Józef Nowacki as a Theoretician of Normativism in Poland

2020 ◽  
Vol 45 (2-3) ◽  
pp. 248-267
Author(s):  
Sławomir Tkacz
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Case Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
The Third ◽  
German Speaking ◽  
Post War ◽  
Legal Theorist ◽  
Historical Sketch

The present paper aims to present an outline of the views of the Polish legal theorist Józef Nowacki (1923–2005). The claim put forward is that Nowacki was the chief representative of Hans Kelsen’s normativism in Polish legal theory. The paper begins with a short historical sketch presenting the reception of Hans Kelsen’s views in Polish jurisprudence, noting that in the post-war period the communist authorities believed that normativism was at odds with the then prevailing system of actually existing socialism. Drawing inspiration from German-speaking authors, Nowacki rejected the ideology prevailing in Poland at that time and became a staunch advocate of the normativist stance, in particular with regard to the theory of the legal system. The second part of the paper discusses Nowacki’s views regarding the concept of the rule of law, and the third and last part presents Nowacki’s critique of the case-law of the Polish Constitutional Court.

scholarly journals Constitutional principles and their impact on the establishing of constitutional order and rule of law in Kosovo

2020 ◽  
Vol 57 (4) ◽  
pp. 1079-1096
Author(s):  
Nur Çeku ◽  
Haxhi Xhemajli
Keyword(s):  
Rule Of Law ◽  
Minority Groups ◽  
Case Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
The Republic ◽  
European Standards ◽  
The Right ◽  
The Impact

Considered as a progressive document based on the models of the Western constitutions, the Constitution of the Republic of Kosovo has established the legal basis for a functional statethat respects rights and fundamental freedoms while guaranteeing the rule of law. In its provisions, the Constitution has laid down basic principles which serve as the foundation for Kosovo’s constitutional order. In this regard, these constitutional principles have been further enshrined in the provisions of laws that emanate from the Constitution, and also have been established in the institutional mechanisms for its appropriate application. In addition, what played a prominent role in defining these principles was the impact of the Constitutional Court’s case-law. Case-law has reaffirmed in many instances the tremendous importance of constitutional principles in enhancing the rule of law, protecting the rights of minority groups and other members of Kosovo’s society, and the right to freedom of belief and secularism by implementing the most modern European standards in human protection. Hence, this paper analyzess the impact that constitutional principles have had on defining the structure of the state, guaranteeing the rule of law, protection of human rights and establishing Kosovo as a multi-ethnic society. Likewise, it examines the case-law of Kosovo’s Constitutional Court by providing some of the most prominent cases.

scholarly journals Between a Rock and a Hard Place: Constitutional Conflict Cases before The Romanian Constitutional Court

2021 ◽  
Vol 60 (3) ◽  
pp. 281-295
Author(s):  
Csongor Kuti
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Constitutional Court ◽  
Democratic Regime ◽  
Power Struggle ◽  
The Rule Of Law ◽  
Political Conflicts ◽  
Democratic Regimes ◽  
Constitutional Adjudication ◽  
Hard Place

For the rule of law-based democratic regimes, at least two types of significant political challenges can be identified:1. Challenges coming from outside of the democratic regime, in the form of movements which, by making use of the constitutionally guaranteed rights and liberties, attempt to destroy the democratic establishment.2. Challenges coming from inside the democratic regime, in the form of authoritarian movements, which are attempting to overcome their political opponents and consolidate their power by the misuse of the institutions found under their control according to the constitutional blueprint.This paper is concerned with the second type of challenges and examines how the power struggle reflects in constitutional adjudication. Focusing on the case law of the Romanian Constitutional Court, it analyzes the trends in the evolution of the Court’s interpretation of constitutional conflict issues. The paper argues that in periods of great political fragmentation and power-struggle, constitutional conflict cases are more present in the Court’s docket and they result in much more disputed decisions, as actors attempt to present political conflicts as judicial ones. The Court itself is getting more drawn into these struggles and gradually loses its ‘independent arbitrator’ stance.

Lustration and Lapse of Time

2008 ◽  
Vol 4 (3) ◽  
pp. 460-487 ◽  
Author(s):  
David Kosař
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Transition To Democracy ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
European Court ◽  
Basic Features

Czech Lustration Acts: basic features – Among the most far-reaching in the postcommunist countries in Europe – Challenges for the rule of law – 2001: Czech Constitutional Court upholds their validity – Case-law of the European Court of Human Rights – ‘Transition-to-democracy’ circumstances that justified their adoption have ceased to exist

scholarly journals Polish Judiciary and the Constitutional Fidelity. „In Judges We Trust”?

2017 ◽  
Vol 43 ◽  
pp. 265-277 ◽  
Author(s):  
Tomasz Tadeusz Koncewicz
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Primary Objective ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Scant Attention ◽  
Polish Government ◽  
Legal Consequences

Polish Judiciary and Constitutional Fidelity. „In Judges We Trust”?As the Polish government continues to strike at the very heart of the rule of law by refusing to implement, and publish, the judgments of the Constitutional Court, the issue of legal consequences of a judgment delivered, but unpublished and/or unimplemented, comes to the fore. The primary objective of the analysis is to show how disabling the Constitutional Court and constitutional capture of checks-and-balances should translate into the case law of ordinary judges. This latter aspect received only scant attention from the academia. Ordinary courts have their own promises to fulfill when faced with the all-out capture of constitutional essentials making up Polish legal order. As we move forward, these courts should be ready to take on the mantle of quasi-constitutional courts and defend the integrity of the system. Whether they are ready to perform such systemic function is a different question altogether.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

Good Governance

2019 ◽  
Author(s):  
Henk Addink
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Good Governance ◽  
National Level ◽  
Administrative Law ◽  
Modern State ◽  
The Rule Of Law ◽  
The Third ◽  
Legal Perspective ◽  
Further Development

The pivotal aim of this book is to explain the creation, development, and impact of good governance from a conceptual, principal perspective and in the context of national administrative law. Three lines of reasoning have been worked out: developing the concept of good governance; specification of this concept by developing principles of good governance; and implementation of these principles of good governance on the national level. In this phase of further development of good governance, it is important to have a clear concept of good governance, presented in this book as the third cornerstone of a modern state, alongside the concepts of the rule of law and democracy. That is a rather new national administrative law perspective which is influenced by regional and international legal developments; thus, we can speak about good governance as a multilevel concept. But the question is: how is this concept of good governance further developed? Six principles of good governance (which in a narrower sense also qualify as principles of good administration) have been further specified in a systematic way, from a legal perspective. These are the principles of properness, transparency, participation, effectiveness, accountability, and human rights. Furthermore, the link has been made with integrity standards. The important developments of each of these principles are described on the national level in Europe, but also in countries outside Europe (such as Australia, Canada, and South Africa). This book gives a systematic comparison of the implementation of the principles of good governance between countries.

scholarly journals A Populist Monster and the future of Constitutional Democracy

2021 ◽  
Vol 4 (1) ◽  
pp. 83-100
Author(s):  
Andraž Teršek
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Democracy ◽  
Council Of Europe ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Social ◽  
The Eu

Abstract The central objective of the post-socialist European countries which are also Member States of the EU and Council of Europe, as proclaimed and enshrined in their constitutions before their official independence, is the establishment of a democracy based on the rule of law and effective legal protection of fundamental human rights and freedoms. In this article the author explains what, in his opinion, is the main problem and why these goals are still not sufficiently achieved: the ruthless simplification of the understanding of the social function and functioning of constitutional courts, which is narrow, rigid and holistically focused primarily or exclusively on the question of whether the judges of these courts are “left or right” in purely daily-political sense, and consequently, whether constitutional court decisions are taken (described, understood) as either “left or right” in purely and shallow daily-party-political sense/manner. With nothing else between and no other foundation. The author describes such rhetoric, this kind of superficial labeling/marking, such an approach towards constitutional law-making as a matter of unbearable and unthinking simplicity, and introduces the term A Populist Monster. The reasons that have led to the problem of this kind of populism and its devastating effects on the quality and development of constitutional democracy and the rule of law are analyzed clearly and critically.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

STATE POLICING AND INVISIBLE FORCES IN MOZAMBIQUE

Africa ◽  
2014 ◽  
Vol 84 (3) ◽  
pp. 424-443 ◽  
Author(s):  
Helene Maria Kyed
Keyword(s):  
Rule Of Law ◽  
Police Officers ◽  
The Rule Of Law ◽  
Ethnographic Fieldwork ◽  
War Zone ◽  
Police Authority ◽  
State Police ◽  
State Authority ◽  
Post War ◽  
Spiritual Problems

ABSTRACTThis article explores how the state police in Mozambique tried to (re)encroach upon a former war zone and what their methods implied for state authority more generally. Post-war reform efforts to professionalize the police in accordance with the rule of law and human rights have had apparently paradoxical results. This is in part because efforts to constitute state authority have relied on both embracing and taming ‘tradition’ as an alternative domain of authority, order and law. Ethnographic fieldwork at police stations shows that the police increasingly handle witchcraft cases and spiritual problems. This, the article argues, does not only reflect a tension between local/customary and state/legal notions of order and justice. Equally significant is the existence of partial sovereignties. A spiritual idiom of power and evildoing constitutes an alternative articulation of sovereignty due to the capacity of invisible forces to give and take life. This is an idiom mastered by chiefs and healers. Police officers engage with invisible forces to gain popular legitimacy and manifest state power, and yet they never manage to fully master those forces. Consequently, state police authority remains uncertain, and must be continually reinforced by enacting hierarchies and jurisdictional boundaries and by using force.

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