Using the most recent archival sources, the author describes the organization of the judiciary & the courts in Zadar & Dalmatia after the Italian occupation in 1918. In violation of the cease-fire agreement, the Italian occupational authorities reorganized the judiciary institutions & defined the new territorial jurisdiction of courts so as to establish judiciary control over both the occupied & unoccupied parts of Dalmatia. The purpose of this new organization of the courts & the constant propaganda relating to it was to prove that Zadar & Dalmatia belonged to Italy -- culturally, civilizationally, & politically. 3 Appendixes, 13 References. Adapted from the source document.
Using the most recent archival sources, the author describes the organization of the judiciary & the courts in Zadar & Dalmatia after the Italian occupation in 1918. In violation of the cease-fire agreement, the Italian occupational authorities reorganized the judiciary institutions & defined the new territorial jurisdiction of courts so as to establish judiciary control over both the occupied & unoccupied parts of Dalmatia. The purpose of this new organization of the courts & the constant propaganda relating to it was to prove that Zadar & Dalmatia belonged to Italy -- culturally, civilizationally, & politically. 3 Appendixes, 13 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.
Court activism occurs when courts not only dabble in pronouncing sentences but also want to take part in the creation of social policies & thus come into contact with many more people than when solving cases on an individual basis. Activism of a court is measured by the degree of its "authority" over the citizens, the legislature, & the administration. The author defines the concept & the elements of court activism through the examples of several developed constitutional democracies. He concludes that court activism in the form known in contemporary constitutional democracies is lacking in Croatia. 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 analyzes the role of the constitutional judiciary & the traditional theory of the tripartite division of power. His radical conclusion is that the division of power in Montesquieu's sense, as a tool of control & balance in the modern state, does not exist. There is no social violence to which such balance, control, or correction could be applied. In such circumstances, the role, selection, & work of constitutional judges is of utmost significance for the control, correction, & balancing of political process. 4 Tables. 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 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.
The author analyzes the pre-political & political genesis of human rights, followed by the later process of positivization of human rights. The subject of the author's analysis are, on the one hand, contractual theories by Locke, Hobbes, Kant, & their critique by Hegel, & on the other, the genesis of human rights after the Declaration on the Rights of Men and Citizens. In the end, on the basis of Rawls's postulates, the author describes the state of human rights in democratic pluralist civil states & contemporary constitutional states governed by law, which have been trying to restrict democracy by means of either new contractual theories or by insisting on an autonomous & active constitutional judiciary. Adapted from the source document.
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.
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.
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.
