Suchergebnisse

Uz temeljna ustavna načela vladavine prava i podjele vlasti, načelo kolektivne i pojedinačne ministarske odgovornosti jamac je demokratskog legitimiteta uprave, koji leži u neprekinutom lancu delegacije i odgovornosti od birača prema parlamentu, od parlamenta do ministra te od ministra kroz sve razine uprave do razine najbliže građanima. U ovom radu razmatra se ustavnopravna osnovanost demokratskog legitimiteta neovisnih regulatornih tijela, s posebnim osvrtom na načelo ministarske odgovornosti. Poredbeno se obrađuju primjeri iz europskih država, gdje neovisnost regulatornih tijela ne zadire u temeljna ustavna načela. Zaključno se nastoji utvrditi u kojoj mjeri formalno utvrđena politička neovisnost jamči takvu neovisnost u materijalnom smislu te se razmatraju neke od najutjecajnijih teorija koje o svrsi osnivanja neovisnih regulatornih tijela nudi politička znanost. ; In addition to the fundamental constitutional principles of the rule of law and separation of powers, the principle of collective and individual ministerial responsibility is the guarantee of the democratic legitimacy of administration that lies in the unbroken chains of delegation and accountability from voters to Parliament, from Parliament to the minister, and from the minister through all levels of administration, to the level closest to citizens. This paper examines the theoretical constructions of the democratic legitimacy of independent regulatory authorities from the constitutionalist point of view, with particular reference to the principle of ministerial responsibility. It further discusses comparative examples from European countries where the independence of the regulatory authorities does not violate fundamental constitutional principles. In conclusion, this paper seeks to determine the extent to which formally established political independence guarantees such independence in the material sense, bearing in mind some of the most influential theories on the purpose of the establishment of independent regulatory authorities

Ovaj rad ispituje pravne odraze autonomije političkog predstavništva u kontekstu tekuće pandemije. U njemu se iz vizure ustavne teorije razmatraju dva događaja. Jedan je odluka Ustavnog suda o izbornosti uvjeta ograničenja temeljnih prava. Drugi su građanske inicijative kojima se Sabor nastoji prisiliti na pridržavanje tih uvjeta. Koristeći koncept ustavne šutnje kao instrument, ova se dva razvoja povezuje kako bi se istražilo prostore koje Ustav Republike Hrvatske ostavlja političkim praksama, ali i moguće djelovanje građanskih inicijativa na njih. Svrha je toga tvrditi da se građanske inicijative ne može smatrati neustavnima ako ne pokušavaju nadglasati legitimne ustavne šutnje političkog predstavništva. ; In this paper author explores the legal dimensions of the autonomy of the legislature in the context of the current pandemic. The paper is situated in Croatian constitutional theory and is written against the background of two developments. The first one is a decision of the Constitutional Court of Croatia that authorized the Croatian parliament to avoid a more demanding procedure for adopting the restrictions of fundamental rights enacted in the pandemic. The second development is the use of ballot initiatives to force the parliament to adhere to this procedure. Using the concept of constitutional silences as a tool, I bring these two developments together to explore what are the spaces for unwritten political rules left by the Croatian Constitution and how does the ballot initiative challenge them. I do this to argue that ballot initiatives should not be considered unconstitutional when they do not attempt to override legitimate constitutional silences of parliamentary representation.

The author looks into the position of the Constitutional Court in the light of the proposed Constitutional Law on amendments & modifications of the Constitutional Law on the Constitutional Court that would change some powers of the Constitutional Court. A short historical review shows that the Croatian people belong to the European civilizational setting, as evidenced by numerous documents & statutes that have regulated the rule of law in Croatia. According to the Croatian Constitution, the Constitutional Court is assigned a special place outside the system of the division of power into the legislative, the executive, & the judiciary; it is a special constitutional category that cannot be under the scrutiny of law since it scrutinizes laws. The author goes on to enumerate the changes in the jurisdiction & the operation of the Court envisaged in this new proposal of the Constitutional Law. The author concludes that constitutional courts are the very core of Western democracy & that they protect constitutions as a constantly developing living form. 59 References. Adapted from the source document.

Using the contemporary system theories, the author primarily points to the asymmetry of the constitutional law & the political processes it so rarely regulates. Then he goes on to analyze the historical process of separating the custom law, oral law & written law, of the court & the courtroom, the law & the constitution, the constitution & its interpretation, the constitution's interpretation, & the constitutional theory, & concludes his study with a description of the difference between constitution & democracy in the postmodern categorical optics. 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.

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.

The author discusses the provisions of the German Constitution & the practice of the German Federal Constitutional Court relevant for ratification of the Maastricht treaty & German membership in the European Union. In that context, the Brunner case decided by the Federal Constitutional Court is discussed. This decision has removed constitutional obstacles & has confirmed the constitutionality of ratification of the Maastricht Treaty. The author suggests that the Constitutional Court has strengthened its position & defined itself as a safeguard of German state sovereignty & an obstacle to the creeping extension of powers of the EU at the expense of its member states. At the same time, Constitutional amendments were adopted to protect the German federal structure & affirm the role of German Lander in supranational decision-making processes. The author suggests that the practice of the German Federal Constitutional Court fits well in the general trend of strengthening the role of the judiciary with regard to both the national & supranational balance of power. Adapted from the source document.

In the wake of the 'Kant revival,' which has spawned a plethora of works on his philosophy by its contemporary interpreters & advocates such as Herbert Schnadelbach, Hans Lenk, Konrad Cramer, Wilhelm Vossenkuhl, Volker Gerhardt, Karl-Otto Apel, Otfried Hoffe & others (whose studies were published this year under the title of Kant in der Diskussion der Moderne), the author tries to prove, by means of an analysis of Kant's treatise Uber den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht fur die Praxis, that not only did Kant in his later works draft & expound the program of a practical philosophy of morality & right, politics, & history, but also that in the last three chapters of this work, this philosophy evolves into a modern liberal theory of morality, state law, & international or "international civil" law built around the central principle of Kant's practical philosophy: "Was aus Vernunftgrunden fur die Theorie gilt, das gilt auch fur die Praxis.". Adapted from the source document.

In this paper on the subject of comparative constitutional law studies, the author presents the experience of two foreign courts whose competence includes the control of the compatibility of laws with the constitution. The examples concern the constitutional right to freedom of the press. In the course of the practice of the US Supreme Court & the Constitutional Council in France, the constitutional stipulation concerning freedom of the press provokes one of the liveliest controversies in the public life. The "dictum" of the decisions concerning freedom of the press represents a living source of contemporary understanding & action within this significant & complex constitutional law. While tasking into consideration some existing circumstances in the life & institutional structure of the Republic of Croatia, the author asks in what direction the Constitutional Court of Croatia will turn should the circumstances put it into the position of having to answer a question concerning freedom of the press. Adapted from the source document.

In the second part of the text the author looks into the paradox of the concept of justice as discerned by Jacques Derrida, & analyzes the tradition of the European constitutional law. Since the constitution & politics are discordant & semantically irritating mediums, the author argues that the European Union is an open semantic relationship of legal acquisitions & political processes. The European Union should be explained by means of contemporary, postmodernist theories derived from the linguistic & deconstructivist reversals of the modern substantial rationalism, universalism & cosmopolitism. Consequently, the constitution & the law are not underpinned by the political or any other specific power; on the contrary, it is the unspecific power of the constitution & the law that enables the gradual development & strengthening of the European law & the constitution without the extra constitutional authorities as the disguised power that traditionally legitimizes law. References. 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.

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.

Having in mind the long evolution of constitutions & constitutional politics & the universal appeal of the process of the interplay between virtue & demagogy that occurs during presidential elections, the author touches on several topics. The first are the standard "dogmatic" comparative provisions regarding the election of the head of state which the author looks into through the constitutional-legal prism of the so called selection effect. As the institution of the president of the republic exists in many constitutions & is thus among the most significant institutionalized aspects of political & social life of every country, the author focuses on the extent in which that institution in the electoral context contributes to the affirmation of republicanism, democracy & public sphere. The author concludes that the election of presidents & the effects of electoral selection, among other things, affect the process of political integration that ought -- to not only in Croatia but everywhere & due to a plethora of reasons -- promote the universally accepted ontological principles of contemporary constitutional-democratic state. Appendixes, References. Adapted from the source document.