In the introductory part of the essay, the author looks into the connection between the establishment & attributes of the so-called state of law & the legal system of continental Europe. This is followed by his summary of the origins of the idea of the state of law & its historical setting. In the middle part of the essay the author offers a list of values, value principles & the premises of the so-called state of law with the corresponding conclusions about a marked, multilevel/multiple restricted meaning & scope of the (mostly) dogmatic, formal/legal principles of the so-called state of law. The author concludes the essay with a rough appraisal of the condition of the so-called state of art in the Republic of Croatia. 51 References. Adapted from the source document.
There are prima facie reasons why political parties should be recognized as public law persons of the Croatian legal system: Political parties play a leading role in the creation & implementation of the state's will. Continental European legal systems distinguish between public & private law: the Croatian Constitution prescribes that political parties are associations with the features typical of public law persons. What requires analysis is the nature & consequences of the public law personality of political parties. Aristotle's theory of justice is still a useful starting point for distinguishing between public & private law, & between public & private law persons. The theory demonstrates that both the political community & the economic market presuppose standards of conduct that regulate interaction of their members. The standards include two essential types of legal acts, namely, statutes, which are fundamental acts of public law, & contracts, which are fundamental acts of private law. The dichotomy of legal acts implies virtually all the criteria that Roman & Continental lawyers have found important for distinguishing public & private law (source, bindingness, hierarchy, interest, subjects, etc). The division of a legal system into private & public law can be positivized in several ways. However, a liberal, democratic, & social legal system ought to meet the following principles, which guarantee the public law status of political parties: explicit recognition of the public law personality; justiciability; constitutionality; transparency; democracy; solidarity. The principles are followed by the Draft Bill on Political Parties, which was prepared by the Croatian Law Center in May 2002 & was adopted, with some changes, by the Committee on Constitution, Rules of Order, & Political System of the Croatian Parliament in July 2002. 90 References. Adapted from the source document.
The author distinguishes between the antiquity's & Middle Ages' teachings on natural law & justice as a virtue & the modern-age Hobbes' theory of the prerequisites of the legal system. Hobbes' theory identifies the prerequisites of the legal system & describes the institution of legal constraint which guarantees the rule of law. The author points to the central historical difference between these paradigms. Finally, the author traces the evolution of Hobbes' paradigm in Kant's philosophy of right. Adapted from the source document.
The author outlines constitutional & legal provisions regulating the rights of ethnic minorities in the Republic of Croatia as well as the site-based policy of the protection of minority rights. The major areas in which the Croatian government has been supporting the activities of minority group organizations are publishing, cultural societies, libraries, minority curricula, preservation of the minority cultural heritage, & research projects. Between 1992 & 1997, the government earmarked 22 million DEM for minorities' activities. The author concludes that ethnic minorities in Croatia, despite some political & economic hardships, have enjoyed a high degree of minority rights & freedoms. Adapted from the source document.
Mixed government, which is commonly regarded as a distinctly medieval form of government, is relevant also to contemporary constitutional states. It is the best form of government, since the aristocratic element is a continuous source of virtue, especially of justice, & a check not only on the executive, as the monarchical element which is the seat of political power, & the legislature, as the democratic element which expresses the will of the majority, but also groups & institutions that have the might & will to impose themselves as oligarchies. Mixed government is also the form of government that is practiced by most developed contemporary constitutional states: US, UK, France, Switzerland, Germany, etc. European nobility is the original aristocratic institution, by virtue of the fact that it was a system for the transfer of both virtue & general conditions of life. Three institutions that emerged in the late Middle Ages assumed structures & functions of the nobility. The first is the clergy. When, as a result of the differentiation of feudal society ethical & intellectual virtues of the nobility could no longer maintain general conditions of life, the clergy, by virtue of their abstract knowledge that ranged from philosophy & theology to law & medicine, became a class of new experts in generalities & thereby a new aristocracy. The second modern aristocratic institution is the judiciary, which has a structure & function similar to earlier aristocracies. The task of judges is to establish the highest virtue of constitutionalism. It is justice by law, which regulates general conditions of life in the state & society. What qualifies judges for the task is expertise in the new generality. The expertise includes not only education & experience in law but also impeccable private life & demonstrated professional ethics. The third modern aristocratic institution is the profession, whose most important instance is the legal profession. It shares its structure & function partly with the judiciary & partly with other professions. It seems that modern professions are degenerating. In the key area of data processing, due to rapid changes of technology, professions as systems of the transfer of virtue do not even seem to be possible. Professional aristocracies are replaced increasingly by oligarchies of capitalists & technocrats. Adapted from the source document.
The author looks into the notion of the rule of law from the functional/logical, & not historical standpoint: he starts from the hypothesis that there is the functional logic of managing social behavior & social developments by means of legal norms. This logic, with some preconditions, creates certain institutions. The recognition of members of a society as free & equal is the fundamental assumption. It means that government agencies have the right of independent action but are at the same time also disempowered. This requires the quality of laws to be evaluated on the basis of rationality & normativity. The second part of the text lists the institutional conditions for the rule of law: division of power, legal restrictions of all government institutions & independent judiciary. A guarantee of basic right must be included in these functional elements. The author thinks that our future is to be marked by social pluralization, the need for security & the concurrent processes of globalization, & individualization. These processes are surely going to affect the institutions of the state of law. 43 References. Adapted from the source document.
Haberle claims constitutional law is a comparative experiential science closely linked with political science with which it shares the research subject. The constitutional state has been going through a permanent process of changes; the central question is who is the prime mover of constitutional changes: constitutional/legal institutions, constitutional/legal science, & political science or public opinion & political culture of citizens? By analyzing the recent history of the changes of the German constitutions he suggests that all these factors contribute to constitutional changes. Nevertheless, as an expert for law & political science, who considers himself as belonging to the wider European scientific community, Haberle thinks that the decisive influences in constitutional changes stem from legal & political sciences & concludes: Sine qua (scientia) mortalium vita non regitur liberaliter (Without science, mortals do not command their life freely). Adapted from the source document.
In Croatia, the issue of the legal status of the sources of journalists' information as well as the status of journalists who publish sensitive information is increasingly gaining prominence. This is a subject that includes elements of constitutional, media, labor, civil, & penal law. The essay is limited to people as information sources. The sources can be divided into internal & external. The rationale for the sources' confidentiality privilege lies in the fact that journalists serve public goals & their sources can find themselves imperiled. According to the author's classification, the risks of this privilege are faced either by the sources (direct or indirect manipulation, smear campaigns, misapprehensions) or by the journalists ("protecting" a fictional source, subsequent blackmail of the source, misapprehensions). In Croatia, the protection of the information sources is defined in Article 12 of the Law on Public Information. The author outlines the major comparative systems of regulation of this field, the examples of antinomies among different Croatian regulations (the principles for their resolution are also offered) & analyzes the position of certain types of sources in relation to the Croatian law. And finally, the author compares the regulations of the Croatian law with the comparative systems, analyzes the representation of certain forms of responsibility of certain types of subjects & lists the principles he deems most important regarding journalists' work (the necessity of protecting the sources, the responsibility of journalists toward their sources, the different legal status of journalists & their sources, the protection of privacy, the verification of confidentiality, the more dominant interest, the importance of administrative ethics, the familiarity with the regulations, the adequate legal definition of a secret). 30 References. Adapted from the source document.
The author holds that the constitutional theory today is put to the test in three areas. The first is the problem of the relationship between transnational regimes & government institutions. Constitutional/legal theory is faced with the question how the norms concerning transnational regimes can acquire the dignity of legal norms via "constitutionalization." The second challenge is posed by transnational regimes sui generis such as the EU's legal system. The third concerns the process of EU's expansion. For the author, a constitution is both an instrument & a symbol; ie, it is doubly coded. On the one hand, it leans on practice & instrumental implementation, & on the other on the world of representation. There are different types of constitutions. Type one are manifests, largely solely symbolically coded. Type two are the constitutions in the form of contracts, structured more in the form of a legal relationship between discrete actors than a monolithic symbolic corpus. Type three are programmatic or planned constitutions, & they are associated with the rise & fall of socialist societies. They identify the already politically defined developmental goals. And finally, there are the so-called constitutions-cum-laws. These are a result of a regular legislative process that enables people in the capacity of presumed agents of sovereignty to debate constitutions & accept them. The author's opinion is that the transition of Central- & East-European countries is a transition from the simple-coded with the primacy of the symbolic to the double-coded constitutions. This transition is not smooth. The first difficulty lies in "transplanting" constitutional solutions to different social/historical contexts. The second relates to the anticonstitutional mentality that prevails in these societies. Despite everything, the constitutional balance in Central & Eastern Europe is satisfactory on the whole. The constitutions of these countries are interesting because of three symbolic aspects. The first refers to the constitution formation processes in which these societies ceased to be objects of authoritarian rulers. The second aspect regards the search for new forms of identity & unity. The third aspect refers to the attempts to banish tyranny from politics & social life by means of legal chains. 35 References. Z. Dubiel
Different parts of state territory on land, sea, & in the airspace are explained first. The concept of territorial sovereignty is envisaged through principles of its all-inclusiveness & its exclusivity, subject to many exceptions & restrictions imposed either by rules of general international law or by specific treaty obligations that can be assumed by a state. The concept of state servitudes was not assimilated in the practice of international courts & tribunals. Besides, it can be the cause of some misconceptions & confusion in public international law. Within the explanation of territorial boundaries are discussed the so-called natural boundaries -- such as rivers, lakes, & mountain boundaries -- as well as the artificial boundaries. An explanation of the principle of uti possidetis, of procedures of fixing boundaries, & of special legal scope of boundary treaties in international law is offered in conclusion. Adapted from the source document.
The author analyzes the relationship between constitutional law & political reality. Using historical material on German constitutional legal practice to analyze this relationship, the author concludes that a good constitution can function solely in the setting of a good political culture. The citizenry of a certain political culture always goes hand in hand with a good constitution. Adapted from the source document.
The author's starting point is Locke's classical thesis that the rulers & the ruled are subject to universal laws & that their abuses are prevented by the institutional means of power sharing. The rule according to which nobody can be a judge in their own affairs unconditionally applies in all court or administrative proceedings. The problem arises when this legal thinking is applied to parliaments. Namely, in parliamentary work the incompatibility of the mandates of the legislative & the executive branch is annulled since the executive power gains the upper hand in the composition & substance of the legislature. Besides, The basic law (Grundgesetz) provides MPs with indemnity in their voting behavior & guarantees to them immunity from punishment for certain acts that other citizens would not be able to get away with. This relative freedom & independence of MPs is corrected by the rule books on the behavior of MPs that envision the necessity of their ethical conduct. The violations of the rules are sanctioned not so much by moderatorial law as by political means. The author's opinion is that deciding on their own affairs cannot be universally granted to parliaments. Constitutions allow, even call for, certain decisions on one's own affairs to be made. However, due to insufficient outside control, self-control must be increased, which implies legal obedience on the part of MPs so that laws become meaningful for all participants. Besides the ethical & political pressures that force the MPs to behave in a law-abiding manner, laws also exert positive pressure on them to see to it that their decisions serve the public good. Adapted from the source document.
Historical precedents & a host of international documents -- from Daniel Webster's speech on the Caroline Affair of 1837 to the 1949 Geneva Convention & recent UN Security Council resolutions -- are perused to take a legal stand on the 1999 NATO intervention against Serbia to stop the Kosovo genocide. A distinction is made between humanitarian intervention, humanitarian relief action, & the right of a sovereign state to intervene abroad to protect the life of its citizens. It is opined that there is no international law granting states the right to take a military action on behalf of citizens of another state. However, a set of rules of action in exceptional circumstances sanctioning a military humanitarian intervention is established, outlining a scenario where such an intervention would be legal. It is pointed out that the ethnic cleansing in Kosovo met the criteria & satisfied the conditions necessary for a lawful humanitarian intervention, & the NATO military action should be viewed as such. Adapted from the source document.
Was Wesley Clark, NATO's commander-in-chief, right when he said that, instead of launching operation 'Allied Force' against it, the allies should have electronically isolated SR Yugoslavia? Yugoslav hackers & crackers used to good advantage the freedom of cyberspace. During NATO's intervention, they declared a real 'virtual war' to all the countries supportive of this campaign, particularly to the US. By swooping down by all available means on numerous official web pages of various American institutions & totally abusing the communicational freedoms on the Net, Yugoslav hackers in fact demonstrated a small part of the possibilities of the new e-force. However, the deleterious consequences of Yugoslav online users' activities were so harmful that they prodded the international community into issuing a blunt warning to the Serbian Telecom -- we shall switch you off from the Internet! The objective of this research is primarily to evidence a totally novel phenomenon on the Internet, the first organized virtual war taking place in cyberspace, at the time when a real military campaign was waged against SRY. One of the outcomes of these activities was 'striking out' the documents from the Net that had been preserved only in Mucalo & Svilicic's archive. There are no additional scientific resources, since the key sources for this article were the Internet & newspaper articles. Although envisaged as a medium available to all, the Internet must soon be safeguarded & protected by legal means. Otherwise, it might simply cave in under the onslaught of all abuses & innumerable viruses circulating the global cyberspace. Due to the increase in the number of users & services, it may be expected that soon a completely new branch of criminal law is to emerge -- computer crime. 2 Figures, 21 References. Adapted from the source document.
Using Luhmann's terminology, the author promotes the thesis that internal changes of constitutions are a nondemocratic constitutional/legal process & thus a political problem; ie, a constitution is exposed to political life, but also to an unmarked place within a constitutional system. This place is marked by constitutional judges who change constitutions on a case-by-case basis, either innovatively, precedently, or, of course, nondemocratically. Since democratic politics & constitutional law are different forms of activity, the question is which is the criterion for appraising the new things. How, then, to reject something as unlawful & nonpolitical? The author claims that this judgment can only be done by people with a refined moral sense. This requires the inclusion of those who create & interpret constitutions as the law of the polity so they ought to be selected very carefully. Thus, citizens are doubly burdened: (1) They have to understand constitutional changes to perceive their interest in them. (2) They have to appreciate the architects of constitutions to trust them. 15 References. Adapted from the source document.
