o ir e vir poderia ser restringido para assegurar outros valores constitucionais, como a saúde e a vida; ainda, a repartição de competências estabelecida pela Carta Política permitiria que prefeitos e governadores tratassem de matérias afetas à saúde, como é o caso da crise sanitária em questão. Conclui-se que essa segunda tese merece prevalecer, porquanto, do contrário, ao se atribuir contornos absolutos à livre locomoção, haveria o esvaziamento de outros direitos constitucionais. A metodologia empregada é a revisão de literatura, sob o método dedutivo. THE (IN)CONSTITUTIONALITY OF RESTRICTIONS, BY MAYORS AND GOVERNORS, ON THE RIGHT TO COME AND GO OVER COVID-19 PANDEMIC ABSTRACT The right to come and go, granted by Article 5, item XV, of the 1988 Federal Constitution, is an expression of the first generation rights, which aim to impose limits on the State's interventions. As with the other fundamental rights, it has a relative nature, not being irreducible over other constitutional provisions, thus the Constitution itself allows limitations to this freedom. To address Covid-19 pandemic, mayors and governors began restricting the right to come and go starting in 2020. This paper aims to discuss whether such limitations are supported by the Brazilian Constitution. A first approach holds that the restriction of locomotion freedom would only occur under a state of siege, an extraordinary legality that grants the suspension of fundamental rights; thus, the determinations of the State and Municipal Government leaders would be unconstitutional. On the other hand, a second approach sustains that these mitigations are protected by Federal Constitution, considering the relative nature of fundamental rights, in such a way that the right to come and go might be restricted to ensure other constitutional values, such as health and life; furthermore, the division of competencies established by the Charter would authorize mayors and governors to deal with issues related to health, which is the case of the health crisis in question. We conclude that this second approach deserves to prevail, since otherwise, by attributing absolute contours to the free locomotion, other constitutional rights would be depleted of their meaning. The methods used are a literature review, using the deductive method. Keywords: Restriction. Locomotion freedom. Covid-19.
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Campello, Filipe. „Between Affects and Norms“. Comparative Sociology 19, Nr. 6 (17.12.2020): 805–15. http://dx.doi.org/10.1163/15691330-12341526.
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Abstract This article seeks to explore the meaning of emotional content in a transnational public sphere, in particular with regard to the concept of solidarity. The main normative question that the author discusses here is how far it is possible – if it’s the case at all – to move beyond the basic structure of nation-linked patriotic feeling to solidarity as a transnational political emotion. He divides his argument into two steps. First, he analyzes how the concept of constitutional patriotism could be reframed around the contours of post-national contexts. He suggests that Hegel’s concept of patriotism as a political disposition can contribute to a transnational framework. In a second step, the author discusses solidarity as a transnational political emotion, arguing that one should have in view both its formative process and its contingencies in order to understand the institutional and symbolic mediation of affective contents of social praxis.
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Kos, Marjan. „Reasserting the Principle of Legality in the Wake of the COVID-19 Pandemic: A Case Note on the Decision U-I-79/21 of the Constitutional Court of the Republic of Slovenia“. Zbornik znanstvenih razprav 1, Nr. 1 (Dezember 2022): 365–79. http://dx.doi.org/10.51940/2022.365-379.
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In a response to the COVID-19 pandemic, the Slovenian Government adopted numerous measures that were substantively similar to those, adopted in other states. The scope and intensity of those measures significantly affected the principle of the separation of powers and the protection of human rights. In this context, the Constitutional Court of the Republic of Slovenia adopted Decision U-I-79/21, which marked the contours for the review of legality and constitutionality of the Governmental measures in subsequent cases. The key message of the Decision was the demand for the strict observance of the principle of legality when adopting measures to prevent the spread of COVID-19, which interfere with human rights. This article explains the context of the Decision and presents key arguments from the Decision and the concurring and dissenting opinions as well as the response of the expert community.
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Al-Ifran Hossain, Mollah. „Identifying the Catalysts for Systematic Deprivation of Hindu Women’s Right to Property: An Appraisal from the Political Contours of Bangladesh“. International Journal on Minority and Group Rights 27, Nr. 1 (16.12.2020): 210–22. http://dx.doi.org/10.1163/15718115-02604003.
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Abstract Hindu women’s limited right to inheritance in Bangladesh is a story of state-sponsored deprivation; a frustrating legacy of the political authority’s systematic indifference and failure in protecting minority women’s right to property for nearly half a century. Bangladesh, from its early decades, has experienced the resurgence of religion as one of the driving factors behind gender and minority-sensitive policy formulation and implementation. Under the veil of constitutional secularism, religion has become one of the most pervasive tools in the hands of the political authorities for methodical marginalisation of religious minority groups especially of Hindu community. Consequently, Bangladesh has failed to move forward with appropriate legislative measures for improving the present status of Hindu women’s right to property. This article argues that the underlying reasons behind such failure is intrinsically intertwined with power-centric electoral politics rather than normative socio-religious practices.
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Kleandrov, Mikhail I. „On the Supreme Judicial Authority of the Russian Federation“. Gosudarstvo i pravo, Nr. 8 (2023): 51. http://dx.doi.org/10.31857/s102694520027226-9.
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The article substantiates the need to create in the Russian Federation a fundamentally new constitutional state authority under the conditional name of the Supreme Judicial Authority of the Russian Federation, similar to the fact that the highest legislative authority is the bicameral Parliament, and the executive authority is the Government of the Russian Federation. It is noted that such bodies exist in about half of the countries of the world, and in Russia it could quite realistically appear twice – in 1993 and in 2001. The author substantiates the inability to assign the functions of this body to the Supreme Court of the Russian Federation and other state authorities and bodies of the judicial community. It is proposed to give the supreme judicial authority the authority to ensure the independence of courts and judges, material resources, financial, personnel and other support for the effective judicial activity of the judicial system. Why is it proposed to give this body the rights: a) legislative initiative; b) adoption of necessary regulatory and administrative legal acts that are mandatory for execution by a specific circle of performers. The contours of the formation of this organ are proposed. It is strictly noted that the Supreme Judicial Authority will in no way be a judicial body – of any jurisdiction and of any instance. It is emphasized that the implementation of these proposals will require the development and adoption of a new Constitution of the Russian Federation.
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Lizogub, Vitaly. „The Main Features of the System of Organization of State Power under the Constitution of the People’s Republic of China of 1982“. Theory and practice of jurisprudence 2, Nr. 2 (26.12.2022): 22–39. http://dx.doi.org/10.21564/2225-6555.2022.2.267081.
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The article is devoted to a comprehensive analysis of the fundamental components of the state constitutional system of the People’s Republic of China and its evolution. Based on the analysis of the works of famous foreign and domestic Chinese scientists, the traditions of the political system of the People’s Republic of China using general scientific and special methods (dialectical, comparative, logical, system-structural, functional, analysis and synthesis methods), the main characteristic features of the Constitution of the People’s Republic of China in the 2018 edition were studied years, related to changes in the state and social system of China during the second half of the 20th century, especially with the processes of the second decade of the 21st century. In particular, the essence of the system of organization of state power according to the 1982 Constitution of the People’s Republic of China, amendments and changes to the norms of the constitutional legislation of the People’s Republic of China at various stages of its history, forms of state organization, contours of the system of higher and local state authorities of the People’s Republic of China, the sphere of competence of individual state authorities in the People’s Republic of China, their specific functions, which have a certain purpose, aimed at meeting the relevant needs of the state as a system. In addition, the main elements of the political system, including the structure of the party system, and state policy regarding national minorities are analyzed. Conclusions are made about the main stages of the history of the development of the Constitution of the People’s Republic of China, the influence of the official ideology of Marxism and Maoism, the socialist system as the basis of the People’s Republic of China, the place of the Communist Party of China in the state and political system of the country. The issue of the socialist approach to the rights and responsibilities of the citizen, the lack of a real state guarantee of the declared right to work and the significant limitation of the realization of the right to education, the single right to social security in old age on a nationwide scale, is highlighted. The exceptional place of state property in the economy of the People’s Republic of China, the evolution of the form of state government, the principle of popular sovereignty as the core principle of the organization of political power is shown, and the counter-liberal and radical changes of 2018 associated with the strengthening of the power of the President of the People’s Republic of China are characterized.
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Hartunian, Joseph. „Gun Safety in the Age of Kavanaugh“. Michigan Law Review Online, Nr. 117 (2019): 104. http://dx.doi.org/10.36644/mlr.online.117.gun.
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This Essay takes stock of the different approaches adopted and advocated for in evaluating constitutional challenges in Second Amendment opinions throughout the country. The author’s hope is that doing so will help highlight the contours for debate when the Supreme Court does finally start to define some of the limits purported to exist by Justice Scalia. Part I analyzes the paths explicitly rejected by Heller I by reviewing the limits considered allowable by Justice Scalia. Part II considers the ongoing debate between the courts on the application of “strict” or “intermediate” scrutiny for Second Amendment challenges. Part III examines then-Judge Kavanaugh’s Heller II opinion in comparison to the other options, and finally Part IV discusses the implications of Kavanaugh’s novel approach, particularly in light of the recent change in the Supreme Court’s Fourth Amendment jurisprudence and the Court’s grant of certiorari in New York State Rifle & Pistol Ass’n v. City of New York.
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Dahiya, Shikha, Kevin James, Kandarp Patel, Aditi Pathak und Anoop Singh. „India’s Human Capital: The Regulatory Context for Leveraging Federalism“. Indian Public Policy Review 2, Nr. 5 (Sep-Oct) (10.09.2021): 1–33. http://dx.doi.org/10.55763/ippr.2021.02.05.001.
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Investing in human capital through interventions in nutrition, health, and education is critical for achieving sustainable inclusive growth. However, despite many public interventions, India’s human capital indicators remain low, and have likely worsened from the disruptions caused by the COVID-19 pandemic. There are also significant inter-State disparities. India’s human capital interventions have been marked by growing centralisation, not just by the Centre vis-à-vis the States, but also by the States vis-à-vis local governments, that form the third tier in India’s federal structure. This growing centralisation may have misaligned incentives with respect to accountability and effective delivery of public services. Drawing from international best practices and an analysis of the constitutional scheme, a more decentralised and targeted approach within the contours of India’s federal structure may be the best way to build civil society engagement, address failures in accountability, and ultimately, improve India’s human capital outcomes.
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Takirambudde, Peter Nanyenya. „Protection of Labour Rights in the Age of Democratization and Economic Restructuring in Southern Africa“. Journal of African Law 39, Nr. 1 (1995): 39–63. http://dx.doi.org/10.1017/s0021855300005878.
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The contours of human rights, especially labour rights, have undergone significant shifts in the recent past in Southern Africa. Labour law regimes have been overhauled, resulting in large-scale changes, liberalization of controls over trade unions, loosening of strictures relating to the right to strike, freeing collective bargaining from excessive governmental interference and the extension of protective legislation to previously excluded workers. These developments have been a function of dramatic changes throughout die region. The transition in Soudiern Africa has encompassed die political, economic and legal fabrics of most countries. It has been under way since die late 1980s and is being extended daily. In die constitutional zone, diere is a discernible trend towards the constdtutionalization of social rights, thus settling the debate regarding positive and negative rights in favour of the interdependence, indivisibility and interconnectedness of human rights. The transformation in Soudiern Africa is emblematic of three critical developments: democratization, economic liberalization and paradigmatic transitions in law.
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Rodríguez, Cristina M. „Immigration, Civil Rights & the Evolution of the People“. Daedalus 142, Nr. 3 (Juli 2013): 228–41. http://dx.doi.org/10.1162/daed_a_00229.
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In considering what it means to treat immigration as a “civil rights” matter, I identify two frameworks for analysis. The first, universalistic in nature, emanates from personhood and promises non-citizens the protection of generally applicable laws and an important set of constitutional rights. The second seeks full incorporation for non-citizens into “the people,” a composite that evolves over time through social contestation – a process that can entail enforcement of legal norms but that revolves primarily around political argument. This pursuit of full membership for non-citizens implicates a reciprocal relationship between them and the body politic, and the interests of the polity help determine the contours of non-citizens' membership. Each of these frameworks has been shaped by the legal and political legacies of the civil rights movement itself, but the second formulation reveals how the pursuit of immigrant incorporation cannot be fully explained as a modern-day version of the civil rights struggle.
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Lonardo, Luigi. „The Veiled Irreverence of the Italian Constitutional Court and the Contours of the Right to Silence for Natural Persons in Administrative Proceedings“. European Constitutional Law Review 17, Nr. 4 (23.11.2021): 707–23. http://dx.doi.org/10.1017/s1574019621000365.
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Mégret, Frédéric. „The ‘Grotian Style’ in International Criminal Justice“. Grotiana 42, Nr. 2 (18.11.2021): 304–34. http://dx.doi.org/10.1163/18760759-42020005.
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Abstract This article envisages how one might conceptualize the ‘Grotian Style’ in international criminal justice as a practice of adaptation spearheaded by international judges rather than as actual changes occurring in the international system. It foregrounds the emblematic career of Antonio Cassese at the ICTY as epitomizing the trajectory of a scholar on the bench intent on seizing a historic opportunity to reframe the law. The contours, origins, and prospects but also limitations of the ‘Grotian style’ are then discussed. The problem with the Grotian style is not primarily that it runs roughshod over defense rights, but that it appropriates a law-making authority which, in the international system, is better understood as primarily vested in states. In the process, it risks exposing its hubris and shallowness, especially when deciding on normatively intractable issues. In a context where international criminal justice is increasingly being normalized, the time may have come to reconceptualize judges’ role along more global constitutional lines as rooted in an ongoing dialogue with the international community of states and an emerging separation of powers.
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Martins, Leonardo. „Direito fundamental à liberdade de reunião e controle de constitucionalidade de leis penais e de sua interpretação e aplicação: contribuição para o direito de reunião como sub-ramo autônomo do direito administrativo“. Espaço Jurídico Journal of Law [EJJL] 18, Nr. 2 (31.08.2017): 433–90. http://dx.doi.org/10.18593/ejjl.13301.
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Resumo: Este é um estudo de caso antecedido por uma explanação sistemática de seus pressupostos teóricos. O caso é fictício, mas fortemente inspirado em uma decisão de Câmara do Tribunal Constitucional Federal alemão. Nela, tratava-se de avaliar a constitucionalidade de uma medida policial e sua confirmação judicial no contexto de uma contramanifestação a uma reunião que ocorria em local público. Para a sua solução, desenvolveu-se um parecer jurídico-constitucional cujo objeto é a situação jurídica presente no caso, com vistas a avaliar as chances de êxito de uma eventual ação judicial contra as medidas estatais (policiais e decisão judicial), considerando a hipótese da violação do direito fundamental à liberdade de reunião a ser testada. No que se refere aos pressupostos teóricos do caso e à conjuntura política e jurídica brasileira, tem-se o seguinte. Como ocorre em qualquer Estado democrático, também no Brasil sob a égide da Constituição Federal (CF) o entorno político-ideológico do direito fundamental à liberdade de reunião é tão notório quanto contraproducente, pelo menos quando se pensa na imprescindibilidade de uma abordagem especificamente técnico-jurídica constitucional. Há um déficit na discussão pátria que o presente ensaio visa a sanar à luz do direito comparado alemão. Conjugar, assistematicamente, o princípio democrático com a liberdade de reunião e seu suposto caráter instrumental em relação àquele não faz jus aos desafios hermenêuticos implícitos no complexo teor do art. 5º, XVI CF em que se positivou o direito fundamental à liberdade de reunião. Partindo de uma análise sistemática do texto constitucional, o presente ensaio apresenta definições jurídico-dogmáticas, metodologicamente disciplinadas, e analisa o teor do dispositivo, classificando suas locuções entre condições subjetivas para o exercício da liberdade de reunião e previsão implícita de seus limites constitucionais que, por sua vez, podem ser, atendido certo ônus argumentativo, concretamente traçados pelo legislador ordinário. Assim, uma legislação ordinária regulamentadora não poderia ser, de plano, descartada como inconstitucional. Também a interpretação e a aplicação dessa eventual lei regulamentadora, assim como no caso da interpretação de quaisquer outros dispositivos normativos pertinentes ao direito administrativo e penal em geral, devem ser interpretadas e aplicadas à luz do direito fundamental à liberdade de reunião, de tal sorte a serem observados os vínculos específicos de todos os órgãos estatais pertinentes às três funções estatais clássicas.Palavras-chave: Autoaplicabilidade de direitos fundamentais. Regulamentação da liberdade de reunião. Limites constitucionais da liberdade de reunião. Interpretação judicial à luz da liberdade de reunião. Abstract: This is a case study preceded by a systematic explanation of its theoretical framework. The case is fictitious but strongly inspired by a judgement of the Federal Constitutional Court in Germany, in which the court assessed the constitutionality of a police measure and its judicial confirmation in the context of a counter-protest to a meeting that had occurred in a public space. For the case study’s resolution, it was developed a juridical-constitutional opinion centred on the juridical situation exposed on the case, with the aim to evaluate the chances of a positive outcome of an eventual judicial action against the state measures (police measure and its juridical confirmation), considering the hypothesis of violation of the fundamental right to assembly. As in any other democracy, in Brazil under the Federal Constitution (FC) of 1988, the political-ideological contours of the right to freedom of assembly are as notorious as they are counterproductive - at least when one thinks of the indispensability of a specific constitutional legal technique. There is a deficit in the Brazilian literature that the present essay seeks to remedy in the light of comparative law considering the German case. To reconcile the democratic principle with the freedom of assembly, without a systematic approach, one assumes its instrumental character in relation to the former and does not meet the hermeneutical challenges implicit in the complex content of article 5, XVI, of the Brazilian Federal Constitution, in which freedom of assembly was enshrined. From a systematic analysis of the constitutional text, this study presents legal-dogmatic definitions that are methodologically disciplined, and analyzes the content of the aforementioned constitutional article, classifying its parts as either subjective conditions for the exercise of freedom of assembly or as implicit constitutional limits, which can be concretely drawn by the ordinary legislator, provided that they observe certain argumentative burdens. Thus, such a regulatory legislation could not, prima facie, be considered unconstitutional. Also, its eventual interpretation and application -as the interpretation of any other normative provision of administrative or criminal law in general - must be done in the light of freedom of assembly in such a way that the specific bounds between all three state functions are respected.Keywords: Self-enforceability of fundamental rights. Regulation of the freedom of assembly. Constitutional limits of the freedom of assembly. Judicial interpretation in the light of the freedom of assembly.