Pub Date : 2023-04-26DOI: 10.1017/S1574019623000044
U. Kos
Focus of the literature on the European West, overlooking the marginalised European Central-East – Assumption of all illiberal states equally resisting international courts – Hungary’s unique subtle push-back against the European Court of Human Rights compared to overt resistance against the European Court of Justice – Empirical analysis of original data – Three strategies to control the narrative of compliance – Status signalling to avoid international and domestic political repercussions – Friendly settlements and unilateral declarations as means of avoidance – Disguised non-compliance to convey bona fides – Negative narrative to subvert public opinion – Explaining state behaviour through rationalism and constructivism – Complementing constructivism with the identitarian counterwave in recently-emerged illiberal states – EU membership as a constraint – Illiberalism as fuel for Hungary’s resistance against the Strasbourg Court
{"title":"Controlling the Narrative: Hungary’s Post-2010 Strategies of Non-Compliance before the European Court of Human Rights","authors":"U. Kos","doi":"10.1017/S1574019623000044","DOIUrl":"https://doi.org/10.1017/S1574019623000044","url":null,"abstract":"Focus of the literature on the European West, overlooking the marginalised European Central-East – Assumption of all illiberal states equally resisting international courts – Hungary’s unique subtle push-back against the European Court of Human Rights compared to overt resistance against the European Court of Justice – Empirical analysis of original data – Three strategies to control the narrative of compliance – Status signalling to avoid international and domestic political repercussions – Friendly settlements and unilateral declarations as means of avoidance – Disguised non-compliance to convey bona fides – Negative narrative to subvert public opinion – Explaining state behaviour through rationalism and constructivism – Complementing constructivism with the identitarian counterwave in recently-emerged illiberal states – EU membership as a constraint – Illiberalism as fuel for Hungary’s resistance against the Strasbourg Court","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2023-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48636392","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-17DOI: 10.1017/S1574019623000056
Rafael Macía Briedis
is because the substantive principles of democratic constitution-making assumed by his theory can only provide a self-su ffi cient basis for discerning legitimate displays of constituent authority if we already know (beyond the possibility of legitimate contestation) the speci fi c participants and fora of participation that they are supposed to govern – precisely the kind of knowledge that is precluded by the disruption of existing institutional structures. 8 Abstract principles, after all, cannot replace either clear ex-ante rules or, in their absence, concrete ad hoc decisions when it comes to determining the ‘ proper ’ con fi guration of the law-authorising demos, as such principles are not well suited to answer the organisational questions involved in demarcating the boundaries and forms of political participation – where the decision to include or to exclude, especially in ‘ border-line ’ cases, will in the fi nal analysis remain normatively unjusti fi able. Consequently, to speak of a constituent power capable of reaching all the way down into the constitutional foundations of the polity is to situate the con fi gu-ration of the constituent subject beyond the realm of a priori norms, and to place the decision about the precise scope and mechanisms of constituent democracy in the hands of a power that, far from being exercised by a commonly identi fi able demos, is itself de fi nitional of that demos. Which is why I spoke earlier of usur-pation as one of constituent power ’ s characteristic features.
{"title":"Towards an Institutionalist Vision of Constituent Power?","authors":"Rafael Macía Briedis","doi":"10.1017/S1574019623000056","DOIUrl":"https://doi.org/10.1017/S1574019623000056","url":null,"abstract":"is because the substantive principles of democratic constitution-making assumed by his theory can only provide a self-su ffi cient basis for discerning legitimate displays of constituent authority if we already know (beyond the possibility of legitimate contestation) the speci fi c participants and fora of participation that they are supposed to govern – precisely the kind of knowledge that is precluded by the disruption of existing institutional structures. 8 Abstract principles, after all, cannot replace either clear ex-ante rules or, in their absence, concrete ad hoc decisions when it comes to determining the ‘ proper ’ con fi guration of the law-authorising demos, as such principles are not well suited to answer the organisational questions involved in demarcating the boundaries and forms of political participation – where the decision to include or to exclude, especially in ‘ border-line ’ cases, will in the fi nal analysis remain normatively unjusti fi able. Consequently, to speak of a constituent power capable of reaching all the way down into the constitutional foundations of the polity is to situate the con fi gu-ration of the constituent subject beyond the realm of a priori norms, and to place the decision about the precise scope and mechanisms of constituent democracy in the hands of a power that, far from being exercised by a commonly identi fi able demos, is itself de fi nitional of that demos. Which is why I spoke earlier of usur-pation as one of constituent power ’ s characteristic features.","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2023-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47112343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-01DOI: 10.1017/s1574019623000020
{"title":"ECL volume 19 issue 1 Cover and Front matter","authors":"","doi":"10.1017/s1574019623000020","DOIUrl":"https://doi.org/10.1017/s1574019623000020","url":null,"abstract":"","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49621106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-01DOI: 10.1017/s1574019623000032
{"title":"ECL volume 19 issue 1 Cover and Back matter","authors":"","doi":"10.1017/s1574019623000032","DOIUrl":"https://doi.org/10.1017/s1574019623000032","url":null,"abstract":"","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45347114","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-02-23DOI: 10.1017/S1574019623000019
R. Masterman
The United Kingdom Human Rights Act 1998 – Constitutional migration – Impacts of legislative design and process on the internalisation of international standards – A taxonomy of migratory patterns under the Human Rights Act – Constitutional migration as a source of constitutional instability – Proposals for a British Bill of Rights
{"title":"The United Kingdom’s Human Rights Act as a Catalyst of Constitutional Migration: Patterns and Limitations of Rights Importation by Design","authors":"R. Masterman","doi":"10.1017/S1574019623000019","DOIUrl":"https://doi.org/10.1017/S1574019623000019","url":null,"abstract":"The United Kingdom Human Rights Act 1998 – Constitutional migration – Impacts of legislative design and process on the internalisation of international standards – A taxonomy of migratory patterns under the Human Rights Act – Constitutional migration as a source of constitutional instability – Proposals for a British Bill of Rights","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2023-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44163540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-02-16DOI: 10.1017/S1574019622000499
Aleksandra Kustra-Rogatka
A discernible rift between the rhetoric of political constitutionalism and the real policy of authoritarian populists – The rhetoric focused on political constitutionalism and popular sovereignty as a façade and a utilitarian argument justifying the introduction of counter-constitutional changes through statute laws – Captured apex courts turned into useful devices of power consolidation – The analysis of the Constitutional Tribunal and the Supreme Court – The Constitutional Tribunal as an ‘inverted court’ used increasingly often to actively shape the government’s Eurosceptic policy – A double face of the Supreme Court – The new Chambers of the Supreme Court introduced to be politically abused by authoritarian populists – Systemic interactions between two captured apex courts have a synergy effect with regard to the process of the denormativisation of the constitution – The deepening politicisation of the apex courts creates a favourable environment for further rule of law deterioration.
{"title":"The Hypocrisy of Authoritarian Populism in Poland: Between the Facade Rhetoric of Political Constitutionalism and the Actual Abuse of Apex Courts","authors":"Aleksandra Kustra-Rogatka","doi":"10.1017/S1574019622000499","DOIUrl":"https://doi.org/10.1017/S1574019622000499","url":null,"abstract":"A discernible rift between the rhetoric of political constitutionalism and the real policy of authoritarian populists – The rhetoric focused on political constitutionalism and popular sovereignty as a façade and a utilitarian argument justifying the introduction of counter-constitutional changes through statute laws – Captured apex courts turned into useful devices of power consolidation – The analysis of the Constitutional Tribunal and the Supreme Court – The Constitutional Tribunal as an ‘inverted court’ used increasingly often to actively shape the government’s Eurosceptic policy – A double face of the Supreme Court – The new Chambers of the Supreme Court introduced to be politically abused by authoritarian populists – Systemic interactions between two captured apex courts have a synergy effect with regard to the process of the denormativisation of the constitution – The deepening politicisation of the apex courts creates a favourable environment for further rule of law deterioration.","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2023-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43146859","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-02-16DOI: 10.1017/S1574019622000505
M. Tushnet
‘A specter, one reads, is haunting more than just Europe’.1 So writes Justin Collings in his contribution to Rule of Law vs Majoritarian Democracy. The spectre is right-wing populism – not, I think, ‘majoritarian democracy’ as such. Marx and Engels had an account of where the spectre they thought was haunting Europe in 1848 came from: capitalist development – the economy, in short. The spectre, that is, had a specific political content and a specific economic cause, and for Marx and Engels the remedy was social and economic transformation. But, it turned out, they were wrong: capitalists were able to push the spectre away by a series of institutional reforms of governance. Rule of Law vs Majoritarian Democracy is representative of a spate of scholarship on the contemporary crisis of democracy, if that’s what it is. That scholarship differs from Marx and Engels’s work not solely because it is academic analysis rather than political polemic. It differs as well because it elides politics and economics and attends almost exclusively to institutional matters. Politics is elided by replacing a specifically right-wing populism with populism in general or, as here, with majoritarian democracy. Economics is elided by gesturing in the direction of causes of the crisis located outside of governing institutions – something like a combination of neoliberalism with modes of decision-making enabled by modern communication technologies (‘social media’, ‘the Internet’, and the like) – without seeking to change anything associated with those causes. And, as before, the remedies for the crisis are to be found within the design of governance institutions, generally – though not universally – by restricting the
贾斯汀·科林斯（Justin Collings）在《法治与主要民主》（Rule of Law vs Majoritarian Democracy）一书中写道：“一个幽灵不仅仅困扰着欧洲。”。幽灵是右翼民粹主义，而不是我认为的“多数民主”。马克思和恩格斯对他们认为1848年困扰欧洲的幽灵的来源有一个描述：资本主义发展——简而言之，就是经济。幽灵，也就是说，有特定的政治内容和特定的经济原因，对马克思和恩格斯来说，补救办法是社会和经济转型。但是，事实证明，他们错了：资本家能够通过一系列治理制度改革来赶走幽灵。《法治与主要民主》代表了一系列关于当代民主危机的学术，如果真是这样的话。这种学术与马克思和恩格斯的作品不同，不仅仅是因为它是学术分析，而不是政治争论。它也有所不同，因为它忽略了政治和经济，几乎只关注制度问题。通过用民粹主义取代特定的右翼民粹主义，或者像这里一样，用多数民主取代政治。经济学被排除在外，因为它指向了管理机构之外的危机原因——有点像新自由主义与现代通信技术（“社交媒体”、“互联网”等）促成的决策模式的结合——而不寻求改变与这些原因相关的任何事情。而且，和以前一样，危机的补救措施应该在治理机构的设计中找到，通常——尽管不是普遍的——通过限制
{"title":"What’s the Problem with Populism?","authors":"M. Tushnet","doi":"10.1017/S1574019622000505","DOIUrl":"https://doi.org/10.1017/S1574019622000505","url":null,"abstract":"‘A specter, one reads, is haunting more than just Europe’.1 So writes Justin Collings in his contribution to Rule of Law vs Majoritarian Democracy. The spectre is right-wing populism – not, I think, ‘majoritarian democracy’ as such. Marx and Engels had an account of where the spectre they thought was haunting Europe in 1848 came from: capitalist development – the economy, in short. The spectre, that is, had a specific political content and a specific economic cause, and for Marx and Engels the remedy was social and economic transformation. But, it turned out, they were wrong: capitalists were able to push the spectre away by a series of institutional reforms of governance. Rule of Law vs Majoritarian Democracy is representative of a spate of scholarship on the contemporary crisis of democracy, if that’s what it is. That scholarship differs from Marx and Engels’s work not solely because it is academic analysis rather than political polemic. It differs as well because it elides politics and economics and attends almost exclusively to institutional matters. Politics is elided by replacing a specifically right-wing populism with populism in general or, as here, with majoritarian democracy. Economics is elided by gesturing in the direction of causes of the crisis located outside of governing institutions – something like a combination of neoliberalism with modes of decision-making enabled by modern communication technologies (‘social media’, ‘the Internet’, and the like) – without seeking to change anything associated with those causes. And, as before, the remedies for the crisis are to be found within the design of governance institutions, generally – though not universally – by restricting the","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2023-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42678259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-02-07DOI: 10.1017/S1574019622000451
Julian Scholtes
Enforcement and conceptualisation of Article 2 TEU values – Rule of law – A non-regression principle for EU values faces significant pitfalls – Limits of the ‘backsliding’ paradigm informing doctrinal developments under Article 2 TEU – Inadequacy of a progress/regression trajectory as a lens for constitutional developments – Complexity of Article 2 values threatens to render regression assessments simplistic – Non-regression and the equality of member states – Potential conflicts between non-regression and minimum standards as tests for Article 2 compliance
{"title":"Constitutionalising the end of history? Pitfalls of a non-regression principle for Article 2 TEU","authors":"Julian Scholtes","doi":"10.1017/S1574019622000451","DOIUrl":"https://doi.org/10.1017/S1574019622000451","url":null,"abstract":"Enforcement and conceptualisation of Article 2 TEU values – Rule of law – A non-regression principle for EU values faces significant pitfalls – Limits of the ‘backsliding’ paradigm informing doctrinal developments under Article 2 TEU – Inadequacy of a progress/regression trajectory as a lens for constitutional developments – Complexity of Article 2 values threatens to render regression assessments simplistic – Non-regression and the equality of member states – Potential conflicts between non-regression and minimum standards as tests for Article 2 compliance","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2023-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48415601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-02-07DOI: 10.1017/S1574019622000359
Florian Meinel
The German Federal Constitutional Court’s recent case law in context – A systematic account of the Federal Constitutional Court’s changing constitutional imagination – The constitutional footprint of the grand coalitions during Angela Merkel’s 16-year term as German Chancellor – The changing architecture of parliamentary government in the Federal Republic and the role of the Court – The supermajoritarian structure of the German political system – Majority rule and veto players – Legislation and parliamentary oversight – Executive autonomy and parliamentary control – Political representation and counter-representation by the Court – The constitutional nature of cabinet and ministerial responsibility – constitutional limits of political speech in government office – The normative model of administrative constitutionalism – The pouvoir neutre in the German constitution – The constitutionalisation of distributive justice
{"title":"The Merkel Court: Judicial Populism since the Lisbon Treaty","authors":"Florian Meinel","doi":"10.1017/S1574019622000359","DOIUrl":"https://doi.org/10.1017/S1574019622000359","url":null,"abstract":"The German Federal Constitutional Court’s recent case law in context – A systematic account of the Federal Constitutional Court’s changing constitutional imagination – The constitutional footprint of the grand coalitions during Angela Merkel’s 16-year term as German Chancellor – The changing architecture of parliamentary government in the Federal Republic and the role of the Court – The supermajoritarian structure of the German political system – Majority rule and veto players – Legislation and parliamentary oversight – Executive autonomy and parliamentary control – Political representation and counter-representation by the Court – The constitutional nature of cabinet and ministerial responsibility – constitutional limits of political speech in government office – The normative model of administrative constitutionalism – The pouvoir neutre in the German constitution – The constitutionalisation of distributive justice","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2023-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41838119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-02-03DOI: 10.1017/S1574019622000463
Ignatius Yordan Nugraha
On 9 June 2022, the Grand Chamber of the European Court of Human Rights pronounced its judgment in the case of Savickis and Others v Latvia. The case concerns a differential treatment in the calculation of pension between Latvian citizens and the so-called ‘permanently resident non-citizens’ (nepilsoņi), which was the applicants’ official status. The applicants were denied recognition of their period of employment outside of Latvia when the country was illegally occupied by the Soviet Union (the USSR), while Latvian citizens could enjoy such a benefit. They argued that this constituted a breach of the accessory right to nondiscrimination under Article 14 of the ECHR in conjunction with the right to property under Article 1 of Protocol No. 1 of the ECHR.1 The Grand Chamber eventually found no violation of these provisions. The importance of the case cannot be overstated, as the Court recognised Latvia’s argument that the differential treatment was aimed to protect Latvia’s constitutional identity. In other words, protection of constitutional identity was accepted as a
{"title":"Protection of Constitutional Identity as a Legitimate Aim for Differential Treatment","authors":"Ignatius Yordan Nugraha","doi":"10.1017/S1574019622000463","DOIUrl":"https://doi.org/10.1017/S1574019622000463","url":null,"abstract":"On 9 June 2022, the Grand Chamber of the European Court of Human Rights pronounced its judgment in the case of Savickis and Others v Latvia. The case concerns a differential treatment in the calculation of pension between Latvian citizens and the so-called ‘permanently resident non-citizens’ (nepilsoņi), which was the applicants’ official status. The applicants were denied recognition of their period of employment outside of Latvia when the country was illegally occupied by the Soviet Union (the USSR), while Latvian citizens could enjoy such a benefit. They argued that this constituted a breach of the accessory right to nondiscrimination under Article 14 of the ECHR in conjunction with the right to property under Article 1 of Protocol No. 1 of the ECHR.1 The Grand Chamber eventually found no violation of these provisions. The importance of the case cannot be overstated, as the Court recognised Latvia’s argument that the differential treatment was aimed to protect Latvia’s constitutional identity. In other words, protection of constitutional identity was accepted as a","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2023-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44280821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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