Journal articles on the topic 'Constitutional models for protection'
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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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MARTÍNEZ CUEVAS, MARÍA DOLORES. "THE DEFENCE OF THE DEMOCRATIC CONSTITUTION IN EXTRAORDINARY CIRCUMSTANCES: THE LAW OF EXCEPTION IN COMPARATIVE LAW AND IN SPANISH CONSTITUTIONAL HISTORY." Spanish Journal of Legislative Studies, no. 3 (December 1, 2019): 1–29. http://dx.doi.org/10.21134/sjls.vi3.1394.
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Abstract: In this paper we examine the appropriateness and significance of the law of exception in the Spanish constitutional order. For this, we have examined the models of Comparative Law that Spain has followed to restore its disturbed constitutional order. Basically, historically, concern arose at the time of North American and French Revolutions of how to incorporate into the Constitution the institutions related to their protection. British singularity was also manifested in the way of understanding and including specific protection for the defence of the Constitution and the law of exception, with institutions such as martial law or habeas corpus. The suspension of habeas corpus as an extraordinary instrument of protection of the state organization was considered in the American Constitution of 1787, and is thought of as a precedent of Article 55.1 of the current Spanish Constitution of 1978. During the period between 1812 and 1869, the law of exception contemplated in Spanish Historical Constitutions covers only the suspension of guarantees. The republican Constitution of 1931 conserved the outline of the Constitution of 1869, with certain relevant alterations. The most significant normative instruments of this legislation were the Law of Defence of the Republic and the Law of Public Order of 1933. After the publication of this last Law, it became the extraordinary norm that has most deeply and habitually been put into practice, since Spain has experienced practically a permanent situation of "constitutional abnormality". This highlights the fact that a Law of Public Order for the defence of the constitutional regime established by the Second Republic could be transferred in many of its precepts, with very similar contents to the Francoist Law of Public Order that was able to remain in force until much later, being finally repealed by the Organic Law of LO 1/1992, of Protection of Citizen Safety.
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Chakim, M. Lutfi. "A Comparative Perspective on Constitutional Complaint: Discussing Models, Procedures, and Decisions." Constitutional Review 5, no. 1 (May 31, 2019): 096. http://dx.doi.org/10.31078/consrev514.
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The constitutional complaint is one of the important constitutional court jurisdictions that can be described as a complaint or lawsuit filed by any person who deems his or her rights has been violating by act or omission of public authority. Currently, the constitutional court in many countries have adopted a constitutional complaint system in a variety of models. However, the first application of the constitutional complaint jurisdiction came from Europe. In Austria, the constitutional complaint is allowed against the administrative actions but not against the court decisions. While Germany and Spain have a similar model that is a complaint against an act of the public authority including court decisions. In Asia, it is imperative that the court in Asia actively participate in the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). The AACC members have adopted a system of constitutional adjudication in a variety of models, and when it comes to jurisdictions, out of sixteen AACC members, there are four countries (Azerbaijan, South Korea, Thailand, and Turkey) have the constitutional complaint in their jurisdictions. In Azerbaijan, constitutional complaint is comparatively broad. Azerbaijan’s Constitutional Court can handle constitutional complaint against the normative legal act of the legislative and executive, an act of a municipality and the decisions of courts. In contrast, even though constitutional complaint in South Korea and Thailand can be against the exercise and non-exercise of state power, constitutional complaint cannot be filed against court decisions. In Turkey, the constitutional complaint mechanism is coupled with the regional system of human rights protection. The Turkish Constitutional Court handles complaints from individuals concerning violations of human rights and freedoms falling under the joint protection of the Turkish Constitution and the European Convention on Human Rights (ECHR). This paper argues that constitutional complaint represents the main part of the constitutional court, and through a comparative perspective among three countries in Europe and four AACC members are expected to provide lessons for the other AACC members that do not have a constitutional complaint mechanism, such as Indonesia.
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Chirwa, Danwood Mzikenge. "A FULL LOAF IS BETTER THAN HALF: THE CONSTITUTIONAL PROTECTION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN MALAWI." Journal of African Law 49, no. 2 (October 2005): 207–41. http://dx.doi.org/10.1017/s0021855305000148.
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CHIRWA, DANWOOD MZIKENGE, A full loaf is better than half: the constitutional protection of economic, social and cultural rights in Malawi, Journal of African Law, 49, 2 (2005): 207–241The last two decades have seen a new wave of constitution-making in Africa as many countries changed from autocracy to democracy. Malawi followed the trend by adopting a new Constitution in 1994 to mark the end of a 30-year, dictatorial one-party regime. This Constitution breaks with traditional constitutions by recognizing economic, social and cultural rights. However, few of these rights are entrenched in the Bill of Rights as justiciable rights. The rest are enshrined as unenforceable principles of national policy. These provisions and the jurisprudence they have generated thus far are discussed critically. It is argued that while the Malawian Constitution deserves acclaim for recognizing these rights, the model adopted for protecting them fails to give full effect to the notion of the indivisibility of all rights and is not good enough for a poor country, which is also in transition to democracy. Not only was Malawi's choice of this model not preceded by a careful and reasoned examination of the existing models and the local circumstances, it was also made without wide public consultations. The ways, based on the existing constitutional provisions, in which the protection of these rights can be improved are explored.
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Batanov, Oleksandr, Natalia Verlos, Olga Lotiuk, and Olena Sinkevych. "Ombudsman Institute: Basic Models and Problems of Reception in Constitutional Law." Revista Amazonia Investiga 9, no. 29 (May 18, 2020): 273–81. http://dx.doi.org/10.34069/ai/2020.29.05.31.
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In the search for optimal ways of improving the normative foundations and organizational-legal forms of human rights protection, the problem of institutional support of relevant processes is actualized. The protection of human rights is inherently linked to all public-power structures of the mechanism of state power and is possible only in the context of optimal implementation of the principles of the rule of law, separation of powers, democratic, social, rule of law. In Ukraine, in the context of constitutional modernization, the problem of improving the organizational-legal mechanism of human rights protection remains urgent. For this purpose, the Institute of the Ombudsman operates in Ukraine. Its implementation fully meets the tendencies existing in the modern democratic world and is a reaction to those conflicts and contradictions that exist in the field of human rights protection. Nevertheless, the social insecurity of certain sections of the population (children, pensioners, persons with disabilities, servicemen, migrants, internally displaced persons, ethnic minorities, persons belonging to the LGBTI community, entrepreneurs, patients and other categories of citizens) is an indicator of the relevance of the problem and the functioning of national human rights protection mechanisms, including the strengthening of the relevant oversight functions of the Ombudsman. The subject of the research is the problems of reception in the constitutional law of the basic models of organization of the Ombudsman Institute in the mechanism of functioning of the rule of law. The object of the study is the public relations that delve into the human rights protection process and the ombudsman's exclusivity in the relevant processes. The methodological basis of the study are general scientific methods, such as dialectical, comparative-legal, formal-legal, historical, and logical methods of cognition, as well as special and private-law methods. The history of development, the causes, the processes of institutionalization and constitution of the ombudsman services in the modern world, the permanent transformation of their functions and the differentiation of their specialization are evidence of the improvement of the classical system of separation of powers and the constitutional mechanism of its organization. It is argued that the functional isolation, independence, and organizational diversity of the control bodies, first of all, the Ombudsmen, is a testament to the formation of control power, the conceptual idea of which is the existence of a system of measures to ensure control over public authority.
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Urbanavičius, Rokas, and Vytautas Vaicekauskas. "The novelty of the individual constitutional complaint in Lithuania – theorethical and practical aspects." Vilnius University Open Series, no. 4 (November 16, 2020): 6–28. http://dx.doi.org/10.15388/os.tmp.2020.1.
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In several stages a new legal instrument (the constitutional complaint) was established in the legal system of Lithuania starting by the amendment of the Constitution on March 21, 2019 and continuing in July by introducing the requirements for appealing to the Constitutional Court. The essence of this novelty lies in the model established in the Polish Constitution, i. e. the additional possibility for a person who has exhausted all usual means of defence of constitutional rights and freedoms to appeal directly to the Constitutional Court questioning the constitutionality of such a legislative and executive act, which was the basis for the adoption of a final non-appealable judgment against that person in a court. The introduction of such novelty in the legal system of Lithuania implies the further development of the protection of human rights and freedoms and the realization of the principle of the Rule of Law which is necessary for the latter. Therefore, while investigating the novelty of the constitutional complaint in Lithuania, models of constitutional complaint, specific details of the establishment of this institute in Lithuania are unravelled, and practical aspects are investigated by analysing first constitutional complaints submitted to and accepted by the Constitutional Court.
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Álvarez García, Héctor. "La tutela constitucional de las personas con discapacidad // The constitutional protection of persons with disabilities." Revista de Derecho Político 1, no. 100 (December 20, 2017): 1027. http://dx.doi.org/10.5944/rdp.100.2017.20725.
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Resumen:El trabajo principia con un recorrido histórico por los distintos modelos implementados por los poderes públicos para abordar el fenómenode la discapacidad, que culmina con el paradigma mixto —médico y social— plasmado en la Constitución española de 1978. El artículo interpreta las «normas de contenido social» de la Constitución, a la luz del Convenio Internacional sobre los Derechos de las Personas con Discapacidad y de la doctrina del Tribunal Constitucional, al objeto de determinar el contenido y alcance de la tutela constitucional de la capacidad de obrar de las personas con discapacidad, imprescindible para garantizar el libre desarrollo de la personalidad a este numeroso grupo de ciudadanos, cuyas vidas han sido tradicionalmente gobernadas por la voluntad ajena, cuando no directamenteprivados de libertad mediante su institucionalización.Summary:1. Historical paradigms. 1.1 Eugenic. 1.2 Medical. 1.3. Social. 2. The constitutional model. 3. The exercise of rights. 3.1 Introduction. 3.2 The International Convention on the Rights of Persons with Disabilities. 3.3 Equal legal capacity. 3.4 Universal accessibility. 4. Bibliography.Abstract:The work begins with an historical journey through the different models implemented by public authorities to address the phenomenon of disability. This journey culminates with the mixed paradigm —medical and social— embodied in the Spanish Constitution of 1978. The article interprets the «social protections norms» of the Constitution, in the light of the International Convention on the Rights of Persons with Disabilities and the doctrine of the Constitutional Court, in order to determine the content and scope of constitutional protection of the capacity to act of persons with disabilities. This is essential to ensure the free development of the personality of this large group of citizens, whose lives have traditionally been governed by the will of others, if not been directly deprived of their liberty through their institutionalization.
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Burla, V. M. "The Value as a Basic Category of Domestic Constitutional Axiology." Actual Problems of Russian Law 16, no. 4 (May 3, 2021): 23–32. http://dx.doi.org/10.17803/1994-1471.2021.125.4.023-032.
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The paper is devoted to one of the most debatable issues of modern constitutional axiology, namely: the definition of the nature, essence and role of values. The author consistently reveals the significance of the category “value” in a philosophical discourse, in general axiology of law, and in the context of constitutional law. For constitutional axiology, the category of “value” appears as a multifaceted phenomenon, for which there is no common understanding today. The paper provides for differnt ways of solving this difficult task by philosophers of law and constitutionalists, i.e. to give an optimal definition of the category “a constitutional value”. Scholars determinate constitutional values through the categories of “purpose”, “priority”, “principle”, “ideal”, “idea”, “goal”, etc. On the basis of an assessment of existing approaches, the author defines her standing concerning the content of constitutional values and proposes her own definition of this basic category based on the attitude to values of the constitutional order as ideal models of the human, social and state development, acting as criterion used in the implementation and interpretation of the Constitution to achieve balanced constitutional protection of the human being, his rights and freedoms, the foundations of the constitutional order, morality, health, rights and legitimate interests of all members of the society, as well as defence of the country and security of the State.
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DERKACH, A. L. "NATIONAL MODELS OF HUMAN RIGHTS PROTECTION IN THE WORK OF CONSTITUTIONAL JUSTICE BODIES." Scientific Journal of Public and Private Law 2, no. 1 (2019): 18–25. http://dx.doi.org/10.32844/2618-1258.2019.2-1.3.
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Proskuryakova, Maria. "Personal data: Russian and German national models of the constitutional protection in comparative perspective." Sravnitel'noe konstitucionnoe obozrenie 6, no. 115 (2016): 84–98. http://dx.doi.org/10.21128/1812-7126-2016-6-84-98.
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Kukhlivskiy, V. S. "Model of Individual Constitutional Complaint Subject to Commonwealth of Independent States Members’ Legislation: a Comparative Legal Analysis." MGIMO Review of International Relations, no. 6(39) (December 28, 2014): 182–88. http://dx.doi.org/10.24833/2071-8160-2014-6-39-182-188.
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CIS members legislation regulating judicial proceedings on individual constitutional complaints is in the process of development, the relevant problems are debated by leading experts on national and international level. In view of the aforesaid this article is devoted to core concept of constitutional complaint - the model of complaint and contains comparative legal analysis of models incorporated in legislation of CIS members in different historical periods. The author proposes to enlarge the list of objects of constitutional complaint so that it includes all types of normative acts as well as individual acts, i.e. to introduce the model of full constitutional complaint. The named measures are aimed to strengthen protection of constitutional human rights in Russia and also to decrease the number of complaints against Russia filed to European Court of Human Rights.
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Podkowik, Jan, Robert Rybski, and Marek Zubik. "Judicial dialogue on data retention laws: A breakthrough for European constitutional courts?" International Journal of Constitutional Law 19, no. 5 (December 1, 2021): 1597–631. http://dx.doi.org/10.1093/icon/moab132.
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Abstract In 2006 the European Union (EU) adopted a directive which imposed on telecommunication operators an obligation to store all the telecommunication data (data retention) and provide access to retained data to state authorities in order to combat serious crime. The new legislation had to been implemented by all EU Member States. Immediately after the directive was issued, it triggered controversy. Substantial reservations against this measure had been confirmed by five European constitutional courts already within the first eight years since its introduction. In 2014 the Court of Justice of the European Union (CJEU) also acknowledged those reservations. Since then, further European constitutional courts invalidated domestic legislation on data retention. This jurisprudence posed a unique research opportunity to verify whether a genuine judicial dialogue within the varied legal systems occurred in the EU. In this article we analyze jurisprudence of constitutional courts, CJEU, and the European Court of Human Rights (ECtHR) on data retention. We identify interactions between domestic and international standards of privacy protection. The main method employed is a comparative study of all the judgments (following their translation) along with a simultaneous analysis of the common EU regulatory framework that all of those judgments challenged. A pivotal finding was an identification of three basic models clearly describing approaches taken by the constitutional courts involved. As the basis for our models, we used the approach of constitutional courts to two pan-European courts: ECtHR and CJEU. We claim that the analyzed jurisprudence constituted an important building block in the construction of a constitutional tradition relating to the protection of privacy based on the European Convention of Human Rights. Existence of this tradition led to the 2014 CJEU judgment (and to subsequent judgments of national constitutional courts).
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Mazayev, V. D. "The Search for New Meanings Continues (Concerning the Amendments to the Constitution of the Russian Federation)." Lex Russica, no. 7 (July 19, 2021): 15–31. http://dx.doi.org/10.17803/1729-5920.2021.176.7.015-031.
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Amendments to the Constitution of the Russian Federation in 2020 introduced many new meanings and concepts into the constitutional matter. Most of them have great ideological potential. The paper analyzes the worldview aspect of the amendments to the Constitution of the Russian Federation, the political message of their adoption, methodological approaches to identifying their content.The paper highlights amendments with the greatest spiritual and moral content, such as succession, historical truth, patriotism. The author elucidates the prerequisites for their adoption, including the historical inevitability of changing the Constitution of the Russian Federation in 1993 and the defeat of imitative constitutionalism in the majority of post-socialist countries. It is shown that the ideological content of the amendments was used to adjust the liberal-democratic model from the standpoint of strengthening the state sovereignty. Particular attention is paid to the expansion of national identity in constitutional norms as a natural process of protection from global constitutionalism, universal democratic values, including the case study of Eastern European states. There is a worldwide crisis tendency for the market-type democracy, the search for more modern approaches to its renewal.As a conclusion, it is noted that the worldview turn towards a reassessment of the liberal democratic doctrine is contradictory and not completely clear. It can be assumed that the amendments to the Constitution of the Russian Federation are the first step not only towards the modification of constitutional institutions, but also towards a qualitative renewal of the philosophical and legal meanings of the Russian constitutional identity.As methodological tools of scientific research, it is proposed to use the potential of the integrative function of philosophy of law and the concept of system-wide contradictions of the society. This concept allows us to critically assess the universality of the traditional values of democracy, to form their own competitive models of the constitutional structure. It aims at finding a balance between the opposites in the society, the state, at the mechanism of dialogue and proportionality in decision-making.
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Brovko, Nataliia I., Liudmyla P. Medvid, Ihor Y. Mahnovskyi, Vusal A. Ahmadov, and Maksym I. Leonenko. "The role of the constitutional complaint in the legislative process: Comparative legal aspect." Cuestiones Políticas 39, no. 69 (July 17, 2021): 833–50. http://dx.doi.org/10.46398/cuestpol.3969.51.
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The article deals with the role of constitutional complaint in the system of quality assurance of the state legislation, for protection of the rights and freedoms. Constitutional complaints, as well as their optimal models, require detailed research. Comparative analysis and survey are the main methods. The subject of a constitutional complaint in the model proposed by the authors may be laws or their individual provisions, regulations of heads of state, government, other statutes and regulations, individual administrative acts, judgements in specific cases. Citizens, foreigners, stateless persons, and legal entities are subjects who have the right to file a constitutional complaint. The authors attribute the following conditions of admissibility of a constitutional complaint: the presence and proof of violation of his/its constitutional rights and freedoms, the use of all other remedies to protect violated rights and freedoms, compliance with deadlines for filing a constitutional complaint in some countries, and payment of state duty. The model proposed by the authors is, however, universal, and further needs to be detailed for countries of interest.
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Nardina, Oksana V. "Constitutional and legal models of countering terrorism." Izvestiya of Saratov University. Economics. Management. Law 21, no. 4 (December 16, 2021): 458–67. http://dx.doi.org/10.18500/1994-2540-2021-21-4-458-467.
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Introduction. Terrorism as a socio-political phenomenon that violates the security, rights and interests of the individual, society and the state, puts forward new tasks for constitutional construction in a globalizing world. That is why the article examines the current constitutional and legal models of countering terrorism. The author analyzes various points of view of scientists and politicians on the relationship of human rights, as well as other constitutional values with measures of response to an emergency. Theoretical analysis. The study of the constitutional and legal models of countering terrorism is important not only from a theoretical, but also from a practical point of view, since the most serious and systematic abuse of exclusive powers and violations of human rights occur during countering threats to public order and national security. Empirical analysis. Considering the models for the application of exceptional measures in emergency situations, we draw attention to the following important factors within the framework in which they are implemented: whether the exceptional anti-terrorist measures are aimed at protecting the constitutional order, human rights and freedoms or when they are introduced, other goal-setting is possible; whether the state considers anti-terrorist measures to be extraordinary or proceeds from the assumption that their use is possible in the normal course of the exercise of state power; whether the transition of the state from emergency measures to the usual regime of exercising state power has been ensured in a normative way. Results. Systematizing the views of scientists on the problem of state countering terrorism, we have identified the following basic constitutional and legal models: the absolutization of human rights, non-constitutional and based on achieving a balance of public and private interests.
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B. І., Stashkiv, and Tiutiunnyk А. V. "CONCEPT AND ESSENCE OF CONSTITUTIONAL CONTROL IN UKRAINE." Scientific journal Criminal and Executive System: Yesterday. Today. Tomorrow 2020, no. 2 (December 22, 2020): 74–83. http://dx.doi.org/10.32755/sjcriminal.2020.02.074.
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The theoretical prerequisites are analyzed in the article along with practice of the institution functioning of constitutional control. There are studies about the concepts and features of constitutional control and the relationship with the concepts of “constitutional supervision” and “constitutional justice”. The study established that constitutional control, being a specific means of protecting the Constitution, acts as a specialized mechanism, a system for ensuring the constitution as a normative legal act of higher legal force, and a kind of control as a corresponding function. The concept of constitutional control has been defined, in particular, and its definition should be understood as the power granted to the relevant body to control and, if necessary, establish the conformity or inconsistency with the Constitutional acts adopted by various public authorities, and especially the laws adopted by representative institutions. The forms of constitutional control and tendencies of their development are examined, the place of constitutional control in the modern state-legal mechanism is also determined. The content of constitutional review is determined by the nature of the bodies that exercise it. There are two main systems or models of constitutional control: “American” and “European” one. It is determined in the article that the place of constitutional control in the system of state institutions in the legal literature is due to the fact that the bodies of constitutional control are not included in any of the branches of government, they can be included in a special one, the fourth branch – which is control. The authors made a distinction between the concepts of “constitutional control” and “constitutional justice”. It was found out what is connected with the transfer of new, previously unknown powers to specialized bodies of constitutional jurisdiction. In this regard, the constitutional control carried out by the courts of special jurisdiction consists solely in assessing the compliance of an act or activity with the Fundamental Law. Key words: constitutional control, constitutional supervision, constitutional justice, forms of constitutional control, state-legal mechanism.
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Baimuratov, M. O. "CONSTITUTIONAL AND LEGAL SPACE OF LOCAL SELF-GOVERNMENT AS A SPACE OF FORMATION, REALIZATION OF THE CONSTITUTIONAL AND LEGAL STATUS OF A PERSON (PERSONALITY) AND CITIZEN, PROTECTION AND PROTECTION OF HUMAN RIGHTS AND PROTECTION." Соціальний Калейдоскоп 2, no. 1 (July 10, 2022): 8–26. http://dx.doi.org/10.47567/bomivit.2-1.2022.01.
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Constitutional and legal regulation, regulation and legalization of the institution of local democracy in the form of local self-government, that is, self- organization of a set of residents of residents of the respective territories of the state, which was first in the history of national constitutionalism implemented in the 1996 Constitution of Ukraine, contributed to the implementation updating and functional- activity contextualization of the problems of formation, value and role of the legal space of local democracy, more in-depth and fundamental study of its functioning, regulatory regulation, construction of the paradigm of its further development, modification and improvement.
It is reasonable that in the narrow sense, the legal space of local self-government can be defined as a sphere of regulation of the legal norms of models: a) self-organization of members of the territorial community, b) competence of local self-government bodies, c) powers of its other entities and bodies within the territory of the territorial community functioning and specific historical time (territorial-chronological factor.
In turn, the legal space of local self -government in the broad sense can be defined as: a) the sphere of regulatory regulation and regulation of the territorial community, b) sphere of normative regulation and regulation of local self - government bodies, other subjects of the local self-government system, formed directly by the territorial community itself (representative bodies of local self- government, institute of community heads) and on its behalf (executive bodies of local self-government), c) for the purpose, existence, functioning and implementation of a system of existential local interests and needs in the respective territory of the state, within the existence of a specific territorial community, g) at the same time, such a system of existential local interests and the needs of the community and its residents- does not contradict the interests and legislation of the state.
According to the author, this approach to understanding and determining the legal space of local self-government enables the latter as a complex social, political and legal phenomenon-which arises as a result of synergically directed teleologically sound-based activity as a state (state municipal legal policy) and subjects local society (programs of formation and development of territorial communities, including united ones), by forming its regulatory-subject, regulatory-object and regulatory-spatial base (must still be added-regulatory and technological, normative-activity and regulatory- logistics bases), in order to solve the existential issues of existence and functioning of the territorial community. Therefore, that is why the constitutional and legal space of local self-government emerges, is formed, exists and functions as a space of formation, implementation of the constitutional and legal status of a person (personality) and citizen, protection and protection of human rights.
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Pfersmann, Otto. "El recurso directo: entre protección jurídica y constitucionalidad objetiva = Directation: between legal protection and objetive constitutionality." Teoría y Realidad Constitucional, no. 34 (July 1, 2014): 319. http://dx.doi.org/10.5944/trc.34.2014.14096.
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La posibilidad de que los individuos dispongan de un «recurso directo» para cuestionar normas del sistema jurídico ante el juez de la constitucionalidad no constituye un elemento necesario del Estado constitucional de Derecho. La institución de los «derechos fundamentales», no requiere, en cuanto tal, que la protección de los mismos deba corresponder al juez de la constitucionalidad de las leyes. Lo que permite distinguir los diferentes modelos es el grado en que concentran y distribuyen estas tareas (protección de derechos fundamentales y control de constitucionalidad de la ley, básicamente). Esto depende de varios factores: el grado de exhaustividad del control de la constitucionalidad de las normas, el tipo de supervisión (preventivo o correctivo), el número de órganos encargados del control y el número de componentes del mismo. Se plantea así el problema de la limitación que aqueja al Estado de Derecho, pues cuanto más exhaustiva pretende ser la realización del mismo, menos intensa resulta produciendo un paradójico debilitamiento del derecho fundamental y del principio de exhaustividad. Asistimos, pues, a una mutación del principio «monomicrodicástico» y exhaustivo de jurisdicción constitucional.The possibility for individuals to have a «direct action» to challenge the norms of the legal system before the judge of the constitutionality is not a necessary element of the constitutional Rule of law. The institution «fundamental rights» does not require, as such, that the judge of the constitutionality of the parliamentary statutes should grant their protection. What allows distinguishing the different models is the degree of the concentration and distribution of these basic tasks: protection of the fundamental rights, constitutional judicial review. This depends upon various factors: how exhaust the constitutional judicial review should be, what kind of constitutional supervision may be (preventive or corrective), the number of the organs charged with this task, and the number of its components. The question of the limitation of the Rule of Law is risen, because the more exhaustive its implementation is intended, the less intense, generating a paradoxal weakness of the fundamental right and the completeness principie. A phenomenon appears: the mutation of the «monomicrodicastic» principie and the completeness of the constitutional judicial review.
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Đurić, Vladimir. "Non-territorial minority autonomy in Estonia." Strani pravni zivot, no. 4 (2021): 597–610. http://dx.doi.org/10.5937/spz65-35048.
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Non-territorial minority autonomy/self-governance is one of the models for the protection of national minorities. Non-territorial minority autonomy is guaranteed in Estonia by constitutional provisions and it is defined as one of the minority rights. In this sense, the paper analyzes the legal nature and the scope of such an autonomy in the legal order of Estonia.
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Batanov, O. V. "Protection of human rights in the field of security and defense in the modern world (Institute of Military Ombudsman)." ACTUAL PROBLEMS OF THE LEGAL DEVELOPMENT IN THE CONDITIONS OF WAR AND THE POST-WAR RECONSTRUCTION OF THE STATE, no. 13 (October 2022): 49–53. http://dx.doi.org/10.33663/2524-017x-2022-13-7.
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The article considers the problems of organization and functioning of the institute of military ombudsman in foreign countries. Emphasis is placed on the problematic aspects of the formation of its function of protecting the constitutional rights of servicemen in connection with changes in the legal framework of democratic civilian control in Ukraine. It is emphasized that in determining the place of the military ombudsman in the system of state authorities it is necessary to take into account the institutional aspects of democratic control in the context of models of military-civil relations. The Ombudsman Institute for the Protection of the Rights of Military Personnel is in the first place necessary as an element of the system of democratic civil control in which the Ombudsman can fully exercise his legal nature as a parliamentary control body. It turns out that in the framework of the model of civilian control, «army under the control of parliament», the institution of the Ukrainian Parliament Commissioner for Defense (for the protection of the rights of military personnel) will complement and extend the function of parliamentary control over the objects of democratic civilian control. Such a system of protection of the rights of military personnel requires Ukraine for the democratic development of military-civilian relations. It is argued that broad specialization and the presence of a military ombudsman are due to strong traditions of democracy. The necessity of introduction of the institute of military ombudsman in Ukraine is substantiated. Relevant arguments are presented, which are of particular importance in the context of a full-scale armed invasion of the Russian Federation into the territory of Ukraine and the ongoing Russian-Ukrainian war. Key words: Ukrainian Parliament Commissioner for Human Rights; Institution of the Ombudsman; Ombudsman; Military Ombudsman; Constitutional Rights of Military Personnel; Protection of the Rights of Military Personnel.
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MOVCHAN, V. V. "THE HUMAN RIGHTS FUNCTION OF THE JUDICIARY IN ADMINISTRATIVE PROCEEDINGS: INSTITUTIONAL AND FUNCTIONAL ASPECTS." Herald of Civil Procedure 11, no. 2 (June 30, 2021): 205–25. http://dx.doi.org/10.24031/2226-0781-2021-11-2-205-225.
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The article reveals the theoretical aspects of administrative legal proceedings, as one of the forms of the exercise of judicial power, the features and significance of the administrative judicial process in the mechanism of protecting the rights and freedoms of man and citizen, the analysis is given of the constitutional foundations of the human rights function of the judiciary, its essence and content, procedural actions. The author reveals the historical aspects of the formation and development of judicial protection in Russia, oreign experience and models of administrative justice are considered, the importance of administrative proceedings in the implementation of the human rights function of the judiciary in the Russian Federation when considering disputes with the participation of public authorities and citizens and the exercise of the rights, freedoms and legitimate interests of citizens is revealed. The author substantiates the advantages of the judicial administrative process as a procedural form of implementation of the human rights function of the judiciary and the implementation of the constitutional right to judicial protection, analyzes the reform of the judicial system of the judicial system, the creation of courts of appeal and cassation in the system of arbitration and general jurisdiction, substantiates the conclusion that the reform of the system of courts of general jurisdiction created organizational and judicial framework for the specialization of judges and court proceedings, the system of institutional intra-system control of the legality and validity of judicial acts, institutionally and functionally ensured the implementation of the human rights function of the judiciary and the availability of judicial protection in the system of courts of general jurisdiction.
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Djordjević, A., A. Seregin, M. Cherkasova, and I. Milkina. "Peculiarities of construction of local self-government models in the modern slavic states." Upravlenie 7, no. 3 (October 21, 2019): 5–11. http://dx.doi.org/10.26425/2309-3633-2019-3-5-11.
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The peculiarities of construction of local self-government models in the modern Slavic States, which in the 90-s of XX century abandoned the socialist path of development, – have been examined. The aim of the study is to identify specific features and common approaches to the construction of local self-government system, based on the analysis of the practice of local self-government institutions of the Slavic States and the provisions of the Constitutions of the Republic of Serbia, the Republic of Poland, the Czech Republic, the Slovak Republic, Ukraine, the Republic of Croatia, the Russian Federation, etc.The organizational forms of local self-government and the particularities of the implementation of local issues, taking into account national traditions, – have been analyzed. In this connection, the majority of modern Slavic States recognizes and guarantees local self-government as the most important constitutional value and institution of the people’s right. It has been determined, that the list of issues of local importance mainly affects the areas of urban planning, municipal activities, culture, sports, social protection of the population and children, preschool education, healthcare, approval of municipal programs of economic development, local budgets, taxes and fees, the appointment of local referendums, etc. However, there there is a number of countries, in which local government issues are not specified in the Constitution. Among the criteria for the difference between the models of local self-government are the following: the list of issues of local importance and competence of local self-government bodies; relations with public authorities and the degree of freedom of local self-government from the state; territorial organization of local self-government, etc.It has been concluded, that the most common form of interaction between public authorities and local self-government for the Slavic states at the beginning of the XXI century, was the Zemstvo-state model, that takes into account the mutual interests of a sovereign power and the population, living within certain territorial communities.
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Đurić, Vladimir, and Nevenko Vranješ. "Constitutional and Administrative Law Models for the Public Holidays’ Regulation in Multicultural States // Ustavnopravni i upravnopravni modeli uređivanja javnih praznika u multikulturnim državama." Годишњак факултета правних наука - АПЕИРОН 9, no. 9 (October 14, 2019): 50. http://dx.doi.org/10.7251/gfp1909050dj.
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In this paper, the authors, inspired by the decisions of the Constitutional Court of Bosnia and Herzegovina, analyse public holidays in states where multiculturalism has an impact on the complex state structure and on the form of political order. A particular focus is on holidays that are in function of nation-building through the commemoration of the events that are important for the founding of the state and / or the respective political-territorial unit and / or are of the historic importance to the majority, specifically the main ethnic group in the state and / or in the relevant political-territorial unit and on the issues of non-discrimination and the protection of group rights and multiculturalism. The conclusion is that such holidays, even when they have a completely opposite historical connotation, are not considered to be discriminatory.
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Tokarchuk, Liudmyla, Olga Pereverzyeva, Nataliia Volkova, Inna Yanitska, and Mykola Bodnaruk. "Constitutional principles of protection of family rights and interests of the child in civil proceedings." Revista Amazonia Investiga 11, no. 49 (February 11, 2022): 61–68. http://dx.doi.org/10.34069/ai/2022.49.01.7.
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In today's society, paradigms and models of child-rearing, values, and opportunities of parents, competent authorities, and the court to ensure the rights of the child are changing. Most states have identified the protection of family rights and interests of the child, the avoidance of violence against the child, the prohibition of bullying, etc. among the priority areas of state policy. It is important to analyze the constitutional principles of protection of family rights and the concept “the best interests of the child” in civil proceedings, because it is the court that the legislator has the broadest powers in this area, compared to other jurisdictions. The work aims to study the guiding constitutional principles based on which the court can protect the family rights and interests of the child. The research methodology consists of general theoretical and special scientific methods, namely: hermeneutic, system-structural, structural-functional, historical-legal, comparative-legal, and formal-logical. As a result of the study, the mechanisms of the best possible protection of children's rights by the courts were analyzed. An analysis of current case law, including the case-law of the European Court of Human Rights, concluded that today courts and other competent bodies pay considerable attention to analyzing "how a child will be better" and make informed decisions and, if necessary, correct previous mistakes.
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Lillback, Peter A. "From America to the World: Protestant Christianity's Creation of Religious Liberty." Societas Dei: Jurnal Agama dan Masyarakat 2, no. 1 (October 24, 2017): 8. http://dx.doi.org/10.33550/sd.v2i1.56.
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ABSTRACT: Half the population of the world to this day still has not experienced religious freedom. Religious persecution often still occurs at many places in the world. Research studies show that there is a direct correlation between religious freedom and economic prosperity. "Prosperity is the result of freedom, therefore the best way to improve the economic prosperity of a nation is to ensure freedom for its citizens." This article will first elaborate models of the relationship between church and state, and then explain the basic principle of the Bible regarding religious freedom. It further explains why incarceration of religious freedom or of conscience by the state is wrong, despite the reasons of protecting its citizens from false religion or from a cult. This paper will also explore religious persecution from the time of early church until the birth of Protestantism, and then speaks about the struggle and the protection of religious freedom. Furthermore this article goes into what underlies the constitutional protection of religious freedom in America, and then browse through the struggle and the protection of religious freedom as a struggle of the world. KEY WORDS: religious freedom, religious conflict, heresy, early church, Protestantism, religious freedom in the United States of America.
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Zhytnyi, Oleksandr, Mykhailo Spiridonov, and Andrii Vasyliev. "Criminalisation of violation of the right to defence as a remedy for its enforcement (national legislative experience)." Przegląd Europejski, no. 1-2021 (April 14, 2021): 191–99. http://dx.doi.org/10.31338/1641-2478pe.1.21.11.
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The opportunity of admission of the right to defence as an independent object of criminal law protection is analysed in this article. Such opportunity has been considered with the reference to the procedural, constitutional, international law and European aspects of the value of this right. The system-structural, dialectical and comparative methods, as well as the axiological (value) approach were chosen as a methodology for the implementation of the research task. The potential models of criminalisation of violation of the right to defence have been identified as a result.
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TROFIMOV, Ivan D. "POLITICAL ECONOMY OF TRADE PROTECTION AND LIBERALISATION: IN SEARCH OF AGENCY-BASED AND HOLISTIC FRAMEWORK OF POLICY CHANGE." Theoretical and Practical Research in the Economic Fields 8, no. 2 (December 31, 2017): 121. http://dx.doi.org/10.14505/tpref.v8.2(16).04.
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The paper provides comprehensive review of alternative explanations of the trade policy formation, associated rise of trade protectionism, and difficulties of trade liberalization. Normative economic, systemic, public interest, political, institutional and constitutional economic theories of trade policy, together with political science models of trade cooperation are considered. The paper shows that current research in the area tends to accentuate the factors that entrench trade protectionism, while paying insufficient attention to the role of agency, policy dynamics and informal institutions that may bring in trade liberalization. Requirements for holistic and dynamic analysis of trade policy are outlined.
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Shchebetun, I. S., and A. I. Martseniuk. "Problematic issues of formation of the Constitutional Court: compara- tive legal aspect." Uzhhorod National University Herald. Series: Law, no. 64 (August 14, 2021): 77–81. http://dx.doi.org/10.24144/2307-3322.2021.64.14.
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The article examines the problematic issues of forming the Constitutional Court in Ukraine, in particular, pres-ents a comparative legal analysis of the procedure for forming a body of constitutional jurisdiction in foreign coun-tries and in Ukraine, which identified prospects and suggested ways to improve the procedure for forming a body and electing judges.It is noted that the world constitutional practice shows the lack of a single established procedure for the for-mation of bodies of constitutional jurisdiction, the appointment of judges of these bodies and the requirements for candidates. Thus, there are several models of formation of bodies of constitutional courts, mainly depending on the entities involved in their creation. It is argued that the formation of the Constitutional Court in Ukraine should be attributed to a mixed model, as in the process of its formation take three entities, two of which repre-sent the legislative (parliament) and judicial branches (Congress of Judges), as well as the President of Ukraine. The article emphasizes that since 2016 in Ukraine the approaches to the formation of the CCU have been slightly changed, which were aimed at its qualitative renewal, which would guarantee high moral qualities and a recog-nized level of competence of candidates. This is a constitutional norm, according to which there is a requirement to select candidates for the position of a judge of the CCU on a competitive basis in the manner prescribed by law (Part 3 of Article 148). This would guarantee high moral qualities and a recognized level of competence of the candidates. However, in fact, the competition regulations do not apply due to the lack of a single competition commission that selects judges. The appointing entities are often guided by political motives and the desire to further influence the activities of the CCU. It is indicated that the procedure for forming the Constitutional Court of Ukraine should be such as to ensure the establishment of a body independent of any influence that will promote the observance and protection of human and civil rights and freedoms, will be able to ensure the rule of law of the Basic Law.It is proposed to improve the procedure for forming the Constitutional Court of Ukraine, in particular by clearly defining the criteria for the level of competence of candidates for judges of the CCU, the establishment of a single body for competitive selection of judges, with the participation of international component and civil society. The main purpose of such improvement is to qualitatively renew the composition of the CCU and create a body inde-pendent of political and oligarchic interests, which will be able to ensure the supremacy of the Constitution and contribute to the further development of Ukraine as a democratic and legal state.
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Fathoni, Muhammad Johar. "TRANSFER OF UNDERTAKINGS PROTECTION OF EMPLOYMENT (TUPE) DALAM PERJANJIAN OUTSOURCING." Media Iuris 1, no. 2 (July 4, 2018): 335. http://dx.doi.org/10.20473/mi.v1i2.8834.
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Transfer of Undertaking Protection of Employment Based on Constitutional Court Decision Number 27/PUU-IX/2011, there are two models that must be fulfilled in outsourcing agreement, that is First, by requiring for agreement between worker and company conducting work outsourcing does not take the form of a certain time labor agreement (PKWT), but is in the form of an indefinite time agreement (PKWTT). The consequences of termination of contract for the Employment Service Provider who laid off his employees for the law, the employer shall be entitled to grant the right to his employees in accordance with the Manpower Act, Kepmenaker No. Kep. 150/Men/2000 on the Settlement of Termination of Employment and Stipulation of Severance, Money of Work and Indemnification. Then the government also stipulates the Decree of the Minister of Manpower and Transmigration of the Republic of Indonesia no. Kep. 76/Men/2001 on Amendment to several articles of Minister of Manpower Decree no. Kep. 150 / Men / 2000 on the Settlement of Termination of Employment and Stipulation of Severance, Money of Work and Indemnification at the Company.
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Slavko, A. S. "The right to sport in constitutional legislation: a comparative aspect." Analytical and Comparative Jurisprudence, no. 4 (November 27, 2022): 69–74. http://dx.doi.org/10.24144/2788-6018.2022.04.12.
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Sport has a close connection with human rights. This connection is manifested in several main aspects: the possibility of promoting human rights through sports events, holding sports events and competitions on the basis of equality and non-discrimination, and directly forming the right to sports. For example, respect for human rights is enshrined in the Olympic Charter and the World Anti-Doping Code.
The European Court of Human Rights’ practice in protecting the rights of athletes and persons related to sports is also quite rich. The latter include, for example, sports associations or fans or their groups. The court considered cases associated with the deprivation of freedom of fans to prevent mass riots after football matches, interference in the privacy of athletes due to doping control, violation of the right to a fair trial due to consideration of sports disputes in specialized arbitrations, etc.
An analysis of the constitutional legislation of foreign countries shows a trend according to which state policy on sports mentions appears in newer constitutions. On the other hand, earlier constitutions did not pay attention to this sphere of public life. Those states that granted the sports sphere the status of constitutional regulation use one of several models: 1) the state undertakes to "promote" sports. Such assistance can take various forms - from simple non-interference to targeted support of certain types of professional sports. In some cases, it is even about compulsory involvement of schoolchildren in mass sports (Switzerland); 2) the state defines and guarantees the right to sport. The right to sport is understood as a separate right, for the implementation of which the state creates the appropriate infrastructure. It also involves supporting mass sports because the right to sports is guaranteed to "everyone" and "all people"; 3) sport is understood as part of another right, for example, the right to health and medical care. Accordingly, measures to support sports are part of comprehensive programs to support the population’s health; emphasis is also placed on mass sports. Judging from the text of the Constitution, Ukraine chose the third option. However, the analysis of relevant legislation allows us to talk about forming the right to sport in the domestic legal system.
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Trifonov, S. G., and K. V. Trifonova. "Constitutional and Legal Institute of the Ombudsman and Specialized Ombudsman for Migration in Foreign Countries: Formation and Development." Rossijskoe pravosudie, no. 11 (2021): 54–61. http://dx.doi.org/10.37399/issn2072-909x.2021.11.54-61.
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Currently, the Ombudsman is a traditional component of democratic legal systems. The creation of such a body, as noted in the Council of Europe Resolution «On the role of commissioners/ombudsmen in the protection of citizens’ rights», which would try to ensure justice, respect for the foundations of the rule of law and at the same time be able to establish a dialogue with citizens, is necessary in many States. The purpose and objectives of this article are to consider the issues of the emergence and development of the constitutional-legal institution as an Ombudsman in General, and the evolution of this institution, in which there were various models and types of ombudsmen. It is also necessary to describe the existing models of the Ombudsman applied in different States. The article examines the functional specialization of ombudsmen, which occurs through the introduction of ombudsmen in certain areas of public relations or to protect the rights and interests of the most legally vulnerable categories and groups of the population, and specifically the emergence of the institution of migration ombudsmen. The methodology of the article is based on a set of philosophical and worldview, General scientific principles and approaches and special scientific methods of cognition of constitutional and legal phenomena. When writing, a number of General scientific and special scientific methods were used, including: system and structural-functional methods, sociological method, formal-logical method, comparative-legal method. As a result of the research, we can conclude that the essential characteristics of the Ombudsman institution have changed from the institution of supervision of the administration and the court to the most important human rights mechanism that it represents at the present stage. Within the framework of the functioning of the institution of the Ombudsman, different models have been identified in different States and specialized ombudsmen have appeared, including those dealing with the protection of the legal rights and interests of migrant workers.
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Ahmad, Kamri, Andi Arjuni K. Petta Lolo, and Andi Maulana K. "The Petrial Institutions in the Perspective of Judge’s Independence, Corruption Eradication Commission and Human Rights: A Juridical-Empirical Study according to Indonesian Legal System." Scholars Journal of Arts, Humanities and Social Sciences 9, no. 12 (December 30, 2021): 655–64. http://dx.doi.org/10.36347/sjahss.2021.v09i12.009.
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This research based on the reform era where the problem of the criminal justice system has an extraordinary development, especially with pretrial institutions. The most urgent thing in the development of pretrial is the independence of judges and human rights. On the other hand, it is also about emphasizing the eradication of corruption. Before reforms in 1998, pretrial institutions were not so hard in their ripples. However, after the formation of the Corruption Eradication Commission (CEC) in 2002, then this pretrial institution became a problem intended to fulfill the protection of human rights to encouraging the eradication of corruption. The independence of the judge in the process of pretrial with the judge single models, does not create the possibility of un-independence of judiciary? In terms of results in the form of a decision, the pretrial judge's decision has similarities with the verdict of Constitutional Court (MK), which is final and finding. The difference between Constitutional Court’s decision and the pretrial decision where the decision of the Constitutional Court is based on the results of plenary session with 9 assemblies, while the pretrial decision is led by one a single judge. Another difference lies in its executorial strength. This is what the researcher tried to study how the essence of pretrial, then as much as possible new concept for the Criminal Code draft will be found later.
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García, Eloy. "El rey neutral:la plausibilidad de una lectura democrática del artículo 56.1 de la Constitución = The neutral King, or the reasonably of a republican reading of the article 56,1 of the Constitution." Teoría y Realidad Constitucional, no. 34 (July 1, 2014): 295. http://dx.doi.org/10.5944/trc.34.2014.14095.
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Se aspira a clarificar la posición del rey en el sistema constitucional español, descifrando el significado de la fórmula «árbitro y moderador» recogida en el art. 56 de la Constitución al amparo de la idea de neutralidad. Para ello, se procede, primero, a ojear la posición del monarca surgido de la transición política a través de sus caracteres constitucionales, y segundo a efectuar un rastreo en los supuestos de la teoría del Estado Constitucional, a fin de establecer las categorías que pudieran ser coherentes con los valores democráticos. En base al fundamento que depara esta categorización se llega a la conclusión de que en el actual momento político español, no cabe otro modelo creíble que el que se corresponde con «la republicana coronada», advirtiendo, al tiempo, que la verdadera clave del problema reside no tanto en la existencia de modelos alternativos cómo y en términos de Locke, en su «reasonablessnes», esto es, en la plausibilidad o credibilidad social que sea capaz de concitar un rey «árbitro y moderador». Para intentar desentrañar qué significa la credibilidad de una monarquía republicana, se acuñan tres parámetros vinculados a la necesidad de reconstruir en clave política el debate social contemporáneo desde la acción neutral del monarca, y que se identifican respectivamente con las funciones de ejemplarizar, esclarecer y promover.We aspire to clarify the position of the king in the constitutional Spanish system, deciphering the meaning of the «umpire and moderator» formula withdrawal in the art. 56 of the Constitution under the protection of the idea of neutrality. For it, we proceed to review, first, the position of the monarch arisen from the political transition across his constitutional characters, and second to effect a tracking in the suppositions of the theory of the Constitutional State, in order to establish the categories that could be coherent with the democratic values. On the basis of the foundation that provides this categorization it comes near the conclusion that in the current political Spanish moment, does not fit another credible model that the one that corresponds with « the crowned republic «, warning, at the time, that the real key of the problem resides not so much in the existence of alternative models and speaking in Locke’s terms, in his reasonablessnes, this is, in the reasonably or social credibility that is capable of inciting a king « umpire and moderator «. To try to uncover what means the credibility of a republican monarchy, there are three parameters linked to the need of reconstructing in a political key the social contemporary debate from the neutral action of the monarch, and that are identify respectively with the functions of exemplify, dawn and promote.
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Baimuratov, M. O. "CONSTITUTIONAL AND LEGAL AREA OF LOCAL GOVERNMENT AS A SPACE FOR THE FORMATION AND IMPLEMENTATION OF CONSTITUTIONAL AND LEGAL STATUS OF HUMAN (PERSONALITY) AND CITIZEN, PROTECTION AND ADVOCACY OF HUMAN RIGHTS." Соціальний Калейдоскоп 2, no. 3-4 (September 30, 2022): 8–26. http://dx.doi.org/10.47567/2709-0906.3-4.2022.8-26.
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Constitutional and legal regulation, regulation and legalization of the institution of local democracy in the form of local self-government, that is, self- organization of a set of residents of residents of the respective territories of the state, which was first in the history of national constitutionalism implemented in the 1996 Constitution of Ukraine, contributed to the implementation updating and functional- activity contextualization of the problems of formation, value and role of the legal space of local democracy, more in-depth and fundamental study of its functioning, regulatory regulation, construction of the paradigm of its further development, modification and improvement.
It is reasonable that in the narrow sense, the legal space of local self-government can be defined as a sphere of regulation of the legal norms of models: a) self-organization of members of the territorial community, b) competence of local self-government bodies,
powers of its other entities and bodies within the territory of the territorial community functioning and specific historical time (territorial-chronological
In turn, the legal space of local self -government in the broad sense can be defined as: a) the sphere of regulatory regulation and regulation of the territorial community, b) sphere of normative regulation and regulation of local self - government bodies, other subjects of the local self-government system, formed directly by the territorial community itself (representative bodies of local self- government, institute of community heads) and on its behalf (executive bodies of local self-government), c) for the purpose, existence, functioning and implementation of a system of existential local interests and needs in the respective territory of the state, within the existence of a specific territorial community, g) at the same time, such a system of existential local interests and the needs of the community and its residents- does not contradict the interests and legislation of the state.
According to the author, this approach to understanding and determining the legal space of local self-government enables the latter as a complex social, political and legal phenomenon-which arises as a result of synergically directed teleologically sound-based activity as a state (state municipal legal policy) and subjects local society (programs of formation and development of territorial communities, including united ones), by forming its regulatory-subject, regulatory-object and regulatory-spatial base (must still be added-regulatory and technological, normative-activity and regulatory- logistics bases), in order to solve the existential issues of existence and functioning of the territorial community. Therefore, that is why the constitutional and legal space of local self-government emerges, is formed, exists and functions as a space of formation, implementation of the constitutional and legal status of a person (personality) and citizen, protection and protection of human rights.
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Augustyn, Prisca. "Solar energy discourse in the Sunshine State." Sign Systems Studies 49, no. 1-2 (June 4, 2021): 63–85. http://dx.doi.org/10.12697/sss.2021.49.1-2.03.
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This case study of a 2016 Florida constitutional amendment analyses the semiotic devices and mechanisms of shaping public opinion on solar energy and beliefs about energy distribution. After a nationwide rise in rooftop solar installations between 2014 and 2015, utilities in several US states were faced with challenges to their business models. Anticipating similar problems in Florida, utilities and energy corporations promoted constitutional amendments. This semiotic analysis follows the voter from the billboards and flyers to the text on the ballot. Starting from Peirce’s phenomenological categories, this critical analysis of the campaign reveals how the goals of the amendment were shrouded in positive environmental and consumer protection narratives. Lakoff ’s cognitive linguistics and Stibbe’s ecolinguistics support a deeper analysis of the ballot text. This study shows that by leaving key concepts (especially net metering) out of the discourse, the ballot text successfully framed an anti-solar amendment as a pro-consumer measure, while hiding the direct legal implications concerning alternative energy distribution. In particular, this study explains the opposition to the sharing of surplus in the context of neoclassical economics as a key factor in shaping beliefs about alternative energy distribution.
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Pearson, Mark. "The media regulation debate in a democracy lacking a free expression guarantee." Pacific Journalism Review 18, no. 2 (October 31, 2012): 89. http://dx.doi.org/10.24135/pjr.v18i2.266.
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Two major inquiries into the Australian news media in 2011 and 2012 prompted a necessary debate over the extent to which rapidly converging and globalised news businesses and platforms require statutory regulation at a national level. Three regulatory models emerged—a News Media Council backed by recourse to the contempt powers of courts; a super self-regulatory body with legislative incentives to join; and the status quo with a strengthened Australian Press Council policing both print and online media. This article reviews the proposals and explores further the suggestion that consumer laws could be better utilised in any reform. It concludes with an assessment of the impact of the inquiries and their recommendations upon free expression in a Western democracy lacking constitutional protection of the media.
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Agudo Zamora, Miguel. "El principio de no regresividad de los derechos sociales en el ordenamiento constitucional español // The principle of non-regressivity of Social rights in the Spanish Constitutional Law." Revista de Derecho Político 1, no. 100 (December 20, 2017): 849. http://dx.doi.org/10.5944/rdp.100.2017.20720.
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Resumen:Este trabajo analiza la situación en el modelo constitucional español del principio de no regresividad de los derechos sociales. Se parte del análisis sucinto del modelo social de nuestra Constitución lo que implica el reconocimiento de derechos económicos y sociales. Este reconocimiento es la plasmación constitucional de los principios de solidaridad y de cohesión social. El principio de cohesión social ha sido definido por el Consejo de Europa e incluido explícitamente en los tratados constitutivos de la Unión Europea. La necesidad de lograr la cohesión social fundamenta la inclusión en las Constituciones y en los tratados internacionales del principio de no regresividad de los derechos sociales. En la Constitución española de 1978 este principio no se incluye expresamente. La no inclusión en la Constitución de este principio supone un peligro para la cohesión social en tiempos de crisis económica. Por su parte, el Tribunal Constitucional ha sentado una doctrina ambigua sobre este asunto, que ha sido analizada en este trabajo, así como las más significativas aportaciones doctrinales sobre la materia. Para saber cuáles son los limites de la regresividad de los derechos sociales que dotan de contenido este principio se ha realizado una comparativa internacional y de los principios constitucionales. Del estudio del ordenamiento internacional y de los valores y principios constitucionales se ha obtenido una serie de límites a la regresividad del contenido, eficacia y protección de los derechos sociales. Concluye este trabajo sugiriendo una propuesta de reforma constitucional que incluya el principio de no regresividad de los derechos sociales en el texto constitucional estableciendo una serie de requisitos de aquellas medidas que puedan suponer una regresión de contenido de los mismos tales como que deberán justificarse plenamente en referencia a la totalidad de los derechos, valores y principios recogidos en la Constitución y en los tratados internacionales suscritos por el Estado español y en el contexto del aprovechamiento pleno del máximo de los recursos de que se disponga; se aplicarán tras el examen más exhaustivo de todas las alternativas posibles; tendrán en todo caso carácter temporal hasta que las circunstancias económicas permitan restablecer el ámbito material de contenido, eficacia, protección y garantía prexistente de los derechos sociales afectados; en todo caso respetarán el contenido mínimo esencial de los derechos sociales como manifestación de la dignidad humana; serán razonables y estarán suficientemente motivadas; no vulnerarán, entre otros, los principios de seguridad jurídica, confianza legítima, no discriminación e irretroactividad de disposiciones restrictivas de derechos individuales, serán proporcionadas y respetarán los principios de solidaridad, cohesión y sostenibilidad social. Summary1. State, solidarity and social cohesion. 2. Doctrinal and jurisprudential notes on the principle of non-regressivity of social rights. 3. Limits to the regressivity of social rights. a) Limits derived from international law. b) Limits derived from dignity as essential content of social rights. c) Limits derived from the prohibition of arbitrariness: the need for sufficient motivation. 4. Conclusion: constitutionalamendment and non-regressivity of social rights.Abstract:This paper analyzes the constitutional recognition of the principle of non-regressivity of social rights in Spain. It starts from the succinct analysis of the social model of our Constitution which implies the recognition of economic and social rights. This recognition is the constitutionalization of the principles of solidarity and social cohesion. The principle of social cohesion has been defined by the Council of Europe and explicitly included in the constitutive treaties of the European Union. The need to achieve social cohesion underpins the inclusion in the Constitutions and international treaties of the principle of non-regression of social rights. In the Spanish Constitution of 1978 this principle is not expressly included. The non-inclusion in the Constitution of this principle poses a danger to social cohesion in times of economic crisis. For its part, the Constitutional Court has established an ambiguous doctrine on this subject, which has been analyzed in this work, as well as the most significant doctrinal contributions on the subject. In order to know which are the limits of the regressivity of the social rights that give content of this principle an international comparison has been made as well as a study of constitutional principles. Limits to the regressivity of content, effectiveness and protection of social rights have been obtained from the study of international order and constitutional values and principles. This paper concludes by suggesting a proposal for constitutional amendment that includes the principle of non-regressivity of social rights in the Spanish Constitution establishing some requirements of those measures that imply a regression of their content such as: they shall be fully justified in relationship with all the rights, values and principles contained in the Constitution and in the international treaties signed by the Spanish State and in the context of full exploitation of the maximum resources available; Shall be applied after a more comprehensive examination of all possible alternatives; Shall in any case be of a temporary nature until the economic circumstances permit the restoration of the content, effectiveness, protection and pre-existing guarantee of the social rights affected; In any case they will respect the essential minimum content of social rights as a manifestation of human dignity; Shall be reasonable and sufficiently motivated; Shall not infringe, inter alia, the principles of legal certainty, legitimate expectations, non-discrimination and non-retroactivity of provisions restricting individual rights; Shall be proportionate and shall respect the principles of solidarity, cohesion and social sustainability.
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Dolzhikov, A. V. "THE CONSTITUTIONAL PRINCIPLE OF PROPORTIONALITY: A LEGAL-DOGMATIC METHOD." Вестник Пермского университета. Юридические науки, no. 3(53) (2021): 540–61. http://dx.doi.org/10.17072/1995-4190-2021-53-540-561.
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Introduction: the paper develops a thesis about the interdependence between the interdisciplinary approach and the method of legal-dogmatic research on proportionality. The dogmatic method makes it possible to define the essence of this principle provided that research relies on judicial practice. Methods: the paper applies the technique of conceptual jurisprudence as one of the most common forms of dogmatic methodology. The purpose of the research was to provide systematic and coherent analysis of the principle of proportionality with the application of the legal-dogmatic method. With this purpose in view, the paper is divided into three sections. The first section starts with the comparison of two concepts most commonly used in Russian legal science –sorazmernost’ (which translates into English as proportionality, but linguistically closer to the word ‘commensurability’) and proportsional’nost’ (proportionality). The second section discusses the concepts of legislative reconciliation and judicial balancing of conflicting interests. Finally, the third section analyzes two opposite but interacting forms of the principle of commensurability/proportionality – the prohibition of excessiveness and the prohibition of insufficiency. Results: the paper provides arguments for the use of the term commensurability (sorazmernost’) in Russian national jurisprudence as a generic concept. The term proportionality (proportsional’nost’) is of a foreign origin. It could be used as a synonym of the term commensurability as applied to the English-language or international model of this principle. The concept of reconciliation can be considered to cover the sphere of lawmaking, while the term balancing can be applied in relation to judicial weighing of private and public interests. These two conceptual models predetermine the difference in legitimacy of the parliamentary and judicial application of commensurability. The paper also argues that two functions of commensurability are complementary. One of them is reflected in the classic liberal prohibition of excessiveness, which aims to prevent government interference in the individual freedoms. According to the other function, which emerged later, commensurability prohibits the passivity of public authorities in the protection of constitutional rights (prohibition of insufficiency). The difference between the two functions of commensurability is expressed in the distinction between the corresponding negative and positive obligations of the government. We come to a conclusion that legal dogmatics should not become an end in itself, turning into formalism and scholastic disputes about concepts. Of more significance are the social consequences to which the application of certain concepts in constitutional adjudication leads.
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Bator, Karol. "Particular Complaints Concerning Cessation of Industrial Property Rights." Konteksty Społeczne 8, no. 1 (November 20, 2020): 139–51. http://dx.doi.org/10.17951/ks.2020.8.1.139-151.
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In the present article the author analyses new institutions of civil law, ie. particular complaints concerning cessation of protection rights for a trade mark or registration rights for an industrial model. These complaints constitute a hybrid of mutual complaints and of cases concerning invalidation of protection rights for a trade mark or registration rights for an industrial model or declaration of expiry of protection rights for a trade mark. In the key part of the article the author presents lack of precision of new regulations concerning suspension of civil proceedings due to similar proceedings pending before the Patent Office of the Republic of Poland. In this respect, the author presents the new regulations interpretation risk, which may lead to unnecessary lengthening of court proceedings in consequence infringing the constitutional principle of honest proceedings and the right to have your case recognized without unjustifiable delay. Besides, the author postulates such de lego ferenda change of regulations that the obligation to suspend civil proceedings will take place only, when the scopes of requests of the particular complaint and the request to the Patent Office will influence each other. At the end, the author presents issues of premises of registration capacity both trade marks and industrial models and premises for declaration of expiry of protection rights for a trade mark. In this respect he gives particular attention to the necessity for application by courts not only the regulations of the presently in force act Industrial property law, but also already repealed provisions of the said act as well as repealed other laws. The author explains that statutory conditions of registration capacity of industrial property rights should be applied according to laws in force at the date of application for protection of the given exclusive right.
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Schimmöller, Laura. "Paving the Way for Rights of Nature in Germany: Lessons Learnt from Legal Reform in New Zealand and Ecuador." Transnational Environmental Law 9, no. 3 (June 9, 2020): 569–92. http://dx.doi.org/10.1017/s2047102520000126.
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AbstractThis article examines the concept of granting legal rights to nature as a strategy for more effective environmental protection in the era of the Anthropocene. Following decades of debate over the possibility and consequences of natural objects becoming legal rights holders, a number of countries have recently implemented rights of nature laws in their national legal systems. Comparing two of these examples – a constitutional amendment in Ecuador and recently transposed legislation in New Zealand – will help in understanding the potential for and challenges in the implementation of this concept. On the basis of the findings of this comparison the article further analyzes the possibility of legal reform in a European country, using Germany by way of example. This analysis demonstrates that the realization of rights of nature in Europe is faced with many obstacles as it contests institutional and legal frameworks that are deeply rooted in Western individual rights doctrines and neoliberal economic models. Nevertheless, the holistic approach of expanding the number of rights-bearing subjects beyond an anthropocentric framework can allow for more serious consideration of environmental interests, something that aligns with the German narrative of recognizing nature's intrinsic value in law and the need for effective environmental protection measures.
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Vilchyk, Tetyana, Oksana Shcherbanyuk, and Kornelia Wolk. "The concept and content of the constitutional principle of justice." Constitutional and legal academic studies, no. 1 (November 10, 2022): 59–68. http://dx.doi.org/10.24144/2663-5399.2022.1.07.
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This article aims to reveal the main models of implementation of the bar in the European Union and Central Asia. As some of European Union’s neighboring countries are about to embark on EU accession negotiations, they are looking to reform their justice systems to align them with EU standards.
The article provides a comparative legal characteristic of the organization models of the advocate self-government bodies in the European Union and Central Asia countries from the point of view of compliance with international standards of Bar's independence. The authors have identified typical violations of the independence of lawyers' self-government bodies by the executive bodies of state power in Central Asian countries, shown the degree of their influence on protecting human rights and freedoms, and formulated recommendations aimed at overcoming existing violations’.
Advocate self-government should be considered as a manifestation of the principle of independence of the Bar. Since the definition of "independence" is used in a narrow legal sense, it should be understood exclusively as a known measure of legal freedom, free discretion in actions within the boundaries outlined by law. With regard to the Bar, the term "independence" should be interpreted in the context of Recommendations Rec (2000) 21 to the Committee of Ministers to member states on the freedom of exercise of the profession of a lawyer as "freedom of the profession from any undue restrictions, influences, pressure, threats or interference, direct or indirect, from any side or for any reason.
By "independence of the Bar" we mean such a legal status of the bodies of the advocates' community, established by law, which allows them to autonomously and independently from improper interference solve issues of their internal organization, as well as other tasks defined in the law, that is, to exercise self-government.
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Byelov, D., and N. Rosul. "Social entrepreneurship in the mechanism of realization of constitutional rights and freedoms of man and citizen." Analytical and Comparative Jurisprudence, no. 5 (December 30, 2022): 154–57. http://dx.doi.org/10.24144/2788-6018.2022.05.27.
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The article is devoted to the consideration of the concept and legal nature of social business through the prism of the mechanism of realizationof the constitutional rights and freedoms of a person and a citizen and the peculiarities of the implementation of social business models in Ukraine. The article analyzes successful social entrepreneurship projects that built their model taking into account two factors: the business component and the social component.
Problematic issues caused by the introduction of martial law in Ukraine and aggression by the Russian Federation in the sphere of the realization of constitutional rights, in particular the right to social protection, to work in conditions of war, are outlined. Taking into account the large number of internally displaced persons, destroyed enterprises, persons who need additional financial support and deficit in the budget, the importance of social entrepreneurship is substantiated.
It is noted that local communities around the world play an increasingly important role in solving social problems. Ukraine is also following the path of decentralization, and it is really working. Due to the desire of a certain target group to take responsibility and the will of the center to give it,new initiatives arise that can change the world.
In the course of the study, the authors come to the conclusion that social entrepreneurship can symbolize the departure of Ukrainian society fromcollectivism and the transition to individualism, where legal entities and natural personsentrepreneurs, through their activities on their own initiative, create decent conditions for the life of socially vulnerable segments of the population.
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Kanstroom, Daniel. "The “Right to Remain Here” as an Evolving Component of Global Refugee Protection: Current Initiatives and Critical Questions." Journal on Migration and Human Security 5, no. 3 (September 2017): 614–44. http://dx.doi.org/10.1177/233150241700500304.
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This article considers the relationship between two human rights discourses (and two specific legal regimes): refugee and asylum protection and the evolving body of international law that regulates expulsions and deportations. Legal protections for refugees and asylum seekers are, of course, venerable, well-known, and in many respects still cherished, if challenged and perhaps a bit frail. Anti-deportation discourse is much newer, multifaceted, and evolving. It is in many respects a young work in progress. It has arisen in response to a rising tide of deportations, and the worrisome development of massive, harsh deportation machinery in the United States, Germany, the United Kingdom, France, Mexico, Australia, and South Africa, among others. This article's main goal is to consider how these two discourses do and might relate to each other. More specifically, it suggests that the development of procedural and substantive rights against removal — as well as rights during and after removal — aids our understanding of the current state and possible future of the refugee protection regime. The article's basic thesis is this: The global refugee regime, though challenged both theoretically and in practice, must be maintained and strengthened. Its historical focus on developing criteria for admission into safe states, on protections against expulsion (i.e., non-refoulement), and on regimes of temporary protection all remain critically important. However, a focus on other protections for all noncitizens facing deportation is equally important. Deportation has become a major international system that transcends the power of any single nation-state. Its methods have migrated from one regime to another; its size and scope are substantial and expanding; its costs are enormous; and its effects frequently constitute major human rights violations against millions who do not qualify as refugees. In recent years there has been increasing reliance by states on generally applicable deportation systems, led in large measure by the United States' radical 25 year-plus experiment with large-scale deportation. Europe has also witnessed a rising tide of deportation, some of which has developed in reaction to European asylum practices. Deportation has been facilitated globally (e.g., in Australia) by well-funded, efficient (but relatively little known) intergovernmental idea sharing, training, and cooperation. This global expansion, standardization, and increasing intergovernmental cooperation on deportation has been met by powerful — if in some respects still nascent — human rights responses by activists, courts, some political actors, and scholars. It might seem counterintuitive to think that emerging ideas about deportation protections could help refugees and asylum seekers, as those people by definition often have greater rights protections both in admission and expulsion. However, the emerging anti-deportation discourses should be systematically studied by those interested in the global refugee regime for three basic reasons. First, what Matthew Gibney has described as “the deportation turn” has historically been deeply connected to anxiety about asylum seekers. Although we lack exact figures of the number of asylum seekers who have been subsequently expelled worldwide, there seems little doubt that it has been a significant phenomenon and will be an increasingly important challenge in the future. The two phenomena of refugee/asylum protections and deportation, in short, are now and have long been linked. What has sometimes been gained through the front door, so to speak, may be lost through the back door. Second, current deportation human rights discourses embody creative framing models that might aid constructive critique and reform of the existing refugee protection regime. They tend to be more functionally oriented, less definitional in terms of who warrants protection, and more fluid and transnational. Third, these discourses offer important specific rights protections that could strengthen the refugee and asylum regime, even as we continue to see weakening state support for the basic 1951/1967 protection regime. This is especially true in regard to the extraterritorial scope of the (deporting) state's obligations post-deportation. This article particularly examines two initiatives in this emerging field: The International Law Commission's Draft Articles on the Expulsion of Aliens and the draft Declaration on the Rights of Expelled and Deported Persons developed through the Boston College Post-Deportation Human Rights Project (of which the author is a co-director). It compares their provisions to the existing corpus of substantive and procedural protections for refugees relating to expulsion and removal. It concludes with consideration of how these discourses may strengthen protections for refugees while also helping to develop more capacious and protective systems in the future. “Those guarantees of liberty and livelihood are the essence of the freedom which this country from the beginning has offered the people of all lands. If those rights, great as they are, have constitutional protection, I think the more important one — the right to remain here — has a like dignity.” Supreme Court Justice William O. Douglas, 19522 “We need a national effort to return those who have been rejected … and we are working on that at the moment with great vigor.” Angela Merkel, October 15, 20163
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TAJADURA TEJADA, Javier. "El guardián de la Constitución en la obra de E. Sieyès: un precedente de la Justicia Constitucional en Europa." RVAP 99-100, no. 99-100 (December 30, 2014): 2845–72. http://dx.doi.org/10.47623/ivap-rvap.99.100.2014.119.
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LABURPENA: Lan honetan, Konstituzioa defendatzeko organo bat osatzearen beharrari buruz Sieyès apaizak egindako hausnarketak azaldu dira. Sieyès botere eratzailearen eta botere eratuen arteko bereizketaren —hortaz, konstituzionalismo garaikidearen— sortzaile intelektuala izan zen. Konstituzioa aldatzeko prozedura berezia ezartzeko beharra defendatzeaz gain —alderdi hori nabarmendu zuten beste idazle batzuek—, Konstituzioa defendatzeko organoa ere diseinatu zuen. Frantziako Iraultzan, Frejúsko apaizak soilik eman zuen horren berri. Konstituzioa defendatzeko organoa bere eredu politikoaren giltzarria da, baita botere eratzailea kontzeptuaren ondorio logikoa ere, botere horrek sortutako estatu konstituzionalaren oinarria delako. Behar hori Thermidorren 2an esandako hitzaldi garrantzitsu batean azaldu zuen lehen aldiz. Handik bi astera, III. urteko Thermidorren 18an, ideia bera garatu zuen Konbentzio Nazionalean eman zuen beste hitzaldi batean. Sieyèsek Konstituzioa nahitaez bete beharreko arau juridiko loteslea izateko «Konstituzioaren zaindari» bat sortu behar zela planteatu zuen. Sieyès izan zen magistratura horren oinarrizko diseinua egiten lehena, zehaztasun tekniko eta xehetasun maila handiekin, bai osaerari bai funtzioei zegokienez. Eta egun Europako Zuzenbide Konstituzionalaren ondare diren ideia asko aurreratu zituen. Nabarmentzekoa da Justizia Konstituzionala sortu zuela, hainbat helbururekin: gutxiengoak babesteko instituzioa, politika integratzeko organoa, konstituzioarekin lotutako gatazkak ebazteko instantzia gorena eta askatasun jurisdikzioa izatea. RESUMEN: En este trabajo se exponen las reflexiones del abate Sieyès sobre la necesidad de configurar un órgano de defensa de la Constitución. Sieyès —creador intelectual de la distinción entre Poder Constituyente y poderes constituidos, y uno de los fundadores, por tanto, del constitucionalismo contemporáneo— no sólo defendió siempre la necesidad de establecer un procedimiento especial de reforma de la Constitución —aspecto este que fue destacado por otros autores— sino que llevó a cabo también el diseño de un órgano de defensa de la Constitución. En el contexto revolucionario francés, el abate de Frejús fue el único en advertirlo. El órgano de defensa de la Constitución se configura como la clave de bóveda de su modelo político y el corolario lógico del concepto de Poder Constituyente, como fundamento del Estado Constitucional, por él alumbrado. Esta necesidad la advirtió por vez primera en un importante discurso pronunciado el 2 de Termidor. Dos semanas después desarrolló su idea en otro discurso proferido en la Convención Nacional, concretamente el 18 de Thermidor del año III. En él, Sieyès se plantea la necesidad de crear un «guardián de la Constitución» para que esta pueda configurarse como una norma jurídica vinculante, y de obligatorio cumplimiento. Sieyès fue el primero en establecer con gran rigor técnico, y con un muy elevado nivel de detalle, el diseño básico de esa magistratura, tanto en lo que se refiere a su composición como a sus funciones. Y lo hizo anticipándose a muchas ideas que son hoy patrimonio común del Derecho Constitucional europeo. Entre ellas cabe destacar la configuración de la Justicia Constitucional como una institución protectora de las minorías, como un órgano de integración política, como la suprema instancia jurídico-política para la resolución de los conflictos constitucionales, y como una jurisdicción de la libertad. ABSTRACT: This work sets forth the critical thoughts of the Abate Sièyes regarding the need to set up a body for the protection of the Constitution. Sièyes —the intelectual author of the distinction between constituent power and constituted power, and one of the fathers of the contemporary constitutionalism—, did not only stand up for the need to establish a special procedure for the reform of the Constitution —a facet which was emphasyzed by another authors— but also he carried out the design of a body for the defense of the Constitution. In the framework of the revolutionary french context, the Abate from Frejús was the only one to notice it. The body for the defense of the Constitution was envisaged as the cornerstone of his political model and the logic corollary of the notion of constituent power, as the basis for the Constitutional state figured out by him. This necessity was notized for the first time in an important speech pronounced the 2 of Thermidor. Two weeks later, he developed his idea in another speech issued before the National Convention, specifically the 18 of Thermidor of the third year. Sièyes sets the need to establish a «guardian for the Constitution» in order to become a binding legal rule of compulsory observance. Sièyes is the firt one to establish with great technical rigour and with a high level of details, the basic design of that court both regarding its membership and its tasks. And he did it so foreseeing many ideas which are nowadays common ground for the European Constitutional law. Among them it can be emphasyzed the configuration of constitutional justice as a protective institution for minorities, as a body of political integration, as the supreme instance for the resolution of constitutional conflicts and as a jurisdicition for freedom.
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Silva Júnior, Assis Moreira, and Luis Fernando Severino. "Licença-maternidade e estabilidade da gestante para homens." Revista de Direitos e Garantias Fundamentais 14, no. 2 (April 1, 2014): 207. http://dx.doi.org/10.18759/rdgf.v14i2.365.
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RESUMO Neste artigo são tratados casos em que o modelo de proteção exige alterações pontuais em relação aos personagens, garantindo-se o direito à estabilidade-gestante e à licença-maternidade não apenas à mulher, mas também ao homem, em alguns casos excepcionais que abordamos, quais sejam, viúvo cujo falecimento da esposa tenha se dado por complicações decorrentes do parto, genitor solteiro, casal homoafetivo e genitor ou futuro genitor que seja o único provedor da renda familiar. Há necessidade de compatibilização entre as matérias normativas de diferentes disciplinas, com alterações legislativas que aumentem o manto protetor, com especial atenção para a entidade familiar, que goza de especial proteção do Estado. Mas isso não impede o gozo de tais direitos para os casos excepcionais mencionados, tendo em vista a interpretação sistemática do texto constitucional. ABSTRACT This article deals with cases where the protection model requires specific changes in relation to the characters, ensuring the right to pregnancy stability and maternity leave, not only to women but also to men, in some exceptional cases that we discussed about, as a widower whose wife’s death has been given from complications through childbirth, single parent, homosexual couple and future parent who is the unique provider of the family income. There is need for compatibility between the normative subjects from different disciplines, with legislative changes that increase the protective mantle, with special attention to the family entity, which enjoys special protection by the State. But this does not prevent the enjoyment of such rights to the exceptional cases mentioned, in view of the systematic interpretation of the constitutional text.
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De Gregorio, Giovanni, and Roxana Radu. "Digital constitutionalism in the new era of Internet governance." International Journal of Law and Information Technology 30, no. 1 (March 1, 2022): 68–87. http://dx.doi.org/10.1093/ijlit/eaac004.
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Abstract Digital technologies are profoundly intertwined with constitutionalism. They are not only a sum of material and immaterial architecture, but also provide infrastructures to exercise freedoms and powers. Even if digital technologies are likely to remain the key driver of global transformations in the next decades, the current evolution of Internet governance promises to affect this relationship. This article argues that Internet governance is evolving towards fragmentation, polarization and hybridization. These trends do not only concern the governance of the technical infrastructure. They also contribute to reshaping the architecture of freedom and power in the digital environment, giving impetus to a new role for constitutionalism in the digital age. Therefore, the primary question is how far does the evolution of Internet governance leads towards a new constitutional paradigm in the digital age? As digital spaces are governed at the crossroads of a new phase, these trends question the global paradigm at the basis of the Internet, thus opening a new research agenda. By examining the challenges raised by fragmentation, polarization and hybridization in the governance of digital technologies, this work examines emerging challenges to constitutional models protecting rights and limiting powers on a global scale.
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K. V., Nуkolуna. "Legal doctrine as a source of legal argumentation in the process of human rights protection." Almanac of law: The role of legal doctrine in ensuring of human rights 11, no. 11 (August 2020): 175–79. http://dx.doi.org/10.33663/2524-017x-2020-11-31.
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The article is devoted to determining the place of legal doctrine in the system of sources of law and substantiating its importance in the process of protection of human rights as a legitimate basis for legal argumentation. An analysis of current scientific research suggests that today there is no single unified perception of the category of legal doctrine among both legal theorists and law enforcers. The author points out a number of conflicting points that need to be finally resolved. In particular, there is no understanding from which point an idea, concept or view of law can be considered doctrinal. In this case, it is possible to use the experience of Western jurisprudence, which uses a variety of citation indices, which indirectly testifies to the authority of one or another scientific source, as well as informal lists of authoritative among judges of books of lawyers. Also open today is the question of securing binding reference to a specific scientific source by law enforcement entities in the process of reasoning of the decision. According to the author, the doctrine is a source of law in every case where law-makers or law-makers use scientific concepts, ideas, views when making legally significant decisions. The Constitution of Ukraine in Art. 129 by declaring that "the judge is independent and governed by the rule of law", in fact, enshrined the obligation to apply legal doctrine in the law enforcement process. In making its decision, a judge, when substantiating a certain legal position, has the right to refer not only to national legislation, but also to use the results of scientific papers, the findings of the Constitutional Court of Ukraine, etc. At the same time, the problem of recognizing the legitimacy of decisions based on doctrinal approaches is important. Based on the thesis that law is a product of society, an expression of the public perception of justice, then the public will itself will be the primary source of law. No matter which of the official forms of law prevails in a particular legal system, it must be legitimized (recognized) by society, and therefore endowed with a high degree of authority. When analyzing a legal rule, it is necessary to distinguish its textual expression and its actual content. Legal doctrine, as a more dynamic phenomenon than official legal regulation, is able to formulate algorithms for finding the actual content of a rule of law in the context of its application. Given the tendencies in the evolution of legal regulation in the direction of deformation and decentralization, the phenomenon of legal doctrine can be explained using a differentiated approach to sources of law, distinguishing between "hard law" and "soft law" (soft law). By analogy, legal doctrine can be considered as an informal authoritative source of law, which is the intellectual basis of legal thinking and argumentation, formed within the jurisprudence and represents a set of scientifically sound ideas, concepts, views, which formulate effective models and standards for solving current problems of legal practice. Keywords: legal doctrine, human rights, sources of law, legal argumentation.
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Osella, Stefano. "When Comparative Law Walks the Path of Anthropology: The Third Gender in Europe." German Law Journal 23, no. 7 (September 2022): 920–42. http://dx.doi.org/10.1017/glj.2022.65.
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AbstractGender recognition is a crucial achievement for non-binary people. To better understand this right, this article combines comparative law with theoretical insights from anthropology to offer a discussion of non-binary recognition in European fundamental rights law. It identifies three approaches to such a right and critically assesses each of them. The first approach is denial, with the non-binary option being explicitly or implicitly rejected, as has occurred in French and Italian courts. The next approach is limited recognition, whereby a non-binary option is granted under specific limitations, such as when certain physical characteristics are present or when a claimant permanently identifies with the non-binary gender. This is the course of action that has been taken in German law. The third approach is gender self-determination, whereby individuals can obtain recognition on the basis of their declaration alone. This solution has been offered by the Belgian Constitutional Court. On the strength of findings from anthropology, the article argues that the first two models are incapable of genuinely engaging with gender diversity, while the third one offers more robust legal protection. The analysis presented here serves as an example of how anthropological insights can be effectively used to advance comparative law research.
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Ebobrah, Solomon, and Felix Eboibi. "Federalism and the Challenge of Applying International Human Rights Law Against Child Marriage in Africa." Journal of African Law 61, no. 3 (July 10, 2017): 333–54. http://dx.doi.org/10.1017/s0021855317000195.
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AbstractFederalism presents a dilemma for the implementation of international human rights law in those African states that operate federal constitutions. Central governments in these states enjoy international legal personality, make treaties and represent their states as parties to those treaties, yet internal legislative competence over some issues regulated by treaty is commonly shared between central and regional governments. Consequently, while central governments bear responsibility for transforming international standards into national law, challenges arise in areas such as the protection of children from child marriage, where they lack exclusive national legislative competence. How have these states managed to implement international law without violating their own constitutions? Applying a comparative approach, this article argues that African federal states have employed two main models to overcome the dilemma, neither of which has been totally effective. Drawing lessons from federal states outside Africa, the article suggests other mechanisms to perfect Africa's two main models.
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Butler, Brian. "Rorty, the First Amendment and Antirealism: Is Reliance upon Truth Viewpoint-Based Speech Regulation?" Journal of Moral Philosophy 1, no. 1 (2004): 69–88. http://dx.doi.org/10.1177/174046810400100107.
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AbstractIn this article I investigate the implications of antirealism, as characterized by Richard Rorty, for First Amendment jurisprudence under the United States Constitution. It is hoped that the implications, while played out in the context of a specific tradition, will have more universal application. In Section 1, Rorty’s ‘pragmatic antirealism’ is briefly outlined. In Section 2, some effects of the elimination of the concept of truth for First Amendment jurisprudence are investigated. Section 3 argues for the conclusion that given the antirealist stance, the Supreme Court’s usage of the true/ false fact distinction is actually an uncritical allowance of viewpoint-based discrimination into speech protection that has potentially far-reaching and restrictive results for important speech. Finally, in Section 4 Rorty’s antirealism is combined with various traditional models of First Amendment analysis to see how it would function. The conclusions aimed at are twofold. First, that Rortian antirealism is compatible with the traditional models underlying First Amendment theory. Second, that a realization that truth is the result of, in Rorty’s words, ‘intra-mundane’ discourse leads to an argument for different and potentially stronger and more farreaching protections to speech.