scholarly journals Introduction

2011 ◽  
Vol 44 (3) ◽  
pp. 318-320 ◽  
Author(s):  
Claude Klein
Keyword(s):  
World War Ii ◽  
Judicial Review ◽  
International Association ◽  
Round Table ◽  
Theory And Practice ◽  
Constitutional Theory ◽  
Constitutional Amendments ◽  
Constitutional Review ◽  
The One ◽  
Almost All

The question discussed in the articles published in this issue of the Israel Law Review is not really new. In 1978, published an article in this review dealing with the issue. At that time, it looked much more like an academic question with very few potential practical consequences. The reason for this is clear. It was like the discussions that took place in European countries a century ago regarding judicial review (of legislation). Even those who favored it were not able to consider any form of implementation. In the absence of an established principle of judicial review, the problem looked purely theoretical. Later, after World War II, judicial review of legislation became very fashionable and conquered almost all modern occidental democracies. The question arising now is whether we can expect a similar development as regards the validity and efficacy of eternity clauses. On the one hand, there is a growing number of eternity clauses; on the other hand, we have witnessed an extraordinary development in the field of judicial review, which is the result of the general growth of judicial activism in all countries. In other words, two parallel trends are coming increasingly close to one another and will certainly give rise to a new chapter in constitutional theory and practice.In April 2010, the International Association of Constitutional Law (I ACL) held one of its two annual round tables in Jerusalem. Entitled “Unconstitutional Constitutional Amendments,” it was devoted to the issue of constitutional review. In this issue of the Israel Law Review, we present some of the papers presented at the round table by experts from various countries.

PLURALIST CONSTITUTIONALISM

2010 ◽  
Vol 28 (1) ◽  
pp. 228-241 ◽  
Author(s):  
William A. Galston
Keyword(s):  
Common Sense ◽  
Theory And Practice ◽  
The Other ◽  
Political Life ◽  
Group Differences ◽  
Value Pluralism ◽  
Constitutional Theory ◽  
General Category ◽  
Isaiah Berlin ◽  
The One

AbstractThis essay explores the ways in which a broadly pluralist outlook can help illuminate longstanding issues of constitutional theory and practice. It begins with a common-sense understanding of pluralism as the diversity of observed practices within a general category (section 2). It turns out that many assumptions Americans and others often make about constitutional essentials are valid only locally but not generically. The essay then turns to pluralism in a more technical and philosophical sense—specifically, the account of value pluralism adumbrated by Isaiah Berlin and developed by his followers. Section 3 sketches this version of pluralism, and section 4 brings it to bear on a range of familiar constitutional issues. In the process, a distinction emerges between, on the one hand, areas of variation among constitutions and, on the other, some general truths about political life that define core constitutional functions. The essay concludes (section 5) with some brief reflections on the normative thrust of pluralist constitutional theory—in particular, a presumption in favor of the maximum accommodation of individual and group differences consistent with the maintenance of constitutional unity and civic order.

Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine

2020 ◽  
Vol 14 (1) ◽  
pp. 19-48
Author(s):  
Yaniv Roznai ◽  
Tamar Hostovsky Brandes
Keyword(s):  
Judicial Review ◽  
Constitutional Amendment ◽  
Constitutional Theory ◽  
Constitutional Change ◽  
Constitutional Amendments ◽  
Ongoing Process ◽  
Gradual Process ◽  
The World ◽  
Formal Procedures ◽  
Constitutional Changes

AbstractThe world is experiencing a crisis of constitutional democracies. Populist leaders are abusing constitutional mechanisms, such as formal procedures of constitutional change, in order to erode the democratic order. The changes are, very often, gradual, incremental, and subtle. Each constitutional change, on its own, may not necessarily amount to a serious violation of essential democratic values. Yet, when examined in the context of an ongoing process, such constitutional changes may prove to be part of the incremental, gradual process of democratic erosion in which the whole is greater than the sum of its parts. This Article explores how courts can respond to such constitutional changes. We argue the Unconstitutional Constitutional Amendment Doctrine should be adapted to respond to existing constitutional practices that utilize incremental and subtle amendments to dismantle the democratic order. We suggest that an aggregated judicial review should be developed. We must also rethink the automatic immunity – the result of two hundred years of revolutionary constitutional theory – provided to complete constitutional replacement from constitutional restrictions and scrutiny. Finally, as opposed to the instinct to require judicial self-restraint with respect to constitutional changes that concern the judiciary itself, we suggest that this is perhaps the type of changes that require strictest scrutiny.

scholarly journals Is there a new institutional response to the crimes of Communism? National memory agencies in post-Communist countries: the Polish case (1998–2014), with references to East Germany

2017 ◽  
Vol 45 (6) ◽  
pp. 1013-1027 ◽  
Author(s):  
Georges Mink
Keyword(s):  
World War Ii ◽  
Communist Regime ◽  
Administrative Positions ◽  
Truth And Reconciliation ◽  
National Memory ◽  
Truth And Reconciliation Commissions ◽  
Set Up ◽  
The One ◽  
Almost All ◽  
Communist Countries

Post-Communist Europe has not chosen to imitate the Truth and Justice or Truth and Reconciliation Commissions set up on several other continents. The notion of reconciliation with the Communist regime is not of much interest to certain political parties, many of which are rooted in the protest against the compromises that were part of the negotiated revolutions. The model admired by post-Communist countries was the one conceived by the Germans. Almost all the countries founded specific institutions – institutes – for managing memory, with archives located in these institutes. Some have archives that date from before World War II to 1990; they handle both totalitarianisms. What is feared is that through the game of partisan appointments, these institutes will become little more than instruments in less than honest hands for use in political contests. This is especially likely given that the Polish Institute of National Memory (IPN) employees perform several functions: classification, prosecution, and evaluating individual applicants to certain administrative positions. The specialized literature usually explains the trials and tribulations of Poland's IPN in terms of the personalities of its different directors and the period in which each occupied that post. In this paper, we have verified this hypothesis.

External Review of Constitutional Amendments? International Law as a Norm of Reference

2011 ◽  
Vol 44 (3) ◽  
pp. 343-368 ◽  
Author(s):  
Lech Garlicki ◽  
Zofia A. Garlicka
Keyword(s):  
Human Rights ◽  
International Law ◽  
Theory And Practice ◽  
Constitutional Theory ◽  
International Human Rights Law ◽  
Constitutional Amendments ◽  
External Assessment ◽  
Current State ◽  
Final Observation

This article is built around three general observations. The first is that, in the current stage of the development of constitutional theory and practice, there is a need to create procedures allowing the review of constitutional amendments. The second is that traditional mechanisms, in particular the “internal” review of constitutionality of constitutional amendments, may not always be able to provide sufficient protection against amendments that run counter to the existing constitutional structure. The final observation is that, in the current state of globalization, international law—in particular international human rights law—may play a significant role in an “external” assessment of the legitimacy of constitutional amendments. This role of international law is particularly well developed in Europe, and most of our conclusions therefore focus on the European perspective. Given the universal nature of human rights, however, at least some of these conclusions may also be validfor other regions of the world.

The Role of Constitutional Theory in the Cycle of Regimes

2020 ◽  
pp. 97-111
Author(s):  
Jack M. Balkin
Keyword(s):  
Twentieth Century ◽  
Judicial Review ◽  
Gain Control ◽  
Constitutional Theory ◽  
Political Time ◽  
The One ◽  
Changing Attitudes ◽  
Trump Administration

Constitutional theories such as originalism and living constitutionalism evolve to reflect the changing attitudes of partisans and legal intellectuals in political time. They also develop to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century. Because we are near the end of the Reagan regime, Democrats are invested in judicial restraint and Republicans in judicial engagement. The situation is closest to the one faced by Democrats in the 1930s. Democrats’ relative hostility to the courts will continue until Democrats once again gain control through partisan entrenchment. However, because the Trump administration has worked hard to stock the courts with as many young conservative jurists as possible, this change may take some time.

scholarly journals Democracia deliberativa, derechos sociales y la modulación del control judicial de constitucionalidad

2021 ◽  
pp. 179-197
Author(s):  
Chiara Valentini
Keyword(s):  
Deliberative Democracy ◽  
Judicial Review ◽  
Political System ◽  
Social Rights ◽  
Constitutional Theory ◽  
Controversial Issues ◽  
Third Way ◽  
Democratic Deliberation ◽  
Constitutional Review ◽  
The Relationship

Roberto Gargarella has infused into constitutional theory a deliberative approach to constitutional review and rights adjudication. By this, he has enriched our understanding of deliberative democracy as a political system in which the judiciary can play a central role, especially through the institution of constitutional review. Furthermore, he has provided us with crucial insights into the deliberative potential of this institution, shedding light on the different ways in which it may serve to secure the essential conditions of democratic deliberation. The article centers on this twofold, crucial contribution of Gargarella – to constitutional theory and to deliberative democratic theory – with a focus on the relationship between social rights and constitutional review. First, it presents the main controversial issues raised by this relationship, concerning both social rights justiciability and adjudication. Second it highlights the resources provided by Gargarella to understand and address both orders of issues, based on his account of deliberative democracy and constitutional review. Third, the article addresses the resulting view of the action of courts on social rights. In particular, it inquires into the idea of a “third way” for judicial action, requiring to modulate judicial review so as to mediate between judicial inertia and activism.

Hungary's Constitutional Transformation

2011 ◽  
Vol 7 (2) ◽  
pp. 183-203 ◽  
Author(s):  
Kriszta Kovács ◽  
Gábor Attila Tóth
Keyword(s):  
Judicial Review ◽  
Constitutional Court ◽  
State Structure ◽  
Constitutional Amendments ◽  
Checks And Balances ◽  
Constitutional Review ◽  
Basic Law ◽  
Ex Post ◽  
Democratic State ◽  
Ex Post Facto

Hungary – Democratic state structure – Two-thirds parliamentary majority – First flurry of constitutional amendments of 2010 – Checks and balances – Media – Ex post facto legislation – Hungarian Constitutional Court – Judicial review – Wholesale constitutional review and Basic Law of 2011

Heuristic Algorithms for Waste Load Allocation in a River Basin

1989 ◽  
Vol 21 (8-9) ◽  
pp. 1057-1064 ◽  
Author(s):  
Vijay Joshi ◽  
Prasad Modak
Keyword(s):  
Dynamic Programming ◽  
Heuristic Algorithms ◽  
Water Quality Management ◽  
User Preferences ◽  
Theory And Practice ◽  
Waste Load Allocation ◽  
Practical Applications ◽  
Waste Load ◽  
On Line ◽  
The One

Waste load allocation for rivers has been a topic of growing interest. Dynamic programming based algorithms are particularly attractive in this context and are widely reported in the literature. Codes developed for dynamic programming are however complex, require substantial computer resources and importantly do not allow interactions of the user. Further, there is always resistance to utilizing mathematical programming based algorithms for practical applications. There has been therefore always a gap between theory and practice in systems analysis in water quality management. This paper presents various heuristic algorithms to bridge this gap with supporting comparisons with dynamic programming based algorithms. These heuristics make a good use of the insight gained in the system's behaviour through experience, a process akin to the one adopted by field personnel and therefore can readily be understood by a user familiar with the system. Also they allow user preferences in decision making via on-line interaction. Experience has shown that these heuristics are indeed well founded and compare very favourably with the sophisticated dynamic programming algorithms. Two examples have been included which demonstrate such a success of the heuristic algorithms.

scholarly journals The Diagnosis and Therapy of Degenerative Knee Joint Disease: Expert Consensus from the Chinese Pain Medicine Panel

2018 ◽  
Vol 2018 ◽  
pp. 1-14 ◽  
Author(s):  
Dong Huang ◽  
Yan-Qing Liu ◽  
Li-Shuang Liang ◽  
Xue-Wu Lin ◽  
Tao Song ◽  
...  
Keyword(s):  
Clinical Practice ◽  
Diagnosis And Treatment ◽  
Joint Disease ◽  
Knee Joints ◽  
Reproduction Rate ◽  
Pain Specialist ◽  
Chinese Association ◽  
The One ◽  
Almost All ◽  
Based Medicine

At present, there are many constantly updated guidelines and consensuses on the diagnosis and treatment of osteoarthritis both at home and abroad. The recommendations established using methods of evidence-based medicine has experienced strict research on controlling bias and promoting reproduction rate. As a result, the previous evidence was reevaluated, and a lot of changes were provoked in the diagnosis and treatment concept of osteoarthritis. However, several methods not recommended by foreign guidelines are still in use in the current clinical practice in China. On the one hand, Chinese experts have not reached extensive consensus on whether it is necessary to make changes according to foreign guidelines. On the other hand, almost all the current relevant guidelines are on osteoarthritis, but the lesions around knee joints which, as a whole, bear the largest weight in human body, cannot be ignored. For this purpose, Chinese Association for the Study of Pain (CASP) organized some leading experts to formulate this Chinese Pain Specialist Consensus on the diagnosis and treatment of degenerative knee osteoarthritis (DKOA) in combination with the guidelines in foreign countries and the expert experience of clinical practice in China. The consensus, which includes the definition, pathophysiology, epidemiology, clinical manifestation, diagnostic criteria, and treatments of DKOA, is intended to be used by first-line doctors, including pain physicians to manage patients with DKOA.

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