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.
The author deals with the background & the types of human rights in the era of globalization & looks into the proposals of their global institutionalization. His assumption is that the increased legal normatization of global legal regimes on the basis of human rights is in the rational interest of the actors of global law. There are five main ideas: the democratization of all states, the global institutionalization of the direct global civil law, the global federal republic, the international legal solutions &, the global law. The global institutionalization of human rights has been beset by various problems & it requires different approaches which should be seen as mutually corrective. The globally oriented weak publics are a kind of a forum in which individual solutions' relevance must be argued. They affect the globally operating strong publics. The author concludes that the demand for global justice remains a normative measure towards which public education & the public will must be oriented for the sake of the legal formulation of human rights. 45 References. Adapted from the source document.
The author claims that classical liberalism solely recognizes the individualist perspective of maximizing individual profit & totally bypasses the issue of solidarity. Only as the consequence of workers' movement & the Marxist critique of the freewheeling market did the welfare state emerge to make up for the lack of solidarity. The welfare state, however, is based on a combination of the opposing principles: freedom & social justice, the state of law & social responsibility, the right to an unfettered individual development & the limitations to individual freedom through welfare institutions. The contradictions & the crisis of the welfare state have resulted in a series of criticisms. Contrary to the liberal & social-democratic critique, the author bases his position on the precepts of a bourgeois society as an ambience of civic solidarity. Such an attitude takes the civic responsibility for granted not only regarding legal & political but also social prerequisites for practicing civic autonomy. Adapted from the source document.
The author claims that classical liberalism solely recognizes the individualist perspective of maximizing individual profit & totally bypasses the issue of solidarity. Only as the consequence of workers' movement & the Marxist critique of the freewheeling market did the welfare state emerge to make up for the lack of solidarity. The welfare state, however, is based on a combination of the opposing principles: freedom & social justice, the state of law & social responsibility, the right to an unfettered individual development & the limitations to individual freedom through welfare institutions. The contradictions & the crisis of the welfare state have resulted in a series of criticisms. Contrary to the liberal & social-democratic critique, the author bases his position on the precepts of a bourgeois society as an ambience of civic solidarity. Such an attitude takes the civic responsibility for granted not only regarding legal & political but also social prerequisites for practicing civic autonomy. 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 at a book with the promising title Law and Revolution, particularly, promising to those prone to think about law strategically. Starting from the main points of the book & of some interpretations of legal history that qualify these points, the author then demonstrates how negligible appear to be the possibilities of strategic action in the renewal & development of Croatian law. Adapted from the source document.
Commenting on the article by R. Badinter (1996, this issue), the author contends that experts in international law are not broad-minded regarding the establishment of a state. Most legal experts take for granted the statements of the international judiciary on the existence of certain rules of general international law & consider them validated & indisputable. This fiction has been given support by states, since they uphold only those legal statements that suit their interests. The author analyses the Opinions of the Arbitration Committee on the process of the disintegration & the Criteria for the dissolution of the former Yugoslavia as well as the criteria for the creation of the new states. He considers this precedent as central for international judiciary law. 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.
The author outlines some basic conceptual aspects of the legal evolution of international relations after 11 September 2001. First, he briefly sums up the classical international law. Then he goes on to analyze the two dominant approaches to the future development of international law -- the idealistic & the realistic -- by juxtaposing Kant & Hegel. Regarding this debate one should not forget Carl Schmitt, the German legal & political theoretician, since he challenges the universalist presumptions of Kant's project. Schmitt calls into question the function of the rationalization of governance which should be taken over by the constitution, both within & outside the nation-state. The author concludes that the US & other big powers will soon have to return to the path they paved & energetically followed between 1918 & 1945, the path of gradual progress in the historical evolution of international law. 12 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.
The author deals with one of the "classic" components of the state governed by law -- the principle of judges' autonomy -- using the example of the German legal system & its practice after the unification of 1990. Following a short outline of the evolution of the postulate of judges' autonomy, the author depicts the institutional framework of the present-day German judiciary, & then the quandaries ensuing from the unification of the legal systems of the two Germanies. Finally, the author describes Croatian problems. The Republic of Croatia, as a country in transition, & due to the specific circumstances caused by the Patriotic War, has found itself in a similar predicament. It has responded to these challenges, but not as successfully as Germany. Adapted from the source document.
