Law Of Republic Research Articles

EU Constitutional Law as Restraint for EU Trade and Investment Agreements: The Example of CETA and Investor-State Dispute Settlement

The civil society protests against EU free trade agreements (FTAS) and investment arbitration reflect the failure of EU institutions to take “decisions as openly as possible and as closely as possible to the citizen” (Article 1 TEU) and to protect the rights of citizens also in external market regulations (Articles 3, 21 TEU). The less EU institutions comply with the legal requirements (e.g. in Articles 2, 9–12 TEU) of protecting constitutional, representative, participatory and deliberate democracy also in external market regulations, the less parliamentary approval of secretly negotiated FTAS guarantees democratic legitimacy and consistency of FTAS with EU constitutional law. Fundamental rights limit all EU governance powers, including trade and investment policy powers of the EU. The disregard for fundamental rights and judicial remedies of citizens in FTAS concluded by the EU with third countries is neither necessary nor justifiable in terms of Article 52 of the EU Charter of Fundamental Rights. Transatlantic FTAS on multilevel market regulation and protection of public goods should be designed as ‘democratic law’, which citizens are entitled to invoke and enforce in domestic jurisdictions as integral parts of EU law.

EU Citizenship as a Constitutional Restraint on the EU's Multilevel Governance of Public Goods

This contribution suggests a ‘republican interpretation’ of EU citizenship rights based on the following three propositions: First, the more globalization transforms national into transnational public goods (PGs), the more democratic and republican constitutionalism require designing and implementing transnational ‘PGs treaties’ as ‘democratic law’ empowering citizens to invoke and enforce precise and unconditional, multilevel market regulations and protection of PGs vis-a-vis multilevel governance institutions. Second, as EU law (e.g. Articles 2, 9-12 TEU) requires EU institutions and member states to protect constitutional, representative, participatory and deliberative democracy and limits all internal and external EU powers by fundamental rights and protection of PGs (res publica), EU citizens rightly challenge EU trade, investment and other treaties that privilege interest groups and undermine the ‘constitutional contract’ of citizens as codified in the EU Charter of Fundamental Rights (EUCFR). Third, just as common market and competition law inside and beyond the EU protects citizen-driven ‘network governance’ and rights-based 'vigilance' of EU citizens embedded into comprehensive protection of fundamental rights and a ‘social market economy’ (Article 3 TEU), EU institutions should respond to the legitimacy- and rule-of-law-crises in other areas of EU governance by ‘re-connecting’ EU law with EU citizens as ‘democratic principals’ of multilevel governance agents. 'Anti-citizen clauses' in EU free trade agreements (FTAs) with non-European countries (like Article 30.6 CETA) and discriminatory 'arbitration privileges' for foreign investors illustrate ‘authoritarian dis-connect’ of EU bureaucrats from EU citizens; they risk undermining rule of law, constitutional democracy, and the ‘social market economy’ inside the EU.

His Master’s Voice?: A Hemispheric History of Phonographic Fictions

This article explores the relationship between writing and sound recording technologies by constructing a genealogy of “phonographic fictions” connecting Spanish America to the United States. Starting in the early nineteenth century, the circulation of a system of shorthand known as “phonography” (or fonografía) touted the benefits of “sound-writing” for literature, commerce, and democratic law. Yet these connections became more fraught with the invention of the mechanical phonograph, given that the emergence of the recording industry and other inscriptive technologies was fueled first by the Spanish American War and then by the United Fruit Company’s creation of banana export enclaves in Central America and the Caribbean, which relied on and reinforced repressive political regimes. How did literature respond to these contradictions? The article dwells first on Spanish American modernismo before tracing trajectory of novels set in so-called banana republics that feature phonographs in brief but revealing roles. After examining a long-overlooked text by the U.S. writer O. Henry, it winds its way through several pillars of the Spanish American canon─including examples of magic realism and the dictator novel─and asks how an attention to the material infrastructures of sound recording can shed light on the development of the Spanish American literary field.

Democratic Police Reform and Public Law Injunctions

Scholars have overlooked systemic reform injunctions as potent tools to challenge and combat discriminatory and unconstitutional police practices. Recent events and an infusion of funding from major philanthropy and private sources promise an increase in injunctive suits challenging department-wide unconstitutional and discriminatory police practices. I propose formalized community involvement in the creation, implementation and evaluation of injunctive remedial processes to improve solution generation and popularize policing public law litigation. The dominant policing theories offering community involvement — community policing and procedural justice — have limited utility at addressing long-term tensions between the police and Black or Brown neighborhoods. My proposed remedy, as part of a larger injunction, aims to shift power from the police to the policed and draws from democratic theory.

Legitimate Opposition, Ostracism, and the Law of Democracy in Ancient Athens

Traditionally, scholars have tied the emergence of legitimate opposition to the rise of political parties in the nineteenth century. Once governments acknowledged parties’ and partisans’ essential roles in representative government, they also established limits on legitimate opposition. Illegitimate opposition was now defined as the pursuit of unconstitutional, extreme, or disloyal ideals. This article upends the traditional understanding of legitimate opposition. Athenian democracy did not feature parties, but it did feature intense political competition. As I demonstrate, that competition was structured by a recognizable form of legitimate opposition. Focusing on the fifth century, I illustrate how Athens fostered contestation and where it drew the boundaries of opposition. Competitors were not sanctioned because of their ideals. Instead, Athenian institutions were antimonopolistic, blocking individuals from wielding excessive power. Recognizing Athens’ distinctive, partyless model of legitimate opposit...

Supranational Courts and the Law of Democracy: The European Court of Human Rights

This Article involves a systematic exploration of the European Court of Human Rights’ decisions in cases involving the actual structure of the democratic process itself. These “law of democracy” cases pose some of the most conceptually difficult and politically charged cases even for domestic courts, let alone for a supranational Court tasked with enforcing democratic rights across the diverse ways the member States have structured and institutionalized their democratic systems. In the Court’s doctrinal terms, the question is how much of a “margin of appreciation” the Court should recognize for the various member States to interpret and apply democratic rights in differing ways across their different systems of democracy. Focusing on the Court’s decisions regarding regulation of political advertising, access to the vote, and the spending of money to influence electoral outcomes, the Article concludes that the Court has recurringly in recent decades entered into these areas with bold initial decisions, only to be forced to back down in response to the powerful political backlash such interventions have spawned, particularly in certain member States. This pattern suggests that a supranational court has trouble mobilizing the political legitimacy required to sustain acceptance of its decisions involving such morally powerful issues such as how different countries structures their systems of self-governance.

Um Sentido para a Legitimidade do Direito: consciência, ação e interação

http://dx.doi.org/10.5007/2177-7055.2016v37n73p113O presente artigo pretende fazer uma releitura dos pressupostos de validade do direito tomando como campo de pesquisa o mundo da vida interpretado como esfera em que suscitam os discursos, os diálogos interpelativos e, em última instância, a esfera do exercício democrático. Diante das questões fenomenológicas de conteúdo político e econômico, que de algum modo atingem os direitos fundamentais, a validade do direito assume relevância quando as discussões ligadas aos direitos fundamentais do homem, sua dignidade e reconhecimento e sua compreensão do Estado Democrático de Direito, são rediscutidas, considerando, sobretudo, situações paradoxais que apontam pessoas, grupos e etnias que se encontram esquecidas pela sociedade. Este esboço é suficiente para levantar uma típica questão das sociedades modernas: como estabilizar, na perspectiva própria dos atores, a validade de uma ordem social legítima do ponto de vista do direito diante do multiculturalismo nacional e global?

Measuring Diversity: Law Faculties in 1997 and 2013

B. Overrepresented Groups Compared to the U.S. Full-Time Working Population and the General Population Proportional representation is a zero-sum game. If someone is on the bottom, someone else must be on the top. Which groups are the most overrepresented in law teaching? Table 6 shows the forty significantly overrepresented groups in law teaching in absolute and relative terms. At the top of the list are white Democrats, the excess accounting for two-fifths of a faculty (40%). All of the thirty-four most overrepresented groups are white (or predominately white), most are Democratic, and most are either Jewish or nonreligious. If Table 6 were sorted according to a ratio of percentages, (69) all of the twenty-eight most overrepresented groups would be Jewish or nonreligious. Nearly half of these twenty-eight are also white and Democratic. The most overrepresented groups not defined by religion are white male Democrats, white Democrats, male Democrats, Democrats, and white female Democrats. By ratios, the most overrepresented group is white male Jewish Democrats. They are overrepresented by a ratio of nearly 28 to 1. Yet Jews were a traditionally locked-out group. In the 1930s, many law schools had no Jews or had a quota of one or two. (70) If one were serious about proportional representation, then one would wait to hire more white male Jewish Democratic law professors until 97% of them died out or resigned, perhaps taking as long as thirty years. Just to state this possibility shows that the proportional representation notion of diversity, taken seriously, is profoundly anti-Semitic in effect, if not in intent. Thus, the most overrepresented groups tend to be white or mostly white, just as the most underrepresented groups tend to be white or mostly white. The overrepresented groups tend to be Jewish or nonreligious; the underrepresented groups tend to be Republican, Independent, and Christian. One sees the same patterns of overrepresentation in Table 7, comparing law professors to the U.S. non-institutionalized general population ages 30-75. Ranked by percentage differences, the most overrepresented group is white Democrats, followed by Democrats. Ranked by ratios, all of the twenty-eight most overrepresented groups are Jewish or nonreligious. (71) C. The Underrepresented and Overrepresented Groups Compared to Lawyers Evaluations of employment discrimination usually use the pool of qualified eligible workers, not the general population, as the proper comparison group. (72) Although the best comparison might be the makeup of the pool of those lawyers with top credentials over the last 40 years, information about this elite group is unavailable. All we have is information about those minimally qualified--lawyers, judges, and law professors in private or government service. In Tables 8 and 9 I compare the law professor population to the population of private lawyers, public lawyers, judges, and law professors of age 30-75. Current Population Survey data were used for race and gender, but the sample size of lawyers was only 413. (73) Even worse, the 1972-94 General Social Survey had only 129 lawyers aged 30-75. Thus, the estimates for lawyers, particularly their religion and party identification, are limited by the small samples. For this reason, the conclusions that one may legitimately draw from these data are tentative. Yet even by this excessively broad construction of the pool, women and most minorities are either at parity or overrepresented in law teaching. Since on average African Americans receive lower grades in law school, (74) one would expect them to be underrepresented in law teaching compared to the lawyer population, even if there were no discrimination in hiring. Yet the data in Tables 8 and 9 show that most minorities and Democratic women are overrepresented in law teaching compared to lawyers more generally. The most obvious explanation--though not the only one--is that affirmative action is strong enough to overcome discrimination in the hiring decision itself. …

Cinco dimensiones del cosmopolitismo

The article examines five dimensions of cosmopolitan citizenship: the cosmopolitan democratic law; global distributive justice; variables territorial constit...

The Partisan Ordering of Candidacies and the Pluralism of the Law of Democracy: The Case of Taiwan

Abstract Political parties are more than key players of democratic politics under the law of democracy. In addition to acting behind the scenes of election lawmaking, political parties regulate themselves in the name of “party autonomy,” and the extra-legal self-regulations they make often have external effects on the democratic political process as a whole. The most important function political parties perform is to select candidates for electoral competition, and how parties regulate candidate selection in general and candidacy in particular exemplifies their role as co-regulators of electoral democracy. Using Taiwan as a case study, this article explores how partisan self-regulation of legislative candidacies has diversified and complicated the qualifications for representatives. It also attempts to grasp the normative significance and implications of partisan rules by theorizing a pluralistic account of democratic authorities and election lawmaking: the pluralism of the law of democracy. By taking plu...

Yes we can! Successful examples of disallowing ‘conscientious objection’ in reproductive health care

Reproductive health care is the only field in medicine where health care professionals (HCPs) are allowed to limit a patient’s access to a legal medical treatment – usually abortion or contraception – by citing their ‘freedom of conscience.’ However, the authors’ position is that ‘conscientious objection’ (‘CO’) in reproductive health care should be called dishonourable disobedience because it violates medical ethics and the right to lawful health care, and should therefore be disallowed. Three countries – Sweden, Finland, and Iceland – do not generally permit HCPs in the public health care system to refuse to perform a legal medical service for reasons of ‘CO’ when the service is part of their professional duties. The purpose of investigating the laws and experiences of these countries was to show that disallowing ‘CO’ is workable and beneficial. It facilitates good access to reproductive health services because it reduces barriers and delays. Other benefits include the prioritisation of evidence-based medicine, rational arguments, and democratic laws over faith-based refusals. Most notably, disallowing ‘CO’ protects women’s basic human rights, avoiding both discrimination and harms to health. Finally, holding HCPs accountable for their professional obligations to patients does not result in negative impacts. Almost all HCPs and medical students in Sweden, Finland, and Iceland who object to abortion or contraception are able to find work in another field of medicine. The key to successfully disallowing ‘CO’ is a country’s strong prior acceptance of women’s civil rights, including their right to health care.

The Democratic Roots of Expatriations

Patti Tamara Lenard assesses the justifications given for the right to revoke citizenship in democratic states and concludes that this practice is inconsistent with a commitment to democratic equality. She provides three normative reasons for the mismatch between democratic principles and revocation laws: that the practice of revocation discriminates between different citizens within each state; that it provides differential penalties for the same crime; and that it does not provide transparent justification or due process for this harsh punishment. Although I too am repulsed by this practice, I do not think it is necessarily undemocratic. Moreover, such analysis overlooks one legitimate motivation behind expatriation: the aim to regulate national allegiance. The new revocation initiatives act as a powerful symbolic tool in reinforcing a world order based on sovereign nation-states.

Democratic citizenship and the limits to immigrants' multicultural exercise of fundamental rights in public spaces: the case of Spain

The following paper deals with the well-known issues of citizenship and multiculturalism from the point of view of democratic constitutional law. It is argued that democratic citizenship plays a role as a promoter of and at the same time as a source of limitations on the development of multiculturalism. On the one hand, the democratisation of citizenship makes it the proper constitutional tool for enhancing multiculturalism through its culturally open safeguarding of fundamental rights. But on the other hand, the need to preserve the democratic (but still mostly national) character of citizenship implies a certain limitation of the scope of multiculturalism in four different ways: the liberal democratic understanding of fundamental rights that flows from constitutional texts; the provision of compulsory civic-democratic education in schools; the political and cultural requirements established for naturalisation; and finally the definition of the fundamental rights agenda by the cultural majority that is embodied in a democratic framework of government.

ANALISIS YURIDIS PEMENUHAN HAK TAHANAN MENURUT HUKUM ACARA PIDANA INDONESIA PADA DIREKTORAT TAHANAN DAN BARANG BUKTI DI POLDA MALUKU

The republic of Indonesia is a democratic law state that based on Pancasila and 1945 Constitution, that upholds human rights and guarantee every citizen is equal before the law and government, and need to uphold the law and the government without any exception. Therefore this need to also be applied to the law enforcement, especially in the investigation phase so that the rights of offenders need to be balanced with the juridic demands (criminal code procedure). rights of prisoners that not fully fulfilled in the Directory of Prisoners and Evidence in Maluku Police department, which there is no specific place for the prisoners to carry out religious activities with their own beliefs they held, spiritual services that not evenly accessible for all prisoners (except for Christians), physical treatment that cannot be conducted because lack of gym facilities, there is no education and teaching services for the prisoners of Maluku police department, there is no polyclinic for the health check-up for sick prisoners, there is no dining hall and water is not being given, there is no separation of cell based on the level of criminality, age, and prisoners that have infectious diseases, and there is no visit room for the families and colleagues that want to visit the prisoners.

Questioning Law's Capacity

The past ten years have witnessed an increased public awareness of the marginalisation and discrimination experienced by people with disability in the Australian legal system, and an associated proliferation of law reform reports on disability law.1 A particular focus has been legal schemes applicable to people with disability found lacking legal capacity. A recent example is the 2014 report of the Australian Law Reform Commission ('ALRC') in its inquiry into equality, capacity and disability in Commonwealth laws.2 Running parallel to these domestic law reform recommendations, the Convention on the Rights of Persons with Disabilities 3 ('CRPD') has brought about paradigm shifts in legal understandings of disability and the appropriate treatment of people with disability. In particular, Article 12 establishes that people with disability are entitled to legal capacity and places obligations on States Parties to repeal laws that deny legal capacity. Legal capacity has been recast as an international human rights issue, central to recognising the equality of people with disability under domestic legal systems.

The Convergence of form and Function: Commentary on Dixon

In the very first decision reported in the Commonwealth Law Reports, Griffith CJ, Barton and O'Connor JJ mooted whether an appeal lay to the Court from a judgment given after the coming into force of the Constitution but before the coming into force of the Judiciary Act 1903 (Cth). The Constitution, from 1 January 1901, vested the judicial power of the Commonwealth in the High Court and made provision for the appellate and other jurisdiction of the Court. But only the Judiciary Act 1903 (Cth), from 25 August 1903, 'actually constituted' the apparatus and the machinery of the Court; the appellate jurisdiction 'could not, of course, be exercised' before then. The question presented, 'one of difficulty and importance', ultimately did not need to be resolved because leave to appeal would be refused on other grounds in any event.3 Nonetheless, the Court articulated the reasons that supported each of the competing views of the operation of ss 71 and 73 of the Constitution. There was said to be much force in the contention that the jurisdiction of [the lower courts] was, from the first, intended to be subject to the right of appeal to the High Court, and that that right, being a right conferred by the Constitution itself upon suitors, could not be lost or taken away by mere inaction of the Parliament.

Hermenêutica e jurisprudência: o controle das decisões judiciais e a revolução copernicana no Direito processual brasileiro

This article aims at analyzing the Copernican Revolution that took place when the new Brazilian Code of Civil Procedure was implemented and eliminated the free conviction of the judge, delimitated the elements of a valid basis (art. 489, §1o) and, above all, required the courts to maintain stable, consistent and fair jurisprudence (arts. 926 and 927). For that purpose, this paper presents studies of the parameters that were incorporated in the Brazilian law according to concepts from the Judicial Decision Theory as advocated by the Critical Hermeneutics of Law . Ronald Dworkin’s Law Theory and the overcoming of Holmes’ Pragmatism are also taken into consideration, since they are basic for the late Brazilian Realism. As an allusion to the title of a renowned work of Eros Grau, this paper presents, lastly, decision control as an important achievement for Brazilian doctrine as a means of developing a more democratic law system. Keywords: hermeneutics, jurisprudence, integrity

Back to the Future: The War on Terror and its Impact on Civil Liberties

This article looks at the capacity of the Australian Constitution to protect the civil liberties of a small number of citizens and would be citizens whose lives have been forever changed by recent acts of terror and the legislative and executive actions taken by the Commonwealth in response to them. Whilst the Constitution contains a number of provisions and principles protective of civil liberties, in most instances they cannot resist government action expressly aimed at curtailing or infringing individual rights and freedoms. To this end, steps ought to be taken to strengthen existing institutions and mechanisms capable of providing meaningful civil rights scrutiny of government legislation. The comment begins with an examination of the close historical and legal parallels that exist between the present day and the Cold War era and suggests how the High Court might interpret the defence power should a terrorist attack occur on Australian soil. It concludes with a proposed reform. It involves vesting Chapter III courts with the power to measure Commonwealth laws against the International Covenant of Civil and Political Rights when determining a legal controversy. This may operate to secure better legislative outcomes from a civil liberties perspective without compromising the supremacy of Parliament.

Integral Pre-emption of EU Democracy in Economic Crisis under Transnational Law

This article examines the challenges of transnational law for democracy in the European Union in times of economic crisis. The concept of democracy is fleshed out first. This is followed by a two-pronged study of the internal and external democracy-affecting processes, taken separately as well as jointly, and of their impact on democracy in the European Union. Finally, some normative proposals, embedded in the theory of legal pluralism, to improve the state of European Union democracy in the present unfavourable internal and transnational environment are offered in the conclusion.

Does Law and Order Attenuate the Benefits of Democracy on Economic Growth?

Recent studies have reported positive associations between democracy and economic growth. They have also explored how associations could differ across regions or income levels. However, might the effects of democracy on growth also depend on factors such as institutions promoting law and order? Using a panel specification, we employ a democracy–law and order interactive term to examine if the effects of democracy on economic growth depend on these other institutions. We find that positive effects of democracy diminish and might even turn negative in countries where other institutions such as those supporting law and order are strong.