scholarly journals The Indonesian Constitution Read with German Eyes

2021 ◽  
Vol 7 (1) ◽  
pp. 53
Author(s):  
Herbert Küpper
Keyword(s):  
Cultural Differences ◽  
Constitutional Law ◽  
The State ◽  
Striking Feature ◽  
Regional Diversity ◽  
Parliamentary System ◽  
German Constitution ◽  
Natural Diversity ◽  
The One ◽  
German Constitutional Law

The Indonesian Constitution offers many interesting insights to a German constitutional scholar. The most striking feature is the balance between the unitarian state and the natural diversity of Indonesia. In Germany, the state architecture reflects regional diversity in its federal framework, whereas Indonesia combines the unitarian state with various decentralising elements. This balance between unitarianism and regional diversity is probably the most conspicuous feature of the Indonesian Constitution and appears to be a suitable compromise between the conflicting aims of stabilising the state and the nation on the one hand and accommodating the geographic, demographic and cultural differences within the country on the other. Another striking feature is the presidential system, which is quite the opposite of the parliamentary system of the German Constitution. Other points that, from the perspective of German constitutional law, invite comparison are the constitutional provisions about the legal system,Indonesia’s constitutional monotheism, which is quite the opposite of the German idea of the state being strictly neutral in religious affairs, and human rights.

German Constitutional Law and Doctrine on State of Emergency – Paradigms and Dilemmas of a Traditional (Continental) Discourse

2006 ◽  
Vol 7 (5) ◽  
pp. 453-477 ◽  
Author(s):  
András Jakab
Keyword(s):  
Constitutional Law ◽  
Current Issue ◽  
German Literature ◽  
Legal Discourse ◽  
The State ◽  
Legal Issues ◽  
State Of Emergency ◽  
The Law ◽  
German Constitutional Law ◽  
Academic Debate

A foreign jurist, on looking into the German literature on constitutional law, will soon and suddenly be struck by a peculiarity of this scholarship: the unusually strong emphasis on a marginal area of constitutional law, namely, the state of emergency. The inquiry is, of course, well-known in other countries, but the passion for, and the theoretical effort expended on, this marginal area is unique to Germany.However, this disinterest on the part of other constitutional lawyers, and the recent decline in interest on Germany's part, could yet change, turning the marginal area into a highly current issue. Combating terrorism raises questions for which the German patterns of argumentation, fine-tuned in the academic debate on the law of state of emergency, may provide a useful framework for discussion. The questions arising in the context of the struggle against terrorism test the limits of positive regulations in extreme situations, leading ultimately to the same underlying dilemma as the law on state of emergency, though with different terminology. In this sense, the constellation of legal issues involved in combating terrorism could be considered as the law on state of emergency “incognito.” However, the various argumentative patterns for law on state of emergency have not yet been directly transferred into the very timely legal discourse on counterterrorism (and no such attempt is made here), but such a transfer of argumentation suggests itself. As such, the topic has a “potential currency,” even if traditional issues of state of emergency themselves no longer count among the most current issues.

Grotius and the Origin of the Ruler's Right to Punish

Grotiana ◽  
2007 ◽  
Vol 26 (1) ◽  
pp. 396-415 ◽  
Author(s):  
Gustaaf van Nifterik
Keyword(s):  
Constitutional Law ◽  
John Locke ◽  
Thomas Hobbes ◽  
The State ◽  
Constitutional Theory ◽  
War And Peace ◽  
The Law ◽  
The One ◽  
The Right

AbstractAn important aspect of any constitutional theory is the state's power to punish transgressions of the law, or the ius gladii. Although Grotius never formulated a complete, comprehensive constitutional theory, traces of such a theory can be found in many of his writings not explicitly devoted to constitutional law. Punishment even plays an important role in his books on war (and peace), since to punish transgressions of the law is ranked among the just causes of war.Given the fact that a state may punish transgressions of the law – transgressions by individuals within and even outside the state, but also transgressions of the law by other states – the question may arise concerning the origin of such a right to punish. It will be shown that Grotius did not give the same answer to this question in his various works. As the right to punish is concerned, we find a theory that seems to be akin to the one of John Locke in the De iure praedae (around 1605), one akin to the theories of the Spanish late-scholastics in De satisfactione and De imperio (around 1615), and a theory coming close to what Thomas Hobbes had said on the ruler's right to punish in the De iure belli ac pacis (around 1625).Of course, Grotius can only have been familiar with the theory of the Spanish late-scholastics, since those of Locke and Hobbes were still to be written by the time Grotius had passed away.

scholarly journals Functions of constitutional and legal responsibility: problems of conceptualisations

2020 ◽  
pp. 100-104
Author(s):  
Nataliia Batanova
Keyword(s):  
Constitutional Law ◽  
Academic Discipline ◽  
The State ◽  
Legal Responsibility ◽  
Constitutional Rights ◽  
Constitutional Order ◽  
Object Composition ◽  
Characteristic Features ◽  
The One ◽  
Definition Of

The article considers the problems of the theory of functions of constitutional and legal responsibility. The characteristic features of the functions of constitutional and legal responsibility are analyzed. It substantiates the correlation and relationship between the functions of constitutional and legal responsibility and the functions of the Constitution, the functions of constitutional law, the functions of the state, etc. It is proved that the functions of constitutional and legal responsibility are characterized by legal features that reveal the essence and content of this category, in particular: 1) express the nature and content of this type of legal responsibility, its purpose in society and the state, as well as its place in the system of protection of the Constitution and constitutional order; 2) interrelated with the main functions of the state; 3) is an active way of acting of constitutional and legal responsibility and constitutional law as a whole (its principles, tasks, functions); 4) having an objective nature, on the one hand, is a form of purposeful willful behavior or activity of the subjects of constitutional liability and constitutional law in general (subjects of instances of constitutional responsibility and subjects of violators of constitutional law and order (delinquents)), and, on the other hand, the system of legal states that give rise to the constitutional rights and obligations of participants in constitutional-controversial and constitutional-conflict relations; 5) directly related to the system of constitutional law institutions (people, state, elections and referendums, bodies and officials of state power and local self-government, people and citizens, territorial hromadas, political parties, etc.); 6) are in synergy with the sources of constitutional law as a branch of law (above all the Constitution and its functions); 7) directly affect the constitutional and legal relations (first of all, constitutionally-controversial and constitutional-conflict) and their properties, subject-object composition, constitutional legal facts; 8)are organically related to the functions of constitutional law as a legal science and academic discipline and the like, etc. The definition of the concept of the functions of constitutional legal responsibility as the main normative and organizationally secured areas and types of its influence on the constitutional and legal relations with the purpose of protection of the Constitution, restoration of the constitutional order and proper fulfilment of tasks, functions and powers of the subjects of these relations, constitutional disputes between them and overcoming constitutional conflicts is formulated.

German Constitutional Law

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Constitutional Law ◽  
Case Law ◽  
Equal Treatment ◽  
Constitutional Court ◽  
Basic Law ◽  
German Constitution ◽  
Federal Constitutional ◽  
Book Covers ◽  
The Right ◽  
German Constitutional Law

This book provides a comprehensive summary of German constitutional law, in particular the case law of the German Federal Constitutional Court. It provides first-hand insight into the complex principles of the Basic Law, or Grundgesetz (GG), and an authoritative introduction to the history of the German constitution, the Basic Law, and the methodology of the Federal Constitutional Court. As well as an analysis of the general principles of German constitutional law, the book covers the salient articles of the German constitution and offers relevant extracts of the Court's most important decisions on the provisions of the Basic Law. It provides notes and discussions of landmark cases to illustrate their legal and historical context and give the reader a clear understanding of the principles governing German constitutional law. The book covers the fundamental rights catalogue of the Basic Law and offers a comprehensive account of its intellectual moorings. It includes landmark jurisprudence on the equal treatment of same-sex couples, life imprisonment, the legal structure of property, the right to assembly, and the right to informational self-presentation. The book also covers the provisions and respective case law governing the state structure of Germany, for instance the recent decisions on the prohibition of the far-right German nationalist party, and the Court's jurisprudence on European integration, including the most recent decisions on the OMT program of the European Central Bank.

Marriage, Same-Sex Partnership, and the German Constitution

2012 ◽  
Vol 13 (8) ◽  
pp. 911-940 ◽  
Author(s):  
Anne Sanders
Keyword(s):  
Constitutional Law ◽  
The United States ◽  
The Political ◽  
Same Sex ◽  
Political Arena ◽  
Political Issue ◽  
Private Interests ◽  
The World ◽  
German Constitution ◽  
German Constitutional Law

Marriage today does not only involve private interests; it is also an important legal and political issue. The question of what marriage means today and whether it should be open to same-sex unions is under debate all over the world. In many countries, for example in Germany and the United States, such questions are not only debated in the political arena, but also in relation to constitutional law. This Article will trace the development of how marriage has been understood in relation to German constitutional law and critically discuss the law's approach to same-sex marriage.

scholarly journals Functions of constitutional and legal responsibility: methodological problems of research

2020 ◽  
pp. 210-221
Author(s):  
Batanova Nataliya
Keyword(s):  
Constitutional Law ◽  
Academic Discipline ◽  
The State ◽  
Legal Responsibility ◽  
Constitutional Rights ◽  
Constitutional Order ◽  
Object Composition ◽  
Characteristic Features ◽  
The One ◽  
Definition Of

The article considers the problems of the theory of functions of constitutional and legal responsibility. The characteristic features of the functions of constitutional and legal responsibility are analyzed. It substantiates the correlation and relationship between the functions of constitutional and legal responsibility and the functions of the Constitution, the functions of constitutional law, the functions of the state, etc. It is proved that the functions of constitutional and legal responsibility are characterized by legal features that reveal the essence and content of this category, in particular: 1) express the nature and content of this type of legal responsibility, its purpose in society and the state, as well as its place in the system of protection of the Constitution and constitutional order; 2) interrelated with the main functions of the state; 3) is an active way of acting of constitutional and legal responsibility and constitutional law as a whole (its principles, tasks, functions); 4) having an objective nature, on the one hand, is a form of purposeful willful behavior or activity of the subjects of constitutional liability and constitutional law in general (subjects of instances of constitutional responsibility and subjects of violators of constitutional law and order (delinquents)), and, on the other hand, the system of legal states that give rise to the constitutional rights and obligations of participants in constitutional-controversial and constitutional-conflict relations; 5) directly related to the system of constitutional law institutions (people, state, elections and referendums, bodies and officials of state power and local self-government, people and citizens, territorial hromadas, political parties, etc.); 6) are in synergy with the sources of constitutional law as a branch of law (above all the Constitution and its functions); 7) directly affect the constitutional and legal relations (first of all, constitutionally-controversial and constitutional-conflict) and their properties, subject-object composition, constitutional legal facts; 8)are organically related to the functions of constitutional law as a legal science and academic discipline and the like, etc. The definition of the concept of the functions of constitutional legal responsibility as the main normative and organizationally secured areas and types of its influence on the constitutional and legal relations with the purpose of protection of the Constitution, restoration of the constitutional order and proper fulfillment of tasks, functions and powers of the subjects of these relations, constitutional disputes between them and overcoming constitutional conflicts is formulated.

scholarly journals GENERAL SCIENTIFIC APPROACHES TO DEFINING THE FUNCTIONS OF THE CONSTITUTIONAL MECHANISM OF

2021 ◽  
pp. 92-103
Author(s):  
Володимир Шатіло
Keyword(s):  
Public Relations ◽  
Constitutional Law ◽  
Comparative Method ◽  
State Power ◽  
The State ◽  
Historical Method ◽  
Significant Phenomenon ◽  
Scientific Opinion ◽  
Theory Of Law ◽  
The One

The purpose of this work is to define the concept of functions of the state power constitutional mechanism through the study of doctrinal positions of function in various branches of social sciences. Methodology for the functions’ study of the state power constitutional mechanism consists of the methods of cognition, discovered and developed by philosophy, history, sociology, theory of law and state, specialized legal sciences and approved by legal practice. Thus, the role of the historical method in the analysis of the functions of the constitutional mechanism of state power, in addition to explaining the nature of origin and development, is to ensure a systematic study of the evolution of this category. The semantic method was used to clarify the meaning of the term “function”, its scientific and practical meaning, the possibility of using it in constitutional law to refer to such legal categories as “constitutional mechanism of state power”. The comparative method was applied to reveal the general in such terms as “functions”, “goals” and “tasks”. The results of the study show that the function is a kind of “a pattern”, “a standard”, “an ideal model” of the system’s work, in particular, of the constitutional mechanism of state power, and therefore, it must be, on the one hand, differentiated from the goals and tasks that face the system, and on the other hand – from the real, actual activity of its institutions (competences). When determining the functions of the constitutional mechanism of state power, it must be assumed that, firstly, the functions are the directions of influence of a certain socially significant phenomenon or circumstance on certain legal relations, and secondly, the functions are the activity of certain subjects of the constitutional mechanism of state power within the limits of the powers specified in the Constitution and laws; thirdly, functions reflect the essence of the phenomenon, its purpose and patterns of development. The theory of functions of the constitutional mechanism of state power should proceed from the social purpose of the state, its tasks and goals, the legislation of Ukraine, as well as the experience of practical activity of the state apparatus and the achievement of scientific opinion in the field of constitutional law and a number of theoretical and applied legal sciences. Actually the system of functions of the state determines the need to study the functions of the constitutional mechanism of state power, but if the functions of the state are the directions of influence on public relations, then the functions of the constitutional mechanism of state power are the directions of the state functions within the competence of individual institutions that make up the structure of the constitutional mechanism of the state power. On the basis of this research, the author comes to the conclusion that the functions of the constitutional mechanism of state power should be defined as the directions of activity of the subjects of the constitutional mechanism of state power within the competence defined in the Constitution and laws aimed at achieving the goals and tasks of the state.

scholarly journals Purpose, tasks and functions of constitutional and legal responsibility: questions of efficiency of realization

2020 ◽  
pp. 104-109
Author(s):  
Nataliia Batanova
Keyword(s):  
Constitutional Law ◽  
The State ◽  
Legal Responsibility ◽  
Constitutional Theory ◽  
Legal Personality ◽  
Correct Definition ◽  
Concept Of Function ◽  
The One ◽  
Holistic Theory ◽  
Definition Of

In the article some problems of the theory of functions of constitutional and legal responsibility are researched. The relationshipbetween the goals, objectives and functions of constitutional legal responsibility, the functions of the Constitution, the functions of constitutionallaw, the functions of the state and the like is substantiated.Exploring the problems of constitutional and legal responsibility, it is necessary to proceed from a methodological position onunderstanding the functions of legal responsibility in general and the functions of constitutional and legal responsibility in particular,as an active way of constitutional and legal responsibility, directions and forms of its impact on public relationship, the content of thistype of legal responsibility, its purpose in society and the state, as well as its place in the system of protection of the Constitution andthe constitutional order.Equally important in creating a holistic theory of the functions of constitutional responsibility is the consideration and relationshipof the category “function of constitutional responsibility” and phenomena such as “objectives of constitutional responsibility”,“tasks of constitutional and legal responsibility” and “principles of constitutional and legal responsibility”. Certain theoretical differencesin the definition of these essentially different and, at the same time, interconnected categories give rise to significant contradictionsand conflicts in constitutional theory and legislative practice. They can be overcome only by creating a holistic system of conceptsin which the concept of “function of constitutional and legal responsibility” will occupy a clearly defined place.It is concluded that the concept of “functions of constitutional and legal responsibility”, on the one hand, and the concept of“functions of the Constitution”, “functions of constitutional law”, “functions of the state”, “functions of subjects of constitutional law”,on the other hand, are mutually related. Consequently, this issue of scientific research is relevant and practically significant both interms of the theory of constitutional law and its institutions, primarily the theory of constitutional and legal responsibility, and theapplied aspect, primarily in the context of formation and implementation of legal personality of subjects in constitutional and legal relationship,first of all, bodies and officials of state power and local self-government.It is argued that its functionality and effectiveness depend on the correct definition of the goals and objectives of constitutionalresponsibility.

scholarly journals Böckenförde Theorem and Burqa Ban

2018 ◽  
Vol 19 (2) ◽  
pp. 321-350
Author(s):  
Ralf Michaels
Keyword(s):  
Constitutional Law ◽  
Muslim Women ◽  
The State ◽  
European Countries ◽  
Modern State ◽  
The Face ◽  
Woman's Rights ◽  
German Constitutional Law ◽  
Do So

When France and Belgium banned face veils in 2010 and 2011, they were the first European countries to do so in a comprehensive matter. Now Austria has its own ban, Denmark is on track to have one too, and several other countries are toying with the idea. Such bans are often considered incompatible with the rights of veil wearers (especially Muslim women). Less prominent is the question whether such bans are incompatible with the modern state.Such a critique can be grounded on the work of the leading German constitutional law scholar Ernst-Wolfgang Böckenförde and his famous dictum, according to which “[t]he liberal, secularized state draws its life from preconditions it cannot itself guarantee.” For Böckenförde, this means that headscarves, a different type of veil, cannot be banned—not because this would violate a woman's rights, but because it would undermine the very character of the state itself.The article transposes this argument from the German discourse over headscarves to the European discourse over face veils. It demonstrates the potential of Böckenförde's dictum for the face veil debate, but also its limitations.

The 1991 constitution of independent Transnistria

2018 ◽  
pp. 132-146
Author(s):  
Viktoria Serzhanova
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Legal Status ◽  
The State ◽  
The Political ◽  
Autonomous Region ◽  
Political Reality ◽  
Basic Law ◽  
The Subject ◽  
The One

The legal status of the Pridnestrovian Moldavian Republic, which declared its independence in 1990, since that time has unchangingly remained ambiguous. The state has factually existed for almost thirty years so far, although it has not hitherto been recognised by any member of the international community. Its status from the constitutional law viewpoint is contradictory to the one analysed in the light of the international law, according to which Transnistria still formally remains a Moldavian autonomous region of a special status. This paper, being a part of the wider research carried out over Transnistria’s legal status, aims at establishing its primary political system’s grounds. Therefore, it comprises the analysis of the origin and development of Transnistrian first independent basic law, which appeared to be the foundation of the abovementioned solutions. The paper undertakes an attempt to not only analyse, but also evaluate the political system’s primary principles and development of Transnistria as a newly created state in the first years of its functioning. The subject of the work is particularly focused on the shape and content of the first constitution of Transnistria of 1991, which bound during the first four years of the state’s independence till the presently binding constitution of 1995 entered into force, along with observing of how its functioning in practice shaped the constitutional and political reality.

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