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Law, Politics, and the Constitution

New Perspectives from Legal and Political Theory

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Edited By Antonia Geisler, Michael Hein and Siri Hummel

The fourth Yearbook of the Central and Eastern European Forum of Young Legal, Political and Social Theorists reassesses central concepts of modern constitutionalism between the poles of law and politics: separation of powers, constitutional review, and constitutional rights and obligations. Fourteen legal scholars and political scientists from the region contribute to interrelated debates in both disciplines. Two questions are particularly raised: How can the aforementioned concepts be understood? And: Which role do they play in current national and supra-national institutions? With regard to the second question, an essential part of the chapters focuses on current developments within the European Union and in post-socialist states of Central and Eastern Europe.
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Vertical Division of Powers from the Perspective of the Member States – Police Power in the Context of European Union Constitutionalism?

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Balázs Fekete

Abstract

This chapter argues that some recent developments of EU constitutionalism may be better understood by relying on a classic term of US federalism. This term is police power that was widely used in the 18th–19th century US constitutional discourse. In the first part, in order to point out the relationship between the actual EU developments and the concept of police power the chapter presents and discusses its various meanings in US constitutional law. In the second part, the study critically examines whether Article 4 paras (1) and (2) TEU incorporated into the founding treaties following the Lisbon reforms may be interpreted as the emergence of the concept of police power in this context. In sum, the chapter submits that the first judgments of the ECJ touching upon these Articles will answer the question if the concept of police power is really relevant in the EU constitutional discourse, but the use of term of police power can considerably contribute to the conceptual understanding.

When attempting to clarify the nature of the European Union, legal scholarship seems very reluctant to apply federal terms. On the contrary, it has developed various sui generis concepts to describe the unique nature of both the post-World War II European integration and the European Union itself (Schütze 2009, 1–10).

On the one hand, it is easy to understand the main reasons behind this line of thinking. The first forms of integration had...

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