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Geneza instytucji "judicial review" w amerykańskim porządku konstytucyjnym - konstytucyjne uprawnienie czy studium uzurpacji władzy

Author(s): Artur W. Wróblewski / Language(s): Polish Issue: 39/2015

The article outlines the history of judicial review from the historical perspective, based on the most important decisions made by the Supreme Court in the first period of its operation – decisions that influenced the contemporary legal and political system of the United States. The author analyses the nature of the legal instrument nowhere mentioned in the text of the constitution which yet has become the source of vast influence and policymaking. The institution of judicial review has become a kind of constitutional phenomenon that had both good and bad effects on American society in different historical periods. The article attempts to deconstruct the venerated institution and explain the position of federal judges in the American political system by evaluating critically the positive and negative impacts of the Supreme Court’s policies.

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Tragika liberalizma. Pragmatizam i perfekcionizam u liberalnoj pravnoj državi

Author(s): Bert van den Brink / Language(s): Croatian Issue: 01/1995

The author thinks that liberalism, as a political doctrine, is imanently contradictory, the contradiction being embodied in its two variants. The perfectionist doctrines by William Galston and Joseph Raz advocate liberal forms of good life (autonomy, tolerance, openess to the world), while the antiperfectionist doctrine of John Rawls limits itself to defining the procedural foundations of justice. Raz’s and Galston’s liberal perfectionism is in danger, in the name of liberal values and virtues, of violating the principle of neutrality of political autiiority in relation to individual choice of values, while Rawls’s concept of procedural justice cannot steer clear of the danger that the total permissiveness regarding individual value options eventually undermines the foundations of liberal society. The author concludes that the balance between perfectionism and anti perfectionism is essential for the defence of liberalism. Such argumentational strategy has to take into consideration the liberal notion of justice, the necessity of a liberating democratic politics and the concept of a citizen as a subject who, by practising active tolerance, accepts the responsibility for the community.

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Policy and prevention efforts for gaming should consider a broad perspective

Author(s): Nancy M. Petry,Kristyn Zajac,Meredith Ginley,Jeroen Lemmens,Hans-Jürgen Rumpf,Chih-Hung Ko,Florian Rehbein / Language(s): English Issue: 3/2018

Internet gaming disorder is gaining attention around the world. Some efforts have been directed toward preventing gaming problems from developing or persisting, but few approaches have been empirically evaluated. No known effective prevention intervention exists. Reviewing the broader field of prevention research should help research and best practices move forward in abating problems that arise from excessive gaming.

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Does the Plenary Session of the Italian State Council Become a Common Law Judge?

Author(s): Giovanni Pesce / Language(s): English Issue: 1/2018

The article embraces the question of competence of the Italian Council of State (Consiglio di Stato) in the light of orders referred to in Article 99 of the Italian Administrative Procedure Code. The Council of State is a consultative legal-administrative organ, which guarantees the legality of the public administration. It is considered a bastion of the rule of law. Therefore, the author asks questions regarding the transformation of the system of justice in administrative cases towards common law. Conclusion: the administrative jurisdiction applies its competences for the benefit and protection of a citizen. Based on Article 99 of the Administrative Procedure Code, the mechanism consisting in applying the precedential practice imposes the forms of institutional cooperation in the administrative jurisdiction system. The author claims that a binding precedent is fully consistent with the principle of the rule of law and legality.

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Building Liberal theory in the Age of Modern Constitutionalism: Judicial Interpretations and Political Thinking in Emanoil Chinezu’s Studies

Author(s): Cosmin Lucian Gherghe / Language(s): English Issue: 41/2014

Constitution drawn up by Emanoil Chinezu was based on the principle of the separation of powers within the State, the legislative power was collectively exercised by ”the national representation” and the Prince, the executive power being entrusted to the Senate, while the judicial power was exercised by courts and tribunals. Just as the Paris Convention of 1858, it was provided an elective, but not foreign monarchy, the Prince had to be a Romanian citizen. The value of this document lies in the attempt to present in a new form, influenced by the West spirit, the old traditions of the Country and the desiderata constantly expressed by the nobility in its various memoirs. The author of the constitution draft pursued the organisation of a State subject to the rule of law, founded on the principles of the French revolution and the old Romanian settlements, in order to give the Country a Constitution.

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The Political Dimension in the Work of the International Tribunal for the Former Yugoslavia: ICTY as a Form of Political Justice

Author(s): Miša Đurković / Language(s): English Issue: 2/2018

In 1961 Otto Kirchheimer published his book Political Justice. The book was trying to illustrate how laws and courts are being used in political struggle. In this article, the author tries to apply this concept to the work of International Criminal Tribunal for Yugoslavia, and he tests the hypothesis claiming that transitional justice in ICTY case actually became political justice. He focuses on the ways in which ICTY was used as a tool of great powers to manipulate and influence political processes in the countries of former Yugoslavia that were subjected to it. The timing of issuing indictments, the length of the processes, the threats of indicting as a pressure, verdicts, work of appeal councils, etc, have been massively used as tools against political actors and the states during the work of ICTY. Justice was also used as a conditionality instrument during the process of European integration which also makes it a form of political justice. The author concludes by explaining why ICTY rose serious reservations among peoples of former Yugoslavia about the concept of transitional justice and the ways in which it is implemented, seeing in it plenty of elements of political justice.

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Ustavnost vanrednog stanja (OGLEDI VII-XII)

Author(s): Marijana Pajvančić / Language(s): Serbian Issue: 115/1995

Mnogi savremeni ustavi poznaju jednu specifičnu situaciju u kojoj ustavni sistem ne funkcioniše na redovan način, već u njemu nastupaju određeni poremećaji. Uzroci koji dovode do odstupanja i poremećaja u funkcionisanju ustavnog sistema mogu biti različiti unutrašnji i spoljni činioci i prilike. U takvim okolnostima ustavni sistem funkcioniše po posebnim pravilima. U samom ustavu predviđeno je na koji način će funkcionisati ustavni sistem u vanrednim prilikama. (

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US LEGAL SYSTEM IN THE CONTEXT OF ENGLISH LEGAL HERITAGE AND THEORY OF THE NATURAL RIGHTS OF JOHN LOCKE

Author(s): Gordana Bekčić Pješčić / Language(s): English Issue: 4/2018

The paper discusses several characteristics of the US legal system that rest upon English legal heritage, brought from England to North America by the first colonists. The author starts from the premise that constant modifications of basic principles of English common law system and legal and judicial practice gave rise to a specific US legal system that has a dual nature, based on common law principles on the one hand and the letter of the written law on the other. The paper also analyzes the legacy of the philosophical system of John Locke on natural rights, the status of property and the government on establishing American political and legal thought, embodied in the Declaration of Independence and the Bill of Rights.

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Teisėkūros sąveikų su viešąja politika ypatumai Lietuvoje

Author(s): Algimantas Urmonas / Language(s): Lithuanian Issue: 1/2019

Legislative public policy in Lithuania is a specific area of state activity, where the reasons for the purpose of lawmaking and change are analyzed. Also decisions are made to improve the drafting of laws and the accompanying legislation, to increase the efficiency of legal regulation, and the legislative measures try to solve social problems. However, the formation of legislative provisions in the field of public policy and administration of its implementation in Lithuania is characterized not only by links, but also by large gaps between these phenomena, because of the linkup and confrontation between different interests. And this is perfectly understandable, because public policy is based on a utility and law is a paradigm of justice. That is why politicians use the legislative powers in the context of todayʼs reality, having a multiplicity of interests, not only duplicates by his behaviour, but sometimes also focuses on a larger scale of social roles. A politician, who at the same time is a legislative subject, focuses not only on the electorate, but also on the political interests of the political party, and the protected economic interests of business representatives. Finally, he has some personal interests in his presence in power. As the dysfunctional legislative practice shows, there are also cases where the main goal of the politician is not justice, but the desire to gain as much populist popularity as possible, in the hope that all the ways are good: disregard for laws, nihilistic thinking that eliminates the sense of reality and delete the boundaries of differences between illusion and reality.

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A Magyar–Szlovák Kisebbségi Vegyes Bizottság múltja, jelene és elért eredményei

Author(s): Csilla Varga / Language(s): Hungarian Issue: 2/2019

The protection of and dealing with national minorities in general can be carried out on three different levels: on multilateral, bilateral, and domestic level. The multilateral scope includes activities of international bodies urged by states devoted to the issue. At domestic level, countries have the possibility to secure different rights for national minorities living on their territories, based on their minority-related approach. The present paper, however, examines the bilateral scope of cooperation in support of national minorities, which cooperation can be achieved through bilateral treaties and agreements. The paper also focuses on the work of the Joint Slovak-Hungarian Committee on Minority Affairs established in 1995 by the Basic Treaty signed between the two countries.

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Međuzavisnost ustavnog poretka i političkih stranaka na tri primera iz Nemačke – povodom 70 godina Osnovnog zakona

Author(s): Miloš B. Stanić / Language(s): Serbian Issue: 2/2019

Političke stranke su neizostavan činilac svake savremene parlamentarne demokratije, bez kojih ona ne bi ni mogla da funkcioniše. Međutim, zbog njihove važnosti, nesumnjivo je povećan njihov faktički i pravni uticaj na pravni poredak u celini, što bi moglo da izazove probleme u smislu njihovog protivustavnog delovanja, iako su one pod ustavom, a često su i ustavna kategorija. Upravo je Nemačka dobar primer uspešne interakcije između stranaka i ustavnog poretka. Njima se daje sloboda delovanja na osnovu odredaba Osnovnog zakona, ali uz vođenje računa da se čitav sistem ne dovede u opasnost. U ovom radu se prikazuju tri primera takve interakcije. Prvi primer je odnos parlamentarne grupe, kao emanacije političkih stranaka u parlamentu, i poslanika. Drugi je mera zabrane političkih stranaka koja deluje protivustavno, dok je treći način izbora sudija Saveznog ustavnog suda. U radu se zaključuje da je neophodno pronaći idealnu formulu slobode njihovog delovanja, prema kojoj se političkim strankama dozvoljava svaka akcija koja je blagotvorna za ustavni poredak, dok im se, s druge strane, zabranjuje samo ono delovanje koje ima razarajući efekat za sistem u celini.

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МОГУЋНОСТИ МОДЕРНЕ ЛЕГИТИМАЦИЈСКЕ ФОРМУЛЕ У СРБИЈИ

Author(s): Srećko Mihailović / Language(s): Serbian Issue: 3-4/1998

The author addresses the following questions: what are the current legitimation formulas in Serbia, who are their social carriers and what are the prospects for practicing a modem legitimation formula. Ethno-legitimation, as a specific neoreligious legitimation formula, has been produced by almost complete Serbian political elite, supported by a great number of citizens. Economic legitimation formula appears more as a crying demand of ever larger number of citizens than as an option with a real political representative. Political legitimation formula almost never appears in its integral form, by no means at the level of an organized political behavior, and rarely at individual level; it often appears as a negative formulation (as delegitimation, not a demand for legitimation), most often as a set of segmented demands (and types of behavior) by various social groups and aggregates; some of these demands are taken to the organizational level of politics, some appear in the civil society sphere, while others exist at the level of private actions.

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Ustavnosudski aktivizam u Crnoj Gori

Author(s): Hamdija Šarkinović / Language(s): Bosnian Issue: Dodatak/2019

Work under the topic: „Constitutional judiciary activism in Montenegro“ analyzes the issue of relation among law and politics. Paper aims to give an answer on two questions which are considered as issues. First question, whether the existence of the constitutional judiciary and judicial activism complicates the legislative process and political life and second question where the limits of the judicial activism in Montenegro are? This paper attempts to highlight the importance of judicial activism for establishing legal security while emphasizing that the Parliament is limited in making decisions in accordance with the Constitution and the importance of the Constitutional Courts in achieving principles of constitutionality, legality and the rule of law.

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Selected Challenges Associated with Civil and Political Rights Violations in Zimbabwe (Part 2)

Author(s): Pontsho Mokone,Howard Chitimira / Language(s): English Issue: 3/2018

Civil and political rights abuses are still rife in Zimbabwe. This could have been worsened by the inconsistent and selective application and enforcement of the the Lancaster House Constitutionof Zimbabwe 1979 (SI 1979/1600) as amended by Act 1 of 2009 which introduced amendment 19 of 2009 (Lancaster House Constitution) as well as the Zimbabwe Constitution Amendment Act 20 of 2013(Zimbabwe Constitution 2013). Ironically, most of these abuses are sometimes committed by government enforcement agencies against any persons that are deemed to be opponents and/or enemies of the state and its organs in Zimbabwe. Therefore, as indicated in Part I of this article, selected factors affecting the protection of civil and political rights in Zimbabwe are discussed in this article.

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Review on “Dezvoltarea regională. De la teorie la practică” authored by Daniela ANTONESCU, LUMEN Publishing House

Author(s): Elena Gafton / Language(s): English Issue: 1/2019

The volume Dezvoltarea regională. De la teorie la practică (Regional Development. From Theory to Practice) authored by Daniela Antonescu, published by LUMEN Publishing House, aims to create an image on the process of regional development in Romania starting from the analysis of the evolution of territorial inequalities as well as of the economic convergence process that takes place under the impact of the cohesion policy of Europe 2020 strategy.The specific approaches to this volume are of a theoretical-methodological nature, with the aim of reviewing the entire range of recent theories in the field of regional sciences as well as the model of analysis of public policies, as well as a second direction aimed at the analysis of territorial cohesion as well as the economic and social inequalities that have emerged at regional level, both in Romania and at European Union level. (Antonescu, 2019, p. 14).

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Ademia: Agamben and the Idea of the People

Author(s): Gian Giacomo Fusco / Language(s): English Issue: 89/2019

In the volume Stasis. Civil War as a Political Paradigm, the Italian philosopher Giorgio Agamben advances the thesis that ademia – the absence of a people (a-demos) – is a constitutive element of the modern state. When confronted with the fact that modern political and juridical thought elevated the people to the role of the sole chief constituent agent and the ultimate source of the legitimacy of constituted orders, this thesis turns out to be rather problematic. In this work, I will explore Agamben’s notion of ademia, retracing the main lines of its theoretical development and reconsidering it in relation to different interpretations of the idea of the people. Most notably, I will demonstrate how Jean-Jacques Rousseau and Carl Schmitt in challenging the conundrums that the idea of the people inevitably entails ended up in revealing the ultimate absence of the people in the political space of the constituted order of the state. In doing so, I will try to show how Agamben’s notion of ademia is helpful is grasping some of the main paradoxes and conundrums underpinning the meaning and the uses of the idea of the people in legal and political thought.

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Political Influence as Important Factor which Restricts the Independence of the Serbian Judiciary

Author(s): Miloš Bokić / Language(s): English Issue: 22/2019

The influence of politics and politicians on the Serbian judiciary exists since 1990 and the beginning of party pluralism in Serbia. Despite the existence of political consensus about necessity of judiciary reform, it is obvious that efforts of previous governments did not bring about much progress in this area. The modernization of the Serbian judiciary and enhancement of its efficiency have been the starting points of the judiciary reform since 2010. Although the main goal of the reform was an improvement of the situation in the Serbian judiciary, the entire procedural framework of the judicial reform was and still is seriously criticized. The decision of the Constitutional Court of Serbia in July 2012 confirms that reform of Serbian judiciary was not conducted in a democratic manner. Judicial independence as one of the basic democratic principles is an important indicator of the political maturity of a society. It is clear that Serbian political elite did not have the courage to realize the political promises which they gave to their voters. Serbian society needs to work a lot on implementation of the fundamental reforms, especially on the judiciary reform in order to fulfil the conditions for the full membership in the European Union.

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LJUDSKA PRAVA U PRAVNOM SISTEMU SRBIJE

Author(s): Author Not Specified / Language(s): Serbian Issue: 1/2019

Srbiju obavezuju svi najvažniji univerzalni međunarodni ugovori o ljudskim pravima.1 Od konvencija o ljudskim pravima usvojenim pod okriljem UN Srbija nije ratifikovala još samo Konvenciju o pravima radnika migranata, iako ju je potpisala još 2004. godine. Srbija je takođe ratifikovala Dopunski protokol uz Ženevske konvencije od 12. avgusta 1949. o usvajanju dodatnog znaka raspoznavanja (Protokol III), Konvenciju o očuvanju nematerijalnog kulturnog nasleđa, Konvenciju o zaštiti ljudskih prava i dostojanstva ljudskog bića u pogledu primene biologije i medicine: Konvencija o ljudskim pravima i biomedicini.

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"Przestępstwa bez ofiar" w świetle polskiej Konstytucji oraz orzecznictwa Trybunału Konstytucyjnego

Author(s): Michał Szymański / Language(s): Polish Issue: 1/2018

The term “victimless crimes” is one of the leading concepts of American criminology, also used by libertarian circles. It assumes that acts that do not cause harm to the other person (or are made with his consent) should be legal. This theory has also found a resonance in American constitutionalism, whereas in Polish science of constitutional law this concept is virtually unknown. The case law of the Constitutional Tribunal is also more conservative and paternalistic than libertarian. The Tribunal did not consider unconstitutional provisions to drive a car with fastened seatbelts. Possession of marijuana for own use also, in the Court’s opinion, may also be prohibited by Polish law and the justifi cation used typical conservative arguments. The Polish Constitution also protects public morality, which is in direct contradiction to libertarianism. The author of the concept, Edwin Schur, also considered abortion as “victimless crime”. The Constitutional Tribunal has an extremely diff erent position, recognizing the need to protect unborn life. The axiology of the Polish Constitution is closer to the same spirit of Christian democracy than to extreme liberalism.

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Diplomația sănătății - o formă de diplomație publică

Author(s): Lucian Jora / Language(s): Romanian Issue: 2/2020

Health Diplomacy (HD) suddenly and unexpectedly has reached the forefront of international relations (IR) at the beginning of 2020, projected by a global pandemic of dimensions that humanity has not seen for more than a century. In the history of human communities, the fall or rise of state structures is due to health problems more than political events. The architecture of Health diplomacy (HD) is complex because it addresses intersectorally any political, social or economic field that has a relevant dimension for health (practically any field). HD may help small countries with expertise in the field to play a more significant role on IR in the same “league” as the big international players. Also health assistance during a major crisis may help opening more sensitive files and negociations in the economic and politic field. HD inter-sectoriality implies on the part of practitioner’s intersectorial negotiation skills, hence the need for training programs in the field of HD. As HD involves the interweaving between foreign policy and the field of public health, practitioners must know how to harmonize experts from the two fields within functional teams.

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