Sovereignty on trial: Italy, Israel, and the battle for constitutional values

The Constitutional Court is the highest court in all constitutional matters and thus decides appeals from other courts in disputes involving natural and juristic persons and the state, including criminal matters, if the matter is a constitutional matter or an issue connected with a decision on a constitutional matter. The Court may hear any matter, if the Constitutional Court grants leave to appeal because the matter raises an arguable point of law of general public importance that ought to be considered by that court. The Constitution makes it clear that courts are independent and subject only to the Constitution and the law. All persons to whom and organs of state to which a court order or decision applies are bound by it. It is important that the courts employ a standard of judicial review that is compatible with constitutional principles and values. The Constitutional Court subscribes to a standard of “deference” in judicial review. This principle recognises the need to protect the institutional character of each of the three arms of government in a manner that will prevent their ability to discharge their constitutional role being undermined. The principle of deference concerns the function of the judge in mediating between the law and legislative and executive politics. Around the world, litigation or judicial review has become immensely popular as a treatment for the pains of modern governance. South Africa is no exception to this phenomenon. This activism by litigation consists of efforts to promote, impede, or direct social, political, economic, or environmental change, or stasis. Organisations and individuals often disregard or distrust the political process and approach the courts to advance their own interest and to protect their own rights. Litigants seek to enforce constitutional principles and values that affect others as directly as them and that are valued for moral or political reasons and are independent of economic interests. The relief claimed aims to restructure the public organisation or conduct by the legislature and/or executive to eliminate a threat to constitutional principles and values enshrined in the Constitution. The South African Constitution has provided the public litigant with the freedom to bring matters before the courts not possible in terms of the common law. This has led to a departure from the traditional conception of litigation and consequently the remedies that courts have to offer. Courts have the duty to intervene in constitutional violations, but they have a prerogative to decide when and to what extent to intervene when such a violation occurred within the domain of other branches of government. The decision on whether to intervene and then, to what extent, will depend on the standard of judicial review the courts employ. Davis proposes a culture of justification for judicial review that takes into account the democratic prerogative of the elected arms of government to fashion and implement public policy within the framework of the Constitution. This culture accepts that the role of judicial review is to foster a culture of democracy, and that the judiciary must commence from a standpoint that it operates within a governmental system that is based upon a doctrine of separation of powers. Although Davis’s work is meant as only as a framework for a coherent theory of judicial review, the question of justification and participation advances other constitutional values such as openness, non-discrimination, accountability and participation to judicial scrutiny. It is submitted that the culture of justification meets the tenets of judicial review as set out by both Mureinik and Dyzenhaus and finds application in an objective interpretation of constitutional provisions and values. The culture of justification ensures that the government justifies its decisions to the governed; it promotes transparent government and allows the citizens to participate in decisions affecting them.

Purpose This study investigates the intricate dynamics of the hidden curriculum and its influence on student achievement in teacher education programs. Specifically, the study examines the mediating role of professional and constitutional values and the moderating role of sex in this relationship. Design/methodology/approach A total of 282 bachelor of education fourth semester students (151 female and 131 male) participated in the study. General linear modeling in Jamovi 2.4.4 was utilized to analyze the data. The general linear model (GLM) mediation model was used to measure the mediation effects of the hidden curriculum via professional value and constitutional value on student achievement. Sex was accepted as a dichotomous moderator in the model. Findings Hidden curriculum had positive significant direct and total effect on student achievement. The mediation of constitutional values between hidden curriculum and student achievement was found to be significant and negative. Professional value was not found to be a significant mediator. The interaction between sex and constitutional value was significant and positive. Apart from this sex moderated professional and constitutional values differentially. Constitutional and professional values had significant direct component effects on student achievement. The findings contribute to the discourse of hidden curriculum by providing insights into the interplay of sex, professional values, constitutional values and student achievement. Practical implications The study has implications for educational policies and curriculum design, urging stakeholders to pay attention to the implicit messages communicated by the curriculum. Professional and constitutional values influence the hidden curriculum and achievement. Therefore, teachers should be equipped with an understanding of these values to manage the hidden curriculum in their classrooms. The study also highlights the gendered educational experiences and the necessity of implementing gender-sensitive policies and practices in schools and classrooms. Originality/value This study provides unique insights into the complex relationship between the hidden curriculum and student achievement in the context of a teacher education program in India. The findings highlight the importance of addressing the hidden curriculum in educational settings and emphasize the need for gender-sensitive policies and practices.

Constitutional values are fundamental factors in determining the vector of development of the domestic state and law. Analyzing the law enforcement practice, as well as the interpretative activity of constitutional justice bodies, primarily the Constitutional Court of the Russian Federation, it is possible to trace which values in the event of legal conflicts receive priority over others. This, in turn, allows most researchers to talk about the hierarchy of constitutional values. What constitutes constitutional values and what should be considered as such is highly controversial in the legal literature. In this article, the author considers constitutional values, analyzes their legal nature and place among other legal values. It offers an author’s vision of understanding constitutional values and their difference from constitutional principles and other provisions of a constitutional nature. It is proposed that the constitutional values include legal freedom, property relations, public order and state security. Constitutional values should not be confused with other provisions of the Constitution of the Russian Federation. The author analyzes the opinions expressed regarding the classification and hierarchy of constitutional values. The problems of their institutionalization at present in the Russian Federation are substantiated, as well as some possible ways of overcoming their speedy implementation in contemporary social reality are expressed. It is concluded that the implementation of constitutional values entirely depends not only on social and economic conditions, but also on the system of public authorities created in the state whose activities should contribute to the realization of individual legal freedom, protection of various forms of ownership, ensuring public law and order and state security. The research methodology is based on the dialectical method, which made it possible to identify the features of constitutional-legal values and their place in the system of socially significant values of public order. The use of the comparative (comparative legal) method contributed to the determination of the properties of those values that may be called constitutional, and to find differences from other legal values. With the help of historical and prognostic methods, the invariability of constitutional and legal values was substantiated and proved regardless of the historical development of the state and law, which indicates their universal (general) nature.

The article analyses the legal significance of the application of the concept of the full membership of the Republic of Lithuania in the European Union as a constitutional value in the jurisprudence of the Constitutional Court of the Republic of Lithuania. This idea is only acceptable in the context of the concept of a Constitution as an act establishing and protecting a specific system of values. It also reflects the openness of Lithuania’s constitutional law to international law and European integration. The full membership of the Republic of Lithuania in the European Union is treated by the Lithuanian Constitutional Court as an element of the principle of the geopolitical orientation of the Lithuanian state, which is closely interrelated with the fundamental constitutional values (state independence, democracy and republic, etc.). Therefore, it is in the so-called “constitutional core”, between the fundamental constitutional principles and values on which the constitutional system is based. This is one of the peculiarities of our constitutional system. Recognition of the status of a constitutional value presupposes the problems for Constitutional Court in appreciating the content and significance of this value and its relationship with other constitutional values. The balancing of the full membership of the Republic of Lithuania in the European Union as a constitutional value with other constitutional values is at the centre of constitutional interpretation. Moreover, it also relates to the problems of the axiological interpretation of the Constitution. The full membership of the Republic of Lithuania as a value is one of the elements of the constitutional principle of geopolitical orientation, which arises in constitutional jurisprudence as an element of constitutional identity. One of the aspects of the use of the concept of constitutional identity is the opposition of constitutional and European identity (constitutional identity is understood in this case as an instrument of self-defence against excessive integration). The Lithuanian constitutional concept, which declares that the full membership of the Republic of Lithuania in the European Union is a constitutional value and an element of constitutional identity, means that in the analysis of the legal problems of the interaction of the national and European Union legal systems, we must not simply view relations as “our own” and “foreign”, but the interaction between “our own” and “our own from a wider perspective”. This concept means that the constitutional identity cannot only be treated as an instrument for protecting the national system, but also as a measure for the well-founded establishment of balance between the national and EU legal systems.

The faculty of law of the Potchefstroom University for Christian Higher Education in corroboration with the Konrad-Adenauer-Stifttung embarked on a study on Politics, Socio-Economic Issues and Culture in Constitutional Adjudication. The aim of the project is twofold. The first aim is to analyse the influence of political, socio-economic and cultural considerations on the constitutional court’s interpretation and application of the Bill of Rights. The second aim is to develop practical guidelines (based on the findings during the analysing process) for South African courts confronted with issues of a political, socio-economic and cultural nature. This article is concerned with initiating discussions of the decisions of the constitutional court with regard to cultural and religious rights.
 Before we can explore the role of political, socio-economic and cultural (and religious) rights in the decisions of the constitutional court it is important to discuss a few preliminary issues. In this article the meaning of culture and religion within the South African context receives some attention. Secondly, some preliminary comments regarding constitutional protection of culturally and religiously based rights will be made.
 We are well aware that this is a daunting task, not only in view of the seemingly abysmal gap between the applicable constitutional rights and values enshrined in the 1996 Constitution that, in some instances over centuries, brought about customs and practices within “traditional” communities which, seemingly, infringe on certain constitutional values and rights.
 

On the eve of the 30th Anniversary of the Constitution of Russia, the author makes an attempt to evaluate the Russian basic law, the content of the norms enshrined in the Constitution for their compliance with traditional values, i.e., spirituality, conciliarity, and civilizational identity inherent in the peoples of Russia. The anniversary date makes it possible to comprehend the meaning of traditional values, their reflection in the basic laws of the Russian State adopted in different historical periods. The author examines approaches to the concept of constitutional (constitutionally significant, constitutionally protected) values expressed in the legal standings of the Constitutional Court of the Russian Federation. The author elucidates various interpretations of the concept of «constitutional values» in the works of modern researchers, proves their relationship with the concept of «traditional values.» The conclusion is substantiated that only the goals, principles and priorities that are based on traditional values will be provided with popular support and will be able to become real prospects for constitutional development.

The article examines the topical issues of defining the parametric features of the phenomenology of "municipal values”. The authors, on the basis of research and analysis of the historical retrospective of the origin and functioning of city self-government, determine the main stages of the appearance, formation and functioning of municipal values. The study of the phenomenology of municipal legal values is accompanied by the construction of a procedural chain "public values - constitutional values - municipal values”, in which the latter are considered as a natural manifestation and result of the activity of both public and constitutional values. A conclusion is made about the special role and significance of municipal legal values, which arose in historical retrospect, and were supplemented by the experience of the existence and functioning of city self-government, the achievements of which were interpreted at other levels of local self­government. This is evidenced by the borrowing by the national legislator of municipal legal values from the state legislation on local self-government and by the international legislator from the array of norms of international public law through the use of the mechanisms of international treaty law. It is also proven that modern international public law actually contains a paradigm that has developed due to the perception by the signatory states of relevant international treaties of the profile focus of international legal standards of local self­government. Its main subject, on the one hand, is the fundamental principles of local democracy, which have been generalized by the Western (European) experience of municipal activity and municipal construction, and on the other hand, they are nothing more than the values of municipalism, which must be borrowed by the post-Soviet states parties to such international agreements that after the collapse of the USSR acquired state sovereignty and entered the circle of independent member states of their European and international community.

The paper examines the issues regarding the values enshrined in the Constitution of the Russian Federation from the standpoint of constitutional axiology. There is a variety of approaches to understanding constitutional values, their structure and legal characteristics. The author considers the phenomenon of trust as a social and constitutional value. The author draws a conclusion about her own understanding of the legal essence of constitutional values, which is not reduced to an idea, installation, principle or norm. They are an expression of self-identification of the multinational people of the Russian Federation, establishing the constitutional system. Therefore, they are constitutional values in the absolute meaning of this concept, and they have the property of integrativeness. The consolidation of the value of trust in the preamble of the Constitution of the Russian Federation is of paramount importance for the approval of the new constitutional order, the activities of public authorities, relations between the authorities and society, and the interaction of civil society institutions. In a formal legal context, this involves the creation, on the basis of the law, of institutions, procedures, means of protecting rights that should be based on trust and should be effective. Trust as a constitutional value is a criterion for assessing the institutions of public authority and civil society, the activities of subjects of constitutional legal relations, primarily public authorities.

This article explores the potential of regarding care as a constitutional issue, rather than addressing it solely through legislation, the family, or the market. It is argued that care is best regarded as a constitutional value, reflecting the reality of our interdependence, and functioning as a crucial counterweight to the fiction that individual freedom can be constituted independently of our social relations. Care as a constitutional value should be regarded as complementing express constitutional commitments to freedom, dignity, and equality, recognizing that relationships are constitutive of the self, and that individuals are partly constituted by society. Just as freedom, dignity, and equality perform important expressive functions in a constitution, so the recognition of care, implicit or explicit, signals the foundational importance of care to everyone throughout our lives and to society’s ability to reproduce itself. Care as a constitutional value should permeate the interpretation of constitutional and other provisions, and enhance accountability for care-related decisions, encouraging decision-makers to pay attention to care, and prompting courts to interpret constitutional and legislative measures with the value of care in mind. In this way, the gaps in welfare law, labor law, and free market regulation can be addressed to face the challenges of care. Equally importantly, care as a constitutional value can act as a catalyst for political activism, legitimizing grassroots campaigns for better recognition of care. This article is normative and exploratory. At the same time, its propositions are tested against constitutional jurisprudence in India, South Africa, Canada, and the United Kingdom.

The change of the scientific paradigm in Russian jurisprudence is accompanied by the affirmation of pluralism in a legal science. The paper has highlighted that the modern Russian constitutional theory seeks to express itself in the problems of ontological and axiological foundations, claiming to form an integral ”constitutional philosophy.”Constitutional axiology represents one of the most significant concepts of constitutionalism. Constitutional axiology is built as a field of scientific reflection (the nature, content, system of constitutional values). From these standpoints, the author provides for the assessment of law-enforcement carried out by the body of constitutional justice. The paper recognizes the high importance of research of constitutional law from the axiological point of view.The author has concluded that constitutional values as a reflection and expression of the “charter” of the life of the society (“protoconstitutional”) represent objectivated systemic totality functioning as the ultimate goal of constitutional development. Constitutional values represent concepts that must correspond to the social and spiritual environment of the society and the purpose of the State.The paper critically assesses the concept of a “living constitution” in its Russian interpretation as the constitutional and appraisal activity of the Constitutional Court of the Russian Federation with regard to “generation” of constitutional values. It is noted that the result of the work of the Constitutional Court of the Russian Federation expressed in its legal determinations, can not represent other (“generated” by it) constitutional values except those contained in the Constitution of the Russian Federation. “Transformation” of the content and legal attitudes and meanings of the Constitution, constitutional values without changing the text of the Constitution may lead to “distortions” of the essence of the Constitution and intent for the Constitution to be an act with the highest legal force.

The article examines individual issues of the influence of constitutional principles and constitutional provisions guarantees of the implementation of human rights on the current labor legislation. Based on the constitutional and legal understanding of values, the features of the content of guarantee norms in the Constitution of the Republic of Moldova are determined, and a comparison of constitutional norms, constitutional values and constitutional principles. on this basis, the content of labor legislation is analyzed, including the norms of the labor code of the Republic of Moldova, which enshrines the principles of legal regulation of labor relations. Constitutional values are also considered in interdependence with the content of individual norms of the European and international standards governing human labor rights. A number of conclusions are formulated regarding the importance of taking into account constitutional values in rule-making in the field of labor and labor protection. Proposals have been made to improve the effectiveness of current legislation, taking into account the influence of constitutional norms and constitutional values on sectoral labor legislation.

Law schools have a responsibility to remind law students that by studying law they have the power to transform thoughts, policies and lives, and that practising law is not just about financial rewards, but that its greatest reward is contributing to the betterment of society and ultimately to social change. The values and philosophies that law lecturers instil in law students can contribute to the legal order of the future; a legal order that supports a transformative South Africa. A need exists to bring legal education closer to the values enshrined in our Constitution. In addition to an extensive knowledge of legal principles, critical thinking and research skills, law students should critically engage with our constitutional values. The question remains: How do we transform legal education in South Africa? How do we change the way we teach law students? The introduction of concepts such as therapeutic jurisprudence enhanced by our constitutional values will ensure that we deliver graduates that display a commitment to our constitutional vales and an ability to engage critically with these values. It is important to establish a professional legal identity amongst students from their first year as this will assist in the development of a well-rounded graduate that can contribute to the legal order of the future. Letter writing and drafting skills, the value of plain language, moot court activities, alternative dispute resolution and clinical legal education provide opportunities to integrate valuable therapeutic jurisprudence principles into the curriculum and can allow students to critically engage with our constitutional values. By embodying these values they can improve the legal system, shape our legal order and promote progress toward an equal and free democratic society as envisaged by the Constitution.
 

Human dignity as a constitutional value and constitutional interpretation Is human dignity a constitutional value? This is the question that I shall examine in this chapter. The answer to this question is interpretative. It is subject to interpretational tools. We must answer the question through a holistic interpretation of the constitution – each constitution according to its own interpretation. There is no single interpretive method for understanding the constitution. However, comparative constitutional experience indicates that there are three primary approaches to constitutional interpretation. The first method is interpretation according to the intent of the constitution’s framers: Intentionalism . Intentionalism’s answer to the question of whether or not human dignity is a constitutional value will be decided according to the intention of the constitution’s framers. The second interpretive method, which is prominent in American constitutional law, is interpretation according to the original public understanding: Originalism . Human dignity is a constitutional value, according this approach, if that was society’s understanding at the time of the constitution’s adoption. The third interpretative method is the functional approach: Purposive Interpretation . Human dignity is a constitutional value if that is what is indicated after assessing the role, the function and the purpose that the constitution fills at the time of interpretation. Dworkin provided another important theory of constitutional interpretation. Due to its intricate nature, I will not delve into it in this book. In principle I would argue – and it certainly is open to argument – that Dworkin’s approach presents a specific aspect of purposive interpretation. The same holds true for Posner’s pragmatism. For the purposes of this book, I see it as an aspect of purposivism. The same is true for the American approach called The Living Constitution. I shall focus on purposive constitutional interpretation. This is the accepted interpretative approach in many modern democracies. I shall address the details of this method so far as they pertain to constitutional interpretation generally, and to the interpretation of “human dignity” within a constitution specifically. As we shall see, purposive interpretation considers both the intent of the constitution’s framers and the original public understanding. However, it does not attribute significant weight to either of them. Decisive weight is given to the fundamental purpose underlying the constitution at the time of interpretation. I shall discuss this later in the book.

This article argues that an integrated and constitutional approach to the law of personality is required, as multiple sources of law are applicable to the conception and adjudication of personality rights and these sources must give effect to constitutional imperatives related to the human personality. This article further argues that such an integrated and constitutional approach ought to be premised on the principle of adjudicative subsidiarity and the "horizontality simpliciter" approach (as constitutional reading strategies). Each of these strategies functions at different levels in the law of personality and provides a particular method of integrating legal sources, constitutional values, and fundamental rights to private relationships. At the macro level, denoting the interaction between various sources of law, the principle of adjudicative subsidiarity is aimed at identifying and prioritising sources of law to adjudicate a dispute between private individuals. At the micro level, denoting the application of a legal source between individuals in a private relationship, the horizontality simpliciter approach facilitates the application of both constitutional values and fundamental rights to such a source through its "values.based" and "rights.based" analyses. This article argues ultimately that the principle of adjudicative subsidiarity and the horizontality simpliciter approach are complementary in nature in the sense that both these reading strategies locate a cause of action in a non.constitutional source that is constitutionally developed through the application of constitutional values and fundamental rights. This complementariness is expressed in the positive law as follows: the principle of adjudicative subsidiarity determines which source of law is applicable to the adjudication of a particular personality right infringement whereas the horizontality simpliciter guides the development of the applicable source against constitutional values and fundamental rights.

The arguments developed in chapters 1 to 7 might be used to support the conclusion that not just some natural entities but also some non-natural ones have constitutive value for people on account of the meanings they bear. What is more, even when a certain natural entity has constitutive value, it is a further question whether it has that value precisely because it is (or is taken to be) natural. To assess whether any entities have constitutive value precisely because they are (or are taken to be) natural, one must specify what one means by ‘natural’. In the present context, that word may be taken to mean something like largely unshaped by human intentional actions. That concept of naturalness has not made sense to all people in all times. Still, the fact remains that many people in modern Western societies do distinguish between what is natural and what is human in this way. For some of them, moreover, natural entities are of constitutive value precisely because they seem to be natural. One such case is presented in Robert Pogue Harrison’s Forests: The Shadow of Civilization. If Harrison is correct, then wild nature has constitutive value for us precisely because it evokes a radically non-human—and, in this sense, natural—realm.