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The Constitution – Chosen Premises Justifying the Need to Introduce Amendments

Abstract

Indication of conditions constituting necessity of modifications within the scope of the Constitution shall be considered while perceiving the leading role of the Constitution in Polish legal order. Constitutional regulations determine standards for the entire legal system of the Republic of Poland. It is also worth a while to consider the need for unambiguous determination of relations of constitutional norms, also with regard to the law of the European Union. Doubts appearing within the scope of systemic rules concern mainly regulations specifying the rule of division and balancing of powers. Actually, they consist in lacks with regard to organization of bodies of each of three powers. Another issue is improvement of solutions determining coexistence of government and local government administration within the broader scope of principles of uniformity of the state and decentralization of public power. The article presents an analysis related to the aforementioned issues.

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Constitution, Ethos and Change of Life in Common: Some Introductive Reflections on the Example of Icelandic Constitutional Project

Abstract

The Icelandic constitutional movement was created to address and develop a new constitutional form based upon transparency, responsibility and participation. Taking into consideration the events, which took place in 2008 this expectation appeared more than legitimate. Furthermore, the quality of the debate, which took place within the civil society and in the cooperation between civil society and Constitutional Council, are very meaningful elements supporting a genuine possibility of change. The aim of implementing a participation-based constitution may lead to the diversification of the Icelandic project with respect to the typology of the existing constitution. This may produce as a result the development of new checks and balances. For this reason the development of public local services may be an opportunity to develop a social balance with respect of the constitution in force, as well as a living constitution starting from below. In this way the values purported by civil society may lead to higher levels of political freedom and finally to the approval of a new constitution. To keep the Icelandic process communicatively open in a transnational perspective may thus permit other persons to contribute to the development of Icelandic democracy. It may furthermore offer the Icelandic example as a useful tool that could be used by many world societies aiming to implement transparency, responsibility and participation in their public life. Indeed, even though the Constitutional Bill of 2011 will not finally be validly approved as the Icelandic constitution, the problems that it posed, and the possibilities that we see are stemming from them, have in our opinion a general importance for constitutional reflections.

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Constitutional Resilience Between Rupture of History and Continuity of Resistance

Abstract

The overture of the paper provides a brief survey of the philosophical positions (from Aristotle to the contemporary debate) focusing the conjecture of the legal and constitutional continuum as a problematic presupposition of theories of constituent power. The positions of the authors that we can call as continuist authors (up to Kelsen and the neo-normativism, including Soviet jurists and theorists of the constitutional cycles) constitutes the dominant part of the theoretical evolution. We discuss it (respectfully) even if we openly criticize it, with a peculiar debate involving that other position called as discontinuist (whose authors are especially Marxists philosophers, anti-fascist intellectuals like Piero Gobetti, and their references in philosophy such as Leibniz and Vico).

In the first movement of the paper, we reconstruct the equivoque at the basis of the conjecture of the continuum. It corresponds to a «three-time» scheme of constitutional dynamics: (revolutionary) rupture – transition – constitution. This structure makes useless (conceptually unusable, and perhaps sources of logical contradictions) both rupture and transition.

The second and final movement underlines the theoretical demand to consider the transition and the constitution as coextensive domains. Transition is, in other words, already Constitution, and the constitution is always a transition. To the latter ones, we introduce and add another phenomenon characterizing the historical phase of the transition, namely the Resistance.

The fact of resistance escapes the constitutionalisation, and imposes upon the latter a necessary character of transition.

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Constitutional Sources of Law in the Russian Federation on the Basis of Acts Regarding the Conservation

Abstract

The constitutional catalogue of the sources of law, clear and unambiguous division of acts into commonly binding and internal ones, is of fundamental meaning for the realization of the state of law rules, i.e. legalism and the rule of law, from the perspective of European democracies. Since it is the essence of every democratic legislation to base its functioning on the law established by organs that have been assigned for that aim, binding its addressees and executed by public authorities, also with the use of the means of coercion.

This article aims at presenting the outline of the constitutional system of the sources of law in the Russian Federation and illustrating it, as much as it is possible, with acts regarding the conservation of the environment. In particular, the objective of this work is to determine the name of a given source, an organ competent to issue it, its function and position in the hierarchy, as well as the rule of promulgation. The key research issue here is the distinguishing between the sources of commonly binding law and the ones of internal law, as the regulation of the Russian Federation Constitution does not preordain explicitly. Yet this issue is of crucial significance when it comes to the status of law subjects. Acts of internal character may be directed merely at organizational units submitted to an organ issuing the acts and may not directly regulate the sphere of rights and obligations, neither constitute the bases of decisions concerning citizens, legal entities or other subjects.

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Constitutional Tribunal in an Argument with the President, Government and Parliament of the Polish Republic in 2015

Abstract

The judicial decision of the Constitutional Tribunal from 3rd December 2015 (K/34/15) is the subject of the analysis. In this case the Tribunal considered the matter of the constitutional character of the act on the Constitutional Tribunal from June 2015.

The authors focused on the question of justification of the Tribunal opinion regarding the regulations which were the basis for the appointment of five judges of the Constitutional Tribunal by the Sejm of VII term.

While discussing the justification of the Tribunal the authors emphasize that the Tribunal justified its opinion, according to which it acknowledged the constitutional basis for the appointment of three individuals and questioned the constitutional character of the same regulations in case of two others, in an entirely superficial manner.

The authors present as a significant element of their reasoning the circumstances of adopting by the American Supreme Court in 1803 the adjudication in the Marbury v. Madison case in order to emphasize in this context the weight of rational and thorough argumentation of the grave constitutional matters. Taking the above into account, it is even more clearly visible that in the discussed judicial decision the Constitutional Tribunal limited its reaction to the laconic set of arguments regarding this key matter.

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Immutable Values – Durability of the Constitution from a Historical Perspective and Contemporary

Abstract

On the dogmatic basis, many constitutional classifications stand out, some of them have been functioning for hundreds of years based on a few basic statements, others update in different intervals temporal internal political forces of individual states. Factors influencing the durability of basic legal acts are numerous and diverse. The assumption of the construction of constitutional acts is their durability and rigidity of the rules they regulate. The features of constitutional laws are the invariability of provisions, the scope and detail of regulations, the degree of public involvement in the process of making them, and superiority in relation to other legal acts established by state authorities. It seems impossible to indicate the factors implying the necessity to make changes in the basic acts. However, one may wonder how much influence on their functioning exerts, for example, changes in the system of international forces and international law, ongoing armed conflicts or international integration processes. The aim of the article is to indicate the catalog of factors determining the constitution’s durability as a fundamental legal act in the state. The author would like to answer the question whether it is possible in the rapidly changing modern world to maintain the basic principles from a few or several decades ago. The comparative analysis will be based on the indicated objective of the basic laws of selected countries.

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The Perspective of the Reform of the Constitution of Spain in View of the Institutional Status of Autonomous Communities

Abstract

Spain according to the Constitution of 1978 is a unitary state, but its whole territory is divided into autonomous communities that have the widest rights from equivalent territorial units in other European countries. The Constitution restored the possibility of creating regional autonomies, which were abolished earlier during the Franco dictatorship. However, the basic law was adopted before the foundations of regional structures were fully developed, so norms concerning the issues of autonomy were dictated in a general way. Only later legal acts regulated the situation in detail, but often their content depended on the political situation and was not always homogeneous. The creators of the Constitution did not foresee the subsequent forming of autonomous communities in the entire state territory. For over four decades of validity of the Spanish constitution, differences in the way the individual autonomous communities were established and differences in the competences of different regions have emerged. Some autonomous governments have also begun to expand their rights at the expense of the central authorities. The above factors caused a lively discussion among lawyers and politicians over the necessity of constitutional reform in the scope of the territorial system of Spain.

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Reverse Discrimination – How Fundamental Rights Might be Changed without Notice

Abstract

This article addresses the issue how meaning of fundamental rights might be amended by international treaties, based on example of non-discrimination principle, in particular context of putting own national in less favoured situation than non-national (reverse discrimination).

Two European Union (EU) member states, the United Kingdom (UK) and Poland, were then selected for testing the practice. The main reason for the choice of the UK and Poland lies on their opposite legislation tradition. Polish Constitution expressly prohibit any kind of discrimination, whereas in the UK there is no such an unified act.

Firstly, articles defined that the reverse discrimination is. Secondly, it seeks whether the possibility to offset losses from a subsidiary is treated equally to residents and non-residents. National provisions guarantee general rights and freedoms, but their scope and the meaning are continuously modified. Not only judgements of national courts, but also international treaties might define the true meaning of fundamental rights.

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»Abwanderung und Widerspruch«. Zur Aktualität eines analytischen Konzepts des 20. für das 21. Jahrhundert

Abstract

Albert O. Hirschman’s Exit, Voice, and Loyalty. Responses to Decline in Firms, Organizations, and States (1970, in German 1974) deconstructs a stereotype of economic behavior that large parts of social sciences define and analyze as rational and goal-oriented. Hirschman confronts the image of a rational and efficient economy, constantly working towards maximizing output, with the fluctuation and deterioration of its performance. Exit and Voice constitute, according to Hirschman, the fundamental mechanisms available to counteract this tendency for performance decline. He introduces market and non-market forces into his analysis, thereby addressing both economic and political mechanisms, in order to advance the mutual recognition of both disciplines, which Hirschman deems insufficient. At the time of its publication, Hirschman’s study was appreciated for its cross-disciplinary approach. In the eyes of the author however, what grants the book current relevance is its analytical compatibility with devastating present-day problems.

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»Beamtengefühl«: Soziale Funktionen von Emotionen im österreichischen Staatsdienst der Zwischenkriegszeit

Abstract

Research on emotions in the 20th century has shown that in the period after WWI there has been a general tendency to control and suppress the display (if not the experience) of emotions. Based on various sources such as conduct books, autobiographical prose, and disciplinary files this article highlights the role emotions played in civil service in interwar Austria. Emotions could be a disturbance of administrative procedure and everyday office life, but they clearly served to regulate power and gender relations between colleagues, and to define personal boundaries. Specific focus is placed on the interrelation of emotions and political affiliations of government employees, on the particularities of greeting in the office, and on „Beamtengefühl“ – a special feature of this socio-professional group.

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