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 Bavarian and the Indian constitutions were developed in almost the same period of time. Because of historic experiences the prospect of legal certainty was the determining factor for the representatives of the people in India and Bavaria. They elaborated functioning constitutions and integrated their fundamental ideological principles quite naturally. The Indian and the Bavarian constitution are characterized by their aspirations to balance social injustice, particularly by striking a balance between individual liberty and social need.The history of political economy (...) demonstrates a broad variety of interpretations regarding the meaning and function of value concepts. When we review all these value concepts we identify two poles of the value-concept that still lack compatibility with each other in economical and philosophical schools to this day. Value systems have to be applied situation-sensitive and are in need of a frequent critical reflection; they need to be refused or changed if necessary.Examining some examples of the Bavarian Constitution, we indicate some concordances with regard to contents of the Indian Constitutional Law. The equivalences in the Bavarian and the Indian Constitution incorporate entitlements which should protect citizens against an unjustified economical assault upon their existence. The social value conflicts that occur more and more because of the hiatus to the constitutionally warranted values, and that cannot be solved simply by law or political adjustment, are therefore up for discussion. We then examine the disparity between entitlements and reality and discuss the hierarchy of our values. (shrink)

A revised version of Nathaniel Chipman's Sketches of the Principles of Government (1793), this early treatise on the underlying principles of American government addresses civil laws and obligations, the social state, rights of property, sovereignty and political power. An important early contribution to American constitutional law, it is also interesting for its Federalist perspective on the evolutions of political institutions from Washington to Jackson.Nathaniel Chipman [1752-1843] was a leading Vermont Federalist who was instrumental in that state's admission to the (...) Union. He became Vermont's chief Justice and went on to represent Vermont in the U.S. Senate. He was also one of America's first significant legal writers.One of his books, the Reports and Dissertations (1793) is included in Warren's list of "the four general works on the Common Law... [of] permanent value in American Legal Literature.": Warren, A History of the American Bar 335-336. See Cohen, Bibliography of Early American Law 5752, Sabin, A Dictionary of Books Relating to America 12824, Dictionary of American Biography II:73-74. (shrink)

In legal orders around the world, commitments to democracy, liberalism and constitutionalism are increasingly eroding. Although political and constitutional theorists often lament this trend, they invariably adopt frameworks that are indifferent to these commitments. My aims in this article are both critical and constructive. As a critical matter, I will expose the indifference of the leading political and constitutional theories to the emergence, maintenance and refinement of liberal democratic constitutional orders. As a constructive matter, I will (...) draw on Immanuel Kant’s constitutional theory to explain why realizing such a form of governance is a public duty and why receding from it is a public wrong. (shrink)

Abstract: In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court for the first time in American case law explicitly applied the principle of double effect to reject an equal protection claim to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances it is permissible unintentionally to cause foreseen evil effects that would not be permissible to cause intentionally. The court rejected the constitutional claim on the basis of a distinction marked out (...) by the principle, i.e., between directly intending the death of a terminally ill patient as opposed to merely foreseeing that death as a consequence of medical treatment. The Court held that the distinction comports with fundamental legal principles of causation and intent. Id. at 802. -/- Critics allege that the principle itself is intrinsically flawed and that, in any event, its employment in Vacco is without legal precedent. I argue in response to contemporary objections that double effect is a valid principle of ethical reflection (Part II); claims to the contrary notwithstanding, double effect analysis is a pervasive, albeit generally unacknowledged principle employed regularly in American case law (Part III); and drawing on the preceding two sections, Vacco's application of the principle of double effect is appropriate (Part IV). -/- My conclusion is that [o]peration of some form of the principle, by whatever name, is inevitable. In an imperfect world where duties and interests collide, the possibility of choices of action foreseen to have both good and evil consequences cannot be avoided. In rare circumstances, ethics and the law require that a person refrain from acting altogether. More often, however, they provide that a determination of whether an actor may pursue a good effect although knowing it will or may unintentionally cause an harmful effect requires a more complex analysis - a double effect analysis. -/- Keywords: Equal protection, double effect, intention, physician-assisted suicide, Constitutional Law, Bioethics. (shrink)

The article discusses the issue of realisation of the principles of legitimate expectations, legal certainty and legal security in the specific area of administrative activity – detailed territorial planning process. During this long and complex process, it is very important to ensure the protection of personal constitutional rights and guarantee the security of legitimate expectations, legal certainty and other essential principles. The article analyses the circumstances conditioning violation of the principles of legitimate expectations, legal security (...) and legal certainty and provides suggestions on the improvement of legal framework in order to avoid these violations. (shrink)

‘On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality’. B. R. Ambedkar’s famous last speech to the Constituent Assembly on 25 November 1949 still resonates within contemporary Indian constitutional law, and even more so his following interrogation: ‘how long shall we continue to live this life of contradictions?’ Prima facie societal, the contradiction is however also a (...) temporal one, Indian constitutional law being founded on both the British traditional idea of ‘continuum’ and the American inspired revolutionary principles of ‘pursuance’ of a novel legal and social order. Two recent Indian Supreme Court decisions pertaining to the de-criminalisation of same sex relations ( Navtej Singh Johar v. Union of India) and for the right of menstruating women to enter the Sabarimala Temple in Kerala ( Indian Young Lawyers Association v. Union of India) offer through their differing and sometimes dissenting opinions a glimpse at those temporal contradictions. Through an analysis of both decisions and in particular that of Chandrachud J. and Malhotra J.’s judgements, this article seeks to highlight two radically differing conceptions of temporality applied to constitutional issues, which can themselves be linked back to the transposition of the legal positivist discourse in India within the colonial era: on the one hand, an attempt to continue Common law’s empirical-based tradition and on the other hand, an (apparently) a-historical perception of Law drawn from neo-Roman civilian legal discourse and later normative positivism. If both branches of legal reasoning aim at protecting minorities’ rights, the value they inscribe to History within the realm of Law cannot be further apart. (shrink)

The author offers a sketch of his thesis that legal principles are optimization commands. He presents this thesis as an effort to capture the structure of weighing or balancing and to provide a basis for the principle of proportionality as it is applied in constitutional law. With this much in place, he then takes up some of the problems that have come to be associated with the optimization thesis. First, he examines the objection that there are no (...) such things as principles, but only different modes of the application of norms. Second, he discusses problems concerning the concept of an optimization command and the character of the "ought" contained in principles. He concludes that the distinction between commands to optimize and commands to be optimized is the best method for capturing the nature of principles. (shrink)

This article explores the idea of Parliamentary sovereignty in British constitutional theory. Two general explanations for this idea are considered: firstly, that the existence of a sovereign entity is a conceptually necessary precondition for the existence of a state or constitution; secondly, that Parliament is sovereign, if it is, in virtue of a rule of recognition whose existence and content may be empirically determined. The former account, it is suggested, looms large in orthodox British constitutional theory but cannot (...) be sustained. Herbert Hart's version of the latter account is examined by reference to the decision in Jackson v Attorney General but is also found wanting. Given the inadequacy of these accounts, it is contended that the idea of Parliamentary sovereignty is misconceived. Building on insights in the work of Hart and Dworkin, it is argued that the British constitution instead rests on the ideal of government under law or the principle of legality. The putative value of legality, it is contended, will shape or control the many different principles that condition the exercise of official power. (shrink)

Certainly principles of criminal liability may be understood as rules or norms outlining orders or prohibitions and standing out among other norms with their weight, for legal culture, legal doctrine, etc. In such a classic approach they are norms defining basic rights and obligations in the applicable criminal law. However, is it the only possible and cognitively interesting meaning of the word “principle” in jurisprudence? From the semiotic point of view, they can occur in three forms: special-kind (...) norms, teleological directives, rules which constitute valid performance of conventional activities. In an extra-directival sense these principles may be understood as models-descriptions of shaping the system of criminal law. From a theoretical and practical point of view principles addressed to the legislator are extremely weighty—they can be called rules constructing the system of criminal liability. These all problems are discussed in the article. (shrink)

Hungarian legal scholarship is dominated by a formal, “technical” conception of the rule of law and this is even truer in the jurisprudence of criminal law. This fact can be demonstrated by analysing the case-law of the Hungarian Constitutional Court with regard to the constitutional review of judicial decisions and criminal statutes. In constitutional complaint proceedings the Constitutional Court has ruled out legal certainty issues from the review of legal norms and judicial decisions (...) by stating that legal certainty is not a value of constitutional importance and does not raise human rights issues. In this paper the author argues for the claim that conceiving the principle of the rule of law and legal certainty as a formal and technical value which is isolated from the principles of political morality, can lead to a narrow and weak protection of human rights. If the rule of law and legal certainty issues are regarded as amoral values, (criminal) norms can become servants of political interests where highly unjust laws can be held to be constitutional. (shrink)

Criminal law scholars approach legality in various ways. Some scholars eschew over-arching principles and proceed directly to one or more distinct “rules”: (1) the rule against retroactive criminalization; (2) the rule that criminal statutes be construed narrowly; (3) the rule against the judicial creation of common-law offenses; and (4) the rule that vague criminal statutes are void. Other scholars seek a single principle, i.e., the “principle of legality,” that they claim underlies the four rules. In contrast, I believe (...) that both approaches are misguided. There is no such thing as a single “principle of legality;” yet, the four aforementioned rules are not unrelated to each other. The so-called “principle of legality” consists of two distinct norms that derive, respectively, from two fundamental principles of criminal justice, viz., the principle, “No person shall be punished in the absence of a bad mind,” and the principle that underlies the maxim, “Every person is presumed innocent until proven guilty.” The first norm of legality explains the rules regarding ex post facto legislation, and rules regarding “notice” and “fair warning” of judicial decisions. When a person is punished for violating a rule that was non-existent or unclear at the time he acted, he is punished for conduct that the state now condemns and seeks to prevent by means of penal sanctions. Accordingly, at the time the person is prosecuted, his claim is not that he did not do anything that the state regards as wrong, but, rather, that he neither knew nor should have known that he was doing something that the state would come to regard as wrong. He ought, indeed, to be excused for his mistake, but only because of a principle that is common to excuses generally: “No person ought to be punished in the absence of a guilty mind.” He should be excused because even when a person does something the state condemns and seeks to prevent, he ought not to be blamed for it unless he was motivated in a certain way, namely, by an attitude of disrespect for the legitimate interests of the political community by whose norms he is bound.The second norm of legality informs several of the remaining rules, though not all of them. The second norm is that a person ought not to be punished in the name of a political community unless it can confidently be said that the community officially regards his conduct as warranting the criminal punishment at issue. It is a norm that is most commonly associated with the rule of lenity, but it is not confined to the construction of statutes that are ambiguous or vague. It can also be also violated when a person is punished for violating a statute that has fallen into desuetude, regardless of how widely promulgated or narrowly defined the statute may be. This second norm derives from a principle that also underlies the presumption of innocence - the only difference being that the presumption of innocence is a preference for acquittal in the event of uncertainty regarding the facts which an actor is charged, while the second norm of legality is a preference for acquittal in the event of uncertainty regarding the scope of the offense which he is charged.Nevertheless, one “rule” remains that this analysis throws into question - namely, the rule that “vague” criminal statutes are void. Criminal statutes are sometimes so broadly defined that they do, indeed, infringe constitutionally protected rights of speech, movement, etc. - in which event they ought to be invalidated on those very grounds. And criminal statutes are sometimes so broadly drafted that, before applying them, courts ought to construe them to apply only to constitutionally unprotected acts that courts can confidently say the relevant political community regards as warranting punishment. But once statutes are so construed to apply only to constitutionally unprotected conduct, courts have no further reason to invalidate them on grounds of “vagueness.” Lack of “notice” is no reason to invalidate them because, with respect to the narrowly defined conduct such statutes are construed to prohibit, “common social duty” alone ought to alert actors that their conduct is suspect. (shrink)

The principle of sustainability is generally taken as a good, but what does sustainability really mean? The notion of sustainability has been at the center of global governance debates for more than a decade and many countries across the world include sustainability in their constitutions. This paper argues that in order to understand the concept of sustainability in a constitutional context, we need to turn to the notion of dignity. The paper explores the concepts of sustainability and dignity (...) and their meanings in the framework of climate justice and related questions and by discussing them in the context of Kantian and republican theory. In addition, the paper looks at intriguing court cases on the importance of nation states meeting their climate law duties. The paper concludes by exploring new uses of the sustainability concept. EU constitutional law will serve as a laboratory in testing these questions. (shrink)

Balancing implies a comparison among goods, values, principles and rights that cannot be ranked on a single scale of measurement, ie there is no unequivocal measuring unit applicable to all of them. In such situations, it is common to state that one has to compare incommensurable things. Indeed, this issue has been mentioned by several authors as a strong reason in favour of abandoning balancing (and proportionality) as a rational form of judicial argumentation and decision-making. My article aims at arguing (...) that this objection is based on fallacious assumptions concerning the relations among three concepts: incommensurability, incomparability and balancing. Initially, what is at stake is the analysis of the connection between comparing values (or principles) and commensurability. The results of this initial analysis were then used to provide greater analytical strength to the specific debate on balancing and comparing rights in order to show that incommensurability does not imply incomparability and that rational decisions are possible even when incommensurable values are at stake. Since balancing (and proportionality) implies comparisons, and since constitutional principles are doubtlessly incommensurable (for there is no common metric to measure them), arguing for the comparability of incommensurable principles is an unavoidable step if one aims at demonstrating that balancing may be a rational procedure after all. (shrink)

The Swiss Confederation is characterised by a long constitutional evolution that can be divided into several important periods: the Old Swiss Confederacy (13–14 C.), Helvetica (1798–1848), Mediation (1803–1814), Restoration (1815–1830), Regeneration (1830–1848) and development since 1874. It can be stated that Switzerland adopted a modern, democratic constitution early; this state is the oldest democratic republic in Europe. In 1874, many amendments to the effective Constitution were made and a lot of gaps in legal regulation came to light, which (...) led to the opinion that in order to remove those shortcomings, a few specific amendments were no longer sufficient; therefore, it was decided to make substantial changes to the Constitution. The new Constitution was approved by the people and the cantons in the referendum of 18 April 1999 and came into effect on 1 January 2000. The most significant features of this Constitution include the entrenchment of the principles of democracy, federalism, and of the state of law and social welfare. Pursuant to the principle of division of governmental powers, the governing of the state is carried out by the following federal institutions: the Federal Assembly, the Bundesrat and the Federal Court. (shrink)

This article examines the following questions: Is there a human right to food and water in the international sphere? Is it possible to derive such human rights as “general principles of law” within the meaning of public international law, which are independent from contractual agreement or recognition by States? What exactly would such a right to food and water comprise? Is there a constitutional rank relationship evolving between human rights and public international law which might affect the interpretation of, (...) e. g., WTO law? How can conflicting considerations be balanced? (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)

John Rawls proposed, as what he called “the liberal principle of legitimacy,” that coercive exercises of political power can be justified to free and equal dissenters when “in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse.” Does “unwritten constitution” there refer to norms of constitutional import, but that subsist only as custom, not as law? To norms that subsist as common law but not as code law? To (...) empirical regularities of political practice, as opposed to normative rules and standards? Which interpretation is best? (shrink)

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 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 Long Arc of Legality breaks the current deadlock in philosophy of law between legal positivism and natural law by showing that any understanding of law as a matter of authority must account for the interaction of enacted law with fundamental principles of legality. This interaction conditions law's content so that officials have the moral resources to answer the legal subject's question, 'But, how can that be law for me?' David Dyzenhaus brings Thomas Hobbes and Hans Kelsen into (...) a dialogue with H. L. A. Hart, showing that philosophy of law must work with the idea of legitimate authority and its basis in the social contract. He argues that the legality of international law and constitutional law are integral to the main tasks of philosophy of law, and that legal theory must attend both to the politics of legal space and to the way in which law provides us with a 'public conscience'. (shrink)

BackgroundThe principle of equivalence in prison health has been established for nearly four decades. It seeks to ensure that prisoners have access to the same level of healthcare as members of society at large, which is entrenched within the international legal framework and England’s national health policies.AimsThis study examined how key policymakers interpret and implement the principle of equivalence in English prisons. It also identified opportunities and threats associated with the application of the principle.MethodsIn total, 30 (...) policymakers took part in this research. These participants engaged in policymaking activities and occupied positions of authority in the prison field.ResultsDespite the policymakers’ consensus on the importance of the equivalence principle, there was a varying degree of understanding regarding what constitutes ‘equivalence’. Participants described how the security culture impedes prisoners’ access to healthcare services. Additionally, the increasing size and complexity of the prison population, coupled with a diminishing level of resources, reduce the level of care being provided in prisons and thus compromise implementation of equivalence in English prisons.ConclusionsInconsistent interpretation of equivalence, the prevailing security drive, increasing numbers and health complexities of prisoners and fiscal austerity threaten the implementation of equivalence in English prisons. This research calls for new guidance on how to interpret and implement equivalence, along with measures to educate prison governors and staff on the prison rehabilitation value, ensure greater investment in prison health and consider alternatives to imprisonment to future-proof the principle of equivalence in the English prison system. (shrink)

ABSTRACT The Plurinational Constitutional Court is the final arbiter of legal disputes involving the interpretation and application of the Political Constitution of the Plurinational State of Bolivia (2009) (BC). Its role is especially important given that the BC follows a type of decolonial ‘hybrid’ constitutional model that incorporates the Indigenous concept of Vivir Bien (VB) as part of their legal paradigm. Using tools from Case Law Analysis and Critical Discourse Analysis, this article explores the Court’s judicial (...) interpretation and application of VB and its principles to a legal dispute regarding Indigenous Peoples’ constitutional right to be consulted over government measures impacting their ancestral territories. The results indicate that the judges would foreground and background different aspects of the VB principles to support their views, resorting to their use in a hierarchical form that is not mandated in the BC. This shows a gap between formal incorporation and the practical application of the VB principles. This research informs the fields of legal studies, decolonial thought, and discourse studies. (shrink)

Legal reasoning requires identification through search of authoritative legal texts (such as statutes, constitutions, or prior judicial opinions) that apply to a given legal question. In this paper, using a network representation of US Supreme Court opinions that integrates citation connectivity and topical similarity, we model the activity of law search as an organizing principle in the evolution of the corpus of legal texts. The network model and (parametrized) probabilistic search behavior generates a Pagerank-style ranking (...) of the texts that in turn gives rise to a natural geometry of the opinion corpus. This enables us to then measure the ways in which new judicial opinions affect the topography of the network and its future evolution. While we deploy it here on the US Supreme Court opinion corpus, there are obvious extensions to large evolving bodies of legal text (or text corpora in general). The model is a proxy for the way in which new opinions influence the search behavior of litigants and judges and thus affect the law. This type of “legal search effect” is a new legal consequence of research practice that has not been previously identified in jurisprudential thought and has never before been subject to empirical analysis. We quantitatively estimate the extent of this effect and find significant relationships between search-related network structures and propensity of future citation. This finding indicates that “search influence” is a pathway through which judicial opinions can affect future legal development. (shrink)

This paper explores the possibility of a standard legal language (e.g. English) for a principled evolution of law in line with technological development. In doing so, reference is made to blockchain networks and smart contracts to emphasise the discontinuity with the liberal legal tradition when it comes to decentralisation and binary code language. Methodologically, the argument is built on the underlying relation between law, semiotics and new forms of media adding to natural language; namely: code and symbols. In (...) what follows, I will concentrate on the study of factors that explain why such approach can be fruitful for the future of law and innovation. I have three reasons for selecting this topic. The first is a more pragmatic reason, based on my current research of law as a linguistic phenomenon. Secondly, the topic does also touch the matter on binary code language, rivalrous to legal alphabetic language. Lastly, the study aims at emphasizing the pivotal role of the jurist as an interpreter in a changing society accommodating diverging realms of reality. The study is structured as follows. Firstly, a quick exam of the traits of blockchain networks would provide the contextual link to establish the arguments in support of the need of a standard legal language. Secondly, a comparison between liberal legal institutions and theory of semiotics is set to perceive their functioning and ascertain their limits in the light of todays unprecedented changes. Thirdly, a summary on blockchain networks’ legal features would constitute the thrust behind the idea of a uniform legal language. Methodologically, the argument does also establish some relations with classical laws of physics and philosophy of media. Its aim is to demonstrate how the suggested legal interpretation and semiotic-based approach can contribute to overcome existing stumbling blocks including, but not limited to, the lack of cooperation at the international level as well as the gap in State norms when it comes to innovation. In this sense, the proposed strategies do not intend to replace current advances in the legal thought. In contrast, it seeks to harmonise their results providing a methodical approach that can concur to inform a new technique to address new controversial issues. In practice, the proposed method regarding the adoption of a uniform legal language would lower transactive costs in terms of normative coordination in the matter of international cooperation and in the definition of applicable law among different legal systems. Alternatively, it might contribute to the convergence of legal systems and/or their underlying concepts. Differently put, article’s contribution can be envisaged in fostering juridical consistency with regards to different forms of languages’ coexistence. (shrink)

The article analyses the regulation for premature termination of the Parliament in Latvia. The introductory part of the article provides a short characteristic of the Constitution of Latvia - the Satversme adopted in 1922, and outlines the basic principles of legal regulation of the Parliament, i.e. the Saeima. Further chapters of the article analyse historic development of the premature termination of the Parliament. On 15 February, 1922, when the Satversme was adopted, only one mechanism for the premature termination of (...) the Parliament was established there: dissolution of the Saeima. However, relatively recently, in 2009, after a prolonged public discussion another mechanism for the premature termination of the activity of the Saeima was established, which was the recall.1 Both models of the termination of the activities of the Parliament are analysed in the article by specifying the principal differences between them. Along with the analysis of the provisions of the Constitution and theory, the practice of dissolution of the Saeima is characterised as well, because in 2011 the Parliament (the Saeima) was dissolved in a constitutional way for the first and so far the only time in the history of Latvia and extraordinary elections were held. (shrink)

In line with my 2021 book Freedom of Expression as Self-Restraint – albeit in a much shorter compass – this essay will argue against the moral defensibility of hate-speech laws like those in the United Kingdom and Canada and the Antipodes and most countries of western Europe. Such laws contravene the moral principle of freedom of expression, and therefore contravene one of the central precepts of liberal democracy. Under that principle, a necessary condition for the moral permissibility of (...) any law that proscribes some type or instance of communicative activity is that the activity in question is constitutive of serious communication-independent wrongdoing. Given the centrality of the notion of communication-independent wrongdoing to the principle of freedom of expression, we should begin here with an explication of that notion. (shrink)

Presidential pardon has always existed in criminal law and continues to constitute a very important competence of the head of state in many modern day countries. In the past, the clemency given by the sovereign represented an act which showed his/her mercy upon their subjects. It was often used as a tool to show the arbitrary will of the sovereign that constituted the law, rather than the law itself. Therefore, the classical school of criminal law that appeared in the 18th (...) century and emphasized the importance of the principle of legality, opposed harshly every kind of arbitrary deciding that excluded the law at the interest of the sovereign. This school is among the only interpretations of criminal law that engages for a complete abandonment of institutes such as pardon or amnesty. The revolutionary French Penal Code of 1791, which was strongly influenced by the classical school, excluded clemency for the proved wrongs that were severely punished. However, due to imperfections of the criminal justice system, amnesty and pardon or clemency, continue to exist and to be used in modern day criminal law. They are no longer considered acts of arbitrary decisions of the sovereign, instead they should represent important instruments of criminal law, used rarely and wisely with specifically designed goals that aim to bring justice rather than deny it. However, there are many cases when these institutes have been inappropriately used in a very arrogant way which shows that the ancient regime is not yet over for some countries in which the highest institutions continue to act as old and middle age despots. This article will analyze the legal reasoning of the institution of presidential pardon. It will try to establish why the classical school was so strictly opposed to this institute making use of the studies and interpretations found in the writings of Cesare Beccaria. It will explain the philosophy of modern day institutions of amnesty and pardon and the way in which they are regulated in the legal theory and practice. The article will explain the recent developments in Macedonia in regard to the use of presidential pardon. The methods to be used consist of desk research, historical and comparative methods and analysis of legal texts, laws and judicial decisions. (shrink)

Decisions made so far by the Federal Constitutional Court of Germany have always been characterized by their writing and content, even down to details, precision, accuracy, professional legal style of writing, always clear in the elaboration and adjudication of cases from its competence, but surprisingly, in our country, only a few have paid attention to the German Court in a scientific context, which can be seen from the only few materials we possess in the Albanian language. The purpose (...) of this paper is to provide an overview of this Court, so that the comparative aspects can be made, highlighting its advantages and disadvantages, in case of dictating the state need for reform of the Constitutional Courts. Those who have institutionalized this constitutional institution know its value in the system of constitutional justice, which performs it in terms of protection of constitutions, its principles and value, and most importantly in the protection of freedoms and rights of human beings and citizens. The Federal Constitutional Court of Germany, to this date, has conveyed the efficiency of the protection of the German legal order, the serious approach and law interpretation, for the protection of freedoms and human rights, which ranks this court into a high level among all other powers in the German law system. The author, in the following paper, gives an overview of this Court starting with its history, organization and functioning, which today undoubtedly constitutes one of the most important constitutional courts in the world. (shrink)

The main subject of the present research is the enforcement of the European Union law in the domestic legal order. This topic was chosen considering the Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the European Community and especially its declaration No. 17 on primacy of EU law. This article will explain the meaning of primacy of the European Union law and the resulting problems in some EU Member States, as well as possible (...) solutions to tackle the problems. The primacy of the European Union law over the national law was recognised as one of the constitutive principles of the European Union. The article includes relevant provisions of the Lisbon Treaty that deal with the rules concerning the legal requirements of the primacy of the European Union law in the EU primary law. The European Court of Justice has developed the meaning of the principle of primacy, which means that the European Union law should take precedence over national law (even over constitutional provisions) and should there be any conflicts between EU law and national law, every national court is obliged to apply the law of the European Union. The main issue of this article is analysing the principle of primacy of the European Union law over the Lithuanian law. (shrink)

Philosophy, political philosophy and legal philosophy are all concerned with issues of justice and the validity of law (also known as the force of law ). These two problem areas are discussed against the background of the intersection of traditional theories of natural law and legal positivism, mediated by the contribution of the historical school. In addition the influence of the two neo-Kantian schools of thought (Baden and Marburg) required attention, particularly because certain elements in the thought of (...) Derrida, Dooyeweerd and Habermas are (implicitly) influenced by these schools. Derrida positions the problem of justice within the context of distinguishing universality and singularity (what is unique) and he alludes to the difficulty of bridging the gap between the two. It turned out that modern nominalism had an important effect on all three of the mentioned thinkers, in spite of their willingness to recognize “extra-mental” forms of universality. The problem of legal validity (the “force of law”) appears to be an instance of the interconnectedness between different aspects of reality, namely the jural and the physical . In order to account for this coherence Dooyeweerd developed a theory in which both the uniqueness and coherence between different aspects are explained in terms of inter-modal analogies. On this basis the difference between law and justice is specified by distinguishing between constitutive legal principles and the regulatively deepened (disclosed) principles of legal morality (such as f ault, equity, bona fides and so on). It will be shown that the idea of positivization , shared by thinkers coming from different backgrounds, is an important ingredient of an understanding of the nature of legal validity . Explaining it will require a focus on the nature of state law, of the power of the state, and of the legal competence entailed in the office of government. (shrink)

Three paradigms of legal positivism -- The pure theory of law : science or political theory? -- Kelsen's principles of legality -- Kelsen's theory of democracy : reconciliation with social order -- Democratic constitutionalism : Kelsen's theory of constitutional review -- Kelsen's legal cosmopolitanism -- Conclusions : the pure theory of law and contemporary positivism.

The article underlines the significance of social rights as important constitutional rights of a human being and emphasises the peculiarities of their nature from the point of view of not only national, but also international law. The article presents an analysis of the constitutional doctrine of the protection of guarantees of social rights, which has been formulated by the Constitutional Court of the Republic of Lithuania in the course of considering the issues of reduction of social guarantees—pensions (...) and remuneration, which were determined by the economic crisis. In the Constitutional Court’s jurisprudence the personal right to social security has been construed in the most broad and comprehensive terms. The human rights and freedoms enshrined in the Constitution have been treated as constituting an integrated and harmonious system, and social rights have been interpreted not only as certain obligations of the state to the public, which inter alia are determined by the social purpose of the state, but also as a person’s individual rights, for which judicial defence is guaranteed. Such concept of the said rights has also been influenced by international law, inter alia the jurisprudence of the European Court of Human Rights. Social rights, while being an object of regulation of international law, have been forming the European doctrine of guarantees of these rights and have influenced the concept of these rights in national law. The main attention in the article is devoted to the analysis of the doctrine formulated in the Constitutional Court’s jurisprudence in relation to the correction (limitation) of social rights (payment of pensions and remuneration) under the conditions of economic crisis. In the article the period of formation of this doctrine is divided into two stages: the period of 2002–2006, when the Constitutional Court had to decide regarding the compliance of the legal acts whereby social guarantees had been constricted with the Constitution, and which was caused by the consequences of the so-called Russian economic crisis for the economic development of the state of Lithuania; and the period from 2009 to date, during which the Constitutional Court has been forming the constitutional doctrine of limitation of social rights, which was conditioned by the outcomes of the global economic crisis for the economy of the state of Lithuania. The article raises a question as to whether the constitutional doctrine being formed by the Constitutional Court in relation to the limitation of social rights under the conditions of economic crisis may be assessed as an independent one or whether it still remains to be a separate case of limitation of rights within the general doctrine of limitation of human rights. On the basis of the analysis of the Constitutional Court’s jurisprudence, a conclusion is drawn that the criteria established in the Constitutional Court’s doctrine of limitation of social rights under the conditions of economic crisis are even stricter than the universally recognised criteria for the limitation of human rights in the law of human rights, therefore, it is possible to assess the doctrine of limitation of social rights under the conditions of economic crisis, as formulated by the Constitutional Court during 2009–2012, which is the continuation of the previous doctrine, as an independent doctrine, the basis of which, undoubtedly, remains to be formed by the general principles of limitation of human rights recognised in the law of human rights. The article is not only confined to the analysis of the jurisprudence of the Constitutional Court of the Republic of Lithuania, it also provides examples of construction of the doctrine of social rights (inter alia those influenced by the economic crisis) by certain other constitutional courts. (shrink)

In the first part of the paper the authors analyze how the distinction between mandatory rules, principles in the strict sense and policies can be understood in structural terms and in terms of reason for action. In the second part, they attempt to clarify which kind of legal provisions embrace constitutional statements recognizing liberty rights are.

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 extent to which the legal doctrine addresses manifestations of constitutionalism has been constantly growing. However, the majority of research in constitutionalism focuses on the analysis of the power of the Constitution and the fundamental principles entrenched in it whereas ordinary branches of law, including civil procedure, affected by the constitutional law remains outside the scope of a deeper analysis. The author of the present paper is convinced that certain aspects of the impact of constitutional justice on (...) such branches as, in particular, civil procedure deserve deeper interest. The modest scope of the paper precludes an extensive analysis of the role of the Constitution as a fundamental binding Act and today’s abundant doctrine of Lithuania’s Constitutional Court in civil procedure. Therefore, the present paper is confined to an analysis of individual aspects of direct application of the Constitution and the doctrine of the Constitutional Court. The article analyses the power of the Constitution and its impact on the civil procedure as an Act laying down the fundamental principles binding the legislator in adopting procedural instruments and principles to be followed by courts and as a remedy for violations of rights or a tool to address loopholes and collisions of law. Courts of general jurisdiction perform the control of legitimacy of legal Acts by checking their compliance with the Constitution in individual cases and by applying to the Constitutional Court for repeal of anticonstitutional norms or by applying the Constitution as an Act of direct effect to eliminate loopholes, interpret statutes and deal with collisions of legal norms. The author believes that the fact that the courts of general jurisdiction frequently raise questions of incompliance of legal Acts with the Constitution and decisively apply to the Constitutional Court evidences a high level of legal culture and legal consciousness of the judges. That fact may also serve as a precondition for the growth of confidence in the judiciary as judicial procedures may contain no uncertainties as to the constitutionality of the statutes to be followed in litigation. (shrink)

Following the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation of administrators from (...) political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles. (shrink)

This essay deals with conditions, challenges and perspectives concerning the legal system of the European Union after the Lisbon treaty has entered into force. It starts out by recalling constitutional principles such as primacy, direct effect and consistent interpretation of the European legal order on the one hand and the relationship of cooperation between the Court of Justice and national courts – notably pointing out the importance of the preliminary procedure (Article 267 TFEU) – on the other (...) hand. In addition, characteristics of the legal system of the European Union such as the integration of national legal systems are highlighted. It is accentuated that the legal community of the European Union depends on the acceptance by all 27 Member States. Furthermore, the normative quality of European law-making is discussed as well as the necessity for a sufficient democratic legitimation of European Law. As impressively illustrated by the financial crisis, the European Union is much better equipped with possibilities to effectively fulfil regulatory tasks than any Member State. The author shows developments with regard to European Union citizenship, non-discrimination, the Charter of Fundamental Rights - that is now equipped with binding character – and the vertical distribution of competences between the European Union and the Member States, including explanations relating to subsidiarity requirements and their judicial review. Moreover, challenges to the institutions of the European Union are discussed. (shrink)

Jürgen Habermas takes the realization of rights through the democratic self-organization of legal communities to be the normative core of emancipatory politics. In this article I explore the implications of this claim in relation to the requirements of justice. I argue that Habermas's discourse theory of democratic legitimacy resupposes a substantive principle of justice that demands the equalization of effective communicative freedom for all structurally constituted social groups in any constitutional state. This involves the elimination of a (...) range of structural injustices rooted in the complex interrelationships between political, economic and cultural orders. In the final section I sketch briefly the implications of this analysis in the context of ongoing globalization processes. It is suggested that the most effective way to establish a just system of global governance is to equalize effective communicative freedom among nation-states. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Beginning in the 20s of the last century, historical research into Eiximenis's life and writings has thrown into relief his contribution to the language and political ideas of the kingdoms and towns of the Catalan-Aragonese Crown. Of fundamental importance has been the work of medievalists from North America, and in particular that of Canadian scholars during the last decades of the twentieth century.More recently, a number of studies have (...) underlined the decisive contribution of Eiximenis – a representative of a European textual tradition among friars of the Minor Observance that extended from Oxford to Florence – to the establishment of a system of ethical values for the economic sphere and for trading practices that continued to be developed by members of the Franciscan Order throughout the high middle ages and early modern period.As a follow-up to these studies, I believe that a program of textual analysis and systematic investigation of Eximenis's work could provide further information about the range and significance of his political thinking, based as it was on applying, in typically Franciscan fashion, experimental observation to gain an understanding of the nature both of the societas and of the market, the latter being thought of as a defining expression of civic institutions in Western Europe. This same experimental approach can be found in Franciscan thinking from the catalan-aragonese realm not only in the work of Arnau de Vilanova and Ramon Llull, but also in that of Pere Tomas and Anselm Turmeda, two figures fundamental to the preparation and political engagement of the Friar of Girona.1. The concept of contractIn Eiximenian texts, the communitarian dimension is defined as one that is of necessity based on contract. It is expounded in the long opening section of the Dotzè del Crestià, where Eiximenis outlines the political value of the civitas, as well as setting out the elements that constitute civic life.Borrowing from Aristotle's discussion in the First Book of the Politics , the Franciscan friar strongly affirms that one of the principal reasons behind the civitas is the "necessitat de contractes," the need for contracts. Going far beyond the highly qualified analysis of money and coinage set out by the Greek philosopher, Eiximenis here maintains that the aims of the community is the profit that the citizenry realises by means of different forms of exchange, through buying and selling, through contracts, and through trading. Moreover, that the binding nature of trading-contracts is a matter of concern not of the city in the narrow sense, but of each and every kind of human social organization.Even before contract-law, or, better said, conventional or foral procedure, Eiximenis views the idea of the contract as an essential part of the ethical and organizational principles of living as a community, the essence of the civitas. And it is of great significance that when he is discussing the value and function of money, Eiximenis chooses to call the sorts of exchange that to-day we term economic or financial les civils conmutacions, or exchanges between citizens.These lexical hints allow us to capture the strength of meaning and value, the ethical perspective by which the Gerundense defines the inextricable union of the market and civic society. But it is not only an analytical perspective, significant as that is, that unites market and civic ethics; we are presented with a value judgment of contract and economic exchange as elements that determine the very idea of civilitas.The "bona civilitas," an expression that can be roughly translated as "good civic culture," is in fact founded on a concept of economic ethics that has as its distinguishing feature the logic of profitable exchange, of the distribution of that profit, of contractualization, and of the circulation of goods and money. It is characterised by redefining the anti-value of avaritia as a real.. (shrink)

This essay on law and religion appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of a similar entry in the book’s first edition. The essay opens by broadly discussing the complex relationships between law and religion writ large as movements in human history – social, cultural, intellectual, and institutional phenomena with distinct but often overlapping logics and concerns. It then hones in on the (...) efforts of secular law to make sense of religion and determine its place in the civil state. The essay argues that, while the questions raised by the American Bill of Rights’ religion clauses connect in some important respects to broader constitutional principles such as free expression and equality, the most interesting and theoretically excruciating conundrums involving religion need to be approached on their own unique terms. Two useful rubrics for such understanding are “separation” and “deference.” Any honest account must also admit, however, that there is an “intractable residue,” questions in the relation of religion and law to which there simply is no determinate or completely satisfactory answer. Finally, the essay emphasizes that the full texture of the legal imagination’s effort to grapple with religion only becomes apparent in the wider range of subconstitutional and nonconstitutional contexts beyond the standard litany of constitutional discourse. (shrink)

The constitution’s standing as a legal act of the highest power not only ensures its exclusive status in the legal system but also determines the hierarchic certainty of all norms within that system. The explicit character of the constitution does not preclude it from ensuring the hierarchical functionality of the legal system. This latter function requires that the limitation “problem” of explicitness be addressed by interpreting the constitution as a systemic document. Applying the constitution, therefore, requires a (...) continuous effort in comprehending it. The official doctrine of constitutional judicial institutions reflects the standard for understanding the constitution. This standard becomes the sole source, not only de jure, but significantly de facto, for determining the legality of legal acts. The constitution, as the prime and foremost law in a country, determines the functionality of the entire system of legal norms. As a legal source, it takes on the role of the material arbiter of final legality. The constant need to ensure the functioning of the system of legal norms hence informs yet another necessity–to apprehend and understand the constitution and the norms and principles established within. A few factors induce this perpetual need for interpretation, those being (a) the abstractness of constitutional norms, (b) “competition” among constitutional norms, (c) the integral and systemic nature of the constitution, and (d) the problem of legislative/regulative omission in the constitution. (shrink)

The use of specific language in the democratic Polish Constitution enacted on 2 April 1997 has created the essential differences in the status of religions and Churches in Poland to this in some other countries. It accepts the modern principles and values (tolerance, freedom, mutual independence of state and churches) but precludes the atheistic, hostile or indifferent to religions interpretations and implementations of these values and principles.

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point (...) of reference for legal experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)

Any abstract account of a field of law must make generalizations that are both faithful to the legal materials and appropriate to the subject matter's aims. The uniqueness and fluidity of the European Union's institutions makes such generalizations very difficult. A common theoretical approach to EU law (one that is often relied upon by the Court of Justice, the Parliament and the Commission) is to borrow directly from the theory of domestic constitutional law. The most recent manifestation of (...) this tendency is the draft Treaty on the European Constitution, which includes many of the symbolic features of a domestic constitutional order. But the European Union is not a state and the constitutional analogy is in many ways problematic. In this article I defend the view that a more complex theory is more appropriate to the unique combination of ordinary politics with diplomatic conferences that constitutes the European Union. The key to these institutions is, in my view, a Kantian international ideal of liberal peace. The foundational constitutional principles of the EU, principles that both fit the current legal framework and offer its most attractive interpretation, require the qualified autonomy of member states in a union of republics that create collective institutions for the purposes of liberal peace. (shrink)

The question of the character of constitutional rights norms is complex and admits of no easy answer. Without reducing the complexity of the issue, I attempt in this paper to formulate some clear views on the matter. I shall argue that constitutional rights reasoning is a species of rational practical reasoning that combines both balancing (as Robert Alexy admits) and the grounds as to why balancing is appropriate (deontological constraints). Absent the latter type of reason, the application of (...) constitutional principles remains a pure instance of balancing. Each time those reasons are touched upon, however, balancing becomes subject to deontological constraints. Yet deontological reasons are neither self-proclaiming nor complete. Rather they require for their articulation the background of an already operational practice of practical (legal) reasoning. This practice exemplifies what I shall dubthe structure of autonomy, that is, a set of regulative ideals, not yet definitive norms, that derive from the reflective character of human agency. This structure comes to light when one turns to the agent’s point of view – to the point of view of someone who is engagedreflectivelywith practical questions (questions about rights arepar excellencequestions of this type). The structure of autonomy is more fundamental than any deontological or teleological reasons: it is in its light that deontology and teleology need to be understood as representing merely complementary forms of argument, which can be employed in reasoning that aims to maximise constitutional rights provisions. At the same time, the structure of autonomy as a regulative ideal generatesprima faciereasons for allocating greater weight to deontological arguments in the relevant contexts of balancing. Such prima-facie reasons do not prescribe fully-fledged deontological constraints, but merely set the burden of proof in favour of specific reasons and ensure that the structure of autonomy be respected overall. (shrink)

The present work examines the role of persuasive lexicon in legal discourse through the analysis of emotional devices at a lexical and rhetorical level. Our preliminary premise is that emotion is deployed by experts to convey the sentiment of shared values and epistemic trust: the need to rely on the tenets of the law as fair and conducive to the common good. The corpus of our study is constituted by the conclusions in their original Spanish, and their translation into (...) English, by the Advocate General Manuel Campos on the challenge by Hungary and Poland of the regulation establishing a “conditionality regime” in the event of a rule-of-law breach in a EU Member State. To this end, we undertake a two-pronged analysis of legal persuasion to find out what emotional devices are deployed to convey the rule-of-law principles of justice, non-discrimination, equality and solidarity. At a first stage, we concentrate upon the polarity and intensity of emotion words and their categories. Emotional implicatures in the shape of legal technolects and metaphorical ontologies and the way they are deployed in each text constitutes the second part of our study. Among our conclusions are that both the original and target texts have a strong persuasive character, mainly grounded in the negative emotion of fear and the positive emotion of trust, and that there are variances in the emotional language deployed in either version due to the different mechanics of each law system and to functional differences between English and Spanish. (shrink)

_An examination of how two fundamental concepts of order influence our ideas about sovereignty, citizenship, law, and history_ Western accounts of natural and political order have deployed two basic ideas: project and system. In a project, order is produced by the intentional act of a subject; in a system, order is immanent in the world. In the former, order is made; in the latter, discovered. Paul W. Kahn shows how project and system have long been at work in our theological (...) and philosophical tradition. Against this background, Kahn explains the development of the modern legal imagination in the nineteenth century as a movement from project to system. Americans began the century imagining the constitutional order as their common project: a deliberate construction of We the People. They ended the century imagining that order is continuous with the common law: an immanent development of the principles of civilization. This imaginative shift affected ideas of legal text, sovereignty, citizenship, interpretation, history, and science. (shrink)