ICL Journal-Vienna Journal on International Constitutional Law最新文献_第8页

Open Access in the Economic Sphere but Restricted Access in the Political Sphere: The Experience of Singapore 经济领域开放，政治领域限制:新加坡的经验

IF 0.2

ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2019-05-01 DOI: 10.1515/icl-2018-0058

Guanghua Yu

引用次数: 0

Revisiting the Place of Preparatory Documents in the Interpretation of Transformative Constitutions 重新审视预备文件在解释转型宪法中的地位

IF 0.2

ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2019-05-01 DOI: 10.1515/icl-2018-0052

C. Abungu

{"title":"Revisiting the Place of Preparatory Documents in the Interpretation of Transformative Constitutions","authors":"C. Abungu","doi":"10.1515/icl-2018-0052","DOIUrl":"https://doi.org/10.1515/icl-2018-0052","url":null,"abstract":"Abstract South Africa and Kenya are among some nations that have adopted what are referred to as ‘transformative constitutions’, with the aim of bringing about radical change that would repair the cumulatively deep fissures in their societies. In order to determine how to satisfactorily give these constitutions effect, judges may undertake to first understand the people’s past experiences and how that informed the constitutional provisions that were adopted. This will in turn allow them to grasp what sort of transformation the people sought. One of the sources by which to undertake such a task is preparatory documents. In this study, these are the materials detailing the people’s views on the then-prospective constitutional provisions and discussions during constitutional conferences. By reference to the United States courts as a case study, this article seeks to find out the use to which judges interpreting provisions in the Constitution of Kenya and the Constitution of South Africa put preparatory documents. It does so through an empirical examination of select Human Rights decisions in both jurisdictions. It eventually finds that the examination of preparatory documents need not necessarily be viewed as an exercise that will restrain a judge, or fold back progress that has been made in progressive adjudication. At the very least, it will help a judge understand the transformation sought while in some cases, it may legitimize and enlighten a judge’s decision to interpret a provision in a more expansive manner.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86312254","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}

引用次数: 1

Frontmatter

IF 0.2

ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2018-12-01 DOI: 10.1515/icl-2018-frontmatter4

引用次数: 0

Same-Sex Marriage and Italian Exceptionalism 同性婚姻和意大利例外论

IF 0.2

ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2018-12-01 DOI: 10.1515/icl-2018-0037

M. Winkler

{"title":"Same-Sex Marriage and Italian Exceptionalism","authors":"M. Winkler","doi":"10.1515/icl-2018-0037","DOIUrl":"https://doi.org/10.1515/icl-2018-0037","url":null,"abstract":"Abstract This article unveils Italy’s exceptionalism in recognising and protecting same-sex couples by adopting a three-dimension analysis: constitutional, comparative and supranational. It maintains that, compared to other countries whose courts were sympathetic with the legal claims raised by lesbian and gay people, Italy’s Constitutional Court adopted a totally different approach, reinforcing the heteronormativity of marriage in a way that delayed all efforts to pass a law on same-sex registered partnerships. The Constitutional Court, in particular, interpreted the Constitution, the experience of other nations and supranational law according to heteronormativity, an example that is unique in the comparative context. As an illustration, this article addresses the case Bernaroli vs Ministry of the Interior. In Bernaroli, a male-to-female transgender person wanted to remain married to her wife notwithstanding the transition. The case ignited a heated debate among scholars and questioned the courts’ opinions as to the human rights dynamics surrounding same-sex marriage and, more importantly, about the current role of heteronormativity in marriage law. This article concludes that the legal existence of Bernaroli’s marriage represents a constant challenge to the status quo and highlights the permanent crisis of heteronormativity. After the Austrian Constitutional Court’s recent ruling that declared the law on same-sex domestic partnership to be discriminatory, heteronormativity’s defence became even more untenable, making Italy’s a true exception in the continent’s legal landscape.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75818583","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}

引用次数: 1

Commandeering the Institutions: The Legitimacy of Structural Judicial Remedies in Comparative Perspective 征用制度:比较视角下的结构性司法救济合法性

IF 0.2

ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2018-12-01 DOI: 10.1515/icl-2018-0021

Guillermo Otálora Lozano

{"title":"Commandeering the Institutions: The Legitimacy of Structural Judicial Remedies in Comparative Perspective","authors":"Guillermo Otálora Lozano","doi":"10.1515/icl-2018-0021","DOIUrl":"https://doi.org/10.1515/icl-2018-0021","url":null,"abstract":"Abstract In some countries, courts protect constitutional rights by ordering broad institutional reforms and overseeing those reforms. These broad orders are known as structural remedies, and they are currently part of the judicial practice of the United States, India, and Colombia. Structural remedies pose a problem of democratic legitimacy in that courts substitute for legislatures or administrators. This paper argues that structural remedies are democratically legitimate as long as they are used as a last resort and are aimed at addressing a specific institutional pathology within the legislature or the bureaucracy. Drawing from the experience of the United States, India, and Colombia, the paper distinguishes counter-legislative from counter-bureaucratic remedies in order to show that the democratic concerns raised may vary depending on the affected institution. The paper argues that structural remedies are legitimate if they are capable of correcting a pathology in the legislative or administrative process. With respect to legislatures, structural remedies should aim at improving the representative or the deliberative quality of legislative decisions. In the case of bureaucracies, they should aim at improving the subordination of agencies to the political process, their responsiveness to citizens’ concerns, and the expertise with which their tasks are carried out.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74059940","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}

引用次数: 1

(In)Security and Self-Government: Lessons from the Mexican Experience 安全与自治:墨西哥经验的教训

IF 0.2

ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2018-12-01 DOI: 10.1515/icl-2018-0022

C. Correa, Carlos De la Rosa Xochitiotzi

{"title":"(In)Security and Self-Government: Lessons from the Mexican Experience","authors":"C. Correa, Carlos De la Rosa Xochitiotzi","doi":"10.1515/icl-2018-0022","DOIUrl":"https://doi.org/10.1515/icl-2018-0022","url":null,"abstract":"Abstract Using the Mexican experience in the centralization of public security, this paper proposes federalism as a model of a vertical control of powers and, more importantly, a way of promoting self-governance, citizen participation and, through them, local security. We argue that while federalism as an organizational model of the State does not guarantee self-governance or citizen participation, it can help promote them and through their enhancement, improve security at the community level. Since 2006, the Mexican government has implemented a security strategy that has increasingly centralized public security decisions. The strategy relies on the deployment of federal security forces (Army, Navy and Federal Police) across the country, to replace or support state and local police. The results have been mostly negative. On one hand, there has been an exacerbation of violence in the country, including many incidents in which violence was used disproportionately or illegally by state officials against civilians. On the other, the use of federal forces has undermined the federalist regime which serves as a check on the exercise of power by federal authorities, thus undermining state and local institutional capacities. The lessons from the Mexican case can be useful for other federal systems responding to organized crime.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90143535","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}

引用次数: 0

“Constituent Power” or Degrees of Legitimacy? “宪法权力”还是合法性程度?

IF 0.2

ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2018-11-01 DOI: 10.1515/icl-2018-0068

Vicki C. Jackson

{"title":"“Constituent Power” or Degrees of Legitimacy?","authors":"Vicki C. Jackson","doi":"10.1515/icl-2018-0068","DOIUrl":"https://doi.org/10.1515/icl-2018-0068","url":null,"abstract":"Professor Roznai’s book is a terrifically executed account of a constitutional theory justifying the concept of unconstitutional constitutional amendments and the practice of judicial review thereof. The theory rests on the premise that constitutions are made by a ‘constituent power’, which establishes ‘constituted powers’ of the government and which expressly or implicitly defines the scope and nature of an amendment of the constitution. The powers of amendment are sui generis, situated between ‘original (or as he calls it “primary”) constituent power’ to make a constitution in the first place and the constituted powers of government under that constitution. The amendment power, he argues, should be understood as a delegated power, subject to the limitations, express or implicit, of the original constitution. Given his conceptual premise – that constitutions should be understood as created by a ‘constituent power’, a premise widely accepted in constitutional theory – his argument that the amending power lies between pure constituent power and purely constituted powers has great persuasive value. He rejects the claim that the amending power is a ‘constituent power’, arguing instead that the amending power possesses ‘characteristics of both constituent and constituted power’, and should be treated as sui generis. (Id at 112–13) He argues that the amending power should be understood both as bounded by the procedures set forth in the constitution for amendment and by a substantive constraint not to annihilate the fundamental political decisions of the constitution. In this respect, it should be understood as a ‘delegated’ power, neither an original constituent power nor simply a regular constituted power, but a power exercisable by or on","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82630446","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}

引用次数: 1

Mexican Supreme Court: Legislative Omission – Analysis on Congress’ Failure to Enact Legislation Regulating Official Advertising in Mexico 墨西哥最高法院:立法不作为——国会未能制定法律规范墨西哥官方广告的分析

IF 0.2

ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2018-11-01 DOI: 10.1515/icl-2018-0016

Jaime Olaiz-González

引用次数: 0

Constitutional Unamendability – Four Observations 宪法不可修改性——四点意见

IF 0.2

ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2018-11-01 DOI: 10.1515/icl-2018-0066

Yaniv Roznai

引用次数: 0

Introduction: The popular Mr. Roznai 简介:广受欢迎的Roznai先生

IF 0.2

ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2018-11-01 DOI: 10.1515/icl-2018-0065

Christoph Bezemek

{"title":"Introduction: The popular Mr. Roznai","authors":"Christoph Bezemek","doi":"10.1515/icl-2018-0065","DOIUrl":"https://doi.org/10.1515/icl-2018-0065","url":null,"abstract":"Being on the Editorial Board of an academic journal, one of the first lessons you learn is that it is harder to find somebody to write a decent book review than its is to find somebody to take care of your pet for a whole week of vacation. This has many reasons, of course. Two of them, however, seem to be of particular importance: First: Writing a decent book review is a lot of work. And second: It is a lot of work that will (typically) be unrewarded because hardly anybody seems to be into reading book reviews nowadays (except the author of the book, of course; which, honestly, can only make matters worse). So, without making a great deal out of it, Claudia, Harald, and I when moving the ICL Journal to De Gruyter, decided, to simply stop actively pursuing our friends and colleagues asking them to contribute to the Journal’s Review Section. Not to be misunderstood: This is not to say that the Journal will (or does) not feature any reviews. It is to say that we sit back and wait until (typically young) academics approach us, suggesting to write a review on a recently published volume within the ICL Journal’s scope or submitting a review right away (needless to say: the highly preferred alternative). So, when the idea of having a mini-symposium on Yaniv Roznai’s (truly magisterial) book on ‘Unconstitutional Constitutional Amendments’ came up, we were torn. On the one hand we were intrigued by the idea, because we knew how exciting Yaniv’s work was (after all, he had already published with us earlier which is the most reliable indicator for high-quality scholarship we know of). On the other hand, we were skeptical whether we would be able to find suitable contributors (in due time).","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76558933","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}

引用次数: 0