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The author argues that democracy is not appropriate for the resolution of the relationship between law & the democratically conditioned state authority in the multinational Europe. The so-called democratic deficit should be understood not only as the empirical fact of a multinational Europe, but also as a paradoxical structural attribute of modern political thought from Kant until today. The author claims that the people should not rule as they might violate all the laws they enacted themselves. Thus the question of the equality of citizens cannot be a democratic one but legal & constitutional. Democracy cannot lay claim to be the sole provider of the legal equality of citizens just as law cannot be the only arbiter in making democratic distinctions among them. Since democracy should be understood as an independent autopoietic & autoimmune medium relatively independent of political power & legal constraints as its setting, the author concludes that the existing forms of immediate & representative democracy, as well as of the traditional form of democratic decision/making represent a risk of regressive progress in Europe in the direction of democracy limited by nation, religion or by class. Adapted from the source document.

Senjski statut iz 1388. bio je predmetom detaljnih istraživanja hrvatskih pravnika i povjesničara. No, u pravnoj tradiciji Senja postoji još jedno važno pravno vrelo koje se nije dovoljno koristilo u istraživanju povijesti Senja, njegova ustroja i razvoja pravnih instituta na hrvatskim pravnim prostorima u XVIII. st. Riječ je o Senjskom statutu iz 1757. koji je donijela vladarica Marija Terezija. Statut je pisan na talijanskom i njemačkom jeziku. Senj je u to doba bio izuzet ispod uprave bana i Sabora te je u sastavu Vojne krajine i njezinih organa vlasti. No, Senj ima status slobodnog kraljevskog grada i nakon pritužbi Hrvatskog sabora o kršenju prava grada njegov položaj, organizacija i privilegije utvrđeni su Statutom. Senj i dalje nije pod ingerencijom bana i Sabora, ali se nalazi u sastavu Trgovačke intendance (tzv. Austrijskog primorja od Trsta do Karlobaga). Statut sadrži brojne propise o ustroju organa vlasti u gradu (Malo vijeće, kancelar), načinu njihova izbora, poglavarstvu, sudu (gradski i plemićki sudac), liječniku, kirurgu i ljekarniku, uredu za čistoću, trgovačkim povlasticama grada, sudskom postupku, odvjetnicima, obiteljskom i nasljednom pravu, pomorskom pravu, zaštiti šuma itd. ; The Senj Statute from 1388 has been the subject of detailed research by Croatian lawyers and historians. However, in the legal tradition of Senj there still exists one more important legal source which has not been used enough in the research of the history of Senj, its structure and development of legal institutes in Croatian legal areas in the 18th ckentury. It is the Senj Statute from 1757 which was introduced by the ruler Maria Theresa. The statute is written in Italian and German languages. At that time Senj was exempt from the administration of the ban and parliament and was in the system of the Military Border and its authorities. However, Senj had the status of a free royal city and after complaints of the Croatian parliament about the violation of rights of the city its status, organisation and privileges were ...

In this text the author deals with the analysis of the fundamental legal texts regulating local self-government & administration in the Republic of Croatia & to what extent they are 'the fall guys' to be blamed for the state the systems of local self-government & administration are in. He concludes that these laws are a major generator (though not the only one) of the crisis of local self-government & administration in the Republic of Croatia. 16 References. 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.

Kant's concept of "perpetual peace" is the cornerstone of the rational human right that, in the form of international law, bears upon all states. However, the prerequisite for enduring international legal security & peace is that the internal affairs of states are based on constitutional & republican principles. Although Kant is clearly aware of the antinomies & paradoxes of a world league of states, he nevertheless postulates the ideal of a world league of republican states, since it corresponds to the general striving of nature & moral consciousness; such a league would guarantee a relatively peaceful coexistence among the states, based on international legal precepts. Hegel has often (& wrongfully) been accused of being an apologist of war; in fact, he only realized (having in mind the realities of sovereign national states) the inevitability of multilateral conflicts -- including military ones. His disproval of Kant's ideal of a league of states is based on his disbelief in the feasibility of supranational law, which should be superior to the absolute sovereignty of the state & keep an eye on & contain its partial interests. Adapted from the source document.

The authors of this text consider the third form of representation developed in the medieval doctrine of corporation, the so-called identity or pars pro toto representation. It concerns a relationship in which a part of the corporation -- council, assembly, or some members -- is considered identical to the whole body of the corporation in terms of its activity. The main purpose of identity representation is to mediate the idea of legal unity of corporation with the multitude of its members or parts of which it consists: by the act of representation different parts of the corporation form its legal unity at the moment of reaching decisions. Unlike in agency representation, the position of the representative is thus not the consequence of authorisation or of the transfer of power of action by those represented: the representative and the represented are not two separate legal entities; rather, it is considered that with the action of its "elevated" part, the corporation acts by itself. The text presents three fundamental subtypes of identity representation: Marsilius of Padua's valentior pars, rendering majority decisions on issues concerning the corporation as a whole, and a permanent representative body. Special attention is given to the Conciliar Movement in which identity representation played an important part, and to the first association of representation through identity with the idea of authorisation in the thought of Nicholas of Cues. The text looks into estate assemblies of German Lander (provinces) in the period prior to the French Revolution as an example of historic institutionalisation of identity representation. Adapted from the source document.

The author discusses the relationship between Hegel & Hobbes with regard to the tradition of natural law. Both thinkers start by considering the state of nature as a construct of reason. Yet while Hobbes describes the state of nature as the original state of the human race, Hegel in describing it rejects any social context. They both present natural law as an absolute fact of the individual's freedom, starting from which the whole political community has to be erected. The essential difference between Hobbes & Hegel begins with the demonstration of the ways in which radical individualism is being transcended. Hobbes believes that natural law has only been suppressed by the predominance of a legal & political order, while according to Hegel, the state of nature is a fiction & natural law achieves its realization only in a custom-ruled community. In Hegel the system of mediation is so powerful that a return to the state of nature appears to be impossible. In Hobbes, the natural state of war of all against all (Behemoth) is latent in the political community (Leviathan). The political community (Leviathan) exists only as long as it is able to suppress chaos (Behemoth). Adapted from the source document.

The author shows the importance of Hobbes' political thought in formulating the modern state. His contractual argument did not become obsolete as his scientific method. Hobbes breaks from the Aristotelian & natural rights tradition, or rather, he gives the concept of natural right an entirely new meaning. In this context the state of nature, contract & state are logical constructs, & not concepts in direct causal relationship. Hobbes' contract is not just a contract about the system of government; it is what society begins with. The contract is only the ground for the formation of the sociability of the individual, if it is at the same time the ground for establishing the government. The author emphasizes that, just like Kant, Hobbes & Locke consider leaving the state of nature necessary, not simply because of pragmatic reasons, but because the state has to legitimate itself as a claim of pure practical reason. Therefore, the author, following Kant, holds that the duty towards civil society & state cannot be based in the context of Hobbes' & Locke's philosophy, because, although the creation of state can be seen as an act of prudence, that in itself does not show a real obligation to pass from the state of nature to the state of law. The author also notes Hobbes' error in constructing a state independent from ownership. Contrary to him, Kant reasonably & legally bases theory of property as decisive part of his contractualism & creates a philosophical & legal foundation for the philosophy of the state. References. 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.

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.

Right of access to a court, enshrined in Article 6 § 1 of the European Convention on Human Rights and Fundamental Freedoms forms one of the basis for reinforcement of the principle of rule of law. However, the right of access to a court may be limited by provisions of national legislation regulating the functioning of the judicial system and rules of judicial procedure. The higher the hierarchy of the court, the more limits may be placed on the right of access to it. The aim of this article is to examine the different modalities of organisation of supreme judiciaries in European countries (members of the Council of Europe) and mechanisms established in national legislation for filtering applications to those jurisdictions in civil cases, in light of the principles set forth in that regard by the ever evolving case-law of the European Court of Human Rights, and the effects of its judgments and decisions on national legal systems. ; Right of access to a court, enshrined in Article 6 § 1 of the European Convention on Human Rights and Fundamental Freedoms forms one of the basis for reinforcement of the principle of rule of law. However, the right of access to a court may be limited by provisions of national legislation regulating the functioning of the judicial system and rules of judicial procedure. The higher the hierarchy of the court, the more limits may be placed on the right of access to it. The aim of this article is to examine the different modalities of organisation of supreme judiciaries in European countries (members of the Council of Europe) and mechanisms established in national legislation for filtering applications to those jurisdictions in civil cases, in light of the principles set forth in that regard by the ever evolving case-law of the European Court of Human Rights, and the effects of its judgments and decisions on national legal systems.

The paper deals with the innovations the Treaty Establishing a Constitution for Europe brings into the field of human rights. One of them is incorporation of the Charter of Fundamental Rights into the very Constitution. In this way, a political declaration adopted in Nice has become a legal document, achieving also constitutionalization of fundamental rights at the Union level. Secondly, there is an explicit possibility for the EU to accede the European Convention for the Protection of Human Rights & Fundamental Freedoms. Within that context the author considers the relationship between the Charter of Human Rights & the European Convention, as well as the relationship between the two courts: the European Court of Human Rights & the European Court of Justice. References. Adapted from the source document.

In accordance with his practical philosophy, which views the essence of morality & right as "ought to" (Sollen), Kant deduces his notion of perpetual peace as the paragon of the relationship among rulers & states. Hegel's criticism of this view in his Philosophy of Law points to its three major flaws. The first is the very nature of the international legal system, which operates among independent states & whose sanctions do not provide a supra-sovereignty of a pan-international state. Further, treaties & agreements among states have no praetor & do not exclude war as "the natural state" among them. Finally, there is no universal international will, but only particular wills of individual states, which hardly achieve a consensus on war & peace. As a postulate of practical reason, perpetual peace remains a sheer ideal. Adapted from the source document.