Journal articles on the topic 'Constitutional law'
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1
Alexander, Larry. "WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?" Social Philosophy and Policy 28, no. 1 (November 30, 2010): 1–24. http://dx.doi.org/10.1017/s0265052510000038.
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AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.
2
Boyron, Sophie. "The ‘New’ French Constitution and the European Union." Cambridge Yearbook of European Legal Studies 11 (2009): 321–51. http://dx.doi.org/10.1017/s1528887000001622.
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AbstractFor a long time, French constitutional law did not appear to concern itself unduly with the European Communities and the process of European integration: the French Constitution did not contain any reference to the European Communities and the Conseil constitutionnel had little involvement with international treaties and their enforcement as a result of an early decision. However, the ratification of the Maastricht Treaty in 1992 triggered a process of deep constitutional change in France. Since then, the text of the French Constitution has been repeatedly amended to respond to the quickening pace of European integration. Furthermore, the Conseil constitutionnel has totally transformed its control of the constitutionality of international treaties. An assessment of these constitutional changes seems opportune at this juncture. More specifically, an investigation into the manner in which the French constitution reacted to the changing European Union helps cast some light on the impact of European integration on national constitutions.
3
Fedorenko, V. L., and M. V. Fedorenko. "Principles of constitutional law: essence, content and system." ACTUAL PROBLEMS OF THE LEGAL DEVELOPMENT IN THE CONDITIONS OF WAR AND THE POST-WAR RECONSTRUCTION OF THE STATE, no. 13 (October 1, 2022): 160–66. http://dx.doi.org/10.33663/2524-017x-2022-13-25.
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The publication is devoted to identifying the essence and content of the category of “principle of constitutional law” and identifying its relationship with related but not identical categories: values, ideals, foundations, principles, objectives, mandatory rules, laws, etc. Genesis and development of ideas about the principles of constitutional law and their consolidation in constitutions and constitutional acts are analyzed. The systematization of the main types of relevant principles and groups is carried out: principles of constitutionalism and constitutional doctrine, principles of science and education of constitutional law, principles of the constitution, as well as principles of constitutional law-making, law enforcement and justice (jurisdictional) activities. It is argued that modern constitutions enshrine in the norms-principles the most important values of the constitutional order: the rule of law, rule of law, freedom and democracy, the inviolability of fundamental human rights, etc. But their real embodiment presupposes unification and interaction of civil society with the state. Key words: principle, principle of constitutional law, system of principles of constitutional law, principle of constitutionalism, principle of the Constitution, principles of the science of constitutional law.
4
Costa, Renato. "John Finnis and the central case constitution." Journal of Legal Philosophy 49, no. 1 (April 26, 2024): 25–49. http://dx.doi.org/10.4337/jlp.2024.01.02.
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This article formulates a novel conception of constitutions based on John Finnis’s jurisprudential work. The ‘central case constitution’ transcends the formal or functionalist analyses currently dominant in constitutional theory by considering a constitution as having a ‘double life’. Constitutions are necessarily and intrinsically normative and factual. The article explores Finnis’s natural law philosophy, emphasizing the central case constitution’s alignment with the practical reasonableness viewpoint and its role in directing a political community towards its common good. Focusing on key elements such as the rule of law and the context of a political community, the central case constitution emerges as a legal determination that structures society, frames political institutions and authoritatively directs communities towards justice. This ontological understanding has theoretical and practical implications, including identifying genuine constitutional purposes, safeguarding private associations from the overwhelming state presence, promoting community identity and accommodating diverse constitutional choices for self-determination.
5
Palmer, Sir Geoffrey. "The Hazards of Making Constitutions: Some Reflections on Comparative Constitutional Law." Victoria University of Wellington Law Review 33, no. 3-4 (December 1, 2002): 631–60. http://dx.doi.org/10.26686/vuwlr.v33i3-4.5815.
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After teaching comparative constitutional law in the United States, Sir Geoffrey Palmer explores the nature of constitutional law in general terms and how New Zealand could learn from others. The author compares New Zealand's uncodified constitution to, for example, the United States who has a codified written constitution. The article then discusses the entrenched nature of some constitutions, compared to New Zealand's flexible and fluid constitution that exists largely in several ordinary statutes. Because of New Zealand's fragmented constitution, it is argued that its constitution has an unclear and indeterminate status; indeed, constitutional policy hardly makes an appearance in New Zealand politics. The author briefly looks at how constitutions protect fundamental rights and constitutional design in general terms, concluding that New Zealand's discussions on constitutional themes are too infused with analytical positivism, legalism, and traditionalism for policy issues. Finally, the author discusses the role of Fiji's constitution in light of its military coups. The author concludes that constitutional reform is needed in New Zealand in the form of a written and codified constitution.
6
Frowein, JA. "Constitutional law and international law at the turn of the century." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 1, no. 1 (July 10, 2017): 1. http://dx.doi.org/10.17159/1727-3781/1998/v1i1a2898.
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Constitutional law and international law operate in simultaneous conjunction and reciprocal tension. Both fields seem to have overcome the great challenges of destruction and neglect in the course of the 20th century. Both after World War I and World War II the world experienced new waves of constitution making. In both cases the current German constitutions (the Weimar Constitution of 1919 and the Grundgesetz of 1949) were influential. Characteristic of constitution-making in this century, is the final victory of liberal constitutions based on the rule of law, the Rechtsstaat, fundamental rights, meaningful control of public powers and the establishment of constitutional courts. Following the destruction of World War II, the notion of the Sozialstaat emerged strongly in Germany. In contrast to the Constitution of the United States of America, the principle of the responsibility of the state for social justice has emerged in almost all new constitutions, including Russia, Poland, South Africa, Spain, Italy and Portugal. Where courts are given the mandate to interpret bills of rights, fundamental rights have been developed into foundation stones of the legal system. The presence in a Bill of Rights of restrictive clauses, is important for its analysis. Generally restrictive clauses in new constitutions try to limit the possibilities of restriction. The importance of constitutional rules establishing and legitimizing the political organs, must not be overlooked. Of particular importance is the degree of control over the head of state, a positive attitude among political actors towards the constitution and the protection of the interests of minorities in a democratic system. In the field of Public International Law much of Kant's ideal of an international confederation of peace has been realized. Since 1990 the United Nation's Security Council has shown the potential of becoming a directorate for the community ofnations. International law has also been instrumental in the worldwide recognition of human rights. Especially in Europe, Convention Law has had a strong impact. Furthermore, global and regional systems of regulation have tended to alter the legal attitude towards state sovereignty. It may be that the South African constitutional approach in terms of which international law is subject to constitutional and other national law, is not in line with international tendencies.
7
Carcassonne, Guy. "France Conseil Constitutionnel on the European Constitutional Treaty. Decision of 19 November 2004, 2004-505 DC." European Constitutional Law Review 1, no. 2 (May 19, 2005): 293–301. http://dx.doi.org/10.1017/s1574019605002932.
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The only real surprise of the recent decision of the French Conseil constitutionnel [constitutional Council] concerning the compatibility between the European and the French Constitutions was the timing of it. According to Article 54 of the French Constitution, a treaty may be submitted for constitutional review at any time before ratification. In this instance, Jacques Chirac acted with unusual promptness, submitting his request on the very day the Treaty was signed, 29 October 2004. The Conseil itself reacted with equal speed, issuing its decision exactly three weeks later on 19 November 2004. Behind both courses of action lies the shadow of political concern related to the Socialist Party referendum on the European Constitution.
8
Marwiyah, Siti, M. Syahrul Borman, Ruba'ie Ruba'ie, M. Chotib Ramadhani, Retno Saraswati, and Non Naprathansuk. "The Educational Role of The Constitutional Court in Compliance of Indonesian Citizens." LAW REFORM 19, no. 1 (August 11, 2023): 148–68. http://dx.doi.org/10.14710/lr.v19i1.53971.
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The Constitutional Court (MK) has a strategic position, authority, and obligation to determine the future of the Indonesian nation. This study aims to examine the educational role of the Constitutional Court in developing a constitutional understanding of Indonesian citizens constitutionally. This research used doctrinal legal research method, a process to find the rule of law, legal principles, and legal doctrines to answer the legal problems faced. The results showed the educative role of the Constitutional Court in fostering constitutional understanding of Indonesian citizens by creating programs to promote constitutional understanding of Indonesian citizens, i.e.: increasing the understanding of citizens' constitutional rights; disseminating information on the Constitutional Court, and development of constitutional awareness culture.; debate on student constitutions between universities throughout indonesia; telling the values of Pancasila on social media; and increasing understanding of the constitutional rights of civics with outstanding teachers; and educating people's attention. The Constitutional Court's products in the form of decisions contain public education on compliance with the Constitution correctly and rationally. The Constitutional Court's decision will always be linked to the public with the Constitution and the interests of justice seekers because the court examines the interests of justice seekers related to the Constitution.
9
Barseghyan, Sose. "Manifestation of Direct Application of Constitutional Norms in the Field of Law Enforcement." Bulletin of Yerevan University C: Jurisprudence 14, no. 2 (39) (December 14, 2023): 61–68. http://dx.doi.org/10.46991/bysu:c/2023.14.2.061.
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The article refers to the application of constitutional norms by the courts and the interpretation given in the practice of the Constitutionl Court. In particular, the right of a person to seek judicial linitgation to protect his/her constitutional rights, the jurisdiction of the courts to apply the Constitution, the relantionship between the principle of supremacy of Constitution and the concept of implementantion of Constitution, the duty of ordinary courts to appeal to the Constitutional court and simultaneously justify unconstitutionality of a legislative norm, have become the subject of discussion. The article proposes an effective application of the constitutional nroms, introduction of flexible and applicable mechanisms for constitutional justice.
10
van Caenegem, R. C. "Constitutional History: Chance or Grand Design?" European Constitutional Law Review 5, no. 3 (October 2009): 447–63. http://dx.doi.org/10.1017/s1574019609004477.
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Two interpretations of constitutional history: product of chance or of design – Written v. unwritten constitutions – Political and historical backdrop of constitutional development – Evolution of interpretation of specific constitutional texts – Chances of a global constitution
11
Tarr, G. Alan. "Civil Liberties Under State Constitutions." Political Science Teacher 1, no. 4 (1988): 8–9. http://dx.doi.org/10.1017/s0896082800000362.
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Ask most political scientists about constitutional law, and they will tell you about the Federal Constitution and its interpretation by the U.S. Supreme Court. Examine a text on American constitutional law, and you will likely find the same tendency to equate constitutional law with the U.S. Constitution. Even the recent campaign for constitutional literacy during the Bicentennial of the Constitution altogether ignored the most obvious gap in Americans' constitutional knowledge—namely, the virtually total ignorance about state constitutions.This inattention to state constitutions and state constitutionalism is unfortunate, because state constitutions are assuming an increasing importance in American politics. They have served as the incubators for institutional innovations that are now receiving national attention. President Reagan's proposals for a balanced budget amendment and for an item veto both had their origins in state charters. Moreover, because most state constitutions can be amended relatively easily, they have provided an alternative avenue by which groups that are blocked in the legislative process can pursue political change. California's Proposition 13 is a case in point. Finally, state constitutions have furnished the basis for probably the most significant development in civil liberties law over the past two decades, namely, the rediscovery of state bills of rights as independent protections for civil liberties.
12
Traser, Julianna Sára, Nóra Béres, György Marinkás, and Erzsébet Pék. "The Principle of the Primacy of EU Law in Light of the Case Law of the Constitutional Courts of Italy, Germany, France, and Austria." Central European Journal of Comparative Law 1, no. 2 (December 9, 2020): 151–75. http://dx.doi.org/10.47078/2020.2.151-175.
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This article examines the relationship among national constitutions, constitutional courts, and the primacy of Community Law in connection with four Member States (Germany, France, Italy, and Austria). It starts with the question of whether national constitutions contain a European Union (EU) clause and explicitly provide for the primacy of Community Law. It examines whether any constitutional restriction or reservation has been elaborated in the case law of constitutional courts, and the extent to which the constitutional courts examined can exercise control indirectly over cases of conformity of EU legislative acts with constitutions or cases of misuse of powers (ultra vires acts). The constitutions examined can be considered uniform in that they contain references to the individual Member States’ relationships with the EU and create the possibility of restricting their competence or sovereignty. However, they do not declare the principle of the primacy of Community Law. As a consequence, the constitutional courts of Member States play a key role in the interpretation of the principle of the primacy of Community Law, including the formulation of constitutional requirements and counterbalances in connection with the enforcement of the principle. A reference to constitutional identity appears in the case law of recent decades, the elements of which are elaborated on and filled with more or less specific content by the constitutional courts on a case-by-case basis. In the event of a possible violation of constitutional identity or principles with unconditional effectiveness, some constitutional courts exclude the possibility of Community Law being invoked against the constitution of a Member State, but at least on a case-by-case basis, they maintain the possibility of inapplicability or of creating compatibility. In the latter respect, the article also addresses the limited nature of the powers of constitutional courts to examine the compatibility of EU Treaties and their amendments with the constitution of a Member State (see ex-ante or ex-post review, procedural or substantive examination).
13
Slinko, T. M. "Сompetence of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine: comparative legal analysis." Uzhhorod National University Herald. Series: Law 2, no. 73 (December 15, 2022): 215–18. http://dx.doi.org/10.24144/2307-3322.2022.73.63.
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Reflections on «possible constitutions of Europe» can have two directions. On the one hand, one can wonder about the legal form of the European Union: the fact that it is no longer a confederation of states, but not yet a federal state, requires a legal classification, for which a new concept of Verfassungsverbund was created in Germany, that is, a constitutional union. On the other hand, the question arises as to which national constitutions, or which parts of these constitutions, or which individual norms of these constitutions are best used to build a constitutional order in Europe. Solving this issue is not only a classic mission of comparative jurisprudence, but also of the current law of the European Community, since Article 6 of the Treaty onthe European Union declares certain principles of the Western constitutional state «common to all member states» and orders to consider fundamental rights «arising from common constitutional traditions of member countries, as general principles of Community law». Within the framework of the second way of formulating the question, the following description refers to the experience gained during the use of elements of the German Constitution to build other European constitutions. In this article, we will conduct a comparative legal analysis of the powers of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine. The possibility of legal review guarantees the supremacy of the constitution by sanctioning theviolation of the law of the constitution by repealing the law. According to the experience accumulated so far, an autonomous and independent constitutional court with the possibility of a constitutional appeal is a good way to protect human rights. Constitutional courts have a part of each existing state monopoly, namely the power of parliament to make laws and the power of the supreme court to interpret and apply laws passed by parliament.
14
Shustrov, Dmitry. "Supra-constitutional norms in constitutional law." Sravnitel noe konstitucionnoe obozrenie 30, no. 1 (2021): 100–127. http://dx.doi.org/10.21128/1812-7126-2021-1-100-127.
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The idea of supra-constitutionality was formulated in the science of constitutional law in the second quarter of the 20th century and associated with the names of M.Hauriou and K.Schmitt, who for the first time noticed the possibility of the existence of norms that are higher than the constitution. This article is an attempt to give the doctrine of supra-constitutionality an actual theoretical and dogmatic meaning in the context of the study of the material limits of constitutional changes. The doctrine of supra-constitutionality claims to play an important role in explaining that unchangeable norms can exist in constitutional law and that they cannot be excluded, changed, limited, overcome, affected by the other sources of constitutional law, including the constitution itself. Supra-constitutionality is viewed as a characteristic of unchangeable constitutional norms that constitute the material limits of constitutional changes. Supra-constitutionality presupposes the existence of norms that surpass the rest of the constitutional norms and predetermine their content through the definition of what can, should and should not be included in the constitution or excluded from it. The basis of constitutional supra-constitutionality is the argument of hierarchical differentiation. In addition to recognizing unchangeable constitutional norms as supra-constitutional, the article raises the question of the existence of natural law and international law supra-constitutional norms. Natural law supra-constitutional norms have an external and non-positive character. They are not enshrined in the constitution, but stem from a reasonably understood concept of what is due in the most civilized societies, which is determined by the constitutional court. International law supra-constitutionality is understood as the superiority of the norms of international law over the constitution. It has an external and positive character. International law supra-constitutionality can cause political objections from opponents of the absolute rule of international law. Supra-constitutional constitutional, natural and international law norms can come into conflict with each other. The paradox of the doctrine of supra-constitutionality lies in the fact that it creates a hierarchy of norms within the constitution itself, distinguishing between simple and supra-constitutional constitutional norms, or distinguishes certain non-positive norms that are outside the constitution, as having priority over the constitution, or puts some norms of international law over all norms of national law, including the constitution. The purpose of the doctrine of supra-constitutionality is to preserve the inviolable fundamental (natural or generally recognized) values, which justifies its logical flaws and paradoxicality.
15
van Nifterik, Gustaaf. "French Constitutional History, Garden or Graveyard?" European Constitutional Law Review 3, no. 3 (October 2007): 476–87. http://dx.doi.org/10.1017/s1574019607004762.
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On 29 May 2005 the French said no to the draft of a European Constitution. And frankly, the French should know about constitutions! One can differ whether the history of France should be considered a fruitful garden of constitutional thought, a graveyard of constitutional experiments, a ‘musée des constitutions’, or a minefield; in any case it is beyond doubt that the French are rather experienced in constitutions and constitutional changes. Since the French Revolution in 1789, France has been a monarchy, a republic more than once, an empire twice and a constitutional monarchy in between; the nineteenth century shows the pattern monarchy, republic, empire; since 1958 the French live in their Fifth Republic.There is a lot to learn from the constitutional history (perhaps struggle is a better word in this context) of this important European country for any political entity in search of a proper constitution. Which constitutional institutions were a success, which were not; why did it or did it not work out the way it was planned?
16
Boyron, Sophie. "The ‘New’ French Constitution and the European Union." Cambridge Yearbook of European Legal Studies 11 (2009): 321–51. http://dx.doi.org/10.5235/152888712802730675.
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AbstractFor a long time, French constitutional law did not appear to concern itself unduly with the European Communities and the process of European integration: the French Constitution did not contain any reference to the European Communities and the Conseil constitutionnel had little involvement with international treaties and their enforcement as a result of an early decision. However, the ratification of the Maastricht Treaty in 1992 triggered a process of deep constitutional change in France. Since then, the text of the French Constitution has been repeatedly amended to respond to the quickening pace of European integration. Furthermore, the Conseil constitutionnel has totally transformed its control of the constitutionality of international treaties. An assessment of these constitutional changes seems opportune at this juncture. More specifically, an investigation into the manner in which the French constitution reacted to the changing European Union helps cast some light on the impact of European integration on national constitutions.
17
Jones, Bronwen. "The remarkable development and significance of constitutional protection for intellectual property rights in post-Arab Spring constitutions." Queen Mary Journal of Intellectual Property 10, no. 4 (December 25, 2020): 461–85. http://dx.doi.org/10.4337/qmjip.2020.04.03.
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Prior to the Arab Spring uprisings in 2011, no constitutional protection for intellectual property (IP) existed in the many earlier constitutions of Egypt or Tunisia. It is remarkable and surprising therefore that, in 2014, IP clauses appeared in the post-revolutionary constitutions of both countries. This raises the key question: why add to the existing regulation of IP in this way. Is constitutional protection just another example of the inexorable strengthening of IP rights (IPRs) or could it be a means of constraining them, where necessary, to protect other rights? This article argues that including IP in a constitution may, rather than merely strengthening IP owners' rights, open IPRs up to competition against more fundamental constitutionally protected human rights and, for example, support the prioritization of the right to health. This could be a valid explanation for and potential use of the inclusion of IP in the Egyptian and Tunisian Constitutions.
18
Romeo, Graziella. "The Conceptualization of Constitutional Supremacy: Global Discourse and Legal Tradition." German Law Journal 21, no. 5 (July 2020): 904–23. http://dx.doi.org/10.1017/glj.2020.50.
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AbstractThis Article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated, and b) the common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this Article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualized. It then examines the embryonic conceptualization of constitutional supremacy in the British legal culture by addressing the “constitutional statutes.” It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions that are affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, this Article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies.
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Hamad, Ahmed M. A., and Haslinda Binti Mohd Anuar. "Deliberating the Constitutional Supremacy from Legal Perspective in Palestine." Yustisia Jurnal Hukum 11, no. 2 (September 9, 2022): 125. http://dx.doi.org/10.20961/yustisia.v11i2.62219.
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<p>The system of government considers constitutional supremacy in which the freedom of the legislature of parliamentary supremacy relinquishes to the requirements of a constitution. This article examines the constitutional supremacy of basic law from the legal and judicial perspective, particularly concerning the Palestinian situation. In addition, constitutions differentiate according to whether they are codified or not into written constitutions and unwritten constitutions. Besides, constitutions differ in how they are amended into flexible and rigid constitutions. Palestinian Basic Law of 2003 is not explicitly provided with any legal provision or article in the Basic Law about the principle of constitutional supremacy or the supremacy of the basic law. However, some elements and legal provisions or articles could make the Basic Law supreme. The article aims to clarify the decline of the concept of constitutional supremacy or the supremacy of the basic law from the legal and judicial perspective, with particular reference to the Palestinian situation. Moreover, constitutional oversight secured the supremacy of the Basic Law of 2003. These main findings show that the Palestinian Basic Law of 2003 has adopted the principle of supremacy of the Basic Law of 2003 over ordinary laws and subsidiaries within the state of Palestine. The article also emphasises the need to explicitly mention the principle of constitutional supremacy or the supremacy of the basic law by amending the Basic Law of 2003</p>
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Riyah, Juwai. "Position and Authority of the Constitutional Court as a State Institution." JUSTICES: Journal of Law 3, no. 2 (April 15, 2024): 76–85. http://dx.doi.org/10.58355/justices.v3i2.52.
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The Constitutional Court of the Republic of Indonesia is the highest state institution with the same position as the Supreme Court (MA). Initially, the Constitutional Court was an institution intended only to examine the constitutionality (constitutional review) of a law against the constitution. Because of this, the constitutional court is often referred to as "the guardian of the constitution". The Constitutional Court is a new state institution in the Indonesian constitutional system as a result of changes to the 1945 Constitution of the Republic of Indonesia. The function and role of the Constitutional Court in Indonesia has been institutionalized in Article 24C paragraph (1) of the 1945 Constitution which determines that the Constitutional Court has four constitutional authorities ( constitutionally entrusted powers) and a constitutional obligation. This provision is reaffirmed in Article 10 paragraph (1) letters a to d of Law Number 24 of 20023 concerning the Constitutional Court. The four powers of the Constitutional Court are: 1). Testing laws against the 1945 Constitution, 2). Deciding authority disputes between state institutions whose authority is granted by the 1945 Constitution, 3). Deciding on the dissolution of political parties, 4). Resolving disputes about election results.
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Matat, A. "THE JUSTIFICATION OF CONSTITUTIONAL PRINCIPLES." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 117 (2021): 54–58. http://dx.doi.org/10.17721/1728-2195/2021/2.117-10.
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This paper deals with the study of the justification of constitutional principles as a fundamental category of constitutional law. Legal principles are an important conception in the legal doctrine and the legal practice of democratic countries. Ukrainian legal doctrine studies legal principles in the two paradigms, namely fundamental principles and general principles. However, this approach does not result in the understanding of principles in constitutional law. That is why principles in constitutional law are an actual topic. The article aims to examine the fundamental concepts to find the justifications of constitutional principles. Hence, the author pays attention to the content of constitutional law and constitutionalism as principles-based categories. First, constitutional law is a fundamental part of the law in the legal system, and all the parts of the law are dependent on constitutional law. Second, the universal constitutional principles are the same for all legal systems. After all, constitutionalism doctrine consists of the limitation of power, and nowadays, this is expressed through the constitution and different constitution principles. The author uses comparative legal, phenomenological, and system-structural analysis as a valid methodology for this research. Finally, the research investigation contains the following conclusions that enable the author to prove the motivation of the science paper to study the outlined topic. First, constitutional law is the basis of the legal system, which embodies constitutional principles; constitutional law has the same effect on public law and private law. Second, constitutionalism is a source for finding constitutional principles. Third, the system of constitutional principles includes the following characteristics: universality and specificity. The system of constitutional principles is open and depends on the interpretation of constitutions. The paper aims to contribute to the growing research highlighting the current issues of constitutional principles. Keywords: principles, constitutional principles, constitutional law, constitutionalism, the system of constitutional principles.
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Medvid, A. B. "Constitutional metamorphosis: analysis of amendment procedures to the Basic Law in the context of global transformations." Analytical and Comparative Jurisprudence, no. 6 (December 27, 2023): 142–47. http://dx.doi.org/10.24144/2788-6018.2023.06.24.
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The article is devoted to the study of constitutional metamorphoses in the context of global transformations, in particular the analysis of the procedures for introducing changes to the basic law in different countries of the world. Modifications in modern geopolitical, economic and socio-cultural conditions caused the need to revise and adapt constitutional norms in order to bring the latter to the requirements of modern challenges and realities.
Thescientific article examinesvarious approaches to the legal mechanism of amending constitutions in countries with various legal traditions and political systems. The author conducts a comparative analysis of such procedures, paying attention to legislative initiatives, the role of parliament, the participation of civil society and other aspects.
It has been shown that the key aspects of the modification of constitutions are the following issues: a) legitimacy of foundations and subjects that initiate the process of constitutional reform and have the authority to make changes to the constitution; b) the content of constitutional changes and the threshold at which amendments to the constitution introduce transformations into its principles and essence; c) characteristics of legal mechanisms and procedures (models) for amending constitutions, which, on the one hand, guarantee the legitimacy of updated constitutions, and on the other hand, serve as a legal barrier against "constitutional extremism”, that is, unfounded and dangerous for the individual, society and states by constitutional transformations.
It is emphasized that in the context of constitutional metamorphoses, the following forms of transformation of constitutions should be distinguished: a) amendments to basic laws; b) introduction of amendments to the constitutions; c) change of constitutions.
It has been established that constitutional metamorphoses in the context of global transformations indicate radical changes and transformations in the constitutional system of various countries or even at the world level, in particular: globalization of constitutional norms; expansion of the catalog of rights and freedoms; changes in the system of the power mechanism; ecological constitutional protection; constitutional innovation; global constitutional standards.
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Dziedzic, Anna, and Dinesha Samararatne. "Asking the Woman Question of Constitutions: Insights from Sri Lanka." Verfassung in Recht und Übersee 56, no. 1 (2023): 127–52. http://dx.doi.org/10.5771/0506-7286-2023-1-127.
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What do we learn when we ask ‘the woman question’ of constitutions of the Global South? Constitutions worldwide are increasingly the subject of gender analysis, which rests on ‘asking the woman question’ to uncover the gendered implications of seemingly neutral constitutional provisions. But can gender analysis account for all forms of gender inequality in all kinds of constitutions? In this article, we place three lines of inquiry in conversation in responding to these questions: the feminist method of asking the woman question, dominant approaches to constitutional gender analysis, and the perspective(s) from the Global South. In doing so, we develop a way to understand how constitutions of the Global South are gendered in their design and operation, in ways that are perhaps distinctive. We use Sri Lanka as a case study to show how asking the woman question of Sri Lanka’s Constitution requires us to revise some fundamental assumptions about constitutions and to engage with laws, institutions and practices that are close to the constitution, but not usually considered within the constitutional remit. We argue that constitutional gender analysis needs to move beyond a focus on constitutional text and institutions to better address gender inequalities in societal institutions, such as the family, institutions relating to labour, religious institutions and the military. We describe these institutions as ‘proximate institutions’, by which we mean institutions that are close to the constitution, because of their role in constitutional governance and in the exclusion and subordination of women from it. We propose the identification and analysis of proximate institutions as a methodology that calibrates the issues of context that are critical for fully understanding the gendered nature of constitutions, in the Global South and beyond.
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Beckman, Ludvig. "Democratic legitimacy does not require constitutional referendum. On ‘the constitution’ in theories of constituent power." European Constitutional Law Review 14, no. 3 (September 2018): 567–83. http://dx.doi.org/10.1017/s1574019618000287.
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Constitutional referendum – Popular sovereignty – Constituent power – Democratic legitimacy – Participation in referendum as exercise of constituent power – The legal status conception of the constitution – The legal functions conception of the constitution – Open question whether every provision in codified constitutions is essential to constituent power – Therefore, constitutional referendum not always mandated by democratic legitimacy
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Roznai, Yaniv. "What are We Talking About When We Talk About “Mixed Constitutions”? Towards a Typology of Constitutional Mixture." Law & Ethics of Human Rights 16, no. 2 (November 1, 2022): 193–215. http://dx.doi.org/10.1515/lehr-2022-2010.
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Abstract This article argues that constitutional mixture should be regarded as an inherent, inevitable feature of constitutions, and to some degree all constitutions are mixed. Thus, “mixed constitutions” should not be regarded as a distinct category of constitutions. Instead of asking whether a constitution is mixed, it might therefore be more useful to ask in which characteristics and to what extent a constitution is mixed. To demonstrate this, the article provides a preliminary typology of constitutional mixture considering the form or system of government; the nature or character of government; the religious or secular identity; the flexibility or rigidity of the constitution; and its model of judicial enforcement—judicial or parliamentary supremacy. Examining these constitutional features, allows to shed light on the three different dimensions of “constitutional mixture”: First, the various features of the constitutional order do not function in a binary yes-or-no manner but appear and move along a spectrum. Second, the various features of the constitution change with time. Third, the various features of the constitutional text may be in tension with the features of the society.
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Anggono, Bayu Dwi. "The Tenure Arrangement Of Primary Constitutional Organ Leaders In Indonesian Constitutional System." Constitutional Review 2, no. 1 (August 27, 2016): 029. http://dx.doi.org/10.31078/consrev212.
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The tenure arrangement of primary constitutional organ leaders is required as the implementation of power limitation principle and the manifestation of political equality principle as the characteristic of democratic state. The tenure arrangements of primary constitutional organ leaders in Indonesia have four models: tenure arrangement through the 1945 Constitution, tenure arrangement through Law, tenure arrangement which is not regulated by law but regulated in the constitutional organs’ internal regulation, and tenure arrangement which is not regulated by law as well as internal regulation. The problem in this paper is: First, how is the arrangement of leadership tenure in the constitutional organs according to the Indonesian legislation system. Second, how to adjust the arrangement of constitutional organ leader in order to provide legal certainty and prevent conflict that can disrupt organs’ performance. The arrangement through the Constitution is the most powerful model in term of legal certainty regarding that the Constitution is in the highest national legal order and materials related to the structure and organization of primary constitutional organs constitute the Constitution’s substance. The model not regulated in law but regulated in internal regulation prone to cause conflict because every member of the constitutional organs which meets the requirements may change the internal regulation at any time. To avoid this conflict, this paper concludes that it requires the change of regulation regulating the tenure of constitutional organ leaders so that it is no longer regulated in the constitutional organs’ internal regulations, but it is set in the 1945 Constitution or at least in the Law in order to have a better legal certainty.
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Nataliya, Batanova. "Functions of constitutional and legal responsibility: methodological problems of research." Yearly journal of scientific articles “Pravova derzhava”, no. 31 (2020): 210–21. http://dx.doi.org/10.33663/0869-2491-2020-31-210-221.
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The article considers the problems of the theory of functions of constitutional and legal responsibility. The characteristic features of the functions of constitutional and legal responsibility are analyzed. It substantiates the correlation and relationship between the functions of constitutional and legal responsibility and the functions of the Constitution, the functions of constitutional law, the functions of the state, etc. It is proved that the functions of constitutional and legal responsibility are characterized by legal features that reveal the essence and content of this category, in particular: 1) express the nature and content of this type of legal responsibility, its purpose in society and the state, as well as its place in the system of protection of the Constitution and constitutional order; 2) interrelated with the main functions of the state; 3) is an active way of acting of constitutional and legal responsibility and constitutional law as a whole (its principles, tasks, functions); 4) having an objective nature, on the one hand, is a form of purposeful willful behavior or activity of the subjects of constitutional liability and constitutional law in general (subjects of instances of constitutional responsibility and subjects of violators of constitutional law and order (delinquents)), and, on the other hand, the system of legal states that give rise to the constitutional rights and obligations of participants in constitutional-controversial and constitutional-conflict relations; 5) directly related to the system of constitutional law institutions (people, state, elections and referendums, bodies and officials of state power and local self-government, people and citizens, territorial hromadas, political parties, etc.); 6) are in synergy with the sources of constitutional law as a branch of law (above all the Constitution and its functions); 7) directly affect the constitutional and legal relations (first of all, constitutionally-controversial and constitutional-conflict) and their properties, subject-object composition, constitutional legal facts; 8)are organically related to the functions of constitutional law as a legal science and academic discipline and the like, etc. The definition of the concept of the functions of constitutional legal responsibility as the main normative and organizationally secured areas and types of its influence on the constitutional and legal relations with the purpose of protection of the Constitution, restoration of the constitutional order and proper fulfillment of tasks, functions and powers of the subjects of these relations, constitutional disputes between them and overcoming constitutional conflicts is formulated.
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Batanova, Nataliia. "Functions of constitutional and legal responsibility: problems of conceptualisations." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 100–104. http://dx.doi.org/10.36695/2219-5521.1.2020.18.
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The article considers the problems of the theory of functions of constitutional and legal responsibility. The characteristic features of the functions of constitutional and legal responsibility are analyzed. It substantiates the correlation and relationship between the functions of constitutional and legal responsibility and the functions of the Constitution, the functions of constitutional law, the functions of the state, etc.
It is proved that the functions of constitutional and legal responsibility are characterized by legal features that reveal the essence and content of this category, in particular: 1) express the nature and content of this type of legal responsibility, its purpose in society and the state, as well as its place in the system of protection of the Constitution and constitutional order; 2) interrelated with the main functions of the state; 3) is an active way of acting of constitutional and legal responsibility and constitutional law as a whole (its principles, tasks, functions); 4) having an objective nature, on the one hand, is a form of purposeful willful behavior or activity of the subjects of constitutional liability and constitutional law in general (subjects of instances of constitutional responsibility and subjects of violators of constitutional law and order (delinquents)), and, on the other hand, the system of legal states that give rise to the constitutional rights and obligations of participants in constitutional-controversial and constitutional-conflict relations; 5) directly related to the system of constitutional law institutions (people, state, elections and referendums, bodies and officials of state power and local self-government, people and citizens, territorial hromadas, political parties, etc.); 6) are in synergy with the sources of constitutional law as a branch of law (above all the Constitution and its functions); 7) directly affect the constitutional and legal relations (first of all, constitutionally-controversial and constitutional-conflict) and their properties, subject-object composition, constitutional legal facts; 8)are organically related to the functions of constitutional law as a legal science and academic discipline and the like, etc.
The definition of the concept of the functions of constitutional legal responsibility as the main normative and organizationally secured areas and types of its influence on the constitutional and legal relations with the purpose of protection of the Constitution, restoration of the constitutional order and proper fulfilment of tasks, functions and powers of the subjects of these relations, constitutional disputes between them and overcoming constitutional conflicts is formulated.
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VAN BEKHOVEN, Jeroen. "Reforming the Constitution; Reforming the Postcolonial State? Indigenous Peoples and Constitutional Reforms in Taiwan." Asian Journal of Comparative Law 14, no. 2 (November 7, 2019): 245–78. http://dx.doi.org/10.1017/asjcl.2019.28.
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AbstractWhen an authoritarian state starts democratic transition reforms, the constitution can facilitate such reforms. However, a little-studied role of the constitution during democratic transition is that it can back indigenous peoples’ demands. Constitutional reform during democratic transition enables indigenous peoples to challenge the state's ‘internal colonialism’. The democratic institutions and democratic rights established and guaranteed by the constitution open possibilities for indigenous peoples to push for constitutional reforms that promote ‘internal decolonization’. This means that indigenous peoples are empowered and that their interests are protected. For indigenous peoples, a ‘double transition’ can thus take place: from authoritarianism to democracy, and from internal colonialism to internal decolonization. A case study of the constitutional reforms in Taiwan confirms that the constitution can guarantee indigenous peoples’ participation in constitutional reform. But in Taiwan, this involvement has not led to meaningful incorporation of indigenous peoples in the constitution, and it has not fully promoted double transition. The case study highlights serious problems for indigenous peoples to realize strong constitutional reforms. This article provides a foundation for additional research on constitutional change and indigenous peoples. This is critical to advance constitutional theory and to ascertain whether and how constitutions can give indigenous peoples a voice.
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Venter, Francois. "South Africa: A Diceyan Rechtsstaat?" Symposium: Mixed Jurisdictions 57, no. 4 (November 8, 2012): 721–47. http://dx.doi.org/10.7202/1013029ar.
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South Africa’s transformation to constitutionalism in 1994 saw the addition to a mixed legal system of a supreme constitution that requires all law to conform to its provisions, principles, and values. This new constitutional design was developed for the circumstances and modeled on existing liberal democratic constitutions, the most influential of which were Canadian and German. Adopted in 1993, the first constitution introduced the notion of the “constitutional state” but being only a transitional document, it provided for the creation of a “final” constitution crafted in conformity with prescribed principles. The final constitution, adopted in 1996, made no mention of the “constitutional state”, including instead the expression “rule of law”. Since the constitutional principles laid down in 1993 referred to neither the German “Rechtsstaat”, nor Diceyan “rule of law”, the replacement of the former term by the latter was permissible. The two constitutional texts did not, however, elaborate on these two terms. It was left to constitutional interpreters, especially the judiciary, to give meaning to these historically disconnected but conceptually related ideas. The result was a completely novel and pervasive constitutional doctrine. The judicial process of merging these notions may be described as “comparison by global assimilation”.
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Shustrov, Dmitry. "Constitution-transforming informal methods of changing the Constitution of the Russian Federation: between validity and constitutionality." Sravnitel noe konstitucionnoe obozrenie 30, no. 5 (2021): 42–75. http://dx.doi.org/10.21128/1812-7126-2021-5-42-75.
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The Constitution of the Russian Federation has been changed according to formalities and the rules established by it, although there are numerous examples of constitutional changes having been made outside of formal procedures. In the theory and practice of constitutional law, an approach has been developed according to which the constitution can be changed without formally changing its text — by changing its meaning. Such changes are called constitutional transformation and are carried out by informal methods of changing the constitution. They differ significantly from the formal methods of constitutional reform, since they are carried out not by the sovereign source of power but by the constituted power — by the legislative, executive, and judicial authorities. The article examines the main informal methods of changing the constitution: law, interpretation, convention. Constitutional transformation by informal methods of constitutional change is not provided for by the constitution, therefore it is unconstitutional. However, it becomes valid thanks to implementation by institutions established by the constitution, within the framework of constitutionally provided procedures and recognized as methods of constitutional change by other subjects of constitutional relations. If the subjects of constitutional relations are not in agreement with a constitutional transformation, they can overcome it through constitutional reform or (depending on the method) through an appeal to the constitutional court by which, if successful, an informal constitutional change becomes unconstitutional and invalid. Turning to informal methods, the government incurs costs in terms of the legality and legitimacy of the constitutional change, but at the same time it gains in terms of efficiency, time saving and the result obtained. The emergence of a “living”, “parallel” constitution, the lag of the formal constitution behind real life, the inadequacy of the constitutional text are the price paid for resorting to informal methods of constitutional change. It is important that resort to informal means does not become the norm. Constitutional transformation should be supplementary in nature, and appeal to it should be the last resort.
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Çeku, Nur, and Haxhi Xhemajli. "Constitutional principles and their impact on the establishing of constitutional order and rule of law in Kosovo." Zbornik radova Pravnog fakulteta u Splitu 57, no. 4 (October 29, 2020): 1079–96. http://dx.doi.org/10.31141/zrpfs.2020.57.138.1079.
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Considered as a progressive document based on the models of the Western constitutions, the Constitution of the Republic of Kosovo has established the legal basis for a functional statethat respects rights and fundamental freedoms while guaranteeing the rule of law. In its provisions, the Constitution has laid down basic principles which serve as the foundation for Kosovo’s constitutional order. In this regard, these constitutional principles have been further enshrined in the provisions of laws that emanate from the Constitution, and also have been established in the institutional mechanisms for its appropriate application. In addition, what played a prominent role in defining these principles was the impact of the Constitutional Court’s case-law. Case-law has reaffirmed in many instances the tremendous importance of constitutional principles in enhancing the rule of law, protecting the rights of minority groups and other members of Kosovo’s society, and the right to freedom of belief and secularism by implementing the most modern European standards in human protection. Hence, this paper analyzess the impact that constitutional principles have had on defining the structure of the state, guaranteeing the rule of law, protection of human rights and establishing Kosovo as a multi-ethnic society. Likewise, it examines the case-law of Kosovo’s Constitutional Court by providing some of the most prominent cases.
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Leliya, Leliya Leliya, and Leliya Leliya. "INDONESIAN STATE LAW IN ITS HISTORICAL PERSPECTIVE AND DEVELOPMENT." Pena Justisia: Media Komunikasi dan Kajian Hukum 23, no. 1 (March 19, 2024): 829. http://dx.doi.org/10.31941/pj.v23i1.4143.
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<p>The history of Indonesian constitutional law began in the Dutch colonial period when Indonesia was still called the Dutch East Indies. Then after Indonesia's independence in 1945, for the first time formed a constitution or Basic Law. The focus of the study in this study is to try to explain the development of Indonesian constitutional law from the Old Order era to reform. This is to find out how the history of the development of Indonesian constitutional law from time to time, especially from the beginning of independence to reformation. The method in this study is qualitative, with a historical approach. The data collection method used is the method of library research (library research). Then analyzed using the descriptive-analytic method. At the beginning of independence in 1945, Indonesia's constitutional law was contained in the 1945 Constitution. The 1945 Constitution described Indonesia as a unitary state with a president as the head of state as well as a democratic head of government. Besides that, under Soekarno's government, constitutional law was regulated in several constitutions, including the 1949 RIS constitution and the 1950 UUDS. And Soekarno's government at that time was known for its nationalist and anti-capitalist politics. The Suharto government was known for its authoritarian politics, political stability, and economic growth. Finally, during the reform period, after the fall of President Soeharto in 1998, Indonesia underwent significant political reforms. Constitutional law is regulated in the 1945 Constitution with several amendments which emphasize the principles of democracy, human rights, decentralization of government, and increased political participation. The history of the development of constitutional law in Indonesia in general shows quite dynamic developments and always follows changes according to political and socio-cultural developments in Indonesia.</p>
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Grimm, Dieter. "Constitutional Adjudication and Democracy." Israel Law Review 33, no. 2 (1999): 193–215. http://dx.doi.org/10.1017/s0021223700015971.
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Constitutional adjudication is as old as democratic constitutionalism. But for a long period of time, the United States of America remained alone in subjecting democratic decision-making to judicial review. While constitutions had become widely accepted already in the 19th century, it took almost two hundred years until constitutional adjudication has gained world-wide recognition. In the 19th century, only Switzerland entrusted its Supreme Court with competencies in the field of constitutional law, yet, not including review of federal legislation. All other attempts to introduce constitutional adjudication failed. This is also true for Germany where the constitution of 1849 had provided for judicial review in an ample manner. But the constitution adopted by the revolutionary Paulskirchen Assembly did not enter into force because the monarchs refused their consent after the revolution had been put down.
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Dudko, I. G. "Modern Concepts in Russian Constitutional Law." Actual Problems of Russian Law 15, no. 3 (April 9, 2020): 35–46. http://dx.doi.org/10.17803/1994-1471.2020.112.3.035-046.
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The change of the scientific paradigm in Russian jurisprudence is accompanied by the affirmation of pluralism in a legal science. The paper has highlighted that the modern Russian constitutional theory seeks to express itself in the problems of ontological and axiological foundations, claiming to form an integral ”constitutional philosophy.”Constitutional axiology represents one of the most significant concepts of constitutionalism. Constitutional axiology is built as a field of scientific reflection (the nature, content, system of constitutional values). From these standpoints, the author provides for the assessment of law-enforcement carried out by the body of constitutional justice. The paper recognizes the high importance of research of constitutional law from the axiological point of view.The author has concluded that constitutional values as a reflection and expression of the “charter” of the life of the society (“protoconstitutional”) represent objectivated systemic totality functioning as the ultimate goal of constitutional development. Constitutional values represent concepts that must correspond to the social and spiritual environment of the society and the purpose of the State.The paper critically assesses the concept of a “living constitution” in its Russian interpretation as the constitutional and appraisal activity of the Constitutional Court of the Russian Federation with regard to “generation” of constitutional values. It is noted that the result of the work of the Constitutional Court of the Russian Federation expressed in its legal determinations, can not represent other (“generated” by it) constitutional values except those contained in the Constitution of the Russian Federation. “Transformation” of the content and legal attitudes and meanings of the Constitution, constitutional values without changing the text of the Constitution may lead to “distortions” of the essence of the Constitution and intent for the Constitution to be an act with the highest legal force.
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Wabuke, Emmah Khisa Senge. "Possibilities of New Approaches to Gender, Security and Constitutionalism: A Living Gender Probe into Kenyan National Security Architecture in the Constitution." Verfassung in Recht und Übersee 56, no. 1 (2023): 191–212. http://dx.doi.org/10.5771/0506-7286-2023-1-191.
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This paper situates itself within existing feminist constitutionalism analyses by noting that constitutions and constitutional processes are gendered and that constitutional norms may have different consequences for different genders. However, it attempts to extend these existing theories to interrogate how, if at all, feminist constitutional approaches may make credible interventions into the national security architecture given in the constitution. To this end, this paper proposes ‘living gender’ as a model of analysis. This model requires a deliberate inclusion of gender in the architectural design of constitutional institutions, which in this case, is the Kenyan National Security Framework. As with most feminist approaches, living gender is sceptical of rights-based clauses on equality and non-discrimination that do not interrogate the underlying masculine structures of constitutions. In this paper, I propose a three-pronged approach, including, ontological, locus and content concerns. To test this model, this paper uses the national security architecture in the Constitution of Kenya, 2010 as a case study.
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Fombad, Charles Manga. "Designing Institutions and Mechanisms for the Implementation and Enforcement of the Constitution: Changing Perspectives in Africa." African Journal of International and Comparative Law 25, no. 1 (February 2017): 66–90. http://dx.doi.org/10.3366/ajicl.2017.0182.
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Until fairly recently, the issue of constitutional implementation has surprisingly received little attention both in constitutional theory and practice. Yet it is a crucial aspect of constitutional effectiveness. Without a carefully thought-out strategy for implementing and enforcing a constitution, its practical effectiveness in promoting constitutionalism, respect for the rule of law, and good governance may be quite limited. The Kenyan 2010 Constitution provides a backdrop against which this article examines certain critical issues in designing institutions and mechanisms for ensuring that a constitution is properly implemented and enforced. The article starts by briefly considering the importance of and challenges in implementing and enforcing constitutions. It then uses the evidence from recent developments in constitution-making to identify some of the core constitutional implementation and enforcement institutions. The article then looks at the Kenyan example which, in Africa, presently provides the best example of a carefully thought-out and well-designed constitutional implementation strategy. Based on this, the article then considers some of the key elements in designing an effective constitutional implementation framework. In concluding, the article argues that incorporating and entrenching effective constitutional implementation mechanisms must be made one of the top priorities in designing constitutions. Furthermore, designing any constitutional institution to oversee, supervise, and monitor the implementation of the constitution must also now be recognised as one of the critical elements for entrenching constitutionalism and respect for the rule of law.
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Trykhlib, Kristina. "Law-Making Activity in the Case Law of the Constitutional Court of Ukraine." International and Comparative Law Review 19, no. 2 (December 1, 2019): 27–75. http://dx.doi.org/10.2478/iclr-2019-0014.
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Summary The aim of this paper is to reveal and examine law-making elements in the jurisprudence of the Constitutional Court of Ukraine. It should be noted that the Constitutional Court has no direct powers to establish new legal norms under national legislation. However, in the process of constitutional interpretation, the case law of the Court demonstrates de facto the presence of law-making activity, that leads to the extension of its discretionary power on the formation of law. The paper will focus on the analysis of the practice of the Constitutional Court of Ukraine with regard to the ‘creative interpretation’ of law. A review of selected case law leads to a conclusion that the Constitutional Court often uses the dynamic interpretation of the Constitution. Moreover, the Court may change its own legal position in order to protect constitutional rights. Thus, the Constitutional Court of Ukraine has the right to ‘develop’ the law through evolutive interpretation of the Constitution. It can also be concluded that the Constitutional Court enjoys a wide ‘margin of appreciation’ in its interpreting of the Constitution.
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Charpy, Chloé. "The Status of (Secondary) Community Law in the French Internal Order." European Constitutional Law Review 3, no. 3 (October 2007): 436–62. http://dx.doi.org/10.1017/s1574019607004361.
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Conseil constitutionnel and Conseil d'Etat now both hold that Article 88-1 of the French Constitution contains the duty to implement Community law – The Conseil constitutionnel tests whether acts of parliament manifestly contravene unconditional and precisely phrased provisions of Community law – Duty to implement Community law limited by France's constitutional identity for the Conseil constitutionnel, by the absence of equivalent protection on the Community level for the Conseil d'Etat – Supremacy of the Constitution not affected
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Baranger, Denis. "The Language of Eternity: Judicial Review of the Amending Power in France (or the Absence Thereof)." Israel Law Review 44, no. 3 (2011): 389–428. http://dx.doi.org/10.1017/s0021223700018112.
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In several rulings from 1962, 1992, and 2003, the French Constitutional Court (Conseil constitutionnel) has denied jurisdiction over constitutional amendments. This article shows that this solution can only be understood in the light of the doctrinal background that provides its intellectual justification. While refusing to judicially review constitutional amendments, the Constitutional Court is in fact deeply involved in the ongoing process of altering the Constitution. Also, while the quasi-official doctrinal analysis insists on the absence of material limits to the amendment of the Constitution, and on the absence of any “supra-constitutional” rules, an analysis of the language used by the Court in these rulings offers reasons to diverge from this view. While the Court has refused to review constitutional amendments, it has done so in a way that comes very close to the language used by those courts that stated that such amendments were justiciable. Far from adhering to a mere policy of neutrality and self-restraint, the Constitutional Court speaks a “language of eternity” with a rich substantive content.
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Lazutin, L. A., and M. A. Likhachev. "Human Rights: Integrity of the Russian and International Law, Competition of Courts Decisions." Moscow Journal of International Law, no. 3 (October 9, 2021): 31–44. http://dx.doi.org/10.24833/0869-0049-2021-3-31-44.
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INTRODUCTION. The amendments to the Russian Constitution 2020 challenged de novo the international law prevalence and led the Russia’s way to find it own perception of international law. Although the amendments did not introduce drastically substantive modifications of the international law modus operandi in the national legal system nevertheless they shifted the constitutional focus. The former one was built on the presumption of the juridical consistency of the constitutional order and Russia’s international commitments. Today there’s the a priori allegation of possible conflicts between requirements of the Constitution and judgment of international courts.MATERIALS AND METHODS. The paper comprises short historical analysis of the internationally meaningful rules of the Constitution in its comparison to the current legal situation in Russia. Rather superficial but illustrative juridical overview of the relevant constitutional provisions with their domestic legal counterparts demonstrates the significance and practical efficiency of the concomitant interpretation of the constitutional rules and Russia’s international obligations.RESEARCH RESULTS. Such a shift paradigmatically is still pending new interpretation of the constitutional fundamentals. At least they need different construction to be concomitant to the refusal mechanism (as regards international judgments). Still unchanged verbatim the constitutional fundamentals provide for proliferated mechanism of the human rights protection under international las with in domestic order and still require the concordant interpretation of the international commitments and constitutional rules.DISCUSSION AND CONCLUSIONS. The modified constitutional landscape shifted drastically the international law priority in the Russian legal system. Although the international law leaves to the State’s choice to determine internally the status of its international commitments the constitutional fundamentals (left untouched verbatim) still require international law priority. The constitutionally enclosed human right protection mechanism emphasizes such priority.
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Hunter-Henin, Myriam. "CONSTITUTIONAL DEVELOPMENTS AND HUMAN RIGHTS IN FRANCE: ONE STEP FORWARD, TWO STEPS BACK." International and Comparative Law Quarterly 60, no. 1 (January 2011): 167–88. http://dx.doi.org/10.1017/s0020589310000709.
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A major constitutional reform has occurred in France. On 1 March 2010, by virtue of the Constitutional Act of 10 December 20091 (itself pursuant to the constitutional reform of 23 July 2008)2 a new form of constitutional review came into force,3 with the blessing of the Conseil constitutionnel (the Constitutional council).4 The changes are considerable: the role of the Conseil constitutionnel has undergone a revolution which will have implications for ordinary courts as well as for citizens' rights. Arguably, the reform transforms the Conseil constitutionnel—so far a council with limited powers of review—into a true Constitutional court, and as discussed below, opens up constitutional issues in ordinary litigation, enhancing the protection of citizens' human rights. Owing to the reform, ‘Constitutional rights and liberties guaranteed by the Constitution’ can now be invoked against legislation in the course of litigation. This is a true revolution in France because, up until now, no individual was allowed to invoke the jurisdiction of the Conseil constitutionnel,5 nor were they authorized to invoke a constitutional principle in litigation, as this would have been asking ordinary judges to assess a piece of legislation against the Constitution, a task which exclusively belongs to the Conseil constitutionnel.6 Constitutional rights and liberties will now (as is further discussed below) play a key part in ordinary litigation.
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Yerzhanova, F. A., and M. Yu Abdakimova. "Constitutional and legal aspects of the ratio of international and domestic law." Bulletin of the Karaganda University “Law Series” 97, no. 1 (March 30, 2020): 12–20. http://dx.doi.org/10.31489/2020l1/12-20.
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The article discusses the content and role of constitutional legal regulation of the ratio of domestic and international law in Kazakhstan and foreign countries. The authors show the domestic and foreign specifics of the constitutional regulation of the correlation of national and international law, different approaches of legislators to fixing the correlation of domestic and international law in the Basic Laws are indicated. The article also addresses the problems of interaction between international and constitutional law. The authors highlight theoretical and practical issues related to the incorporation of international law into the legal systems of states by the Constitutions of foreign countries and the Republic of Kazakhstan. Based on the comparative legal analysis, the features of fixing the correlation of domestic and international law in the constitutions of foreign countries are revealed. The issues of fixing the norms of general international law and international treaties in the Constitutions of various countries are also considered. Conclusions have been made, in particular, that the Constitution of the Republic of Kazakhstan as a whole is in line with global trends in the development of constitutional law, due to universal globalization and internationalization of law; about the need for further scientific development of theoretical and practical issues relating, for example, to the conceptand content of universally recognized principles and norms of international law, their place in the hierarchy of legal systems of states. As one of the directions for further improvement of constitutional legislation, a proposal has been formulated to include in the constitutional and legal law provisions on universally recognized principles and norms of international law on human rights.
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Herklotz, Tanja. "Feminist Constitutional Activism in India." Verfassung in Recht und Übersee 56, no. 1 (2023): 153–74. http://dx.doi.org/10.5771/0506-7286-2023-1-153.
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This paper assesses feminist constitutional activism in India, i.e. feminist engagements with the Constitution with the aim of broadening women's rights. To this end, the paper looks at several generations of feminist activists. It shows how feminists impacted the process of constitution-making and how they realised women's constitutional rights by holding the legislature accountable to the Constitution and demanding that the judiciary declare laws unconstitutional if they violated women's fundamental rights. The paper places a particular focus on the constitutionally enshrined conflict between religious freedom and women's rights—a conflict that plays out in a specific way in many countries of the Global South and that confronts feminist activists with challenges that their counterparts in the Global North might not face in the same way.
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Grądzka, Ilona. "Control of the Constitutionality of European Union Law by Means of Constitutional Complaints." Review of European and Comparative Law 47, no. 4 (December 7, 2021): 189–205. http://dx.doi.org/10.31743/recl.12303.
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The subject of this article is the institution of the constitutional complaint, which is analysed in connection with European integration. It should be noted that Poland’s membership of the European Union has had a great influence, not only on the system of national law, but also on the jurisprudence of the Polish Constitutional Tribunal; therefore considerations are carried out here mainly in relation to the Constitutional Tribunal. In examining the issue of the constitutional complaint, the following assumptions may be stated. First, the constitutional-complaint procedure, is in fact, the examination of the compliance of legal norms with the Constitution, any deviation being related to the entities initiating proceedings before the Constitutional Tribunal, Article 191(1)(6), of the Constitution[1], and to the material scope of the complaint, as determined in Article 79 of the Constitution. Second, there is no doubt that the constitutional complaint can become an important legal instrument shaping the jurisprudence of the Polish Constitutional Tribunal, which has to face constitutional issues related to European integration[2]. Following the example of the practice of other Member States, e.g. Germany, the Tribunal may use the institution of the constitutional complaint as a means of controlling the compliance of the secondary law of the European Union with the Constitution of the Republic of Poland. [1] The Constitution of the Republic of Poland, Journal of 2 April 1997, Journal of Law 1997, No. 78, item 483, as amended. [2] The literature on the subject indicates that the membership of nation States of the European Union obliges constitutional courts to act in the field of integration. Their task is to set the boundaries and conditions for the integration process. Jurisprudence in this area is referred to as acquis constitutionnel. Cf. Aleksandra Kustra, “Model skargi konstytucyjnej jako czynnik kształtujący orzecznictwo sądów konstytucyjnych w sprawach związanych z członkostwem państwa w Unii Europejskiej,” Państwo i Prawo, no. 3 (2015): 35.
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Pollicino, Oreste. "Italy." European Constitutional Law Review 4, no. 2 (June 2008): 363–82. http://dx.doi.org/10.1017/s1574019608003635.
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It is never too late. In two decisions handed down at the end of October 2007, the Italian Constitutional Court seems finally to have begun to take seriously one of the Italian Constitution's fundamental principles: the openness to international law which is embodied in Articles 10, 11 and – the provision chosen by the Constitutional Court in the judgments being examined – 117, paragraph 1 of the Constitution, which was added by the constitutional revision of 2001. In particular, the two decisions focus on the relationship between the Italian constitutional legal order and the Convention for the Protection of Human Rights and Fundamental Freedoms.
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Ahmad, Ahmad, Fence M. Wantu, and Dian Ekawaty Ismail. "Convergence of Constitutional Interpretation to the Test of Laws Through a Constitutional Dialogue Approach." Jurnal Konstitusi 20, no. 3 (September 1, 2023): 514–35. http://dx.doi.org/10.31078/jk3038.
Full textAbstract:
The Constitutional Court's presence yields positive impacts on constitutional law, yet isn't devoid of controversies, including Judge misconduct, transgression of 'nemo judex idoneus in propria causa' principle, and potential super body transformation. This paper aims to comprehend and analyze constitutional interpretation dominance in assessing laws against the 1945 Constitution through a constitutional dialogue approach. This normative writing employs legal, historical, and conceptual methods. Findings underscore: 1) Demonstrating respect for state institutions, notably the People's Consultative Assembly of Indonesia. 2) Establishing a more democratic system to test the 1945 Constitution's compatibility in the Constitutional Court. 3) Breaking the monopoly of Constitutional Court-centric constitutional interpretation. 4) Reviving 'nemo judex idoneus in propria causa' principle is pivotal due to extensive testing of Constitutional Court Law, addressing concerns about verdict impartiality.
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Ahmad, Ahmad, Fence M. Wantu, and Dian Ekawaty Ismail. "Convergence of Constitutional Interpretation to the Test of Laws Through a Constitutional Dialogue Approach." Jurnal Konstitusi 20, no. 3 (September 1, 2023): 514–35. http://dx.doi.org/10.31078/jk2038.
Full textAbstract:
The Constitutional Court's presence yields positive impacts on constitutional law, yet isn't devoid of controversies, including Judge misconduct, transgression of 'nemo judex idoneus in propria causa' principle, and potential super body transformation. This paper aims to comprehend and analyze constitutional interpretation dominance in assessing laws against the 1945 Constitution through a constitutional dialogue approach. This normative writing employs legal, historical, and conceptual methods. Findings underscore: 1) Demonstrating respect for state institutions, notably the People's Consultative Assembly of Indonesia. 2) Establishing a more democratic system to test the 1945 Constitution's compatibility in the Constitutional Court. 3) Breaking the monopoly of Constitutional Court-centric constitutional interpretation. 4) Reviving 'nemo judex idoneus in propria causa' principle is pivotal due to extensive testing of Constitutional Court Law, addressing concerns about verdict impartiality.
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Shinar, Adam. "Deconstructing Mixed Constitutions." Law & Ethics of Human Rights 16, no. 1 (May 1, 2022): 167–92. http://dx.doi.org/10.1515/lehr-2022-2005.
Full textAbstract:
Abstract A central task of comparative constitutional law scholarship is categorization and classification of constitutions. Recent scholarship, no doubt informed by the populist tide, has sought to develop the concept of a mixed constitution. Broadly speaking, a mixed constitution is a constitution that integrates liberal and illiberal elements, elements that are usually separate and not found under the same constitution. The study of “mixed constitutions” encompasses both descriptive and normative aspects. First, an attempt to ascertain what, exactly, makes a constitution “mixed.” Second, an attempt to analyze either the desirability of such a system or an attempt to figure out how to harness mixed constitutions in the service of particular normative goals, for example the protection of human rights. This article has two goals. First, an inquiry into the descriptive aspect of mixed constitutions. My aim is to show that given the seeming consensus of what constitutes a mixed constitution, the category itself might encompass many more constitutions than is often acknowledged, to the point that many constitutions are likely to be mixed to a certain extent. My second goal is to demonstrate that given this definitional consensus, what makes a constitution mixed is not necessarily because the constitution itself is mixed, but because sub-constitutional norms shape our constitutional understanding. Put differently, the meaning of a constitution is not determined exclusively through an analysis of the constitution, but also by shifts in sub-constitutional understandings. If this is correct, then it turns out that the universe of mixed constitutions is much larger than thought, which casts doubt on the utility of the category of mixed constitutions.
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Kalish, Dar'ya. "Specificity of the interpretation of constitutionality in the Fifth Republic in France." Sravnitel noe konstitucionnoe obozrenie 30, no. 3 (2021): 125–40. http://dx.doi.org/10.21128/1812-7126-2021-3-125-140.
Full textAbstract:
In France, the understanding of the constitutionality of law and the wider institution of constitutional control have interesting features, especially when compared to other countries that use the traditional, legal European (Kelsen’s) model. These include the originality of the standard, against which legislative acts are checked. It is the so-called constitutional bloc, which, in addition to the 1958 Constitution itself, includes the Declaration of the Rights of Man and Citizen of 1789, the Preamble to the 1946 Constitution, the 2004 Environmental Charter, as well as the principles to which the Constitutional Council attaches constitutional significance. A feature of French public law in accordance with the 1958 Constitution is the non-universal legislative competence of parliament and the delimitation of the areas of regulation of law and regulations (government acts). In this regard, one of the requirements for the constitutionality of the law in France is that it should not interfere with the sphere of regulatory power, that is, it should not touch upon issues that are not attributed to the subject of legislative regulation by the Constitution. However, Parliament’s violation of the delimitation of legislative and regulatory regulation established by the Constitution does not include the unconstitutionality of the corresponding law (its individual provisions), instead only allowing the Government to amend them by its decrees. For a long time in France, there was only preliminary constitutional control over laws, legislative proposals submitted to a referendum, regulations of the chambers of Parliament and international treaties. As a result of the 2008 constitutional reform, a specific, subsequent constitutional review was introduced. It can be initiated in the Constitutional Council by the Court of Cassation or the Council of State upon an appeal, respectively, by a court of general jurisdiction or an administrative court, before which a statement is made that the law being applied to the dispute under consideration violates constitutionally guaranteed human rights. The institution of subsequent constitutional review has proved to be in great demand, and currently, most of the Constitutional Council’s decisions are made within its framework. In modern France, the development of legislation is significantly influenced by EU law. However, neither the Constitutional Council nor the Council of State directly monitor the compliance of laws and regulations with international treaties and EU law.