scholarly journals Naturschutz und Verfassungsrecht

2017 ◽  
Vol 2 (1) ◽  
pp. 60
Author(s):  
D Czybulka
Keyword(s):  
Nature Conservation ◽  
Constitutional Law ◽  
The State ◽  
Fundamental Rights ◽  
Natural Basis ◽  
Social Commitment ◽  
Federal States ◽  
Locus Standi ◽  
Basic Law ◽  
The Individual

Nature Conservation and Constitutional Law in Germany Germany's federal structure is mirrored in its constitutional law consisting of the federation's Basic Law and the constitutions of the federal states subject to conformity with the former. "Nature conservation" in the constitutional context means the "protection of the natural basis of existence" comprising all natural values such as flora, fauna, soil, water, air, climate, landscape and their interdependencies. The process of incorporating provisions on nature conservation in the constitutions of both state levels intensified in the 1970's and 1980's leading to the amendment of the constitutions in several federal states (adopting for example state aim definitions, locus standi for nature conservation NGO's, individual rights to enjoy nature, municipal responsibilities and so forth), revived with the unification of Germany and came to a first halt with the amendment of the Basic Law in 1994, introducing Article 20a. Nature conservation directly or indirectly is subject of different categories of constitutional provisions - competences, state aims, fundamental rights and through disputed fundamental duties.As to legislative powers the federation itself enjoys only a framework competence (see Federal Nature Conservation Act), which is unfavourable especially to the implementation of international commitments. This framework is complemented by the nature conservation legislation of the federal states to which also the executive powers in this field are allocated.Article 20a of the Basic Law provides that "The state protects […] the natural basis of existence …". As a state aim ("Staatszielbestimmung") it addresses the state bodies which thus are legally bound to always respect and perform to the end of the constitu-tionally prescribed objective. As a provision of mere objective law, the individual has no locus standi to enforce its implementation. Its role therefore must be seen as a means of interpretation of enacted law to ensure conformity with the constitution, as a guideline for discretionary decisions and as a support in planning processes for weighing up interests. Under the latter aspect Article 20a can be understood as a principle of non-deterioration regarding the environmental situation, as a "guideline for integrity" and as a decision in favour of raising the standards of protection and implementing them.Academic discussion on a fundamental right related to nature conservation calls for abondonment of the anthropocentric approach inherent in the constitution (human dignity). A first promising step would be to adopt an "ecological minimum standard" vested as fundamental right. However, in practice a right of nature itself is denied. Instead nature's interests are represented by the state (for example protection of certain sites and biotopes by law) and by NGO's (with locus standi in German administrative courts in most states (Länder)). Claims of individuals against the state to avert a destruction of nature are also denied. Nature conservation as fundamental duty is materialized in the principle of social commitment of property. To this extent nature conservation also amounts to an "ecological" limit for the excercise of individual freedoms guaranteed under the constitution. A respective limitation of nature conservation by these freedoms as well as the scope of any limit to nature conservation are disputed issues.

Continuity with Deficiencies: The New Basic Law of Hungary

2013 ◽  
Vol 9 (1) ◽  
pp. 102-138 ◽  
Author(s):  
András Jakab ◽  
Pál Sonnevend
Keyword(s):  
Constitutional Law ◽  
The State ◽  
Fundamental Rights ◽  
Political Community ◽  
The Political ◽  
Basic Law ◽  
The Government ◽  
Democratic Constitution ◽  
Legal Procedures

Hungarian constitutional law – New Basic Law – Continuity with the previous democratic Constitution – Vision of the political community embedded in the new Basic Law – The level of protection of fundamental rights – Continuity and lack of foreseeability in the organisation of the state – European legal procedures against or about Hungary – The life prospects of the new Basic Law – Danger of constitutional crisis whenever the government does not hold a constitution-amending majority

scholarly journals The Concept Of Solidarity As A Factor In The Realization Of Human And Civil Rights And Freedoms In Ukraine

2021 ◽  
pp. 109-119
Author(s):  
O.S. Shevchenko
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Common Good ◽  
Social Insurance ◽  
The State ◽  
Fundamental Rights ◽  
Basic Law ◽  
The People ◽  
Definition Of ◽  
The Individual

The article is devoted to the study of the role and significance of guarantees of individual rights and freedoms in Ukraine. The author defines that they are important factors in the economic, political, legal, cultural and other spheres of society that create conditions for the real possibility of exercising the rights and freedoms of the individual. The concept of solidarity excludes the idea of class struggle, the revolutionary path of development of society. According to this concept, the focus is on the social nature of the state: socio-economic, cultural, environmental rights of citizens are ensured with the participation of the state, which pursues an active socio-economic policy aimed at redistribution of funds for the most vulnerable, employment, social insurance, development affordable education, health care, etc. Guarantees for the realization of human and civil rights, freedoms and responsibilities can be described as a system of conditions and means that together ensure the exercise of constitutional human and civil rights, freedoms and responsibilities. The effectiveness of this system depends on various factors, but the main among them is the presence of certain elements in the system of government. These include: a) the existence of the Basic Law, the effect of which cannot be terminated arbitrarily; b) the definition of state power derived from the power of the people and the Constitution; c) consolidation at the constitutional level of fundamental rights, freedoms and responsibilities of man and citizen and the means and conditions of their exercise; d) the existence of an independent judiciary; e) the opportunity to protect their rights with the Commissioner for Human Rights of the Verkhovna Rada of Ukraine and in international human rights organizations. It is also proposed to solve certain issues of realization of human rights and freedoms in Ukraine through the implementation of the concept of solidarity - the principle of building a social system in which its members (citizens, families, ethnic groups, religious denominations, social groups, political parties, business corporations, etc.) have a real legal and socio-political subjectivity , on the basis of which their rights, opportunities and interests can be consolidated and solidified in order to achieve consensus goals (common good) in social frameworks of different scales (local, national, global).

Reflections on the Protection of the Rights of the Individual: Form and Substance

1977 ◽  
Vol 12 (1) ◽  
pp. 32-67 ◽  
Author(s):  
Shimon Shetreet
Keyword(s):  
Civil Rights ◽  
Fundamental Rights ◽  
Social Rights ◽  
Basic Principles ◽  
Labour Unions ◽  
Basic Law ◽  
Social Interests ◽  
Legislative Policy ◽  
The Individual ◽  
State Of Israel

In the absence of a written constitution in Israel, the protection of fundamental rights of the citizens depends upon a variety of legal sources. In the course of resolving questions concerning individual rights, the courts rely upon statutory law as well as basic principles of democratic government and concepts of individual freedoms as expressed in the Israel Declaration of Independence and in international covenants.In the Draft Basic Law: Rights of the Man and the Citizen (hereinafter referred to as the Draft Basic Law), which has passed the first reading in the Knesset, the fundamental rights will be embodied into a written Basic Law. This Basic Law together with the Basic Laws already enacted and those in preparation will eventually become the Constitution of Israel. The chapter by chapter legislative policy for enacting Israel's Constitution was laid down in 1950 by the Knesset in what has become known as the Harari Resolution. In the last eight years the drive for legislating Basic Laws, i.e., the chapters of the future Constitution, has gained momentum. It is hoped, therefore, that the day when the State of Israel will have a Constitution is not very far off.The Draft Basic Law extends its protection over the basic civil rights commonly recognized by civilized nations and their constitutions and by international covenants. But social rights, except for the freedom of workers to “associate in labour unions for the protection and furtherance of their economic and social interests”, which is explicitly provided, are not dealt with in the Draft Basic Law.

scholarly journals The natural human right to security and security as a constitutional human right

2020 ◽  
pp. 219-233
Author(s):  
Jadwiga Potrzeszcz
Keyword(s):  
Constitutional Law ◽  
Primary Objective ◽  
The State ◽  
Fundamental Rights ◽  
Human Right ◽  
Positive Law ◽  
The Right

In this article it was formulated the thesis on the existence of a natural hu­man right to security, and subsequently the analyse of the issue of the relation­ship between the natural human right to security and security as a constitutional human right. The primary objective of the research was to answer the question whether the natural human right to security influences the existence of security as a human right, guaranteed by positive law, in particular in constitutional law. The above analysis of the provisions of the Polish Constitution proved that the right to security as a constitutional human right was not expressly stated in any of these provisions. Certainly, the formulation of an explicit constitutional human right to security raises concerns about the scope of the citizen’s ability to enforce this right from the state, e.g. by means of a constitutional complaint. Regardless of the difficulties raised, it is worth interpreting the constitution­al human right to security from all the regulations of the Polish Constitution as a function of fundamental rights. In justified individual cases of violations, the constitutional human right to security may be derived from art. 30 of the Pol­ish Constitution, which stipulates that the inherent and inalienable dignity of man is the source of his rights and freedoms.

scholarly journals Comparative characteristics of unitarism and federalism: conceptual aspects of theory and practice

2020 ◽  
pp. 87-93
Author(s):  
Oleksandr Batanov
Keyword(s):  
Constitutional Law ◽  
Mutual Influence ◽  
State Power ◽  
The State ◽  
Theory And Practice ◽  
Unitary Theory ◽  
Federal States ◽  
The Status ◽  
Territorial Organization ◽  
State Territory

The aim of the article is a comparative legal study of the essential and substantial characteristics of unitarism and federalism asphenomena of modern constitutional law. The synergetic relationship between the doctrines of modern unitarism or federalism, theprinciples of unitarism or federalism of the state territory and the fundamental institutions of the political, legal and state-administrativelife of modern unitary and federal states is shown. It is proved that the state system is not only one of the important components of theprocess of achieving the tasks, goals and functions of modern states, but also an immanent sign and a strategic element of themechanism for the realization of their sovereign rights.Given the unitarity of the Ukrainian state, special emphasis is placed on the importance of the principles of unitarism in thefunctioning of the constitutional system of Ukraine. The complexity, importance and relatively widespread use of unitarity as a form ofgovernment is causing a lively and ever-growing scientific interest in it throughout the world. The unique ability of unitarism to takeinto account the specific features of a particular condition allows it to manifest itself in each case in a new way. That is why it is importantto analyze the mutual influence of unitary theory and practice, to explore and take into account the peculiarities of national unitarism.The problem of unitarism and the unitary form of the territorial structure of the state and the status of its constituents is one ofthe least studied in domestic constitutional law. Modern representatives of the science of constitutional law, as a rule, are limited to considerationof individual issues of the territory, in particular, the features of the territorial organization of state power and local selfgovernment,problems of state sovereignty, territorial integrity and inviolability, etc. To a large extent, a lack of study of the problemin contemporary Ukraine causes difficulties in understanding such interrelated but not identical phenomena as unitarism and unitarity,regionalism and regionalization, municipalism and municipalization, decentralization and deconcentration, etc. It should be noted thatin modern literature on issues of state territory, territorial organization of state power, and other issues of the status of territory, thecomp lex, multidimensional nature of unitarism as a constitutional category is not always taken into account.It is proved that unitarism and federalism are multidimensional socio-political and constitutional phenomena: these are ideas, andindependent theories and scientific directions, and global social and constitutional practices, and constitutional forms of existence andfunctioning of territorial collectives and regions, and the historical state of statehood, and forms of realization of national identity andcitizenship, etc.

scholarly journals FUNDAMENTAL RIGHTS AND TOLERANCE AS PRECONDITIONS OF THE DEVELOPMENT OF THE STATE

2019 ◽  
Vol 2 (55) ◽  
pp. 543
Author(s):  
Flávio PANSIERI ◽  
Rene SAMPAR
Keyword(s):  
Political Philosophy ◽  
Constitutional Law ◽  
The State ◽  
Fundamental Rights ◽  
Pivotal Mechanism

ABSTRACTThis article aims to analyze tolerance as a fundamental right without which the most elementary notion of the development of the state cannot occur. The authors adopt democratic constitutionalism as the pivotal mechanism in today’s engineering of the state. Tolerance, in this regard, works as a resilient device against authoritarian notions which do not admit diversity and dissent, pivotal gears in any democratic context. For this purpose, the authors draw upon the method of bibliographical review with authors in the fields of law, political philosophy, and political science.KEYWORDS: Constitutional Law; Tolerance and freedom; Democratic constitutionalism. RESUMOEste artigo tem como objetivo analisar a tolerância como um direito fundamental sem o qual a noção mais elementar do desenvolvimento do estado não pode ocorrer. Os autores adotam o constitucionalismo democrático como o mecanismo central da engenharia do estado de hoje. A tolerância, nesse sentido, funciona como um dispositivo resiliente contra noções autoritárias que não admitem diversidade e discordância, engrenagens fundamentais em qualquer contexto democrático. Para esse fim, os autores recorrem ao método de revisão bibliográfica com autores nos campos do direito, filosofia política e ciência política.PALAVRAS-CHAVE: Lei Constitucional; Tolerância e liberdade; Democracia constitucional.

scholarly journals THE (IN)EFFICIENCY IN THE ENFORCEMENT OF THE 2017 MIGRATION LAW AND THE CONTEXT OF VENEZUELAN MIGRATION IN BRAZILIAN TERRITORY

2021 ◽  
Keyword(s):  
Social Order ◽  
Hate Speech ◽  
Historical Context ◽  
The State ◽  
Fundamental Rights ◽  
International Conflicts ◽  
The Individual ◽  
Geographical Space ◽  
Migration Law

The present work expose an analysis of the historical context of migrations in the geographical space, and the evolution of this phenomenon in contemporary times, from the influence of world geopolitical conflicts. Thus, it was identified the clear incongruity of the conceptualization of immigrants carried out by the United Nations (UN) - from the need for cross-border mobility by international conflicts, natural disasters and own will- to safeguard their fundamental rights, even if there are tools in the Brazilian legal system. In addition, this research addresses the Venezuelan migratory crisis that is plaguing the country's territory and has repercussions on the Brazil-Venezuela borders, especially the state of Roraima, as a factor of modification of the geographical and geopolitical space of both nations. Thus, it is appropriate to assimilate the consequences and the impacts on the Brazilian State, which impacted on the inability to apply Migration Law nº 13,445, of May 24, 2017. The use of the new Law sought to safeguard the fundamental rights of immigrants and preserve the interests of the Brazilian people, providing stability and social order. However, at the end of the survey, the 2017 Migration Law was ineffective in terms of protecting the individual rights of Venezuelans in the country and safeguarding their dignity, as their provisions didn’t achieve the expected efficiency in containing hate speech, violent practices by the Brazilian people, and even xenophobia practiced by the state judiciary itself. The methodology employed in the present work consists of a bibliographic research of the case study, using articles 1º, 2º, 3º and 4º of the Law nº 13.445, of May 2017 and the Constitution of the Federative Republic of Brazil of 1988, in addition to the Universal Declaration of Human Rights, using the analysis of scientific articles, specific reports and newsletters from the official UN website

scholarly journals Theoretical bases of state antimonopoly policy: questions of philosophical and economic doctrines

2019 ◽  
pp. 6-17
Author(s):  
A. N. Golomolzin
Keyword(s):  
Supply And Demand ◽  
State Regulation ◽  
The State ◽  
Fundamental Rights ◽  
Scientific Validity ◽  
Potential Threat ◽  
Digital Platforms ◽  
Targeted Marketing ◽  
Fundamental Rights And Freedoms ◽  
The Individual

The article deals with the issues of scientific validity of the state Antimonopoly policy from the standpoint of philosophy and economic theory of competition. The necessity of harmonious use in the formation and implementation of such a policy of values and philosophy of "living" life, fundamental economic doctrines, new trends and ideas of state regulation of the economy, including the use of legal mechanisms.The author proceeds from the fact that the division of labor is the essence of society. Awareness of this fact makes it possible to overcome contradictions in the interests of the individual and society. It is noted that in the modern industrial world digital transformation blurs the boundaries between international, wholesale and retail markets, online and offline trade. Building a business on the basis of digital platforms, intellectual property rights pools, targeted marketing technologies on the one hand, and the transformation of consumer psychology on the other, create fundamentally new conditions for balancing supply and demand. The digital economy creates qualitatively new opportunities for economic development, but should not turn into a "digital hand of the market". States and companies are able to move beyond "data processing" to "reality processing", which poses a potential threat to the fundamental rights and freedoms of citizens.In this regard, the role of scientific validity of the state Antimonopoly policy in the formation and implementation of errors, which can be too expensive for society, is significantly increasing.

Constitutional law of foreign countries

2021 ◽  
Author(s):  
Marat Baglay
Keyword(s):  
Great Britain ◽  
Constitutional Law ◽  
Legal Status ◽  
The State ◽  
Comprehensive Understanding ◽  
Law Schools ◽  
Foreign Countries ◽  
The Usa ◽  
Basic Concepts ◽  
The Individual

The fifth, significantly revised edition of the textbook highlights the basic concepts and institutions of foreign constitutional law, reveals its subject, system, sources. The issues of the legal status of the individual, forms of the state, local self-government, etc. are comprehensively analyzed. In the interests of a more in-depth and integral, comprehensive understanding of the state system of the leading countries, the textbook includes chapters on the USA, Great Britain, France, Germany, Italy, Spain, the Nordic countries, Japan, China, India, the Arab states, the EAEU countries, Uzbekistan. Special chapters contain regional reviews of the main constitutional and legal institutions. For students, postgraduates and teachers of law schools and faculties.

Sign in / Sign up

Export Citation Format

Share Document