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.

ASEAN and Its Problematic Treaty-Making Practice: Can International Organizations Conclude Treaties “on Behalf of” Their Member States?

2014 ◽  
Vol 4 (2) ◽  
pp. 391-419 ◽  
Author(s):  
Zhida CHEN
Keyword(s):  
International Law ◽  
International Organizations ◽  
Southeast Asian ◽  
The Other ◽  
Member States ◽  
The Real ◽  
Asean Member ◽  
Real Issue ◽  
The Status

The Association of Southeast Asian Nations (ASEAN) has, on various occasions, concluded treaties on behalf of its Member States. This raises some interesting questions: is ASEAN entitled to enter into treaties on behalf of its Member States; and if so, what should be the status of ASEAN and its Member States vis-à-vis the other party to the treaty? The issue is not one of whether the ASEAN Member States have consented to such a practice—it must be assumed that they have. Instead, the real issue is whether such treaty-making practice can and should be valid under international law, even if the Member States have consented for ASEAN to conclude these treaties on their behalf. This paper will argue that, under international law, ASEAN is entitled to conclude treaties on behalf of its Member States.

On the Unwritten Constitution

1974 ◽  
Vol 9 (4) ◽  
pp. 463-466 ◽  
Author(s):  
Lord Diplock
Keyword(s):  
Human Rights ◽  
Subject Matter ◽  
Constitutional Law ◽  
The Real ◽  
Real Issue ◽  
Basic Law ◽  
The Status ◽  
The Subject ◽  
The Law ◽  
Personal Reflections

The subject matter of our discussion today is entitled “Written or Unwritten Constitutions”—but the real issue before us is the supremacy of the legislature. A written constitution is normally thought and spoken of as a curb upon the supremacy of the legislature; and a constitution under which the legislature is supreme, is normally called “unwritten”. I shall not presume to advise you in Israel as to whether you should give yourselves a written constitution: all I can venture to do is to give you some personal reflections from my own experience, as one who has lived his life and administered the law under an unwritten constitution.So far as constitutional law deals with the structure of government—how laws are to be made, how they are to be put into effect, how disputes as to rights and obligations under the law are to be decided—it may or may not, in a unicameral legislature, be advisable to require that amendments of what I may call the structure of the constitution should be by a particular majority. Opinions on this may be divided, and I am not going to take any stand. What I should like to give some reflections upon is the proposal that there should be a “basic law” setting out the fundamental human rights and liberties, and what the status of that law should be.

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.

Striking a Balance between Free Association and Regulating Membership of a ‘Community’: Exploring s 235 of the Constitution of South Africa

2021 ◽  
Vol 28 (1) ◽  
pp. 91-116
Author(s):  
Bertus De Villiers
Keyword(s):  
South Africa ◽  
International Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Free Association ◽  
Self Determination ◽  
Freedom Of Association ◽  
Essential Question ◽  
Universal Standard

Section 235 of the Constitution of South Africa contains a promise of potential self-determination of language and cultural communities. An essential question arising from this promise is how an individual’s freedom of association interacts with the ability of a community to determine its membership. This article reflects on this question with reference to standards developed in international law and practices in the constitutional law of selected case studies. Whereas international law sets a universal standard of free association, states have developed practices whereby the individual’s right to free association is recognised, but where there are also some measures allowed to ensure that an individual is indeed accepted by and part of the community. Any conflicts that arise are, generally speaking, subject to a form of judicial review.

scholarly journals PRIVATE INTERNATIONAL LAW IN BRAZIL: A BRIEF OVERVIEW

2018 ◽  
Vol 1 (1) ◽  
pp. 11-37
Author(s):  
Carmen Tiburcio
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Private International Law ◽  
The Status ◽  
Rules And Principles ◽  
The Subject

The paper is intended to provide an overview of Private International Law in Brazil. With this purpose, it presents in broad lines the subject matters of the discipline, undertaking, whenever possible, comparisons with the contours given to it in the United States. In sum, the text deals with the acquisition of Brazilian nationality, the status of aliens, the determination of the applicable legislation to legal relationships with international connections – which includes the exam of Brazilian connecting rules and principles of Private International Law – and the exercise of Brazilian jurisdiction.

scholarly journals PARADIGMS OF CONSTITUTIONAL REFORM

2015 ◽  
Vol 1 (5) ◽  
pp. 0-0
Author(s):  
Талия Хабриева ◽  
Taliya Khabriyeva
Keyword(s):  
Public Relations ◽  
Constitutional Law ◽  
Constitutional Reform ◽  
Political Systems ◽  
Basic Law ◽  
The Status ◽  
Detailed List ◽  
Fundamental Law ◽  
The One ◽  
Definition Of

The article deals with the theoretical aspects relating to reforms in the fundamental law of a State — Constitution. It is noted that the Constitution is a developing legal substance which is shaped by and dependent on the existing economic, political, social and even ideological situation; conservation of the basic law can cause both public tension, and also hamper the evolution of statehood. The author attends to the correlation of notions of “constitutional reform” and “change of the constitution”. Also analyzed are the approaches towards the definition of the term of constitutional reform which have been elaborated by the doctrine. It contains a detailed list of terminology which is used in the science of constitutional law and has a direct relevance to reformation of the constitution. Emphasis is made on the new trend in research in the science of constitutional law which reflects the two-sided approach — on the one hand, a factor of progress, and on the other hand, — may be viewed as a tool necessary to make public relations stable and dynamic. The article contains a list of model provisions for the present day constitution which potentially can be employed. It relates to the provisions of the constitution relating to the status of a person, also, economic, social and political systems, etc. Comparative law approach is applied to the contents of constitutional reforms of the XX and XXI centuries in various countries. It notes that a stable basic law of a country is a key symbol of a legal identity of a nation.

scholarly journals Validity of geophysical parameters in the mudflow cadastre of the south of Russia 

Vestnik MGSU ◽  
2019 ◽  
pp. 610-620 ◽  
Author(s):  
Koshkinbai N. Anakhayev
Keyword(s):  
Research Work ◽  
Geophysical Data ◽  
Primary Sources ◽  
The South ◽  
Physical Conditions ◽  
Site Investigations ◽  
The Status ◽  
European Part Of Russia ◽  
Definition Of

Introduction. When evaluating mudflow danger level and developing hydroengineering anti-mudflow measures, a great meaning is obtained by mudflow basin cadastres that are widely used as reference sources by water-economic project establishments, scientists, specialists of federal and local authorities. The cadastres influence the made decisions on development of the anti-mudflow measures and protective hydroengineering facilities, since the cadastres include basic dedicated data on mudflow basin locations, geophysical (geomorphometric, hydrological) characteristic and expected mudflow parameters. Materials and methods. The article uses known and proven methods of analysis of mudflow basin cadastres. The analytical methods are based on a comparative assessment of the presented results with basic geophysical data of primary sources (cadastres published earlier) and on-site investigations as well as compliance of the suggested empirical formulae on determination of mudflow carrying out volumes and indicators of territorial mudflow striking with mathematical and physical conditions of development of the real mudflow phenomena. Results. Critical analysis of the contents of the Cadastre of Mudflow Danger of the South of the European Part of Russia published in 2015 allows revealing multiple distortions and substitutions of basic geophysical data of mudflow basins. There is an inaccuracy (up to 3,000 to 4,000 % and even higher) of the empirical formulae used in the cadastre for determination of volumes of modflow carrying out. The analysis reveals a hydrogeographical error connected with unfounded substitution of the concept “river length” with the value of the “total length of the main course and all its inflows” that multiply overrates the calculated riverbed length and multiply underrates value of a riverbed bias. Also the study emphasizes unacceptability of definition of the mudflow danger territory by the principle “the water-collecting area of the mudflow course is totally mudflow-threatened" owing to which the absolutely safe natural landscapes are unreasonably declared mudflow-threatened territories. Conclusions. The stated analysis shows a discrepancy of the considered cadastre to the status of scientific and research work. In this connection, the cadastre cannot be recommended for use both in scientific researches and in practical ones. Recommendations on improvement of the mudflow basin cadastres are provided.

scholarly journals Kankinimo samprata tarptautinėje teisėje

Teisė ◽  
2009 ◽  
Vol 71 ◽  
pp. 7-24
Author(s):  
Romualdas Drakšas ◽  
Regina Valutytė
Keyword(s):  
International Law ◽  
Severe Pain ◽  
Criminal Responsibility ◽  
Definition Of ◽  
State Liability ◽  
Individual Criminal Responsibility

Straipsnyje nagrinėjama kankinimo samprata tarptautinėje teisėje: detalizuojami sudedamieji kankini­mo sąvokos elementai, atskleidžiamos jų turinio nustatymo problemos. Autoriai analizuoja, kas lėmė tarptautinėje teisėje vyraujančios kankinimo sąvokos, siejamos su tyčiniu specialaus subjekto veikimu ar neveikimu, kuriuo aukai sukeliamas stiprus fizinis ar psichinis skausmas ar kančia, nustatymą. Įvardijami kankinimo sampratos skirtumai, atsižvelgiant į tai, ar tarptautinės teisės nuostatomis reguliuojama in­dividuali asmens baudžiamoji ar valstybės, pažeidusios tarptautinius įsipareigojimus, atsakomybė. The article covers the analysis of the concept of torture in international law: it elaborates the elements of the definition of torture and deals with the problems of determination of their content. The authors analyze the factors that might have influenced the establishment of the definition of torture that prevails in international law and is associated with intentional conduct of a public officer causing severe pain or suffering, whether physical or mental. The article also identifies the differences in the concept of torture as a basis for individual criminal responsibility and state liability for infringement of international com­mitments.

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.

Sign in / Sign up

Export Citation Format

Share Document