There are some problems in the implementation of rulings of the Constitutional Court. The legislator should make more efforts for implementing the concept of the provisions of the Constitution provided in the reasoning parts of rulings of the Constitutional Court. The Statute of the Seimas should be supplemented with provisions obligating structural sub-units of the Seimas to carry out permanent and systemic analysis of reasoning parts of rulings of the Constitutional (...) class='Hi'>Court. It would allow timely to prepare proposals how to amend still unchallenged legal regulation which, however, from the constitutional standpoint is doubtful. One should consider whether the norm of Item 4 of Paragraph 1 of Article 64 of the Law on the Constitutional Court, which allows one to challenge the compliance of a legal act with the Constitution on the grounds of the procedure for adoption regardless of any terms expired after the adoption of a law or other legal act, should be amended. It is to be presumed that the principles of legal certainty and legal security entrenched in the Constitution, as well as other constitutional provisions, imply a certain reasonable period of time within which the subjects provided for in the Constitution may apply to the Constitutional Court with a petition requesting to investigate whether a law or other legal act is not in conflict with the Constitution according to the procedure of their adoption. This period of time should not be a long one, for example, half a year or a year since the official publishing of the law; this term should be a prescriptive one–after it has finished, it would not be allowed to challenge the compliance of a law or other legal act with the Constitution according to the procedure of their adoption. In order to speed up the consideration of cases at the Constitutional Court, one would have to change the procedure of consideration of cases in this Court in essence. (shrink)

The article focuses on the new institute of the Lithuanian law of constitutional justice procedure – the dissenting opinion of a Constitutional Court justice as it is consolidated in the Law on the Constitutional Court. It is argued that the current statutory regulation is defective in essence because it creates preconditions for diminishing the quality of both the final act of the Constitutional Court (especially when the dissenting opinion is to be filed by (...) the judge rapporteur) and the dissenting opinion under preparation. The narrative is half-normative and half-behavioural: the institute is analysed in the context of established procedural practice of the Constitutional Court as an extremely collegial institution (also due to the statutory regulation), as well as in the context of the current condition of the public discourse in Lithuania. Namely, statutory regulation allows filing a dissenting opinion (which is not distinguished from the concurring opinion) within three working days after the public announcement of the decision (ruling, conclusion) of the Constitutional Court. Consequently, it is hardly possible to argue that the justice who filed the opinion did not do this in view of the immediate reaction to the decision by the media, the society, or the establishment, and even that he or she did not do this because such reaction took place. Also, the three-day period mentioned above puts any justice ready to file a dissenting (or concurring) opinion into the position where he or she simultaneously needs to participate in the collegial activity of the Court in deciding cases, as well as to write the dissenting (concurring) opinion. In the article, the legislative proposal is presented that the Law on the Constitutional Court should be amended so as to allow for a relatively long time span between the adoption of the decision (ruling, conclusion) and its announcement to the public at large. However, it is not suggested that the general mode of collectivism as dictated by the Law and as implemented in the established practice of the Constitutional Court shall be abandoned. By this article, the author continues his research on the matter as commenced in his two earlier articles (of 2011 and 2012). (shrink)

This article focuses on the analysis of the main positions of the Constitutional Court of the Republic of Lithuania in the cases of intellectual property law. In the article three judgments and the positions of the Constitutional Court extracted therefrom are analysed. The Constitutional Court has formed several important positions with reference to intellectual property law regarding usage of property protection norms for the protection of intellectual property, requirements of application of compensation as an (...) alternative to damages compensation and the calculation of criterions thereof as well as functional legal protection of trademarks. It should be noted that Article 23(1) of the Constitution of the Republic of Lithuania has extended protection to property and, as the Constitutional Court of the Republic of Lithuania has noted, the constitutional protection of property covers not only the protection of tangible, but also of intellectual property. In the same judgment, the Constitutional Court stated another important intellectual property related rule, namely that constitutionally established property protection rights have to be implemented regardless of whether a corresponding international treaty has not been ratified, as protection of authors’ rights is granted under Articles 23 and 42(3) of the Constitution of the Republic of Lithuania. However, the second position stating that the rights of foreign subjects are to be implemented even though a corresponding international treaty has not been signed is to be criticised as by coming to such a conclusion the Constitutional Court has ignored the otherwise generally recognised principle of territoriality of intellectual property rights. In two other cases the Constitutional Court has made important statements relevant to intellectual property law. First of all, the Court stated that compensation instead of claiming actual damages is constitutional. By analysing the positions formulated by the Court, an indirect conclusion can be made to the effect that compensation instead of claiming actual damages is necessary in order to ensure effective protection of intellectual property rights. In other words, the purposes of compensation can be recognised: restoring (compensating) the infringed interests of the injured party; simplifying judicial proceedings, whereby faster proceedings (litigation) and easier substantiation is sought; and the preventive purpose (strong preventive effect). However, the Court’s argument regarding the criterion of compensation calculation, saying that the damages incurred by the intellectual property rights owner depend on the sale value of the product concerned is criticisable, as it is rarely the case that the licence fee or profit acquired in the result of unauthorised use of intellectual property objects is calculated with reference to the final sale price of the product. Notwithstanding the arguably weak argument of the Court, the Court’s position regarding the criterion of final sale price itself does not preclude the possibility of reaching a fair final decision. Finally, the Court acknowledged that trademark protection was limited to the economic functions of the trademark and the full protection thereof. (shrink)

The article deals with the constitutional right of a person to apply to court. While construing this constitutionally entrenched right of a person, one analyses the doctrine of the right of a person to apply to court, which was formed in the jurisprudence of the Constitutional Court of the Republic of Lithuania. The right of a person to court is entrenched expressis verbis in Paragraph 1 of Article 30 of the Constitution whereby the person (...) whose constitutional rights or freedoms are violated shall have the right to apply to court. The doctrine of the Constitutional Court derives this right also from the constitutional principle of a state under the rule of law. The right of a person to court is inseparable from other norms and principles of the Constitution, which are equality of rights, the right to compensation of damage, the right to a proper court process, etc. (shrink)

On 21 June 2011 the Parliament of the Republic of Lithuania adopted extensive and important amendments of the Code of Civil Procedure of the Republic of Lithuania. Most of them came into force on 1 October 2011.One of the important tasks that have been mentioned for the preparation of amendments was to ensure the implementation of the Constitutional Court’s doctrine of matters of civil procedure. This article analyses one of the changed aspect - the system of defence (...) of public interest. The doctrine of concept of public interest was formed by the resolutions of the Lithuanian Constitutional Court adopted on 16 January and 21 September 2006. That concept was quite confusing and could be interpreted widely as well as narrowly (such as protection of special key values in the Constitution). This paper analyses the manner in which the doctrine of the Constitutional Court has been implemented in the law of civil procedure. In addition, the article analyzes the history of the amendments in the Code of Civil Procedure relating to the protection of public interest. The author presents a situation proposed to the Working Group that prepared the draft amendments to the Code of Civil Procedure, and compares the proposals with the effective version of the Code of Civil Procedure. The same article analyses the way that the effective version of the Code of Civil Procedure forces to the protection of the public interest doctrine of the Constitutional Court. The author concludes that the current system is conducive to abuses when the state can envisage the existence of public interest in every dispute and intervene in its investigation. In addition, the court is transformed into an entity liable to defend public interest, while it should be an independent and impartial entity to administer justice. Let us hope that in judicial practice the concept of public interest will be interpreted very narrowly and the Code of Civil Procedure provides the right to collect evidence or apply interim protection measures and etc. will be seen as a political mistake and generally will not be applied (except when it comes to non dispositive cases). (shrink)

The ruling of the Constitutional Court of 10 September 2009 which repealed the proclaimed early elections to the Chamber of Deputies because of their alleged unconstitutionality fully manifests unjustifiability of the interference by the Constitutional Court of the Czech Republic. The decision directly interfered with the process of democratic re-establishment of the Chamber of Deputies. At the same time, the Court´s intervention was only made possible by violating a number of constitutionally prescribed rules. Finally, the (...) respective ruling could not be issued without a “creative approach” on the part of the Constitutional Court towards the rules governing procedures before the Court. The approach eventually resulted in the violation of principles of fair trial – before a body that should guarantee them. The paper analyses in detail various individual aspects of the case, from general issues of the division of power and contents of the mandate of deputies to individual procedural stages before the Constitutional Court. (shrink)

The article deals with the criteria upon which the powers of the Seimas (the Parliament of the Republic of Lithuania) and the Government are delimited in the constitutional jurisprudence of Lithuania. It analyses how the Constitutional Court construes the principle of separation of powers as entrenched in the Constitution and evaluates the meaning of the provision of the Constitution that corresponding ‘relations are regulated by law’. If the Constitution provides that certain relations are regulated by means of (...) a law, such relations may be regulated only by means of a legal act, which takes the form of a law, and it is, therefore, not permissible to regulate such relations by Government resolutions or other acts of the executive. The most important elements of legal relations must be regulated (established) by means of a law, whereas Government resolutions might establish the procedure for the implementation of such laws. Rulings of the Constitutional Court reveal that once the powers of a specific branch of state power have been directly established in the Constitution, an institution of state power may not assume the said powers fr om another state institution. It may not transfer or waive them; and such powers may not be amended or limited by means of a law. The question remains, whether the provision of the Law on the Diplomatic Service wh ereby the candidacy of a diplomatic representative must be reviewed by the Seimas Committee on Foreign Affairs in advance is not in conflict with the Constitution. (shrink)

The obligation to provide reasons may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank. On the other side lies the concern (...) with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” and democratic experimentalism —this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review. (shrink)

The author of the paper considers the influence of the jurisprudence of the Constitutional Court as the only official entity entitled to interpret the Constitution on the criminal procedure. The paper contains the review the following three trends of impact of the constitutional jurisprudence: influence on the legislature in criminal procedure law, influence on the practice of implementation of criminal procedural law and on the science of criminal procedural law. The paper mostly relies on the works (...) by professionals in the field of constitutional law, including publications by prof. dr. Juozas Žilys, the first Chairman of the Constitutional Court of the Republic of Lithuania and the former dean of the Law Faculty of Mykolas Romeris University, as the area of criminal procedure has so far included only several publications, the direct objective of which was to study issues on the constitutionalisation of criminal procedure. (shrink)

The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule of law is simultaneously before, after, concurrent and synonymous with democracy: It (...) contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule of law is simultaneously before, after, concurrent and synonymous with democracy: It (...) contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule of law is simultaneously before, after, concurrent and synonymous with democracy: It (...) contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule of law is simultaneously before, after, concurrent and synonymous with democracy: It (...) contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

The ruling of the Polish Constitutional Tribunal of October 22, 2020 introduced a near-complete ban on abortion in Poland, as it removed from the law the embryopathological condition that allowed abortion when the fetus had an incurable, severe disease. The ruling raises a number of questions regarding the recognition of international protection of human rights, the equal protection status of human rights, and the principle of trust in the state. The Tribunal’s ruling resulted in massive public protests in Poland, (...) the adoption of condemnatory resolutions by the European Parliament, and the submission of a new bill by members of the parliament from the opposition groups. The purpose of the paper is to show the questionable ruling issued by the Constitutional Tribunal from the perspective of protection of human rights and the attempts of opposition MPs to change the legal order. The Tribunal’s ruling violates women’s human rights and is therefore a form of discrimination against women. Attempts by opposition MPs to “civilize” the right to abortion have proved unsuccessful. The jurisprudence of the European Court of Human Rights may establish a breakthrough, as the Tribunal has received a complaint concerning the prevention of abortion on embryopathological grounds in connection with the ruling of the Constitutional Court of October 22, 2020. (shrink)

Philosophy & Social Criticism, Volume 48, Issue 5, Page 655-673, June 2022. The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule (...) of law is simultaneously before, after, concurrent and synonymous with democracy: It contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

This two-volume book, published open access, brings together leading scholars of constitutional law from twenty-nine European countries to revisit the role of national constitutions at a time when decision-making has increasingly shifted to the European and transnational level. It offers important insights into three areas. First, it explores how constitutions reflect the transfer of powers from domestic to European and global institutions. Secondly, it revisits substantive constitutional values, such as the protection of constitutional rights, the rule of (...) law, democratic participation and constitutional review, along with constitutional court judgments that tackle the protection of these rights and values in the transnational context, e.g. with regard to the Data Retention Directive, the European Arrest Warrant, the ESM Treaty, and EU and IMF austerity measures. The responsiveness of the ECJ regarding the above rights and values, along with the standard of protection, is also assessed. Thirdly, challenges in the context of global governance in relation to judicial review, democratic control and accountability are examined. On a broader level, the contributors were also invited to reflect on what has increasingly been described as the erosion or 'twilight' of constitutionalism, or a shift to a thin version of the rule of law, democracy and judicial review in the context of Europeanisation and globalisation processes. The national reports are complemented by a separately published comparative study, which identifies a number of broader trends and challenges that are shared across several Member States and warrant wider discussion. The research for this publication and the comparative study were carried out within the framework of the ERC-funded project 'The Role and Future of National Constitutions in European and Global Governance'. The book is aimed at scholars, researchers, judges and legal advisors working on the interface between national constitutional law and EU and transnational law. The extradition cases are also of interest to scholars and practitioners in the field of criminal law. Anneli Albi is Professor of European Law at the University of Kent, United Kingdom. Samo Bardutzky is Assistant Professor of Constitutional Law at the University of Ljubljana, Slovenia. (shrink)

On 26 February 2020, the German Constitutional Court rejected a law from 2015 that prohibited any form of ‘business-like’ assisted suicide as unconstitutional. The landmark ruling of the highest federal court emphasised the high priority given to the rights of autonomy and free personal development, both of which constitute the principle of human dignity, the first principle of the German constitution. The ruling echoes particularities of post-war Germany’s end-of-life debate focusing on patient self-determination while rejecting any discussion (...) of active assistance to die through a lethal injection administered by a doctor. This brief report discusses the ruling in the light of the broader sociopolitical and historical context of the German end-of-life debate. (shrink)

The European Court of Human Rights (ECtHR) boasts one of the strongest oversight systems in international human rights law, but implementing the ECtHR’s rulings is an inherently domestic and political process. This article begins to bridge the gap between the Court in Strasbourg and the domestic process of implementing the Court’s rulings by looking at the domestic institutions and politics that surround the execution of the ECtHR’s judgments. Using case studies from the UK and Russia, (...) this article identifies two factors that are critical for the domestic implementation of the Court’s rulings: strong domestic, democratic institutions dedicated to implementing the ECtHR’s judgments and an overarching sense of responsibility to set a good example at home and abroad for respecting human rights and the rule of law. This article concludes with a discussion of the steps necessary to facilitate better implementation of the ECtHR’s rulings. (shrink)

Legal and political controversies persist about the performance of Kelsenian-type constitutional courts in democratic systems. One of the reasons is that the design of these institutions cannot easily accommodate simultaneous but conflicting demands for the strong protection of democracy and human rights, judicial independence and constitutional restraint. Challenging the dominant approach to the design of contemporary constitutional courts, this article proposes a new way to balance these three values through reforms to the structure of Kelsenian institutions. The (...) proposal seeks to institutionalize constitutional restraint, embedding it into courts’ internal functioning rules while, concurrently, emancipating constitutional judges from political control through a reform of appointment procedures. It is argued that the combined effects of these two reforms will produce constitutional courts that are more independent and able to protect the core elements of a democratic political community while, at the same time, increasing constitutional deference to the democratically elected legislator. (shrink)

The article analyzes one of the fundamental rights – the right to maintenance, which proper implementation ensures normal development of the child. This right matches with the duty of parents to maintain their minor children. Paragraph 6 of Article 38 of the Constitution of the Republic of Lithuania states that parents have a duty to educate their children to be honest people and loyal citizens, supporting them until adulthood. The obligation to maintain children is established in the first 3.192 (...) Article paragraph of the Civil Code of the Republic of Lithuania, and the responsibility for avoiding to maintain a child is provided in Article 164 of the Criminal Code. The article discusses the fact that the analysis of criminal law rate is not precise enough. Article 164 of the Criminal Code does not match with the child maintenance methods specified in the CC Article 3.196 paragraph 1. Since criminal liability is only for judgment in default in civil cases, a person shall only be liable for breaking the right to maintain a child, provided in the CC 3.196 paragraph 1. This article deeply analyzes the problematic qualification aspects of the avoidance to maintain a child. Some alternative ways of child maintenance are mentioned, as can be chosen from other law instruments (bailiffs, Guarantee child support fund) and it leads to the ultima ratio principle. On the other hand, it is not required to seek alternative remedies for affected interests, and it is possible to initiate a pre-trial investigation. Therefore, this article seeks to identify specific civil and criminal law rules delimitation. Avoidance of child maintenance is an ongoing crime. The main problem in legal practice is to determine an end of this ongoing criminal conduct. The practice of the Supreme Court of Lithuania is not unanimous. In some cases, the end of this ongoing conduct is considered to be a moment when the past judgment has entered into force, in other cases – the moment of indictment. These positions are criticized by many authors and it is suggested to follow the Supreme Court’s practice, according to which the moment when a judgment of conviction for the criminal act is passed should be considered as an end of an ongoing criminal conduct. (shrink)

The European Stability Mechanism is the rescue fund that may grant loans to struggling euro zone governments by issuing bonds, collectively by the euro zone members. The implementation of the ESM spawned a lot of legal challenges brought to higher judicial authority in Ireland, Austria, Estonia, Germany and Poland. In the fall of 2012 the ESM was subject to legal analysis in the Estonian National Court, the German Constitutional Court, and in the European Court of (...) Justice. Delivering much anticipated rulings in legal challenges to the legal provisions establishing the ESM, courts avoided upsetting the complex arrangements in question by producing legal decision of direct political import and letting EU bailout measures go forward. In looking over different critical responses, we have seen an argument raised by media and legal scholars, according to which courts’ capitulation before the power of financial markets in the EMS rulings represents “a sign of judicial crisis” that marks the weakness of modern European jurisprudence. In light of their importance, we undertake a preliminary semiotic analysis of the ESM rulings of the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Our analysis aims at discerning the crucial aspects of those rulings is performed on the basis of different semiotic methodologies combined with the refined ideas of the Scandinavian analytical school of the doctrinal study of law. In traditional legal studies there seems to be a taken for granted assumption that there is one analytical way to dissect judicial reasoning of the supreme courts. This paper argues that the manner of analyzing the constitutional reasoning needs to be congruent with the particular research methodology. (shrink)

In societies of high legal culture, criminal law is regarded as a protective and repressive measure of the state, as an imperative of crime and inevitable punishment (as a strict rule). Therefore, the article attempts to show the fact that the entirety of the provisions and norms of criminal law, consolidated in a modern democratic state under the rule of law (or, at least, a state that is attempting to become such a state), allows for the assertion that the purpose (...) of criminal law is coordination or, at least, the balance of the interests of conflicting subjects—the victim and the culprit, the culprit and the state. Thus, by means of criminal law, one can try to attain legal concord in seemingly irreconcilable situations. The reality of such striving is confirmed by court practice and statistics in criminal justice. The article analyses the origin of the reconciliation function, essentially a new aspect of criminal law. A position is formed that the fundamentals of such a function of criminal law are “laid” by the provisions of the Preamble to the Constitution of the Republic of Lithuania that the striving of the Nation is an open, just and harmonious civil society and a state under the rule of law. For the implementation of these provisions, one makes use of the possibilities of penal law-making and respectively corrects the penal policy. (shrink)

The article deals with the question whether a state might be held liable for the infringement of constitutional law if its national court of last instance violates the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on the well-established practice (...) of the European Court of Human Rights, which accepts that in theory an arbitrary decision not to refer a question for a preliminary ruling could infringe the right to a fair trial established in the ECHR, the author analyses whether constitutional courts of Germany, Czech Republic, Spain and Lithuania have elaborated the equivalent practice and if so, whether they have established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer. (shrink)

The paper claims that the rule of recognition, given the way it is presented by Hart, cannot be a constitutive rule of any legal system as a whole, but rather a constitutive rule of legal rules as elements of a legal system. Since I take the legal system to be an institutional artifact kind, I claim that, in order to account for a legal system as a whole, at least two further constitutive rules, in addition to the rule of recognition (...) as a token-element constitutive rule, are needed – one constitutive of legal officials and the other constitutive of a legal system as a token. However, given the central role the legal officials' practice occupies in establishing a particular instantiation or token of a legal system, I also claim that the rule of recognition cannot be understood as 'merely' a token-element constitutive rule but also as a legal system's implementation or concretisation rule. (shrink)

The paper is focused on the criticisms that theorists of political constitutionalism raise against legal constitutionalism, especially with regard to the idea of representation and political sovereignty. At the same time, the intention is to reconstruct the debate between legal and political constitutionalism in contemporary liberalism, starting from the so-called counter-majoritarian difficulty. This debate concerns two different approaches: the political one rejects the idea of judicial review by the Supreme Court because it may establish a possible rule of the (...) judges (Michelman; Dworkin). It defends the role of Parliament in constitutional matters, in contrast with the role of the Supreme Court, inasmuch as – according to them – it is not open to political participation. Parliament is considered the only place in which we can exercise our constitutional power and in which our rights could be adequately protected (Bellamy; Waldron; Tushnet; Goldoni). On the other hand, legal constitutionalism upholds the idea of judicial review, defending the role of the Supreme Court as “exemplar of public reason” (Rawls 1993). This article tries to answer to three fundamental questions about constitutional democracy under the banner of political liberalism: 1. What do we mean by counter-majoritarian difficulty? 2. What is the answer that legal and political model of constitutionalism give to this question? 3. What is the role of constitutional courts in democratic regimes and what is their authority within the State? (shrink)

The Supreme Court of Idaho held, in Idaho Association of Chiropractic Physicians, Inc. v. Alcorn, No. 23787,1999 WL 134677, at *1, that insurance regulations of health care services must apply equally to all providers. The Idaho legislature enacted the Small Employer Health Insurance Availability Act, Idaho Code § 41-4701, and the Individual Health Insurance Availability Act, id. § 41-5201, which is to be implemented by the Idaho Small Employer and Individual Health Reinsurance Program. The goal of the legislation is (...) to make health insurance available and affordable to small employers and their employees, and to individuals who would not otherwise have health insurance. Accordingly, the Program promulgated the following rule: “Chiropractic services will be subject to one thousand dollars per year limit.” Idaho Ass’n of Chiropractic Physicians, 1999 WL 134677, at *1.The plaintiff, the Idaho Association of Chiropractic Physicians, sought declaratory judgment and injunctive relief against defendant, James M. Alcorn, director of the Idaho State Department of Insurance, on equal protection and due process grounds. (shrink)

This article relates to the CJEU’s understanding of the concept of the spouse in Case C-673/16 and its effect on the process of law application by Polish administrative courts. The authors considerations are based on the assumption that the CJEU’s interpretation of EU law in Coman and Others is of a dynamic-deliberative nature, based on functional rules, and that at the same it time takes into account a specific legal and socio-cultural context in which one of the fundamental freedoms guaranteed (...) by EU law is implemented. This judgment, as authors underline, confirms that a proper understanding of the current legal context of the concept of a spouse requires that the social and cultural context and the plurality of values arising from different lifestyles be taken into account in the application and interpretation of the law, all with a view to empowering the individual in his or her relationship with the State and raising the level of protection of human rights. Authors observe in the practice od Polish administrative courts that this CJEU’s judgment is important in the argumentative layer, but not decisive for the resolution of the case in specific situations where there is a need to address the effect of same-sex marriage in a case related to the implementation of the EU right to free movement. In this context authors consider whether the justification for rulings of administrative courts may be sought in John Gray’s concept of modus vivendi liberalism. (shrink)

The concept of Rule of Law is the cornerstone of the proper functioning of the judicial system in any modern democratic society. It is a basic concept of defined rights and liberties to all persons, which offers protection from arbitrary prosecution and incarceration. This principle was firstly stipulated by the instrument of Magna Carta and it is considered as a key principle for good governance in any modern democratic society. The development of the rule of law principle is personified through (...) the independence of the Judiciary as a third branch of government. The contemporary democratic societies are faced with many challenges upon which in order to protect their values of the democratic system, often limit the rights and liberties of persons. It is the role of the courts and the judicial system to stop these injustices and protect the individual from any form of liberty deprivation and rights limitations. Before the promulgation of the Magna Carta in 1215, the rule of law was perceived as a divine justice, distributed solely by the monarch or the king or in this case - King John of England. Magna Carta doesn't have iconic status only in the British Society, which is perceived as an instrument with special constitutional status and cited by many judges, lawyers and politicians, but in any modern democratic states as well. The author in this article examines the development of the concept of Rule of Law in the modern democratic societies under the influence of the Magna Carta, and how it is perceived as a guarantee of fair trial and trial by jury of any persecuted persons whether the severity of their crimes. (shrink)

This article maintains that it is the constitutional responsibility of the courts, here the courts of the State of Michigan, to engage in judicial policymaking in the process of formulating common law rules. The article is written in response to the views expressed by some Justices of the Michigan Supreme Court that separation of powers concerns should impose significant limits on the power of the courts to establish and develop the common law of Michigan. Specifically, the contention is (...) that policymaking is exclusively the province of the legislature, so that the courts cannot properly formulate common law rules that may have significant social and economic effects. The article strongly disagrees with the proposition that there is any kind of constitutional constraint, either prudential or structural, on the power, and indeed, the constitutional responsibility of the Michigan courts (or the courts of any state) to engage in judicial policymaking in the process of formulating common law rules.The judicial power given to the Michigan courts by the Michigan Constitution includes the power to do what courts have always done in the Anglo-American legal system. The judicial power gives the courts the responsibility to adjudicate controversies between private persons and in the process to develop a common law through the workings of binding precedent and stare decisis. In so doing, the courts may properly take into account considerations of social and economic policy just as the legislature does when it engages in the process of enacting legislation. The difference between what the courts do and what the legislature does is a difference in process, not a difference in substance. Judicial policymaking takes place within the judicial process, that is, in the adjudication of controversies between persons in which the courts promulgate common law rules. The common law develops in a line of growth through the workings of binding precedent and stare decisis, and to the extent that there are limitations on the development of the common law, these are limitations that inhere in the judicial process itself. When the courts, for example, consider whether a new claim or a new defense should be recognized by the common law, they must consider whether that new claim or defense properly follows in the line of growth from existing doctrine and precedent. But if the courts conclude that it does, that is, if the claim or defense is consistent with the line of growth of existing doctrine and precedent, the courts are not constrained from recognizing the claim or defense on the ground that the substance of the claim or defense is a matter for the legislature rather than for the courts or that the resulting common law rule may have significant social and economic effects. The legislature, in contrast, enacts legislation through the legislative process. That process is a freewheeling one, often dependent on political compromise and completely unrestrained by the kind of limitations that inhere the judicial process. There is no legislative concept of line of growth, and the legislature can and often does enact legislation that brings about fundamental societal change or reverses the course of public policy. In our constitutional system, the most important questions of public policy are, of course, determined by the Legislature. Where the legislature disagrees with the policy choices reflected in a common law rule, the legislature has the power to enact legislation changing the common law rule. But there are many areas of private law where the legislature has not acted. In our constitutional system, where the matter in issue is not covered or preempted by legislation, the courts may formulate a common law rule to cover that matter, and in so doing may engage in judicial policymaking. Judicial policymaking is a part of the development of the common law, and the courts cannot avoid their responsibility to engage in judicial policymaking to the extent that it is necessary in the process of formulating the common law. As a constitutional matter, there are no separation of powers considerations that prohibit the courts from engaging in judicial policymaking. This part of the article traces judicial policymaking and the common law back to the seminal writings of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo.The article then discusses at length judicial policymaking and the development of the common law in Michigan. It shows that the clearest history of judicial policymaking in development of the common law is the liability-limiting rules of the late nineteenth century that were promulgated in the wake of the Industrial Revolution to protect the newly-emerging industries. During that time the courts in Michigan and elsewhere grafted on to the general principles of negligence law liability rules such as assumption of risk, contributory negligence, and the fellow servant doctrine, all of which had the effect of denying recovery to workers and other victims of industrial accidents. Beginning in the middle of the twentieth century, however, the Michigan Supreme Court began excising its constitutional power to make changes in the common law, expanding significantly the scope of tort liability in Michigan. Emphasizing that "rules created by the court could be altered by the court," and that the court had a "corrective responsibility when dealing with judge-made law," the Court, in approximately a 30 year period: eliminated the imputed negligence doctrine, under which the driver's negligence was imputed to the passenger in the passenger's suit against a third party; eliminated charitable immunity as a defense to a tort action; held that a wife could maintain at tort action for loss of her husband's consortium; abrogated the defense of assumption of risk, which had been applied outside of the employment area, held that there could be recovery for pre-natal injuries and finally abolished contributory negligence as a complete bar to recovery in favor of a comparative negligence approach. In these cases the Court discussed the relevant policy considerations influencing their decisions with respect to the common law rule at issue. In the last quarter century, the Court continued to take into account policy considerations in developing the common law, but not infrequently there was disagreement on the Court as to where policy considerations should lead, with some Justices arguing that policy considerations supported the imposition of tort liability, while other Justices argued that they did not.The article concludes that it has been demonstrated that in the development of the common law of Michigan, the Michigan Supreme Court has at all times engaged in judicial policymaking. From the liability-limiting rules of the late nineteenth century designed to protect the newly-emerging industries in this state, to the Court's exercise of its power to change the common law in Michigan over a 30 year period by expanding significantly the scope of tort liability in Michigan, to its recognition of new claims, such as a child's right to recover for loss of a parent's consortium caused by a negligent injury, to its imposition of limits on tort recovery, such as the open and obvious doctrine, the Court has invoked considerations of policy in support of its decisions. In these cases, the Court's invocation of policy considerations was sometimes accompanied by substantial disagreement among members of the Court over where policy should lead, but at no time did the Court ever suggest that separation of powers considerations should somehow operate as a kind of restraint on the Court's use of policy in the development of the common law. It is the power and responsibility of the Michigan Courts under the Michigan Constitution to make policy choices in formulating the common law. (shrink)

In this important book, Michael J. Perry examines three of the most disputed constitutional issues of our time: capital punishment, state laws banning abortion, and state policies denying the benefit of law to same-sex unions. The author, a leading constitutional scholar, explains that if a majority of the justices of the Supreme Court believes that a law violates the Constitution, it does not necessarily follow that the Court should rule that the law is unconstitutional. In cases (...) in which it is argued that a law violates the Constitution, the Supreme Court must decide which of two importantly different questions it should address: is the challenged law unconstitutional? Is the lawmakers' judgment that the challenged law is constitutional a reasonable judgment? Perry not only illuminates moral controversies that implicate one or more constitutionally entrenched human rights, but also the fundamental question of the Supreme Court's proper role in adjudicating such controversies. (shrink)

In the following paper is put in question the present-day dominant Italian ideology of the so called ‘new constitutionalism’, which considers human rights as an open-texture catalogue of claims which only the Constitutional Courts are entitled to interpret and implement. This ideology is considered as a tool for overcoming the traditional liberal rule of law in favor a of more and more developed rule of the courts.

Since the Restitution of Land Rights Act 22 of 1994 came into operation, courts have come to attach considerable significance to historian expert testimony when ruling on land claims that made it to court. Therefore, a universal approach had to be adopted. Over the years the Supreme Court of Appeal and Constitutional Court have developed tried and tested methodologies to aid the courts in determining the weight and admissibility of a witness' testimony. In the Salem Commonage (...) case, both the Land Claims Court and the majority of the Supreme Court of Appeal deviated from these precedents by adopting arguably a broader interpretation of the Act than intended. The case is unique in the sense that the dispute involves a commonage that was subdivided via a court order in 1940, resulting in the removal of the remaining black African population from that land. The question therefore was whether or not this group of people fulfilled the requirements for a valid claim as set out in the Act. The Land Claims Court and Supreme Court of Appeal felt that it had. The landowners applied for leave to appeal to the Constitutional Court. The application was granted, but in his judgment, Edwin Cameron agreed with the rationale of both courts, and held that there was a valid claim. This was despite the fact that the testimony of the claimants' 'star witness', Msile Nondzube, was heavily criticised by the landowners as well as a Supreme Court of Appeal judge. The Constitutional Court emphasised that the Act was an extraordinary piece of legislation and had to be interpreted in such a way so as to address the injustices of the past. This included provisions of the Act which dealt with how oral and expert evidence would be dealt with. (shrink)

This paper delves into crucial issues surrounding attempts to make flawless Qur’anic recitation, in Nigeria, a permanent tradition. The paper identifies major militating factors against an error-free recitation of the holy Qur’an in Nigeria as a basis for locating appropriate remedial programmes. The study discovered that factors such as acquisition of deficient typologies, language interference, complexity of the rules, lack of awareness dearth of specialists , dearth of relevant texts , underutilization of orthographic symbols and methodology used in imparting the (...) knowledge constitute major impediments towards achieving ideal recital of the Qur’an. In proffering relevant remedial measures like the teaching of the ideal typologies of Qur’anic recitation supported by a well planned curriculum, the paper concludes that the rectification of diagnosed deficiencies in reciting the Qur’an is feasible, in the long run, provided the intervention strategies proposed are effectively implemented. (shrink)

This paper delves into crucial issues surrounding attempts to make flawless Qur’anic recitation, in Nigeria, a permanent tradition. The paper identifies major militating factors against an error-free recitation of the holy Qur’an in Nigeria as a basis for locating appropriate remedial programmes. The study discovered that factors such as acquisition of deficient typologies, language interference, complexity of the rules, lack of awareness dearth of specialists, dearth of relevant texts, underutilization of orthographic symbols and methodology used in imparting the knowledge constitute (...) major impediments towards achieving ideal recital of the Qur’an. In proffering relevant remedial measures like the teaching of the ideal typologies of Qur’anic recitation supported by a well planned curriculum, the paper concludes that the rectification of diagnosed deficiencies in reciting the Qur’an is feasible, in the long run, provided the intervention strategies proposed are effectively implemented. (shrink)

Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that have to do (...) with "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law. (shrink)

Article 14 Chapter I ‘The State of Lithuania’ of the Constitution of the Republic of Lithuania of 1992 reads as follows: ‘Lithuanian shall be the State language’. This principle is not new in the Lithuanian history of constitutionalization, as Lithuanian was the official language of the State in the interwar period but lost this status during the Soviet occupation. After 1988, when many political, economic and social changes crucial for further development of the State took place in Lithuania, linguistic issues (...) re-emerged. It was recognized back then that language played a vital role in the life of the State and the society, and the Lithuanian language was given back its status of the official language by the Constitution. The principle that Lithuanian is the official language of the State, enshrined in Article 14 of the Constitution of the Republic of Lithuania, was further elaborated by the Constitutional Court of the Republic of Lithuania in its rulings and judgments. According to its official constitutional doctrine, the Lithuanian language should be treated as a very specific constitutional value, as it forms the basis of the ethnic and cultural identity of the Lithuanian nation and is the guarantor of the national identity and survival. The status of Lithuanian as the official language means that the Lithuanian language must be used in all spheres of public life. The Court also holds that having this principle enshrined in Chapter I ‘The State of Lithuania’ of the Constitution implies that the Lithuanian language enjoys particular protection since the provisions of this Chapter may be amended only by a referendum. (shrink)

Under Article 74 of the Constitution, for gross violation of the Constitution or breach of oath, or if it transpires that a crime has been committed, the President of the Republic may be removed from office under procedure for impeachment proceedings. In the article the content of the constitutional delict is analysed. The President of the Republic may be brought to constitutional responsibility only for the actions which he committed while in office of the President of the Republic. (...) The President of the Republic may be removed from office not for any violation of the Constitution, but only for gross violation thereof. While implementing the powers established to him in the Constitution and laws, the President of the Republic may not breach the oath. Under Article 74 of the Constitution, the President of the Republic may be removed from office “if it transpires that a crime has been committed” – this provision means that the Constitution provides for the right of the Seimas to remove the President of the Republic from office in the absence of a court judgement recognising that the President of the Republic is guilty of commission of a crime. The Constitution commissions only the Constitutional Court to establish the fact of violation of the Constitution – whether there has been a gross violation of the Constitution and breach of oath by actions of the person. The Seimas may not change or question the conclusion of the Constitutional Court. On the grounds of the conclusion of the Constitutional Court that the actions of the President of the Republic are in conflict with the Constitution, it is only the Seimas that decides whether to remove the President of the Republic from office. The removal of the President of the Republic from office under procedure of impeachment proceedings due to a suspicion that the crime has been committed is not binding upon a court of general jurisdiction which considers the criminal case. (shrink)

This survey of the Supreme Court of Canada’s pivotal anti-discrimination rulings over a 30-year period assesses the extent to which the shifting nature of the grounds approach and the Court’s conceptions of dignity together form part of a gendered system of enunciation at the intersection of autonomy, identity and affect. This article is written as a corrective to some of the author’s early optimism about the possibilities that dignity may offer in the context of constitutional equality (...) rights cases and as a cautionary tale for those who would attempt to use it as a vehicle for rights claiming through the courts. These cases reveal that in the context of Canadian anti-discrimination law, the concept of dignity is most often used to circumscribe agency, limit subjectivity and curtail possibilities for redress by reducing large scale structural problems to the individual in ways that reproduce law’s originary violence. (shrink)

: In 1998, 39 pharmaceutical manufacturers sued the government of South Africa to prevent the implementation of a law designed to facilitate access to AIDS drugs at low cost. The companies accused South Africa, the country with the largest population of individuals living with HIV/AIDS in the world, of circumventing patent protections guaranteed by intellectual property rules that were included in the latest round of world trade agreements. The pharmaceutical companies dropped their lawsuit in the spring of 2001 after (...) an avalanche of negative publicity. Yet, despite the government's victory, AIDS drugs remain very expensive in South Africa, and the government still refuses to provide antiretroviral therapy to adults. These events have shone a spotlight, not only on the possibilities for coordinated political activism in the era of instant global communications, but also on the tangled social, economic, and political dimensions of AIDS treatment in poor countries. (shrink)

Approximately twenty years after it was necessary to fight for human rights, the time came when it was necessary to do it again. Or to begin at the very least to protect them very strongly and thoroughly in a preventive manner. Other methods and means will revert to time when human rights were formally anchored but their material establishment is not yet realized, or not at least to the extent expected corresponding to their real substance. The beginning of the 90’s (...) in Central and Eastern Europe was a success in that human rights began to be looked on as natural, forming the basis of democratic State respecting the rule of law. Today we are increasingly more often encountering the reality that human rights, on the contrary, to the same extent that they have been able to be established, they are losing in value. The biggest danger consists in the fact that limiting of human rights often is attended by silence, without wider public discussion or deliberations. The lack of qualified discussion during the limiting of human rights by way of laws and implementing regulations is however a systemic problem. Correction of its results can be often very complex and doing away with the causes a long term effort. It is dependent on the quality of representative democracy and of the civil society as well. This article is devoted to problem of implementation of evidence of data accompanying telecommunications traffic, the so-called data retention, and in its development from lack of legal regulation to roughly unconstitutional legal regulation and finally to hope for a reasonably constitutional solution. (shrink)

The article deals with the doctrine of the returning of the powers of the Government upon the election of the President of the Republic formulated in the Constitutional Court ruling of 10 January 1998. Attention is focused on the arguments of the Constitutional Court upon which this doctrine is based–these are the arguments regarding the expression of no-confidence in the Prime Minister and the new empowerment of the Government (after more than a half of the ministers (...) are changed). In the opinion of the author, some of such arguments are subject to discussion. The constitutional regulation regarding the returning of the powers of the Government upon the election of the President of the Republic is inexhaustive and unclear. Although the wording of the provisions of the Constitution regarding the returning of the powers of the Government after the elections of the Seimas and after the elections of the President of the Republic is almost the same, there is one essential difference: the Constitution provides that after the elections of the Seimas the Government must return its powers to the President of the Republic and must resign, whereas the Constitution does not provide that the Government must resign after the elections of the President of the Republic as well. (shrink)

For anyone who teaches the philosophy of law this is an indispensible volume. Currie's intent is to provide a critical history of the Court's constitutional work for the first hundred years. In writing that history he displays the multiple methods of constitutional analysis and the techniques of opinion writing employed under seven Supreme Court justices. Not surprisingly, he concludes that judicial performance is not uniform. Currie makes no attempt to hide the vantage point from which he (...) is writing. He assumes that the Constitution is a law binding the judges no less than the other officials whose action the Court undertakes to review. He flatly states his conviction that judges have no right to ignore those constitutional limitations with which they disagree and adds that when Congress has acted within the powers granted by the Constitution, it is not for the Court to interfere. The same is true for state laws that do not offend the Constitution. "It follows," says Currie, "that the judges have no more right to invent limitations not found in the Constitution than to disregard those put there by the Framers. In short, when a judge swears to uphold the Constitution, he promises obedience to a set of rules laid down by someone else.". (shrink)

Events in both Eastern Europe and the former USSR illustrate the intimate connection between economic and political processes. Those events also remind us that political and economic institutions are human creations, and that when those institutions are poorly designed, political-economic failure is a direct consequence. It is axiomatic, then, that the transition to stable and prosperous societies in those former Communist states requires careful attention to the design and implementation of democratic institutions.

Florijn’s analysis of the Dutch Supreme Court ruling on the Albert Heringa case demonstrates that the Dutch approach to justifying physician-assisted death is based primarily on the physician...

The rule of law is a moral ideal that protects distinctive legal values such as generality, equality before the law, the independence of courts, and due process rights. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions, and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal (...) affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights. (shrink)

Dario Martinelli examines the nature of songs of social protest (SSPs) in Give Peace a Chant: Popular Music, Politics and Social Protest and provides readers with a book that is engaging, provoking, and enjoyable. Martinelli’s research is thorough, astute, and structured in a way that is both rigorous and accessible. Combining typology with several case studies, Martinelli achieves his stated goal of showing how context, song lyrics, and the music itself are organic and equally important elements that constitute SSPs.