Suchergebnisse

Using the contemporary system theories, the author primarily points to the asymmetry of the constitutional law and the political processes it so rarely regulates. Then he goes on to analyse the historical process of separating the custom law, oral law and written law, of the court and the courtroom, the law and the constitution, the constitution and its interpretation, the constitution's interpretation and the constitutional theory, and concludes his study with a description of the difference between constitution and democracy in the postmodern categorial optics. (SOI : PM: S. 45)

In the introductory part of the essay, the author looks into the connection between the establishment and attributes of the so-called state of law and the legal system of continental Europe. This is followed by his summary of the origins of the idea of the state of law and its historical setting. In the middle part of the essay the author offers a list of values, value principles and the premises of the so-called state of law with the corresponding conclusions about a marked, multi-level/multiple restricted meaning and scope of the (mosdy) 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. (SOI : PM: S. 157)

The author defines the state of law as a typical product of German political culture which corresponds to, but also differs from, both the experience of the English rule of law and that of the French l'Etat-Nation. The author pays particular attention to the issue of the legitimacy of the state of law. He focuses on two different approaches to this issue in the works of Volker Gerhardt and Ernst Wolfgang Böckenförd. Following a critical analysis of their fundamental assumptions the author goes on to divulge the thesis on the necessity of a balance between rights and power in the functioning of modern political systems. (SOI : PM: S. 13)

The author is of the opinion 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 existance of certain rules of general international law and consider them validated and indisputable. This faction has been given support by states since they uphold those legal statements that suit their interests. The author analyses the Opinions of the Arbitration Committee on the process of the disintegration and 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. (SOI : PM: S. 187)

Different parts of State territory on land, sea and in the airspace are explained first. The concept of territorial sovereignty is envisaged through principles of its all-inclusiveness and its exclusivity, subject to many exceptions and 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 and tribunals. Besides, it can be the cause of some misconceptions and confusion in public international law. Within the explanation of territorial boundaries are discussed the so-called natural boundaries such as boundary rivers and lakes and mountain boundaries, as well as the artificial boundaries. Follow explanation of the principle of "uti possidetis, of procedures of fixing boundaries and of special legal scope of boundary treaties in international law. (SOI : PM: S. 74)

The author distinguishes between the antiquity's and Middle Ages' teachings on natural law and justice as a virtue and the modern-age Hobbes' theory of the prerequisites of the legal system. Hobbes' theory identifies the prerequisites of the legal system and 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. (SOI : PM: S. 276)

The author argues that in the debates about "democratic transition" of post- socialist societies the importance of development of state of law for the formation of democracy has not been sufficiently accounted for. The absence of state of law results in the formation of authoritarian structures of politi power which in the long run obstruct the process of democratization. Those structures include the concentration of political power in the hands of charismatic leaders, the transformation of political into economic power, the formation of clientelist structures, the development of a system of privileges and corruption, and the break-down of the state monopoly of the means of violence, resulting in the "refeudalization" of political power. In conclusion the author describes two developmental options for the post-socialist societies: the formation of a "Latin American" type of authoritarian-populist regimes or the gradual transformation towards a Western type of state of law and liberal democracy, initiated by the pressures from the international environment and internal forces. (SOI : PM: S. 85)

In Croatia, the issue of the legal status of the sources of journalists' formation as well as the status of journalists who publish sensitive information is increasingly gaining prominence. This is a subject which includes elements of constitutional, media, labour, civil, and penal law. The essay is limited to people as information sources. The sources can be divided into internal and external. The rationale for the sources' confidentiality privilege lies in the fact that journalists serve public goals and their sources can find themselves imperilled. 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) and analyses 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, analyses the representation of certain forms of responsibility of certain types of subjects and lists the principles he deems most important regarding journalists' work (the necessity of protecting the sources, the responsibility of journalists towards their sources, the different legal statu of journalists and their sources, the protection of privacy, the verification confidentiality, the more dominant interest, the importance of administrative ethics, the familiarity with the regulations, the adequate legal definition of a secret). (SOI : PM: S. 228)

The author analyses Schmitt's and Luhmann's theory of democracy and the constitutional state. By comparing them, he concludes that Schmitt's critique of the democratic pluralistic state has ended in the theory of direct or plebiscitary democracy in which the constitution is subject to an unpredictable will of political majority which can change it wilfully in line with the power relations. Luhmann, on the other hand, starts from the assumption of the separation between law and politics and builds his concept of the constitutional state on the bipolar differentiation and the mutual checks between law and politics. The author concludes that Luhmann does not give up on Hobbes' pessimistic conviction that human nature is bestial; he only offers a different strategy for the coexistence of cultured savages. (SOI : PM: S. 67)

Häberle 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/lega science and political science or public opinion and political culture of citizens? By analysing 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 and political science, who considers himself as belonging to the wider European scientific community, Häberle thinks that the decisive influences in constitutional changes stem from legal and political sciences and concludes: Sine qua (scientia) mortalium vita non regitur liberaliter. (Without science, mortals do not command their life freely). (SOI : PM: S. 186)