Abstract This article assesses the doctrine of parliamentary sovereignty against the background that, at the time of UK’s withdrawal from the EU, UK parliament proclaimed it to be preserved despite the continuing domestic legal effect accorded, under 2018 and 2020 Acts, to pertinent EU law provisions in the UK legal system. The relevant evidence is analysed to show whether that position is one to which English law subscribes.
{"title":"Parliamentary Sovereignty before and beyond Brexit","authors":"Alexander Orakhelashvili","doi":"10.1515/icl-2021-0024","DOIUrl":"https://doi.org/10.1515/icl-2021-0024","url":null,"abstract":"Abstract This article assesses the doctrine of parliamentary sovereignty against the background that, at the time of UK’s withdrawal from the EU, UK parliament proclaimed it to be preserved despite the continuing domestic legal effect accorded, under 2018 and 2020 Acts, to pertinent EU law provisions in the UK legal system. The relevant evidence is analysed to show whether that position is one to which English law subscribes.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"65 1","pages":"435 - 464"},"PeriodicalIF":0.2,"publicationDate":"2021-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75042823","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-01DOI: 10.1515/icl-2021-frontmatter3
{"title":"Frontmatter","authors":"","doi":"10.1515/icl-2021-frontmatter3","DOIUrl":"https://doi.org/10.1515/icl-2021-frontmatter3","url":null,"abstract":"","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"30 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78233336","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract State capacity, stable currencies, and well functioning financial systems seem to be ‘package deals’ – one cannot have one without having all. I show that the intimate functional links among states, monies, and financial systems, ubiquitous across history and geography as they are, are not accidental. I do so by analytically ‘deriving’ first law and the polity, then money and finance, from a temporally extended implicit covenant that is both grounded in and facilitative of ongoing joint agency among persons. This lends to state and money alike their shared normative and, once formally systematized, legal character. I indicate throughout how this shared genesis, function, and normative character keep state, money, and ultimately finance practically ‘joined at the hip’, and manifest how polity and economy, indeed our very political and productive selves, are thus joined as well. To recognize and to ‘own’ this, I conclude, is not only to see that ‘the public’ must take a far more explicit role in finance, but also in a sense finally to own our own selves.
{"title":"Social-Contractarian Money","authors":"R. Hockett","doi":"10.1515/icl-2021-0011","DOIUrl":"https://doi.org/10.1515/icl-2021-0011","url":null,"abstract":"Abstract State capacity, stable currencies, and well functioning financial systems seem to be ‘package deals’ – one cannot have one without having all. I show that the intimate functional links among states, monies, and financial systems, ubiquitous across history and geography as they are, are not accidental. I do so by analytically ‘deriving’ first law and the polity, then money and finance, from a temporally extended implicit covenant that is both grounded in and facilitative of ongoing joint agency among persons. This lends to state and money alike their shared normative and, once formally systematized, legal character. I indicate throughout how this shared genesis, function, and normative character keep state, money, and ultimately finance practically ‘joined at the hip’, and manifest how polity and economy, indeed our very political and productive selves, are thus joined as well. To recognize and to ‘own’ this, I conclude, is not only to see that ‘the public’ must take a far more explicit role in finance, but also in a sense finally to own our own selves.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"5 1","pages":"237 - 289"},"PeriodicalIF":0.2,"publicationDate":"2021-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90597123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The political rights of public employees vary greatly in scope and depth across democratic societies. While some countries balance the need for a neutral government with the rights of its employees, others fail to provide meaningful avenues for expression of political activities. As the civil service has grown and become more vocal, the government’s desire for an impartial government has grown with it. Canada, Australia, and the United Kingdom, three Westminster-style governments who evolved from a once singular legal system, have adopted laws and regulations to address their employees’ political activities with varying effectiveness and form. This Article will analyze each country’s legal framework for these restrictions, within their larger free speech regime. In particular, this Article will use candidacy and social media activity as a lens to examine these restrictions and provide examples for how these restrictions most commonly effect civil servants’ political activities. Although each regime has successes and failures at balancing the government’s need for impartiality with the civil service’s rights to expression, Canada has most successfully established a balance between the government’s interests in neutrality with their employee’s rights to political expression.
{"title":"Public Employees Restrictions on Political Activity in Canada, Australia, and the United Kingdom","authors":"M. O'Brien","doi":"10.1515/icl-2021-0003","DOIUrl":"https://doi.org/10.1515/icl-2021-0003","url":null,"abstract":"Abstract The political rights of public employees vary greatly in scope and depth across democratic societies. While some countries balance the need for a neutral government with the rights of its employees, others fail to provide meaningful avenues for expression of political activities. As the civil service has grown and become more vocal, the government’s desire for an impartial government has grown with it. Canada, Australia, and the United Kingdom, three Westminster-style governments who evolved from a once singular legal system, have adopted laws and regulations to address their employees’ political activities with varying effectiveness and form. This Article will analyze each country’s legal framework for these restrictions, within their larger free speech regime. In particular, this Article will use candidacy and social media activity as a lens to examine these restrictions and provide examples for how these restrictions most commonly effect civil servants’ political activities. Although each regime has successes and failures at balancing the government’s need for impartiality with the civil service’s rights to expression, Canada has most successfully established a balance between the government’s interests in neutrality with their employee’s rights to political expression.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"34 1","pages":"319 - 356"},"PeriodicalIF":0.2,"publicationDate":"2021-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76660511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The COVID-19 pandemic is testing parliamentary systems of governance across the world, especially in relation to oversight of executive actions. Observers in multiple jurisdictions have already noted the proliferation of delegated legislation during the pandemic and the shortcomings in legislative oversight of the same. To date, however, no close analysis has been conducted of the way in which legislative oversight mechanisms have broken down during the pandemic. This paper provides such an analysis, using examples from Westminster systems adopting the ‘legislative model’ of providing extraordinary powers. Looking at individual examples from Australia, New Zealand and the United Kingdom, the analysis seeks to identify and explain the failures, and relative successes, in different mechanisms for parliamentary oversight, including parliamentary scrutiny committees (pre-existing and ad-hoc), disallowance, and sunset clauses. Although primarily descriptive, the comparative approach analysis permits preliminary conclusions to be drawn as to the way each jurisdiction may improve its methods of parliamentary oversight of delegated legislation. These comparative lessons will be of use both during and beyond the pandemic.
{"title":"Pandemic Parliamentary Oversight of Delegated Legislation: Comparing the Performance of Westminster Systems","authors":"P. Dey, J. Murphy","doi":"10.1515/icl-2021-0004","DOIUrl":"https://doi.org/10.1515/icl-2021-0004","url":null,"abstract":"Abstract The COVID-19 pandemic is testing parliamentary systems of governance across the world, especially in relation to oversight of executive actions. Observers in multiple jurisdictions have already noted the proliferation of delegated legislation during the pandemic and the shortcomings in legislative oversight of the same. To date, however, no close analysis has been conducted of the way in which legislative oversight mechanisms have broken down during the pandemic. This paper provides such an analysis, using examples from Westminster systems adopting the ‘legislative model’ of providing extraordinary powers. Looking at individual examples from Australia, New Zealand and the United Kingdom, the analysis seeks to identify and explain the failures, and relative successes, in different mechanisms for parliamentary oversight, including parliamentary scrutiny committees (pre-existing and ad-hoc), disallowance, and sunset clauses. Although primarily descriptive, the comparative approach analysis permits preliminary conclusions to be drawn as to the way each jurisdiction may improve its methods of parliamentary oversight of delegated legislation. These comparative lessons will be of use both during and beyond the pandemic.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"1 1","pages":"465 - 486"},"PeriodicalIF":0.2,"publicationDate":"2021-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88320463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.
{"title":"The Right to Assisted Dying: Constitutional Jurisprudence and Its Impact in Canada, Germany and Austria","authors":"Kerstin Braun","doi":"10.1515/icl-2021-0008","DOIUrl":"https://doi.org/10.1515/icl-2021-0008","url":null,"abstract":"Abstract Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"22 1","pages":"291 - 318"},"PeriodicalIF":0.2,"publicationDate":"2021-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82924430","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The multiple COVID-19 vaccines developed over the past months are typically thought of as the only means to meet the challenges posed by the current pandemic. Still, public opinion on vaccines is heavily divided. And, of course, discussions about compulsory vaccination, oftentimes based on fundamental rights arguments, tend to become heated. This note This note builds on the arguments developed in the author’s master thesis Anja Krasser, ‘Die grundrechtliche Zulässigkeit einer Impfpflicht in Österreich’ (Universität Graz 2019) which have previously been summarized in Anja Krasser, ‘Zur grundrechtlichen Zulässigkeit einer Impfpflicht’ (2020) 2020/206 RdM 136. analyses the issues at hand based on the case law of the European Court of Human Rights (ECtHR).
过去几个月开发的多种COVID-19疫苗通常被认为是应对当前大流行挑战的唯一手段。然而，公众对疫苗的看法存在严重分歧。当然，关于强制接种疫苗的讨论往往基于基本权利的论点，往往会变得激烈。本说明建立在作者的硕士论文Anja Krasser，“Die grundrechtliche Zulässigkeit einer Impfpflicht in Österreich”(Universität Graz 2019)中的论点之上，该论点先前已在Anja Krasser，“Zur grundrechtlichen Zulässigkeit einer Impfpflicht”(2020)2020/206 RdM 136中进行了总结。根据欧洲人权法院(ECtHR)的判例法分析了手头的问题。
{"title":"Compulsory Vaccination in a Fundamental Rights Perspective: Lessons from the ECtHR","authors":"A. Krasser","doi":"10.1515/icl-2021-0010","DOIUrl":"https://doi.org/10.1515/icl-2021-0010","url":null,"abstract":"Abstract The multiple COVID-19 vaccines developed over the past months are typically thought of as the only means to meet the challenges posed by the current pandemic. Still, public opinion on vaccines is heavily divided. And, of course, discussions about compulsory vaccination, oftentimes based on fundamental rights arguments, tend to become heated. This note This note builds on the arguments developed in the author’s master thesis Anja Krasser, ‘Die grundrechtliche Zulässigkeit einer Impfpflicht in Österreich’ (Universität Graz 2019) which have previously been summarized in Anja Krasser, ‘Zur grundrechtlichen Zulässigkeit einer Impfpflicht’ (2020) 2020/206 RdM 136. analyses the issues at hand based on the case law of the European Court of Human Rights (ECtHR).","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"5 1 1","pages":"207 - 233"},"PeriodicalIF":0.2,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76436077","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-01DOI: 10.1515/icl-2021-frontmatter2
{"title":"Frontmatter","authors":"","doi":"10.1515/icl-2021-frontmatter2","DOIUrl":"https://doi.org/10.1515/icl-2021-frontmatter2","url":null,"abstract":"","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"1 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76119822","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The question of how to understand and conceptualize inter-institutional interaction between courts and legislatures, particularly in the context of constitutional challenges, has drawn considerable attention over the years. This question is of special importance to the apprehension of constitutional dialogue as simultaneously describing and shaping constitutional interaction. This article focuses on the descriptive aspects of the constitutional dialogue and through them proposes a reconceptualization of constitutional dialogue, which is not based on the mere existence of legislative responses or the number thereof, or on the existence of different structural constitutional mechanisms. Instead, this reconceptualization is based on the de facto use in constitutional practices during the routine constitutional examination process, by the judiciary and political branches altogether. The article introduces a breadth-and-depth approach, which observes many constitutional decisions and legislative responses and uses them to analyze the nature of courts-legislatures dynamics. These insights are derived not only from the mere existence of a ruling or a statute, but also from the content and design of the institutional outcome thereof. The conclusions drawn using this approach are comprehensive, providing insight into the constitutional and dialogic interaction between courts and legislatures in each constitutional system, as well as identifying trends and changes as they occur. The article also offers an application of this approach to Israeli jurisprudence, illuminating the depth and complexity of this interaction, and enabling us to recognize it as a constitutional system with strong dialogic characteristics.
{"title":"Practice Makes Dialogue: Reconceptualizing Constitutional Interaction between Courts and Legislatures","authors":"Bell E Yosef","doi":"10.1515/icl-2020-0033","DOIUrl":"https://doi.org/10.1515/icl-2020-0033","url":null,"abstract":"Abstract The question of how to understand and conceptualize inter-institutional interaction between courts and legislatures, particularly in the context of constitutional challenges, has drawn considerable attention over the years. This question is of special importance to the apprehension of constitutional dialogue as simultaneously describing and shaping constitutional interaction. This article focuses on the descriptive aspects of the constitutional dialogue and through them proposes a reconceptualization of constitutional dialogue, which is not based on the mere existence of legislative responses or the number thereof, or on the existence of different structural constitutional mechanisms. Instead, this reconceptualization is based on the de facto use in constitutional practices during the routine constitutional examination process, by the judiciary and political branches altogether. The article introduces a breadth-and-depth approach, which observes many constitutional decisions and legislative responses and uses them to analyze the nature of courts-legislatures dynamics. These insights are derived not only from the mere existence of a ruling or a statute, but also from the content and design of the institutional outcome thereof. The conclusions drawn using this approach are comprehensive, providing insight into the constitutional and dialogic interaction between courts and legislatures in each constitutional system, as well as identifying trends and changes as they occur. The article also offers an application of this approach to Israeli jurisprudence, illuminating the depth and complexity of this interaction, and enabling us to recognize it as a constitutional system with strong dialogic characteristics.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"63 1","pages":"115 - 161"},"PeriodicalIF":0.2,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82958367","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ester Herlin-Karnell: The Constitutional Structure of Europe’s Area of ‘Freedom, Security and Justice’ and the Right to Justification","authors":"A. Vincze","doi":"10.1515/icl-2021-0016","DOIUrl":"https://doi.org/10.1515/icl-2021-0016","url":null,"abstract":"","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"389 1","pages":"235 - 236"},"PeriodicalIF":0.2,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78982269","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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