Suchergebnisse

As the articles in this Symposium suggest, populism and authoritarianism present ongoing challenges not only to liberal democracy but also to its legal underpinnings. Manipulation, avoidance, evasion, and outright rejection of the constitutional and legal frameworks of liberal democracy are features of populist authoritarianism. The basic argument of this article is that liberal-democratic public law and legal theory no longer satisfy human needs and desires because they were conceived in worlds that no longer exist, when the main pre-occupation was to secure liberty, not equality. The aim of the article is to explain the inherited structure of our public law and theory and the main events and developments that have produced this mismatch between public law and social aspiration.

Abstract
Courts around the world are under attack. They are being captured, packed, threatened, and their authority and powers are being limited by governments that seek to undermine the democratic constitutional order. Once courts are weakened or captured, it is easier for these governments to undermine other democratic institutions and even set courts themselves against democracy. Accordingly, using the rationale of 'militant democracy', this article proposes the theory of democratic self-defence of constitutional courts. According to this theory, constitutional courts (including apex courts with constitutional review powers) should declare the unconstitutionality of reforms to their institutional design when these are instrumental to a process of democratic decay. Not only that they should do so, but they must do so – as a duty – when the viability of the democratic system of government is at stake. The aim of this self-defence is not the self-interest preservation of institutional powers but the protection of democracy itself. In order to be able to protect democracy, courts must be able to protect themselves.

pt. I. Introduction to the constitutional school of American public administration -- pt. II. Foundations : why the constitutional school matters -- pt. III. Issues and controversies shaping the constitutional school -- pt. IV. Applications of the constitutional school to public administration theory and practice -- pt. V. Conclusion.

After the Constitutional Court of Serbia dismissed the motion for assessment of constitutionality of the so-called Brussels Agreement in December a year ago, the issue of constitutional review of international agreements has been actualized. The aim of this paper is to provide a comparative analysis of legal provisions pertaining to the constitutional review of international agreements as envisaged in the following states: Austria, Germany, France, Spain and Serbia. The starting point is that the international treaty may be the subject matter as well as grounds of constitutional review, depending on its status in the national legal system. Further, we note that the constitutional review of international treaties has some specific features that distinguish it from the review of legislative or other legal act, particularly regarding the effects of the Constitutional Court decisions. Our intention is to analyze the legal provisions in our system by exploring this issue from the perspective of comparative law.

Abstract
Although it is common knowledge that judges in different legal systems have different conventions as to how they justify their decisions and some judges are more while others are less willing to articulate their positions, we did not have exact data about these differences in constitutional reasoning. Our research proposed a simple index (JI) to measure the level of judicial individualism. Drawing on the research design of the Conreason project, we used this index to compare the practice of 14 constitutional courts in landmark constitutional cases. In addition, we also measured the level of disagreement (JD) within these 14 courts and by introducing the concept of disagreement factor (DF) we analysed to what extent substantive disagreements contribute to the rise of the number of separate opinions and, hence, to the rise of judicial individualism.

Abstract
This article comprehensively examines the 1999 recommendation of the Tunisian government to create an International Constitutional Court that is designed to enhance the principles of democracy and human rights and to strengthen the constitutional doctrine which states that the people are the source of authority in a given country. This proposal, which was strongly advocated by former Tunisian President Mohamed Moncef Marzouki during his term in office, aims to underscore the importance of establishing an international judicial entity and analysing its bylaws with respect to its terms and conditions, formation, jurisdiction and selection of judges. The article traces the trajectory of the movement, from the proposal stage to the latest developments in formally establishing the international judicial entity. Finally, the article identifies various possible difficulties and challenges that are likely to stand in the way of implementing the proposal.

Freedom of expression is a core liberty for all constitutional democratic systems. It ensures that ideas, opinions, and beliefs can be circulatedand discussed among individuals with no governmental interference. This vital freedom means more than freely expressing opinions: it securesthe possibility to seek, receive, and impart information. Indeed, these three features—seeking, receiving, imparting—should all be consideredwhen freedom of expression is under analysis, particularly if we consider that whensomeone's freedom of expression is limited, someone else will be deprived of the chance of hearing that idea. The South African case under scrutiny concerns the attempt to prosecute the president of a political party known as Economic Freedom Fighters (EFF), for having made a series of statements exhorting his supporters to unlawfully occupy "the land of South Africa".