Droit et justice constitutionnelle de Habermas à Luhmann

2006 ◽  
Vol 21 (2) ◽  
pp. 113-141
Author(s):  
Stéphane Bernatchez
Keyword(s):  
Deliberative Democracy ◽  
Legal System ◽  
Learning Process ◽  
Judicial Review ◽  
The Other ◽  
Legislative Process ◽  
Systemic Theory ◽  
Constitutional Justice ◽  
Alternative Theories

AbstractIn the debate over the legitimacy of judicial review, Jürgen Habermas put forward two justifications for the role of constitutional judges within deliberative democracy. Judicial review must examine the procedural conditions of the legislative process and participate within a learning process that would ensure the continuous redefinition of the Constitution. This procedural concept of constitutional justice remains subject to the scrutiny of the other procedural theories. Whereas the theory of contextual proceduralization questions the concept of the legal judgment and more specifically the habermassian conception of the application of a legal norm, the systemic theory offers the conceptual framework required to explain this learning process and the function of judicial review in the legal system. Therefore, Habermas' procedural theory is extended in line with alternative theories of the proceduralization of law.

Amicus Curiae Institute in the Constitutional Process

2019 ◽  
Vol 10 (7) ◽  
pp. 2040
Author(s):  
Anzhelika KRUSIAN ◽  
Iryna ZHYTOTOVSKA ◽  
Volodymyr MIKHALOV ◽  
Kseniia Kuli IVANCHENKO ◽  
Mariana AFANASIEVA
Keyword(s):  
Judicial Review ◽  
Legal Regulation ◽  
The Other ◽  
Constitutional Court ◽  
Political Discussion ◽  
Amicus Curiae ◽  
Judicial Decision ◽  
Constitutional Justice ◽  
The One

Given the specifics of constitutional proceedings, the question of the peculiarities of evidence in a constitutional trial is becoming increasingly important. With the adoption of the Law of Ukraine ‘On the Constitutional Court of Ukraine’, for the sake of completeness of the trial, amicus curiae play a significant role in proving – experts and specialists who, by giving opinions on written requests of the judge-rapporteur in the case, reveal the peculiarities of socio-political discussion on complex issues arising in the course of constitutional justice. The purpose of this work is to study the amicus curiae institute, the features of its legal regulation in Ukraine and abroad, as well as to investigate the role of the institute in the constitutional process of Ukraine. The object of the research is the amicus curiae institute in the constitutional process of Ukraine. By examining the amicus curiae institute in the constitutional process of Ukraine, we can conclude that it plays an important role in the completeness of the judicial review of the case. On the one hand, the ‘friend of the court’ is a lobbyist who, thanks to his conclusions, seeks the necessary judicial decision. On the other hand, thanks to the amicus curiae institute, when considering cases that may affect an indeterminate number of persons, civil society (such as NGOs, etc.) can help ensure that the judgment is given in the light of all the circumstances relevant to the cases. However, despite the legislative consolidation of the research institute in the constitutional process of Ukraine, some procedural provisions require further refinement with the use of international experience and advanced scientific works.  

scholarly journals Müste’min Dealing with the Ottoman Justice: Role and Strategy of the Ambassador

2013 ◽  
Vol 93 (2) ◽  
pp. 477-494 ◽  
Author(s):  
Juliette Dumas
Keyword(s):  
Significant Role ◽  
Legal System ◽  
The Other ◽  
Legal Knowledge ◽  
Economic Aspects ◽  
Legal Advice ◽  
Local Actors ◽  
Special Rights ◽  
Lack Of Knowledge

Abstract Because of their status as foreigners, non-subject of the Empire, müsteʾmin are subject to a system of laws different from the other subjects of the Empire. They also benefit from advantages secured by the granting of imperial orders: the ʿahidnâme also known as the capitulations: these are prescriptions issued by the sultan, directly influenced by political and economic aspects and which may vary from one nation to another. However, it is not a code of law different from others in force in the Empire: except in specific cases prescribed by the capitulations, the müsteʾmin are submitted as other Ottoman subjects to the Ottoman legal system. Nevertheless, the Ottoman legal system is complex: the actors and the practices vary and depend on the individuals involved and cases. Therefore, the question is who are the interlocutors of the müsteʾmin? The documents examined here show that the type of conflicts impacted on the interlocutors that were involved. Each time the case involves, in one way or another, the privileges of the müsteʾmin from a given nation, the imperial divan had to solve the case—then, it usually refers to the local court. But if private, the case was directly submitted to the kadı. The call for submission of cases to the Imperial divan is interesting because it shows that confidence is put in the Imperial divan rather than in the kadı. Perhaps, it also reveals the limits of the legal knowledge of the privileges and the special rights granted to müsteʾmin. In fact, the population concerned by the Capitulations was minor and the affairs affecting them probably rare, as a result, one should not be surprised by the lack of knowledge of the local actors, of their privileges. The role of the embassy and of the ambassador must also be emphasized here. In our documents, it appears that the embassy as a whole played a significant role in supporting its citizens through legal advice, assistance and support. The French embassy even seems to have distinguished itself on this item since the legal support offered was presented by the ambassador.

scholarly journals ROLE OF MOTIVATION IN LEARNING : A SEMIOTIC ANALYSIS OF A NOVEL 3 IDIOTS

2019 ◽  
Author(s):  
Mathilda Sumbayak ◽  
Indah Karina Sianturi ◽  
Avivah Adinda Putri ◽  
Dionisius Tito Aditomo ◽  
aprilia chasanah
Keyword(s):  
Intrinsic Motivation ◽  
Learning Process ◽  
Extrinsic Motivation ◽  
The Other ◽  
Semiotic Analysis ◽  
Ferdinand De Saussure ◽  
Semiotic Model ◽  
Key Factor

Motivation is the key factor in learning process. Both extrinsic and intrinsic types of motivation are needed for better learning. Intrinsic motivation is more essential than extrinsic motivation. It is intrinsic motivation that urges a learner to learn with devotion, enthusiasm, concentration and with remarkable outcomes. This case study has been conducted to highlight the role of both types of motivation and draws conclusion how intrinsic motivation is more helpful in the learning.The movie, ‘3 Idiots’ has been ‘semiotically’ analyzed to investigate the theme of motivation in the process of learning. The analysis has been done by using semiotic model of signification by Ferdinand de Saussure. The images in the movie have been selected for the semiotic analysis. All of the main characters are, in one way or the other motivated, or not, towards the learning process.

scholarly journals The Role of the Indonesian Constitutional Court for An Effective Economic, Social and Cultural Rights Adjudication

2016 ◽  
Vol 1 (1) ◽  
pp. 72
Author(s):  
Heribertus Jaka Triyana
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Judicial Review ◽  
Constitutional Court ◽  
Court Decisions ◽  
Cultural Rights ◽  
Legal Power

The Indonesian Constitutional Court has played important roles and functions to protect and fulfill human rights in the Indonesian legal system including the economic, social and cultural rights through its legal power of  judicial review.   It affirms that the ecosoc rights are legal justiciable rights and they are parts of constitutional mandates. It means that decision on judicial reviews require State to behave in accordance to legal thresholds decided by the Court. Undoubtedly, compliance to the decisions will reveal undeniable facts for fulfilment of state conduct. However, it seems that there are still many considerations, emphasis and excuse to somehow reduce or ignore threshold of application of the Court decisions. Complexity of actors, institutions, authorities, level of implementation, and orientation of particular policies, programs, actions and funds reduces the thresholds.

scholarly journals Attacks on the Judiciary: Undercurrents of a Political versus Legal Constitutionalism Dilemma?

2018 ◽  
Vol 21 ◽  
pp. 1-23
Author(s):  
Herbert Kawadza
Keyword(s):  
South Africa ◽  
Judicial Review ◽  
Unintended Consequences ◽  
The Other ◽  
The Political ◽  
Political Space ◽  
Common Thread ◽  
The Common ◽  
Political Backlash

A number of landmark judicial review decisions and the resultant political backlash are arguably to supportive of the claim that political and legal constitutionalism are entrenched in South Africa. The common thread in the legislature and executive's reaction to judicial review decisions is that government supremacy is under threat from legal constitutionalism. More specifically, there is a perception that courts are meddling in the political space through judgments that are aimed at weakening the government's authority and power. Nonetheless, such decisions have had an effect of reinforcing the judiciary's legal constitutional role of reviewing the lawfulness of the other branches' activities. There is need for strategies to minimize this tension as the continued antagonism can have unintended consequences such as the delegitimisation of the judiciary    

Introduction: The Chinese Legal System Since 1995: Steady Development and Striking Continuities

2007 ◽  
Vol 191 ◽  
pp. 555-566 ◽  
Author(s):  
Donald C. Clarke
Keyword(s):  
Legal System ◽  
Legislative Process ◽  
Special Issue ◽  
Personnel Staffing ◽  
Wide Range ◽  
International Legal Order ◽  
Investment Law ◽  
Interpretive Practices ◽  
Trade And Investment

In March 1995, The China Quarterly published a special issue devoted to developments in the Chinese legal system. That issue canvassed a wide range of subjects: the legislative process, the implementation of legislation via the interpretive practices of courts and administrative agencies as well as through the enforcement of civil judgements, the personnel staffing the system in the role of legal advisers, criminal law and human rights, the key area of foreign trade and investment law, and finally China's place and role in the international legal order.

scholarly journals Von Government zu Governance

2021 ◽  
Keyword(s):  
Conceptual Framework ◽  
Deliberative Democracy ◽  
Context Sensitivity ◽  
The State ◽  
The Other ◽  
Other Hand ◽  
State Of Research ◽  
The One ◽  
Supranational Level

This volume researches concepts of direct, participatory and deliberative democracy, their structures and procedures, and the role of actors. On the one hand, the volume focuses on questions of institutionalisation and the context sensitivity of participation-centred procedures in European federal and regional states. On the other hand, the volume addresses the question of the role that actors at the supranational level play or can play in the renewal of democratic processes. The state of research and its findings in theoretical and empirical democracy research provide the overarching conceptual framework for the volume. With contributions by Elisabeth Alber, Eva Maria Belser, Peter Bussjäger, Carmen Descamps, Annegret Eppler, Anna Gamper, Andreas Kiefer, Karl Kössler, Sabine Kropp, Olaf Leiße, Melanie Plangger, Julian Plottka, Wolf J. Schünemann, Christoph Schramek, Teija Tiilikainen, Jens Woelk and Carolin Zwilling.

scholarly journals The Application of Beyond Centers and Circle Time Approach

2016 ◽  
Vol 1 (1) ◽  
pp. 81-90
Author(s):  
Mursid Mursid
Keyword(s):  
Key Words ◽  
Learning Process ◽  
Time Management ◽  
Field Research ◽  
The Other ◽  
Circle Time ◽  
Qualitative Descriptive ◽  
Descriptive Approach

This research used qualitative descriptive approach which lead into a field research. BCCT learning in RA Ngalian was regarded as an effective data obtained. It was 73 percent stated agree and the other of 27 percent stated very agree. Constitutionally, supporting factor in applying BCCT method appears in some aspects, such as the location, the headmaster’s competence, and teachers’ competence. As for the implementation in RA (PAUD) of Ngalian District, most of 67 percent of respondents stated agree and the other of 18 percent of respondents stated disagree. The role of teacher as inspiration for their students and as center of learning was not applied yet holistically. The data obtained, it was almost 45 percent of respondents stated agree and 10 percent stated very agree. It means the role of teacher as inspiration was not applied. Meanwhile the weaknesses factor of BCCT learning in RA (PAUD) of Ngalian district was the lack of time management in implementing BCCT method. This took effect in the learning process. The obtained data showed 45 percent stated agree and 9 percent stated very agree. It means that the time management was most recommended in order the BCCT learning could run well. Because of seeing the allotted time was limited, it made students were forced to accomplish some steps being passed. So that, the time management was required. Key words: the application of BCCT, the supporting factor, the weaknesses factor.  

scholarly journals The Right of Pledge on Movable Items (Pignus) in Republic of Kosovo

2019 ◽  
Vol 2 (1) ◽  
pp. 49
Author(s):  
Ekrem Salihu
Keyword(s):  
Social Development ◽  
Legal System ◽  
Time Limit ◽  
The Other ◽  
The Republic ◽  
The Right ◽  
Personal Insurance ◽  
Qualitative Changes

The pledge is an item right based on which its official holder – the pledgee may seek the payment of his/her claims from the item if those aren’t paid within certain time limit. The right of pledge in the Republic of Kosovo constitutes a complex occurrence which has various relations on which at one side is the pledgee creditor, and in the other side are debtor pledgor and other third persons. The role of pledge and its affirmation is related to most qualitative changes of claims. The right of pledge as item right in foreign item (iura in re aliena) makes a history only to a certain degree of economic and social development. In this degree of development there was a need and necessity to secure the other’s claims even de facto, by the hand item, by ”pledging” of an item. The creditor requires that his claims to the debtor be secured by obtaining of a pledge of debtor item. The debtor’s conjunction of creditor by obtaining debtor’s item is safer for the creditor to realize its claims, rather than when the debtor secured these claims by his/her personality, bail, personal insurance. In the Kosovo legal system there is possessory pledge, non-possessory pledge and the pledge over the rights.

Judges and the idea of ‘principle’ in constitutional adjudication

2017 ◽  
Author(s):  
Tom Hickey
Keyword(s):  
Deliberative Democracy ◽  
Judicial Review ◽  
Constitutional Law ◽  
Public Deliberation ◽  
The Political ◽  
Reasonable Disagreement ◽  
Judicial Supremacy ◽  
Constitutional Adjudication ◽  
Democracy Theory

Tom Hickey’s chapter seeks to reconcile the principles-oriented contribution that constitutional adjudication (or judicial review) can make to overall public deliberation with the fact of reasonable disagreement on rights. Part I assesses the school of ‘legal constitutionalism’ in the context of Irish constitutional law and experience. Part II introduces a distinctive way of understanding the role of principle in judicial review; one that works from a conception of deliberation that – in contrast to contemporary deliberative democracy theory – embraces disagreement and thus, it is argued, better accounts for the political and contestable nature of rights. The chapter then closes by combining the ideas in these parts to argue that the intuition shared by many to support outright judicial supremacy does not stand up to scrutiny, but that the primary cause of that intuition – the principled nature of judicial review – demands and justifies a more constrained form of judicial power.

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