LSN: International & Comparative Law (Topic)最新文献

{"title":"The Dogmatic Slumbers of Constitutional Doctrine","authors":"S. Feyen","doi":"10.2139/ssrn.3123064","DOIUrl":"https://doi.org/10.2139/ssrn.3123064","url":null,"abstract":"My forthcoming (2019) dissertation raises the question whether European constitutional scholarship has adequately dealt with some of the challenges American Legal Realists have launched. \u0000There, I undertake to reconstruct some of the claims of American legal realism so as to be able to critically subject European constitutional scholarship to these claims. Conversely, I (re)construct some theoretical and methodological answers that have been proffered so as to fend off the aforementioned challenges. The defense resting on the justificatory focus of legal scholarship (as opposed to a focus on discovery) has been one of the common responses, as I try to explain below, to dislodge realist criticism. \u0000Relativizing the context distinction in the context of legal scholarship, as I will try to do here, does not by itself provide a conclusive argument for a reconceptualization of doctrinal scholarship. However, in my dissertation I offer additional arguments to establish the need for this reconceptualization, focusing on the relativity of the autonomy of the law as an object of inquiry for legal scholarship, and discussing the concept of “reification” as I see it emerging out of legal realist thought. This is a work in progress, which I am happy to discuss further.","PeriodicalId":250773,"journal":{"name":"LSN: International & Comparative Law (Topic)","volume":"123 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129291414","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Protecting Democracy Inside the EU: On Article 7 TEU and the Hungarian Turn to Authoritarianism, in CLOSA","authors":"B. Bugarič","doi":"10.1017/CBO9781316258774.006","DOIUrl":"https://doi.org/10.1017/CBO9781316258774.006","url":null,"abstract":"The European Union is facing a unique historical situation: a political club of democratic regimes established primarily to promote peace and prosperity in post-World War II Europe is confronted with the first EU member state ever sliding into an authoritarian illiberal political regime. The Fidesz government achieved a fundamental revision of the rules of the constitutional and political order in Hungary. In only five years it managed to transform Hungary from one of the success stories of the transition from Communism to democracy into a semi-authoritarian regime based on an illiberal constitutional order by systematically dismantling checks and balances, undermining the rule of law, limiting independence of judiciary, almost destroying press freedom, attacking civil society and increasing executive power. As a consequence, the new Hungarian constitutional order is in a direct conflict with the ‘fundamental values’ of the EU “political” constitution, such as democracy, the rule of law and respect for human rights. One of the most important legal questions facing Europe today is how well is the EU equipped, legally and politically, to defend democracy and the rule of law in its member states?While EU constitutional law contains a legal provision designed to deal with such a situation, this provision is often criticized as largely inadequate to provide for a toolkit with which to intervene effectively in the internal matters of member states. A major problem surrounding the debate whether to use or not to use Article 7 in case of Hungary has less to do with the legal intricacies of Article 7 than with the absence of political will to use it. The current EU economic and political crises have weakened the ability of the EU institutions to effectively tackle the Hungarian problem. With trust in EU at an all time low and with unwillingness of the EU political elites to adequately acknowledge the gravity of the Hungarian problem, it is quite unlikely that sanctions, even if imposed, would actually achieve desired results.","PeriodicalId":250773,"journal":{"name":"LSN: International & Comparative Law (Topic)","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114183482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"La Corte Oltre Lo Specchio - Un Dialogo Tra Giudici Constituzionali con Sabino Cassese e Daria de Pretis (The Court Through the Looking-Glass - A Dialogue between Constitutional Justices: An Interview with Sabino Cassese and Daria de Pretis)","authors":"G. Rugge, V. Volpe","doi":"10.2139/SSRN.2772480","DOIUrl":"https://doi.org/10.2139/SSRN.2772480","url":null,"abstract":"Italian Abstract: La seguente intervista ai professori Sabino Cassese e Daria de Pretis, rispettivamente giudice emerito e giudice della Corte costituzionale italiana, si e svolta il 12 novembre 2015 nell’ambito dei Dialoghi Italiani, il discussion group del Max Planck Institute for Comparative Public Law and International Law (MPIL) di Heidelberg dedicato al mondo politico e istituzionale italiano.L’incontro - in lingua italiana e rivolto a un pubblico di accademici italiani e stranieri - ha seguito il formato della doppia intervista toccando alcuni dei temi piu attuali che investono la Corte costituzionale italiana: dalla tutela dei diritti acquisiti all’introduzione della dissenting opinion, dalle dinamiche decisionali interne, al ruolo della comparazione e dei network informali di giudici nell’adozione delle decisioni. Il risultato e stato un vivo scambio d'idee e di opinioni, a tratti convergenti a tratti divergenti, ma sempre alte e preziose per comprendere il vero significato dell’attivita della Corte.Il titolo dell’incontro si e ispirato al seguito di Alice nel Paese delle Meraviglie1, il cui incipit vede Alice domandarsi davanti allo specchio se davvero l’immagine riflessa della stanza corrisponda al vero e cosa si nasconda invece in quello squarcio nascosto alla vista dell’osservatore. Questo dialogo-intervista e nato dalla stessa curiosita di Alice per cio che si vede e per cio che non si vede e siamo grati ai giudici costituzionali Sabino Cassese e Daria de Pretis e ai direttori del MPIL, Armin von Bogdandy e Anne Peters, per aver consentito la sua realizzazione, contribuendo a svelare la Corte oltre lo specchio.English Abstract: The following interview with professors Sabino Cassese and Daria de Pretis, Emeritus Justice and Justice, respectively, of the Italian Constitutional Court, took place on 12 November 2015 as part of Dialoghi Italiani, the discussion group of the Max Planck Institute for Comparative Public Law and International Law (MPIL) in Heidelberg dedicated to examining significant developments in the Italian political and institutional world.The meeting - held in Italian and addressed to both Italian and international academics - followed the format of a double interview. Focusing on the most relevant issues that affect the functioning and working methods of the Italian Constitutional Court, it touched on the protection of acquired rights, the introduction of the dissenting opinion, internal decision-making dynamics and the role of comparison and informal networks of judges in the decision-making process. The result was a lively exchange of ideas and opinions - at times convergent, at times divergent - but always highly informative and precious for an understanding of the true nature and role of the Court.The title was inspired by the sequel to Alice in Wonderland, whose incipit depicts Alice standing in front of a mirror, wondering if the reflection of the room she sees indeed corresponds to reality and what lies beyond","PeriodicalId":250773,"journal":{"name":"LSN: International & Comparative Law (Topic)","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131135990","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Machiavelli, Guicciardini and the 'Governo Largo'","authors":"C. Pinelli","doi":"10.1111/raju.12081","DOIUrl":"https://doi.org/10.1111/raju.12081","url":null,"abstract":"Niccolo Machiavelli's support for what he calls governo largo, or popular government, is usually contrasted with the diffidence towards it of Francesco Guicciardini, the Florentine aristocrat. The article argues that both these authors grounded their vision on Polybius' theory of “mixed government,” though adapting it in different directions. In examining this difference, the article reaches the conclusion that it concerns far less the degree of popular participation in political decision‐making and government than the value that Machiavelli and Guicciardini respectively ascribe to it in comparison with that of safety‐liberty (or legal certainty). In this respect, their theories may be viewed as anticipating the tensions between democracy and the rule of law, the co‐presence of which provides the essential foundation of the structure of present‐day constitutional democracies.","PeriodicalId":250773,"journal":{"name":"LSN: International & Comparative Law (Topic)","volume":"1 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115046495","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Does the Emperor Really Have New Clothes? A Critical Assessment of the Post-Lisbon Regime of Division of Competences","authors":"B. Fekete","doi":"10.5553/HYIEL/266627012013001001005","DOIUrl":"https://doi.org/10.5553/HYIEL/266627012013001001005","url":null,"abstract":"This article argues that the reform of competences introduced by the Lisbon Treaty can be regarded neither a real revolution nor even a considerable evolution, since it is of a strong conservative nature. That being said, the transformation of the legal framework of the vertical division of powers did not establish a qualitatively new regime. It only systematized and codified the achievements of the earlier case law of the European Court of Justice and some former treaty provisions. However, the real achievement of the changes is the introduction of a federal attitude and vocabulary. The text of both the Treaty on the European Union and Treaty on the Functioning of the European Union relies on essential terms rooted in federalism such as for instance ‘exclusive’, ‘shared’ or ‘member state’ competences. Therefore, the distribution of powers between the Union and the member state is articulated in a clear federal way. Indeed, it can be regarded a real novelty compared with the prior-Lisbon regime evolving in the context of delicate and sophisticated political and judicial compromises. Lastly, although the new regime was obviously inspired by a federal mindset, it cannot be equated with a real federative government. The supranational level is incomparably ‘weaker’ and less powerful in substantive terms than the central governmental level of real federations. Many important competences that would make the EU a real and functioning federal state are still lacking.","PeriodicalId":250773,"journal":{"name":"LSN: International & Comparative Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128788929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fiscal Stability Rules in Central European Constitutions","authors":"Marek Antoš","doi":"10.5040/9781474201643.ch-010","DOIUrl":"https://doi.org/10.5040/9781474201643.ch-010","url":null,"abstract":"The so called Fiscal Compact signed by 25 out of 27 EU member states requires the states to transpose the treaty’s rules that limit the annual structural deficit and the general government debt “through provisions of binding force and permanent character, preferably constitutional” (Art. 3, §2). While the goal is set, the means are up to respective states, and thus an extraordinary wave of constitutional engineering has been triggered. This paper deals with four countries in Central Europe which have already adopted fiscal stability rules into their law: Germany, Hungary, Poland and Slovakia. It describes the rules adopted and demonstrates that despite some similarities, four wholly distinct models of regulation have been used in these countries. These models are further examined and compared, in particular with respect to their substance (numerical, or institutional fiscal rules), criteria used (state debt, overall public debt, state budget deficit, or structural deficit) and enforcement mechanisms created (automatic cut of expenses, vote of non-confidence in the government, veto power of an independent fiscal council, judicial review, etc.). Finally, the models are evaluated both from the perspective of their democratic legitimacy and from the perspective of their expected efficiency, where the paper draws on existing empirical studies of fiscal stability rules enacted in the past.","PeriodicalId":250773,"journal":{"name":"LSN: International & Comparative Law (Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121643371","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Promises and Perils of New Global Governance: A Case of the G20","authors":"C. Kelly, Sungjoon Cho","doi":"10.2139/ssrn.1907845","DOIUrl":"https://doi.org/10.2139/ssrn.1907845","url":null,"abstract":"In the wake of the 2008 financial crisis, a new global governance structure emerged. During and subsequent to the crisis, the G20 arose as a coordinating executive among international governance institutions. It set policy agendas, prioritized initiatives and, working through the Financial Stability Board, drew other governance institutions and networks such as the International Monetary Fund, the Basel Committee on Banking Supervision, the Organization of Economic Cooperation and Development, the World Trade Organization, the International Association of Insurance Supervisors and the International Organization of Securities Commissions to set standards, monitor enforcement and compliance, and aid recovery. Its authority cross-cuts regimes and creates collaborative linkages between economic law and social issues such as food security and the environment. Its leadership role, born out of exigency, now continues to evolve as part of the new international economic law order. The G20’s coordination of institutions and networks exemplifies a new form of global governance. Network coordination offers an opportunity to confront complex problems with a needed comprehensive approach. The institutions and networks engage in an ongoing dialectical process that propels standard setters towards convergence on a number of fronts. The actors in this process employ a variety of tools to forge consensus and the G20 leverages this consensus-creating process to achieve its goals. Unpacking these tools can help us tackle intricate questions that arise from this new structure. In particular, we focus on concerns of effectiveness and legitimacy originating from the G20’s coordination of multiple networks and institutions.","PeriodicalId":250773,"journal":{"name":"LSN: International & Comparative Law (Topic)","volume":"293 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116327662","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal Stipulations of Sovereign Lending and Borrowing in Domestic Jurisdictions - Japan","authors":"M. Kanetake","doi":"10.2139/SSRN.2032539","DOIUrl":"https://doi.org/10.2139/SSRN.2032539","url":null,"abstract":"This consultancy report was prepared for: Matthias Goldmann, 'Responsible Sovereign Lending and Borrowing: The View from Domestic Jurisdictions' (A Comparative Survey Written for the United Nations Conference on Trade and Development) (UNCTAD) (February 2012), concerning the proposed UNCTAD Draft Principles on Responsible Sovereign Lending and Borrowing.","PeriodicalId":250773,"journal":{"name":"LSN: International & Comparative Law (Topic)","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123202377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Dead Hand Constitutionalism: Honduras and the Danger of Eternity Clauses in New Democracies","authors":"A. Friedman","doi":"10.22201/IIJ.24485306E.2011.7.7762","DOIUrl":"https://doi.org/10.22201/IIJ.24485306E.2011.7.7762","url":null,"abstract":"The 2009 Honduran constitutional crisis, in which sitting President Manuel Zelaya was captured from the Presidential Palace and flown to Costa Rica under the cover of night, illuminated the danger of entrenched and eternity clauses in fledgling democracies. This paper discusses the way such clauses have been used in the past, identifying three general categories of historical eternity clauses. These categories include clauses that address the character of the government, the spirit or principles of the constitutional regime and finally the character of the country. The article also discusses potential problems that arise when such clauses are written into constitutions of transitional democratic regimes.","PeriodicalId":250773,"journal":{"name":"LSN: International & Comparative Law (Topic)","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130170550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Increasing Irrelevance of Section 1 of the Charter","authors":"Christopher D. Bredt, A. Dodek","doi":"10.60082/2563-8505.1010","DOIUrl":"https://doi.org/10.60082/2563-8505.1010","url":null,"abstract":"This paper addresses the topic of judicial deference to legislative choices under section 1 of the Canadian Charter of Rights and Freedoms. More specifically, it asks, in what circumstances will the Supreme Court of Canada accord such deference and has the standard of justification under section 1 become diluted. The paper examines the Supreme Court of Canada's treatment of the Oakes test since its inception in 1986 and then identifies three themes that have emerged in this area. First, that section 1 has been marginalized through the development of internal balancing tests in the definition of substantive rights under the Charter. Second, that the original universality of the Oakes test has given way to context or right-specific adjudication whereby section 1 seems to be applied on an ad hoc basis. Third, in recent years the Supreme Court of Canada has severely weakened the evidentiary requirement needed to justify an infringement of a right under section 1. The article concludes by suggesting that the Oakes test be abandoned as a universal standard of justification and replaced with a rights-specific approach.","PeriodicalId":250773,"journal":{"name":"LSN: International & Comparative Law (Topic)","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115165045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}