The article is devoted to the doctrine & practice of the Law of Treaties. The author focuses his attention on the following four topics: (l) the Treaties & third States or third international organizations; (2) the Treaties that provide rights for third States or third international organizations; (3) the Treaties that set out obligations for third States or third international organizations. He pays special attention to the most-favored-nation clause. The author gives interpretations of the Vienna Convention on the Law of Treaties 1969 & the Vienna Convention on the Law of Treaties between States & International Organizations or between International Organizations 1986. References. Adapted from the source document.
The author defines the state of law as a typical product of German political culture that corresponds to, but also differs from, both the experience of the English rule of law & that of the French l'Etat-Nation. The author pays particular attention to the issue of the legitimacy of the sate of law. He focuses on two different approaches to this issue in the works of Volker Gerhardt & Ernst Wolfgang Bockenford. Following a critical analysis of their fundamental assumptions the author goes on to divulge the thesis on the necessity of a balance between rights & power in the functioning of modern political systems. 5 References. Adapted from the source document.
Due to the historical experience with the Weimar Republic, some abiding constitutional principles have been built into the new Constitution of the Federal Republic of Germany (its Fundamental Law). Instead of the positivist & formalistic interpretation of democracy of the Weimar Constitution, the authors of the Fundamental Law have opted for the concept of the so-called "militant democracy" i.e. democracy firmly linked to certain values. The concept of "militant democracy" is found in a number of articles in the German Fundamental Law, as a preemptive protection of democracy & a bulwark against extremist positions even before extremist groups break any law. The concept of "militant democracy" is based on the democratic theoretical & sociological-philosophical assumptions by Karl Loewenstein & Karl Mannheim. They have been converted into constitutional practice & incorporated into the Gennan Fundamental Law. However, the instruments of "militant democracy" do not include only the protective measures stipulated by the Constitution but an array of other measures of different intensity. Various instruments of "militant democracy" meant to protect democracy in the FR of Germany are described & include the discursive, penal-legal, administrative & constitutional-legal protection of democracy. The instruments of the protection of democracy in the Federal Republic of Germany are not unique, but some instruments e.g. the possibility of banning political parties are very rare in western democracies. & finally, this situation is briefly compared to the situation in some western & postcommunist democracies. References. Adapted from the source document.
In this text, the authors' starting point is that the modern conception of representation, decisively connected with the state as modern type of political order, not only represents a radical cut with regard to pre-modern forms of representation, but is also the result of evolution through which many key elements of the antique and medieval perception of representation were built into the modern perception. This is confirmed by two eminently modern theories of representation: the theory of Hobbes and the theory of Hegel. In both cases, the theories prove to be largely based on the antique and medieval legal-political heritage. With Hobbes, the basis consists primarily of the idea of legal representation, and with Hegel, of the idea of identity representation. Both ideas are gradually developed in civil law and canon law. This part of the text focuses on the part of history of representation which culminated in the perception of representation according to the model of legal representation. For this purpose, the authors first discuss the definition of representation in the Roman period and in early Christianity, and then they investigate how the antique heritage was reinterpreted in medieval civil law and canon 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 suggests that the process of establishing a Croatian state based on law ought to differentiate varieties both on the diachronic & genetic level as well as on the synchronic & systematic level. He maintains that distinguishing different types of state based on law (absolute/sovereign, liberal, social) & their specific problems offers analytical possibilities for the theoretical definition of institutions & regulating mechanisms better able to solve the basic problems in the development of Croatian society & the Croatian state. 32 References. 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 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.
Pokrovčeva knjiga Slobodno stvaranje prava: Herman U. Kantorowicz i slobodnopravni pokret (2018) nameće pitanje izraženo naslovom ovog rada na koje rad odgovara u tri koraka: prvo, pretpostavkom da je pitanje odgovorivo samo idealnim tipovima pravnih disciplina / funkcija; drugo, upućivanjem na kontekst Kantorowiczevih gledišta, osobito na objavu presuda; treće, ocjenom da je Kantorowicz podijelio pravnu znanost u prepletene funkcije a ne u odvojene discipline. U tu svrhu rad nudi idealne tipove disciplina i funkcija pravne dogmatike, pravne historije, pravne teorije i, kao najsloženiji i najkorisniji skup funkcija, pravnopolitičku analizu. Pretpostavka je, koja se ne dokazuje, da ne postoji ni oštra granica između pravne znanosti i susjednih znanosti: sociologije, ekonomije, psihologije, filozofije. ; Is Herman U. Kantorowicz's classification of legal disciplines - which includes general legal science, legal dogmatics, legal history, sociology of law, philosophy of law, and legal policy - a division of scholarly knowledge of law into distinct disciplines/sciences or into intertwined functions of a single scholarly discipline/science? The question is prompted by the book written by Zoran Pokrovac entitled Slobodno stvaranje prava: Hermann U. Kantorowicz i slobodnopravni pokret (Free Law: Hermann U. Kantorowicz and the Free Law Movement ) and published by "Breza" and the Faculty of Law of the University of Split in 2018. Answering this question may assist Croatian legal scholars in finding standards of scholarly excellence, especially of research de lege ferenda. This paper offers an answer in three steps. The first is the recognition that scholarly practices differ considerably, which means that the question may be answered only by construing and correlating ideal types of legal disciplines / functions that are compatible with Kantorowicz's general ideas, prominent interpretations of legal scholarship, and Croatian mainstream legal scholarship since. The second step provides a context of Kantorowicz's ...
