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1
van Caenegem, R. C. "Constitutional History: Chance or Grand Design?" European Constitutional Law Review 5, n.º 3 (outubro de 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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van Nifterik, Gustaaf. "French Constitutional History, Garden or Graveyard?" European Constitutional Law Review 3, n.º 3 (outubro de 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?
3
Dale, Elizabeth. "Law and History: The Garden and the Wilderness as Constitutional History". Church History 79, n.º 4 (26 de novembro de 2010): 881–86. http://dx.doi.org/10.1017/s0009640710001083.
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In history, perspective is everything. Given that, I should make it clear from the start that I approached Mark deWolfe Howe's history of the First Amendment and church–state relations as a historian who studies constitutions and constitution-making, and more specifically as a historian of constitutions who has written about how and why we do constitutional history. Viewing it from that perspective, I must admit I have mixed feelings about this book.
4
Dellinger, Walter. "The Process of Constitutional Amendment: Law, History, and Politics". News for Teachers of Political Science 49 (1986): 16–19. http://dx.doi.org/10.1017/s0197901900003500.
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The first part of the seminar examined a mystery that reverberates through two centuries: how does a constitutional system of government, itself born of revolution, properly provide for its own revision — provide literally for its own reconstitution? We first considered the political and intellectual assumptions against which Article V of the United States Constitution — the amendment article — was drafted, and then looked briskly at the historical context in which the Constitution's twenty-six amendments have been adopted. With this as background, we addressed a range of issues concerning the law and policy of constitutional change that are currently the subject of lively dispute in America.
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Hein, Michael. "Entrenchment Clauses in the History of Modern Constitutionalism". Tijdschrift voor rechtsgeschiedenis 86, n.º 3-4 (5 de dezembro de 2018): 434–81. http://dx.doi.org/10.1163/15718190-08634p06.
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SummaryThis article examines the origins, differentiation, and migration of constitutional entrenchment clauses from the beginning of modern constitutionalism until today. It is based on a broad understanding of ‘entrenchment clauses,’ covering all constitutional provisions that make amendments either to certain parts of a constitution or under certain circumstances more difficult to achieve than ‘normal’ amendments or even impossible, i.e., legally inadmissible. In particular, the article answers three questions: (1) When, and in which contexts, did the different types of constitutional entrenchment clauses emerge? (2) How have these types spread globally? (3) Which constitutional subjects do such clauses protect, and thus, which main functions do they aim to fulfill? The article is based on the new and unique Constitutional Entrenchment Clauses Dataset (CECD), which comprises 860 written national constitutions worldwide from 1776 until the end of 2015.
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Leliya, Leliya Leliya, e Leliya Leliya. "INDONESIAN STATE LAW IN ITS HISTORICAL PERSPECTIVE AND DEVELOPMENT". Pena Justisia: Media Komunikasi dan Kajian Hukum 23, n.º 1 (19 de março de 2024): 829. http://dx.doi.org/10.31941/pj.v23i1.4143.
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<p>The history of Indonesian constitutional law began in the Dutch colonial period when Indonesia was still called the Dutch East Indies. Then after Indonesia's independence in 1945, for the first time formed a constitution or Basic Law. The focus of the study in this study is to try to explain the development of Indonesian constitutional law from the Old Order era to reform. This is to find out how the history of the development of Indonesian constitutional law from time to time, especially from the beginning of independence to reformation. The method in this study is qualitative, with a historical approach. The data collection method used is the method of library research (library research). Then analyzed using the descriptive-analytic method. At the beginning of independence in 1945, Indonesia's constitutional law was contained in the 1945 Constitution. The 1945 Constitution described Indonesia as a unitary state with a president as the head of state as well as a democratic head of government. Besides that, under Soekarno's government, constitutional law was regulated in several constitutions, including the 1949 RIS constitution and the 1950 UUDS. And Soekarno's government at that time was known for its nationalist and anti-capitalist politics. The Suharto government was known for its authoritarian politics, political stability, and economic growth. Finally, during the reform period, after the fall of President Soeharto in 1998, Indonesia underwent significant political reforms. Constitutional law is regulated in the 1945 Constitution with several amendments which emphasize the principles of democracy, human rights, decentralization of government, and increased political participation. The history of the development of constitutional law in Indonesia in general shows quite dynamic developments and always follows changes according to political and socio-cultural developments in Indonesia.</p>
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Fröschl, Thomas. "Rezeption und Einfluss der American Constitution in den deutschen Verfassungsdebatten, 1789 bis 1949". Journal of Modern European History 6, n.º 1 (março de 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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Mann, Bruce H. "The Multiple Constitutions of Constitutional History". Law and History Review 16, n.º 2 (1998): 387–90. http://dx.doi.org/10.2307/744106.
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One of my few unrepressed childhood memories is of a high-school field trip to the Massachusetts State House in Boston. The docent, a hapless but not entirely innocent volunteer, addressed us in a tone of perky condescension usually reserved for precocious six-year-olds. Thus, when he stood before an object of local veneration—the state constitution of 1780, I think, or perhaps one of the royal charters—and clucked, “Now class, does anyone know what ‘constitution’ means?,” it was with casual adolescent malice that a voice from the back answered, “Yeah, it has something to do with metabolism.”
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Kūris, Egidijus. "Doctrinal Experimenting with the Constitution in Lithuania: On the Structure of the Constitution, the Non-Amendability of Constitutional Provisions, and the Legal Force of ‘Pre-Constitutional’ Acts". Review of Central and East European Law 48, n.º 2 (7 de agosto de 2023): 95–133. http://dx.doi.org/10.1163/15730352-bja10078.
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Abstract Lithuania’s 1992 Constitution has undergone a series of amendments, including certain structural changes. Besides formal amendments, constitutional regulation is subject to reinterpretation in the Constitutional Court’s case law. As a result, not only the content of specific provisions of the Constitution, but also the very perception of constitutional law has been reshaped by, inter alia, reducing the system of sources of constitutional law to only the Constitution and official constitutional doctrine. Recently the Constitutional Court, in an activist move, undertook modification of the settled new paradigm by introducing the notion of ‘supra-constitutionality’ and by postulating which constitutional provisions, until then deemed amendable, were non-amendable. The article deals with the doctrine in both the historical and the theoretical context and with its effect on the perception of constitutional law, in particular its structure.
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MARTÍNEZ CUEVAS, MARÍA DOLORES. "THE DEFENCE OF THE DEMOCRATIC CONSTITUTION IN EXTRAORDINARY CIRCUMSTANCES: THE LAW OF EXCEPTION IN COMPARATIVE LAW AND IN SPANISH CONSTITUTIONAL HISTORY". Spanish Journal of Legislative Studies, n.º 3 (1 de dezembro de 2019): 1–29. http://dx.doi.org/10.21134/sjls.vi3.1394.
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Abstract: In this paper we examine the appropriateness and significance of the law of exception in the Spanish constitutional order. For this, we have examined the models of Comparative Law that Spain has followed to restore its disturbed constitutional order. Basically, historically, concern arose at the time of North American and French Revolutions of how to incorporate into the Constitution the institutions related to their protection. British singularity was also manifested in the way of understanding and including specific protection for the defence of the Constitution and the law of exception, with institutions such as martial law or habeas corpus. The suspension of habeas corpus as an extraordinary instrument of protection of the state organization was considered in the American Constitution of 1787, and is thought of as a precedent of Article 55.1 of the current Spanish Constitution of 1978. During the period between 1812 and 1869, the law of exception contemplated in Spanish Historical Constitutions covers only the suspension of guarantees. The republican Constitution of 1931 conserved the outline of the Constitution of 1869, with certain relevant alterations. The most significant normative instruments of this legislation were the Law of Defence of the Republic and the Law of Public Order of 1933. After the publication of this last Law, it became the extraordinary norm that has most deeply and habitually been put into practice, since Spain has experienced practically a permanent situation of "constitutional abnormality". This highlights the fact that a Law of Public Order for the defence of the constitutional regime established by the Second Republic could be transferred in many of its precepts, with very similar contents to the Francoist Law of Public Order that was able to remain in force until much later, being finally repealed by the Organic Law of LO 1/1992, of Protection of Citizen Safety.
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Sagandykov, M. S. "Freedom of Labor in the context of Constitutionalization of Social and Labor Relations: History and Current State". Lex Russica 77, n.º 2 (6 de março de 2024): 49–59. http://dx.doi.org/10.17803/1729-5920.2024.207.2.049-059.
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Constitutionalization of social and labor relations represents a manifestation of the general process of involving into the scope of constitutional law such areas of public life that are traditionally included in the subject matter of special branches of law. The reasons for the constitutionalization of these relations lie in the change in the vector of state social policy, which is gradually moving away from liberal individualist principles and strives to ensure social justice in society. The practice of the Constitutional Court of the Russian Federation can be deemed to be an external manifestation of the changed vector. The Constitutional Court in the last few years has given a deeper meaning to constitutional provisions in the field of labor, and the decisions taken reflect the connection between freedom of work and the principle of the welfare state and the novelties of the Constitution — Part 5 of Article 75 and Article 75.1. Provisions of the social and labor nature were included in all constitutions of the Soviet period, just as they are present in most constitutions of foreign countries, where they primarily act as principles of the state, and only secondarily as subjective rights and freedoms. It is concluded that the status and semantic content of these provisions in the Constitution of the Russian Federation in 1993 did not initially correspond to their social and legal significance. Freedom of labor was understood in a liberal way and was associated with the right of a citizen to choose a type of activity and profession. The 2020 amendments to the Constitution of the Russian Federation supplemented the content of the constitutional value of freedom of labor, emphasized its status as an element of the social state, linked it with such concepts as respect for labor and the person of labor, social solidarity, decent human development, which is reflected in the latest decisions of the Constitutional Court of the Russian Federation. There are grounds to assert that the subject of constitutional law has changed due to the constitutionalization of social and labor relations, on which constitutional law exerts its influence in the context of interaction between an individual, society and the state.
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Desierto, Diane A. "Treaties in the Philippine Constitutional System". ICL Journal 16, n.º 1 (28 de fevereiro de 2022): 27–134. http://dx.doi.org/10.1515/icl-2021-0035.
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Abstract International law has always had a dual significance to the Philippine constitutional system. On the one hand, the frequent articulation of international law principles within modern Philippine constitutional norms, statutes, and administrative rules demonstrate an outward-looking normative ethos – one I have described in other scholarship to be consistent with the 1987 Philippine Constitution’s ‘universalist history’. On the other hand, the considerable volume of Philippine jurisprudence applying international law norms to date overwhelmingly illustrate how Philippine litigants have strategically deployed international law (most especially international human rights law) over the years, as an acceptable external legal basis to hold Philippine government leaders to account under the vastly expanded judicial review doctrine in the 1987 Philippine Constitution. This active individual and group resort to adjudication and legislation could explain why international law has flourished under the postcolonial and post-dictatorship 1987 Philippine Constitution. This comprehensive jurisprudential, statutory, and constitutional analysis aims to show how, and to what degree, Philippine legal culture and history reflect a continuing deep engagement with international law, in ways that are certainly unique to the Philippines’ evolving political ideologies, colonial and postcolonial history, treatment, and implementation of international treaties within the Philippine constitutional system. Most importantly, the absence of explicit methodology for the breadth of constitutional interpretation of the Incorporation Clause under the 1987 Philippine Constitution warrants normative rethinking, so as not to uniformly open the floodgates to hard international law sources (eg treaties, customs, general principles) as well as softer international instruments lacking the requisite State consent to the binding quality of such sources within the Philippine legal system. To this end, I make three proposals on how the Philippine Supreme Court could define an explicit methodology for use and interpretation of the Incorporation Clause, transparently refer to other foreign and international sources, and openly reassess its ideological bases for recognition of international law in the Philippine constitutional system, as part of the Court’s distinct judicial function.
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Kruzslicz, Péter Pál. "History by and for a National Constitution: The Example of the Hungarian Fundamental Law". Law, Identity and Values 3, n.º 1 (28 de junho de 2023): 145–58. http://dx.doi.org/10.55073/2023.1.145-158.
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The Fundamental Law of Hungary can serve as a very particular, even though not exceptional, especially in Central European region, example for studying the relationship between history and constitution. With two recent events, this study highlights the timely interest for that matter in Hungarian constitutional law. Also, from the beginning, it renders that history and constitutionalism are closely linked in many aspects, already by the definition of constitutional law. In order to be able to analyse in a very complex Hungarian constitutional context the role of history, first, a methodological problem is solved: a clear distinction is made between past, history and memory – also with the help of the two introductive cases. Second, two risks more for the interpretation of history with regards to constitutional law are recalled: the danger of anachronism and the bad influence of historical interruptions. Especially, the second one is identified as a main factor of impact on the Hungarian constitutionalism when handling historical objects or being simply subject to history. Finally, the relation between past, history, and memory with the Fundamental Law of Hungary is described. On one hand, historical narrative plays an identity-creating role, and as such with constitutional symbols but also the symbolic narrative on national history offered by the Fundamental Law, it is a source of legitimacy in the framework of the Hungarian state. On another hand, the so-call historical constitution brings history to the level of constitutional sources even though in a very abstract and indirect way: the achievements of this historical constitution are to be used as guidelines for constitutional interpretation.
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Bzova, L., e A. Pankratova. "History and systems of control of constitutionality: international experience". Uzhhorod National University Herald. Series: Law 1, n.º 75 (22 de março de 2023): 71–74. http://dx.doi.org/10.24144/2307-3322.2022.75.1.11.
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This article examines the historical evolution of constitutionality control, its concept and its various systems. In the study of modern constitutionalism, the topic of constitutional control, especially from the side of constitutional jurisdiction exercised by constitutional courts, is gaining more and more strength. The control of constitutionality is the supervision of the compatibility of regulatory acts with the constitutional text. From supremacy and constitutional centrality, any laws, to remain valid in the national legal system, must maintain respect, formal and substantive, for the constitutional text. It is at this moment that constitutionality control, which is carried out diffusely by various bodies of judicial power, comes into play. The idea of constitutional review is related to the supremacy of the Constitution over the entire legal system, as well as constitutional rigor and protection of fundamental rights.
The existence of normative escalation is a necessary prerequisite for constitutional supremacy, since, occupying the constitution of the hierarchy of the normative system, it is in it that the legislator will find the form of legislative development and its content. Moreover, in countries that have a strict Constitution, that is, those that provide for their own amendment a more serious legislative procedure than is provided for by ordinary laws, a kind of regulatory pyramid is established, at the top of which is the Constitution.
Therefore, the control of constitutionality is a guarantee of the supremacy of basic rights and guarantees provided by the Constitution, which, in addition to setting the boundaries of state power, is also part of the legitimacy of the state itself, defining its duties and enabling the democratic process under the rule of law. Control of constitutionality means checking the perfect adequacy of the law or normative act of the Constitution, checking its formal and material requirements. This is always a comparative examination between a legislative or regulatory act and the Constitution. From this we can say that any legislative or regulatory act that contradicts the Basic Law of the organization of the state must be declared unconstitutional.
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Muchlis Adnan, Indra. "THE CONCEPTUAL AND HISTORICAL REVIEW OF CONSTITUTIONAL LAW IN INDONESIA". Jurnal Pembaharuan Hukum 10, n.º 1 (10 de abril de 2023): 43. http://dx.doi.org/10.26532/jph.v10i1.30568.
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This research discusses constitutional law in Indonesia in terms of concept and history. The position of the constitution is an essential element in a state. It is the basic law in running the government of a country, because every legislation refers to the constitution as a reference. This research uses a qualitative descriptive method with the type of research is a library research. This research led to the conclusion that the constitution affirms the very strong position and relationship between the people and the ruler. The concept of the Constitution in Indonesia is based on the 1945 Constitution. The implementation of Pancasila democracy is based on the constitution or the 1945 Constitution. The history of the development of the Indonesian state administration there are four kinds of constitutions that have been in force, namely first, the period 18 August 1945-27 December 1949; Second, the period 27 December-17 August 1950; third, the period 17 August 1950-5 July 1959 ; fourth, the period 5 July 1959-1998.
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Butler, W. "Five Generations of Russian Constitutions: Russia as Part of the Western Legal Heritage". BRICS Law Journal 6, n.º 3 (14 de setembro de 2019): 13–21. http://dx.doi.org/10.21684/2412-2343-2019-6-3-13-21.
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The paper is devoted to the study of the relationship between the Russian constitutional history and Western legal traditions. The author argues the position according to which the constitutionalism has been a part of Russian legal history for centuries. On one view of Russian legal history, a written constitution remained an aspiration of the Russian people that was only partly realized in 1906. Marxist legal thought contemplated, or predicted, the “withering away of law” after a proletarian Revolution; adopting a constitution seemed counter-intuitive to this projected vector of history. This paper explores in general outline the five generations of the constitutions of Russia (1918, 1925, 1937, 1978, and 1993) and the maturing of a constitutional tradition in Russia which has led from a blueprint for communism to fully-fledged constitutional rule-of-law social State in which the constitution acts as a restraint upon the exercise of State power and performs the role that a constitution routinely performs as part of the western legal heritage. The author concludes the 1993 Russian Constitution is, for the first time, a living document that could be considered as a reaction against the Russian past, the embodiment of Russian experience, and the repository of Russian values and desires for its future.
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Jastrzębski, Robert. "Sądownictwo konstytucyjne w państwie polskim w XX wieku". Zeszyty Prawnicze Biura Analiz Sejmowych 2, n.º 70 (2021): 50–81. http://dx.doi.org/10.31268/zpbas.2021.22.
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The article concerns the constitutional judiciary in the Polish state in relation to the formation of the rule of law in Europe. The author describes the history of systemic postulates regarding examining the compliance of laws with the constitution, shows the provisions of successive constitutions of the interwar period and after 1945, and indicates that the economic, social and political crisis in the late 1980s and early 90s forced changes in the system. The result was the amendment of the 1952 Constitution in 1982, the Constitutional Tribunal having been established as late as 1985. Nowadays the activities of the Constitutional Tribunal are regulated by the Constitution of 1997 and its rulings are final.
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Pūraitė-Andrikienė, Dovilė. "Towards an Effective Constitution in Lithuania: the Role of the Constitutional Court". Review of Central and East European Law 48, n.º 2 (7 de agosto de 2023): 134–65. http://dx.doi.org/10.1163/15730352-bja10079.
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Abstract This article deals with the role of the Lithuanian Constitutional Court in ensuring the effectiveness of the Constitution. This research is based on the assumption that the success of constitutional review in a given state is determined (and at the same time characterized) by the following key preconditions: the social, political and legal environment of the state; the scope of powers of the constitutional court; and the presence of a jurisprudential or living constitution. Therefore, in order to achieve the aim of this research, the following tasks are undertaken and dealt with: (1) to discuss the challenges and achievements of the Lithuanian Constitutional Court in the broader context of constitutional justice institutions of Central and Eastern European states; (2) to overview the Lithuanian constitutional justice model and its development; (3) to analyze the emergence of the jurisprudential or living constitution in Lithuania.
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von Gall, Caroline. "The Concept of the ‘Living Constitution’ in Russian Constitutional Theory and Practice". Review of Central and East European Law 46, n.º 3-4 (8 de dezembro de 2021): 416–45. http://dx.doi.org/10.1163/15730352-bja10052.
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Abstract In discussing the concept of the ‘living constitution’ in Russian constitutional theory and practice, this paper shows that the Russian concept of the living constitution differs from U.S. or European approaches to evolutive interpretation. The Russian concept has its roots in Soviet and pre-revolutionary Russian constitutional thinking. It reduces the normative power of the Constitution but allows an interpretation according to changing social conditions and gives the legislator a broad margin of appreciation. Whereas the 1993 Russian constitutional reform had been regarded as a paradigm shift with the intention to break with the past by declaring that the Constitution shall have supreme judicial force and direct effect, the paper also gives answers to the complexity of constitutional change and legal transplants and the role of constitutional theory and practice for the functioning of the current authoritarian regime in Russia.
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Vinogradova, Elena V. "Constitutional projects of the twentieth century The Constitution of the Union of Soviet Republics of Europe and Asia". Gosudarstvo i pravo, n.º 3 (2023): 138. http://dx.doi.org/10.31857/s102694520024779-7.
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The study of constitutional projects, as part of the history of Russian statehood, is especially relevant in connection with the formation of institutions of modern domestic constitutionalism. The impetus for the development of this process was received by the adoption of constitutional amendments in 2020. The study of constitutional projects is due to the fact that they contain aspects of theoretical constitutionalism, which is formed at each historical stage of the development of the state and society. The article analyzes the draft Constitution of the Union of Soviet Republics of Europe and Asia, which reflected the contradictions of one of the turning points in the modern history of Russia. Considering this project as part of the national history of state-building, its value and influence on the Constitution of the Russian Federation are emphasized, the formation of the Russian constitutional identity
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Romashova, Maria R., e Vladislav Yu Panchenko. "Constitutional legal understanding: historical, theoretical and sectoral aspects". RUDN Journal of Law 28, n.º 2 (11 de junho de 2024): 378–89. http://dx.doi.org/10.22363/2313-2337-2024-28-2-378-389.
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In the context of the constitutional law of Russia, the problem of interpreting the Constitution has traditionally been reduced to different views on it as a written document with a special political and legal status. In different periods of Russian history, the Constitution was perceived differently, which was reflected in different understandings of the relationship between the Constitution and the state, the Constitution and legislation, the constitution and human rights. One of the important aspects for the interpretation of the constitution was the interaction between the Constitution and constitutionalism, as well as state and constitutional law. Within the framework of this problem, the object is the phenomenon of constitutional legal understanding, considered as a theoretical and praxiological construction that combines scientific views and empirical ideas reflecting the formal and substantive features of the Constitution and constitutional law at different stages of the development of the legal system of Russia. The article explores the problem of legal understanding and law understanding in the domestic legal tradition, the understanding of the Constitution in the context of cyclical politogenesis, as well as the problem of constitutional law understanding in the context of the concept of a «living» Constitution.
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Green, Craig. "United/States: A Revolutionary History of American Statehood". Michigan Law Review, n.º 119.1 (2020): 1. http://dx.doi.org/10.36644/mlr.119.1.united/states.
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Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential. “States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge that historical premise. The Article also chronicles how states-first histories became a dominant cultural narrative, emerging from factually misleading political debates during the Constitution’s ratification. Accurate history matters. Dispelling myths about American statehood can change how modern lawyers think about federalism and constitutional law. This Article’s research weakens current support for “New Federalism” jurisprudence, associates states-rights arguments with periods of conspicuous racism, and exposes statehood’s functionality as an issue for political actors instead of constitutional adjudication. Flawed histories of statehood have been used for many doctrinal, political, and institutional purposes in the past. This Article hopes that modern readers might find their own use for accurate histories of statehood in the future.
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Crombois, Jean F. "How well do constitutions travel across time and space?" Tijdschrift voor rechtsgeschiedenis 84, n.º 3-4 (9 de dezembro de 2016): 502–25. http://dx.doi.org/10.1163/15718190-08434p06.
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This article discusses the question of possible constitutional models in constitutional history. More precisely, it deals with the influence of the Belgian Constitution of 1831 on the Bulgarian Constitution of 1879 which is also known as the Turnovo Constitution. In doing so, this article highlights the fact that one cannot speak of a Belgian model for the Bulgarian constitution. In other words, it seems that, in this case, the Belgian constitution did not travel so well in time and space. Nevertheless, this article also argues that such a discussion should also be included in the grand narrative of constitutional history in Europe in the 19th century. Finally, the claims and counter claims of a possible Belgian model became central during the inter-War period in the discussion about the desirability or not of the establishment of a liberal parliamentary regime in Bulgaria.
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Hall, M., e T. Young. "Recent Constitutional Developments in Mozambique". Journal of African Law 35, n.º 1-2 (1991): 102–15. http://dx.doi.org/10.1017/s002185530000838x.
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Constitutions remain a puzzle. They are not conscious falsehoods, yet they are clearly not in any simple sense “true”. Nor are they a matter of self-deception on the part of their drafters, being as much intentionally aspirational or programmatic as regulatory. There is some virtue in Finer's characterization of them as “autobiographical” but even this becomes problematic when we speak of constitutions in the ex-colonial world which are often documents more easily made sense of in the context of other constitutional documents than the realities of the polities they supposedly regulate. All these issues are brought into very sharp focus by the experience of a country such as Mozambique, which in its short history since independence in 1975 has adopted two quite different societal projects in the form (amongst other things) of constitutional documents. The differences between these two projects are obvious and are commented on extensively in what follows. The categories utilized in both, it may be noted, are rooted entirely in European political and intellectual experience and, arguably, what is striking about the liberal and socialist options that they embody is not so much their (highly advertized) differences but what they have in common, including a profound intolerance and a determination to remake the world in their own image. Seen in this way the study of constitutions and constitution-making have interesting things to tell us about the processes of Westernization of our world.Mozambique's new constitution came into force on 30 November, 1990, replacing the Independence Constitution of 25 June, 1975. It eliminated the leading role of the Frelimo party, introduced multi-party politics, and changed the official name of the country from the People's Republic of Mozambique to the Republic of Mozambique.
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Podkowik, Jan. "Personal Autonomy and its Direct Constitutional Limits – a Polish Perspective". Review of Central and East European Law 46, n.º 1 (24 de fevereiro de 2021): 41–68. http://dx.doi.org/10.1163/15730352-bja10043.
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Abstract The article discusses the concept of personal autonomy as a constitutional fundamental right protected by the Polish Constitution of 1997. Autonomy is not only a constitutional value of an unspecified character but also a right with its own specific normative content. Personal autonomy, also called the right to self-determination, is rooted in natural law. The scope of its constitutional protection is determined and – simultaneously – limited by constitutional standards of an absolute character such as human dignity, non-discrimination, and the like. Autonomy as a constitutional right may be subjected to further restrictions imposed by the legislator in accordance with the principle of proportionality. The legal status of an individual’s right to self determination is thus determined by all the prohibitions and orders resulting directly from the Constitution as well as sub-constitutional statutory provisions which respect the principle of proportionality requirements.
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Henderson, Jane, e Marina Lomovtseva. "Constitutional Justice in Russia". Review of Central and East European Law 34, n.º 1 (2009): 37–69. http://dx.doi.org/10.1163/157303509x406223.
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AbstractThe 1993 Russian Constitution and 1994 Federal Constitutional Law “On the Constitutional Court of the Russian Federation” define the jurisdiction and activity of the Federal Constitutional Court of the Russian Federation. However, these pieces of legislation do not comprehensively address all the issues, and there has been some broadening of the Court's power through interpretation and the effect of some other legislation. This article examines the Court's jurisdiction and some of the issues that arise in the exercise thereof, as well as the relative role of the constitutional or charter courts of the subjects of the Federation, and the relationship between the Constitutional Court and the other courts in the Russian federal system. Issues of the methods of constitutional interpretation are addressed. The importance of the Constitutional Court as the federal agency of constitutional court supervision (review) in ensuring the effective application of the Russian Constitution is highlighted in the context of this growth of a comparatively new branch of law in the Russian legal system.
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Juškevičiūtė-Vilienė, Agnė. "Bridging Between an Effective Economy and Environmental Protection Under the Lithuanian Constitution". Review of Central and East European Law 48, n.º 2 (7 de agosto de 2023): 217–40. http://dx.doi.org/10.1163/15730352-bja10082.
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Abstract In 1992, the Lithuanian Constitution created the preconditions for the stable and successful economic development of the state and laid down foundations for regulating economic relationships that ensure the predictability of economic, social, and legal relationships. The article analyzes how the concept of social justice as chosen by the drafters of the Constitution influences Lithuanian economic policy, as well as what foundations are consolidated in the Constitution for the economic system and freedom of individual economic activity. A brief study is presented in order to reveal the patterns of regulation of the Lithuanian economy in constitutional law, as well as the jurisprudence of the Constitutional Court in relation to freedom of individual economic activity over the thirty years that the Constitution has been in force. Study of this jurisprudence shows that, in the first decade of restored Lithuanian independence, freedom of economic activity was particularly encouraged by the Constitutional Court, with the aim of creating the foundations for a market economy as soon as possible. Later, the main aim of the state was to ensure Lithuania’s energy independence, while in the third decade of independence constitutional jurisprudence increasingly analyzed the possibilities of finding a balance between environmental protection requirements and economic freedom. The second part of the article examines the constitutional foundations for environmental protection and the constitutional doctrine interpreting them; it is maintained that environmental protection can, in accordance with the provisions of the Constitution, be recognized as an important public interest, which may justify restrictions on freedom of individual economic activity; however, these restrictions must guarantee a balance between the two constitutional values of environmental protection and freedom of individual economic activity.
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Hazri, Tengku Ahmad. "Constitutional Law as Ethico-Political Discourse". ICR Journal 4, n.º 2 (15 de abril de 2013): 312–16. http://dx.doi.org/10.52282/icr.v4i2.482.
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Several scholars and commentators have argued that constitutional law is “one of the most under-developed areas of fiqh.” That this is so is hardly surprising: constitutional law as it has been conceived thus far developed in the context of the modern nation-state and is thus historically foreign to Islam. For the most part of history, the various caliphates, sultanates and governments which together constituted dar al-islam (territory of Islam) operated under unwritten constitutions, yet firmly under the purview of the Shari’ah, so that, according to Noah Feldman, “the arrival of written constitutionalism in the Muslim world marked the beginning of the end of the Islamic state.”
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Kustra-Rogatka, Aleksandra. "Kontekst jest wszystkim. O trudnej sztuce komparatystyki „europejskiego” orzecznictwa sądów konstytucyjnych". Przegląd Konstytucyjny, n.º 3 (2022) (31 de outubro de 2022): 45–73. http://dx.doi.org/10.4467/25442031pko.22.021.16386.
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Context is Everything. On the Difficult Art of “European” Comparative Studies Jurisprudence of Constitutional Courts Comparative research of the case-law of constitutional courts concerning the membership of a given state in the EU (referred to in the article as “European” case-law of constitutional courts) requires taking into account various contexts in which this case-law is involved. The aim of this article is to indicate and analyze the most important of them, namely: the systemic context, the temporal context, the political context (including related problem of the politicization of the constitutional court), and the theoretical context. Moreover, the article draws attention to the necessity to contextualize “constitutional borrowings”, which acquires special meaning in connection with the perceived phenomenon of abuse of the “comparative argument”. Sometimes the distinguished contexts overlap, for example in the case of the temporal context and political context, but their separation allows for a better understanding of the complexity of comparative research on the European acquis constitutionnel. The specificity of this subject of legal-comparative research proves the correctness of the thesis that the contemporary constitutional comparative law must face several challenges. The first is the integration of the classical “horizontal” comparative method with the “vertical” dimension related to the influence of international and supranational norms on national constitutional systems. The second challenge is related to supporting an interdisciplinary approach to comparative constitutional law, which will take into account the perspective of social sciences, such as political science, sociology or history. The third challenge, then, is related to establishing the right balance between focusing on specific (not only) legal issues related to the analyzed issue and taking into account a broader vision of the directions of changes in European constitutionalism. The fourth challenge, in turn, concerns the popularization of the results of scientific research related to comparative studies of the “European” acquis constitutionnel. The last (and perhaps the most difficult) challenge facing the comparative research of “European” case law of constitutional courts is an attempt to answer the question to what extent this diverse jurisprudence conglomerate is a manifestation of the stability of constitutional law and the constitution, and to what extent it is a driving force for dynamic changes in contemporary public law.
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Smith, Malcolm, Percy R. Luney e Kazuyuki Takahashi. "Japanese Constitutional Law." Monumenta Nipponica 49, n.º 4 (1994): 520. http://dx.doi.org/10.2307/2385272.
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Desan, Christine A. "Writing Constitutional History beyond the Institutional/Ideological Divide". Law and History Review 16, n.º 2 (1998): 391–96. http://dx.doi.org/10.2307/744107.
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History is a strange medium: it carries the most contemporary debates onto the most distant terrain. Both Bruce Mann and David Konig focus on the notions of change and context that undergird the forum essays. Those issues, more than any moment in early New York, link the articles and the comments. By exploring the way we defined “constitutions,” “constitutionalism,” and “constitutional history,” the commentators open up a large and current question. They invite a discussion about approaches to constitutional change.
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YOU, XIAOHONG. "The history of Russia’s 1993 Constitution goes back". Legal Science in China and Russia, n.º 4 (16 de setembro de 2021): 52–58. http://dx.doi.org/10.17803/2587-9723.2021.4.052-058.
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The research on Russia’s 1993 Constitution by the Chinese constitutional circles mainlyfocuses on constitutional norms and constitutional systems, with rare historical attention. In order tohave a complete and profound understanding of the current Constitution of Russia, it is not enough tofocus solely on the constitutional system, but also to know “where the 1993 Constitution came from”. Russia’s current constitution, which was adopted and entered into force in 1993, was enacted at a special historical time. At that time, Russia’s economic situation was unstable, and a new political order was in the process of forming. During this period, the revision of the 1978 Constitution and the enactment of a new Constitution were carried out simultaneously. According to the amended 1978 Constitution, there are elected presidents and elected people’s congresses, and the government is accountable to both the people’s congresses and the president. This form of regime organization is different from the typical form of political organization in other countries of the world. To some extent, there are two power centers in Russia: the president and parliament.The President and the Parliament were deeply divided on economic policy. As times goes on, the political disputes between the two become more and more intense, affecting not only the revision of the old constitution, but also the formulation of the new constitution. Both the president and parliament want a new constitution that strengthens their position and power. In April 1992, the Sixth People’s Congress adopted the basic provisions of the new draft constitution. However, the President proposed amendments to the Constitutional Council, which is responsible for formulating the draft constitution. In the draft constitution later published by the Constitutional Council, the Powers of the President were expanded. The Parliament was very dissatisfi ed with this. In determining the schedule of the Seventh People’s Congress, only the agenda of the old Constitution had been amended and the draft new Constitution had not been discussed.In December 1992, the Seventh People’s Congress was held and the Parliament weakened the President’s powers by amending the old Constitution. The president believes that the people’s congress attacks the policies of the president and the government, and that the authoritarianism of legislative power is also dangerous. The president proposed holding a referendum in Russia to resolve the power struggle between the president and parliament. After the victory of the President in a general referendum held on 25 April 1993, the President’s side published the draft constitution of the Presidential version and convened a "constitutional assembly". At this point, the parliamentary side also submitted its own draft constitution. In July 1993, the Constitutional Assembly produced a compromise version of the draft constitution, however, did not settle the power struggle between the President and parliament. In September 1993, with the promulgation of Presidential Decree No. 1400, the confl ict between the two sides quickly intensifi ed and eventually turned into an armed confl ict. On 12 December 1993, a draft constitution was adopted by a referendum in Russia, which was formally adopted in 1993.Despite the irreconcilable differences between the President and the Parliament during the 1993 constitution- making process, there are also some commonality in the draft constitutions of the two sides, namely, the recognition and adherence to the concepts of "rule of law" and "civil society". The process of formulating the 1993 Constitution is tortuous, but it may be understood if it is analyzed and examined in such a grand historical context as the transformation of Russian society
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Petrov, Aleksei A. "Law enforcement practice as an object of constitutional judicial assessment in the Russian Federation: Background, experience, problems". Vestnik of Saint Petersburg University. Law 14, n.º 3 (2023): 668–85. http://dx.doi.org/10.21638/spbu14.2023.307.
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Turning to law enforcement practice has been and remains an important component of the activities of the Russian Constitutional Court. At the first stage of the history of the Russian judicial constitutional control — during the period of the Constitution (Basic Law) of the Russian Federation — Russia of 1978 and the RSFSR Law of July 12, 1991 No. 1599-I “On the Constitutional Court of the RSFSR” — consideration of cases on checking the constitutionality of law enforcement practice was separate authority of the Constitutional Court. In these conditions, law enforcement practice was the direct object of judicial constitutional review. With the adoption of the Constitution of the Russian Federation of 1993 and the Federal Constitutional Law of July 21, 1994 No. 1-FKZ “On the Constitutional Court of the Russian Federation”, the verification of the constitutionality of law enforcement practice was excluded from the competence of the Constitutional Court. At present, the Constitutional Court, while checking the constitutionality of legal acts, actively uses law enforcement practice as one of the means of establishing the meaning of the contested acts. The article shows that the Constitutional Court is constantly faces with the problems of defining the concept of law enforcement practice, which can receive different content in different situations. The question of the criteria under which law enforcement practice should be recognized as established is also unclear. Nevertheless, the importance of law enforcement practice for the activities of the Constitutional Court is generally increasing, which is confirmed, among other things, by the amendments made to the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” in 2020. The conclusion is substantiated that the appeal to law enforcement practice contributes to the adoption of more motivated and balanced decisions by the Constitutional Court.
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von Gall, Caroline. "From “Living Constitutionalism” to “Zombie Apocalypse”. Valery Zorkin, the Constitutional Court and Russian Authoritarianism". Russian History 50, n.º 1-2 (19 de fevereiro de 2024): 89–111. http://dx.doi.org/10.30965/18763316-12340060.
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Abstract The 2020 constitutional amendments marked a turning point for Russian constitutionalism. The Constitution finally lost its limiting function and the Constitutional Court lost significant power. The long-serving Chairman of the Russian Constitutional Court, Valery Zorkin, however, remained in power and continues to guarantee authoritarian legality and approval for Putin through favorable rulings, his theory of state and law, and support for the constitutional amendments in 2020. Over the years, Zorkin has adapted to the increasing authoritarianism of the Putin regime. This is all the more remarkable given that Zorkin was a strong defender of legalism and opposed Boris Yeltsin’s power grab in 1993. The figure of Zorkin can help us explain the development of Russian constitutionalism during the last 30 years and the poses questions for comparative constitutional law.
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Khramova, Tatiana M. "History of court and justice in Russia: in 9 vols / res. eds. V.V. Ershov, V.M. Syrykh. Vol. 9. History of constitutional justice in Russia / V.A. Kryazhkov, M.A. Mityukov". Gosudarstvo i pravo, n.º 9 (2022): 191. http://dx.doi.org/10.31857/s102694520022212-4.
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The review discusses a recent publication dedicated to the history of the Russian Constitution Court, its formation and evolution. The book is one-of-a-kind in the sense that it meticulously reveals the stages of transformation of constitutional justice in Russia. The authors present a rich historical and legal material – from the Orders of Catherine II, inspired by the ideas of the Enlightenment, until the aftermath of the constitutional reform 2020 – in a lively and thrilling manner. A balanced academic approach has enabled the authors to demonstrate the whole variety of viewpoints that exist in the literature regarding various aspects of the formation, organization and performance of the Constitutional Court of the Russian Federation. Overall, the book shows the specific features of the Russian model of constitutional justice, its role in the legal order and the peculiarities of its interaction with other actors. The book raises questions regarding the meaning and consequences of numerous transformations of the system of constitutional review that have taken place in Russia. Particularly, it identifies the risks associated with the large-scale reform of 2020, and highlights the challenges that the Constitutional Court of the Russian Federation is facing in the aftermath of the latest transformation.
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Partlett, William, e Dinesha Samararatne. "Redeeming the National in Constitutional Argument". Verfassung in Recht und Übersee 54, n.º 4 (2021): 461–84. http://dx.doi.org/10.5771/0506-7286-2021-4-461.
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In many countries beyond the traditional comparative constitutional law canon, the advocates of constitutionalism are increasingly appealing to a supra-national constitutional discourse frequently grounded in best practices for constitutionalism. This trend has helped to foster a nationalistic backlash which arguesin which constitutional advocates argue that constitutions should not reflect international constitutional norms but instead must reflect historically-grounded tradition or identity. How should advocates of constitutionalism understand and respond to this backlash? We argue that linking a critical interpretation of national history and the text of the national constitution to constitutionalism can help to counter this nationalist backlash, particularly in constitutional adjudication. Looking at Russia and Sri Lanka, we illustrate how this process of “redeeming the national” can provide new arguments for those interested in advancing the project of constitutionalism. We argue further that this kind of constitutional argument can also help to uncover ways of adapting constitutional principles to particular national contexts.
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Larsen, Bárður, e Kári á Rógvi. "A New Faroese Constitution? – Faroe Islands between Parliamentary Sovereignty and Sub-Sovereign Constitutionalism, between Statutory Positivism and Pragmatic Reasoning". Yearbook of Polar Law Online 4, n.º 1 (2012): 341–63. http://dx.doi.org/10.1163/22116427-91000097.
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Abstract The Bill for a Faroese Constitution [StjórnarskipanFøroya] submitted to Parliament [Løgtingið] on 6 March 2010, proposes a comprehensive Constitution for the Faroe Islands, for the first in history. This seems left somewhat on the late side, since the Faroes are an ancient polity with similar historic developments to Norway and Iceland, both of which got their full-bodied constitutions as sub-sovereign entities, in 1814 and 1874 respectively. Furthermore, few metropolitan powers should prima facie be more accommodating to sub-sovereign constitutions as Denmark, to whose Crown the Faroes have been associated, as she has historically recognised both an Icelandic constitution ‘besides’ and both a Common Constitution1 and EU quasifederal2 structure ‘above’ the Danish one. However, the same proud civil service that produced a beautiful construction of federation with the ‘Basic-Law on the Rights of Nationality’ of 1756 with its elaborate hierarchy of ‘Realms and Lands’ and ‘equivalents’ has perplexingly advised rather strongly against the proposed expression of popular sovereignty of the equivalent Nation of one of these Lands and the intended invitation to continue a long-standing peaceful plurality. In a Note of 2 June 2010, and a supplementary Note of 20 June 2011, the Danish Justice Ministry expressed the disgust of the Danish administrative establishment. The critique mostly focused on the supposed collision course with the Basic Law of the Danish Realm [groundless] and claimed that the Faroese Constitution would create considerable ‘doubt of a constitutional character.’ We argue that the issues raised do not follow from any convincing constitutional doctrine but are more ideological and based on an anti-pragmatic, a-historic and fundamentalist view of constitutional law, best categorised as late-late statutory positivism. As an alternative, we suggest the tradition of the Home Rule compact as a pragmatic and constructive disagreement that the Justice Ministry is about to abandon at its peril. Blocking the development of a living constitutional culture on the Faroe Islands will create tension that will be released somehow. The Ministry’s preoccupation with the proclamation that all power stems from the People of the Faroe Islands is at odds with the classic and almost trivial democratic notion of popular sovereignty. However, this is but the latest skirmish in a larger tragic and unnecessary campaign against realism and, indeed, reality that creates all sorts of problems for a small polity that needs to focus on principled solutions and gradual developments of the particulars of law in all fields.
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Zackin, Emily. "“To Change the Fundamental Law of the State”: Protective Labor Provisions in U.S. Constitutions". Studies in American Political Development 24, n.º 1 (12 de fevereiro de 2010): 1–23. http://dx.doi.org/10.1017/s0898588x09990083.
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As the United States industrialized, its state constitutions began to include protections for laborers. In this article, I describe the origins of these constitutional provisions and ask why labor organizations and other reformers pursued their inclusion in state constitutions. I argue that they saw state constitutions as a vehicle to prompt reluctant legislatures to pass protective statutes, to entrench existing protections against future legislatures, to safeguard labor legislation from constitutional challenges in state courts, and to facilitate further union organizing. Labor activism in this arena is particularly interesting in light of the literature on constitutional change, which contends that constitutional development is a tool through which actors attempt to usher courts into political conflicts; in contrast, I will argue that unions turned to constitutional change in large part to exclude courts from policymaking. Further, the union activism on behalf of constitutional change serves as a challenge to the prominent view among many scholars of American political development and law that judicial hostility to worker rights and union organizing discouraged unions from demanding state protection or institutionalizing their demands through law.
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Cornell, Saul. "Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning". Law and History Review 37, n.º 03 (25 de julho de 2019): 821–45. http://dx.doi.org/10.1017/s0738248019000427.
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Moving beyond the current flaws in originalism will require developing a genuinely historical approach to reading Founding era texts that draws on the best inter-disciplinary methods available. Reading legal texts historically will require originalism adopt standard historical practices, not reject them. Scholars must get the history right before deciding if any of the historical meanings recoverable from a careful study of the original debate over the Constitution might be relevant to modern law. Determining which meanings might be probative or dispositive for modern legal issues is a separate task from the process of uncovering the legal meaning of Founding era constitutional texts. Deciding what, if any relevance, such historical meaning ought to have in contemporary law is at its core a legal question, and not one that history can answer. Still, if legal scholars are going to cite history as authority, they have an obligation to get the history right.
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Preuss, Ondřej. "A DEMOCRATIC STATE GOVERNED BY THE RULE OF LAW – THE CONSTITUTIONAL IDENTITY OF THE CZECH REPUBLIC". Journal of International Legal Communication 2 (25 de setembro de 2021): 51–62. http://dx.doi.org/10.32612/uw.27201643.2021.2.pp.51-62.
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This article aspires to shed more light on the understanding of the notions of the constitutional identity, the material core of a constitution and unamendable elements of a constitution (eternity clauses) and on the concept of essential elements of a democratic state governed by the rule of law as reflected in the practice of the Czech Constitutional Court. The Czech debate is not centred on the use of constitutional identity as a shield protecting local specifics. Quite the opposite. With a certain degree of generalization, we can conclude that the Czech notion of constitutional identity is, at least in the view of the Czech Constitutional Court, deeply grounded in such general concepts as democracy and the rule of law and connected with the material core of a constitution and unamendable elements of a constitution. However, this „legal“ concept of constitutional identity may easily conflict with a „popular“ constitutional identity based primarily on traditional narratives about the formative events of Czech history as perceived by the Czech people and their elected representatives.
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Szmulik, Bogumil, e Andrzej Poglodek. "THE CONSTITUTIONAL COMPLAINT IN THE POLISH SUPREME LAW -- A QUEIXA CONSTITUCIONAL NA LEI FUNDAMENTAL DA POLÔNIA". Espaço Jurídico Journal of Law [EJJL] 17, n.º 1 (1 de junho de 2016): 29–46. http://dx.doi.org/10.18593/ejjl.v17i1.10348.
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Abstract: The article presents the institution of the constitutional complaint in the 1997 Constitution of the Republic of Poland. For the first time in the history of Polish constitutionalism the current supreme law made it possible for the citizens to directly appeal to the Constitutional Tribunal in order to protect their laws and liberties guaranteed by the supreme law. The article describes the origin of the institution of the constitutional complaint in Europe and in Poland. The main focus, though, is on the extended analysis of the scope and coverage of the constitutional complaint, together with the conditions set by the legislators that must be met for the complaint to be filed. The paper is concluded with the observations on the constitutional regulations and the practice of their applications in the work of the Constitutional Tribunal.Keywords: Constitutional Complaint. Constitutional Tribunal. Human Rights. Constitution Poland.
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Benedict, Michael Les. "Constitutional History and Constitutional Theory: Reflections on Ackerman, Reconstruction, and the Transformation of the American Constitution". Yale Law Journal 108, n.º 8 (junho de 1999): 2011. http://dx.doi.org/10.2307/797381.
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Heinig, Hans Michael. "The Political and the Basic Law'sSozialstaatPrinciple—Perspectives from Constitutional Law and Theory". German Law Journal 12, n.º 11 (1 de novembro de 2011): 1887–900. http://dx.doi.org/10.1017/s2071832200017624.
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The welfare state aspect is among the central characteristics of German statehood as established by the constitution. For the Basic Law's drafters, it was so indispensable that they included the mandate of a welfare state in the catalogue of constitutional principles which are to have eternal validity within the constitution and which could only be dispensed with at the cost of breaching the constitution, the cost of revolution (Article 79(3) of the Basic Law (Grundgesetzin German; hereinafter “GG”)). Article 79(3) GG codifies the distinction between constitution and constitutional provision made prominent by Carl Schmitt, whose constitutional doctrine of 1928 asserted that, while the constitutional legislature can amend an individual provision in the constitution, the constitution as a whole is not to be changed short of political action transcending the law, that is, a revolution. Article 79(3) GG takes up this idea, insulating certain features of the constitution from amendment. These features—outside all democratic reach and thus quasi depoliticized—include the inviolability of human dignity (Article 1(1) GG) and the nature of the state as a democracy, a republic, a federal state based on the rule of law, and a “social” state (Article 20(1) GG). On closer scrutiny, the principles underlying the state's structure reveal a significant difference between, on the one hand, the principles of democracy, federalism, the rule of law, and republicanism and, on the other, the principle of the welfare state. The four former features stem from long traditions in constitutional law; modern political philosophy has detailed them precisely and the Basic Law concretizes them in thorough regulations. In contrast, the political history of ideas has failed to produce a “flag-bearing” thinker for the welfare state. The establishment of the welfare state has played no significant role in constitutional history. And, on first glance, even the Basic Law seems to provide hardly any specifics as to what exactly makes up its “social” state or, in particular, what normative consequences follow from this constitutional principle. This raises the question: What actually justifies the principle of the welfare state's illustrious position among those constitutional entities endowed with highest relevance? The following discussion develops the answer: Regardless of its limited historical and theoretical traditions, the principle of theSozialstaatfinds its meaning beyond its doctrinal content in its own distinct, symbolic substance.
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Leonard, Gerald. "Law and Politics Reconsidered: A New Constitutional History of Dred Scott". Law & Social Inquiry 34, n.º 03 (2009): 747–85. http://dx.doi.org/10.1111/j.1747-4469.2009.01164.x.
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This essay synthesizes recent writing on the constitutional history of slavery, featuring Mark Graber's Dred Scott and the Problem of Constitutional Evil (2006). It offers a historical and legal analysis of Dred Scott that attempts to clarify the roles of both law and politics in controversial judicial decisions. It joins Graber in rehabilitating Chief Justice Taney's Dred Scott opinion as a plausible implementation of a Constitution that was born in slavery and grew only more suffused with slavery over time. It integrates much recent writing on the social, political, and constitutional history of slavery to develop the context in which the Dred Scott opinions must be read. And it finds that Justice Curtis's celebrated dissent amounted to an unjudicial manipulation of the law, albeit for the higher purpose of striking at the political hegemony of the slaveholding class. This essay is an abridgement of a longer work (Leonard 2009) that offers, among other things, further analysis of the unjudicial character of Curtis's dissent.
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Accetto, Matej. "On Law and Politics in the Federal Balance: Lessons from Yugoslavia". Review of Central and East European Law 32, n.º 2 (2007): 191–231. http://dx.doi.org/10.1163/092598807x165622.
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AbstractIn trying to build a supranational polity while paying heed to member states' autonomy concerns, modern supranational 'projects' such as the European Union find themselves where others have been before. This article explores a surprising but pertinent 'ancestor' that, albeit in sharply different societal arrangements, had grappled with the same challenges of balancing integration and autonomy: the former Yugoslavia.The author starts by tracking the development of Yugoslav federalism through its several constitutional incarnations: from the meager federal features of the 1946 Constitution and the similarly centralistic constitutional developments in the 1950s and the 1960s to a stronger federalization of Yugoslavia that culminated with the 1974 Constitution. After a general outline of the constitutional development, the article focuses on the relationship between law and politics in maintaining the federal balance, highlighting the role of the federal Constitutional Court in achieving a proper balance between the centrifugal and the centripetal forces in the federation. Finally, the main theories on the dissolution of Yugoslavia and the role of the federal Constitutional Court are briefly analyzed.In the conclusion, the author attempts to draw out the lessons that the Yugoslav experience may offer contemporary polities faced with the same challenges, focusing on the role of the judicature and the relationship between law and politics in safeguarding the federal bargain.
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Monballyu, Jos. "The force of law of decree-laws in Belgium during and after the First World War". Tijdschrift voor rechtsgeschiedenis 83, n.º 1-2 (31 de maio de 2015): 248–87. http://dx.doi.org/10.1163/15718190-08312p12.
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When Belgium was overrun by Germany in 1914 neither the Belgian constitutional legislator, nor the Belgian legislator had determined how the police powers of the civil authorities could be transferred to the military authorities in the case of a war. Article 130 of the Constitution determined that the Constitution and the constitutional rights and freedoms it provided could never be suspended wholly or in part. This created a problem. There were several statutes which provided merely a limited answer for some situations. When Belgian military authorities instead of civil authorities took measures which invaded upon constitutional rights, disputes arose. In order to avoid these, the Belgian King enacted the decree-law concerning the state of war and the state of siege on 11 October 1916. Many provisions of this decree-law had been taken from the French war laws of 9 August 1849 and 4 April 1878, but – contrary to these French laws – the Belgian decree-law was not based on a formal constitutional stipulation. This decree-law, which contravened the Belgian Constitution of 7 February 1831 and the fundamental rights and freedoms which were safeguarded by this Constitution in several respects, made it possible to take a number of measures during the state of war and the state of siege. As soon as these different provisions were applied, several citizens protested against them. Their protest was mainly aimed at the force of ‘law’ of the decree-law of 11 October 1916 and all of the other decree-laws. The rest of this contribution will detail when and why this protest took place, as well as how the Belgian administration of justice dealt with this protest.
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Šinkūnas, Haroldas, e Dovilė Pūraitė-Andrikienė. "The Principle of Separation of Powers: the Case of Lithuania". Review of Central and East European Law 48, n.º 2 (7 de agosto de 2023): 166–93. http://dx.doi.org/10.1163/15730352-bja10080.
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Abstract The principle of separation of powers is one of the most important constitutional principles underlying the organization of public power. In interpreting this principle, the Lithuanian Constitutional Court has defined it is a fundamental principle of the organization and functioning of a democratic state governed by the rule of law, which requires not only separation of the branches of government but also ensuring a balance between them. The constitutional rule stating that ‘in Lithuania, State power is executed by the Seimas, the President of the Republic and the Government, and the Judiciary’ is the starting point for revealing the content of the principle of separation of powers enshrined in the Constitution. This article discusses the exercise of legislative, executive and judicial powers by the public authorities specified in the Constitution and presents some cases of violation of the constitutional principle of separation of powers that have been examined by the Lithuanian Constitutional Court. These issues are analyzed in the context of challenges to the principle of separation of powers in other Central and Eastern European countries.
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Sloth-Nielsen, Julia. "Sideswipes and Backhanders: Abolition of the Reasonable Chastisement Defence in South Africa". International Journal of Law, Policy and the Family 34, n.º 2 (1 de agosto de 2020): 191–203. http://dx.doi.org/10.1093/lawfam/ebaa005.
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Abstract This article reviews the abolition of the defence of reasonable chastisement by the South African Constitutional Court on the grounds that it infringes the Constitution. After detailing the history of the abolition of corporal punishment in a democracy with the Constitution as supreme law, the article dissects the reasoning of the Constitutional Court. It argues that judgment in Freedom of Religion South Africa v Minister of Justice and Constitutional Development (hereafter FORSA), whilst overall positive in its result, is probably a low water mark in the development of children’s rights jurisprudence in South Africa. There are a number of inadequacies and strangely deferential statements in the FORSA decision. Whilst inescapably coming to the constitutionally correct decision, the reluctance of the Court to reach this point, and its desire to accommodate the religious and cultural beliefs of the appellants, is evident. The way forward has, as a result, been left rather obscure.
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Hasani, Enver. "The Role of the Constitutional Court in the Development of the Rule of Law in Kosovo". Review of Central and East European Law 43, n.º 3 (13 de agosto de 2018): 274–313. http://dx.doi.org/10.1163/15730352-04303003.
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Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, comparing it with other former communist countries. Among the specific features of constitutionalism in Kosovo are the role and position of the international community in the process of constitution-making and the overall design of constitutional justice in Kosovo. Throughout the article, a conclusion emerges that puts Kosovo’s Constitutional Court at the forefront of the fight for the rule of law and constitutionalism of liberal Western provenance.
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Müßig, Ulrike. "Constitutional developments after 1830: towards a balance between monarchical and popular sovereignty". Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 79, n.º 3-4 (2011): 489–519. http://dx.doi.org/10.1163/157181911x596402.
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AbstractThe constitutional developments and debates during the first half of the 19th century, in particular following the French and Belgian revolutions of 1830 and the introduction of new written constitutions (the French Charte of 1830 and the Belgian constitution of 1831) show the dynamics between the Executive, still largely controlled by the monarch, and the parliamentary representation. Although the balance of power differed from one political system to another, the dual system established during the July Monarchy, which increasingly called for a government and government policies which were acceptable to both the monarch and a majority in Parliament, affected the developments throughout Europe.