scholarly journals Minority Claims in Multicultural Societies: A comparative study of case law

2020 ◽  
Vol 15 (1) ◽  
Author(s):  
Enrico Arona
Keyword(s):  
Rule Of Law ◽  
Final Section ◽  
Case Law ◽  
Development Aid ◽  
Political Outcomes ◽  
Religious Accommodation ◽  
Level 3 ◽  
Private Matter ◽  
The Relationship

The whole essay consists of eight sections: 1) What is the best way for democracy to deal with multicultural clashes? Firstly, I explore Awad’s adaptation of Habermas’ model of deliberative democracy to the multicultural question. Then, I will try to reject this kind of model, as it is presented by Awad. 2) Two egalitarian theses about justice in immigration will be showed: a) restrictions on immigration should be compensated by development aid; b) such material compensations would further equality of opportunity at a global level. 3) I explain some difficulties in the task of defining minorities the solution to which seems to require an appeal to the liberal value of equal respect, rather than a mere request for recognition of differences. 4) After answering to these questions: “Is religion a public or a private matter? What role can religion play when it comes to the emergence of a European solidarity?”, I will argue that the “Islam problem” could be an indicator of the disparity between liberal and illiberal strands of neo-European secularism. 5) As in 2009 the Swiss voted to ban all future construction of Islamic minarets in their country, this section looks closely at all the issues raised by the minarets ban, inside and outside the E.U. 6) Subsequently, I will analyse what values are at stake in the issues of religious accommodation, and what principles can the main parties – as well the citizens – involved employ in attempting to resolve them. 7) The final section challenges how the role of emotions could lead to suboptimal political outcomes for the parties involved. To a large extent emotions have been instrumental in determining outcomes in the recent and on-going struggle between Greece and Germany as regards to the terms of the Greek bailout. 8) In a brief excursus I reconstruct the relationship between “biopolitics” and liberalism: the aim is to propose the singular analogies with the ideas of “governance” and “Rule of Law” in the liberal tradition, casting a new light on the interpretation offered by Michel Foucault.

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 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.

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.

Institutions and entrepreneurship: the mediating role of corruption

2017 ◽  
Vol 13 (3) ◽  
pp. 262-282 ◽  
Author(s):  
Mohsen Mohammadi Khyareh
Keyword(s):  
Direct Effect ◽  
Rule Of Law ◽  
Institutional Quality ◽  
Test Theory ◽  
Entrepreneurial Activity ◽  
Content Type ◽  
Mediating Role ◽  
Mediation Hypothesis ◽  
The Relationship

Purpose The purpose of this paper is to examine the mediating role of corruption in the relationship between entrepreneurship and institutional quality in a sample of 90 countries from all around the world. Design/methodology/approach The data were collected from the Global Entrepreneurship Monitor, which developed a model where Corruption Perception Index as a proxy for corruption mediates the relationship between the variable rule of law as a proxy for institutional quality and opportunity entrepreneurship as a proxy for productive entrepreneurship. Correlation, Baron and Kenny approach (causal steps approach) and PROCESS Macro (normal test theory) developed by Hayes were used to find out the direct and indirect effects of institutional quality between corruption and entrepreneurship. Findings The bootstrap mediation results indicated that institutional quality was a significant predictor of corruption and corruption was a significant predictor of entrepreneurship. These findings support the mediation hypothesis. In addition, findings showed that there is a negative relation between corruption and productive entrepreneurship and a positive relation between institutional quality and productive entrepreneurship. Research limitations/implications The current study only considered the single proxy for institutional quality, i.e. rule of law; therefore, some other proxies for institutional quality such as government effectiveness and doing business can be used for future studies. Moreover, the proposed model does not control for the country differences like GDP or development stages of countries. Practical implications The findings of this study indicate that the total association between institutional quality and entrepreneurship is not only direct but also that rule of law contributes to levels of entrepreneurship through reduced levels of corruption. As a result, countries with higher levels of rule of law tended to experience corruption at lower levels, which in turn contributed to the emergence of increased levels of entrepreneurship. Furthermore, these results may be beneficial for organizations fighting against corruption, because entrepreneurial activity can be add to the group of economical drivers constrained by corruption. It is also beneficial for policy makers who focus on promoting entrepreneurship, since one way to increase entrepreneurial activity is to lower the existing corruption level. Originality/value The results indicated that the direct effect of institutional quality on the entrepreneurship remained significant when controlling for corruption, thus suggesting partial mediation. In other words, corruption only mediates part of the effect of institutional quality on entrepreneurship, that is, the intervention (institutional quality) has some residual direct effect even after the mediator (corruption) was introduced into the model.

Comparative Law and Economic Analysis of Law

2019 ◽  
pp. 825-851 ◽  
Author(s):  
Florian Faust
Keyword(s):  
Economic Analysis ◽  
Subject Matter ◽  
Law And Economics ◽  
Comparative Law ◽  
Case Law ◽  
The Other ◽  
Economic Analysis Of Law ◽  
The Subject ◽  
The Relationship

This chapter discusses the relationship between comparative law and economic analysis of law. After providing an overview of the characteristics of the economic analysis of law, it explains how one of the two disciplines can operate as an ancillary discipline to the other; this has been termed ‘Comparative Law and Economics’. The next section describes how comparative law and economic analysis of law can be brought together by making one discipline the subject matter of the other. It suggests that the role of economic analysis of law may be greater in case law systems than in codified systems and that this role may vary according to the subject of legislation. The section concludes with considerations on the role comparative law plays and should play in different contexts. Finally, it is argued that comparative law and economics should not be considered a discipline on its own.

scholarly journals The Changing Role of Nordic Courts

2021 ◽  
pp. 167-183
Author(s):  
Martin Sunnqvist
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Nordic Countries ◽  
Constitutional Rights ◽  
Supreme Courts ◽  
The Rule Of Law ◽  
Changing Role

AbstractThe Supreme Courts in all the Nordic countries reserve, and exercise, the power to set aside unconstitutional laws. In this way, they protect the rule of law and the human rights that are enshrined in their national constitutions. However, they go about this in different ways and treat different constitutional rights in ways distinct from one another. In this chapter, I discuss the development of the diversified judicial review of legislation in the Nordic countries. I also discuss the independence of their judiciaries in the light of the latest developments in Europe. Finally, I discuss the importance of developing standards for the interpretation of case law on these constitutional issues. Recent development brings with it two consequences for Nordic courts: the task of assessing the independence of judiciaries in other EU states, and questions about how the rule of law and the independence of the judiciary can be strengthened at home.

scholarly journals THE LEGAL PRACTITIONERS ACT: A CODE FOR REGULATING THE CONDUCT OF LAWYERS IN NIGERIA*

2013 ◽  
Vol 7 (3) ◽  
Author(s):  
Michael Chukwujindu Ogwezzy
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Professional Advice ◽  
The Public ◽  
Important Development ◽  
The Relationship

The legal practitioner is an expert whose services and expertise are required bymembers of the public. He is expected to maintain the highest standards of professionalconduct, etiquette and discipline in the discharge of his duties. In addressing himself as a legalpractitioner he represents to those who depend on his professional advice and other servicesthat he has the requisite acumen and expertise. For this reason, under the general common lawand the rule in Hedley Byrne & Co Ltd v. Heller & Partners Ltd, the lawyer can be held liablefor professional negligence. This paper will address “the Relationship between a Lawyer andthe Client” in the Context of the Legal Practitioners Act and Case Law as negligence inhandling of a client’s affairs may be of such a nature as to amount to professional misconductand if sued by the client will warrant prosecution and punishment of the Legal Practitioner.This is because it is the duty of a lawyer to devote his attention, energy and expertise to theservice of his client and, subject to any rule of law, to act in a manner consistent with the bestinterest of his client. He shall consult with his client in all questions of doubt; and keep theclient informed of the progress and any important development in the matter as may bereasonably necessary and warn his client against any particular risk which is likely to occur inthe course of the matter.

scholarly journals Constitutional Court of Bosnia and Herzegovina as Positive Legislator

2020 ◽  
Vol 10 (10) ◽  
Author(s):  
Vladimir M. Simović ◽  
Miodrag N. Simović
Keyword(s):  
Bosnia And Herzegovina ◽  
Rule Of Law ◽  
Case Law ◽  
Constitutional Court ◽  
State Institutions ◽  
Democratic State ◽  
Corrective Factor ◽  
Protection Of Human Rights ◽  
The Guardian

The Constitutional Court of Bosnia and Herzegovina was established on the basis of Article VI of the Constitution of Bosnia and Herzegovina as an independent guardian of the Constitution of Bosnia and Herzegovina and an institutional guarantor of the protection of human rights and fundamental freedoms established by this Constitution and instruments of Annex I to the Constitution. Assuming that it is not part of the legislative, executive and regular judicial power (as positioned by the Constitution of Bosnia and Herzegovina), the Constitutional Court acts as a separate, autonomous and independent authority and a corrective factor for the other three segments of government in Bosnia and Herzegovina. In this way, the Constitutional Court, as one of the key state institutions of Bosnia and Herzegovina, contributes to the promotion of democracy, rule of law and the affirmation of the rule of law, especially in the first years after its constitution when it was necessary to protect the foundations of a democratic state and resolve a number of questions that have in some ways remained vague in the Constitution of Bosnia and Herzegovina. The decisions of the Constitution are final and binding. In the end, the Constitutional Court has to seek and find out the ways for implementation of its decisions. If the legislator is not able to do that, the role of the guardian of the Constitution imposes on the Constitutional Court, even in the unpopular (realistically, rarely used) role of a positive legislator, to bring the procedure before the court to an end - by proclaiming a law on a temporary basis. The paper explains the concept of judicial activism, its limitations and self-limitations. Then, it points out some of the most impressive forms of its realization in the case-law of the Constitutional Court, taking into account mutual influences and differences. Special emphasis is placed on the constitutional framework of constitutional court activism of the Constitutional Court, which is also the basis for the interpretation of the Constitution of Bosnia and Herzegovina.

scholarly journals Can positive obligations of States serve as a remedy for human rights violations committed by juristic persons?

2018 ◽  
Vol 19 (1) ◽  
pp. 45-60
Author(s):  
Pavel Ondrejek
Keyword(s):  
Human Rights ◽  
Major Change ◽  
Case Law ◽  
The State ◽  
Fundamental Rights ◽  
Human Rights Violations ◽  
Legal Doctrine ◽  
Role Of The State ◽  
The Relationship

Abstract: Positive obligations of States to protect and implement human rights are considered a part of various effects of human rights in legislations. In this article, it is argued that a crucial problem arises from the inconsistent practice of addressing violations of human rights committed by juristic persons together with a lack of underlying general theory of liability for human rights violations committed by private entities. Without a major change in the legal doctrine and case-law, we will need to remain focused on the role of the State as a guarantor of human rights, rather than on the imposition of human rights obligations on private-law entities. In this article, it is argued that the nature of the relationship between a juristic person and the State is not the only relevant aspect, as we should also examine the activity of the juristic person in question.Keywords: Positive obligations of States. Juristic persons. State-juristic person nexus. Fundamental rights. Horizontal effect.Resumo: Obrigações estatais positivas de proteger e de implementar direitos humanos são parte dos vários efeitos dos direitos humanos nas legislações nacionais. Neste artigo, argumenta-se que um problema crucial decorre da prática de abordar violações de direitos humanos cometidas por pessoas jurídicas sem uma teoria geral da responsabilidade por violações de direitos humanos cometidas por entidades privadas. Sem uma mudança importante na doutrina e na jurisprudência será preciso permanecer olhando apenas para o papel do Estado como garantidor de direitos humanos. Neste artigo argumenta-se que a natureza da relação entre uma pessoa jurídica e o Estado não é o único aspecto relevante. É preciso examinar também a atividade da pessoa jurídica em questão.Palavras-chave: Obrigações positivas dos Estados. Pessoas jurídicas.

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