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Open Access in the Economic Sphere but Restricted Access in the Political Sphere: The Experience of Singapore 经济领域开放,政治领域限制:新加坡的经验
IF 0.2 Pub Date : 2019-05-01 DOI: 10.1515/icl-2018-0058
Guanghua Yu
Abstract This article uses the case of Singapore to argue that the theory of open access order advocated by North and his colleagues provides one possible option only. Although their theory of open access order explains the West relatively well, it does not always apply to contemporary non-Western countries. Similar to the cases of India and Japan examined elsewhere, the case of Singapore shows that what is more important to economic and human development is the open access in the economic sphere and the interconnected institutions in the area of property rights protection and contract enforcement, financial market, rule of law, and human resource accumulation. In other words, countries without open access in the political sphere as practiced in Singapore may also be able to achieve a great deal of success in terms of economic and human development if they ensure open access in the economic sphere and devote adequate resources to establishing the necessary interconnected institutions examined in this article. Further research elsewhere on China will similarly demonstrate this insight.
摘要本文以新加坡为例,论证了诺斯及其同事所倡导的开放获取秩序理论只提供了一种可能的选择。尽管他们的开放获取秩序理论相对较好地解释了西方,但它并不总是适用于当代非西方国家。与印度和日本在其他地方的案例相似,新加坡的案例表明,对经济和人类发展来说,更重要的是经济领域的开放准入,以及产权保护和合同执行、金融市场、法治和人力资源积累等领域相互关联的制度。换句话说,没有像新加坡那样在政治领域开放的国家,如果它们确保在经济领域开放,并投入足够的资源来建立本文所研究的必要的相互联系的机构,它们也可能在经济和人力发展方面取得巨大成功。其他地方对中国的进一步研究也将同样证明这一观点。
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引用次数: 0
Revisiting the Place of Preparatory Documents in the Interpretation of Transformative Constitutions 重新审视预备文件在解释转型宪法中的地位
IF 0.2 Pub Date : 2019-05-01 DOI: 10.1515/icl-2018-0052
C. Abungu
Abstract South Africa and Kenya are among some nations that have adopted what are referred to as ‘transformative constitutions’, with the aim of bringing about radical change that would repair the cumulatively deep fissures in their societies. In order to determine how to satisfactorily give these constitutions effect, judges may undertake to first understand the people’s past experiences and how that informed the constitutional provisions that were adopted. This will in turn allow them to grasp what sort of transformation the people sought. One of the sources by which to undertake such a task is preparatory documents. In this study, these are the materials detailing the people’s views on the then-prospective constitutional provisions and discussions during constitutional conferences. By reference to the United States courts as a case study, this article seeks to find out the use to which judges interpreting provisions in the Constitution of Kenya and the Constitution of South Africa put preparatory documents. It does so through an empirical examination of select Human Rights decisions in both jurisdictions. It eventually finds that the examination of preparatory documents need not necessarily be viewed as an exercise that will restrain a judge, or fold back progress that has been made in progressive adjudication. At the very least, it will help a judge understand the transformation sought while in some cases, it may legitimize and enlighten a judge’s decision to interpret a provision in a more expansive manner.
南非和肯尼亚是采用所谓的“变革宪法”的国家之一,其目的是带来彻底的变革,以修复其社会中积累的深刻裂缝。为了确定如何令人满意地使这些宪法生效,法官可以首先了解人民过去的经验,以及这些经验如何影响所通过的宪法条款。这将反过来使他们了解人民所寻求的是什么样的转变。执行这项任务的来源之一是筹备文件。在本研究中,这些材料详细描述了人们对当时预期的宪法条款的看法以及制宪会议期间的讨论。本文以美国法院为个案研究,试图找出解释肯尼亚宪法和南非宪法条款的法官如何使用预备文件。它通过对两个司法管辖区的精选人权决定进行实证审查来做到这一点。它最终认为,审查预备文件不一定被视为一种限制法官的行为,或使渐进式裁决所取得的进展倒退。至少,它将帮助法官理解所寻求的转变,而在某些情况下,它可能使法官以更广泛的方式解释条款的决定合法化和启发。
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引用次数: 1
Frontmatter
IF 0.2 Pub Date : 2018-12-01 DOI: 10.1515/icl-2018-frontmatter4
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引用次数: 0
Same-Sex Marriage and Italian Exceptionalism 同性婚姻和意大利例外论
IF 0.2 Pub Date : 2018-12-01 DOI: 10.1515/icl-2018-0037
M. Winkler
Abstract This article unveils Italy’s exceptionalism in recognising and protecting same-sex couples by adopting a three-dimension analysis: constitutional, comparative and supranational. It maintains that, compared to other countries whose courts were sympathetic with the legal claims raised by lesbian and gay people, Italy’s Constitutional Court adopted a totally different approach, reinforcing the heteronormativity of marriage in a way that delayed all efforts to pass a law on same-sex registered partnerships. The Constitutional Court, in particular, interpreted the Constitution, the experience of other nations and supranational law according to heteronormativity, an example that is unique in the comparative context. As an illustration, this article addresses the case Bernaroli vs Ministry of the Interior. In Bernaroli, a male-to-female transgender person wanted to remain married to her wife notwithstanding the transition. The case ignited a heated debate among scholars and questioned the courts’ opinions as to the human rights dynamics surrounding same-sex marriage and, more importantly, about the current role of heteronormativity in marriage law. This article concludes that the legal existence of Bernaroli’s marriage represents a constant challenge to the status quo and highlights the permanent crisis of heteronormativity. After the Austrian Constitutional Court’s recent ruling that declared the law on same-sex domestic partnership to be discriminatory, heteronormativity’s defence became even more untenable, making Italy’s a true exception in the continent’s legal landscape.
本文通过采用宪法、比较和超国家三个维度的分析,揭示了意大利在承认和保护同性伴侣方面的例外主义。它坚持认为,与其他国家的法院同情男女同性恋者提出的法律诉求相比,意大利宪法法院采取了一种完全不同的方式,以一种推迟所有通过同性登记伴侣关系法律的努力的方式,加强了婚姻的异性恋性。特别是宪法法院,根据heteronormativity来解释宪法、其他国家的经验和超国家的法律,这在比较背景下是一个独特的例子。为了说明这一点,本文讨论了Bernaroli诉内政部一案。在伯纳诺里,一名男变女的变性人想要在变性后继续和妻子结婚。该案在学者中引发了激烈的争论,质疑法院对同性婚姻的人权动态的看法,更重要的是,质疑法院对异性恋在婚姻法中当前角色的看法。本文的结论是,Bernaroli婚姻的合法存在代表了对现状的不断挑战,并突出了异性恋规范的永久危机。在奥地利宪法法院最近宣布同性家庭伴侣关系的法律具有歧视性之后,异性恋规范的辩护变得更加站不住脚,使意大利成为欧洲大陆法律格局中的一个真正的例外。
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引用次数: 1
Commandeering the Institutions: The Legitimacy of Structural Judicial Remedies in Comparative Perspective 征用制度:比较视角下的结构性司法救济合法性
IF 0.2 Pub Date : 2018-12-01 DOI: 10.1515/icl-2018-0021
Guillermo Otálora Lozano
Abstract In some countries, courts protect constitutional rights by ordering broad institutional reforms and overseeing those reforms. These broad orders are known as structural remedies, and they are currently part of the judicial practice of the United States, India, and Colombia. Structural remedies pose a problem of democratic legitimacy in that courts substitute for legislatures or administrators. This paper argues that structural remedies are democratically legitimate as long as they are used as a last resort and are aimed at addressing a specific institutional pathology within the legislature or the bureaucracy. Drawing from the experience of the United States, India, and Colombia, the paper distinguishes counter-legislative from counter-bureaucratic remedies in order to show that the democratic concerns raised may vary depending on the affected institution. The paper argues that structural remedies are legitimate if they are capable of correcting a pathology in the legislative or administrative process. With respect to legislatures, structural remedies should aim at improving the representative or the deliberative quality of legislative decisions. In the case of bureaucracies, they should aim at improving the subordination of agencies to the political process, their responsiveness to citizens’ concerns, and the expertise with which their tasks are carried out.
在一些国家,法院通过命令广泛的机构改革和监督这些改革来保护宪法权利。这些广泛的命令被称为结构性救济,它们目前是美国、印度和哥伦比亚司法实践的一部分。结构性补救措施造成了民主合法性的问题,因为法院取代了立法机构或行政机构。本文认为,只要结构性补救措施被用作最后手段,并且旨在解决立法机构或官僚机构内部特定的制度病态,那么它们在民主上是合法的。根据美国、印度和哥伦比亚的经验,本文将反立法救济与反官僚救济区分开来,以表明所提出的民主关切可能因受影响的机构而异。本文认为,如果结构性救济能够纠正立法或行政程序中的病态,那么它们就是合法的。就立法机关而言,结构性补救措施应旨在提高立法决定的代表性或审议质量。就官僚机构而言,它们的目标应该是改进各机构对政治进程的从属关系,改进它们对公民关切的反应,以及改进它们执行任务时所具备的专门知识。
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引用次数: 1
(In)Security and Self-Government: Lessons from the Mexican Experience 安全与自治:墨西哥经验的教训
IF 0.2 Pub Date : 2018-12-01 DOI: 10.1515/icl-2018-0022
C. Correa, Carlos De la Rosa Xochitiotzi
Abstract Using the Mexican experience in the centralization of public security, this paper proposes federalism as a model of a vertical control of powers and, more importantly, a way of promoting self-governance, citizen participation and, through them, local security. We argue that while federalism as an organizational model of the State does not guarantee self-governance or citizen participation, it can help promote them and through their enhancement, improve security at the community level. Since 2006, the Mexican government has implemented a security strategy that has increasingly centralized public security decisions. The strategy relies on the deployment of federal security forces (Army, Navy and Federal Police) across the country, to replace or support state and local police. The results have been mostly negative. On one hand, there has been an exacerbation of violence in the country, including many incidents in which violence was used disproportionately or illegally by state officials against civilians. On the other, the use of federal forces has undermined the federalist regime which serves as a check on the exercise of power by federal authorities, thus undermining state and local institutional capacities. The lessons from the Mexican case can be useful for other federal systems responding to organized crime.
摘要本文借鉴墨西哥公共安全集中化的经验,提出联邦制是一种纵向控制权力的模式,更重要的是,它是一种促进自治、公民参与并通过它们促进地方安全的方式。我们认为,虽然联邦制作为国家的一种组织模式并不能保证自治或公民参与,但它可以帮助促进自治或公民参与,并通过加强自治和公民参与来改善社区层面的安全。自2006年以来,墨西哥政府实施了一项日益集中公共安全决策的安全战略。该战略依赖于在全国部署联邦安全部队(陆军、海军和联邦警察),以取代或支持州和地方警察。结果大多是负面的。一方面,该国的暴力加剧,包括国家官员对平民不成比例或非法使用暴力的许多事件。另一方面,使用联邦部队破坏了作为对联邦当局行使权力的检查的联邦主义制度,从而破坏了州和地方机构的能力。墨西哥案件的经验教训对其他应对有组织犯罪的联邦系统是有用的。
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引用次数: 0
“Constituent Power” or Degrees of Legitimacy? “宪法权力”还是合法性程度?
IF 0.2 Pub Date : 2018-11-01 DOI: 10.1515/icl-2018-0068
Vicki C. Jackson
Professor Roznai’s book is a terrifically executed account of a constitutional theory justifying the concept of unconstitutional constitutional amendments and the practice of judicial review thereof. The theory rests on the premise that constitutions are made by a ‘constituent power’, which establishes ‘constituted powers’ of the government and which expressly or implicitly defines the scope and nature of an amendment of the constitution. The powers of amendment are sui generis, situated between ‘original (or as he calls it “primary”) constituent power’ to make a constitution in the first place and the constituted powers of government under that constitution. The amendment power, he argues, should be understood as a delegated power, subject to the limitations, express or implicit, of the original constitution. Given his conceptual premise – that constitutions should be understood as created by a ‘constituent power’, a premise widely accepted in constitutional theory – his argument that the amending power lies between pure constituent power and purely constituted powers has great persuasive value. He rejects the claim that the amending power is a ‘constituent power’, arguing instead that the amending power possesses ‘characteristics of both constituent and constituted power’, and should be treated as sui generis. (Id at 112–13) He argues that the amending power should be understood both as bounded by the procedures set forth in the constitution for amendment and by a substantive constraint not to annihilate the fundamental political decisions of the constitution. In this respect, it should be understood as a ‘delegated’ power, neither an original constituent power nor simply a regular constituted power, but a power exercisable by or on
Roznai教授的书是对宪法理论的一个非常出色的执行说明,该理论证明了违宪宪法修正案的概念及其司法审查的实践。该理论的前提是,宪法是由一个“组成权力”制定的,它确立了政府的“构成权力”,并明确或隐含地定义了宪法修正案的范围和性质。修正案的权力是自成一体的,位于最初制定宪法的“原始(或他所说的“主要”)组成权力”和宪法规定的政府权力之间。他认为,修宪权应该被理解为一种受原宪法明示或暗示的限制的授权。鉴于他的概念前提——宪法应被理解为由“制宪权力”创造,这是宪法理论中广泛接受的前提——他关于修改权力介于纯粹的制宪权力和纯粹的构成权力之间的论点具有很大的说服力。他驳斥了修改权是一种“构成权力”的说法,认为修改权具有“构成权力和构成权力的双重特征”,应该被视为自成一体。(同上,第112-13段)他认为,修改权力应被理解为既受宪法规定的修改程序的限制,又受不破坏宪法基本政治决定的实质性限制。在这方面,它应该被理解为一种“委托”的权力,既不是一种原始的构成权力,也不是一种简单的常规构成权力,而是一种由任何人行使的权力
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引用次数: 1
Mexican Supreme Court: Legislative Omission – Analysis on Congress’ Failure to Enact Legislation Regulating Official Advertising in Mexico 墨西哥最高法院:立法不作为——国会未能制定法律规范墨西哥官方广告的分析
IF 0.2 Pub Date : 2018-11-01 DOI: 10.1515/icl-2018-0016
Jaime Olaiz-González
Abstract Last year, Mexico’s Supreme Court issued a momentous decision pertaining to the so-called legislative omission. It represented a groundbreaking judgment not only for its effects on freedom of speech and of the press and separation of powers in Mexico, but also – and perhaps more saliently- for its implications in the way in which the Court is asserting its powers in interpreting the Constitution.
去年,墨西哥最高法院就所谓的“立法不作为”作出了重大裁决。它代表了一个开创性的判决,不仅因为它对墨西哥的言论自由、新闻自由和三权分立产生了影响,而且——也许更突出的是——它对法院在解释宪法时行使其权力的方式产生了影响。
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引用次数: 0
Constitutional Unamendability – Four Observations 宪法不可修改性——四点意见
IF 0.2 Pub Date : 2018-11-01 DOI: 10.1515/icl-2018-0066
Yaniv Roznai
Abstract This is a response to the contributions of Professors Lech Garlicki and Zofia A Garlicka-Sowers, Vicki C Jackson, Sabrina Ragone and Adrienne Stone, in a book symposium on Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP 2017).
本文是对Lech Garlicki和Zofia a Garlicka-Sowers、Vicki C Jackson、Sabrina Ragone和Adrienne Stone教授在Yaniv Roznai的学术研讨会上所作的《违宪宪法修正案:修正案权力的限制》(OUP 2017)的回应。
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引用次数: 0
Introduction: The popular Mr. Roznai 简介:广受欢迎的Roznai先生
IF 0.2 Pub Date : 2018-11-01 DOI: 10.1515/icl-2018-0065
Christoph Bezemek
Being on the Editorial Board of an academic journal, one of the first lessons you learn is that it is harder to find somebody to write a decent book review than its is to find somebody to take care of your pet for a whole week of vacation. This has many reasons, of course. Two of them, however, seem to be of particular importance: First: Writing a decent book review is a lot of work. And second: It is a lot of work that will (typically) be unrewarded because hardly anybody seems to be into reading book reviews nowadays (except the author of the book, of course; which, honestly, can only make matters worse). So, without making a great deal out of it, Claudia, Harald, and I when moving the ICL Journal to De Gruyter, decided, to simply stop actively pursuing our friends and colleagues asking them to contribute to the Journal’s Review Section. Not to be misunderstood: This is not to say that the Journal will (or does) not feature any reviews. It is to say that we sit back and wait until (typically young) academics approach us, suggesting to write a review on a recently published volume within the ICL Journal’s scope or submitting a review right away (needless to say: the highly preferred alternative). So, when the idea of having a mini-symposium on Yaniv Roznai’s (truly magisterial) book on ‘Unconstitutional Constitutional Amendments’ came up, we were torn. On the one hand we were intrigued by the idea, because we knew how exciting Yaniv’s work was (after all, he had already published with us earlier which is the most reliable indicator for high-quality scholarship we know of). On the other hand, we were skeptical whether we would be able to find suitable contributors (in due time).
在学术期刊的编辑委员会工作,你学到的第一课就是找个人写一篇像样的书评比找个人在假期里照顾你的宠物要难得多。当然,这有很多原因。然而,其中两点似乎尤为重要:第一:写一篇像样的书评需要大量的工作。其次,大量的工作(通常)不会得到回报,因为如今似乎几乎没有人喜欢阅读书评(当然,除了书的作者;老实说,这只会让事情变得更糟)。所以,在没有做太多事情的情况下,克劳迪娅、哈拉尔德和我在把ICL期刊搬到德格鲁伊特的时候,决定不再积极地追求我们的朋友和同事,让他们为期刊的评论部分做出贡献。不要误解:这并不是说《华尔街日报》不会(或不会)刊登任何评论。这就是说,我们坐下来等待(通常是年轻的)学者找到我们,建议在ICL期刊的范围内对最近出版的一卷写一篇评论,或者立即提交一篇评论(不用说:这是非常受欢迎的选择)。所以,当亚尼夫·罗兹奈(Yaniv Roznai)(真正权威的)关于《违宪宪法修正案》的书的想法出现时,我们很纠结。一方面,我们对这个想法很感兴趣,因为我们知道Yaniv的工作是多么令人兴奋(毕竟,他之前已经和我们一起发表过文章,这是我们所知道的高质量学术研究的最可靠指标)。另一方面,我们怀疑我们是否能够(在适当的时候)找到合适的贡献者。
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引用次数: 0
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ICL Journal-Vienna Journal on International Constitutional Law
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