scholarly journals Kako predavati ustavno pravo u dvadeset prvom veku

2021 ◽  
pp. 32-47
Author(s):  
Lidija R. Basta Fleiner
Keyword(s):  
Constitutional Law ◽  
Multidisciplinary Approach ◽  
Constitutional Democracy ◽  
Constituent Power ◽  
Collective Rights ◽  
Liberal Constitutionalism ◽  
The Difference ◽  
Constitution Building ◽  
Constitutional Pluralism ◽  
Dimensions Of Teaching

Constitutionalist discourse has undergone a fundamental transformation at the beginning of the 21st century. New, major constitutional topics have been introduced, inspired by constitutional pluralism and constitutionalism beyond the nation-state. The systemic challenges to modern liberal constitutionalism have prompted a new understanding not only of the constitution, but also of constitutional law as a university subject. The crisis of key parameters of constitutional democracy commands a thorough re-examination of both the cognitive and performative dimensions of teaching constitutional law. For that reason, this paper seeks answers to the question what and how to teach in the epoch of postmodern constitutionalism. The paper advocates the viewpoint that the professor should not only describe phenomena, but also explain the essence of the problem: for example, the republican argument of classical constitutionalism’s irrelevance, or the difference between normality and pathology of constitutional systems in the context of democratic transition, or indeed the trans-nationalization of the constitution and the postmodern paradigm of constitution-building without constituent power. The need for interdisciplinary and multidisciplinary approach, including co-teaching is demonstrated through the topics of monistic and pluralistic federalism, and constitutional guaranties of individual and/or collective rights. The paper concludes that teaching of constitutional law should be guided by global doubt, as the hermeneutics of truth and ethico-political consideration.

The Politics of Individual and Group Difference in Canadian Jurisprudence

1994 ◽  
Vol 27 (1) ◽  
pp. 3-21 ◽  
Author(s):  
Avigail Eisenberg
Keyword(s):  
Collective Rights ◽  
The Difference ◽  
The Individual ◽  
Group Interests

AbstractConstitutional commentators who interpret conflicts between individuals and communities in terms of a struggle between individual and collective rights do not accurately capture the jurisprudence developed in the courts regarding such conflicts. Such conflicts are more clearly analyzed when they are framed in terms of identity-related differences. The difference perspective has three advantages over the “individual versus collective rights” perspective. First, the difference perspective accurately retrieves the courts' reasoning by framing it in terms of the values actually at stake. Second, it avoids the traditional dichotomy between individual and collective rights. Third, it provides a means to compare claims of individuals and groups without reducing group interests to individual interests.

Constitutional Democracy and Electoral Commissions: A Reflection from Asia

2021 ◽  
pp. 1-9
Author(s):  
Rosalind Dixon ◽  
Mark Tushnet
Keyword(s):  
Sri Lanka ◽  
Constitutional Law ◽  
Global South ◽  
Constitutional Democracy ◽  
Comparative Constitutional Law

This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.

icct Report, December 2016: Foreign Terrorist Fighters

2016 ◽  
Vol 27 (1-2) ◽  
pp. 148-186
Author(s):  
Tanya Mehra
Keyword(s):  
Human Rights ◽  
Multidisciplinary Approach ◽  
Local Level ◽  
Terrorist Attacks ◽  
Potential Threat ◽  
Policy Responses ◽  
Current Trends ◽  
The Difference ◽  
Rehabilitative Measures

This article is based on a paper which was developed for the Global Counterterrorism Forum’s Foreign Terrorist Fighters (ftf) Working Group. It takes stock of the current trends and dynamics related to the ftf phenomenon and identifies some of the gaps that still need to be addressed. The distinction between home-grown terrorists and (returning) ftfs is fading, the difference between isil/Da’esh inspired or directed terrorist attacks is becoming more fluid and the nexus between terrorism and crime is more prominent, which clearly indicates that terrorism can manifest itself in many different ways. The involvement of returning ftfs in some terrorist attacks is a stark reminder of the potential threat returning ftfs pose. The data also indicates a demographic change with a more prominent role of female ftfs and children being recruited and used in hostilities or involved in terrorist attacks. The current trends underline the need for a comprehensive, tailored and multidisciplinary approach including the involvement of stakeholders at the local level to adequately address the evolving aspects of the ftf phenomenon. This paper provides a short overview of policy responses which can broadly be grouped into preventive, criminal, administrative and rehabilitative measures. The ftf related responses could have several human rights implications and states are encouraged to develop a comprehensive approach to address the ftf phenomenon in full respect of human rights.

5 How Universal is Comparative Constitutional Law?

2014 ◽  
Author(s):  
Hirschl Ran
Keyword(s):  
Constitutional Law ◽  
Global South ◽  
Common Elements ◽  
Third Way ◽  
Body Of Knowledge ◽  
European Court ◽  
Comparative Constitutional Law ◽  
Unique Nature ◽  
Constitutional System ◽  
Constitutional Pluralism

This chapter addresses issues central to comparative constitutional law’s epistemological and methodological domain. First, the possibility of comparisons of constitutional law and institutions across time and space, notably between “universalists,” who emphasize common elements of legal (and constitutional) systems across time and place, and “particularists” who emphasize the unique nature of any given legal (and constitutional) system. “Third way” alternatives such as constitutional pluralism are also examined. Second, the “global south” critique in comparative constitutional law, or how truly “comparative,” universal, or generalizable are the lessons of a body of knowledge that draws almost exclusively on a small—not necessarily representative—set of frequently studied jurisdictions and court rulings to advance what is portrayed as generic and universally applicable prescriptions. The global south critique poses major challenges to contemporary comparative constitutional inquiry but has its own analytical challenges. Examples include South Africa, India, and the European Court of Human Rights.

scholarly journals Constitutionalism and populism: national political integration and global legal integration

2019 ◽  
Vol 12 (1) ◽  
pp. 1-32
Author(s):  
Chris Thornhill
Keyword(s):  
Sociological Theory ◽  
Popular Sovereignty ◽  
Theoretical Research ◽  
Constitutional Theory ◽  
Constitutional Democracy ◽  
Constituent Power ◽  
Legal Norms ◽  
Normative Models ◽  
Normative Foundations ◽  
Constitutional Analysis

AbstractThis article adds to the emergent body of constitutional-theoretical research on populist government. It argues that constitutional analysis has specific importance in explaining the hostility to global legal norms that characterizes many populist or neo-nationalist polities. However, it argues that more classical perspectives in constitutional theory have not provided adequate explanations for this phenomenon. This is because constitutionalism itself misunderstands the sociological foundations of constitutional democracy and it promotes normative models of democracy, based in theories of popular sovereignty and constituent power, which create a legitimational space in which populism can flourish. In contrast, this article sets out a historical-sociological account of national democracy, explaining how democracy has been formed through processes of global norm construction. As a result, the basic subjects imputed to democracy by both constitutionalism and populism only became real on global normative foundations. In advancing these claims, this article presents a global-sociological critique of populism, explaining that populism evolves where the realities of democratic formation enter conflict with the norms of constitutional theory. In so doing, it offers a sociological theory of constitutional democracy that might help to avert democratic self-subversion.

scholarly journals IN RELATION TO CONCEPT OF COLLECTIVE HUMAN RIGHTS

2020 ◽  
Vol 36 (4) ◽  
pp. 46-52
Author(s):  
D.A. Gadzhieva ◽  
Keyword(s):  
Human Rights ◽  
Individual Rights ◽  
Group Rights ◽  
Collective Rights ◽  
The Difference ◽  
Definition Of ◽  
The Individual ◽  
Legal Entities

This article is devoted to the analysis of some of the issues related to the definition of the content of the concept of collective human rights. The author examines the issues related to the definition of methods of exercising and the range of subjects of collective rights, some problems concerning their relations with individual rights, as well as whether the term “collective rights of the individual” is a proper one to be used in law science. The author analyzes the difference between the concepts of “collective” and group” rights, and also substantiates the reasons why these categories of human rights cannot be equated or why group rights cannot be singled out into an independent category of individual rights. In addition, the author substantiates the impossibility of possessing of collective rights by legal entities.

Populism as a constitutional project

2019 ◽  
Vol 17 (2) ◽  
pp. 536-553 ◽  
Author(s):  
Paul Blokker
Keyword(s):  
Mutual Exclusion ◽  
Public Law ◽  
Right Wing ◽  
The European Union ◽  
Constitutional Democracy ◽  
East Central Europe ◽  
Four Dimensions ◽  
Structural Problems ◽  
Liberal Constitutionalism ◽  
Definition Of

Abstract The engagement of conservative, populist governments with constitutional reform and constitution-making is perceived as a significant threat to the rule of law and democracy within the European Union. Constitutionalists often assume a relation of mutual exclusion between populism and constitutionalism. In contrast, I argue that while populism ought to be understood as a rejection of liberal constitutionalism, it equally constitutes a competing political force regarding the definition of constitutional democracy. The article first discusses populist constitutionalism in the context of the two, main modern constitutional traditions: the modernist and the revolutionary ones. Second, I discuss the populist critique of liberal constitutionalism, with a central focus on the recent cases of right-wing populism in power in East-Central Europe. Four dimensions are prominent: (i) popular sovereignty as the key justificatory claim of populism; (ii) majority rule as the main populist mode of government; (iii) instrumentalism as the legal–practical approach of populists; and (iv) legal resentment as the populists’ main attitude toward public law. In conclusion, I argue that while the populist critique of liberal constitutionalism provides significant insights into structural problems of liberal democracy, populist constitutionalism ultimately fails to live up to its own democratic promise.

Multiculturalism in Canada: Individual vs. Collective Rights  

2016 ◽  
Author(s):  
Meaghan Dalby
Keyword(s):  
Hate Crimes ◽  
Individual Rights ◽  
Group Rights ◽  
Collective Rights ◽  
Controversial Topic ◽  
The Difference ◽  
Canadian Culture ◽  
The Many ◽  
The Individual

This essay will look at the controversial topic of multiculturalism in Canada.  It will explore aspects of individual rights compared with group rights.  This is a very important topic to Canadians, as they claim to live in a multicultural nation where many different groups co‐exist.  In order to answer the many questions which arise with this topic, it is first necessary to define multiculturalism as it has developed throughout the nation.  With this background in mind, it will be easier to understand where individual rights stemmed from.  Did they evolve on their own, or do they stem from group rights and traditions which were already in existence? Does this make a difference when we compare the two?  As multiculturalism becomes more prominent in Canadian culture, and the rights of the group come to the forefront, where do individual rights stand?  Immigrants coming to Canada can expect that their cultural differences will be tolerated and respected, yet problems can arise if individual rights are infringed upon.  This essay will specifically look at the case study of Sharia Law infringing on women’s rights in Ontario, and Ernst Zundel who spread hate crimes against the Jews under the pretext of the individual right to free speech. Through these case studies, it will be determined whether Canadians prefer to have their individual rights protected, or respect their cultural and groups rights above all else.   The conclusion will express how Canadians feel about the difference between group and individual rights.

A ‘Minefield of Misreckonings’: Europe’s Constitutional Pluralism

2012 ◽  
Vol 14 ◽  
pp. 119-144
Author(s):  
Emilios Christodoulidis
Keyword(s):  
Market Economy ◽  
21St Century ◽  
Social Market Economy ◽  
European Level ◽  
Current Crisis ◽  
Constituent Power ◽  
The Social ◽  
To Come ◽  
Social Market ◽  
Constitutional Pluralism

AbstractThe paper is a critique of ‘constitutional pluralism’, as increasingly called upon to compensate for the social and democratic deficits of the European project, and of ‘constitutionalisation’ as compensating for the absence of any semblance of ‘constituent power’ at the European level. The substitution has been largely successful in redefining the terms of the debate. My interest in this paper, more specifically, is with constitutionalisation as a process of ‘becoming-constitutional’, the conditions of that process, and the criteria of ascription of constitutionality. My argument is that it involves a constitutive coupling with constitutional pluralism, such that allows even the current crisis to be portrayed as an ‘opportunity’ for Europe’s alleged ‘social market economy for the 21st century’ to ‘come out stronger’, its progress at no point obstructed or derailed by the peoples’ of Europe resistance to it.

Controlling the Most Dangerous Branchfrom Afar: Multilayered Counter-Terrorist Policies and the European Judiciary

2011 ◽  
Vol 2 (4) ◽  
pp. 505-522
Author(s):  
Christina Eckes
Keyword(s):  
Constitutional Law ◽  
Separation Of Powers ◽  
Judicial Power ◽  
Constituent Power ◽  
Member States ◽  
The Face ◽  
Catch 22 ◽  
Power Grasp ◽  
The Eu

Counter-terrorist sanctions against private individuals adopted by the EU and by the UN are an exceptionally illustrative example of the executive’s power grasp, where the dangers of counter-terrorist policies and of externalized rulemaking have mutually reinforced each other. This article (re-)considers the role of the judiciary in the face of extreme exercise of externalized executive powers, demonstrates that multilayered governance has extended the powers of courts, shows that the justified exercise of judicial power has led the EU institutions and the Member States into a self-inflicted catch-22, and makes an argument that the extended powers of the executive and of the judiciary should be contained and guided by a principled choice of the constituent power. Constitutional law should require the judiciary to take a substantive approach to multilayered governance that reflects the principle of separation of powers.

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