scholarly journals A European convergence towards a stare decisis model?

2015 ◽  
pp. 173 ◽  
Author(s):  
Stefano Civitarese
Keyword(s):  
Rule Of Law ◽  
Deep Understanding ◽  
The European Union ◽  
Stare Decisis ◽  
The Rule Of Law ◽  
Law System ◽  
Legal Space ◽  
The One ◽  
The Relationship

The article revolves around the doctrine of precedent within the so-called European legal space, wondering whether and to what extent we can speak of a convergence towards a stare decisis model boosted by the harmonizing role of the Court of Justice of the European Union. The article argues that although there are still some differences between civil law and common law legal systems they regard more the style of reasoning and the deep understanding of the relationship between the present decision of a court and past judicial decisions than the very existence of the constraints of the latter upon the former. The article concludes that a sort of mechanism of stare decisis has in fact been created, even though, on the one hand, uncertainty remains as to the way in which the binding force of a precedent concretely operates in the system, and on the other hand, this mechanism relates exclusively to the relationships between past and future decisions of higher courts (horizontal effect). This change, far from being a shift towards a truly judge-made law system or a consequence of the final abandonment of the dictates of the rule of law, enhances legal certainty contributing to the fundamental requirement of stability of law as a feature of the ideal of the rule of law.

scholarly journals CORRUPTION, CAPITAL ABUNDANCE AND ECONOMIC DEVELOPMENT: EVIDENCE FROM THE EUROPEAN UNION COUNTRIES

2016 ◽  
Vol 10 (2) ◽  
Author(s):  
Vlatka Bilas ◽  
Mile Bošnjak ◽  
Sanja Franc
Keyword(s):  
European Union ◽  
Economic Development ◽  
Law Enforcement ◽  
Rule Of Law ◽  
Explanatory Power ◽  
The European Union ◽  
The Rule Of Law ◽  
European Union Countries ◽  
The Relationship

The aim of this paper is to establish and clarify the relationship between corruption level and development among European Union countries. Out of the estimated model in this paper one can conclude that the level of corruption can explain capital abundance differences among European Union countries. Also, explanatory power of corruption is higher in explaining economic development than in explaining capital abundance, meaning stronger relationship between corruption level and economic development than between corruption level and capital abundance. There is no doubt that reducing corruption would be beneficial for all countries. Since corruption is a wrongdoing, the rule of law enforcement is of utmost importance. However, root causes of corruption, namely the institutional and social environment: recruiting civil servants on a merit basis, salaries in public sector competitive to the ones in private sector, the role of international institutions in the fight against corruption, and some other corruption characteristics are very important to analyze in order to find effective ways to fight corruption. Further research should go into this direction.

scholarly journals ПОКРЕТАЊЕ ПОСТУПКА НОРМАТИВНЕ КОНТРОЛЕ ПРАВА У РЕПУБЛИЦИ СРБИЈИ

TEME ◽  
2019 ◽  
pp. 1419
Author(s):  
Bálint Pásztor
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Democratic Culture ◽  
Advantages And Disadvantages ◽  
Institutional Values ◽  
The Law ◽  
The Republic ◽  
The One

The author of the article analyzes the specificities of the normative control of the law, i.e. the procedure of assessing the constitutionality and legality of the law in the Republic of Serbia, with the aim of detecting historical and legal preconditions of the effective functioning of the rule of law. The historical perspective of the development of the constitutional judiciary in the Socialist Federal Republic of Yugoslavia and the Republic of Serbia, as well as the analysis of the experiences of various systems of control of constitutionality and legality, open the contextual, scientific-historical and pragmatic dimensions of understanding. The specificity of the system of normative control is reflected in its triplicity, meaning that three institutes are known that characterize different procedural possibilities (to initiate the process of assessing the constitutionality and legality of general acts). The paper is written in order to point out the dichotomy of the proposal and initiative of the procedure of the assessment of constitutionality and legality, as well as the advantages and disadvantages of the ex officio procedure. Furthermore, the author wanted to point out the essential and procedural differences between the proposal, the initiative and the constitutional complaint, especially analyzing the purpose of retaining the institute of the initiative in the light of the existence of the constitutional complaint and the fact that the initiative does not imply the automation of the initiation of proceedings. The dilemma that the article opens concerns the possibility that in the case of abolishing the initiative as an institution accessible to all, is it possible to preserve the democratic culture and the participation of citizens, furthermore is it possible to abolish the fundamental institutional values and freedoms of a legal state and the rule of law? The paper opens other issues of importance for the establishment of an effective constitutional architecture that concern: the width of the circle of authorized proposers of normative control before the Constitutional Court; the dual role of the constitutional judiciary: on the one hand protection of the Constitution, constitutionality and legality, on the other hand effective protection of human and minority rights and freedoms.

scholarly journals Austrian Constitution - general aspects

2018 ◽  
pp. 75-83
Author(s):  
OLGA-ANDREEA URDA
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
The European Union ◽  
The Rule Of Law ◽  
Fundamental Law ◽  
General Aspects ◽  
The Comparative Study ◽  
Point Of Reference

The present article aims at presenting the Austrian fundamental law with the highlighting of some essential aspects regarding the exercise of the legislative, executive and judicial powers, the institutional particularities and, last but not least, the evolution of the regulation that was generated generated by the state's accession to the European Union. Constitutional control is another aspect that we have focused into the study, considering the important role of the Constitutional Court in the rule of law. The conducted analysis has significant valences, especially in the context in which it can signify a point of reference in the comparative study of constitutional regulations

scholarly journals Pozycja i rola Komisji Europejskiej w procedurze ochrony budżetu UE w przypadku uogólnionych braków w zakresie praworządności w państwach członkowskich

2021 ◽  
pp. 145-156
Author(s):  
Karol Piwoński
Keyword(s):  
European Commission ◽  
Rule Of Law ◽  
Comparative Method ◽  
Point Of View ◽  
New Paradigm ◽  
The Rule Of Law ◽  
Wide Range ◽  
The One ◽  
The Eu

The aim of this article is to analyse the position and role of the European Commission in the procedure provided in the regulation on a general regime of conditionality for the protection of the European Union’s budget. For this purpose the scheme of this procedure was analysed, by interpreting the relevant regulations using the dogmatic method and considering opinions of the EU institutions and views of the scholars. A comparative method has also been applied. The new position of the Commission in the procedure for protection of the EU budget has been compared with the position it plays in the existing instruments. The analysis made from the point of view of the position of individual institutions in the new procedure, although it does not allow predicting how they will be implemented. The conducted analysis demonstrates that the European Commission – an institution of Community character – has gained wide competences, and in applying them it has been given a wide range of discretion. On the one hand, the introduced regulations exemplify a new paradigm in creating mechanisms for protection of the rule of law. On the other hand, they raise doubts as to their compliance with EU law. However, they undoubtedly constitute a decisive step towards increasing the effectiveness of the EU's instruments for the rule of law protection.

Weaving a Tangled Web:Hapeand the Obfuscation of Canadian Reception Law

2008 ◽  
Vol 45 ◽  
pp. 55-96 ◽  
Author(s):  
John H. Currie
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Potential Role ◽  
Supreme Court Of Canada ◽  
Customary International Law ◽  
The Rule Of Law ◽  
Legal Obligations ◽  
Canadian Law ◽  
The Relationship

SummaryThe majority Supreme Court of Canada judgment inHape— a case concerning extraterritorial applicability of theCanadian Charter of Rights and Freedoms— is premised on three aspects of the relationship between international and Canadian law: (1) the interaction of customary international law and Canadian common law; (2) the role of Canada’s international legal obligations inCharterinterpretation; and (3) the potential role of customary international law as a source of unwritten principles of the Canadian Constitution. This article reviews pre-existing law in all three of these areas and analyzes a number of innovations apparently introduced thereto, with little or no explanation, by the majority inHape. It concludes thatHapeseriously exacerbates an already uncertain relationship between international and Canadian law, with fundamental consequences for the rule of law in Canada.

scholarly journals Strengthening the founding values of the EU: The potential role of the Fundamental Rights Agency

European View ◽  
2019 ◽  
Vol 18 (1) ◽  
pp. 97-104
Author(s):  
Konstantinos Margaritis
Keyword(s):  
Rule Of Law ◽  
Potential Role ◽  
Maastricht Treaty ◽  
Fundamental Rights ◽  
Member States ◽  
The Rule Of Law ◽  
Political Consequences ◽  
The One ◽  
The Eu

The rule of law is one of the founding values of the EU, as indicated in Article 2 TEU. This provision recognises that the rule of law is a core value, inherent to liberal democracy, and one which characterised the Union and its member states long before the formal establishment of the EU by the Maastricht Treaty. However, several member states, most notably Poland and Hungary, seem to have placed this value in jeopardy, leading EU institutions to disagree on how to combat this problem and its political consequences. The aim of this article is to propose a solution that involves a rather neglected, yet certainly competent actor, the Fundamental Rights Agency. The outcome would be twofold: on the one hand, the rule of law would be vitally strengthened; on the other, the role of the Agency would be fortified in line with its scope.

‘Belief’ in the Rule of Law and the Hindu Nation and the Rule of Law

2019 ◽  
pp. 353-372 ◽  
Author(s):  
Ratna Kapur
Keyword(s):  
Gender Equality ◽  
Rule Of Law ◽  
Religious Freedom ◽  
The Rule Of Law ◽  
Indian Nation ◽  
Indian State ◽  
And Gender ◽  
Role Of Religion ◽  
The Relationship

Ratna Kapur illustrates how the Indian judiciary, through mobilizing a politics of ‘belief,’ has endorsed the identity of the Indian state as a Hindu nation through the discourse of rights and has underscored such practice through the constructed opposition between Islam and gender equality in the advocacy of the Hindu Right. The article analyses the role of religion in the constitutional discourse of secularism in India and how this has been used as a technique to establish and reinforce Hindu majoritarianism. The article focuses on the relationship between secularism, equality, and religion in law, which is pivotal to the Hindu Right’s project of constructing the Indian Nation as Hindu. Kapur notes that the judiciary has played a central role in legitimizing the Hindutva project, and that this project has gained traction in the legal arena to reshape the meaning of equality, gender equality, and religious freedom.

The Problem with Normality: Taking Exception to “Permanent Emergency”

2006 ◽  
Vol 31 (2) ◽  
pp. 191-213 ◽  
Author(s):  
Mark Neocleous
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
War On Terror ◽  
September 11 ◽  
The Rule Of Law ◽  
Emergency Powers ◽  
Historical Developments ◽  
The Relationship ◽  
Emergency Measures

This article challenges the increasingly prevalent idea that since September 11, 2001, we have moved into a state of permanent emergency and an abandonment of the rule of law. The article questions this idea, showing that historical developments in the twentieth century have actually placed emergency powers at the heart of the rule of law as a means of administering capitalist modernity. This suggests we need to rethink our understanding of the role of emergency measures in the “war on terror” and, more generally, to reconsider the relationship between the rule of law and violence.

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).

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