scholarly journals Two Influential Concepts: Socialist Legality and Constitutional Identity and Their Impact on the Independence of the Judiciary

2021 ◽  
Vol 22 (7) ◽  
pp. 1327-1343
Author(s):  
Fruzsina Gardos-Orosz
Keyword(s):  
Political Ideology ◽  
Judicial Reform ◽  
The Rule Of Law ◽  
State Institutions ◽  
Fundamental Law ◽  
The One ◽  
Legal Concepts ◽  
Constitutional Regime ◽  
Constitutional Identity

AbstractIn this Article, I suggest considering linkages of a theoretical, and continuities of a sociological nature between on the one hand, the concept and the practical use of socialist legality in Socialist Hungary—with particular regard to the period following the judicial reform of 1954—and on the other hand, the concept of constitutional identity as it has developed in the Fundamental Law in Hungary, with particular regard to the period since the 2011 judicial reform. The Article highlights surprising similarities in the politically determined legislative intention in these two periods to form embracing, quasi legal concepts, which in themselves seem to differ fundamentally, although the similarities in their nature and in the specific constitutional practice are attention-grabbing. The interpretation of the role of state institutions, and especially the judicial role, lead one to think that despite the explicit rejection of the Socialist era in Article U) of the Fundamental Law in Hungary, the new constitutional regime has familiar attitudes to the understanding of the rule of law and the role of the judiciary in promoting the enforcement of the new, supra legal concepts of a transformative nature, which, however, are filled in with the ruling political ideology, whether it be socialist legality or national constitutional identity.

scholarly journals State-building for the market economy in Eastern Europe

2020 ◽  
Vol 70 (4) ◽  
pp. 471-491
Author(s):  
Paul Hare
Keyword(s):  
Eastern Europe ◽  
Rule Of Law ◽  
Law And Economics ◽  
Recent Analysis ◽  
The Rule Of Law ◽  
State Institutions ◽  
Role Of The State ◽  
New States ◽  
The Eu

AbstractKornai's earlier works embodied the idea that state institutions formed a system with a strong tendency to reproduce itself, and hence to resist minor reforms. Thus, at the end of socialism, huge changes were needed in politics, economics, and the law to build a new system oriented towards the market-type economy, which would again be stable, self-reinforcing and self-sustaining. Transition promoted the development of new states in Eastern Europe that conformed to the Copenhagen criteria for the EU accession. Were we too hasty in thinking that we had succeeded? The new systems are not returning to the previous one, and only in a few areas have the basic norms of a market-type economy been set aside in Hungary or Poland. But concerns arise at the interface between politics, law and economics – to do with the rule of law, the nature and role of the state, and the interactions between parliament, the executive and the judiciary. Unavoidably, there is also an interesting international dimension here, represented by the shift from the Warsaw Pact and CMEA to NATO and the EU. This paper explores these issues in the light of some of Kornai's recent analysis of developments in Hungary, while also drawing on his very insightful earlier works.

scholarly journals A European convergence towards a stare decisis model?

2015 ◽  
pp. 173 ◽  
Author(s):  
Stefano Civitarese
Keyword(s):  
Rule Of Law ◽  
Deep Understanding ◽  
The European Union ◽  
Stare Decisis ◽  
The Rule Of Law ◽  
Law System ◽  
Legal Space ◽  
The One ◽  
The Relationship

The article revolves around the doctrine of precedent within the so-called European legal space, wondering whether and to what extent we can speak of a convergence towards a stare decisis model boosted by the harmonizing role of the Court of Justice of the European Union. The article argues that although there are still some differences between civil law and common law legal systems they regard more the style of reasoning and the deep understanding of the relationship between the present decision of a court and past judicial decisions than the very existence of the constraints of the latter upon the former. The article concludes that a sort of mechanism of stare decisis has in fact been created, even though, on the one hand, uncertainty remains as to the way in which the binding force of a precedent concretely operates in the system, and on the other hand, this mechanism relates exclusively to the relationships between past and future decisions of higher courts (horizontal effect). This change, far from being a shift towards a truly judge-made law system or a consequence of the final abandonment of the dictates of the rule of law, enhances legal certainty contributing to the fundamental requirement of stability of law as a feature of the ideal of the rule of law.

Democratisation and Ethnic Minorities

2018 ◽  
pp. 40-60
Author(s):  
Wu-Ling Chong
Keyword(s):  
Ethnic Minorities ◽  
Rule Of Law ◽  
Electoral Politics ◽  
Democratic Politics ◽  
Cultural Identities ◽  
Cultural Environment ◽  
The Rule Of Law ◽  
State Institutions ◽  
Opening Up

This chapter discusses the democratisation process in post-Suharto Indonesia and the role of Chinese Indonesians in the democratisation process. The opening up of democratic politics in the post-Suharto era has offered opportunities for the Chinese to participate directly in electoral politics and run for public office. The relatively liberal socio-cultural environment also allows the Chinese openly to express their ethnic and cultural identities. However, the democratisation process has been marred by poor enforcement of the rule of law, the capture of state institutions and political parties by old and some new predatory interests, and rampant political thuggery. This allows some Chinese to continue gaining wealth through illegal or semi-legal means, and contributes to the continuing, if not growing, ambivalent attitude held towards Chinese Indonesians.

scholarly journals ПОКРЕТАЊЕ ПОСТУПКА НОРМАТИВНЕ КОНТРОЛЕ ПРАВА У РЕПУБЛИЦИ СРБИЈИ

TEME ◽  
2019 ◽  
pp. 1419
Author(s):  
Bálint Pásztor
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Democratic Culture ◽  
Advantages And Disadvantages ◽  
Institutional Values ◽  
The Law ◽  
The Republic ◽  
The One

The author of the article analyzes the specificities of the normative control of the law, i.e. the procedure of assessing the constitutionality and legality of the law in the Republic of Serbia, with the aim of detecting historical and legal preconditions of the effective functioning of the rule of law. The historical perspective of the development of the constitutional judiciary in the Socialist Federal Republic of Yugoslavia and the Republic of Serbia, as well as the analysis of the experiences of various systems of control of constitutionality and legality, open the contextual, scientific-historical and pragmatic dimensions of understanding. The specificity of the system of normative control is reflected in its triplicity, meaning that three institutes are known that characterize different procedural possibilities (to initiate the process of assessing the constitutionality and legality of general acts). The paper is written in order to point out the dichotomy of the proposal and initiative of the procedure of the assessment of constitutionality and legality, as well as the advantages and disadvantages of the ex officio procedure. Furthermore, the author wanted to point out the essential and procedural differences between the proposal, the initiative and the constitutional complaint, especially analyzing the purpose of retaining the institute of the initiative in the light of the existence of the constitutional complaint and the fact that the initiative does not imply the automation of the initiation of proceedings. The dilemma that the article opens concerns the possibility that in the case of abolishing the initiative as an institution accessible to all, is it possible to preserve the democratic culture and the participation of citizens, furthermore is it possible to abolish the fundamental institutional values and freedoms of a legal state and the rule of law? The paper opens other issues of importance for the establishment of an effective constitutional architecture that concern: the width of the circle of authorized proposers of normative control before the Constitutional Court; the dual role of the constitutional judiciary: on the one hand protection of the Constitution, constitutionality and legality, on the other hand effective protection of human and minority rights and freedoms.

scholarly journals Austrian Constitution - general aspects

2018 ◽  
pp. 75-83
Author(s):  
OLGA-ANDREEA URDA
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
The European Union ◽  
The Rule Of Law ◽  
Fundamental Law ◽  
General Aspects ◽  
The Comparative Study ◽  
Point Of Reference

The present article aims at presenting the Austrian fundamental law with the highlighting of some essential aspects regarding the exercise of the legislative, executive and judicial powers, the institutional particularities and, last but not least, the evolution of the regulation that was generated generated by the state's accession to the European Union. Constitutional control is another aspect that we have focused into the study, considering the important role of the Constitutional Court in the rule of law. The conducted analysis has significant valences, especially in the context in which it can signify a point of reference in the comparative study of constitutional regulations

scholarly journals Pozycja i rola Komisji Europejskiej w procedurze ochrony budżetu UE w przypadku uogólnionych braków w zakresie praworządności w państwach członkowskich

2021 ◽  
pp. 145-156
Author(s):  
Karol Piwoński
Keyword(s):  
European Commission ◽  
Rule Of Law ◽  
Comparative Method ◽  
Point Of View ◽  
New Paradigm ◽  
The Rule Of Law ◽  
Wide Range ◽  
The One ◽  
The Eu

The aim of this article is to analyse the position and role of the European Commission in the procedure provided in the regulation on a general regime of conditionality for the protection of the European Union’s budget. For this purpose the scheme of this procedure was analysed, by interpreting the relevant regulations using the dogmatic method and considering opinions of the EU institutions and views of the scholars. A comparative method has also been applied. The new position of the Commission in the procedure for protection of the EU budget has been compared with the position it plays in the existing instruments. The analysis made from the point of view of the position of individual institutions in the new procedure, although it does not allow predicting how they will be implemented. The conducted analysis demonstrates that the European Commission – an institution of Community character – has gained wide competences, and in applying them it has been given a wide range of discretion. On the one hand, the introduced regulations exemplify a new paradigm in creating mechanisms for protection of the rule of law. On the other hand, they raise doubts as to their compliance with EU law. However, they undoubtedly constitute a decisive step towards increasing the effectiveness of the EU's instruments for the rule of law protection.

scholarly journals Strengthening the founding values of the EU: The potential role of the Fundamental Rights Agency

European View ◽  
2019 ◽  
Vol 18 (1) ◽  
pp. 97-104
Author(s):  
Konstantinos Margaritis
Keyword(s):  
Rule Of Law ◽  
Potential Role ◽  
Maastricht Treaty ◽  
Fundamental Rights ◽  
Member States ◽  
The Rule Of Law ◽  
Political Consequences ◽  
The One ◽  
The Eu

The rule of law is one of the founding values of the EU, as indicated in Article 2 TEU. This provision recognises that the rule of law is a core value, inherent to liberal democracy, and one which characterised the Union and its member states long before the formal establishment of the EU by the Maastricht Treaty. However, several member states, most notably Poland and Hungary, seem to have placed this value in jeopardy, leading EU institutions to disagree on how to combat this problem and its political consequences. The aim of this article is to propose a solution that involves a rather neglected, yet certainly competent actor, the Fundamental Rights Agency. The outcome would be twofold: on the one hand, the rule of law would be vitally strengthened; on the other, the role of the Agency would be fortified in line with its scope.

scholarly journals Cybersecurity Politics – Conceptualization of the Idea

2021 ◽  
Vol 50 ◽  
pp. 1-19
Author(s):  
Marek Górka ◽  
Keyword(s):  
Political Science ◽  
New Technologies ◽  
Human Life ◽  
The State ◽  
State Institutions ◽  
The One ◽  
Social And Cultural Factors ◽  
Almost All ◽  
Political Economic

The cybersecurity issue discussed in the paper is seen from the perspective of political science with the indication that the subject under discussion concerns the multifaceted nature of the state’s actions, which consists of political, economic, social, and cultural factors. At the same time, the work also intends to prove that cybersecurity is not only a domain of technology because it is the mentioned aspects that shape the conditions of stable development of the state and its citizens in a space dominated by cyber technology in a much more decisive way. Given the growing role of cybertechnology in almost all areas of human life, its importance also forces and inspires political science to question the shape and model of modern policy, which is significantly evolving under the influence of new technologies. On the one hand, emerging cyber threats reveal the weakness of the state and the dependence of state institutions on cybertechnologies, but on the other hand, existing cyber incidents may also motivate many governments to take action to increase the level of cybersecurity.

scholarly journals The rule of law as a universal value and the diversity of constitutional identity

2020 ◽  
Vol 11 (4) ◽  
pp. 813-851
Author(s):  
Igor’ A. Kravets ◽  
Keyword(s):  
Rule Of Law ◽  
Human Dignity ◽  
Influential Factors ◽  
Legal Concept ◽  
The Rule Of Law ◽  
Constitutional Justice ◽  
The One ◽  
International Aspects ◽  
The Relationship ◽  
Constitutional Identity

The article examines scientific approaches to understanding constitutional identity as a modern legal phenomenon and looks at the relationship between identity and constitutional law and constitutionalism. The concepts of “identity of the Constitution” and “constitutional identity” are distinguished and constitutional models of human dignity as elements of constitutional identity are analyzed, which demonstrate a variety of approaches to constitutional regulation and constitutional policy in the field of human rights. The article expounds on the rule of law as a universal value as well as a constitutional and legal concept. The origin of the doctrine of “rule of law” is examined in addition to the theoretical foundations and historical roots of the doctrine as well as the relationship between constitutionalism and the rule of law in modern jurisprudence. The author also considers the following: domestic and international aspects of the rule of law doctrine; its influence on the forms and practice of modern constitutionalism and constitutional identity; the prospects for constitutionalization of the elements of the rule of law and constitutional identity in the context of the formation of constitutionalism of human dignity; the relationship and interdependence of the rule of law and constitutional identity, on the one hand, human dignity and the rule of law, on the other hand; influential factors on the rule of law; constitutional identity and constitutional justice; the extent to which the rule of law can be a universal value in the practice of constitutional justice; the ontological and epistemological elements of cognitive constitutionalism and the rule of law. The difficulties of implementing the ideas and concepts of the rule of law through the practice of constitutional justice are also analyzed. The author concludes that there is a problem of the multiplicity of forms and subjects of constitutional identity. Identity, as well as the rule of law, cannot be built only in categories of exclusivity: both general and specific features are formed in the space of the dialogue of law, history, and culture.

scholarly journals Finality of Judgments in Civil Cases and Related Considerations: The Experience of Ukraine and Lithuania

2019 ◽  
Vol 2 (5) ◽  
pp. 6-29
Author(s):  
Kostiantyn Gusarov ◽  
Viktor Terekhov
Keyword(s):  
Rule Of Law ◽  
Access To Justice ◽  
Judicial Reform ◽  
Eastern European ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Public Role ◽  
Eastern European Countries ◽  
Judicial Economy

Finality of judgments is a concept that puts an end to the trial, prohibiting subsequent appeals, opening of new proceedings and disputing clearly established facts. Despite being promoted by the Council of Europe and its Court of Human Rights and familiar to most if not all states, its application still encounters misunderstanding in some Eastern European Countries. Deeply rooted ideas of substantive truth and public role of the judiciary, a rather idiosyncratic notion of fair trial and the rule of law all lead to underestimation of the role played by finality in a peaceful life of the society. This article addresses the experience of Ukraine (where a major judicial reform has just taken place) and Lithuania – two post-Soviet nations that both, still in their unique way, worked on implementing the principle of finality into their procedural order. The paper also explores an uneasy balance to be found between this notion and other relevant considerations (access to justice, rule of law, judicial economy and some other).

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