Law, Politics, and the Constitution
New Perspectives from Legal and Political Theory
Table Of Contents
- About the author
- About the book
- This eBook can be cited
- Table of Contents
- Part I Constitutional Review and Separation of Powers
- Constitutional Courts and Their Power of Interpretation
- What is ‘Politicisation’ of Constitutional Courts? Towards a Decision-oriented Concept
- Separation of Powers reconsidered: a Proposal for a New Theoretical Model at the Beginning of the 21st Century
- Part II Constitutional Review in East Central European Countries
- Access to Constitutional Justice in the new Hungarian Constitutional Framework: Life after the Actio Popularis?
- ‘War of Courts’ as a Clash of Legal Cultures: Rethinking the Conflict Between the Polish Constitutional Tribunal and the Supreme Court Over ‘Interpretive Judgments’
- Part III Theorising the European Union: Constitution, Division of Power, and Sovereignty
- Paul Ricœur’s Thought as the Basis for a Political Theory of the European Union
- Vertical Division of Powers from the Perspective of the Member States – Police Power in the Context of European Union Constitutionalism?
- ‘Solange, Chapter 5?’ The Law of the European Union and the Sovereignty in Rulings of the Constitutional Courts in Central Europe
- The Balancing Role of National Parliaments in Transforming the European Union. Towards a Parliamentary Polity?
- Part IV The Common Good, Constitutional Rights and Individual Obligations
- The Common Good and Individual Rights
- Towards a ‘Soft’ Concept of the State Neutrality Principle
- Another Brick in the Wall? A Libertarian Outlook on Constitutional Rights, Individual Obligations, and the Boundaries of Legal Consistency
- Ethnic Representation in National Legislatures – Normative Foundations and Challenges
← 6 | 7 → Introduction
This volume is the 4th ‘Central and Eastern European Forum for Legal, Political, and Social Theory Yearbook.’ The ‘Central and Eastern European Forum of Young Legal, Political, and Social Theorists’ is an initiative for the cooperation and exchange of ideas among young scholars who come from, currently study or work in Central and Eastern Europe or have a research interest in the region. It evolved from a conference held in 2009 in Katowice, Poland, where some of the participants had come to realise that the meeting filled a real gap in academic exchange. Establishing the Forum was a response to the dominance of Western European and American scholarship in the field: not so much an attempt to build up a counter-power, but to reflect on our issues and to articulate our views in a distinct voice. At the same time, it was also an endeavour to connect those younger cohorts of academics whose career started at or after the turn of the millennium. The idea to form a group with a regional and generational character was further stimulated by the need to build a network of researchers who often live in close proximity of one another without knowing of each other’s work. Being part of a diverse and respectful scholarly community where intellectual freedom and honesty reign over hierarchy and cynicism is an experience that is regrettably uncommon in today’s academia – yet this is exactly what the Forum strives to facilitate.
The main activity of the Forum is organising annual conferences that provide an opportunity for junior scholars to present their work to an international audience of peers. After Katowice, the conferences have taken place in Budapest (Hungary, 2010), Belgrade (Serbia, 2011), Celje (Slovenia, 2012) and Greifswald (Germany, 2013), each followed by the publication of selected papers in this book series.1 The chapters of this volume were presented and discussed on 3 and 4 May 2013 at the 5th Forum in the beautiful historical town of Greifswald in Germany near the Baltic Sea. The conference was hosted at the Alfried Krupp Wissenschaftskolleg in cooperation with the University of Greifswald. We would like to thank ← 7 | 8 → the Alfried Krupp von Bohlen und Halbach Foundation, which generously sponsored the realisation of the conference, and the Wissenschaftskolleg’s staff for their enthusiasm and hard work on-site. Additionally, we would like to express our gratitude to Prof. Dr. André Brodocz (University of Erfurt, Germany) who held the conference’s keynote speech and consented to its publication in this volume.
About 50 participants from 14 European countries took part in the Greifswald Forum and delivered more than 40 presentations. The conference thus provided a platform for a lively and academically rigorous debate. In particular, the debates centred upon two key topics from legal and political theory that are of critical importance in the Central and Eastern European contexts of relatively young constitutional democracies and were each given attention by way of their own section. In the first section, the participants discussed two core elements of democracy and the rule of law – ‘Separation of Powers & Constitutional Review.’ The questions raised in particular were what the exact meaning of the term ‘separation’ and its manifold synonyms and alternatives could be and whether the idea of the separation of powers is still applicable to the complexity of modern polities or merely of historical importance. Furthermore, it was discussed how constitutional review could be adequately understood: as adjudication, politics in the cloak of the law, something in between – or even something completely different? Importantly, the relationship between the separation of powers and constitutional review was examined (see part I of this volume). In dialogue with these primarily theoretical questions, a number of contributions to the conference discussed the role of constitutional review in the East Central European Countries after 1989 (see part II of this volume). Finally, several panels from the first section addressed the role of constitutionalism and the separation of powers in the governmental system of the European Union (see part III of this volume).
The second section of the Forum was dedicated to ‘Constitutional Rights & Obligations.’ Most modern constitutions provide basic rights and freedoms for individuals and groups in order to protect them against encroachments by the state. Additionally, there is some general consent in constitutional theory as to which fundamental rights a constitution should at least guarantee. In contrast, obligations are much rarer in the constitutional landscape. Hence, it is controversially debated in legal and political theory whether constitutions should impose certain obligations on their citizens at all. Against this background, the participants discussed how constitutional obligations are related to constitutional rights and whether obligations should be incorporated in constitutions or whether they systematically violate the basic principles of liberal and democratic polities. Furthermore, the relation between rights and obligations and both the common good and the idea of a neutral state were examined. Finally, the normative foundations and challenges ← 8 | 9 → of ethnic parliamentary representation were discussed in this context (see part IV of this volume).
In the aftermath of the conference, 21 participants answered the Call for Papers for the Yearbook, 13 of which were selected for publication by the editors. The first part of this volume comprises three contributions on ‘Constitutional Review and Separation of Powers.’ In his chapter entitled ‘Constitutional Courts and Their Power of Interpretation’, André Brodocz analyses the complex phenomenon of judicial power. As this power only becomes apparent in decisions by supreme courts regarding the meaning of the constitution, judicial power is defined as the power of interpretation. In order to explain why the power of interpretation is not necessarily absolute and how its levels are characterised by special preconditions and limitations, the author distinguishes between three interdependent levels: the level of the interpreted constitution, the level of the interpreting court and the level of the interpretation. Subsequently, Michael Hein and Stefan Ewert pose the question: ‘What is “Politicisation” of Constitutional Courts? Towards a Decision-oriented Concept.’ They start with the observation that, although politicisation is one of the most frequently used keywords in scientific research on constitutional courts, a distinct definition of the term is lacking in many studies. In light of this, they examine the theoretical conceptions of the relationship between politics, law and constitutional adjudication that underlie the different understandings of politicisation. Based on their findings, they develop a decision-oriented concept of politicisation, which is not only suitable for many theoretical approaches, but which can also be detected in numerous empirical studies. In the final contribution to the first part, Martin Belov discusses the idea of the separation of powers. Under the heading ‘Separation of Powers reconsidered: a Proposal for a New Theoretical Model at the Beginning of the 21st Century’ he argues that the key conceptions of the separation of powers that were elaborated at the beginning of modern constitutionalism are no longer appropriate for the reality of modern states. Therefore, he introduces some alternative views with regard to the classification and delimitation of state powers. Based on these, he proposes a seven-powers model, that comprises not only the classic trias politica of the legislative, executive and judicial branches, but also four new powers: external, financial, patronage and symbolic.
The two chapters in the second part contribute to the empirical dimension of ‘Constitutional Review in East Central European Countries.’ In her contribution ‘Access to Constitutional Justice in the New Hungarian Constitutional Framework: Life after the Actio Popularis?’ Katalin Kelemen evaluates the conditions of access to the Constitutional Court after the enactment of the new Fundamental Law in Hungary in 2012. In particular, she analyses the consequences of the abolition of actio popularis and the concomitant introduction of full constitutional ← 9 | 10 → complaint, and she asks whether these changes to the procedural law have led to a shift in emphasis from abstract to concrete review. The second chapter, contributed by Rafał Mańko, is on the ‘“War of Courts” as a Clash of Legal Cultures: Rethinking the Conflict Between the Polish Constitutional and Supreme Court Over “Interpretive Judgements.”’ Mańko examines the tense relationship between the Constitutional Court and the Supreme Court in post-socialist Poland, mainly characterised by the fact that the Supreme Court has refused to follow the Constitutional Court’s decisions on numerous occasions, claiming that they are unconstitutional, ultra vires and non-binding. An analysis of the arguments put forward by the Supreme Court and Constitutional Court in this ‘war of courts’ reveals that the Supreme Court prefers ultra-formalist arguments typical of the hyper-positivist legal culture of the former state-socialist period, whereas the Constitutional Court seems to prefer pragmatic arguments more typical of the contemporary Western legal culture.
The third part of this volume aims at ‘Theorising the European Union: Constitution, Division of Powers, and Sovereignty.’ Marcin Pieniążek opens this section with a chapter on ‘Paul Ricœur’s Thought as the Basis for the Political Theory of the European Union.’ He presents a conception of social structures, interpersonal relationships and democracy related to Ricoeur’s concept of the subject (ipse) as a basis for a political theory of the European Union. Introducing Ricoeur’s definition of ethical aspiration, the argumentation starts at the microscale of the entity which characteristically represents the intention of a good life; then goes on to the meso-level, i.e. to an interpersonal relationship in broad terms; and finally aims to describe the macroscale of just political institutions. Subsequently, Balázs Fekete examines the ‘Vertical Division of Powers from the Perspective of the Member States – Police Power in the Context of European Union Constitutionalism?’ By investigating the value of this classical term of US federalism for today’s EU developments, the chapter critically analyses whether Article 4 paras (1) and (2) TEU as enacted following the Lisbon reforms may be interpreted as the emergence of the concept of police power in this context.
In his contribution ‘“Solange, Chapter 5”? The Law of the European Union and the Sovereignty in Rulings of the Constitutional Courts in Central Europe’, Mariusz Jerzy Golecki discusses the scope of application and the meaning of the principle of primacy of EU law. By focussing on several judgements by the constitutional courts of some of the member states on the Lisbon Treaty, the chapter concentrates on the difference between the meaning of the concept of sovereignty and its application by the different courts, and on the theoretical foundations of the potential solution to the problem of comprehensive application of the primacy principle throughout the member states. Karolina Ristova-Asterud devotes ← 10 | 11 → her contribution to ‘The Balancing Role of National Parliaments in Transforming the European Union. Towards a Parliamentary Polity.’ She introduces the Lisbon Treaty as a serious step moving the EU away from de-parliamentarisation towards a path of re-parliamentarisation. The chapter shows how the recent treaty novelties regarding national parliaments affect the balance of power in the intergovernmental system of EU governance. On a more theoretical level, it explores how the shared European intellectual traditions on sovereignty have influenced these developments, and how they may further transform the EU from a dominantly intergovernmental into a parliamentary polity.
The fourth and final part, ‘The Common Good, Constitutional Rights and Individual Obligations,’ opens with the chapter ‘The Common Good and Individual Rights’ by Szilárd Tattay. The author seeks to elucidate the ontological presuppositions and conceptual premises underlying the classical theory of the common good and the approaches to overcoming both the reduction and the opposition of the common good and individual goods and rights. In the second contribution ‘Towards a “Soft” Concept of the State Neutrality Principle’, Wojciech Ciszewski aims to elaborate a formula of state neutrality resistant to the objection that it is impossible to fulfil the requirements of the neutrality principle with state institutions and public authorities. The chapter starts with the author’s claim that critics often employ a very narrow definition of the state neutrality principle which makes it quite easy to demonstrate that state policies often cannot comply with such a demanding standard. After examining the most questionable assumptions of this narrow definition, an alternative definition is introduced: a formula for ‘soft’ state neutrality.
Subsequently, Axelle Reiter analyses the interaction between constitutional rights and constitutional obligations from a libertarian standpoint. Her chapter ‘Another Brick in the Wall? A Libertarian Outlook on Constitutional Rights, Individual Obligations, and the Boundaries of Legal Consistency’ outlines a libertarian conception, which conceives rights as personal choices derived from a general entitlement to personal autonomy. The fact that these rights are defined as absolute side-constraints on actions and obligations constitutes the author’s challenge for the recognition of individual obligations in libertarian theories. Finally, in the contribution on ‘Ethnic Representation in National Legislatures – Normative Foundations and Challenges’, Konstantin Sachariew considers the normative and empirical arguments in favour of and against group representation as well as descriptive representation. The normative claim that a democratic parliament should reflect the social diversity of the population often goes together with the demand for group representation through specialised measures and institutions that expand the traditional understanding of representative government and alter the electoral competition. The chapter reviews the current literature on group and ← 11 | 12 → descriptive representation with a special focus on the normative debate that has formed around it.
In sum, the contributions to this Yearbook shed new light on important topics, not only in contemporary legal and political theory, but also in the legal and political developments in both Central and Eastern Europe and the European Union. We hope that the readers find the chapters inspiring and thought-provoking.
The publication of this Yearbook was made possible through the generous financial assistance of the Alfried Krupp von Bohlen und Halbach Foundation, Essen (Germany).
Greifswald, May 2014
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- Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2014. 217 pp.