scholarly journals The reference to constitutional traditions in populist constitutionalism – The case of Hungary

2021 ◽  
Author(s):  
Fruzsina Gárdos-Orosz
Keyword(s):  
Constitutional Court ◽  
Illustrative Case ◽  
Constitutional Democracy ◽  
Culture History ◽  
Political Forces ◽  
Political Theories ◽  
Hungarian Case ◽  
Constitutional System ◽  
Constitutional Jurisprudence

AbstractThe paper aims to highlight the nature and the relevance of the reference to constitutional traditions in the building of populist constitutionalism, with special regard to the Hungarian case. In Hungary the goals and effects of this reference – especially the references to the achievements of the historical constitution – must be discussed at the level of the constitutional text and with regard to the formation of the new constitutional jurisprudence and, furthermore, to the creation of the constitutional identity. Outstanding political theories have been built about the elements of national populism and all include a political emphasis on a nation's pride in its culture, history and traditions. This paper examines the normative legal consequences of this in a state where the populist political forces have consecutively gained a majority in the Parliament which enables them to adopt and amend a constitution and decide on the personal make up of the constitutional court. It examines the role of the reference to constitutional traditions in the transformation of the constitutional system. The illustrative case studies from Hungary show one element of the alternative to mainstream liberal constitutional democracy: a constitutional perception of the sovereign people with a strong common constitutional heritage, this latter to be respected by all state organs and by domestic, European and international law. The paper offers an understanding of this constitutional concept and assembles disclaimers and serious legal concerns that must be taken into account, at least in Hungary, but probably in many other national populist regimes as well.

II Constitutional Jurisprudence, 5 Powers and Conflicts

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
Separation Of Powers ◽  
Case Law ◽  
Constitutional Court ◽  
Reciprocal Relations ◽  
The Republic ◽  
Constitutional System ◽  
Constitutional Jurisprudence ◽  
The Relationship ◽  
Principal Lines

By presenting the Court’s principal lines of case law regarding the allocation of powers in the Italian constitutional system, this chapter explores the constitutionally regulated relationships among the President, Executive, Parliament, and Judiciary. It reveals that rather than a “separation of powers” in the conventional sense of contemporary constitutional models, the Italian system is best described as instituting a set of reciprocal “relations of powers” with the Constitutional Court as the “judge of powers” that maintains and guarantees these interrelationships of constitutional actors. The chapter explores this role of the Constitutional Court in its relations with both Parliament and the President of the Republic, as well as the Court’s regulation of the relationship between the President and the Executive.

The Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

2021 ◽  
Vol 56 (1) ◽  
pp. 18-33
Author(s):  
Lucky Mathebe
Keyword(s):  
South Africa ◽  
Constitutional Court ◽  
Transformative Change ◽  
Democratic Accountability ◽  
Constitutional Democracy ◽  
The Public ◽  
Crime And Punishment ◽  
Black And White ◽  
Marginalised Groups

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country’s new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court’s decision in Makwanyane on the death penalty, and the Court’s decision on the findings of the Public Protector’s report on Nkandla, the article finds that the Court’s new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability.

The Decision of the German Constitutional Court on the Immigration Act

2003 ◽  
Vol 4 (2) ◽  
pp. 91-106 ◽  
Author(s):  
Florian Becker
Keyword(s):  
Constitutional Court ◽  
German Politics ◽  
Basic Law ◽  
Starting Point ◽  
German Constitutional Court ◽  
Constitutional System ◽  
Shed Light

Even experienced scholars will have to think for quite a while when asked to remember whether a similar situation has ever occurred: A tiny constitutional provision in the organisational part of the Grundgesetz (GG – Basic Law), not exactly neglected by learned writers but definitely never seen as a source of major problems, became the starting point of one of the most emotional outbursts German politics has ever experienced. The said provision, Article 51.3(2) of the Basic Law, dealing with the voting procedure in the Bundesrat innocently says that the votes of one Land's representatives “can” (“können”) be cast only unanimously. In order to understand the causes for the earthquake that struck the German political and constitutional system in the 774th session of the Bundesrat on 22 March 2002 it is essential to shed light on the structure and the constitutional role of the Bundesrat.

scholarly journals Authoritarian Dimension of Judicial Ideology of the Slovenian Constitutional Court

2020 ◽  
Vol 20 (4) ◽  
pp. 733-760
Author(s):  
Jernej Letnar Černič
Keyword(s):  
Constitutional Court ◽  
Individual Rights ◽  
Constitutional Democracy ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Rule Of Law ◽  
The Past ◽  
Judicial Ideology ◽  
Constitutional System ◽  
Independent Functioning

After the democratization and independence of Slovenia, the Constitutional Court has generated the paradigm reform in the Slovenian constitutional system by protecting individual rights against the heritage of the former system. The constitutional judges are not blank slates, but individuals embedded in their private and professional environments. In the past three decades, the Court has delivered several seminal decisions concerning the protection of the rule of law, human rights, and constitutional democracy. What motivates constitutional judges to protect individual rights in some cases and show preference for the preservation of authority and stability of the existing legal system in others? The article is based on the empirical research measuring the presence of judicial ideology at the Constitutional Court of Slovenia in three mandates (1993–1997, 2002–2006, 2011–2016). The methodological and theoretical model aims to measure economic, social, and authoritarian dimensions of judicial ideology (three-fold judicial ideology model). The research group has analysed the decisions and separate opinions of the Constitutional Court from selected periods based on hypotheses provided by the model. This article intends to present and analyse the research results concerning the authoritarian dimension of judicial ideology. More specifically, it examines the level of authoritarianism of the Slovenian Constitutional Court in its judicial decision-making during the three mentioned mandates. Through the obtained empirical results, the paper seeks to strengthen fair, impartial, and independent functioning of the Slovenian Constitutional Court and its respective judges.

‘Guardian of the Solemn Pact’ – The Role of the Constitutional Court in South Africa’s Constitutional Transition

2020 ◽  
Vol 23 (1) ◽  
pp. 355-385
Author(s):  
Brynne Guthrie
Keyword(s):  
South Africa ◽  
Political Context ◽  
Constitutional Court ◽  
Constitutional Democracy ◽  
Unique Role ◽  
The Public ◽  
The Impact

The Constitutional Court of South Africa has played a unique role in the country’s constitutional transition. This paper starts by detailing the historical and political context of the Interim Constitution which created the Constitutional Court and the constitutional principles. The article describes the approach of the Court in the First Certification Judgment (1996), analysing the impact of the Constitutional Court’s decision on the drafting of the final Constitution and the public more generally, before briefly outlining the role that the Court continues to play in protecting constitutional democracy as a ‘Guardian of the Solemn Pact’.

INTERNATIONAL LAW IN THE TURKISH LEGAL ORDER: TRANSNATIONAL JUDICIAL DIALOGUE AND THE TURKISH CONSTITUTIONAL COURT

2017 ◽  
Vol 26 (1) ◽  
pp. 41-62
Author(s):  
Ikboljon Qoraboyev ◽  
Emre Turkut
Keyword(s):  
International Law ◽  
Legal Order ◽  
Constitutional Court ◽  
Legal Analysis ◽  
Political Forces ◽  
Turkish Literature ◽  
Contemporary Writing ◽  
Domestic Power ◽  
The Relationship

Much has been written on the increasing significance of domestic courts in the international realm. However, the role of the Turkish constitutional judges in determining and orienting the relationship between international law and Turkish domestic law has rarely been subject to legal analysis. Literature on the involvement of the Turkish judges in transnational judicial dialogue is also almost non-existent. As far as the existing Turkish literature is concerned, much of the contemporary writing on the subject tends to focus on the hierarchical position of international agreements in the Turkish legal order. This paper intends to fill an important gap in the scholarship by providing an analysis of the decisions of the Turkish Constitutional Court (TCC) and by illuminating the TCC’s role as implementers or non-implementers of international law, and the scope of their participation in transnational judicial dialogue. Relevant sub-questions concern the extent to which the stance of the TCC’s judges may or may not alleviate concerns of the international community on the rule of law in Turkey, and whether their engagement in international law is substantial enough to limit and moderate the excesses of different political forces, including those in power, engaged in the domestic power struggle.

Concepts of National and Constitutional Identity in Croatian Constitutional Law

2017 ◽  
Vol 42 (4) ◽  
pp. 263-293
Author(s):  
Jurij Toplak ◽  
Djordje Gardasevic
Keyword(s):  
Minority Language ◽  
Constitutional Court ◽  
Parliamentary Elections ◽  
Future Developments ◽  
National Minorities ◽  
Legal Context ◽  
Constitutional System ◽  
The Right ◽  
Constitutional Jurisprudence ◽  
Constitutional Identity

The Croatian Constitutional Court recently rendered two important decisions concerning two national minorities’ rights: the right to vote in parliamentary elections; and the right to use minority language. In both decisions, the Court relied on a newly developed concept of Croatian national identity. This article explores and critically explains the wider social, political and legal context that has produced the emergence of the idea of a constitutional identity in Croatian constitutional jurisprudence. In addition, it evaluates the potential effects this new constitutional concept may have for future developments in Croatia’s political and constitutional system. This article also compares Croatian and Slovenian solutions to certain questions as the Slovenian Constitutional Court has ruled on strikingly similar issues, but arrived at different conclusions.

scholarly journals Judicial Review of Democracy. Maintenance of Democracy as a Functionalist Mission in the Jurisprudence of the Constitutional Court of Kosovo

Südosteuropa ◽  
2020 ◽  
Vol 68 (4) ◽  
pp. 530-553
Author(s):  
Enver Hasani
Keyword(s):  
Legal Theory ◽  
Case Law ◽  
Point Of View ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Contractual Relationship ◽  
Constitutional Justice ◽  
Constitutional Jurisprudence

AbstractUsing Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role of constitutional courts as agents for implementing a democratic project on behalf of the sovereign as the principal. It discusses that role primarily from the point of view of the court’s functional intervention in improving the behaviour of the three branches of government. The paper begins by unveiling the historical development of constitutional justice, with as its focus the concept of new constitutionalism and the European/Kelsenian model encountered in Kosovo. It discusses too the theories of delegation of power, the contractual relationship, and trust between sovereigns and constitutional adjudicators in the context of subjects connected with this article. To present scenarios where the court manifests itself as a negative legislator, a positive legislator, and as an influencer of attitudes, the article includes convincing illustrations from both legal theory and case-law.

The Constitutional Court and Others in Romanian Constitutionalism – 25 Years After

ICL Journal ◽  
2017 ◽  
Vol 11 (4) ◽  
Author(s):  
Bianca Selejan-Guțan
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
The European Union ◽  
The Rule Of Law ◽  
Actual Role ◽  
Central Elements ◽  
Constitutional System ◽  
Critical Overview

AbstractThe current Romanian constitutional system, established in 1991, has undergone numerous formal and informal developments in the last 25 years. The main issues that arose in the decade since the country’s adhesion to the European Union were the respect for the rule of law, independence of the judiciary and the fight against corruption. In this context, the Constitutional Court has been one of the central elements of the rule of law guarantee in Romania. This paper intends to present a critical overview of the actual role of the Constitutional Court in the Romanian constitutional system, in the different contexts that link the Court with ‘others’, ie mainly with State powers (the Court itself being and independent organ, placed outside the judicial power).

The Constitutional Court in the Legal System of the Russian Federation

10.12737/1543 ◽  
2013 ◽  
pp. 5-13 ◽  
Author(s):  
Сергей Князев ◽  
Syergyey Knyazyev
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Constitutional Court ◽  
Legal Provisions ◽  
Russian State ◽  
The Russian Federation ◽  
Democratic Rule ◽  
Constitutional Meaning ◽  
Constitutional Jurisprudence

The article comprises the analysis of the role of the Constitutional Court of the Russian Federation in the process of formation of democratic, rule of law and social Russian state. The author focuses on the fact that it’s essentially the constitutional jurisprudence that makes it possible to develop the adequate perception of human rights as the primary constitutional value, to define the nature and to unfold the significance of the principles stipulated in the Constitution, to ensure the harmonization of Russian legislation with the commonly recognized principles and norms of International law, to delineate the constitutional meaning of legal provisions subjected to the Constitutional Court review.

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