ICL Journal-Vienna Journal on International Constitutional Law最新文献

{"title":"Frontmatter","authors":"","doi":"10.1515/icl-2018-frontmatter3","DOIUrl":"https://doi.org/10.1515/icl-2018-frontmatter3","url":null,"abstract":"","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":"78619874","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 Judge and His Hangman: Judicial Selection and the Accountability of Judges in the US","authors":"B. Lemennicier, N. Wenzel","doi":"10.1515/icl-2018-0009","DOIUrl":"https://doi.org/10.1515/icl-2018-0009","url":null,"abstract":"Abstract Who gets to determine rights and justice? Which mechanism of judicial selection and accountability is optimal? There is no easy answer. If judges are independent experts, nominated and evaluated by their peers, they will be immune from the pressures of electoral rent-seeking, but unaccountable to the people. If judges are elected, they will be democratically accountable, but subject to the redistributive pressures of the ballot box. If judges are nominated and controlled by politicians, they will face the temptations of bureaucratic self-interest and will not be democratically accountable, but they will be shielded from the Public Choice problems of elections. This paper uses the death penalty in the United States to measure and compare the impact of different methods of judicial selection. In the end, there is no optimal solution – at least not within a state judicial monopoly.","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":"84455588","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 Limits of Amendment Powers","authors":"Sabrina Ragone","doi":"10.1515/icl-2018-0044","DOIUrl":"https://doi.org/10.1515/icl-2018-0044","url":null,"abstract":"The issue of unconstitutional constitutional amendments encompasses several major topics of constitutional law and legal theory, such as the relationship between constituent and constituted powers; the scope and limits of the amending power (or competence), as well as the role of constitutional adjudication in these processes. Yaniv Roznai’s book will certainly foster scholarly debate on constitutional identity and constitutional change, as well as the role of constitutional courts in the enforcement of limits to the amending power. Overall, the text is interesting, well-written and enjoyable for the reader. The reasoning is divided into three main blocks and I will construe my review according to this threefold partition, delving into the topic progressively more in detail, as my expertise concerns, to a greater extent, the jurisprudence regarding constitutional amendments from a comparative perspective. I will draft some remarks on each part of the book and propose general observations on the core concepts and questions. Finally, I will link and contrast Roznai’s arguments to European scholarship on comparative methodology and specifically to my own work concerning constitutional adjudication on constitutional amendments published since 2011. I. The core concept of the book being ‘unamendability’, the author starts the research with the examination of this phenomenon, both theoretically and in practice, from a comprehensive comparative perspective. He adopts a reasoned classification based on explicit, implicit and supra-constitutional limits to the amending power, spanning different jurisdictions and interpretations. First, he analyzes the case of eternity clauses explicitly included in the constitutions","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":"86549403","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":"Unconstitutional Constitutional Amendments: Between Contradiction and Necessity","authors":"A. Stone","doi":"10.1515/icl-2018-0043","DOIUrl":"https://doi.org/10.1515/icl-2018-0043","url":null,"abstract":"Abstract In Unconstitutional Constitutional Amendments, Yaniv Roznai seeks to unscramble the apparent contradictions in the idea of an unconstitutional constitutional amendment. This argument is ambitious in its scope and its global comparative reach. Roznai does not limit himself to justifying explicit limitations placed on the power of amendment nor to limitations that go only to process. Rather, Roznai argues that amendment powers are always subject to limitations of substance and procedure and that these limitations may be implicit as well as explicit. In this short essay, I will argue that the form of argument deployed by Roznai cannot fully justify the doctrine of unamendability as Roznai elaborates upon it. It allows Roznai to establish that unamendability is a conceptual possibility but it does not follow, as he seeks to argue, that unamendability is a necessary consequence of constitutionalism.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81855891","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 Problem with Precedent","authors":"E. Guerra-Pujol","doi":"10.1515/icl-2018-0041","DOIUrl":"https://doi.org/10.1515/icl-2018-0041","url":null,"abstract":"We review \"Settled Versus Right: A Theory of Precedent\" by Randy J. Kozel. In summary, Kozel’s book is worth reading because our Anglo-American legal system is built on the foundation of the doctrine of stare decisis, and his book provides an in-depth yet readable exploration of how precedent is supposed to work. Specifically, Kozel explains why precedent is such a feeble constraint in constitutional cases, and he proposes a novel \"second-best theory of stare decisis,\" given judicial disagreement over proper constitutional interpretation. We identify several problems with this second-best theory of precedent, and we also present an alternative theory of Bayesian stare decisis.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88787729","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":"Austrian Constitutional Court Somewhere under the Rainbow: Marriage Equality and the Role of the Austrian Constitutional Court","authors":"Christa Pail","doi":"10.1515/icl-2018-0026","DOIUrl":"https://doi.org/10.1515/icl-2018-0026","url":null,"abstract":"Abstract In 2010, Austria introduced the Registered Partnership as the only form of legal recognition for same-sex couples while marriage is limited to heterosexual couples. In a recent judgment, the Austrian Constitutional Court decided this limitation to be unconstitutional. Due to numerous legal changes in the last years, the legal framework governing registered partnerships and marriage became nearly identical. By upholding different terms for the same kind of relationship, same-sex partners are presented unequal to different-sex couples and forced to show their sexual orientation even in situations where sexual orientation should be irrelevant. This puts them at risk of discrimination. The Court considers this as a violation of the principle of equality.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83863485","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":"Constitutional Preambles as Narratives of Peoplehood","authors":"Adeno Addis","doi":"10.1515/icl-2017-0079","DOIUrl":"https://doi.org/10.1515/icl-2017-0079","url":null,"abstract":"Abstract Most constitutions start with a preamble. A constitutional preamble is a text designed to introduce the rest of the constitution. Often, it is also meant to give a concise statement of the nature of the system that the constitution establishes. While they may differ in style and length, most preambles seem to perform two primary functions. First, they declare or identify the source of authority for the document. In most preambles, it is ‘we the people’ that is invoked as the legitimate source of authority. Second, most preambles engage in an explicit attempt to project an identity for ‘we the people.’ At times, the people is defined through an extended historical biography. At other times, it is the presumed common ethnic origin or religious membership that is said to establish the bond, whether the people is territorially bound or not. Still at other times, it is the existence of common political and moral principles that is thought to make up the core constitutive elements of who the people are. Whatever the strategy, preambles attempt to imagine a usable political identity for the people, its collective agency. ‘The people’ are viewed with sufficient agency capable of ‘ordaining’ or ‘granting’ the constitutional document to themselves. Of course, in many cases ‘we the people’ are the very creation of the document itself. Under this account, the ‘people’ are simultaneously the author and product of the constitution. In this sense, preambles are performative in nature: they constitute the people as they at the same time declare that the people are their authors. Through a close study of the constitutional preambles of all countries currently in existence, this article explores how preambles narrate a politically serviceable identity for ‘the people’. Whatever else they are meant to do, preambles are narratives of peoplehood. The formal legal status of preambles might be uncertain, but what is not in doubt and what has largely been neglected is the fact that preambles are also means through which a people attempts to imagine and solidify its identity. As Benedict Anderson long ago explained, an imagined identity is neither true nor false—it simply is. This article explores the processes by which this imagining takes place and the purposes for which it is adopted.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84977960","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":"Frontmatter","authors":"","doi":"10.1515/icl-2018-frontmatter2","DOIUrl":"https://doi.org/10.1515/icl-2018-frontmatter2","url":null,"abstract":"","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86816656","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":"New Book on ‘Constitutionalism’ in an Illiberal State: András L Pap, Democratic Decline in Hungary: Law and Society in an Illiberal Democracy (Routledge 2018)","authors":"Nóra Chronowski","doi":"10.1515/icl-2018-0017","DOIUrl":"https://doi.org/10.1515/icl-2018-0017","url":null,"abstract":"Over the past eight years, the redrafting of the Hungarian constitutional landscape, the declaration of illiberal constitutionalism and its contagious effect across Central and Eastern Europe have firmly moved into research spotlight. Political analysts, lawyers, economists and other academics within liberal studies are making attempts to observe and assess the U-turn of this once hailed as promising and consolidated Central-European state, which was after its democratic transition of 1989–90 the eminent state for EU accession. Developments in Hungarian constitutional law after 2010 suggest that the era in Hungarian constitutionalism characterized by a commitment to the rule of law has been replaced by an era where the law is regarded as an instrument available to the government to rule. Under the new constitution, the constraints that follow from the rule of law have been habitually overridden or ignored by the government. The Constitutional Court’s attempts, to continue the legacy of pre-2010 constitutional practice, were reproached by the government who moved to delimit the powers of the Court or overrule its decisions by formal amending the text of the Constitution. Given this, Hungary offers one of the most striking examples of the degree to which an overwhelming political mandate can dismantle and paralyse key democratic institutions designed in the name of liberal constitutionalism yet not deeply rooted in the society. András L Pap’s monograph is a brand-new set of academic explanations that intend to support better understandings of illiberal constitutionalism in the making. The author – who is professor of constitutional law and doctor at the Hungarian Academy of Sciences; research chair and head of department for the study of constitutionalism and the rule of law at Hungarian Academy of Sciences","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87297334","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 Relationship Among the International Rule of Law, Spontaneous Order, and Economic Development","authors":"Nadia E. Nedzel","doi":"10.1515/icl-2017-0068","DOIUrl":"https://doi.org/10.1515/icl-2017-0068","url":null,"abstract":"Abstract The Rule of Law and economic development are widely regarded as necessary for a successful society, but defining the international rule of law and explaining the relationship with economic development has proven elusive. This article begins with explanations posited by Hayek and others, but brings a fresh perspective grounded in a multidisciplinary and contextual approach that includes history, philosophy, economics, and law. Properly defined, the rule of law refers to a specific understanding of the relationship between the individual and government. The common law conception of the rule of law (as opposed to the civilian Rechtsstaat or L’État de Droit) is historically more supportive of economic development, but modern international descriptions and definitions confuse the two. Based on empirical economic studies and historical legal anthropology, the common law understanding focused on limited government and individual freedom from interference has proven more likely to encourage entrepreneurship and hence economic development on a long-term basis.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77514323","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}