Transnational Constitutional Law

2021 ◽  
pp. 134-156
Author(s):  
Chris Thornhill
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Political System ◽  
Legal Order ◽  
Global Society ◽  
Relative Autonomy ◽  
Legal Norms ◽  
Nation States ◽  
Political Perspective ◽  
Definition Of

This chapter presents an account of the constitutional law of transnational society from a distinctively political perspective. It uses a neoclassical definition of the constitution as the legal norms that frame the actions of a political system to examine and construct constitutional functions that reach beyond the legal systems of nation-states. It advances the thesis that the concept of transnational constitutional law can be applied to three separate legal-political domains in contemporary global society. This concept can be used to analyze constitutional aspects of international law, and it can be applied to national constitutional law, both of which have a strong transnational dimension and are supported by normative elements that are formed through transnational processes. This concept can also be applied to characterize and examine an emergent, conclusively transnational legal order, in which legal formation occurs in more spontaneous and contingent fashion. In each domain, constitutional norms produce an underlying inclusionary structure for distinct political functions in society, and transnational constitutional law is defined, most essentially, by its ability to support the relative autonomy of political exchanges and political interactions.

Sovereignty

2019 ◽  
Author(s):  
Hermann Heller
Keyword(s):  
International Law ◽  
Political Theory ◽  
Weimar Republic ◽  
Political System ◽  
Popular Sovereignty ◽  
Liberal Democracies ◽  
National Sovereignty ◽  
Nation States ◽  
The People ◽  
Pluralistic World

This 1927 work addresses the paradox of sovereignty, that is, how the sovereign can be both the highest authority and subject to law. Unlike Kelsen and Schmitt who seek to dissolve the paradox, this text sees the tensions that the paradox highlights as an essential part of a society ruled by law. Sovereignty, in the sense of national sovereignty, is often perceived in liberal democracies today as being under threat, or at least “in transition,” as power devolves from nation states to international bodies. This threat to national sovereignty is at the same time considered a threat to a different idea of sovereignty, popular sovereignty—the sovereignty of “the people”—as important decisions seem increasingly to be made by institutions outside of a country’s political system or by elite-dominated institutions within. This text was written in 1927 amidst the very similar tensions of the Weimar Republic. In an exploration of history, constitutional and political theory, and international law, it shows that democrats must defend a legal idea of sovereignty suitable for a pluralistic world.

Supra-constitutional norms in constitutional law

2021 ◽  
Vol 30 (1) ◽  
pp. 100-127
Author(s):  
Dmitry Shustrov
Keyword(s):  
International Law ◽  
20Th Century ◽  
Natural Law ◽  
Constitutional Law ◽  
The Other ◽  
Constitutional Court ◽  
Definition Of ◽  
First Time ◽  
Positive Character ◽  
Constitutional Changes

The idea of supra-constitutionality was formulated in the science of constitutional law in the second quarter of the 20th century and associated with the names of M.Hauriou and K.Schmitt, who for the first time noticed the possibility of the existence of norms that are higher than the constitution. This article is an attempt to give the doctrine of supra-constitutionality an actual theoretical and dogmatic meaning in the context of the study of the material limits of constitutional changes. The doctrine of supra-constitutionality claims to play an important role in explaining that unchangeable norms can exist in constitutional law and that they cannot be excluded, changed, limited, overcome, affected by the other sources of constitutional law, including the constitution itself. Supra-constitutionality is viewed as a characteristic of unchangeable constitutional norms that constitute the material limits of constitutional changes. Supra-constitutionality presupposes the existence of norms that surpass the rest of the constitutional norms and predetermine their content through the definition of what can, should and should not be included in the constitution or excluded from it. The basis of constitutional supra-constitutionality is the argument of hierarchical differentiation. In addition to recognizing unchangeable constitutional norms as supra-constitutional, the article raises the question of the existence of natural law and international law supra-constitutional norms. Natural law supra-constitutional norms have an external and non-positive character. They are not enshrined in the constitution, but stem from a reasonably understood concept of what is due in the most civilized societies, which is determined by the constitutional court. International law supra-constitutionality is understood as the superiority of the norms of international law over the constitution. It has an external and positive character. International law supra-constitutionality can cause political objections from opponents of the absolute rule of international law. Supra-constitutional constitutional, natural and international law norms can come into conflict with each other. The paradox of the doctrine of supra-constitutionality lies in the fact that it creates a hierarchy of norms within the constitution itself, distinguishing between simple and supra-constitutional constitutional norms, or distinguishes certain non-positive norms that are outside the constitution, as having priority over the constitution, or puts some norms of international law over all norms of national law, including the constitution. The purpose of the doctrine of supra-constitutionality is to preserve the inviolable fundamental (natural or generally recognized) values, which justifies its logical flaws and paradoxicality.

scholarly journals Democratic Legitimacy between Port-au-Prince and Cairo: A Reply to Erika de Wet

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 208-212 ◽  
Author(s):  
Jure Vidmar
Keyword(s):  
Cold War ◽  
International Law ◽  
Political System ◽  
Democratic Legitimacy ◽  
Post Cold War ◽  
Legal Scholarship ◽  
Democratic Government ◽  
Normative Force ◽  
Per Se ◽  
Definition Of

In the 1990s, international legal scholarship was marked by democratic idealism and the belief that democracy had become the only legitimate political system. The more radical proposals even speculated about legality of pro-democratic intervention. Such re-conceptualizations of international law were met with determined criticism. However, even skeptical voices were willing to admit that democracy nevertheless did have some limited normative force in post-Cold War international law. While it would be an exaggeration to say that nondemocratic governments are illegitimate per se, a consensus started to emerge that international law prohibited at least a coup against a democratic government. In the absence of a workable definition of substantive democracy for international law purposes, a democratic government was understood as an authority which comes to power in an electoral process that is reasonably free and fair.

Part I Conclusion of Treaties, 1 Are Agreements between States and Non-State Entities Rooted in the International Legal Order?

2011 ◽  
Author(s):  
Olivier Corten ◽  
Pierre Klein
Keyword(s):  
International Law ◽  
Political System ◽  
Affirmative Answer ◽  
Legal Order ◽  
Vienna Convention ◽  
Clear Cut ◽  
Peace Agreements ◽  
National Jurisdiction ◽  
International Legal Order ◽  
Made In

Can peace agreements concluded between a State and a non-State entity produce legal effects in the international sphere, as mentioned in Article 3 of the Vienna Convention on the Law of Treaties? Could it be considered that, following the conclusion of such agreements, some areas that were traditionally conceived as pertaining to the national jurisdiction of States (such as the use of violence within national borders, or the choice of a political system) are as of now governed by international law? On the basis of numerous agreements reviewed in this study, a clearly affirmative answer would appear excessive. As far as the international legal effects of such instruments are concerned, much will depend on the specificities of each agreement and on the way it has been implemented. Most of these agreements prove to be rather ambiguous, a significant portion of their components evidencing their rooting in the domestic legal order. This ambiguity finds confirmation in the very pragmatic treatment of peace agreements by the Security Council and States when they call for compliance with these instruments. In the vast majority of cases, such demands are made in the name of the maintenance of international peace and security, without much attention being paid to the characterization in legal terms of the parties' undertakings under these agreements. It therefore appears difficult to reach clear-cut conclusions as to the legal effects of such peace agreements in the international sphere — and, as a consequence, as to their possible characterization as ‘treaties’ under international law.

Equal to the Constitution: the Sources of Law of Highest Legal Force in the Russian Federation

2016 ◽  
Vol 4 (8) ◽  
pp. 0-0
Author(s):  
Михаил Пресняков ◽  
Mikhail Pryesnyakov
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Constitutional Law ◽  
The Other ◽  
Constitutional Court ◽  
Legal Norms ◽  
Other Hand ◽  
The Russian Federation ◽  
Juridical Acts ◽  
The Right

In article the question of validity of the Constitution of the Russian Federation and some other sources of the right which can also possess the highest validity is considered. In particular the author comes to a conclusion that legal positions of the Constitutional Court of the Russian Federation possess the highest validity and in total with the constitutional provisions represent the actual Constitution. On the other hand, both laws on amendments to the Constitution, and the universally recognized norms of international law on the validity stand below constitutional precepts of law. Acts of the Constitutional Assembly of the Russian Federation may in future be qualified as having the highest judicial effect. Such acts may abolish or change any provision of the present Constitution. At the same time the universally recognized norms of international law and the laws of the Russian Federation regulating amendments to the Constitution of the Russian Federation as independent juridical acts and sources of constitutional law are inferior as compared with the constitutional legal norms.

Law and Sovereignty

1937 ◽  
Vol 31 (4) ◽  
pp. 617-637
Author(s):  
J. Roland Pennock
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Political Obligation ◽  
The Real ◽  
Real Issue ◽  
The Status ◽  
Definition Of

Political theorists have spilt much ink in controversies over “sovereignty,” while probably even more effort has been devoted to discussion of the nature of law. It cannot be said that the result of all this activity has been to produce a body of generally accepted doctrine, or even that it has greatly clarified the field of discussion. On the contrary, misunderstandings and the abuse of terms have contributed greatly to a general fog.The real issue raised by the pluralists is much more than a question of logic. They challenge the premises of their opponents. They deal largely with the question of the limits of political obligation. With that we are not here concerned. The primary purpose of this article is to search for a meaning of “law” that will at once contribute to the clarification of the question as to the nature of law and aid in the determination of the most helpful legal signification of the term “sovereignty.” The accomplishment of this purpose should aid in settling the incidental questions of the nature of “constitutional law,” the possibility of “nullifying” law, and the status of “international law.”The two subjects—law and sovereignty—are frequently treated independently, but they are so inter-related as to render such treatment inadequate. A brief examination of the controversy over “sovereignty” will demonstrate how it ultimately resolves itself into a question of the definition of law.

scholarly journals On the Relationship between Facts and Legal Concepts: Methodological Analysis

2020 ◽  
Vol 15 (3) ◽  
pp. 106-115
Author(s):  
ANTON B. DIDIKIN
Keyword(s):  
Legal Order ◽  
Broad Context ◽  
Normative Reasons ◽  
Legal Philosopher ◽  
Legal Norms ◽  
Definition Of ◽  
Legal Concepts ◽  
The Relationship ◽  
Legal Normativity ◽  
Philosophical Understanding

In his paper "The Influence of Normative Reasons on the Formation of Legal Concepts", German legal philosopher Lorenz Kähler attempts to give a theoretical and philosophical understanding of the legal normativity in terms of disclosure of normative reasons that determine the choice and definition of the legal concepts. Despite the broad context of substantiating the problem under study and ways to solve it, the author formulates a number of controversial and disputable provisions. Among them, we can note the ambiguity and uncertainty of the content of legal concepts that are projected by the author exclusively on the field of legal norms, which does not allow us to correctly distinguish the process of cognition of legal phenomena and the application of legal norms. The analysis of the problem of normativity is carried out from the position of separating the normative legal order from the field of empirical facts without the possibility of correlating normative prescriptions with factual circumstances and actions (the normative grounds of which are the main point of L. Kähler, s research). The paper offers a number of critical arguments that demonstrate the methodological incorrectness and unreasonableness of certain judgments of L. Kähler, as well as conceptual decisions about the relationship between facts and norms in the context of the boundaries of normative and factual law.

scholarly journals Doctrinal approaches to the definition of civil procedural law

2021 ◽  
pp. 82-90
Author(s):  
Olena Shtefan
Keyword(s):  
Public Relations ◽  
International Law ◽  
The State ◽  
Legal Norms ◽  
Civil Process ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Subject ◽  
The Russian Federation ◽  
Definition Of

Keywords: civil procedural law, civil process, civil proceedings, subject of civil procedurallaw The process of reforming procedural legislation, its harmonization, harmonization with theprinciples and standards of international law, as well as other processes taking place insociety and the state are the factors that affect the need to revise the doctrinal definitions of civil procedural law. One of the most developed issues in the theory of civil procedurallaw is its definition. In turn, the development of science is impossible without reviewingeven established doctrinal approaches and provisions.An analysis of the special literature, mostly educational, led to the conclusion thatscholars use approaches to the definition of the term "civil procedural law", which weredeveloped and included in the theory of civil procedural law in the 50s-60s of the twentiethcentury. Modern definitions of civil procedural law are based on the provisions of theold invalid legislation, or on the provisions of the legislation of other countries (for example,the Russian Federation). Therefore, the purpose of this study was to review the existingdefinitions in the theory of civil procedural law and their harmonization with theprovisions of current legislation of Ukraine.In the process of researching doctrinal approaches to the definition of civil procedurallaw, it was found that researchers invest in the definition of the subject, purpose of thisbranch of law, as well as additional characteristics of civil procedural law (participants,sectoral affiliation, stage, etc.).The lack of a single doctrinal approach to the definition of the subject of civil procedurallaw, which is part of the definition of civil procedural law, prompted to study thesubject of civil procedural law and propose its author's definition.Based on the provisions of current legislation, the article presents the author's definitionof civil procedural law as a branch of law, set and system of legal norms, the subjectof which are public relations arising in civil proceedings on the basis of fair, impartialand timely consideration and resolution of civil cases in order to effectively protect violated,unrecognized or disputed rights, freedoms or interests of individuals, rights and interestsof legal entities, the interests of the state.

scholarly journals PRINCIPLES OF INTERNATIONAL LAW AND THEIR ROLE IN CONFLICT RESOLUTION IN KOSOVO AND CRIMEA. Part 2

2019 ◽  
Keyword(s):  
International Law ◽  
International Community ◽  
Self Determination ◽  
Local Authorities ◽  
Territorial Integrity ◽  
Legal Norms ◽  
Conflict Situations ◽  
History Of ◽  
Definition Of ◽  
The Right

The second part of the article considers the issue of the contradiction of the realization of the right to self-determination and the principle of territorial integrity of Serbia and Ukraine on the example of Kosovo and Crimea. It presents an analysis of the legitimacy of the will expression of Kosovars and Crimeans and its compliance with the norms of international law. The preconditions and factors of the ethnopolitical conflict are examined and the main problematic issues that caused controversies between the central and local authorities in Kosovo and Crimea are identified. The article emphasizes that the result of the plebiscites in Kosovo (1998) and Crimea (2014) was the declaration of independence, denied by central authorities of Serbia and Ukraine and met with mixed reactions by the international community. The self-proclaimed republics have only external features of statehood and are subject to external administration of other countries. A latent opposition of geopolitical opponents in the international arena is noted, which is to some extent traced through the position on the recognition / non-recognition of Kosovo and Crimea. The article draws attention to the fact that inconsistent interpretations of certain principles of international law promote secession movements in countries where conflicts periodically arise between central and local authorities. The emphasis is placed on the necessity of a clearer definition of the aforementioned international legal norms and obligations undertaken by subjects of international law. The article holds that in order to avoid such situations as in Kosovo or Crimea, to eliminate conflicts related to the possibility of an ambiguous interpretation and application of the principles of international law, an internationally recognized system of more stringent and comprehensive measures should be introduced to cease and prevent threats to the territorial integrity of countries. A strong position of the international community on the abovementioned principles with the history of the liberation movements of these peoples taken into account should become the measure precluding the aggravation of conflict situations related to the aspiration of peoples for self-determination.

Irresolvable Norm Conflicts in International Law

2017 ◽  
Author(s):  
Valentin Jeutner
Keyword(s):  
International Law ◽  
Practical Investigations ◽  
Legal Scholarship ◽  
Limited Ability ◽  
Legal Norms ◽  
The Third ◽  
Decision Making Processes ◽  
Legal Actor ◽  
Definition Of ◽  
Law Making

Conventionally, international legal scholarship concerned with norm conflicts focusses on identifying how international law can or should resolve them. This book adopts a different approach. It focusses on identifying those norm conflicts that law cannot and should not resolve. The book offers an unprecedented, controversial, yet sophisticated, argument in favour of construing such irresolvable conflicts as legal dilemmas. Legal dilemmas exist when a legal actor confronts a conflict between at least two legal norms that cannot be avoided or resolved. Addressing both academics and practitioners, the book aims to identify the character and consequences of legal dilemmas, to distil their legal function within the sphere of international law, and to engender and contribute to serious theoretical and practical investigations into the conditions that lead to a legal dilemma. The argument unfolds in three parts. The first part proposes a definition of legal dilemmas and distinguishes the term from numerous related concepts. Based on this definition, the second part scrutinises international law’s contemporary norm conflict resolution and accommodation devices in order to identify their limited ability to resolve certain kinds of norm conflicts satisfactorily. Against the background of the limits identified in the second part, the third part outlines and evaluates the book’s proposed method of dealing with legal dilemmas. In contrast to conventional approaches that recommend dealing with irresolvable norm conflicts by means of non liquet declarations, judicial law-making or balancing test, the book’s proposal envisions that irresolvable norm conflicts are dealt with by judicial and sovereign actors in a complementary fashion. According to the proposal, judicial actors should openly acknowledge irresolvable conflicts and sovereign actors should decide with which norm they will comply. Subsequently, judicial actors should hold the sovereign actor responsible for the violation of any prescriptive norm the sovereign chose to impair. The book concludes with the argument that analysing various aspects of international law through the lenses of the concept of a legal dilemma enhances international law’s conceptual accuracy, facilitates more legitimate decision-making processes and maintains international law’s dynamic responsiveness.

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