scholarly journals The Rule of Law and the Extraordinary Situation

2021 ◽  
Vol 6 (1) ◽  
pp. 65-72
Author(s):  
András Karácsony ◽  
Szabolcs Nagypál
Keyword(s):  
Rule Of Law ◽  
Social Life ◽  
Legal Order ◽  
Carl Schmitt ◽  
State Of Exception ◽  
The European Union ◽  
Giorgio Agamben ◽  
The Rule Of Law ◽  
National Crisis ◽  
Political Decisions

The various legal theorists dealing with the operation and effect of law have mostly examined situations that can be described as occurring in the usual, regular, normal state of social life. Over the last half century, and particularly since the formation and later enlargement of the European Union, the requirement of the rule of law has emerged as a key topic. The test of the rule of law is as follows: it is necessary to examine in an abnormal situation or, as it were, in an extraordinary situation exactly how it is possible to take political decisions that are of fundamental importance to society while also guaranteeing that these decisions remain within the rule of law at all times.The aim of this study is to investigate how and by what constitutional mandate the Hungarian Government deviated from the normal constitutional situation in 2020. The “state of exception” theorised by Carl Schmitt and Giorgio Agamben means the suspension of the law. It is important to understand their views in order to see that the Hungarian situation in 2020 is utterly dissimilar to such a state of exception. In short, we need to distinguish a state of exception from an extraordinary situation, because the latter does not imply the suspension of law in general or, more specifically, the suspension of the rule of law, but that parliamentary and government decisions remain within it. The special legal order applied in an extraordinary situation is not in fact a suspension of democracy, still less of the rule of law. On the contrary, it actually falls within both: in a state of national crisis, this situation is democracy itself and the rule of law itself, and – accordingly – strict laws (both democratic and imposed within the rule of law), or rather laws of cardinal importance, make its conditions and its functioning possible and regulate it.

scholarly journals Combating the constitutional crisis in Poland – Can the European Union provide an effective remedy?

2021 ◽  
Author(s):  
Monika Kawczyńska
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Legal Order ◽  
Proper Solution ◽  
Preliminary Ruling ◽  
The European Union ◽  
The Rule Of Law ◽  
Effective Remedy ◽  
Fundamental Values ◽  
The Eu

AbstractRecent constitutional reforms in Poland have demonstrated a lack of respect for the rule of law and for the fundamental values which form the foundations of the EU legal order. The Polish authorities have substantially deviated from principles that the country has accepted as a part of the Copenhagen criteria. The aim of the article is to analyse the mechanisms and procedures applied by the EU institutions to address the systemic threats to the rule of law in Poland. The main focus of the assessment is on the effectiveness of the measure and its potential for a proper solution to the problem. The response provided by the EU demonstrate that there has been a shift from a political to judicial enforcement of values. The article argues that the remedies that were deemed to be the least suitable to address the systemic deficiencies in the rule of law – an infringement action and a preliminary ruling procedure – proved to be the most effective remedy to defend independence of the Polish judiciary. Unexpectedly, the most efficient institution to ensure the respect for values enshrined in Article 2 TEU in Poland proved to be the CJEU, providing extensive interpretation of Article 19 (1) TEU and Article 47 of the Charter. Nevertheless the values are still much more difficult to enforce than the law. While the most serious infringements have been reversed, this has not prevented the Polish authorities from further violating the rule of law.

Spanish Regulation of Biobanks

2015 ◽  
Vol 43 (4) ◽  
pp. 801-815
Author(s):  
Pilar Nicolás
Keyword(s):  
Rule Of Law ◽  
Legal Order ◽  
The European Union ◽  
Political Pluralism ◽  
The Rule Of Law ◽  
Parliamentary Government ◽  
Democratic State ◽  
The Government ◽  
Regulatory Powers ◽  
Constitutional Monarchy

Spain occupies an area of 504.645 km, and it has a population of 46.5 million people, out of which 4,538,503 are immigrants. Life expectancy is 82.5 years (85.5 for females and 79.5 for males). Its economy grew 1.4 % in 1014. Its current Constitution was enacted in 1978. It has been part of the European Union since 1986.Spain is a social and democratic state subject to the rule of law. Liberty, justice, equality, and political pluralism are the highest values of the legal order of the rule of law. Spain is a constitutional monarchy with a parliamentary government. The legislative power rests upon two chambers: the Congress and Senate. The government exercises the executive powers and the regulatory powers. There have been six presidents since 1978 from all parties, socialist, centrist, and conservative. The judicial power rests upon the courts and tribunals established by law.

THE BULGARIAN MODEL OF THE PROSECUTOR’S OFFICE AND PROSECUTOR GENERAL

2017 ◽  
Author(s):  
Venelin Krastev Terziev ◽  
◽  
Marin Petrov Georgiev ◽  
Stefаn Marinov Bankov ◽  
◽  
...  
Keyword(s):  
European Union ◽  
Member State ◽  
Rule Of Law ◽  
Legal Framework ◽  
Legal Order ◽  
The European Union ◽  
The Rule Of Law ◽  
Eu Countries ◽  
The Republic ◽  
Legal Procedures

The independence of the Prosecutor General of any Member State of the European Union is extremely important with a view to comply with the legal framework and the rule of law. It lays the foundations of trust in the judiciary and the fundaments of statehood, creates a sense of law and legal order. That is why it is highly important in the context of the present to outline the control of the activity of the Prosecutor General in the exercise of his powers, clearly emphasizing that the Bulgarian Prosecutor General is not out of control in his powers. The legal powers of the Prosecutor General of the Republic of Bulgaria are even more limited than the powers of analogous figures in the legal systems of other EU countries. The Prosecutor General exercises his powers only in exceptional cases and according to previously prescribed legal procedures.

Music and the State of Exception in Alfonso Cuarón’s Children of Men

2013 ◽  
pp. 287-309 ◽  
Author(s):  
Dale Chapman
Keyword(s):  
Digital Media ◽  
Rule Of Law ◽  
The State ◽  
State Of Exception ◽  
Bare Life ◽  
Giorgio Agamben ◽  
The Rule Of Law ◽  
Experience Of Time ◽  
Formal Tool ◽  
Alfonso Cuaron

This article appears in the Oxford Handbook of Sound and Image in Digital Media edited by Carol Vernallis, Amy Herzog, and John Richardson. In Homo Sacer: Sovereign Power and Bare Life, Giorgio Agamben provides an analysis of the “state of exception,” that situation in which the sovereign, in response to crisis, suspends the efficacy of the rule of law. This juridical move has ontological implications, for it also suspends our everyday experience of time. Music, which can emulate the concentrated temporality of the state of exception, offers itself as a powerful formal tool for its cinematic realization. In his 2006 setting of the P.D. James novel Children of Men, Alfonso Cuarón conjures a future dystopia that extrapolates this complicated political terrain. Drawing upon the complex diegetic and non-diegetic soundscape of the film, this discussion outlines the means through which music and sound intensify the filmic depiction of the state of exception.

scholarly journals Carl Schmitt Revisited by the United States and the Terrorist

2015 ◽  
pp. 69-78
Author(s):  
Karolina Mendecka
Keyword(s):  
United States ◽  
Rule Of Law ◽  
The United States ◽  
Mirror Image ◽  
Carl Schmitt ◽  
State Of Exception ◽  
Sovereign State ◽  
The Rule Of Law ◽  
International Regulations ◽  
The Usa

In the article “Carl Schmitt Revisited by the United States and the Terrorist” it is shown that Carl Schmitt’s morals, standards and views can be noticed in the United States policy in the context of so-called “war on terror”. According to the article, Islamic terrorists are a mirror image of Schmittan revolutionary partisan. It is discussed how terrorists are, as a problem, treated by the USA, which in author’s opinion displays many Schmittan features. Schmitt is one of the few who claim that the sovereign state is above the legal order and can set boundaries. It is therefore shown that the USA seem to have rushed into Schmittan “state of exception”, where norms are suspended in order to achieve security, resembling the thinking of the G.W. Bush administration. It is illustrated how the USA seem to be following Schmitt’s ideology, especially by making exceptions to international rules, but also putting the terrorist outside of the scope of international regulations. Lastly, author tries to answer the question if it is justified to follow Schmitt and obey to the rule of law.

scholarly journals Die Renaissance des autoritären Liberalismus?

2012 ◽  
Vol 42 (168) ◽  
Author(s):  
Lukas Oberndorfer
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Analytical Framework ◽  
Carl Schmitt ◽  
Economic Governance ◽  
The European Union ◽  
The Rule Of Law ◽  
Competition State ◽  
Fiscal Compact ◽  
The Status

The unfolding crisis of capitalism – the most severe since the 1930s – is taking the shine off those neoliberal projects that were implemented in the context of the European Union. As a result, the present, competition-state mode of integration, which is based on consensus, is sliding into an ever deeper crisis of hegemony. To maintain the status quo, coercion is, if necessary, substituted for the disappearing consensus. That the central EU crisis initiatives (Economic Governance and the Fiscal Compact) are eroding formal democracy and the rule of law in particular heralds the beginning of an authoritarian turn in Europe. Drawing on the theory of Nicos Poulantzas this turn can be described as authoritarian competitive statism. In a – to a certain extent – comparable crisis of hegemony in the 1930s Carl Schmitt and German neoliberal intellectuals developed a strategy of dominance which can be described as authoritarian liberalism. In comparing this discourse with the present crisis mode of the European Union I try to sensitize the analytical framework for a counter-hegemonic strategy.

scholarly journals International and European Norms on the Rule of Law from the Perspective of the Republic of Serbia

2021 ◽  
Vol 2 (1) ◽  
pp. 229-244
Author(s):  
Bojan Tubić
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Legal Order ◽  
Common Elements ◽  
The European Union ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Administrative Practice ◽  
The Republic ◽  
Definition Of

This paper examines international and European norms concerning the principle of the rule of law and its implications for the Republic of Serbia’s legal order. There is no universally accepted definition of the rule of law, but some common elements can be found in international legislative acts and jurisprudence. The European Union and Council of Europe have substantial legislation on this issue; with their courts’ jurisprudence, they have a significant influence on their Member States’ comprehension of the rule of law principle. The Republic of Serbia has embraced the principle in its Constitution and developed it in its legislation. It will also accept and include European interpretations of the rule of law in its legislation and judicial and administrative practice by joining the European Union.

A Hard Law Approach to States Systemic Violations of Article 2 of the Treaty of the European Union

2020 ◽  
pp. 363-380 ◽  
Author(s):  
Miguel Poiares Maduro ◽  
Benedita Menezes Queiroz
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
National Level ◽  
Legal Order ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
The Eu

The rule of law is under threat in the European Union. Systemic violations of fundamental rights are affecting the rule of law, democracy, and judicial independence in some Member States and consequently the EU legal order. The level of interdependence between the Member States and the EU legal order is such that systemic violations of those principles in the Member States end up impacting on EU compliance with the same principles. Article 7 TEU did not prove, however, to be the most effective tool to face these problems due to its political nature. The EU’s intervention in the form of infringement actions to safeguard the rule of law at the national level may be a suitable action to address some these serious violations of fundamental rights. Despite of the earlier hesitation to take a bolder action in this regard, the EU Commission, after the Court of Justice’s recent decisions in Associação Sindical dos Juízes Portuguese and LM, brought infringement proceedings against Poland challenging this country reforms that put into question the independence of its judiciary. The Court established its power of judicial review over the rule of law in the Member States in C-619/18 Commission v Poland. Ultimately, this decision highlighted the role of EU law in safeguarding the rule of law in its Member States, but more importantly in safeguarding the rule of law in the EU legal order as a whole.

Protecting the Rule of Law in the EU Legal Order: A Constitutional Role for the Court of Justice

2020 ◽  
Vol 16 (1) ◽  
pp. 8-32
Author(s):  
Peter Van Elsuwege ◽  
Femke Gremmelprez
Keyword(s):  
Rule Of Law ◽  
Security Policy ◽  
Case Law ◽  
Legal Order ◽  
The European Union ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
Foreign And Security Policy ◽  
Scope Of Application ◽  
The Eu

The rule of law as one of the core constitutional values of the EU legal order – The rule of law in the case law of the Court of Justice of the European Union – Jurisdiction of the Court on the basis of a combined reading of Articles 2 and 19 TEU – Protecting the rule of law in the Common Foreign and Security Policy – Protecting the rule of law in the member states in order to safeguard the structure and functioning of the EU legal order – Limits to the scope of application of EU law

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