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1
Martini, Stefan. "Comparative Constitutional Justice". Volume 61 · 2018 61, n. 1 (20 giugno 2019): 545–48. http://dx.doi.org/10.3790/gyil.61.1.545.
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Favoreu, Louise. "La justice constitutionnelle en France". Les Cahiers de droit 26, n. 2 (12 aprile 2005): 299–337. http://dx.doi.org/10.7202/042667ar.
Testo completoAbstract (sommario):
The 1958 Constitution provided France with a constitutionally based system of justice and although this had been contrary to French traditions — and consequently apprehended at that time — the system has progressively developed and become one of the main elements of the French constitutional regime and at the same time, one of its most dynamic and appreciated components. This article presents the French Constitutional Council: its status, composition and operations. It maps out areas in which this body has had to intervene and, above all, it analyses the jurisprudence of the Council and notes that its most impressive contribution lies in the field of the constitutional review of laws and its main objective, basic personal freedoms. The conclusion of this study is that French constitutional law has undergone radical modifications under this system and that in the future, it has become a fertile ground for comparative studies for the Canadian jurist due to the constitutional review of laws in the name of personal freedoms.
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Abat Ninet, Antoni. "Kelsen versus Schmitt and the Role of the Sub-National Entities and Minorities in the Appointment of Constitutional Judges in Continental Systems". ICL Journal 14, n. 4 (20 dicembre 2020): 523–43. http://dx.doi.org/10.1515/icl-2020-0015.
Testo completoAbstract (sommario):
Abstract In composed and decentralised states, sub-national entities and (ethnic, linguistic, racial) minorities ought to play a determinant role in the process of appointment of constitutional courts justices to obtain a balanced representation in the guardian of the constitution. The necessary appearance of constitutional justice independence can be at stake without a proportionated participation of minorities and sub-national entities in the court. It is not enough to introduce a symbolic presence. The first section of this essay analyses the transcendence and political-legal significance that the system of appointment of constitutional court judges has and its relation to the separation of powers (horizontal and vertical). The second section is a return to the roots, ie the system of appointment the Austrian Constitution of 1920, even that first constitutional court was created in 1919, and Kelsen’s theory on federalism. The third section carries out an analysis from a comparative constitutional law perspective by using as an analytical basis the reports on the composition of the Constitutional Courts of the European Commission for Democracy through Law. The paper ends with a reflection on Schmitt considerations on the Guardians of Constitutions.
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Bouziane, Aliane. "Cases of Constitutional Deviation and Constitutional Control between the Algerian constitution and comparative constitutional justice". International Review of Law 2019, n. 1 (gennaio 2020): 1–65. http://dx.doi.org/10.29117/irl.2019.0055.
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Bondar, Nikolay S. "From the “Living Constitution” to Judicial Constitutionalism: A Comparative Legal Concept of Russia and the USA". Journal of Foreign Legislation and Comparative Law 20, n. 4 (2024): 46. https://doi.org/10.61205/s199132220030646-6.
Testo completoAbstract (sommario):
Based on the analysis of the p eculiarities of the domestic system of constitutional normative control and the practice of the transformative and evolutionary influence of the Constitutional Court of the Russian Federation on the Russian Constitution, as well as taking into account the theory and practice of constitutional interpretation that has been substantiated in the United States, the article proposes a comparative concept of the “living constitution”, considered in the aspect of the domestic doctrine of judicial constitutionalism. In accordance with this approach, constitutionalism as a special political and legal regime is actualized and developed through constitutional justice, taking into account the specific historical, socio-cultural conditions of functioning, turns on the basis of the developed legal positions of the Constitutional Court into a “living” (judicial) constitutionalism, taking into account its multilevel systemic characteristics in both doctrinal and normative and law enforcement manifestations, worldview perception. The implementation of the transformative function of constitutional justice is particularly important for Russia due to the increased practical relevance of constitutional reform issues. Doctrinally, many of the relevant problems are relatively new and controversial for Russian constitutional law science, which significantly increases the importance of comparative approaches to their research.
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Lachmayer, Konrad. "Constitutional Reasoning as Legitimacy of Constitutional Comparison". German Law Journal 14, n. 8 (1 agosto 2013): 1463–91. http://dx.doi.org/10.1017/s2071832200002352.
Testo completoAbstract (sommario):
For ten years, the legitimacy of constitutional comparison in courts has been intensely debated. The case law of the U.S. Supreme Court led to an intense discussion on constitutional comparison and reached its peak with the Great Debate between Justice Scalia and Justice Breyer. Justice Breyer argued in favor of constitutional comparison while Justice Scalia refused the comparative approach. Justice Scalia stated:[Y]ou are talking about using foreign law to determine the content of American constitutional law—to be sure that we're on the right track, that we have the same moral and legal framework as the rest of the world. But we don't have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that we're to be just like Europe, they would have been appalled. If you read the Federalist Papers, they are full of statements that make very clear the framers didn't have a whole lot of respect for many of the rules in European countries. Madison, for example, speaks contemptuously of the countries of continental Europe, “who are afraid to let their people bear arms.’
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Grishnova, Elena Yevgenievna, Tatiana Viktorovn Larina, Andrey A. Soloviev, Yuri Viktorovich Stepanenko e Yuriy Nikolaevich Tuganov. "Constitutional justice in the Russian Federation". LAPLAGE EM REVISTA 7, n. 1 (4 gennaio 2021): 396–400. http://dx.doi.org/10.24115/s2446-6220202171750p.396-400.
Testo completoAbstract (sommario):
The article aims at studying the legal nature and essence of constitutional proceedings with due regard to historical experience and modern legislative approaches to the structure and system of constitutional justice in Russia. The main research method was the deductive method which allowed the authors to study the legal nature of the Constitutional Court and its role in the separation of powers in Russia. The article also used the inductive method, the method of systemic analysis, and comparative-legal and historical methods. To solve the research problem, it is necessary to consider the legal foundations and features of constitutional justice based on the amendments made to the Constitution of the Russian Federation on July 1, 2020. The article proves that the legal nature and the main goal of constitutional control remain unresolved issues. According to the authors, the most important condition for the creation of a strong judicial power is its high independence. Judicial errors can also cause distrust in the judiciary.
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PETRIV, Ivan. "Functioning of the Constitutional Court of Ukraine as Part of Improving the Mechanisms of Public Administration and Sustainable Development of the State". Journal of Business 8, n. 2 (30 dicembre 2019): 34–41. http://dx.doi.org/10.31578/.v8i2.165.
Testo completoAbstract (sommario):
The material of the article reveals the purpose of research in the field of sustainable functioning of the mechanism of state powerthrough the lens of the activity of the body of constitutional justice. Main results of research are the disclosure of the content ofactivities of the Constitutional Court of Ukraine as a necessary condition for ensuring a constitutionally defined system of publicauthorities and improving the mechanisms of public administration. The article describes main functional characteristics of the bodyof constitutional justice in Ukraine and their influence on the sustainability of the work of state bodies in terms of division into branchesof power.The importance of constitutional justice for the construction of a legal and democratic state with authoritative institutionswas highlighted in the process of research, the content of the activity of the body of constitutional justice and feasibility of widespreaduse of possibilities of the Constitutional Court of Ukraine as a state body with special status were revealed.It is proposed to improvethe functions and powers of the Constitutional Court of Ukraine in view of comparative characteristics of the bodies of constitutionaljustice of individual European states. Scientific work substantiates the necessity of reviewing the legislatively defined powers of theConstitutional Court of Ukraine in terms of their extension and adaptation to modern challenges, investigates the significance of thedecisions and conclusions of this body for improving the mechanisms of public administration, determines the role of the Court in thesystem of higher bodies of state power by the status of a state body. Based on the definition of strategic goals set by the Constitutionof Ukraine at the Constitutional Court of Ukraine, directions for improving effectiveness of the application of decisions and conclusionsof the Court and interaction with higher bodies of state power are justified. Besides, directions of improvement of the mechanismsof public administration through the prism of the results of the Court’s activity and those of improvement of the legislation with thepurpose of increasing efficiency of the Constitutional Court of Ukraine in the mechanism of realization of the state power are offered.Keywords: Constitutional Court of Ukraine, constitutional control, constitutional guarantees, constitutional justice mechanisms ofpublic administration, functions of constitutional justice, system of state powerJEL: D73
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Рудман, Марк Наумович, e Артур Разимович Туриянов. "FORMATION OF A PARLIAMENTARY MODEL OF CONSTITUTIONAL CONTROL IN THE BASIC LAWS OF THE USSR OF 1924 AND 1936". Rule-of-law state: theory and practice 18, n. 4(70) (19 gennaio 2023): 12–22. http://dx.doi.org/10.33184/pravgos-2022.4.2.
Testo completoAbstract (sommario):
The article studies the features of fixing the legal mechanism of constitutional control in the first two constitutions of the USSR. The analysis is based on the study ofthe approaches taken by wellknown legal scholars during the drafting of these constitutional acts, as well as the views of modern Russian constitutionalists on the essence and national specificity of the implementation ofthe ideas of constitutional control as an integral part of thesystem of constitutional governance. On the basis of a comparative legal analysis, the article reveals the evolution of the mechanism of constitutional control from judicial control in the Constitution of the USSR of 1924 to formal parliamentary control in the Constitution of the USSR of 1936. While recognizing the importance of the institution of constitutional controlas a necessary element of constitutional governance, the authors conclude that the single-party political regime in the USSR had a destructive effecton the very idea of constitutional governance. Despite attempts to create Soviet constitutionalism as a universal way of involving society in social construction, the influence of party power negated the meaning ofthe Soviet Constitution. The formalization of the content of constitutionalism and federalism under the Soviet state regime contributed to a complete loss ofthe importance of constitutional justice in the USSR of the pre-war period.
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Menski, Werner. "Public Participation in African Constitutionalism". Potchefstroom Electronic Law Journal 22 (21 maggio 2019): 1–7. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a6310.
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This review explores why public participation in constitution-making matters for cultivating responsible governance and for fine-tuning justice, focused on immensely rich African evidence within a broader comparative constitutional law context.
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Huseynova, Kenul. "PRINCIPLES OF THE CONSTITUTIONAL INTERPRETATION. THE PRACTICE OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF AZERBAIJAN". EurasianUnionScientists 4, n. 8(77) (16 settembre 2020): 42–51. http://dx.doi.org/10.31618/esu.2413-9335.2020.4.77.979.
Testo completoAbstract (sommario):
The article studies four classical ways of interpretation of constitutional rights by constitutional justice body. The author concludes that in applying the four canons of interpretation, a sequence must be observed where the grammatical interpretation is the basic method of understanding the meaning of the Constitution and laws of the Republic of Azerbaijan on the issues of implementation of human rights and freedoms. Systematic and teleological interpretation are used as additional methods. The methods under consideration acts as a certain framework for judges (или The methods under consideration provided a framework for judges.). Thus, following them does not allow the constitutional justice bodies to go beyond their own competence. The analysis of classical methods of interpretation stimulates further research in this area, including a separate analysis that requires interdisciplinary interpretation, constitutional conformal interpretation, a comparative interpretation of constitutional text, etc.
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Shakti, Airlangga Gama, Maharani Wicahyaning Tyas e M. Lutfi Rizal Farid. "The Integration of Judicial Review in Indonesia". Syiah Kuala Law Journal 6, n. 3 (7 febbraio 2023): 212–27. http://dx.doi.org/10.24815/sklj.v6i3.26940.
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The judicial review is the essence of constitutional justice. At this time, Indonesia has adopted a dualism system in judicial review, which creates problems. This study aims to analyze the current judicial review system and examine the integration of judicial review by the Constitutional Court as ius constituendum. In reviewing the legal problems in this research, the Constitutional Court used the juridical-normative method. Furthermore, this research also uses a regulatory approach and a comparative study in Austria and Germany. The results show that Articles 24A and 24C of the Indonesia Constitutionhave delegated the Supreme Court the right to judicial review of regulations under the law, while the Constitutional Court has judicial review against the Indonesia Constitution. This raises problems, from practice to the difficulty of guarding the hierarchy of norms from Regional Regulations to the Indonesia Constitution. Judicial review at the Supreme Court also still has problems, especially transparency and accountability, because they have a closed nature. If analyzed in Austria, the Constitutional Court has the authority to judicial review the constitutionality of laws and the legality of administrative regulations (policies). In Germany, the Federal Constitutional Court has the authority to judicial review the law against the constitution. Therefore, there is a need for an urgency to integrate the judicial review by the Constitutional Court through the Amendment to the Indonesia Constitutionand several revisions to the regulations.
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Чиркин, Вениамин, e Vyeniamin CHirkin. "Social Justice In Constitutional Law". Journal of Russian Law 4, n. 7 (5 luglio 2016): 0. http://dx.doi.org/10.12737/20141.
Testo completoAbstract (sommario):
Social justice is a social element of the universal human value of justice, associated with socialist teachings (not only Marxism). This word combination is increasingly becoming a principle of law and, in general, a principle of a democratic and socially-oriented society of our time. In Marxism-Leninism that notion had a class character. Now the principle of social justice, or certain elements of it (without the word “principle”) are enshrined in modern constitutions (Brazil, Nepal, Poland, etc.), including the Russian one, where it is expressed less clearly than in some other constitutions. Nowadays, social justice becomes one of the most important provisions of the modern constitutional law. In three major global systems of modern law — Muslim, liberal semi-social capitalist and totalitarian socialist, the content of that principle, its indicators are not identical and sometimes even antagonistic. The article compares the content and legal indicators of this principle, the practice in Russia and other countries. Among such indicators the author considers monetary value of the consumer goods basket, the minimum monthly wage, differences in income of population groups, pension coverage, etc. The article contains comparative figures, related to these indicators, for different countries and Russia.
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Al-Assaf, Shatha. "Direct Individual Access to the Constitutional Judiciary: A Comparative Study of Iraqi and Kuwaiti Laws". Dirasat: Shari'a and Law Sciences 50, n. 1 (1 marzo 2023): 191–203. http://dx.doi.org/10.35516/law.v50i1.982.
Testo completoAbstract (sommario):
Objectives: A few Arab constitutions have adopted direct individual access to the constitutional judiciary, most notably the Kuwaiti and Iraqi constitutions. This study aims to show how Kuwaiti and Iraqi laws regulate the requirements and procedures for individual access to the constitutional judiciary. It also aims to identify the best regulation for direct individual access to the constitutional judiciary. Methods: The study adopted the analytical and comparative method by conducting comparative analyses to identify the strengths and weaknesses of the legal texts covering direct individual access in the Kuwaiti and Iraqi constitutions, laws, and regulations. Results: Kuwaiti and Iraqi law made sure to organize individuals’ right to direct individual access by imposing certain requirements and clarifying the related procedures to prevent the constitutional judiciary from being overburdened with complaints. However, there is a need for better legal regulation for individual access to the constitutional judiciary by amending some requirements concerning the bail amount, legal representation, and procedures. Conclusions: There is incompetency in legally regulating direct individual access to the constitutional judiciary in Kuwait and Iraq. Kuwaiti and Iraqi laws should be amended to avoid impeding access to constitutional justice, which will develop the constitutional judiciary in Kuwait and Iraq to be able to carry out its duties in overseeing the constitutionality of laws and regulations.
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Onishchuk, Mykola, e Mykhailo Savchyn. "Direct effect of the Constitution and implementation of its provisions in administrative justice". Slovo of the National School of Judges of Ukraine, n. 2(31) (30 luglio 2020): 6–26. http://dx.doi.org/10.37566/2707-6849-2020-2(31)-1.
Testo completoAbstract (sommario):
The problem of direct effect of the Constitution is related to the some aspects of the systematics of sources of law in the legal system of Ukraine in the pint of view of comparative law. Today, the processes of convergence in law continue. In the light of such dynamics, there is a multilevel and pluralistic picture of the direct effect of the provisions of the Constitution of Ukraine as a component of its highest legal force. The resolution of human rights cases by courts is a complex case, as it refers to their excessive restriction by law, which is not based on a sufficient legal basis. Constitutional justice is relevant to the practice of courts of general jurisdiction, as it is often in acts of constitutional justice that the provisions of the constitution are interpreted. The article is the disclosure of the direct action of the Constitution Ukraine in the exercise of administrative justice through the implementation of its provisions in court decisions. The highest legal force of the Constitution is revealed through the lens of the components of the reasoning of court decisions. Direct action has been analyzed as a component of the normative nature of the Constitution, in particular because of the duty to protect of human rights and apply the principles of proportionality, as well as the correlation between the legal force of the Constitution and the acts of the Constitutional Court. The implementation of the decisions of the Constitutional Court in the activity of administrative courts, in particular through the system of reasoning of their decisions, is revealed. Based on a holistic understanding of the Constitution, it is concluded that the duty to protect the state arises from the violation of its human (i.e. body) human right by the agent and the main duty of the court is to restore such right in full. Key words: decisions of constitutional justice, direct effect of the constitution, human rights, legal reasoning, review of judicial decisions, supremacy of the constitution.
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Pirdaus, Dede Irman, Rini Chayandari e Yasir Salih. "Constitutional Values, Legal Politics, and Political Stability: A Comparative Analysis in the Post-Authoritarian Context of Indonesia". International Journal of Humanities, Law, and Politics 1, n. 4 (27 febbraio 2024): 64–69. http://dx.doi.org/10.46336/ijhlp.v1i4.71.
Testo completoAbstract (sommario):
This paper explores the intricate relationship between constitutional values of equality and justice and their impact on political stability, with a specific focus on Indonesia's post-authoritarian context. Constitutional ideals, while crucial, face challenges in translating into tangible outcomes due to implementation gaps and entrenchment of inequalities. The study employs a comparative analysis of national constitutions, examining cases where provisions of justice and equality either succeeded or failed to foster stable political environments. Pathways linking constitutional equality to political stability are scrutinized, emphasizing both procedural and substantive dimensions. The research employs political stability indicators to unravel the nuanced relationship between constitutional principles and governance outcomes. In the context of Indonesia, the paper delves into the complexities of legal politics during the transition from the New Order to reformasi democracy. The post-authoritarian landscape witnessed struggles for freedom of expression and human rights enforcement, reflecting the challenges of aligning legal frameworks with democratic principles. The analysis considers the uneven progress in rule of law reforms, navigating the legacies of patrimonialism and oligarchic influence
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Dixon, Rosalind. "Feminism and comparative constitutional studies". Comparative Constitutional Studies 1, n. 2 (22 dicembre 2023): 310–20. http://dx.doi.org/10.4337/ccs.2023.02.08.
Testo completoAbstract (sommario):
Feminism and comparative constitutional studies (CCS) both permit multiple different methodological approaches. For that reason, there are also multiple ways of doing feminist constitutional comparison. But feminist commitments point to three broad methodological principles that can and should inform CCS: first, attention to issues of gender and gender justice; second, the use of small-n and large-n methods in the field; and third, the promotion of diverse female-identifying and non-binary scholarly voices. This comment attempts to encourage further scholarly debate about the scope and implications of these principles for the field as a whole.
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Yun, Larisa V. "Exercising of Constitutional Justice in Luxembourg and Liechtenstein: The Foreign Experience". Russian judge 12 (10 dicembre 2020): 56–58. http://dx.doi.org/10.18572/1812-3791-2020-12-56-58.
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The article deals with the implementation of constitutional justice in the Grand Duchy of Luxembourg and the Principality of Liechtenstein. The author carries out a comparative legal analysis of the constitutional norms enshrined in the national legislation of the states under consideration. In Luxembourg, one of the features of constitutional justice is the consideration of cases through preliminary constitutional review. In Liechtenstein, the constitutionality is checked taking into account the innovations of international treaties.
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Dixon, Rosalind, e Amelia Loughland. "Comparative constitutional adaptation: Democracy and distrust in the High Court of Australia". International Journal of Constitutional Law 19, n. 2 (1 aprile 2021): 455–75. http://dx.doi.org/10.1093/icon/moab036.
Testo completoAbstract (sommario):
Abstract The ideas developed by Ely in Democracy and Distrust have had an important influence on at least one member of the High Court of Australia—Justice Stephen Gageler, first as counsel and now as a justice of the Court. This influence has not involved the straightforward “borrowing” of those ideas. Rather, it has involved a more standard-like application of US-style tiered scrutiny in contexts such as the protection of the “channels of political change” and giving narrower ambit to the judicial protection of “discrete and insular minorities.” This, the article suggests, reflects a distinctive form of comparative constitutional adaptation—a process involving, first, the attempt to develop a contextual understanding of Ely’s thought; second, a quite “thick” or “deep” form of comparison between the original and new context; and third, a context-sensitive adaptation of the theory to that new setting. This comparative adaptation has some similarity to the process of “recontextualization” identified in Gunther Frankenberg’s account of an “IKEA” style of global constitutional transfer. But it is distinctive in its direct engagement with foreign constitutional ideas at their source and its attention to the importance of constitutional context, difference, and generality or commonality. Similar forms of comparative constitutional adaptation can be found elsewhere, including in the engagement by Australian Chief Justice, Susan Kiefel, in the development of proportionality doctrines. But attention to Ely’s influence on Justice Gageler’s thought provides a useful window not only into Australian constitutional practice, but also into this distinctive and normatively attractive form of comparative engagement.
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Sokolov, T. V. "Constitutional justiciary (procedural) rights: towards identifying and understanding the phenomenon". Law Enforcement Review 8, n. 4 (9 gennaio 2025): 73–82. https://doi.org/10.52468/2542-1514.2024.8(4).73-82.
Testo completoAbstract (sommario):
Subject. The article is devoted to the study of the existence of an independent group of human rights – human rights in the sphere of justice, also called constitutional justiciary rights. These rights are enshrined in the constitutional acts of modern states and guaranteed at the international legal level in a number of universal instruments and regional conventions on the protection of human rights. The consolidation and implementation of these rights is intended to ensure, with the help of judicial procedures, the reality of the constitutionalism regime and social justice in specific cases considered by the courts.Purpose of the study. The article aims to prove the existence of constitutional judicial rights as a category of current law.Methodology. The article relies on the wide application of comparative legal, historical legal and formal dogmatic methods. The historical legal method made it possible to trace the consolidation of judicial rights in the constitutions of England, the USA, France, Italy and Germany in the 18th-19th centuries. Using the comparative legal method, the constitutions of the modern world were studied and a quantitative rating of the prevalence of these rights was compiled. The formal dogmatic method made it possible to define approaches to the theoretical study of this group of human rights.Conclusions. An independent group of human rights – justiciary rights – exists and is subject to allocation (recognition) as part of the general legal status of an individual. Such rights is defined as human rights realized in the field of justice.
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Ongdashuly, Y., U. A. Ahatov e A. M. Biskultanova. "Modern models of constitutional justice and their distinctive features". BULLETIN of L.N. Gumilyov Eurasian National University. LAW Series 147, n. 2 (2024): 63–77. http://dx.doi.org/10.32523/2616-6844-2024-147-2-63-77.
Testo completoAbstract (sommario):
The object of study in the article is the current models of constitutional justice used in various jurisdictions. The author examines the models of constitutional justice that are currently used by constitutional justice in various regions of the world. The relevance of the article is determined by the fact that the study of this issue makes it possible to choose the optimal model that allows effectively solving issues of national rule-making. For the Republic of Kazakhstan, this problem is very important in light of the creation in the country of a new model of constitutional justice, which requires scientific understanding taking into account the accumulated world experience in organizing constitutional justice. The purpose of the article is to study modern models of constitutional justice from the point of view of their main differences, advantages and disadvantages. Methods. The peculiarity of the methodology used is determined by the goal of a comprehensive study of existing models of constitutional justice. In this regard, the diversity of approaches, methods and means of understanding this form of legal process required reliance on comprehensive and systematic approaches. Conducting a study of the constitutional jurisdictional process required, firstly, the use of general scientific and proper legal methods, including methods of analysis and synthesis, induction and deduction, abstraction and generalization. Also in this work, a comparative legal method was used, which made it possible to carry out a comparative analysis of the models under study, identify their main characteristics, on the basis of which to formulate appropriate conclusions. In addition, in the process of working on the article, a country-specific legal approach was used, which made it possible to consider the features of national models of constitutional justice. Results. It has been determined that in the world practice of constitutional control, various models of constitutional justice are known. Based on the results of the study, it was determined that currently the most promising is the centralized (European) model. The conducted research allows us to say that the existing models of constitutional justice have both their advantages and disadvantages, however, in our opinion, the presence of a separate body that carries out constitutional justice is more preferable, since it ensures its autonomy, independence and objectivity in making decisions. decisions by professional judges who have the appropriate qualifications, authority and experience in considering complex issues related to rulemaking.
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Shelever, Nataliya. "The concept and content of the constitutional principle of justice". Constitutional and legal academic studies, n. 1 (11 ottobre 2021): 65–72. http://dx.doi.org/10.24144/2663-5399.2021.1.07.
Testo completoAbstract (sommario):
The purpose of the article is to study the concept and content of the constitutional principle of justice, its impact on constitutional relations, identifying problems that arose during the implementation of this principle during quarantine restrictions due to the pandemic of COVID-19.
This goal was achieved through the use of such methods as analysis of comparative law and formal law method.
The study found that the principle of justice, although not enshrined in the Basic Law of Ukraine, but it goes through the Constitution of Ukraine and procedural codes. The problematic issue is that there is no legislative definition of «justice». The practice of the Constitutional Court of Ukraine on the application of the principle of justice in its decisions is analyzed. It is substantiated that justice is a concept much broader than law and is a criterion for the legitimation of state power.
The problems of realization of the constitutional principle of justice are investigated. It was found that the principles of law, which are enshrined in the Constitution of Ukraine and current legislation of Ukraine, are not properly implemented in our country. The reason for this is the mentality of Ukrainians, which is characterized by low legal and political culture, violation of the law, distrust to the authorities, devaluation of moral and spiritual values. On the part of officials, it is a misuse of office positions.
It is justified that justice requires equal application of the law for all. However, everyone has his/her own understanding and vision of justice. This led to problems during the coronavirus pandemic. Violations such as the violation of the constitutional right to education have been identified, namely distance learning leads to a violation of the principles of justice and equality. Restrictions on small and medium-sized businesses during the COVID-19 pandemic discriminated against entrepreneurs compared to large businesses.
As a result of the study, it was concluded that justice is a legal value and a fundamental principle of law, which permeates both the Constitution of Ukraine and current legislation. The realization of justice can be done only by observing the law. In Ukraine, it is quite difficult to implement this principle, because the laws are often unfair. During the quarantine restrictions, violations of constitutional human rights were revealed. Overcoming corruption and raising the legal culture and legal awareness of Ukrainians should be a necessary step for the effective implementation of the principle of justice.
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V. Markhgeym, Marina, Goar G. Zagaynova, Alla N. Gutorova, Aleksej N. Nifanov e Evgeniy E. Tonkov. "CONSTITUTIONAL EXPERIMENT: REGULATORY APPROACHES IN FRANCE AND SPAIN". Humanities & Social Sciences Reviews 7, n. 5 (1 novembre 2019): 917–20. http://dx.doi.org/10.18510/hssr.2019.75118.
Testo completoAbstract (sommario):
Purpose: The article is devoted to the study of the constitutional experiment features in France and Spain. The author analyzes the regulations, including the constitutions and laws of both France and Spain. It also provides the analysis of constitutional regulation methods in these countries.
Methodology: The methodological basis of the study was the set of scientific knowledge leading methods. The methods of analysis and synthesis are widely used among general scientific ones, formal legal and comparative legal methods are among private scientific ones.
Result: The analysis of approaches to the formalization of the constitutional-legal experiment on the example of two European countries - France and Spain - showed the difference in corresponding models and levels. France developed the system of the state constitutional legal experiment regulation at the level of the Constitution and other legal acts (organic law, regulations, etc.), taking into account the corrective law-enforcement practice of constitutional control body - the Constitutional Council. The implementation of constitutional legal experiments in France was associated with the decentralization of power, the activities of public scientific and cultural institutions, criminal justice, social policy, etc.
Applications: This research can be used for universities, teachers, and students.
Novelty/Originality: In this research, the model of Constitutional Experiment: Regulatory Approaches in France and Spain is presented in a comprehensive and complete manner.
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Пастухов, Михаил Иванович. "О новых полномочиях Конституционного Суда Республики Беларусь". Studia Politologiczne, n. 4/2023(70) (20 dicembre 2023): 403–12. http://dx.doi.org/10.33896/spolit.2023.70.21.
Testo completoAbstract (sommario):
The purpose of the article is to analyze the powers of the Constitutional Court of the Republic of Belarus, which were enshrined in the new edition of the Constitution of the Republic of Belarus. In preparing the article, systemic, structural-logical and comparative legal methods were used. As a result, a detailed assessment of the new powers of the Constitutional Court of the Republic of Belarus is given, taking into account the existing practice and experience of the constitutional justice bodies of foreign countries, including the Republic of Poland. The author makes a number of proposals for improving the legislation of the Republic of Belarus.
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Mursyidi, Mursyidi. "Peninjauan Kembali dipersimpangan putusan MK No. 34 Tahun 2014 dan SEMA No. 7 Tahun 2014". Syura: Journal of Law 2, n. 1 (9 novembre 2024): 46–61. http://dx.doi.org/10.58223/syura.v2i1.255.
Testo completoAbstract (sommario):
This study explores the legal controversy related to the submission of PK in Indonesia with a focus on the Constitutional Court Decision No. 34 of 2014 and SEMA No. 7 of 2014. The 1945 Constitution provides a legal basis that must be obeyed by all people and state organs. The Constitutional Court and the Supreme Court have different but interrelated authorities in maintaining justice and legal certainty. The Constitutional Court Decision contained in No. 34 of 2014 allows PK more than once, contrary to Article 268 of the Criminal Procedure Code which allows PK only once. The Supreme Court responded to the decision by issuing SEMA No. 7 of 2014 which limits PK to only being submitted once, except in special conditions. The method used in this study is normative juridical, with secondary data as the main source. Data analysis was carried out qualitatively with a descriptive and prescriptive approach based on historical and comparative analysis. The results of the study indicate that the Constitutional Court Decision No. 3 of 2013 emphasizes the aspects of justice and human rights, providing the opportunity for multiple PKs with the condition of novum. However, SEMA No. 7 of 2014 was issued to maintain legal certainty by limiting PK to only one time. This study highlights the importance of the balance between justice and legal certainty in the Indonesian justice system
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Gomez, Gabriel de Jesus Gorjon, Eduardo Barajas Languren e Saul Adolfo Lamas Meza. "The constitutional paradigm of restorative justice in Mexico and its link with international law through conventionality control". Forensic Research & Criminology International Journal 9, n. 1 (22 luglio 2021): 39–45. http://dx.doi.org/10.15406/frcij.2021.09.00339.
Testo completoAbstract (sommario):
The present work aims to analyze the constitutional paradigm of restorative justice in Mexico in relation to the international instruments that are binding on it. The main international instruments to which Mexico is a signatory through the conventionality control that address mediation and restorative justice methodologies are glossed through the comparative method, to understand through a systematic analysis the international context in which the Mexican constitutional system he is immersed in relation to the topic of alternative justice.
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Bichkov, Іgor. "The Kelsen model of constitutional jurisdiction as the theoretical basis of the European system of constitutional justice". Law Review of Kyiv University of Law, n. 1 (15 aprile 2020): 131–36. http://dx.doi.org/10.36695/2219-5521.1.2020.25.
Testo completoAbstract (sommario):
The article is devoted to the study of the content of the model of constitutional jurisdiction proposed by H. Kelsen, which at one time actually became the theoretical basis of the modern European system of constitutional justice. It is stated that the model formulated by a well-known Austrian law theorist not only envisaged instrumental-institutional proposals for the creation of a new public authority, but also embodied the definite concept of common sense of law defined by Kelsen, which was based on the ideas of a hierarchical legal system acts of the Constitution as the law of the highest legal force. It is substantiated that the model proposed by H. Kelsen substantially outstripped the existing legal reality and was used almost in its purest form by most European countries, and in particular was directly reflected in the domestic model of constitutional jurisdiction.
It is noted that, according to Kelsen's concept in a number of papers, in particular in the Judicial Review of Legislation: A Comparative Study of the Austrian and American Constitutions, the constitutionality of legislation can be ensured in two separate ways, both of which were enshrined in the Austrian Constitution of 1920: the responsibility of the body that issued the unconstitutional norm and the non-application of the unconstitutional norm. Non-application of a constitutional rule could be achieved by giving law enforcement authorities the power to review the constitutionality of a rule they must apply in a particular case and refuse to apply it in that particular case, if there is reason to consider such a rule unconstitutional. A similar mechanism has actually been introduced in the United States. The fact that a law enforcement authority recognizes a general rule as unconstitutional and does not apply it in a particular case meant that that authority was empowered to revoke the general rule for a particular case, and only for a specific case, since the general rule as such (normative act) remains applicable and may be applied in other specific cases. The disadvantage of this fuse is that different law enforcement agencies may have differing views on the constitutionality of a law, whereby one authority can apply it as it considers constitutional, while another authority will refuse to apply it because it will see signs of unconstitutionality. The lack of unanimity in deciding whether a law is constitutional, that is, whether a constitution is violated, carries great danger for the authority of the constitution.
In most European countries, it is stated that H. Kelsen's concept was used almost in its purest form, with one exception: the powers to directly protect constitutional rights and freedoms were given to a separate judicial authority. The extension of the appropriate model of judicial constitutional control and the formation of constitutional courts fell in the second half of the twentieth century, when the need to prevent the return of Nazism caused a qualitatively new level of attention to the phenomenon of constitutional justice. The formation of new post-war constitutional-democratic regimes in Germany, Italy, Austria, and later in Spain and Greece, provided for the creation of a mechanism by conferring on the constitutional courts powers to protect constitutional rights and freedoms from usurpation of public power.
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GERASIMOVA, Evgeniya V. "THE RIGHT TO BE FORGOTTEN IN THE PRACTICE OF THE CONSTITUTIONAL JUSTICE BODIES OF THE RUSSIAN FEDERATION AND THE FEDERAL REPUBLIC OF GERMANY". Tyumen State University Herald. Social, Economic, and Law Research 6, n. 3 (2020): 170–87. http://dx.doi.org/10.21684/2411-7897-2020-6-3-170-187.
Testo completoAbstract (sommario):
The development of digital technologies affects the legal status of an individual. The task of constitutional justice is the constitutional interpretation of new legal phenomena such as the right to be forgotten. This article aims to analyze the right to be forgotten in the decisions of the Russian Constitutional Court and German Constitutional Court in a comparative aspect. The research methodology is primarily a dialectical method. This method helps the author to identify the content of the right to be forgotten, as well as to determine its role in relation to other constitutionally significant values. The comparative legal method is of particular importance for achieving the objectives of the research and helps to highlight the general and specific in the approaches of the courts to the concept of this right. This approach distinguishes the novelty of this research in comparison with other papers. The use of the dialectical and comparative legal research methods allows drawing the following conclusions. The distinctive feature of the right to be forgotten is its dualistic nature. On the one hand, this is a civil right associated with the right to privacy; on the other, it acts as a way to protect other constitutional rights (for example, the dignity of the individual). This right is not absolute. Some information may be of public interest. To resolve the issue of the prevailing constitutionally significant value in a particular case, the Russian Constitutional Court suggests using the method of finding a balance. The Federal Constitutional Court of Germany emphasized that the right to free personal development and dignity sometimes prevails over freedom of information, especially considering the time factor in the case, as well as the degree of harm caused to a person by links to information posted on the Internet. The German Federal Constitutional Court, characterizing the legal relationship regarding the exercise of the right to be forgotten, highlights that this is a relationship between private subjects with fundamental rights, and refers to the concept of the horizontal effect of fundamental rights (“mittelbare Drittwirkung”) developed in German constitutional law. This article concludes that the decisions of the Russian Constitutional Court and the Federal Constitutional Court of Germany on the right to be forgotten are the guidelines for other courts, as well as the legislator for further improving legal regulation. Taking into account the development of information technologies, the author believes that the constitutional courts will more than once turn to the digital aspects of the legal status of an individual and, in particular, the concept of the right to be forgotten.
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Brezhnev, Oleg V. "Evolution of the status of constitutional justice bodies in the Kyrgyz Republic". Vestnik Tomskogo gosudarstvennogo universiteta, n. 476 (2022): 233–47. http://dx.doi.org/10.17223/15617793/476/26.
Testo completoAbstract (sommario):
The article analyzes the main trends and features inherent in the evolution of the status of constitutional justice bodies in the Kyrgyz Republic. The aim of this research is to identify both the common features characteristic of this process in the countries existing in the post-Soviet space and the specific ones due to the peculiarities of the state and legal development of Kyrgyzstan. In the course of the research, a comparative legal method was used to analyze individual elements of the legal status of the Constitutional Court and the Constitutional Chamber of the Supreme Court of Kyrgyzstan (organization, competence, status of judges, legal force of decisions, etc.) in accordance with the constitutions of the Kyrgyz Republic of 1993, 2010, and 2021, the laws in force that regulated the organization and procedure for the implementation of constitutional justice, as well as when compared with the development of this institution in the Russian Federation and other CIS member states. In addition, analytical, formal legal and other methods were used, which made it possible to formulate the main conclusions. Based on a systems analysis of the legislation of the Kyrgyz Republic on constitutional justice, decisions of the Constitutional Court and the Constitutional Chamber of the Supreme Court of Kyrgyzstan, a study of the works of leading Russian (N.V. Vitruk, A.A. Klishas, I.A.Kravets, M.A. Mityukov, et al.) and Kyrgyz (A.A. Arabaev, B.I. Borubashov, R.M. Myrzalimov, B.T. Toktobaev, et al.) scientists in this field, the main tasks to improve the organization and implementation of constitutional justice in Kyrgyzstan were identified. These include: consistent strengthening of the independence of the Constitutional Court from other public authorities; a more detailed delineation of the powers of the Constitutional Court and other courts related to normative control, taking into account the processes of the formation of administrative justice; a more detailed regulation of the procedures of constitutional proceedings, including procedural differentiation of the procedure for exercising various powers of the Constitutional Court, modification of the norms on the legal force, and the procedure for the execution of its acts, including recognition of a certain discretion of the Court in determining measures necessary for the implementation of its decisions; improving the procedures for written proceedings and expanding the further use of information and communication technologies in constitutional proceedings, etc. The implementation of these tasks should be associated with general measures to increase the level of political and legal culture in society.
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Sheremeta, S. A. "Application of the Constitution of Ukraine by courts in the administration of justice through conform interpretation of laws". Analytical and Comparative Jurisprudence, n. 6 (16 dicembre 2024): 189–93. https://doi.org/10.24144/2788-6018.2024.06.28.
Testo completoAbstract (sommario):
The article clarifies the nature of the conformal interpretation of legislation in the meaning agreed with the constitution; establishes the origins of conformal interpretation in a comparative perspective; compares the features of the implementation of conformal interpretation, which can be carried out both by the Constitutional Court of Ukraine and by courts of general jurisdiction. It is concluded that the interpretation conformal (agreed) with the Constitution is one of the forms of application of the Constitution by courts in the administration of justice. Conformal interpretation is genetically related to the embodiment in the doctrine of German law and is reflected in the idea that a law cannot be recognized as unconstitutional if there is a variant of its reading (interpretation, interpretation) agreed with the constitution. Conformal interpretation in the context of the experience of Germany is also closely related to the idea of the horizontal effect of human rights, as well as the so-called «Drittwirkung». Such an interpretation can sometimes be debatable from the point of view of judicial activism, if the interpretation option chosen is not consensual and competes with the legitimacy of the legislative branch. Unfortunately, it can also cause conflicts between different courts (for example, between the constitutional and supreme courts). After all, often it is the constitutional courts that carry out conformist interpretation. At the same time, conformist interpretation is one of the important ways to avoid gaps. In the Ukrainian version, conformist interpretation can be associated with both the practice of the Constitutional Court of Ukraine and courts of general jurisdiction. As for the Constitutional Court, the basis is Part 3 of Art. 89 of the Law “On the Constitutional Court of Ukraine” (“If the Court, considering a case on a constitutional complaint, recognized the law of Ukraine (its provisions) as being in accordance with the Constitution of Ukraine, but at the same time found that the court applied the law of Ukraine (its provisions), interpreting it in a manner that does not comply with the Constitution of Ukraine, then the Constitutional Court shall indicate this in the operative part of the decision”). However, this article has never been directly applied. It seems quite logical that conform interpretation should be carried out not only by the Constitutional Court of Ukraine, but primarily by courts of general jurisdiction. Courts of general jurisdiction have broad opportunities to apply the norms of the Constitution when deciding cases and interpreting current legislation.
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Alexeeva, Tatiana. "Origins of constitutional justice in Spain (Court of Constitutional Guarantees in Republican Spain)". Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2024, n. 2 (28 giugno 2024): 10–23. http://dx.doi.org/10.35750/2071-8284-2024-2-10-23.
Testo completoAbstract (sommario):
Introduction. The article deals with the history of the establishment of the body of constitutional justice in Spain during the Second Republic, identifying its legal origins, its legal status under the 1931 Constitution, and revealing its novelties under the Organic Law of 1933. Methods. The research is based on the application of comparative-legal, system-structural and historical methods of research. Particular attention is drawn to the formal-dogmatic analysis of legal acts and records management materials. Results. The article is based on the study of legislation, records of the Court of Constitutional Guarantees, its acts and scientific literature. The author focuses on the problem of adopting foreign models, which has been the subject of debate in the Constituent Cortes. The author suggests that the Austrian model and its modifications, made with regard to the specifics of Spanish political realities, determined the status of the Court of Constitutional Guarantees and the characteristic features of its activity. The attention is drawn to the analysis of the order of formation of the Court and its competence on the main drafts proposed to the founders for discussion, their final legislative formulation, as well as the implementation of the norms in practice. Conclusion. The importance of the creation and its functioning, despite the critical assessments of scholars, is determined by the results of its work and its place in the history of constitutional justice - it was the third constitutional court in Europe, and the norms of the constitutional legislation of 1931-1933 regulating its legal status became an important source of the provisions of the current Spanish legislation on the Constitutional Court.
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Daly, Tom Gerald. "“Good” Court-Packing? The Paradoxes of Constitutional Repair in Contexts of Democratic Decay". German Law Journal 23, n. 8 (ottobre 2022): 1071–103. http://dx.doi.org/10.1017/glj.2022.75.
Testo completoAbstract (sommario):
AbstractU.S. debates on reforming the Supreme Court, including controversial arguments to break the norm against court-packing to repair the democratic system, have generally focused on historical precedents and the domestic system, with scant comparative analysis. However, the U.S. debate raises fundamental questions for comparative constitutional lawyers regarding the paradoxes of constitutional repair in contexts of democratic decay, framed here as a distinct category of constitutional transition. This study argues that sharpening our analytical tools for understanding such reforms requires a novel comparative and theoretical approach valorizing the experiences of Global South states and drawing on, and connecting, insights across four overlapping research fields: Democratic decay, democratization, constitution-building, and transitional justice. The article accordingly pursues comparative analysis of the legitimacy of court-packing through case-studies of Turkey and Argentina to offer a five-dimensional analytical framework: (i) democratic context; (ii) articulated reform purpose; (iii) reform options; (iv) reform process; and (v) repetition risk. In doing so, this article seeks not to present a rigid check-list for evaluating the legitimacy of contested reforms, but rather, to foreground important dimensions of reforms aimed at reversing democratic decay as an emergent global challenge for public law meriting closer attention.
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Dolzhikov, A. V. "The constitutional test of necessity: problem statement". Law Enforcement Review 6, n. 1 (24 marzo 2022): 124–33. http://dx.doi.org/10.52468/2542-1514.2022.6(1).124-133.
Testo completoAbstract (sommario):
The subject-matter of the research is the constitutional test of necessity. This element of proportionality could be found in doctrine and case-law in the form of metaphors. The necessity as a prong of proportionality consists in testing the available alternatives in comparison with the measures that the legislator has chosen to achieve public aims. The notion of a least restrictive means can be used as a synonym for this element of proportionality. Although this term is cumbersome, it more precisely defines the nature of constitutional litigation, where the admissibility of interference with fundamental rights is assessed.The purpose of the research is to argue that this element of proportionality implies the assessment of the least restrictive alternatives for the rights-holder in order to achieve the goal chosen by the legislator.The methodology of research includes the method of analogy. Accordingly, the analogical reasoning is used in constitutional adjudication when testing necessity of legislative measures, but not the methods of logical subsumtion or judicial balancing. The sources of such analogy can be the rules of international law, ordinary legislation and comparative legal materials.The main results of the research and the scope of their application. The expression necessity is widely used in international law and ordinary legislation. Such approaches are relevant to constitutional adjudication. Thus, the ultima ratio principle, which initially appears in criminal and administrative law, acquires universal application in constitutional justice. This criterion, which requires the use of the most severe legal measures only as a last resort, with the ineffectiveness of softer alternatives, can be extended to the constitutionalization of other branches of legislation.The test of necessity, which is often expressed in metaphors, in the case-law of constitutional justice is based on the method of analogy. In the decisions of the constitutional justice bodies, the least restrictive means are often mentioned in comparison with those which were originally chosen by the legislator. At the same time, the discovered alternatives should be equally or at least minimally suitable in comparison with the existing legislative solutions. Comparative law, international law, or ordinary legislation are often an auxiliary source for constitutional judges to identify and formulate least restrictive alternatives.Conclusions. The value of the analogical reasoning, including the appeal of constitutional justice to comparative law materials, lies in the possibility of identifying some experimental legal regimes. Moreover, the perception of specific alternatives, their clarification or modification remains within the discretionary powers of the legislature. Thus, avoiding the well-known counter-majoritarian difficulty, constitutional justice conducts a dialogue with the parliament, and in the end, contributes to the optimal implementation of fundamental rights.
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Patrono, Mario. "Protection of Fundamental Rights by Constitutional Courts - A Comparative Perspective". Victoria University of Wellington Law Review 31, n. 2 (1 maggio 2000): 401. http://dx.doi.org/10.26686/vuwlr.v31i2.5952.
Testo completoAbstract (sommario):
"Man", said Benjamin Franklin, "is a tool-making animal". A major contribution of 20th century Western legal thought to tool-making was possibly the publication in 1914 of Reichgesetz und Landesgesetz nach der österreichen Verfassung1 by Hans Kelsen, a Czech lawyer, but Austrian by adoption. Kelsen is noted for his "pure theory of law". By conferring upon a special constitutional court the exclusive power to rule on the constitutionality of legislation and to refuse to enforce legislation that in its judgment violated the constitution, Kelsen found a way for the United States pattern of constitutional adjudication (as established in 1803 by Chief Justice John Marshall in Marbury v Madison) to work in countries which have (as in the United States) a written and "rigid" Basic Law, and even where the doctrine of precedent does not operate.This is a very short history of the development of that Kelsen "tool" and an evaluation of it.
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Garifullina, Alsu R., e Larisa V. Yun. "Constitutional Justice in Russia and Croatia: A Comparative Legal Analysis". Russian judge 5 (13 maggio 2020): 39–43. http://dx.doi.org/10.18572/1812-3791-2020-5-39-43.
Testo completo
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Lenaerts, Koen. "The European Court of Justice and the Comparative Law Method". European Review of Private Law 25, Issue 2 (1 maggio 2017): 297–311. http://dx.doi.org/10.54648/erpl2017022.
Testo completoAbstract (sommario):
Abstract: The European Court of Justice (the ‘ECJ’) must ensure the uniform interpretation of the laws of the EU, whilst deferring to the common constitutional traditions of the Member States and, where necessary, allowing room for value diversity. To that end, the authors of the Treaties vested the ECJ with the constitutional authority to engage in a comparative study of the laws of the Member States. The purpose of this article is thus to explore the comparative law method by examining, first, that constitutional authority, second, the ‘EU federal common law’, third, the relationship between that method and the extent of normative convergence between the legal orders of the Member States and, fourth, the so-called ‘evaluative approach’ adopted by the ECJ. It is submitted that the comparative law method is a valuable interpretative tool that enables the ECJ to strike a dynamic balance between ‘unity’ and ‘diversity’. Résumé: La Cour de justice (‘CJ’) doit assurer l’interprétation uniforme du droit de l’Union européenne, tout en respectant les traditions constitutionnelles communes aux Etats membres et, si nécessaire, en faisant place à la diversité. Dans ce but, les auteurs des traités ont conféré à la CJ l’autorité constitutionnelle de procéder à une étude comparative des droits des Etats membres. L’objectif de cet article est, dès lors, d’examiner la méthode comparative en étudiant, premièrement, cette autorité constitutionnelle, deuxièmement, la 'EU federal common law', troisièmement, le rapport entre cette méthode et le degré de convergence normative entre les ordres juridiques des Etats membres et, quatrièmement, l’approche dite évaluative’, adoptée par la CJ. Il en est conclu que la méthode comparative est un outil précieux d’interprétation qui permet à la CJ de trouver un équilibre dynamique entre ‘unité’ et ‘diversité’.
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Vatamaniyk, A. "Dialogical theory of constitutional jurisdiction". Analytical and Comparative Jurisprudence, n. 6 (18 febbraio 2023): 53–55. http://dx.doi.org/10.24144/2788-6018.2022.06.9.
Testo completoAbstract (sommario):
The metaphor of dialogue between constitutional jurisdictions and legislatures was born in Canada to describe the role of the Supreme Court after the adoption of the Charter of Rights and Freedoms in 1982. Then he was engaged in the Anglo-American academic space of comparative constitutional law. It is the relationship of the constitutional judiciary to the deliberative paradigm that raises questions, as it is difficult to see how the supervisory function of the judge and his authority to repeal or amend legislative texts can be anything other than a transfer within the limits of the separation of powers. A famous argument in the 1803 U.S. Supreme Court decision Marbury v. Madison: Justice Marshall postulated that the existence of a written Constitution, supreme since its adoption by a sovereign people, implied a judicial guarantee, even if the text did not state it, which applies to all legal acts. including the law. Constitutional justice developed mainly a century later, and then especially at the end of World War II, as did the theory that accompanied it. Those proposed in the context of continental Europe by the Austrian legal theorist Hans Kelsen, who participated in its creation in Austria in 1920. Schematically, the legal order is a hierarchically structured system of norms, each norm of which is valid when it is produced by a norm of a higher rank, up to the Constitution. The judge checks the validity of the rules within the system; A constitutional judge, whether a court specializing in this control or an ordinary judge headed by a universal Supreme Court, checks the conformity of all or part of the norms with the constitutional norm, thus performing an essential function in structuring the legal order. Outside the European Union, the dialogue metaphor has been reused in two contexts where it has played two very different roles, in the space of English-language comparative law and then in America. Then the theory of democratic deliberation was extended to the constitutional judge. In the dialogic conception, as in other variants of constitutionalism understood as cooperative, the case for constitutional revision derives from the ability of courts to help counter failures of inclusiveness and responsiveness to the political process, framed here in terms of "blind spots" and "inertia weights."
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Kopcha, V. V. "Legal security of the protection of judicial constitutional control: general guidelines for understanding". Uzhhorod National University Herald. Series: Law 1, n. 82 (16 maggio 2024): 184–90. http://dx.doi.org/10.24144/2307-3322.2024.82.1.27.
Testo completoAbstract (sommario):
This article is devoted to the study of the new courts, which found a common European language of constitutionalism, which they not only learned to pronounce, but also could express new ideas in this language. At the same time, obtaining international standards is much more than adaptation, it was a mutual process. The real exchange of ideas was supported by the unique publicity that the international political situation offered to the new courts. Although only the Constitutional Court of South Africa is bound by the Constitution to consider foreign constitutional cases, constitutional courts today usually operate on a comparative law basis. On the other hand, László Szółom recalled a new mechanism of international cooperation: the Conference of European Constitutional Courts and the Commission for Democracy through Law (the «Venice Commission»). The integrative influence of the Venice Commission is indeed important and serves the globalization of constitutional justice. In addition, speaking about the specifics of constitutional control in Ukraine, it should be noted that as of 2019 it is a full-fledged special court, not a political body. This direction follows both from its functions and scope of jurisdiction, and from the analysis of constitutional guarantees for it as a collegial body and judges. In this context, the position regarding the understanding of constitutional control as an important component (one of the mechanisms) of legal protection of the constitution is valuable. Research in this direction is a productive direction of the development of legal science. The established courts have already found a common European language of constitutionalism, which they not only learned to pronounce, but also could express new ideas in this language. At the same time, obtaining international standards is much more than adaptation, it was a mutual process. The real exchange of ideas was supported by the unique publicity that the international political situation offered to the new courts. Although only the Constitutional Court of South Africa is bound by the Constitution to consider foreign constitutional cases, constitutional courts today generally operate on a comparative law basis. On the other hand, László Szółom recalled a new mechanism of international cooperation: the Conference of European Constitutional Courts and the Commission for Democracy through Law («Venice Commission»). The integrative influence of the Venice Commission is indeed important and serves the globalization of constitutional justice.In addition, speaking about the specifics of constitutional control in Ukraine, it should be noted that as of 2019, it is a full-fledged special court, and not a political body. This conclusion follows both from its functions and scope of jurisdiction, and from the analysis of constitutional guarantees for it as a collegial body and judges. In this context, the position regarding the understanding of constitutional control as an important component (one of the mechanisms) of legal protection of the constitution is valuable. Research in this direction is a productive direction of the development of legal science. The updated judicial system has already found a common European language of constitutionalism, which they not only learned to pronounce, but also could express new ideas in this language. At the same time, obtaining international standards is much more than adaptation, it was a mutual process. The real exchange of ideas was supported by the unique publicity that the international political situation offered to the new courts. Although only the Constitutional Court of South Africa is bound by the Constitution to consider foreign constitutional cases, constitutional courts today generally operate on a comparative law basis. On the other hand, László Szółom recalled a new mechanism of international cooperation: the Conference of European Constitutional Courts and the Commission for Democracy through Law («Venice Commission»). The integrative influence of the Venice Commission is indeed important and serves the globalization of constitutional justice. In addition, speaking about the specifics of constitutional control in Ukraine, it should be noted that as of 2019, it is a full-fledged special court, and not a political body. This conclusion follows both from its functions and scope of jurisdiction, and from the analysis of constitutional guarantees for it as a collegial body and judges. In this context, the position regarding the understanding of constitutional control as an important component (one of the mechanisms) of legal protection of the constitution is valuable. Research in this direction is a productive direction of the development of legal science.
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Kravets, I. A. "The cult of the written constitution and the dilemmas of constitutional changes: scientific approaches and practice of deliberative constitutionalism". Law Enforcement Review 8, n. 2 (21 giugno 2024): 33–42. http://dx.doi.org/10.52468/2542-1514.2024.8(2).33-42.
Testo completoAbstract (sommario):
The subject. The article discusses the scientific foundations of the cult of a written constitution, the relationship between the principles of the supremacy of the constitution and fidelity to the constitution, on the one hand, and the forms and methods of constitutional changes in modern democratic states, on the other hand.The aim of the article is to reveal the dilemmas of legal constitutionalism in the context of the formation of doctrinal foundations and the practice of applying deliberative and dialogical constitutionalism in modern jurisprudence and the practice of constitutional development.Methodology. The author uses deliberative and epistemological approaches, methods of formal-legal, concrete-historical, comparative constitutional-legal and complex analysis. Main results, scope of application. A special field of knowledge is being formed, which is called “comparative constitutional changes”. The scientific school of constitutionalism proposes to see the purpose of this field of knowledge in the development and improvement of forms and methods of participation of the people, citizens, civil society, professional and expert opinion in constitutional changes. The study provides a critical constitutional analysis of the peculiarities of the nature of all-Russian voting and the legal positions of the body of constitutional justice in Russia on the issue of all-Russian voting, prospects for improving the principle of popular sovereignty and the institutions of citizen’s participation, civil society, professional and expert opinion in the Russian constitutional doctrine and in legislation.Conclusions. The cult of a written constitution dominates in the contemporary world of democratic constitutional states that differ in socio-economic and political-legal indicators of their development on the geopolitical and legal map of the planet. In the practice of contemporary states, except for the adoption of a draft new constitution, the most common practice is to express individual preferences (“for” or “against”) citizens regarding the content of each amendment or several interrelated amendments. The theory of deliberative constitutionalism is multifaceted and is intended to scientifically substantiate the prospect of expanding the constitutional basis for democratic decision-making and creating a democratic basis for constitutional change. Deliberative constitutionalism, as a theory of engagement in constitutional communication, serves the purpose of seeking collective wisdom in matters of constitutional design and constitutional change. The cult of a written constitution is combined with an inclusive constitutional paradigm for the development of democratic states, which involves the development of deliberative and imperative forms of citizen’s participation. Russian constitutionalism needs to further expand popular participation in the development and discussion of decisions of a constitutional nature.
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Shemchuk, Viktor, Taras Khmaruk, Olha Stohova, Nataliia Shamruk e Catherine Karmazina. "Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conflicts". Cuestiones Políticas 40, n. 75 (29 dicembre 2022): 405–30. http://dx.doi.org/10.46398/cuestpol.4075.26.
Testo completoAbstract (sommario):
The objective of the article was to consider the current state and prospects of the transformation of the institution of constitutional justice in the course of armed conflicts. Observational and comparative methods were the main methodological tools. The research showed that constitutional courts must apply a specific method of judicial constitutional control during armed conflicts. Most of the complaints and appeals of the population to the constitutional courts seek clarifications on the constitutionality of the rules on social guarantees of the military, the rights of refugees. Constitutional interpretation of legislative provisions of the Republic of Azerbaijan, consideration of complaints of constitutional courts of Germany and Ukraine are examples of countries' reactions to armed conflicts. The conclusions confirm the need to transform the institution of constitutional justice, which becomes the main defender of the constitutional system and its principles during armed conflicts. In this vein, it is urged to increase the rate of scientific capital in the judiciary to improve the process of reform of the Constitutional Court in these difficult conditions experienced by Ukraine.
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Singh, Tanushree, e Akash Singh Thakur. "Administration of Justice: Judicial Delays in India". Indian Journal of Public Administration 65, n. 4 (18 novembre 2019): 885–96. http://dx.doi.org/10.1177/0019556119873451.
Testo completoAbstract (sommario):
In unique as well as comparative terms, the Indian judiciary—an integrated federal hierarchy with federal, state and district courts set up under the Constitution—fares better than the legislative and executive branches of the governments in India as well as those in other countries, especially in the Global South, in terms of impartiality, efficiency and independence. This article seeks to take a closer analytical look at an aspect of judicial administration, which is often glossed over in the existing literature in highlighting the issues of autonomy and constitutional adjudication and constitutional law on fundamental rights of citizens, federal division of powers, separation of powers, judicial review and the like. In this article we focus on the perennial and notorious judicial delays, their causes and remedial reforms. Delays in speedy disposal of cases occur mainly due to a large number of vacancies that remain unfilled partly due to fiscal reasons, administrative inaction and tension between the executive and the superior courts, lack of adequate operational budgetary allocations and physical infrastructure and frequent postponement of hearings until next dates set for reasons not always genuine. We have suggested reforms in the administration of the courts as well as alternate forums like Lok Adalats, e-judicial governance, ethical discourse in the Bar and the Bench as well as the civil society.
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Polovchenko, K. A. "The Institute of Judicial Constitutional Control in the Post-Soviet States". MGIMO Review of International Relations, n. 3(30) (28 giugno 2013): 116–20. http://dx.doi.org/10.24833/2071-8160-2013-3-30-116-120.
Testo completoAbstract (sommario):
The article presents a comparative analysis of the European and the American model of judicial constitutional control. Exploring the reasons for the implementation of the European model of the constitutional control in the post-Soviet States of Eastern Europe and the CIS, the author comes to the conclusion that the introduction of the institution of the constitutional justice of the European design was a logical step in the establishment of constitutionalism in the region. Experience of the Western European States was taken into consideration while building the system of constitutional justice in the post-Soviet States of Eastern Europe and the CIS. However, we are not talking about blind copying of Western European experience, but rather of its creative processing taking into account the specifics of a particular State and its legal system.
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Venter, Francois. "Utilizing constitutional values in constitutional comparison". Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 4, n. 1 (10 luglio 2017): 19. http://dx.doi.org/10.17159/1727-3781/2001/v4i1a2878.
Testo completoAbstract (sommario):
We are living in an era in which constitutional law has become a comparative science. A cogent, generally accepted methodology for constitutional comparison, however does not exist. There can, it is therefore submitted, be no such thing as a universal, monolithic science or discipline of comparative law, be it in the field of private or of public law. On the other hand, juridical comparison done unscientifically will not yield the fruits of useful knowledge. The law in general is replete with unspecific notions such as justice, reasonableness, public interest, boni mores, and many others. It should therefore not be disturbing to find that values are often foundational to the operation and application of constitutional law. The values underpinning different constitutional systems may be useful as a tertium comparationis in a comparative exercise. This however requires a penetrating consideration of the foundations of the systems being compared. In this contribution "a small comparative exercise" is undertaken by way of demonstration of the method. The South African constitutional provisions relating to equality and affirmative action are set against the background of the relevant norms and practices in the United States of America and Canada. This produces some useful insights:in the USA equality increasingly underpins a strict proscription of discrimination, thus shrinking the scope for justifiable affirmative action programmes;the South African law relating to discrimination and upliftment of the disadvantaged was clearly influenced by, and is therefore better understood against the background of, the equivalent arrangements inCanada, which was in its turn possibly conceived against the backdrop of early developments in this regard in the USA;the Canadian doctrine and law of the constitution deals with affirmative action as an exception to the prohibition of discrimination and does not favour private affirmative action programmes;the South African approach seeks on the one hand to promote equality as a near-absolute prohibition of discrimination, while on the other handaffirmative action is projected not as an exception to nondiscrimination, but as a means of achieving equality;whereas the identification of disadvantage in the USA and Canada tends to focus on discrete and insular minorities, the South African Constitution deals with an obvious reality of past disadvantage of a substantial majority, thus probably giving preferential programmes in South Africa a different character. It is concluded that "comparing with values" has, at the very least, the potential of revealing which foreign sources can justifiably be used locally as authoritative or pursuasive references, and which not.
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SAMARARATNE, Dinesha. "From South Africa to Sri Lanka: Prospects of Travel for ‘Transformative Constitutionalism’". Asian Journal of Comparative Law 15, n. 1 (11 maggio 2020): 45–68. http://dx.doi.org/10.1017/asjcl.2020.4.
Testo completoAbstract (sommario):
AbstractWhat lessons can we learn from the way in which the South African experience of transformative constitutionalism was invoked in Sri Lanka's recent constitutional reform experience? What conditions allow experiences of transformative constitutionalism to travel? In this article, I respond to these two questions, using Frankenberg's idea of a ‘layered approach’ in comparative constitutional law. My analysis affirms that in the comparative enterprise, a thick explanation that allows each experience to ‘speak for itself’ heightens the value of a comparative example. In the case of South Africa, I demonstrate that transformative constitutionalism is in fact a specific genre of constitutionalism. It demands attention not only to substantive constitutional guarantees and institutional design, but also to the process of constitutional reform. Moreover, effective measures for transitional justice are an essential component of transformative constitutionalism. A closer reading of the South African experience that paid attention to these factors would have led to better use of this experience in Sri Lanka's post-war constitutional governance.
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KARPENKO, Konstantin V. "DISSENTING OPINION IN THE CONSTITUTIONAL JUSTICE AND THE EVOLUTION OF LEGAL SCIENCE". Tyumen State University Herald. Social, Economic, and Law Research 7, n. 4 (2021): 167–82. http://dx.doi.org/10.21684/2411-7897-2021-7-4-167-182.
Testo completoAbstract (sommario):
The article deals with the influence of the dissenting opinions of constitutional judges on the development of legal science. This issue is usually very important for constitutional and legal science as its understanding and practical resolution influence the authority of constitutional justice in a state. The dissenting opinion of any judge is their right to express their reasoned disapproval of the rendered decision, formulated in writing and attached to the court decision. Dissenting opinions in constitutional proceedings are of increased importance, because decisions of constitutional courts are aimed to protect law and order in general and are addressed to entire population. The dissenting opinions of constitutional judges contribute to the development of legal science in two aspects. On the one hand, they can contain new ideas, theories and approaches to law, with the help of which new categories and concepts are introduced into scientific discussion. On the other hand, dissenting opinions make often wide references to foreign experience in resolving legal conflicts. In this case, dissenting opinions fit into the framework of comparative legal research and allow taking into account the judicial practice and judicial argumentation of other countries and legal systems. Both aspects contribute to the expansion of the doctrinal base of legal science, pose and solve new problems, increase the need for scientific discussion. This study is based on a formal-dogmatic scientific method, which is aimed at disclosing the true meaning of legal positions of judges presented in dissenting opinions. A systematic method is also used, which allows to identify and classify single areas of scientific knowledge. The author also applies the comparative legal method, which consists in comparing different legal positions in the dissenting opinions of judges. The novelty of the research is in determination of contribution of dissenting opinions of constitutional judges to the development of legal science.
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Safferling, Christoph, e Elisa Hoven. "Foreword: Plea Bargaining in Germany after the Decision of the Federal Constitutional Court". German Law Journal 15, n. 1 (1 febbraio 2014): 1–4. http://dx.doi.org/10.1017/s2071832200002790.
Testo completoAbstract (sommario):
Criminal procedure is most critical for the rights of the accused. It does not surprise that criminal procedural issues often give rise to constitutional complaints by convicted persons. Yet far beyond the ordinary cases, the latest opinion of the Federal Constitutional Justices on the constitutionality of the so-called deal-proceedings according to § 257c of the German Criminal Procedure Code (StPO) has caused much attention. The constitutional complaints, which kicked off the proceedings in Karlsruhe, forced the Justices to address the very basis of criminal procedure, its structure and traditional foundations. The decision of 19 March 2013, however, testifies the disunity amongst the justices and their anxiety not to trigger a stampede in the criminal justice system. Even if the outcome is rather unspectacular, the decision is nevertheless one of the most important and fundamental judicial documents concerning criminal procedure of the last years. Because of the centrality of the issue and its relevance also for comparative criminal law, we have decided to provide this topic with the broad room it deserves and put together a special issue on the “deal-decision” of the German Federal Constitutional Court.
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QERIMI, QERIM. "The contents and contours of contemporary cosmopolitan constitution-making: Immanuel Kant in the twenty-first century". Global Constitutionalism 8, n. 2 (13 giugno 2019): 227–69. http://dx.doi.org/10.1017/s2045381719000078.
Testo completoAbstract (sommario):
Abstract:This article articulates legal and practical discourse that seek to apply and extend the classic cosmopolitan ideals of Immanuel Kant to the evolving practice and reality of the twenty-first century. It identifies five major strands through which cosmopolitan law ideals express themselves in contemporary constitution-making, forming in turn the major composite cosmopolitan contents. In some sense, the proposed framework re-imagines Kant in the twenty-first century, mirroring a conjoined classic and contemporaneous concept of cosmopolitan constitution-making. Kantian cosmopolitanism is reinterpreted by way of conjoining the classic cosmopolitan moral and normative principles of universal freedom, human worth and global justice to emerging and actual contemporaneous constitution-making trends such as using international or comparative foreign models as a basis for constitutional design, using international law and foreign domestic law in national constitutional interpretation, or using regional or international bodies of adjudication and their jurisprudence as a constitutionally mandated source of law. The outlined framework seeks to transcend the occasional historical setbacks and sceptical objections to cosmopolitanism, while admitting their continuous, albeit gradually unobtrusive presence. This framework is naturally predisposed to be deferential to a bold imaginative project, such as the one embodied in the Kantian vision of cosmopolitanism, which is both rooted in and survived the historical forces that ran contrary to the cosmopolitan ideals, to reach a point of its ever closer materialisation.
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Daswanto, Daswanto. "Legal Policy of Pretrial Arrangements in Criminal Procedure Law in Indonesia by the Constitutional Court". Interdiciplinary Journal and Hummanity (INJURITY) 3, n. 11 (22 novembre 2024): 755–67. http://dx.doi.org/10.58631/injurity.v3i11.1309.
Testo completoAbstract (sommario):
This research examines the legal policy direction of pretrial arrangements in Indonesia's criminal procedure law, focusing on Constitutional Court Decisions Number 21/PUU-XII/2014, 102/PUU-XIII/2015, and 66/PUU-XVI/2018. These decisions have significantly shaped the evolution of pretrial provisions, ensuring alignment with constitutional principles of justice, legal certainty, human rights protection, and simple, fast, low-cost justice. Through normative legal research employing statutory, conceptual, and case-based approaches, the study analyzes how the Constitutional Court's rulings address ambiguities in existing norms, enhance judicial oversight, and strengthen the protection of suspects' rights. Findings indicate that the Constitutional Court’s decisions aim to refine pretrial norms by expanding judicial authority, clarifying procedural ambiguities, and balancing human rights protection with efficient judicial processes. The research underscores the role of legal politics in harmonizing criminal procedural law with evolving societal and legal demands, offering insights for further reforms to uphold justice and human dignity. Future research could explore comparative analyses, implementation challenges, and the integration of digital technologies to enhance the efficiency and equity of pretrial systems.
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Khandanyan, Rafik. "Autonomous and sectoral perception of the concept of "justice" and its relation to judicial control". Edelweiss Applied Science and Technology 8, n. 5 (16 settembre 2024): 829–33. http://dx.doi.org/10.55214/25768484.v8i5.1747.
Testo completoAbstract (sommario):
The present study delves into the complex interrelationship between the notions of "justice" and "judicial control," examining their independent and sectoral meanings both inside and outside of the Armenian legal system. Despite the fact that the terms are frequently used synonymously, this study aims to define their specific functions, especially with relation to administrative and constitutional law. The research endeavors to redefine the extent of judicial control by means of a critical analysis of Armenian constitutional provisions and a wider framework of international legal perspectives. It presents judicial control as a crucial, yet independent, function of justice. It looks at how the idea of judicial control has changed over time and the various interpretations it has received in various legal systems, drawing on historical examples. The paper examines the typologies of judicial tasks using a combination of theoretical and comparative legal techniques, highlighting important differences between jurisdictional and non-jurisdictional judicial operations. The argument for the constitutional concept of justice's wider application than just settling legal disputes receives a lot of attention. The study shows that judicial control should be seen as a fundamental component of justice and essential to maintaining the rule of law, rather than as a secondary or auxiliary role, by looking at justice from a synoptic perspective. The article ends with helpful suggestions for improving judicial functions. It suggests that future legal changes should consider how justice is changing and how closely it is linked to judicial control in both the international and Armenian legal systems.
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Medawatte, Danushka S. "Grasping at Straws: Judicial Review of Legislation in Sri Lanka". ICL Journal 13, n. 3 (25 febbraio 2020): 281–306. http://dx.doi.org/10.1515/icl-2019-0002.
Testo completoAbstract (sommario):
AbstractIn this paper, I attempt to examine the evolution of judicial review of legislation in Sri Lanka with a view to better understanding how it has impacted the democratic fabric and constitutional matrix of Sri Lanka. The impact that judicial review of legislation has had on rights jurisprudence, enhancement of democracy, prevention of persecution against selected groups are analysed in this paper in relation to the Ceylon Constitutional Order in Council of 1946 (‘Soulbury’ Constitution) and the two autochthonous constitutions of Sri Lanka of 1972 and 1978. The first part of the paper comprises of a descriptive analysis of judicial review of legislation under the three Constitutions. This is expected to perform a gap filling function in respect of the lacuna that exists in Sri Lankan legal literature in relation to the assessment of the trends pertaining to judicial review of legislation in Sri Lanka. In the second part of the paper, I have analysed decided cases of Sri Lanka to explore how the judiciary has responded to legislative and executive power, and has given up or maintained judicial independence. In this respect, I have also attempted to explore whether the judiciary has unduly engaged in restraint thereby impeding its own independence. The third part of the paper evaluates the differences in technique and stance the judiciary has adopted when reviewing draft enactments of the national legislature and when reviewing draft or enacted statutes of Provincial Councils. From a comparative constitutional perspective, this assessment is expected to provide the background that is essential in understanding the island nation’s current constitutional discourse, transitional justice process, and its approach to human rights.