What Can Constitutional Law Do Against the Erosion of Democracy and the Rule of Law? On the Interconnectedness of the Protection of Democracy and the Rule of Law

2019 ◽  
Author(s):  
Andras Jakab
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
The Rule Of Law

scholarly journals Methods, principles and presumptions of constitutional and conflict diagnostics

2021 ◽  
Vol 7 (2) ◽  
pp. 34-41
Author(s):  
I. A. Tretyak
Keyword(s):  
Law Enforcement ◽  
Causal Relationship ◽  
Statistical Methods ◽  
Rule Of Law ◽  
Systematic Study ◽  
Constitutional Law ◽  
Formal Logic ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Legal Method

The article examines the main elements of constitutional and conflict diagnostics, which is a system of consistently applied methods, legal principles and presumptions, aimed at obtaining information about the causes, content, consequences and methods of preventing and resolving a constitutional conflict. Constitutional and conflict diagnostics is theoretically justified by the author as a new method of the science of constitutional law, which allows lawyers to study constitutional conflicts and constitutional norms of the conflictological type. The use of constitutional and conflict diagnostics will allow to establish and investigate the causal relationship between the formation of law, its normative expression and subsequent law enforcement, which will reflect the constitutional conflict. The author believes that the following methods are used in the course of diagnosing a constitutional conflict: dialectical, systematic, historical, statistical, methods of formal logic, formal-legal method, method of legal modeling, and other methods. The author also proposes to consider as the principles of such diagnostics: the principle of taking into account the specific historical situation, dialectical unity, systematic study of the conflict and the principle of the rule of law. The author suggests considering the following presuppositions used in the course of constitutional and conflict diagnostics: the presumption of the inevitability of constitutional conflicts, the presumption of the solvability of constitutional conflicts, and the presumption of the prevention of conflicts.

scholarly journals Access to Justice and Democratic Governance in Cameroon: Which Lessons in the Light of Constitutional Justice?

2019 ◽  
Vol 9 (3) ◽  
Author(s):  
Florent Guy ATANGANA MVOGO
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
Participatory Democracy ◽  
Democratic Governance ◽  
Access To Justice ◽  
The Rule Of Law ◽  
Constitutional Justice

Through the constitutional law of January 18, 1996, Cameroon endowed itself with a constitutional justice. The question is to what extent do the mechanisms of access to constitutional justice contribute to the democratic governance of the country? To analyse this fact, it appears that the mechanisms of access to constitutional justice in Cameroon are highly prohibitive and deny the rule of law and participatory democracy; all things that are resolutely situated at the antipodes of a democratic governance.

The Lost European Aspirations of U.S. Constitutional Law

2003 ◽  
Vol 4 (6) ◽  
pp. 595-611 ◽  
Author(s):  
Charles F. Abernathy
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Constitutional Law ◽  
Common Law ◽  
The Rule Of Law ◽  
The Many ◽  
The U.S

Most European and American attorneys and judges think the U.S.A. has its legal roots in English common law, and that is probably true for the many areas of U.S. law that are still controlled by the traditional common-law process of simultaneously making and applying law. Yet, with respect to constitutional law – America's greatest legal contribution to modern respect for the rule of law, the roots of the U.S. legal system are firmly planted in Europe, not England. The U.S. Constitution was inspired by French revolutionary ideas of rationalism in law; it was intended as an integrated document just like codes; and it has been interpreted by American judges to be not just a political document but binding law – law that is binding on all three branches of government, legislative, executive, and judiciary. In fact that was the holding in Marbury v. Madison, the case decided exactly two hundred years ago.

scholarly journals Encuesta sobre la independencia del Poder Judicial

2016 ◽  
pp. 15 ◽  
Author(s):  
Teoría y Realidad Constitucional
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
Judicial Power ◽  
The Rule Of Law ◽  
Law Professors

En esta encuesta un grupo de Catedráticos de Derecho Constitucional contestan un conjunto de preguntas sobre la independencia del Poder Judicial en el Estado de Derecho, relativas a las amenazas que existen a esa independencia; las preguntas abordan temas relativos al Consejo General del Poder Judicial, la figura del aforamiento, el régimen del Ministerio Fiscal y el derecho de gracia, entre otros.In this academic survey a group of Constitutional Law Professors answer some questions about the independence of the Judicial Power and the Rule of Law and about the threats to this independence; the questions approach topics relative to the Judicial Power government, the procedural privileges, the regime of the Attorney General’s office and judicial pardon or grant of clemency.

scholarly journals Ombudsman Institute: Basic Models and Problems of Reception in Constitutional Law

2020 ◽  
Vol 9 (29) ◽  
pp. 273-281
Author(s):  
Oleksandr Batanov ◽  
Natalia Verlos ◽  
Olga Lotiuk ◽  
Olena Sinkevych
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Classical System ◽  
Modern World ◽  
Persons With Disabilities ◽  
The Rule Of Law ◽  
Human Rights Protection ◽  
Rights Protection

In the search for optimal ways of improving the normative foundations and organizational-legal forms of human rights protection, the problem of institutional support of relevant processes is actualized. The protection of human rights is inherently linked to all public-power structures of the mechanism of state power and is possible only in the context of optimal implementation of the principles of the rule of law, separation of powers, democratic, social, rule of law. In Ukraine, in the context of constitutional modernization, the problem of improving the organizational-legal mechanism of human rights protection remains urgent. For this purpose, the Institute of the Ombudsman operates in Ukraine. Its implementation fully meets the tendencies existing in the modern democratic world and is a reaction to those conflicts and contradictions that exist in the field of human rights protection. Nevertheless, the social insecurity of certain sections of the population (children, pensioners, persons with disabilities, servicemen, migrants, internally displaced persons, ethnic minorities, persons belonging to the LGBTI community, entrepreneurs, patients and other categories of citizens) is an indicator of the relevance of the problem and the functioning of national human rights protection mechanisms, including the strengthening of the relevant oversight functions of the Ombudsman. The subject of the research is the problems of reception in the constitutional law of the basic models of organization of the Ombudsman Institute in the mechanism of functioning of the rule of law. The object of the study is the public relations that delve into the human rights protection process and the ombudsman's exclusivity in the relevant processes. The methodological basis of the study are general scientific methods, such as dialectical, comparative-legal, formal-legal, historical, and logical methods of cognition, as well as special and private-law methods. The history of development, the causes, the processes of institutionalization and constitution of the ombudsman services in the modern world, the permanent transformation of their functions and the differentiation of their specialization are evidence of the improvement of the classical system of separation of powers and the constitutional mechanism of its organization. It is argued that the functional isolation, independence, and organizational diversity of the control bodies, first of all, the Ombudsmen, is a testament to the formation of control power, the conceptual idea of which is the existence of a system of measures to ensure control over public authority.

7 Conclusions

2007 ◽  
Author(s):  
Goldsworthy Jeffrey
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Constitutional Law ◽  
The United States ◽  
The Other ◽  
Judicial Discretion ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Descriptive Sense ◽  
Law Making

This book has identified substantial differences between the philosophies of the courts of Australia, Canada, Germany, India, South Africa, and the United States with respect to interpretations of their constitutions. The differences can be characterised mainly in terms of the stronger attraction of some courts to legalism. Legalism in constitutional law has been associated with various tendencies, including literalism, formalism, positivism, and originalism. Legalism is used in a purely descriptive sense, not to applaud or to denigrate, but merely to denote interpretive philosophies motivated by two main concerns. One is disapproval of judicial discretion — of decision-making based on judges' values and ideologies rather than objective legal norms. The other is disapproval of judicial law-making — of decision-making that changes law instead of merely applying it. Legalists disapprove of judicial discretion and law-making for various reasons, including equity among litigants, predictability, democracy and the rule of law.

The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought

2019 ◽  
Vol 52 (3) ◽  
pp. 427-454
Author(s):  
Hassan Jabareen
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Review Essay ◽  
Constitutional Law ◽  
The Rule Of Law ◽  
Legal Thought ◽  
The Law ◽  
The Right ◽  
Normative Justification

This review essay challenges three main claims about originalism in American legal thought. While it affirms that originalism could be the Law of a legal system, it first challenges the mainstream idea that American originalism is the paradigmatic case in theory and in practice. Second, the essay confronts the normative justification that originalism ensures democracy based on the rule of law. Third, it interrogates the dichotomy between living constitutionalism and originalism regarding the use of history by arguing that originalism is a form of hegemony. The case study analysed in this article is Israeli legal thought and practice after the enactment of the 1992 Basic Laws, with the focus on the right of equality.

The Effect of Alcohol on the Canadian Constitution ... Seriously

2011 ◽  
Vol 57 (1) ◽  
pp. 189-209
Author(s):  
Morris J. Fish
Keyword(s):  
Civil Rights ◽  
Rule Of Law ◽  
Criminal Law ◽  
Constitutional Law ◽  
Temperance Movement ◽  
The Rule Of Law ◽  
Division Of Powers ◽  
Straight Line ◽  
Form Part ◽  
Good Government

Alcohol has exerted a staggering influence on the Canadian constitution. It was a prominent feature of daily life in the young Dominion, much to both the delight and chagrin of many. The temperance movement exerted its own influence on both the federal and provincial legislatures. Without “alcohol” as a head of power, the legislatures claimed control over this seeming, social evil sometimes under “Peace, Order and Good Government”, “criminal law”, or “Trade and Commerce”; at other times under “Property and Civil Rights”, “Local Matters”, and so forth. Court challenges abounded; the result was, in part, the judiciary’s failure to walk a straight line toward a clear division of powers between the federal and provincial governments. But the result was also many of the doctrines of division of powers that still form part of Canadian constitutional law. Beyond its impact on the division of powers, alcohol was also at the root of Canada’s most important decision on the rule of law: Roncarelli—a decision argued and won by the late F. R. Scott.

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