Artykuły w czasopismach na temat „Constitutional”
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de Raadt, Jasper. "Contested Constitutions". East European Politics and Societies: and Cultures 23, nr 3 (5.05.2009): 315–38. http://dx.doi.org/10.1177/0888325409333192.
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What were the effects of constitution-making procedures on the acceptance of the new “rules of the political game” in postcommunist Central Europe? This article sets out to scrutinise the increasingly popular claim among politicians and scholars of democratisation that inclusiveness and popular involvement in constitution-making processes enhance a constitution's legitimacy. The concept of constitutional conflict, referring to political contestation over the interpretation and application of constitutional relations among state institutions, is introduced as a way to assess constitutional acceptance among politicians. The investigation concentrates on constitutional conflict patterns during the five years following constitution-making in seven Central European countries: Bulgaria, the Czech Republic, Estonia, Hungary, Poland, Romania, and Slovakia. Constitution-making procedures varied substantially among the cases, as did the intensity and timing of constitutional conflict. The article finds that differences in constitution-making procedures do not necessarily determine the legitimacy of constitutions among political elites. Instead, ambiguity on the allocation of formal competencies among political actors and increasing political tensions between pro-reform and anti-reform parties during the early 1990s proved to be more important triggers of constitutional conflict. Accordingly, studies on constitution-making and democratisation should focus less on procedural aspects and take into account the fuzziness of important constitutional provisions and the extent to which constitutions can survive periods of intense political polarisation.
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Marwiyah, Siti, M. Syahrul Borman, Ruba'ie Ruba'ie, M. Chotib Ramadhani, Retno Saraswati i Non Naprathansuk. "The Educational Role of The Constitutional Court in Compliance of Indonesian Citizens". LAW REFORM 19, nr 1 (11.08.2023): 148–68. http://dx.doi.org/10.14710/lr.v19i1.53971.
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The Constitutional Court (MK) has a strategic position, authority, and obligation to determine the future of the Indonesian nation. This study aims to examine the educational role of the Constitutional Court in developing a constitutional understanding of Indonesian citizens constitutionally. This research used doctrinal legal research method, a process to find the rule of law, legal principles, and legal doctrines to answer the legal problems faced. The results showed the educative role of the Constitutional Court in fostering constitutional understanding of Indonesian citizens by creating programs to promote constitutional understanding of Indonesian citizens, i.e.: increasing the understanding of citizens' constitutional rights; disseminating information on the Constitutional Court, and development of constitutional awareness culture.; debate on student constitutions between universities throughout indonesia; telling the values of Pancasila on social media; and increasing understanding of the constitutional rights of civics with outstanding teachers; and educating people's attention. The Constitutional Court's products in the form of decisions contain public education on compliance with the Constitution correctly and rationally. The Constitutional Court's decision will always be linked to the public with the Constitution and the interests of justice seekers because the court examines the interests of justice seekers related to the Constitution.
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Costa, Renato. "John Finnis and the central case constitution". Journal of Legal Philosophy 49, nr 1 (26.04.2024): 25–49. http://dx.doi.org/10.4337/jlp.2024.01.02.
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This article formulates a novel conception of constitutions based on John Finnis’s jurisprudential work. The ‘central case constitution’ transcends the formal or functionalist analyses currently dominant in constitutional theory by considering a constitution as having a ‘double life’. Constitutions are necessarily and intrinsically normative and factual. The article explores Finnis’s natural law philosophy, emphasizing the central case constitution’s alignment with the practical reasonableness viewpoint and its role in directing a political community towards its common good. Focusing on key elements such as the rule of law and the context of a political community, the central case constitution emerges as a legal determination that structures society, frames political institutions and authoritatively directs communities towards justice. This ontological understanding has theoretical and practical implications, including identifying genuine constitutional purposes, safeguarding private associations from the overwhelming state presence, promoting community identity and accommodating diverse constitutional choices for self-determination.
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Boyron, Sophie. "The ‘New’ French Constitution and the European Union". Cambridge Yearbook of European Legal Studies 11 (2009): 321–51. http://dx.doi.org/10.5235/152888712802730675.
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AbstractFor a long time, French constitutional law did not appear to concern itself unduly with the European Communities and the process of European integration: the French Constitution did not contain any reference to the European Communities and the Conseil constitutionnel had little involvement with international treaties and their enforcement as a result of an early decision. However, the ratification of the Maastricht Treaty in 1992 triggered a process of deep constitutional change in France. Since then, the text of the French Constitution has been repeatedly amended to respond to the quickening pace of European integration. Furthermore, the Conseil constitutionnel has totally transformed its control of the constitutionality of international treaties. An assessment of these constitutional changes seems opportune at this juncture. More specifically, an investigation into the manner in which the French constitution reacted to the changing European Union helps cast some light on the impact of European integration on national constitutions.
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Boyron, Sophie. "The ‘New’ French Constitution and the European Union". Cambridge Yearbook of European Legal Studies 11 (2009): 321–51. http://dx.doi.org/10.1017/s1528887000001622.
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AbstractFor a long time, French constitutional law did not appear to concern itself unduly with the European Communities and the process of European integration: the French Constitution did not contain any reference to the European Communities and the Conseil constitutionnel had little involvement with international treaties and their enforcement as a result of an early decision. However, the ratification of the Maastricht Treaty in 1992 triggered a process of deep constitutional change in France. Since then, the text of the French Constitution has been repeatedly amended to respond to the quickening pace of European integration. Furthermore, the Conseil constitutionnel has totally transformed its control of the constitutionality of international treaties. An assessment of these constitutional changes seems opportune at this juncture. More specifically, an investigation into the manner in which the French constitution reacted to the changing European Union helps cast some light on the impact of European integration on national constitutions.
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Alexander, Larry. "WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?" Social Philosophy and Policy 28, nr 1 (30.11.2010): 1–24. http://dx.doi.org/10.1017/s0265052510000038.
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AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.
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Regassa, Tsegaye. "The making and legitimacy of the Ethiopian constitution: towards bridging the gap between constitutional design and constitutional practice". Afrika Focus 23, nr 1 (25.02.2010): 85–118. http://dx.doi.org/10.1163/2031356x-02301007.
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This article describes the making of the 1995 constitution of the Federal Democratic Republic of Ethiopia (FORE) and analyzes its implications for legitimacy. It contends that legitimacy of the constitution, which fosters fidelity to it, can –as one among other factors– help bridge the gap between constitutional design and constitutional practice. By making a process-content-context analysis of the constitution, it argues that the Ethiopian constitution which had a weak original legitimacy, can earn a derivative legitimacy through aggressive implementation. Aggressive implementation, it is maintained, demands fidelity to the constitution. Fidelity and other components of a redemptive constitutional practice (such as creative constitutional interpretation, constitutionally informed legislation, positive constitutional amendment, and constitutionally responsible voting) help deal with the perennial question of how to bridge the gap between constitutional design and constitutional practice in Ethiopia and beyond.
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Roznai, Yaniv. "What are We Talking About When We Talk About “Mixed Constitutions”? Towards a Typology of Constitutional Mixture". Law & Ethics of Human Rights 16, nr 2 (1.11.2022): 193–215. http://dx.doi.org/10.1515/lehr-2022-2010.
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Abstract This article argues that constitutional mixture should be regarded as an inherent, inevitable feature of constitutions, and to some degree all constitutions are mixed. Thus, “mixed constitutions” should not be regarded as a distinct category of constitutions. Instead of asking whether a constitution is mixed, it might therefore be more useful to ask in which characteristics and to what extent a constitution is mixed. To demonstrate this, the article provides a preliminary typology of constitutional mixture considering the form or system of government; the nature or character of government; the religious or secular identity; the flexibility or rigidity of the constitution; and its model of judicial enforcement—judicial or parliamentary supremacy. Examining these constitutional features, allows to shed light on the three different dimensions of “constitutional mixture”: First, the various features of the constitutional order do not function in a binary yes-or-no manner but appear and move along a spectrum. Second, the various features of the constitution change with time. Third, the various features of the constitutional text may be in tension with the features of the society.
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Palmer, Sir Geoffrey. "The Hazards of Making Constitutions: Some Reflections on Comparative Constitutional Law". Victoria University of Wellington Law Review 33, nr 3-4 (1.12.2002): 631–60. http://dx.doi.org/10.26686/vuwlr.v33i3-4.5815.
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After teaching comparative constitutional law in the United States, Sir Geoffrey Palmer explores the nature of constitutional law in general terms and how New Zealand could learn from others. The author compares New Zealand's uncodified constitution to, for example, the United States who has a codified written constitution. The article then discusses the entrenched nature of some constitutions, compared to New Zealand's flexible and fluid constitution that exists largely in several ordinary statutes. Because of New Zealand's fragmented constitution, it is argued that its constitution has an unclear and indeterminate status; indeed, constitutional policy hardly makes an appearance in New Zealand politics. The author briefly looks at how constitutions protect fundamental rights and constitutional design in general terms, concluding that New Zealand's discussions on constitutional themes are too infused with analytical positivism, legalism, and traditionalism for policy issues. Finally, the author discusses the role of Fiji's constitution in light of its military coups. The author concludes that constitutional reform is needed in New Zealand in the form of a written and codified constitution.
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Kaczmarczyk-Kłak, Katarzyna. "The principle of property protection in the Constitutionof the Republic of Poland - past and present". Nieruchomości@ III (30.09.2023): 121–46. http://dx.doi.org/10.5604/01.3001.0053.8970.
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The purpose of this article is to present ownership as defined in the Constitution. The authoranalyses the issue from its recognition in the Constitutions of the interwar period, the Constitutionof 1952, to the current understanding in the Constitution of 1997. The problem ofinterpretation of ownership in selected jurisprudence of the Constitutional Tribunal, commonand administrative courts, as well as the limits of its protection is presented
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Hunter-Henin, Myriam. "CONSTITUTIONAL DEVELOPMENTS AND HUMAN RIGHTS IN FRANCE: ONE STEP FORWARD, TWO STEPS BACK". International and Comparative Law Quarterly 60, nr 1 (styczeń 2011): 167–88. http://dx.doi.org/10.1017/s0020589310000709.
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A major constitutional reform has occurred in France. On 1 March 2010, by virtue of the Constitutional Act of 10 December 20091 (itself pursuant to the constitutional reform of 23 July 2008)2 a new form of constitutional review came into force,3 with the blessing of the Conseil constitutionnel (the Constitutional council).4 The changes are considerable: the role of the Conseil constitutionnel has undergone a revolution which will have implications for ordinary courts as well as for citizens' rights. Arguably, the reform transforms the Conseil constitutionnel—so far a council with limited powers of review—into a true Constitutional court, and as discussed below, opens up constitutional issues in ordinary litigation, enhancing the protection of citizens' human rights. Owing to the reform, ‘Constitutional rights and liberties guaranteed by the Constitution’ can now be invoked against legislation in the course of litigation. This is a true revolution in France because, up until now, no individual was allowed to invoke the jurisdiction of the Conseil constitutionnel,5 nor were they authorized to invoke a constitutional principle in litigation, as this would have been asking ordinary judges to assess a piece of legislation against the Constitution, a task which exclusively belongs to the Conseil constitutionnel.6 Constitutional rights and liberties will now (as is further discussed below) play a key part in ordinary litigation.
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Carcassonne, Guy. "France Conseil Constitutionnel on the European Constitutional Treaty. Decision of 19 November 2004, 2004-505 DC." European Constitutional Law Review 1, nr 2 (19.05.2005): 293–301. http://dx.doi.org/10.1017/s1574019605002932.
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The only real surprise of the recent decision of the French Conseil constitutionnel [constitutional Council] concerning the compatibility between the European and the French Constitutions was the timing of it. According to Article 54 of the French Constitution, a treaty may be submitted for constitutional review at any time before ratification. In this instance, Jacques Chirac acted with unusual promptness, submitting his request on the very day the Treaty was signed, 29 October 2004. The Conseil itself reacted with equal speed, issuing its decision exactly three weeks later on 19 November 2004. Behind both courses of action lies the shadow of political concern related to the Socialist Party referendum on the European Constitution.
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Kuzelj, Valentino, Sonja Cindori i Ana Horvat Vuković. "APOTEOZA SOCIJALNE DRŽAVE: IMPERATIVNI ZAHTJEV OSTVARENJA SOCIJALNE PRAVDE U REPUBLICI HRVATSKOJ". Pravni vjesnik 37, nr 3-4 (grudzień 2021): 57–80. http://dx.doi.org/10.25234/pv/13061.
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By deliberate choice of the Croatian constitution-makers, the Constitution of the Republic of Croatia protects all economic, social and cultural rights guaranteed by constitutions of developed European democracies and by the International Covenant on Economic, Social and Cultural Rights to which Croatia is a party. This creates a dual (constitutional and international) obligation for the Croatian legislature to establish a socially just order. Although the constitutional text places both of the human rights generations within the same title, the constitutional jurisprudence adopted a position, whereby socioeconomic rights are excluded from the sphere of organic laws used to elaborate the constitutionally guaranteed fundamental rights and freedoms. This development notwithstanding, the potential of their protection before the Constitutional Court has not been reduced, as the Court has developed an impressive list of doctrinal positions on the nature of social rights, committing to the concept of social state as a foundational element of European constitutionalism. Still, we would be remiss if we did not emphasize the Constitutional Court's passive stance towards the political branches of the government regarding the social rights and must therefore plead for a more active approach in that regard.
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Trifonov, S. G. "THE CONSTITUTION AS AN OBJECT OF LEGAL PROTECTION: THE HISTORICAL AND THEORETICAL ASPECT". Scientific Notes of V. I. Vernadsky Crimean Federal University. Juridical science 6(72), nr 3 (2021): 30–41. http://dx.doi.org/10.37279/2413-1733-2020-6-3-30-41.
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Ideas about the need for special means of protecting the Constitution arise and develop simultaneously with the appearance of the first written constitutions. The study of the protection of the Constitution reveals the legal tools that can be used to prevent attacks on constitutional principles and values. The article analyzes the meaning of the term Constitution in historical retrospect, highlights the organic connection between the terms Constitution and constitutionalism, and pays attention to the thoughts of scientists and educators about the Constitution and its legal protection. It also describes the techniques used to protect the first constitutions. Ideas for a certain protection or defense of the Constitution arose immediately with the appearance of the first constitutions. They were implemented gradually, either finding their expression in the constitutional text itself or following the development of judicial practice. Such means gradually became the institution of repeal of acts, the formation of the constitutional-legal Institute of the guarantor and guardian of the Constitution, the Institute of constitutional control, the procedure for changing the Constitution, and others.
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Price, Peter. "Provincializing Constitutions: History, Narrative, and the Disappearance of Canada’s Provincial Constitutions". Perspectives on Federalism 9, nr 3 (1.12.2017): E—31—E—56. http://dx.doi.org/10.1515/pof-2017-0019.
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Abstract Constitutional scholarship in Canada since Confederation has been characterized by two primary narratives. The dualist narrative, which characterized constitutional scholarship between the late-nineteenth and mid-twentieth centuries, focussed on the parallel developments of provincial and federal constitutions. The monist narrative, which has become the dominant model of interpretation since the mid-twentieth century, focusses on the federal constitution as a singular foundation of constitutionalism in Canada. As a result of the shift from dualism to monism, provincial constitutions have become largely ignored in Canada and subsumed by the “mega-constitutional” politics of the federal constitution. This paper examines provincial constitutions to highlight the significant reorientation of constitutional scholarship in Canada over the past 150 years, which has become primarily focussed on post-Confederation constitutional history and written constitutionalism.
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Riyah, Juwai. "Position and Authority of the Constitutional Court as a State Institution". JUSTICES: Journal of Law 3, nr 2 (15.04.2024): 76–85. http://dx.doi.org/10.58355/justices.v3i2.52.
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The Constitutional Court of the Republic of Indonesia is the highest state institution with the same position as the Supreme Court (MA). Initially, the Constitutional Court was an institution intended only to examine the constitutionality (constitutional review) of a law against the constitution. Because of this, the constitutional court is often referred to as "the guardian of the constitution". The Constitutional Court is a new state institution in the Indonesian constitutional system as a result of changes to the 1945 Constitution of the Republic of Indonesia. The function and role of the Constitutional Court in Indonesia has been institutionalized in Article 24C paragraph (1) of the 1945 Constitution which determines that the Constitutional Court has four constitutional authorities ( constitutionally entrusted powers) and a constitutional obligation. This provision is reaffirmed in Article 10 paragraph (1) letters a to d of Law Number 24 of 20023 concerning the Constitutional Court. The four powers of the Constitutional Court are: 1). Testing laws against the 1945 Constitution, 2). Deciding authority disputes between state institutions whose authority is granted by the 1945 Constitution, 3). Deciding on the dissolution of political parties, 4). Resolving disputes about election results.
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Barseghyan, Sose. "Manifestation of Direct Application of Constitutional Norms in the Field of Law Enforcement". Bulletin of Yerevan University C: Jurisprudence 14, nr 2 (39) (14.12.2023): 61–68. http://dx.doi.org/10.46991/bysu:c/2023.14.2.061.
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The article refers to the application of constitutional norms by the courts and the interpretation given in the practice of the Constitutionl Court. In particular, the right of a person to seek judicial linitgation to protect his/her constitutional rights, the jurisdiction of the courts to apply the Constitution, the relantionship between the principle of supremacy of Constitution and the concept of implementantion of Constitution, the duty of ordinary courts to appeal to the Constitutional court and simultaneously justify unconstitutionality of a legislative norm, have become the subject of discussion. The article proposes an effective application of the constitutional nroms, introduction of flexible and applicable mechanisms for constitutional justice.
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Fedorenko, V. L., i M. V. Fedorenko. "Principles of constitutional law: essence, content and system". ACTUAL PROBLEMS OF THE LEGAL DEVELOPMENT IN THE CONDITIONS OF WAR AND THE POST-WAR RECONSTRUCTION OF THE STATE, nr 13 (1.10.2022): 160–66. http://dx.doi.org/10.33663/2524-017x-2022-13-25.
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The publication is devoted to identifying the essence and content of the category of “principle of constitutional law” and identifying its relationship with related but not identical categories: values, ideals, foundations, principles, objectives, mandatory rules, laws, etc. Genesis and development of ideas about the principles of constitutional law and their consolidation in constitutions and constitutional acts are analyzed. The systematization of the main types of relevant principles and groups is carried out: principles of constitutionalism and constitutional doctrine, principles of science and education of constitutional law, principles of the constitution, as well as principles of constitutional law-making, law enforcement and justice (jurisdictional) activities. It is argued that modern constitutions enshrine in the norms-principles the most important values of the constitutional order: the rule of law, rule of law, freedom and democracy, the inviolability of fundamental human rights, etc. But their real embodiment presupposes unification and interaction of civil society with the state. Key words: principle, principle of constitutional law, system of principles of constitutional law, principle of constitutionalism, principle of the Constitution, principles of the science of constitutional law.
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Tafani, Ismail, i Renata Tokrri. "Some Reflections on the Constitutional Review in Albania in a Comparison Key". Mediterranean Journal of Social Sciences 12, nr 2 (7.03.2021): 22. http://dx.doi.org/10.36941/mjss-2021-0009.
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In this study we will try to analyze the foundations of the Constitution as a pillar and as a guarantee for its solidity. The study will also address the need for revision of the constitution as a fundamental element of its existence and continuity. Particular emphasis will be given to the comparison of the constitutions of the most important countries in the world as regards the procedures and limits to the constitutional revision. In this sense, the constitutions of some Balkan Peninsula countries will be analyzed to draw a comparison and analyze the Albanian Constitution as regards the procedure for its revision. The study intends to analyze the procedures for the revision of the Constitution as well as the explicit and implicit limits to these revisions. In the Constitutional revision in Albania in 2016, the role of the Constitutional Court on the control of the constitutional legitimacy of constitutional revision laws was clarified. Formal constitutionality is usually emphasized since the Albanian constitutional reform underlined that the Constitutional Court in Albania could express itself on the constitutionality of the Constitutional revision law only from a formal point of view.
Received: 2 January 2021 / Accepted: 27 February 2021 / Published: 7 March 2021
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Harvelian, Agnes, Muchamad Ali Safa'at, Aan Eko Widiarto i Indah Dwi Qurbani. "CONSTITUTIONAL INTERPRETATION OF ORIGINAL INTENT ON FINDING THE MEANING OF SOCIAL JUSTICE IN THE CONSTITUTIONAL REVIEW". Yustisia Jurnal Hukum 9, nr 3 (31.12.2020): 348. http://dx.doi.org/10.20961/yustisia.v9i3.42003.
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<p><em>This article will study whether original intent method able to find justice in constitution and formulate constitutional interpretation that will able to perform constitutional supremacy. This study uses a doctrinal approach or also referred to as the normative legal approach. The method taken in this writing is analysis descriptive which describes and analyses constitutional interpretation with original intent method. Formulating constitution interpretation which answers people dynamic but doesn’t lose its original constitutional intent. This research shows that Constitutional interpretation with original intent method can mean as an interpretation which assimilate the spirit of how the original written constitution was formulated when building UUD 1945, the opinion of constitution’s founders in their understanding on the purpose and the nation’s ground principals. Basically, All the rules must not contradict with constitution’s intention. The freedom of judges to decide is not freedom without limits. The limitations of judges' freedom of interpretation are Pancasila and the 1945 Constitution. Decisions made by judges must not conflict with Pancasila and the 1945 Constitution, constitutional judges have great power in interpreting the 1945 Constitution. This power is vulnerable to various interests which make the decisions of constitutional judges not objective. Accountability of decisions in public and academics should be a legal idea that can be realized, not to judge the verdict but to know the basis of interpretation and or legal discovery by constitutional judges</em></p>
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van Caenegem, R. C. "Constitutional History: Chance or Grand Design?" European Constitutional Law Review 5, nr 3 (październik 2009): 447–63. http://dx.doi.org/10.1017/s1574019609004477.
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Two interpretations of constitutional history: product of chance or of design – Written v. unwritten constitutions – Political and historical backdrop of constitutional development – Evolution of interpretation of specific constitutional texts – Chances of a global constitution
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Sampe, John, Rosa Ristawati i Be Hakyou. "The Guardian of Constitution: A Comparative Perspective of Indonesia and Cambodia". Hasanuddin Law Review 9, nr 2 (11.09.2023): 211. http://dx.doi.org/10.20956/halrev.v9i2.4627.
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A democratic state may be indicated by the existence of a constitutional institution that has the competence to uphold constitutionalism and defend the constitution. As the guardian of the constitution, the Constitutional Council of the Kingdom of Cambodia (Constitutional Council) and the Constitutional Court of the Republic of Indonesia (Constitutional Court) have the same purpose, namely to uphold constitutionalism and protect the constitution. However, in terms of structure, procedures, and competencies, the Constitutional Council and the Constitutional Court have individual mechanisms. Institutionally, the two judicial bodies occupy different characteristics, but they share the common goal of safeguarding the constitution’s core values. This paper aims to analyze and scrutinize different features of the Constitutional Council and the Constitutional Court by showing the same purpose as the guardian of the constitution. Within this paper, the legal outcomes which is decisions are discussed, particularly the effect of the decisions. In addition, this paper looks into who can be the applicant or can file a complaint and clarifies the qualifications and resignations of judges. This paper concludes on whether the Constitutional Court and the Constitutional Council have different paths in upholding constitutionalism and protecting the constitution.
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Medvid, A. B. "Constitutional metamorphosis: analysis of amendment procedures to the Basic Law in the context of global transformations". Analytical and Comparative Jurisprudence, nr 6 (27.12.2023): 142–47. http://dx.doi.org/10.24144/2788-6018.2023.06.24.
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The article is devoted to the study of constitutional metamorphoses in the context of global transformations, in particular the analysis of the procedures for introducing changes to the basic law in different countries of the world. Modifications in modern geopolitical, economic and socio-cultural conditions caused the need to revise and adapt constitutional norms in order to bring the latter to the requirements of modern challenges and realities.
Thescientific article examinesvarious approaches to the legal mechanism of amending constitutions in countries with various legal traditions and political systems. The author conducts a comparative analysis of such procedures, paying attention to legislative initiatives, the role of parliament, the participation of civil society and other aspects.
It has been shown that the key aspects of the modification of constitutions are the following issues: a) legitimacy of foundations and subjects that initiate the process of constitutional reform and have the authority to make changes to the constitution; b) the content of constitutional changes and the threshold at which amendments to the constitution introduce transformations into its principles and essence; c) characteristics of legal mechanisms and procedures (models) for amending constitutions, which, on the one hand, guarantee the legitimacy of updated constitutions, and on the other hand, serve as a legal barrier against "constitutional extremism”, that is, unfounded and dangerous for the individual, society and states by constitutional transformations.
It is emphasized that in the context of constitutional metamorphoses, the following forms of transformation of constitutions should be distinguished: a) amendments to basic laws; b) introduction of amendments to the constitutions; c) change of constitutions.
It has been established that constitutional metamorphoses in the context of global transformations indicate radical changes and transformations in the constitutional system of various countries or even at the world level, in particular: globalization of constitutional norms; expansion of the catalog of rights and freedoms; changes in the system of the power mechanism; ecological constitutional protection; constitutional innovation; global constitutional standards.
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Fombad, Charles Manga. "Constitution-Building in Africa". African and Asian Studies 13, nr 4 (10.12.2014): 429–51. http://dx.doi.org/10.1163/15692108-12341316.
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Constitution-building is a delicate and intricate process which requires ample reflection and careful choices. African constitution-builders and politicians have since the beginning of the 1990s embarked on a process of constitutional reforms. A careful examination of the developments of the last two decades shows that the process has almost provoked never-ending contagion of making, unmaking and remaking of constitutions. This paper attempts to provide an over-view of the changes that have been taking place. Some of the issues relating to the durability of national constitutions and theoretical foundations for constitutional change are discussed. The paper also considers some of the possible implications of the endless processes of making, unmaking and remaking constitutions. The critical question it tries to grapple with is how this unending process of constitution-building in Africa can be controlled in a manner that will ensure peace, political stability and provide a legitimate foundation for entrenching a firm culture of constitutionalism. In advocating for an entrenched permanent constitutional review commission to check against frequent and arbitrary constitutional changes, the paper argues that this is the best way for constitutional legitimacy to be sustained throughout the life of a constitution.
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Slinko, T. M. "Сompetence of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine: comparative legal analysis". Uzhhorod National University Herald. Series: Law 2, nr 73 (15.12.2022): 215–18. http://dx.doi.org/10.24144/2307-3322.2022.73.63.
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Reflections on «possible constitutions of Europe» can have two directions. On the one hand, one can wonder about the legal form of the European Union: the fact that it is no longer a confederation of states, but not yet a federal state, requires a legal classification, for which a new concept of Verfassungsverbund was created in Germany, that is, a constitutional union. On the other hand, the question arises as to which national constitutions, or which parts of these constitutions, or which individual norms of these constitutions are best used to build a constitutional order in Europe. Solving this issue is not only a classic mission of comparative jurisprudence, but also of the current law of the European Community, since Article 6 of the Treaty onthe European Union declares certain principles of the Western constitutional state «common to all member states» and orders to consider fundamental rights «arising from common constitutional traditions of member countries, as general principles of Community law». Within the framework of the second way of formulating the question, the following description refers to the experience gained during the use of elements of the German Constitution to build other European constitutions. In this article, we will conduct a comparative legal analysis of the powers of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine. The possibility of legal review guarantees the supremacy of the constitution by sanctioning theviolation of the law of the constitution by repealing the law. According to the experience accumulated so far, an autonomous and independent constitutional court with the possibility of a constitutional appeal is a good way to protect human rights. Constitutional courts have a part of each existing state monopoly, namely the power of parliament to make laws and the power of the supreme court to interpret and apply laws passed by parliament.
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Kaplan Arık, Aslıhan. "Anayasa Değiştirme İktidarının Kötüye Kullanılmasını Önlemeye Yönelik Anayasa Değişikliği Usulünün Farklılaştırılması". International Journal of Social Sciences 7, nr 28 (9.05.2023): 280–92. http://dx.doi.org/10.52096/usbd.7.28.20.
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Constitution-making powers impose limitations on their power to amend the constitution in the constitutional texts they prepare. These limits are intended to prevent the differentiation or abolition of the basic philosophy of the constitution and the constitutional order established by the power to make the constitution. These limits, which are brought in order to prevent the constitutional amendment powers from making changes other than their purpose, are realized by further protecting the principles and values that are given special value in the constitutions of some countries and that constitute the basic philosophy of the constitution. In other words, some provisions that constitute the basic principles and values of the constitution are subject to a different amendment procedure compared to other provisions of the constitution. This differentiation procedure includes additional conditions such as a qualified majority, a referendum, or the passage of a certain period of time in the amendment process. In this study, the differentiated constitutional amendment procedure and whether these procedures have an effect on the abuse of constitutional amendment power have been examined. Keywords: Constitutional amendment power, constitutional amendment procedure, differentiated constitutional amendment procedure, abuse of constitutional amendment power.
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Shinar, Adam. "Deconstructing Mixed Constitutions". Law & Ethics of Human Rights 16, nr 1 (1.05.2022): 167–92. http://dx.doi.org/10.1515/lehr-2022-2005.
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Abstract A central task of comparative constitutional law scholarship is categorization and classification of constitutions. Recent scholarship, no doubt informed by the populist tide, has sought to develop the concept of a mixed constitution. Broadly speaking, a mixed constitution is a constitution that integrates liberal and illiberal elements, elements that are usually separate and not found under the same constitution. The study of “mixed constitutions” encompasses both descriptive and normative aspects. First, an attempt to ascertain what, exactly, makes a constitution “mixed.” Second, an attempt to analyze either the desirability of such a system or an attempt to figure out how to harness mixed constitutions in the service of particular normative goals, for example the protection of human rights. This article has two goals. First, an inquiry into the descriptive aspect of mixed constitutions. My aim is to show that given the seeming consensus of what constitutes a mixed constitution, the category itself might encompass many more constitutions than is often acknowledged, to the point that many constitutions are likely to be mixed to a certain extent. My second goal is to demonstrate that given this definitional consensus, what makes a constitution mixed is not necessarily because the constitution itself is mixed, but because sub-constitutional norms shape our constitutional understanding. Put differently, the meaning of a constitution is not determined exclusively through an analysis of the constitution, but also by shifts in sub-constitutional understandings. If this is correct, then it turns out that the universe of mixed constitutions is much larger than thought, which casts doubt on the utility of the category of mixed constitutions.
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Yu, Wenjun, Mingyue Ma, Xuemei Chen, Jiayu Min, Lingru Li, Yanfei Zheng, Yingshuai Li, Ji Wang i Qi Wang. "Traditional Chinese Medicine and Constitutional Medicine in China, Japan and Korea: A Comparative Study". American Journal of Chinese Medicine 45, nr 01 (styczeń 2017): 1–12. http://dx.doi.org/10.1142/s0192415x1750001x.
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Traditional Chinese medicine (TCM), Japanese–Chinese medicine, and Korean Sasang constitutional medicine have common origins. However, the constitutional medicines of China, Japan, and Korea differ because of the influence of geographical culture, social environment, national practices, and other factors. This paper aimed to compare the constitutional medicines of China, Japan, and Korea in terms of theoretical origin, constitutional classification, constitution and pathogenesis, clinical applications and basic studies that were conducted. The constitutional theories of the three countries are all derived from the Canon of Internal Medicine or Treatise on Febrile and Miscellaneous Diseases of Ancient China. However, the three countries have different constitutional classifications and criteria. Medical sciences in the three countries focus on the clinical applications of constitutional theory. They all agree that different pathogenic laws that guide the treatment of diseases govern different constitutions; thus, patients with different constitutions are treated differently. The three countries also differ in terms of drug formulations and medication. Japanese medicine is prescribed only based on constitution. Korean medicine is based on treatment, in which drugs cannot be mixed. TCM synthesize the treatment model of constitution differentiation, disease differentiation and syndrome differentiation with the treatment thought of treating disease according to three categories of etiologic factors, which reflect the constitution as the characteristic of individual precision treatment. In conclusion, constitutional medicines of China, Japan, and Korea have the same theoretical origin, but differ in constitutional classification, clinical application of constitutional theory on the treatment of diseases, drug formulations and medication.
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Suharno, Suharno, Amir Junaidi i Muhammad Aziz Zaelani. "Embodying The Meaning Of The Guardian Of The Constitution In The Role Of The Constitutional Court Of Reducing Constitutions Indicated By Policy Corruption". International Journal of Educational Research & Social Sciences 2, nr 3 (29.06.2021): 592–99. http://dx.doi.org/10.51601/ijersc.v2i3.88.
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Purpose of this study was to answer two problems: (i) how is the guardian of the constitution embodied through the function of the Constitutional Court; and (ii) how the Constitutional Court as the guardian of the constitution reduces constitutions that are indicated by the policy corruption. Policy corruption is an invisible and covert element that able to threaten the synergy of the legal system and the public interest. The form of policy corruption is realized in the form of a law. Efforts that can be made to reduce the policy corruption are to implement the tight control over the media, which in this case is relevant to the function of the Constitutional Court. This studywas classified as doctrinal research with primary and secondary legal materials. Comparative approach and case approach were used to answer the legal issues. The results showed that: First, the guardian of the constitution through the function of the Constitutional Court through the optimization of the Constitutional Court Judges as the agent of constitution, strengthening the execution of the Constitutional Court decisions and collaborative steps with other state institutions in enforcing the constitutional guardianship. Second, the Constitutional Court as the guardian of the constitution in reducing laws indicated by the policy corruption is manifested in the form of a Constitutional Court decision that can be retroactive to recover the impact of legal losses that are indicated by the policy corruption, the decision of Constitutional Courtis justified by ultra vires to anticipate the chain of constitutions that indications of policy corruption, the decision of Constitutional Courtis strengthened in terms of its execution and the Court can examine or test the Constitution Drafting (bill/ RUU) (a priori review) as a preventive measure to prevent the enactment of laws that indicate policy corruption.
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Fombad, Charles Manga. "Designing Institutions and Mechanisms for the Implementation and Enforcement of the Constitution: Changing Perspectives in Africa". African Journal of International and Comparative Law 25, nr 1 (luty 2017): 66–90. http://dx.doi.org/10.3366/ajicl.2017.0182.
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Until fairly recently, the issue of constitutional implementation has surprisingly received little attention both in constitutional theory and practice. Yet it is a crucial aspect of constitutional effectiveness. Without a carefully thought-out strategy for implementing and enforcing a constitution, its practical effectiveness in promoting constitutionalism, respect for the rule of law, and good governance may be quite limited. The Kenyan 2010 Constitution provides a backdrop against which this article examines certain critical issues in designing institutions and mechanisms for ensuring that a constitution is properly implemented and enforced. The article starts by briefly considering the importance of and challenges in implementing and enforcing constitutions. It then uses the evidence from recent developments in constitution-making to identify some of the core constitutional implementation and enforcement institutions. The article then looks at the Kenyan example which, in Africa, presently provides the best example of a carefully thought-out and well-designed constitutional implementation strategy. Based on this, the article then considers some of the key elements in designing an effective constitutional implementation framework. In concluding, the article argues that incorporating and entrenching effective constitutional implementation mechanisms must be made one of the top priorities in designing constitutions. Furthermore, designing any constitutional institution to oversee, supervise, and monitor the implementation of the constitution must also now be recognised as one of the critical elements for entrenching constitutionalism and respect for the rule of law.
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van Nifterik, Gustaaf. "French Constitutional History, Garden or Graveyard?" European Constitutional Law Review 3, nr 3 (październik 2007): 476–87. http://dx.doi.org/10.1017/s1574019607004762.
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On 29 May 2005 the French said no to the draft of a European Constitution. And frankly, the French should know about constitutions! One can differ whether the history of France should be considered a fruitful garden of constitutional thought, a graveyard of constitutional experiments, a ‘musée des constitutions’, or a minefield; in any case it is beyond doubt that the French are rather experienced in constitutions and constitutional changes. Since the French Revolution in 1789, France has been a monarchy, a republic more than once, an empire twice and a constitutional monarchy in between; the nineteenth century shows the pattern monarchy, republic, empire; since 1958 the French live in their Fifth Republic.There is a lot to learn from the constitutional history (perhaps struggle is a better word in this context) of this important European country for any political entity in search of a proper constitution. Which constitutional institutions were a success, which were not; why did it or did it not work out the way it was planned?
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Thi Hai Van, Nguyen, i Chu Van Ninh. "Perspectives on constitutional responsibility some countries in the world introduction and comparison with Vietnam". Jurnal Cita Hukum 11, nr 2 (31.08.2023): 209–18. http://dx.doi.org/10.15408/jch.v11i2.30616.
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The Constitution is the document with the highest position in the legal hierarchy, acting as the original law, as a basis for other documents in the system of legal documents of each country. The contents are indispensable in most constitutions. With the highest legal position and effect, the constitution plays an important role in ensuring human rights and citizens' rights by recognizing these rights, binding the state's responsibility in realizing these rights. constitutional rights and the constitution is also a document restricting the power of the state. Constitutional liability is an important tool for strengthening and developing democracy, but in practice, not all countries are directly mandated by their constitutions or legal documents constitution as a special form of liability. This article gives a general review of constitutional liability in a few diffe ent nations to compare and offer ideas for considering the constitutional liability institution in Vietnam.
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Tarr, G. Alan. "Civil Liberties Under State Constitutions". Political Science Teacher 1, nr 4 (1988): 8–9. http://dx.doi.org/10.1017/s0896082800000362.
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Ask most political scientists about constitutional law, and they will tell you about the Federal Constitution and its interpretation by the U.S. Supreme Court. Examine a text on American constitutional law, and you will likely find the same tendency to equate constitutional law with the U.S. Constitution. Even the recent campaign for constitutional literacy during the Bicentennial of the Constitution altogether ignored the most obvious gap in Americans' constitutional knowledge—namely, the virtually total ignorance about state constitutions.This inattention to state constitutions and state constitutionalism is unfortunate, because state constitutions are assuming an increasing importance in American politics. They have served as the incubators for institutional innovations that are now receiving national attention. President Reagan's proposals for a balanced budget amendment and for an item veto both had their origins in state charters. Moreover, because most state constitutions can be amended relatively easily, they have provided an alternative avenue by which groups that are blocked in the legislative process can pursue political change. California's Proposition 13 is a case in point. Finally, state constitutions have furnished the basis for probably the most significant development in civil liberties law over the past two decades, namely, the rediscovery of state bills of rights as independent protections for civil liberties.
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Jones, Bronwen. "The remarkable development and significance of constitutional protection for intellectual property rights in post-Arab Spring constitutions". Queen Mary Journal of Intellectual Property 10, nr 4 (25.12.2020): 461–85. http://dx.doi.org/10.4337/qmjip.2020.04.03.
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Prior to the Arab Spring uprisings in 2011, no constitutional protection for intellectual property (IP) existed in the many earlier constitutions of Egypt or Tunisia. It is remarkable and surprising therefore that, in 2014, IP clauses appeared in the post-revolutionary constitutions of both countries. This raises the key question: why add to the existing regulation of IP in this way. Is constitutional protection just another example of the inexorable strengthening of IP rights (IPRs) or could it be a means of constraining them, where necessary, to protect other rights? This article argues that including IP in a constitution may, rather than merely strengthening IP owners' rights, open IPRs up to competition against more fundamental constitutionally protected human rights and, for example, support the prioritization of the right to health. This could be a valid explanation for and potential use of the inclusion of IP in the Egyptian and Tunisian Constitutions.
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Fröschl, Thomas. "Rezeption und Einfluss der American Constitution in den deutschen Verfassungsdebatten, 1789 bis 1949". Journal of Modern European History 6, nr 1 (marzec 2008): 38–57. http://dx.doi.org/10.17104/1611-8944_2008_1_38.
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Perception and Impact of the American Constitution on German Constitutional Debates, 1789–1949 This article considers the impact of the American federal constitution of 1787 on German constitutional debates. Its prime chronological focus is on the nineteenth century, as this time period has so far received relatively little systematic scholarly attention. The article examines both the political rhetoric that emphasised – and often exaggerated – American influences and the practical impact these debates had on constitutions in German-speaking countries. The article highlights the extreme complexity of such developments, with very widely different perceptions of what ‹America› stood for, being used as a reference point in constitutional debates. The direct impact of American constitutional thinking on the structure and design of constitutions in German countries remained, however, very limited. It was only after the unconditional surrender of National Socialist Germany that a constitutional order emerged in the Federal Republic in 1949 that embodied significant elements of American (or more generally ‹Western›) constitutional thought, most importantly in the provisions for ‹basic rights› and a Federal Constitutional Court in the West German Basic Law.
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Stefanovski, Mirjana. "Radivoje Milojkovic’s 1867 constitution draft". Zbornik Matice srpske za drustvene nauke, nr 138 (2012): 1–16. http://dx.doi.org/10.2298/zmsdn1238001s.
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As an authoritative work of an excellently educated writer well acquainted with constitutional theory and foreign constitutional solutions, Milojkovic?s draft constitution is also a product of a serious political reasoning. That draft deserves a particular and very important role in the nineteenth century constitutional history of Serbia. It is an evidence of the character of constitutional transformation prepared during the last years of Prince Mihailo?s reign. Taken for the specimen during the enacting of Regent Constitution of 1869, which followed it in its basic concept, composition of constitutional solutions and framing of more important institutions, that draft determined adoption of the model of constitutional monarchy in Serbia. By catching sight of the Saxony?s Constitution of 1831, it transfers basic German constitutional model, supplemented by taking into consideration other European constitutions. Its distinction is an attempt to adapt foreign model mostly to particular circumstances of the country and to implement harmoniously new institutions in accordance to the Serbian constitutional tradition.
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BELL, CHRISTINE. "Introduction: Bargaining on constitutions – Political settlements and constitutional state-building". Global Constitutionalism 6, nr 1 (marzec 2017): 13–32. http://dx.doi.org/10.1017/s2045381716000216.
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Abstract:This article considers the relationship between constitutions and political settlements and locates the special issue articles within this wider discussion. The article points to the apparently paradoxical connection between disillusionment with internationalised state-building techniques on one hand, and increased international faith in constitution-making as a state-building tool on the other. Using understandings of the relationship of the constitution to political settlement which draws on conventional constitutional theory, it argues that the current context of negotiated transitions requires constitution-making to be approached with an eye to the distinctive dilemmas of statecraft that pertain in contemporary transitions. The most central dilemma concerns how power-balances between political/military elites can be broadened to ensure the constitution’s capacity to fulfil its normative role in restraining power and delivering broader social inclusion. The pieces which make up this special issue draw together development and legal discourses. This article suggests how constitutional theory provides a resource for those seeking to promote constitutionalism as a tool for reaching political settlements capable of resolving conflict. It also argues that those who seek to rely on constitutions for conflict resolution need to understand this enterprise as just as political and fraught as all other institution-building efforts.
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Shustrov, Dmitry. "Constitution-transforming informal methods of changing the Constitution of the Russian Federation: between validity and constitutionality". Sravnitel noe konstitucionnoe obozrenie 30, nr 5 (2021): 42–75. http://dx.doi.org/10.21128/1812-7126-2021-5-42-75.
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The Constitution of the Russian Federation has been changed according to formalities and the rules established by it, although there are numerous examples of constitutional changes having been made outside of formal procedures. In the theory and practice of constitutional law, an approach has been developed according to which the constitution can be changed without formally changing its text — by changing its meaning. Such changes are called constitutional transformation and are carried out by informal methods of changing the constitution. They differ significantly from the formal methods of constitutional reform, since they are carried out not by the sovereign source of power but by the constituted power — by the legislative, executive, and judicial authorities. The article examines the main informal methods of changing the constitution: law, interpretation, convention. Constitutional transformation by informal methods of constitutional change is not provided for by the constitution, therefore it is unconstitutional. However, it becomes valid thanks to implementation by institutions established by the constitution, within the framework of constitutionally provided procedures and recognized as methods of constitutional change by other subjects of constitutional relations. If the subjects of constitutional relations are not in agreement with a constitutional transformation, they can overcome it through constitutional reform or (depending on the method) through an appeal to the constitutional court by which, if successful, an informal constitutional change becomes unconstitutional and invalid. Turning to informal methods, the government incurs costs in terms of the legality and legitimacy of the constitutional change, but at the same time it gains in terms of efficiency, time saving and the result obtained. The emergence of a “living”, “parallel” constitution, the lag of the formal constitution behind real life, the inadequacy of the constitutional text are the price paid for resorting to informal methods of constitutional change. It is important that resort to informal means does not become the norm. Constitutional transformation should be supplementary in nature, and appeal to it should be the last resort.
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Meyer Resende, Madalena. "A Holy Alliance between the Catholic Church and Constitution-Makers? The Diffusion of the Clause of Cooperation in Third Wave Democracies". Politics and Religion 11, nr 1 (8.05.2017): 55–78. http://dx.doi.org/10.1017/s1755048317000311.
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AbstractWhat explains the adoption of the regime of cooperation between church and the state in the democratic constitutions of Spain and Poland, while Portugal maintained a regime of strict separation in the United States and French tradition? The explanation could be that a consensual constitution-making process resulted in a constitutional formula accommodating religion and guaranteeing religious freedoms. Alternatively, the constitutional regime of cooperation could result from the diffusion of international norms to national constitutions, in this case, the cosmopolitan law of the church. The article process-traces the constitution drafting processes and finds that the emergence of a constitutional consensus among secularist and constitutional drafters in Spain and Poland was based on the Vatican Council II doctrine and facilitated by the intervention of the Catholic hierarchies. In Portugal, the violent context of the revolution excluded the church, and the constitutional regime of strict separation between church and state was adopted.
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Авакьян, Сурен, i Suryen Avakyan. "CONSTITUTIONAL LEGAL REFORMS: OBJECTIVE AND SUBJECTIVE FACTORS". Journal of Foreign Legislation and Comparative Law 2, nr 1 (16.03.2016): 0. http://dx.doi.org/10.12737/18201.
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This article analyzes objective and subjective factors, which influence on appearance of constitutions and on current constitutional legal reforms. The author makes a conclusion that such development often features a significant role in ensuring action of constitutional norms of processes in sub-constitutional regulation. Key factors in appearance of new constitutions and constitutional reforms overall are economic and especially political crisis. Objective factors of importance of constitutional legal reforms may totally depend on subjective circumstances. The author also discusses the idea of “live constitution”, which becomes more actual in Russian Federation together with the role of Russian Constitutional Court in ensuring this idea. The author makes a general conclusion: constitutional reforms are not being in possession of objective approaches, based on necessary development of constitutional aspects of economy, social relationships and political organization of state, but depend heavily from subjective reluctance to implement constitutional reforms.
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Lino, Dylan. "The Australian Constitution as Symbol". Federal Law Review 48, nr 4 (10.09.2020): 543–55. http://dx.doi.org/10.1177/0067205x20955076.
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According to a conventional story told by scholars, the Australian Constitution is virtually invisible as a symbol within Australian political debate and culture. This article challenges that conventional story, arguing that the Constitution plays a more significant public role than is commonly assumed. Analysing the ongoing debate over the constitutional recognition of Aboriginal and Torres Strait Islander peoples, the article highlights four prominent symbolic Constitutions: the practical, the liberal, the outdated and the exclusionary. These constitutional symbols are mobilised by different political actors for a range of political purposes. Understanding constitutional symbolism helps in seeing the ideological work performed by the Constitution outside the courts and prompts constitutional scholars to be more conscious of how they contribute to that ideological work through their representations of the Constitution.
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Dziedzic, Anna, i Dinesha Samararatne. "Asking the Woman Question of Constitutions: Insights from Sri Lanka". Verfassung in Recht und Übersee 56, nr 1 (2023): 127–52. http://dx.doi.org/10.5771/0506-7286-2023-1-127.
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What do we learn when we ask ‘the woman question’ of constitutions of the Global South? Constitutions worldwide are increasingly the subject of gender analysis, which rests on ‘asking the woman question’ to uncover the gendered implications of seemingly neutral constitutional provisions. But can gender analysis account for all forms of gender inequality in all kinds of constitutions? In this article, we place three lines of inquiry in conversation in responding to these questions: the feminist method of asking the woman question, dominant approaches to constitutional gender analysis, and the perspective(s) from the Global South. In doing so, we develop a way to understand how constitutions of the Global South are gendered in their design and operation, in ways that are perhaps distinctive. We use Sri Lanka as a case study to show how asking the woman question of Sri Lanka’s Constitution requires us to revise some fundamental assumptions about constitutions and to engage with laws, institutions and practices that are close to the constitution, but not usually considered within the constitutional remit. We argue that constitutional gender analysis needs to move beyond a focus on constitutional text and institutions to better address gender inequalities in societal institutions, such as the family, institutions relating to labour, religious institutions and the military. We describe these institutions as ‘proximate institutions’, by which we mean institutions that are close to the constitution, because of their role in constitutional governance and in the exclusion and subordination of women from it. We propose the identification and analysis of proximate institutions as a methodology that calibrates the issues of context that are critical for fully understanding the gendered nature of constitutions, in the Global South and beyond.
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Salemot, Marew Abebe. "Constitutional silence on election postponement in Ethiopia amidst a pandemic: A critique of constitutional interpretation". RUDN Journal of Law 25, nr 2 (15.12.2021): 714–31. http://dx.doi.org/10.22363/2313-2337-2021-25-2-714-731.
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Election postponement in Ethiopia, due to the COVID-19 pandemic, has raised critical constitutional questions that have never been really thought before in the countrys constitutional law jurisprudence. This is because the state of emergency measure in Ethiopia, due to the spread of COVID-19, is in conflict with constitutional deadlines for elections. The constitutional lacuna is complicated by the absence of explicit constitutional provisions that indisputably govern election postponement. Although any legal measures to postpone election schedule and pass constitutional deadlock is far from simple, the Ethiopian government has suggested four possible options to the constitutional dilemma: dissolving the parliament, declaring state of emergency, amendment of the Constitution and constitutional interpretation. Finally, the House of Federation (HoF), the Ethiopian upper House entrusted to interpret the constitution decided and postponed the election indefinitely until the pandemic no longer poses a risk to public health confirmed by the parliament which has direct vested interest in the outcome. This research investigates whether the constitutional interpretation option adheres to the premises of the Ethiopian Constitution or is it extra constitutional. Accordingly, the HoF provided superficial analysis and fallacious reasoning and failed to meaningfully grapple with the serious constitutional issues. The constitutional interpretation is not constitutionally bound and is defective. The manner the HoF managed the constitutional vacuum concerning election postponement, indisputably, was constitutional interpretation by name but a political decision in practice.
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Beckman, Ludvig. "Democratic legitimacy does not require constitutional referendum. On ‘the constitution’ in theories of constituent power". European Constitutional Law Review 14, nr 3 (wrzesień 2018): 567–83. http://dx.doi.org/10.1017/s1574019618000287.
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Constitutional referendum – Popular sovereignty – Constituent power – Democratic legitimacy – Participation in referendum as exercise of constituent power – The legal status conception of the constitution – The legal functions conception of the constitution – Open question whether every provision in codified constitutions is essential to constituent power – Therefore, constitutional referendum not always mandated by democratic legitimacy
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Lee, Hwanghee. "Stability and Changeability: Theoretical Considerations on the Process and the Way of Constitutional Amendment". Korean Constitutional Law Association 30, nr 1 (30.03.2024): 41–78. http://dx.doi.org/10.35901/kjcl.2024.30.1.41.
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Societies are constantly changing, and legal systems are always organized in the context of those changes. Constitutions have a dual nature in the context of social change. On the one hand, it seeks to remain stable in the face of social change (stability). This helps maintain a normative and institutional core that should not be easily altered in response to social changes. On the other hand, it also aims to adapt to social changes (changeability). Constitutions themselves recognize the possibility of amendment and are open to various interpretations and applications. The two may seem contradictory, but both are essential to maintaining the normative power of a constitution.
In some cases, however, these attributes of a constitution may be unjustifiably or unnecessarily overemphasized. For example, an overemphasis on stability during a time when the constitution should be adapting to social change can cause it to fall behind. This can include legitimate amendments or laws that fail to meet the overly stringent requirements of the amendment process or are declared unconstitutional by the constitutional court. However, changeability can become problematic as well when it is unfairly exercised. This can occur when a constitution is misinterpreted or improperly amended.
This article examines these cases and proposes the dualization of the constitutional amendment process, eternal clauses, and the introduction of constitutional review on constitutional amendments as remedies for the problems. Although these measures are not perfect solutions, they will help preserve the rational core of constitutional stability and changeability while curbing the unwarranted exercise of each attribute.
Although there has been considerable debate about the current constitution, the issue of revising the constitutional amendment process has received less attention. However, to improve our constitution in the future, it is essential to pay attention to the amendment process. Revising the process for amending the constitution is a crucial task in constitutional revision.
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Romeo, Graziella. "The Conceptualization of Constitutional Supremacy: Global Discourse and Legal Tradition". German Law Journal 21, nr 5 (lipiec 2020): 904–23. http://dx.doi.org/10.1017/glj.2020.50.
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AbstractThis Article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated, and b) the common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this Article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualized. It then examines the embryonic conceptualization of constitutional supremacy in the British legal culture by addressing the “constitutional statutes.” It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions that are affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, this Article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies.
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Lyons, David. "Constitutional Interpretation and Original Meaning". Social Philosophy and Policy 4, nr 1 (1986): 75–101. http://dx.doi.org/10.1017/s0265052500000443.
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I. CONSTITUTIONAL ORIGINALISMBy “originalism” I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters. At least since Marbury, in which Chief Justice Marshall emphasized the significance of our Constitution's being a written document, originalism in one form or another has been a major theme in the American constitutional tradition.
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Klinowski, Mateusz, i Rafał Smoleń. "Postęp w nauce prawa konstytucyjnego. Ewolucja poglądów dotyczących (nie)konstytucyjności zmian konstytucji". Przegląd Konstytucyjny, nr 4 (2022) (2022): 29–72. http://dx.doi.org/10.4467/25442031pko.22.027.16992.
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Progress in the Constitutional Theory. Evolution of Doctrine on (un)Constitutional Change of Constitution This paper is an attempt to characterize the phenomenon of a scientific progress in jurisprudence on the example of the evolution of the ideas on the conditions and scope of the allowable constitutional amendments of the 1997 Constitution of Poland. Explaining the notions of formal and material limits of amending a constitution, we show that those limits are constituted not only by the explicit constitutional regulations but also by the practical context of constitution’s functioning and doctrinal assumptions being the fundaments of a political or social system that it realizes. In the final part of the paper the identified elements of the progress in constitutional law are seen in the light of the theories of scientific progress formulated in the literature, with the conclusion that the described change of the ideas on material amendments of the Polish Constitution bears the marks of a scientific progress.
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Traser, Julianna Sára, Nóra Béres, György Marinkás i Erzsébet Pék. "The Principle of the Primacy of EU Law in Light of the Case Law of the Constitutional Courts of Italy, Germany, France, and Austria". Central European Journal of Comparative Law 1, nr 2 (9.12.2020): 151–75. http://dx.doi.org/10.47078/2020.2.151-175.
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This article examines the relationship among national constitutions, constitutional courts, and the primacy of Community Law in connection with four Member States (Germany, France, Italy, and Austria). It starts with the question of whether national constitutions contain a European Union (EU) clause and explicitly provide for the primacy of Community Law. It examines whether any constitutional restriction or reservation has been elaborated in the case law of constitutional courts, and the extent to which the constitutional courts examined can exercise control indirectly over cases of conformity of EU legislative acts with constitutions or cases of misuse of powers (ultra vires acts). The constitutions examined can be considered uniform in that they contain references to the individual Member States’ relationships with the EU and create the possibility of restricting their competence or sovereignty. However, they do not declare the principle of the primacy of Community Law. As a consequence, the constitutional courts of Member States play a key role in the interpretation of the principle of the primacy of Community Law, including the formulation of constitutional requirements and counterbalances in connection with the enforcement of the principle. A reference to constitutional identity appears in the case law of recent decades, the elements of which are elaborated on and filled with more or less specific content by the constitutional courts on a case-by-case basis. In the event of a possible violation of constitutional identity or principles with unconditional effectiveness, some constitutional courts exclude the possibility of Community Law being invoked against the constitution of a Member State, but at least on a case-by-case basis, they maintain the possibility of inapplicability or of creating compatibility. In the latter respect, the article also addresses the limited nature of the powers of constitutional courts to examine the compatibility of EU Treaties and their amendments with the constitution of a Member State (see ex-ante or ex-post review, procedural or substantive examination).
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Venter, Francois. "South Africa: A Diceyan Rechtsstaat?" Symposium: Mixed Jurisdictions 57, nr 4 (8.11.2012): 721–47. http://dx.doi.org/10.7202/1013029ar.
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South Africa’s transformation to constitutionalism in 1994 saw the addition to a mixed legal system of a supreme constitution that requires all law to conform to its provisions, principles, and values. This new constitutional design was developed for the circumstances and modeled on existing liberal democratic constitutions, the most influential of which were Canadian and German. Adopted in 1993, the first constitution introduced the notion of the “constitutional state” but being only a transitional document, it provided for the creation of a “final” constitution crafted in conformity with prescribed principles. The final constitution, adopted in 1996, made no mention of the “constitutional state”, including instead the expression “rule of law”. Since the constitutional principles laid down in 1993 referred to neither the German “Rechtsstaat”, nor Diceyan “rule of law”, the replacement of the former term by the latter was permissible. The two constitutional texts did not, however, elaborate on these two terms. It was left to constitutional interpreters, especially the judiciary, to give meaning to these historically disconnected but conceptually related ideas. The result was a completely novel and pervasive constitutional doctrine. The judicial process of merging these notions may be described as “comparison by global assimilation”.