I The Constitutional Court, 1 The Historical Development of Italian Constitutional Adjudication

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
Twentieth Century ◽  
Judicial Review ◽  
Historical Development ◽  
Constitutional Court ◽  
Constitutional Adjudication ◽  
Constitutional Judicial Review ◽  
The Way

One of the remarkable facts of constitutional judicial review in Italy is the way in which it was grafted onto a tradition of law that had been very inhospitable to any such practice prior to the mid-twentieth century. The development of this unprecedented institution and the factors that contributed to its success not only assist the reader to understand the subsequent contours and character of the Constitutional Court but also provide a number of very useful insights and lessons for other jurisdictions seeking to establish or consolidate new and fragile systems of constitutional adjudication. This chapter traces that history and identifies those features.

Is it time to understand Russia rationally? Test of suitability in constitutional adjudication

2020 ◽  
Vol 29 (6) ◽  
pp. 79-114
Author(s):  
Aleksei Dolzhikov
Keyword(s):  
Judicial Review ◽  
Public Discourse ◽  
General Rule ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Scientific Validity ◽  
Regulatory Decision ◽  
Unequal Treatment ◽  
Regulatory Impact ◽  
Constitutional Adjudication

The author discusses the application of the suitability test in constitutional adjudication. Then he puts forward a thesis that in comparison with the essentially philosophical categories of reasonableness and rationality, this prong of proportionality principle has practical value in judicial review of legislation. The political system has to meet the minimum standards of a deliberative democracy in order courts could use the doctrine of rationality. Among such standards are: recognition of the diversity of ideologies, real competition between political parties and other groups, a serious attitude towards discussion in society, etc. High courts, even in countries with long democratic traditions, usually use the self-restraint technique in reviewing the reasonableness of statutes. In illiberal and populist regimes, due to the unification of public discourse and the imitation of democratic institutions, the challenging of reasonableness of majority decisions can be dangerous. The argument on absurdity of legislation is relatively rare in the case-law of the Constitutional Court of the Russian Federation. It can be found in the dissenting opinions of constitutional judges. In regard with the recent legislative ban on the publication of these opinions, the reasoning ad absurdum has rather theoretical significance for constitutional adjudication in Russia. Moreover, criticism of the reasonableness of legislation can now create additional obstacles for the difficult dialogue of the Russian Constitutional Court with the parliament and other “political” branches. An alternative to critically reviewing the unreasonableness of parliamentary decisions in constitutional adjudication are both the borrowing of economic methodology and certain principles of Legisprudence. The author puts forward the argument on utility of these principles on the judicial review of the ability of legislative means to achieve public goals. Suitability has an empirical nature and requires scientific validity of statutes. Selection of regulatory measures should be evidence-based and grounded on outcomes of research. Usually, constitutional judges do not have special knowledge of complex issues of socio-economic policy. More often than not, the absence of such an expertise means deference to the parliamentary and administrative fact-finding, which predetermined the normative decision. The intensity of the review of the suitability of legislation can be increased in those areas where constitutional judges have the necessary expertise or practical background. Constitutional tribunals recognize the broad discretion of representative bodies in forecasting the social, economic and other consequences. Otherwise, the intervention of judges in the goal-setting of regulatory policy is inevitable. Forecasting can be inaccurate and even erroneous due to the targeting of the regulatory decision for the future. A second-guess of the legislative forecast in constitutional adjudication is an exception to the general rule. It is possible due to newly discovered circumstances, changes taking place in society or progress in science. The implementation of regulatory impact assessment in law-making does not replace, but supplements the judicial review of the principle of proportionality. Consistency test in constitutional adjudication is closely related to the principle of legal certainty, which in turn excludes inconsistency and contradictions of legislative measures with public aims. The consistency approach obliges the members of parliament to be logical in the implementation of the legislative intent. Otherwise, citizens’ legitimate expectations in the governmental policy are undermined. The suitability test has an applied meaning in discrimination cases. If unequal treatment affects the fundamental rights of truly vulnerable social groups, constitutional judges could increase the intensity of judicial review of unreasonable laws.

Structuralism

2018 ◽  
Author(s):  
Michael Lundell ◽  
Vincent P. Pecora
Keyword(s):  
Twentieth Century ◽  
Historical Development ◽  
Literary Studies ◽  
Widespread Application ◽  
Language Functions ◽  
Structural Linguistics ◽  
Universal Truth ◽  
Intellectual Movement ◽  
The Way

Structuralism, generally described, is a twentieth-century intellectual movement associated with linguistic studies in Europe, despite its vast applicability and many adherents. An initial aim of structural linguistics was to investigate – in greater detail than previously – the way language functions as a network of signification. Structuralism’s goal also typically derives from the question of whether universal truth can be revealed in this network in ways that define the constitution of thought. Structuralism focused on the whole of language, the ‘structure’ of the totality, over its individual parts or their historical development. The principles of Structuralism and its later transformations found widespread application outside of linguistics, particularly in anthropology, sociology, literary studies, semiotics, film, musicology, psychology, and philosophy.

Comparing constitutional adjudication of self-determination claims

2018 ◽  
Vol 25 (4) ◽  
pp. 452-475
Author(s):  
Xabier Arzoz ◽  
Markku Suksi
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Self Determination ◽  
Constitutional Court ◽  
Supreme Courts ◽  
National Courts ◽  
The Russian Federation ◽  
Constitutional Adjudication ◽  
The Way

The judicial resolution of claims of self-determination by national courts is still exceptional, but rulings seem to be increasing. This paper aims to compare the adjudication of claims of self-determination by constitutional or supreme courts. It will look at three judicial pronouncements from three jurisdictions: the Judgment of the Constitutional Court of the Russian Federation concerning the sovereignty of Tatarstan (1992), the Opinion of the Canadian Supreme Court concerning the secession of Quebec (1998), and the Judgment of the Spanish Constitutional Court concerning the declaration of sovereignty of the Parliament of Catalonia (2014). The paper will draw parallels in the way constitutional or supreme courts have tackled the tension between democracy and constitutionalism.

Taming the prince: Bringing presidential emergency powers under law in Colombia

2020 ◽  
Author(s):  
Andrea Scoseria Katz
Keyword(s):  
Twentieth Century ◽  
Latin America ◽  
Judicial Review ◽  
Constitutional Court ◽  
Presidential Power ◽  
State Of Emergency ◽  
The Past ◽  
Emergency Powers ◽  
History Of

Abstract Can courts check presidential power exercised in a crisis—and should they? The case of Colombia, which recently turned on its head a history of presidential overreach and judicial rubber-stamping, provides an answer in the affirmative. As in much of Latin America, throughout Colombia’s post-independence history, bloodshed fueled authoritarian tendencies, with presidents exploiting the need for “order” to centralize power. One critical weapon in the presidential toolkit was the power to declare a state of emergency. During the twentieth century, these decrees became a routine pretext for the President to govern unilaterally, acquiesced to by the legislature and rarely challenged by the courts. That pattern has since come to an end. Since 1992, the Constitutional Court has proven an unexpectedly strong counterweight to presidential power, especially in its strict review of presidential emergency decrees. Under a model of substantive judicial review, the Constitutional Court has taken for itself the authority to review the factual basis giving rise to a crisis, and the adequacy of the President’s rationale for declaring it. Decrees that, as in the past, attempted to manufacture a crisis or which would exceed the President’s constitutional powers have been struck down. This paper discusses some of the Court’s successes in that ambit, and argues for the portability of this model to other national contexts.

I The Constitutional Court, 2 The Constitutional Court: Rules and Model

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
United States ◽  
Judicial Review ◽  
The United States ◽  
Constitutional Court ◽  
The World ◽  
Hans Kelsen ◽  
Constitutional Adjudication

This chapter succinctly introduces the reader to the composition, jurisdictional scope, and methods of judicial review in Italy. Using both direct and incidental methods of judicial review, the Italian system combines certain elements of centralized systems (like the Austrian paradigm of Hans Kelsen) with elements of diffuse systems of review like that of the United States. The chapter highlights the highly collegial structure and process of the Court. Overall, the cooperative and multilevel character of Italian constitutional adjudication emerges as its most distinctive contribution to our understanding of the range of the varieties of constitutional models and experiences in the world.

Constitutional Judicial Review and International Obligations of Criminalization

2021 ◽  
pp. 1-19
Author(s):  
Beatrice I. Bonafè
Keyword(s):  
Criminal Law ◽  
Judicial Review ◽  
Case Law ◽  
Legal Order ◽  
Constitutional Court ◽  
International Obligations ◽  
Constitutional Constraints ◽  
Constitutional Judicial Review ◽  
Law Making

Abstract The main purpose of this article is to investigate the role that international obligations of criminalization do play and could play in the judicial review carried out by the Italian Constitutional Court. It is divided into three main parts. The Court’s case law is examined first, a general and theoretical appraisal of the Court’s approach follows, and further implications of that approach are taken into account at the end. The author maintains that the Court is quite deferential to international obligations and, despite the significant constitutional constraints surrounding criminal law-making, it seems prepared to let criminalization obligations have various legal effects in the Italian national legal order.

‘Grey Dawn’ in the British Pacific: Race, Security and Colonial Sovereignty on the Eve of World War I

2016 ◽  
Vol 9 (1) ◽  
pp. 32-54 ◽  
Author(s):  
Jesse Tumblin
Keyword(s):  
Twentieth Century ◽  
World War I ◽  
Military Force ◽  
Royal Navy ◽  
World War ◽  
Building Projects ◽  
Cooperative Security ◽  
Strategic Defense ◽  
Racial Discourses ◽  
The Way

This article examines the way a group of colonies on the far reaches of British power – Australia, New Zealand, Canada, and India, dealt with the imperatives of their own security in the early twentieth century. Each of these evolved into Dominion status and then to sovereign statehood (India lastly and most thoroughly) over the first half of the twentieth century, and their sovereignties evolved amidst a number of related and often countervailing problems of self-defence and cooperative security strategy within the British Empire. The article examines how security – the abstracted political goods of military force – worked alongside race in the greater Pacific to build colonial sovereignties before the First World War. Its first section examines the internal-domestic dimension of sovereignty and its need to secure territory through the issue of imperial naval subsidies. A number of colonies paid subsidies to Britain to support the Royal Navy and thus to contribute in financial terms to their strategic defense. These subsidies provoked increasing opposition after the turn of the twentieth century, and the article exlpores why colonial actors of various types thought financial subsidies threatened their sovereignties in important ways. The second section of the article examines the external-diplomatic dimension of sovereignty by looking at the way colonial actors responded to the Anglo-Japanese Alliance. I argue that colonial actors deployed security as a logic that allowed them to pursue their own bids for sovereignty and autonomy, leverage racial discourses that shaped state-building projects, and ultimately to attempt to nudge the focus of the British Empire's grand strategy away from Europe and into Asia.

Breeding Better Babies in the Eugenic Garden City: ‘Municipal Darwinism’ and the (Anti)Cosmopolitan Utopia in the early Twentieth Century

2010 ◽  
Vol 5 (2) ◽  
pp. 267-290 ◽  
Author(s):  
Susan Currell
Keyword(s):  
Twentieth Century ◽  
City Planning ◽  
Comparative Approach ◽  
Core Beliefs ◽  
Garden City ◽  
New Town ◽  
Early Twentieth Century ◽  
National Body ◽  
Practical Level ◽  
The Way

Showing how ‘modernist cosmopolitanism’ coexisted with an anti-cosmopolitan municipal control this essay looks at the way utopian ideals about breeding better humans entered into new town and city planning in the early twentieth century. An experiment in eugenic garden city planning which took place in Strasbourg, France, in the 1920s provided a model for modern planning that was keenly observed by the international eugenics movement as well as city planners. The comparative approach taken in this essay shows that while core beliefs about degeneration and the importance of eugenics to improve the national ‘body’ were often transnational and cosmopolitan, attempts to implement eugenic beliefs on a practical level were shaped by national and regional circumstances that were on many levels anti-cosmopolitan. As a way of assuaging the tensions between the local and the global, as well as the traditional with the modern, this unique and now forgotten experiment in eugenic city planning aimed to show that both preservation and progress could succeed at the same time.

Poetic Trespass

2014 ◽  
Author(s):  
Lital Levy
Keyword(s):  
Twentieth Century ◽  
Visual Art ◽  
Prose Poetry ◽  
Old World ◽  
History And Literature ◽  
Political Boundaries ◽  
Depth Study ◽  
Emile Habiby ◽  
The Relationship ◽  
The Way

A Palestinian-Israeli poet declares a new state whose language, “Homelandic,” is a combination of Arabic and Hebrew. A Jewish-Israeli author imagines a “language plague” that infects young Hebrew speakers with old world accents, and sends the narrator in search of his Arabic heritage. This book brings together such startling visions to offer the first in-depth study of the relationship between Hebrew and Arabic in the literature and culture of Israel/Palestine. More than that, the book presents a captivating portrait of the literary imagination's power to transgress political boundaries and transform ideas about language and belonging. Blending history and literature, the book traces the interwoven life of Arabic and Hebrew in Israel/Palestine from the turn of the twentieth century to the present, exposing the two languages' intimate entanglements in contemporary works of prose, poetry, film, and visual art by both Palestinian and Jewish citizens of Israel. In a context where intense political and social pressures work to identify Jews with Hebrew and Palestinians with Arabic, the book finds writers who have boldly crossed over this divide to create literature in the language of their “other,” as well as writers who bring the two languages into dialogue to rewrite them from within. Exploring such acts of poetic trespass, the book introduces new readings of canonical and lesser-known authors, including Emile Habiby, Hayyim Nahman Bialik, Anton Shammas, Saul Tchernichowsky, Samir Naqqash, Ronit Matalon, Salman Masalha, A. B. Yehoshua, and Almog Behar. By revealing uncommon visions of what it means to write in Arabic and Hebrew, the book will change the way we understand literature and culture in the shadow of the Israeli–Palestinian conflict.

ASAS KEPASTIAN HUKUM DAN ASAS KEBEBASAN BERKONTRAK SEBAGAI PERTIMBANGAN UTAMA DALAM PENYELESAIAN SENGKETA PERBANKAN SYARIAH (Kajian Yuridis Putusan MK Nomor 93/PUU-X/2012)

2018 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Edi Hudiata
Keyword(s):  
Dispute Resolution ◽  
Judicial Review ◽  
Alternative Dispute Resolution ◽  
Contract Law ◽  
Islamic Banking ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Ideal Norm ◽  
Freedom Of Contract ◽  
Binding Force

Since the verdict of the Constitutional Court (MK) Number 93/PUU-X/2012 pronounced on Thursday, August 29, 2013, concerning the judicial review of Law No. 21 of 2008 on Islamic Banking, it is no longer dualism dispute resolution. The verdict as well as strengthen the jurisdiction of Religious Court to resolve Islamic banking disputes. In consideration of the judges, judges agreed stating that Article 55 paragraph (2) and (3) of Law No. 21 of 2008 which is an ideal norm, contains no constitutional problems. The problem is the explanation of the constitutional article 55 paragraph (2) of the Act. The emergence of the Constitutional Court verdict No. 93/PUU-X/2012 which substantially states that the explanation of Article 55 paragraph (2) of Law No. 21 of 2008 does not have binding force, basically does not violate the principle of freedom of contract which is common in contract law. The parties are allowed to make a dispute resolution agreement out of religious court based on provisions as Act No. 30 of 1999 on Arbitration and Alternative Dispute Resolution. Keywords: dispute resolution, legal certainty and the principle of freedom of contract

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