Constitutions and Social Changes 1

Academia Letters, 2021

Nowadays, the centrality of constitutional law within the legal sphere is evident. I am not referring to constitutional law as a fundamental (and global) instrument for the protection of the fundamental rights of the individual. Instead, I am referring to constitutional law as a subject, that is, a specific disciplinary sector. In a not-so-distant past, a subject that above all served to know the structure of the State-organization. Progressively, constitutional law has asserted itself as the backbone of all contemporary liberal-democratic legal systems. At the same time, as is well known, it is a phenomenon that still persists and that requires those continuous theoretical refinements that have become necessary due to the very constitutionalization of juridicity. From this perspective, the traditional distinction between civil law and common law remains firm, in a historical key, but it must be critically reconsidered with respect to what we could call the politics of contemporary law, focused on the importance of argumentation oriented to the consequences. Here, then, is the sense of the novelty represented by constitutional law and the reason for its methodological success: today, constitutional law is the foundation of legal argumentation. Constitutional law is the fuel (a fuel that feeds itself, we might say) of legal construction, of that categorical constructivism that has nothing authoritarian about it-in the perspective of the rationalistic constructivism famously criticized by Friedrich Hayek)-, but much liberal. Any issue has a connection to the constitutional level. In the past, this connection was often left somewhat in the shade or even radically denied. On the contrary, today, this connection is emphasized and sometimes taken to its extreme consequences within the perspective (precisely political) of the integral protection (and strengthening) of the individual sphere, which in this sense is projected onto juridicity, transforming it.

2016

In a democratic society, the judicial legitimacy of the state and its power, of its institutions, but also the social and political grounds are generated and determined by the Constitution, defined as expressively as possible as being: "The fundamental political and judicial settlement of a people" (I. Deleanu) The supremacy of the Constitution has as main effect the conformity of the entire system of law with the constitutional norms. Guaranteeing the compliance with this principle, essential for the state of law, is first of all an attribution of the Constitutional Court, but also an obligation of the legislative power to receive, through the adopted normative acts, in content and in form, the constitutional norms. Altering the fundamental law of a state represents a political and judicial act extremely complex with major meanings and implications for the socio-political and national systems, but also for each individual. This is why such measure should be very well just...

European Scientific Journal, 2014

This paper tackles the problems concerned the constitutional comparison, paying special attention to the "legal flows" in the Era of globalization of information and legal practices. With "legal flows" we mean the communicative interactions that occur between the legal operators from different parts of the world. These "flows" produce "imitations", judicial dialogue, migrations of constitutional ideas, constitutional borrowing between various legal orders. The analysis of these dynamic phenomena requires two methodological needs: the transdisciplinarity opening to social history, to sociolinguistics and anthropology of communication; and the knowledge of the ideological dimensions of geopolitics and geography in the globalized Era. The comparison of "legal flows" becomes a necessary tool for the contemporary education of each legal scholar, dealing him to be used to dialogue, to accept the "other", to understand the difficulties of the comparison and the respect of the complexity of cultures. This is the only way to promote constitutionalism as common property of mankind.

Estudios Socio-Jurídicos (Universidad del Rosario), 2021

This research aims to evaluate the contours of the authority of transnational law and its consequences in the globalization of law. At the time when the norm is a source for the constitution and legitimacy of power, power is a source for the production and application of the norm. To this end, this text presents the interfaces of the classic precepts of categories such as legitimacy, territory, power, and authority related to State normative production, in contrast to national and transnational demands. It was concluded that the authority that presents itself to transnational law influences national law from the outside so that the basis of the authority's support is not based on economic precepts but on institutional and normative responsiveness to the emerging demands and pretensions. For the development of this research, the inductive method was used, operationalized by the techniques of operational concepts and bibliographic research.

2017

This article analyses the reciprocal interaction between legal globalization and constitutional law in general and in particular Spanish Constitutional Law. From the point of view of systems theory and from a formal-functional un- derstanding of the Constitution, are analysed formal and material legal global- ization that is undergoing Spanish constitutional law, as well as the normative framework that it has provided for those globalization processes. Formal glob- alization, on the one hand, has fundamentally to do with the legal integration in another wider regional (like the European Union) or world-wide legal sys- tem (like International Law) and with the legal understanding of the concept of sovereignty and of competence on the competences. Material globalization, on the other hand, is the result of a regulative homogenization that derives from the supralegal position of both European Union law and international human rights law regarding matters such as the form of government, the eco- nomic constitution or the guarantee of fundamental rights, as well as from the interpretative binding force given to that European and Human Rights law by art. 10.2 Sp. Const. regarding the interpretation of fundamental rights.

Neo-Federalism Working Paper, 2015

This paper questions the relevance of constitutional law in legal systems. Comparative constitutional law scholars have become used to the assumption that constitutional law is a universal point of reference which can be addressed in comparison. If comparative constitutional law is intended to refer to different constitutions, it will be necessary to check the relevance of the particular constitutional law first. Comparative constitutional studies have to develop criteria to address the relevance of constitutional law on the one hand and, on the other hand should be able to go beyond constitution and law to find the relevant comparative perspective.

Challenges of the Knowledge Society, 2012

This paper intends to reveal the role played by the constitutional courts or other bodies entitled to perform the constitutional review of normative acts in enhancing the significance of the National Basic Laws and in developing their content. The research will try to show that the case-law created by the constitutional jurisdictions can shape the perception of the society on the Basic Law, offering a different perspective over its meaning. This is the effect of the interpretation of the Basic Law provisions, which is an inherent part of the constitutional jurisdictions' activity.

Przegląd Europejski, 2023

In the scholarly literature, we can find three different concepts that have essentially the same meaning, but which are not identical to each other. These are the English rule of law, the German Rechtsstaat and the French état de droit. Each concept is derived from specific historical, social and political context. The aim of this article is to examine the meaning and significance of the rule of law in a national and supranational context, while looking for similarities and differences. The main research problem concerns the question of how the rule of law should be understood in a nonstate, i.e. a supranational context. Bearing in mind that in the case of the European Union we are dealing with a non-state context, and despite the fact that the closest concept of understanding of the rule of law applied in the European Union is the German Rechtsstaat, the author adopts the hypothesis that the most accurate narrative in the present context is the English understanding of the rule of law. The considerations and findings are to lead to a better understanding of this concept in the non-state (supranational) context, because compliance with the law, including the rule of law, by all entities (public and private, national, and European) is essential to the further existence of the European Union. The study is analytical, comparative, and explanatory.

Journal of Legal Studies, 2018

The legal terminology represents a specialised language by which both the lawmaker and the person implementing the law focus on a pre-established communication channel which guarantee for the stability, the accessibility and the predictability of the law, as well as on the juridical security. In the situations when the law moves away from various reasons from the unanimously agreed meaning, imbalances are triggered in practice. In order to re-establish the balance of the law, the Constitutional Court intervenes in decisive situations. Thus, our instance of constitutional contentious has been seized on the exception of non-Constitutionality of the provisions of the art. 249 par. (1) of the Criminal Law in 1969 and of the art. 298 of the Criminal Law. The authors of the exception asked the Court to notice that the provisions of the art. 298 of the Criminal Law are constitutional only in the measure when the phrase "it fails to accomplish it" from their contents mean "it accomplishes it by breaking the law".

FUNDAMENTAL LEGAL AND POLITICAL RULES IN THE SCOPE AND THE DEFINITION OF THE CONSTITUTIONAL LAW, 2018

1. Most of the constitutions of the contemporary states describe the legal nature of the state with rudimentary notions statecraft such as basic principles of the state, its sovereignty, separation of power and institutions of the government and fundamental rights of the people. Therefore constitution is the higher law of the state that need special procedure to amends; repeal, altered or added. Accordingly, this higher law is referred as constitutional Law and it is the principal source of the law of the state in which all other laws are being derived . According to Katabaro and Jackson, constitution is the mother law of the state in which all other laws are subjected to it. Therefore, constitutional law acts as a capstone law in the legal hierarchy and, it is the supreme and fundamental law of the state . 2. Constitution of the country has got a binding effect over its people and the institutions of the state which are the subjects of legal person. It determines the constraints of the structure of the power where the execution of the power must always be done in accordance with the constitutional provisions. It expresses the political ideology of the people together with historical traditions and right of the people as citizens of the state. In a democratic society sovereignty of the state is with the people. As constitution law is made by the law making institutions in accordance with the consent of the people it has got a widespread public legitimacy and certain procedures are to be adopted to change the constitution which is generally a hard approach. Finally, constitutional laws of the country are always being in accordance with the internationally recognized standards in order to achieve due recognition to the constitution as supreme and fundamental law of the state