The New Swiss Constitution: Foreign and International Influences

2002 ◽  
Vol 30 (2) ◽  
pp. 256-264 ◽  
Author(s):  
Walter Haller
Keyword(s):  
Comparative Analysis ◽  
French Revolution ◽  
Legal System ◽  
Fundamental Rights ◽  
Founding Fathers ◽  
Swiss Constitution ◽  
Advantages And Disadvantages ◽  
Fundamental Rights And Freedoms ◽  
The U.S ◽  
The French Revolution

The comparative analysis of diverse constitutional orders enables a more sophisticated evaluation of the advantages and disadvantages of different models and solutions. Quite often it also serves practical objectives, providing the impulse for improving our own legal system by carefully adopting institutions and procedures that have proven themselves elsewhere. In the case of the Swiss Constitution, the influence of thoughts and concepts developed during the French Revolution and by the Founding Fathers of the U.S. Constitution is quite obvious. More recently, international influences are most apparent in the field of fundamental rights and freedoms.

scholarly journals Yann Robert, Dramatic Justice. Trial by Theater in the Age of the French Revolution (Philadelphia: U of Pennsylvania P, 2019)

2020 ◽  
Vol 5 (1) ◽  
Author(s):  
Servanne Woodward
Keyword(s):  
French Revolution ◽  
Legal System ◽  
Law And Literature ◽  
The French Revolution

Yann Robert identifies unfair and dangerous smearing campaigns as a preoccupation with the ethics of administrating justice in public versus secretly, as he pursues a relatively new trend of study between law and literature in Dramatic Justice. In this insightful volume, Robert evaluates what the legal system owes to the stage and vice versa, at a time when preoccupations with public judgment meets with an attempt to form a democracy to replace a monarchy.

scholarly journals National or people’s sovereignty?

2020 ◽  
Vol 1 (1) ◽  
pp. 257-263
Author(s):  
Fazil Zeynalov
Keyword(s):  
Comparative Analysis ◽  
French Revolution ◽  
Historical Context ◽  
The People ◽  
Gradual Process ◽  
The French Revolution

In the article the author provides a comparative analysis of these two notions. He explains through the examples that owing to the historical context during the French Revolution, the gradual process of transforming the bearer of the sovereignty has started, and shift of power from the king to the collective unit has caused several disputes and discussions of theoretical nature. The collective unit, called the people or the nation, began to play the role of carrier of sovereignty, acting at the same time as the source of supreme power. Belonging of sovereignty to the people or the nation is manifested in the forms how the power presented to their representatives. Each of these forms has its own theoretical peculiarities. However, in the wake of historic developments the manifestation of one or another form of sovereignty practically loses its relevance. Regardless of the forms of expression of belonging of sovereignty to the people or the nation, sovereignty displays various and progressive elements of these concepts (renunciation of imperative mandate in favor of representative mandate, sovereignty is exercised through representatives rather than delegates)

Is It Possible to Overrule a Constitutional Precedent in the Egyptian Legal System?

2021 ◽  
pp. 1-27
Author(s):  
Islam Ibrahim Chiha ◽  
Abdel Hafiz el-Shimy
Keyword(s):  
Public Opinion ◽  
Legal System ◽  
Fundamental Rights ◽  
Conservative Approach ◽  
Legal Certainty ◽  
Public Authorities ◽  
Legal Principles ◽  
Constitutional Protection ◽  
Fundamental Rights And Freedoms

Abstract This article examines the constitutionality of the Egyptian Supreme Constitutional Court’s (hereinafter SCC) authority to overrule its prior precedents. The authors argue, contrary to the assertions of the predominant conservative approach in Egypt, that bestowing the SCC with such an overruling power neither violates the Constitution nor undermines fundamental legal principles such as the principles of equality, legal certainty, or the justified expectations of litigants. Indeed, we make the argument that the Court’s ability to overrule its prior precedents seems to be the most conceivable and plausible way to correct the Court’s past mistakes or inaccuracies. We finally claim that endowing the court with such overruling power enhances the constitutional protection of fundamental rights and freedoms and strengthens the Court’s credibility not only via other public authorities, but also via public opinion.

scholarly journals Sieyès versus Bicameralism

2019 ◽  
Vol 81 (2) ◽  
pp. 255-279
Author(s):  
Lucia Rubinelli
Keyword(s):  
French Revolution ◽  
Historical Perspective ◽  
Founding Fathers ◽  
Legislative Power ◽  
Constitutional State ◽  
Liberal Constitutionalism ◽  
History Of ◽  
Constitutional System ◽  
The Way ◽  
The French Revolution

AbstractBicameralism is traditionally considered necessary to the principle of the limitation of power and, as such, a key feature of the liberal constitutional state. Yet the history of the French Revolution reveals that this has not always been the case and that bicameralism's relationship to liberal constitutionalism is more complex than is traditionally assumed. This article will discuss how the Abbé Sieyès, one of the founding fathers of modern constitutionalism, rejected bicameralism not only because it was contrary to the revolutionary principle of equality, but also because it did not actually succeed at limiting power. Even worse, bicameralism would threaten the constitutional system by forcing the legislative power into procedural impasses that would eventually open the way to despotism. Putting Sieyès's claims in historical perspective, the paper aims to offer some historical nuance and insights into bicameralism's relationship to liberal constitutionalism.

Militant Democracy and Fundamental Rights, I

1937 ◽  
Vol 31 (3) ◽  
pp. 417-432 ◽  
Author(s):  
Karl Loewenstein
Keyword(s):  
French Revolution ◽  
Fundamental Rights ◽  
Political Organization ◽  
Constitutional Government ◽  
History Of ◽  
The One ◽  
The Individual ◽  
The French Revolution

Fascism a World Movement. Fascism is no longer an isolated incident in the individual history of a few countries. It has developed into a universal movement which in its seemingly irresistible surge is comparable to the rising of European liberalism against absolutism after the French Revolution. In one form or another, it covers today more areas and peoples in Europe and elsewhere than are still faithful to constitutional government. Fascism's pattern of political organization presents a variety of shades. One-party-controlled dictatorships rule outright in Italy, Germany, Turkey, and, if Franco wins, also Spain. The so-called “authoritarian” states may be classified as belonging to the one-party or multiple-party type. To the one-party authoritarian group, without genuine representative institutions, adhere at present Austria, Bulgaria, Greece, and Portugal; while Hungary, Rumania, Yugoslavia, Latvia, and Lithuania may be classed together as authoritarian states of the multiple-party type, with a semblance of parliamentary institutions.

scholarly journals Critical considerations regarding the limits of the power to revise the Romanian Constitution

2018 ◽  
pp. 11-31
Author(s):  
DAN CLAUDIU DĂNIȘOR
Keyword(s):  
Legal System ◽  
Critical Analysis ◽  
Fundamental Rights ◽  
Constituent Power ◽  
Form Of Government ◽  
Fundamental Rights And Freedoms

By starting from several principle considerations regarding the relations between the constituent power, the original and the derived constituent authority, I shall make a critical analysis of the limits of the power to revise the Constitution, such as they regulated in 1991 Constitution of Romania. The material limits of the revision raise certain problems in terms of necessity, clarity and, in the case of Republican form of government, of the validity of introduction into the legal system. The teleological limits which prohibit revisions that result in the suppression of fundamental rights and freedoms or their guarantees raise several definition problems, especially when the effect targeted by the constitutional interdiction is indirectly obtained. Finally, the limitation in exceptional situations betrays the lacunae of the Constitution of Romania in their definition, and in the case of the prohibition of revision in times of war, the contradictory historical experiences.

scholarly journals Legal Certainty and Democracy: What the “Constitutional Legislator” Allows

2020 ◽  
Vol 20 (4) ◽  
pp. 439-448
Author(s):  
Mikhail V. Presnyakov ◽  
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Fundamental Rights ◽  
Constitutional Rights ◽  
Legal Certainty ◽  
The Stability ◽  
The One ◽  
Fundamental Rights And Freedoms ◽  
The Individual ◽  
Democratic Transformation

Introduction. The article analyzes the legal certainty of the individual as the stability of the content of fundamental rights and freedoms in the context of democratic processes of reforming the current legislation and the Constitution of the Russian Federation. Theoretical analysis. The article notes that the need for stability of fundamental human rights and freedoms is in some contradiction with their dynamic, evolutionary nature. The author questions the possible and necessary limits of majority democratic will with regard to the transformation of the legal system, in general, and constitutional rights and freedoms, in particular. The article addresses some “points of tension” between democracy and the rule of law. Results. On the basis of the article, it is concluded that participation in the processes of democratic transformation of the legal system can be considered as a right to democracy and, in this understanding, it needs the search for a balance with other fundamental rights and freedoms. It is on the basis of this balance that the legal certainty of the individual must be ensured, combining, on the one hand, the stability of the substantive characteristics of fundamental rights and freedoms, and, on the other hand, the expansion of legal claims and the evolution of human rights.

scholarly journals Criteria for Recognition of AI as a Legal Person

2019 ◽  
Vol 12 (3) ◽  
pp. 105
Author(s):  
Roman Dremliuga ◽  
Pavel Kuznetcov ◽  
Alexey Mamychev
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
The United States ◽  
Fundamental Rights ◽  
Theory And Practice ◽  
Legal Person ◽  
Human Beings ◽  
Legal Personality ◽  
Legal Personhood ◽  
Fundamental Rights And Freedoms

This question of AI legal personhood is mostly theoretical today. In article we try to generalize some common ways that existing in legal theory and practice. We analyze some cases of recognition of untypical legal persons as well enacted statements in Europe and USA. Readers will not find a detailed methodology in the paper, but rather a list of criteria that is helpful to make a decision on granting legal personhood. Practices of European Union and the United States indicate that common approaches to the legal personality of some kinds of AI are already developed. Both countries are strongly against legal personhood of intellectual war machines. Liability for any damage of misbehavior of military AI is still on competence of military officers. In case of civil application of AI there are two options. AI could be as legal person or as an agent of business relations with other legal persons. Every legal person has to be recognized as such by society. All untypical legal persons have wide recognition of society. When considering the issue of introducing a new legal person into the legal system, legislators must take into account the rights of already existing subjects. Policy makers have to analyze how such legal innovation will comply with previous legal order, first of all how it will affect the fundamental rights and freedoms of the human beings. The legal personhood of androgenic robots that can imitate human behavior regarded in paper as a good solution to minimize illegal and immoral acts committed with their involvement. It would be a factor that keep people from taking action against robots very similar to people. Authors conclude that key factors would be how society will react to a new legal person, how changing of legal rules will affect legal system and why it is necessary. At least all new untypical legal persons are recognized by society, affects of the legal system in manageable way and brings definite benefits to state and society.

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