Concept Of Constitution Research Articles

State Aid to Electricity Producers: National and EU Law Aspects

At European Union level, there is a detailed regulatory framework allowing Member States to introduce state aid. State aid is always granted for a specific purpose and helps Member States to achieve their common objectives. The energy sector is being moved towards reaching targets for both energy efficiency and climate neutrality, with a gradual withdrawal from fossil fuels. However, it is not always easy to align these targets at Member State level and to create the appropriate national regulatory framework. Therefore, this article in the light of the two most recent judgements of the Constitutional Court of the Republic of Latvia (hereinafter – Constitutional Court), analyses the importance of a fixed term of state aid for electricity production and some aspects of state aid for biogas cogeneration plants, including the development of EU law perspective. The article also examines the impact of the enforcement of the Constitutional Court’s judgments in the area of state aid in Latvia and explains the emerging concept of environmental constitutionalism.

Abusive constitutionalism in Poland - on the self-delegitimisation of the judiciary

The concept of abusive constitutionalism became widespread in legal scholarship after David Landau's famous publication. The author defines abusive constitutionalism as "the use of constitutional amendment mechanisms to make a state significantly less democratic than it was before" . He refers to actions that make a particular regime "significantly less democratic" . The result, he points out, is to move away from democracy . He pointed to 2013 as examples of this trend - Honduras, Venezuela or Hungary. "De-democratisation" of constitutional mechanisms is also, in my view, relevant from the perspective of the Polish experience, though viewed differently than usually presented in the political debates. It turns out that democratic mechanisms and their implementation are undermined by those judiciary representatives who, simultaneuosly, accuse the authorities introducing solutions in line with democratic principles of violating the rule of law.

Гражданский мир как категория конституционного права

The constitutional concept of «civil peace» is in the focus of this article. The author analyses normative and doctrinal approaches to establish the civil peace. The experience of Latin American countries proved variability, nonlinearity and non-binary of civil peace. The results of the study indicate the need for an objective assessment of the quality of peace and the normative regulation of criteria for such assessment. An important task is to improve legal, methodological and conceptual foundations for ensuring peace.

Digital Rights in Palestine: Prospects of a Constitutional Judicial Review

Abstract A set of rights and freedoms are protected by constitutions and interpreted by the competent judiciary. The increasing use of information and communication technologies (ICT s) creates new legal challenges to rights and their judicial interpretation. This article aims at analysing the prospects of the Palestinian Supreme Constitutional Court (SCC) concerning digital rights, while considering political and legal challenges. In doing so, it begins with a brief introduction to the concepts of digital right and digital constitutionalism. The article further describes the status of digital rights in Palestine and evaluates the role of the SCC in the adjudication of the constitutionality of the laws in relation to human rights protection on the internet. It finally offers proposals for understanding the necessity for constitutional protection of digital rights in Palestine through judicial review. It argues that the Palestine needs constitutional modernisation to address the legal implications of technologies on human rights.

THE FAILURE OF EUROPEAN CONSTITUTION

The debate about the failure of the European Constitution has tended to polarize many scholars regarding the reasons why the European Constitution failed. However, having looked backwards into history in order to receive a more general overview a remaining puzzle is still there. In constitutional scholarship many efforts have been spent in trying to detach the concept of constitution from the nation-state framework and put it into a transnational concept even though in legal and political rhetoric the constitution appears to be linked with the nation-state only. The process in establishing a constitution for Europe encountered a debacle when the Netherlands and France refused the proposal. Scholars have debated this issue more than enough but still many questions remain unanswered regarding the failure of the European Constitution. From the documents and articles consulted no single narrative fully explains the failure of the constitutional project that’s why the paper is striving to bridge this gap and give another perspective in this direction, even though there is an arsenal of reasons that explains the failure.

Соотношение свободы труда и обязанности граждан трудиться: конституционно-правовое исследование

Introduction. Amendments to the Constitution of 2020 of the Russian Federation have marked the problem of changing the state approach to the interaction of the individual, society and the state. The basic content of freedom of work should not be identified with the right of a person not to carry out any socially useful activity. At the same time, the constitutional concept of mutual rights and obligations of the individual and the state cannot be built on the same principles as in the Soviet times. The purpose of the work is to identify the constitutional and legal meaning of the provisions on the obligations of a citizen to work or carry out other socially useful activities and to determine the prospects for establishing the relevant obligations in the legislation of Russia in the modern period. Methods. The main methods of scientific research are: system analysis, formal-legal method. Within the framework of historical-legal and comparative-legal methods the norms of the Constitutions of the RSFSR of 1918, 1925, 1937 and 1978 and constitutions of foreign countries were analysed in comparison with the corresponding provisions of the Constitution of the Russian Federation. Results. Based on the analysis of constitutional and labour legislation of Russia and foreign countries the author’s attitude to the possibility of establishing in the Constitution of the Russian Federation and special legislation the obligations of citizens related to participation in socially useful activities. The conditions for the establishment of such obligations in the future, which should have a constitutional basis, are revealed.The theoretical issues that arose after the adoption of the 2020 amendments to the onstitution of the Russian Federation are outlined, which can serve as a direction for further constitutional and legal research. The conclusions are formulated about the inexpediency of introducing at present any coercive measures in relation to persons who do not perform any socially useful activity, and the conditions for their appearance in the legislation in the future.

Constitutionalization of Arbitration

The number of arbitration cases handled by the Constitutional Court of the Russian Federation has steadily increased over the years. The evolution of social practices and judicial approaches to arbitration procedures has prompted the supreme body for judicial protection of the Russian Constitution to repeatedly review whether the legal concepts used to resolve civil disputes by arbitration courts and international commercial arbitrations align with the nation’s basic law. The outcome of this process is a set of legal principles that define the constitutional and judicial foundations of arbitration in Russia. The above trends have facilitated the use of the integrative concept of constitutionalism in arbitration. This study highlights the constitutionalization of both arbitration and its social application. From a standalone perspective, the problems of enhancing the constitutional and legal principles of arbitration were discussed, and the further progress of constitutionalism in Russian arbitration was predicted.

Autonomous and sectoral perception of the concept of "justice" and its relation to judicial control

The present study delves into the complex interrelationship between the notions of "justice" and "judicial control," examining their independent and sectoral meanings both inside and outside of the Armenian legal system. Despite the fact that the terms are frequently used synonymously, this study aims to define their specific functions, especially with relation to administrative and constitutional law. The research endeavors to redefine the extent of judicial control by means of a critical analysis of Armenian constitutional provisions and a wider framework of international legal perspectives. It presents judicial control as a crucial, yet independent, function of justice. It looks at how the idea of judicial control has changed over time and the various interpretations it has received in various legal systems, drawing on historical examples. The paper examines the typologies of judicial tasks using a combination of theoretical and comparative legal techniques, highlighting important differences between jurisdictional and non-jurisdictional judicial operations. The argument for the constitutional concept of justice's wider application than just settling legal disputes receives a lot of attention. The study shows that judicial control should be seen as a fundamental component of justice and essential to maintaining the rule of law, rather than as a secondary or auxiliary role, by looking at justice from a synoptic perspective. The article ends with helpful suggestions for improving judicial functions. It suggests that future legal changes should consider how justice is changing and how closely it is linked to judicial control in both the international and Armenian legal systems.

Constitutional citizenship and indigeneity: the case of Latin America

The article explores the impact of the recognition of plurinationality and related pluralist constitutional concepts on the constitutional construction of the relationship between the modern state and Indigenous nations and citizens. It uses the prism of the Indigenous constitutional citizen in order to undertake this task, focusing on the Latin American region and challenging some settled precepts about the place of the citizen in the modern state. The article concludes that Latin America presents a complex and evolving constitutional framework with regard to citizenship status, rights and identity in relation to the position of Indigenous peoples under the law. In plurinational states, legal conditions are in place for Indigenous peoples to identify both as citizens of the modern, settler state and as members of Indigenous nations. However, thus far, as regards effective implementation the story is somewhat more ambivalent. The enquiry is important, however, as it opens the issue of citizenship up to further enquiry with regard to the impact of pluralistic thinking.

Environmentally Friendly Development through the Green Constitution Concept

The purpose of the Indonesian state, as stated in the Preamble to the Constitution of the Republic of Indonesia in 1945, is to form a government that protects all Indonesian people and natural resources, as well as improving general welfare, national education, and participating in realizing world order based on independence, lasting peace, and social justice. The focus on the general welfare as a key value in a democratic economic system is at the core of the country's goals. During the Reformation Era, the 1945 Constitution of the Republic of Indonesia underwent significant changes, including the addition of articles recognizing the right to a good and healthy environment and the principle of sustainable economic democracy. However, the implementation of the concept of a "Green Constitution" that guarantees the right to sustainable environmental development has not been fully realized. Although supported by active community participation, the ideal legal framework has not been achieved and legal practice is still influenced by political and economic elites that contradict the spirit of the constitution to protect and respect the environment.

Implementing Green Constitution: Assessing the Policy of Plastic Waste Payment in Suroboyo Bus Service

This article explores the plastic waste-based payment policy implemented on the Suroboyo Bus Service in Indonesia, examining its alignment with the principles of a Green Constitution. The Green Constitution concept emphasizes the integration of environmental protection into legal frameworks. This study aims to analyze the Suroboyo Bus Service Plastic Waste Payment Policy in the context of the Green Constitution. Our analysis covers various aspects, including the historical background, legal norms, policy effectiveness, and the importance of community participation. The study employs normative-empirical research methods, examining the legal norms underpinning the Suroboyo Bus Service policy and its implementation. Quantitative data is collected through questionnaires distributed to the Suroboyo Bus Service users, revealing insights into public awareness, attitudes, and perceptions regarding the policy. Analysis of legal norms indicates a harmonization between the Suroboyo Bus Service policy and the Green Constitution principles outlined in the 1945 Indonesian Constitution. However, the study identifies a legal vacuum in waste management, suggesting more explicit guidelines are needed. The article also underscores the importance of collaborative efforts between the government and community organizations in efficient waste management.

Militant Democracy Unmoored? The Limits of Constitutional Analogy in International Law

Abstract As constitutional democracies are faced with authoritarianism and other anti-constitutionalist threats, international law is seeing its own challenge from the increasing influence of authoritarian states. Yet, departing from the recent tendency to model the international legal order after constitutional governance, international lawyers seem to show little interest in the concept of militant democracy, while the latter lies at the centre of current debates surrounding constitutional self-defence. This article aims to bring to light the current limits of constitutional analogy in international law through an investigation into the discrepancy between constitutional and international lawyers in responding to authoritarian co-optation. A three-pronged argument is submitted. First, in contrast to other appeals for constitutional self-defence, the concept of militant democracy is contentious where it stands in tension with the constitutional ethos. Second, while militant democracy as a constitutional concept presupposes a democratic and normative version of constitutional ordering, the absence of militant democracy on the international plane betrays the non-democratic, albeit representative, character of the international legal order. Third, attempts to internationalize the concept of militant democracy should be rejected as an international version of militant democracy would only portend an (un)holy alliance of militant democracies and exacerbate the political division in international society. It is suggested that, from out of a realignment of international law with the constitutional project of progress, a new constitutional analogy may emerge, giving fresh impetus to the realization of international law’s universal liberating promise.

My Numerous Detours – Toward Private Law as Society’s Constitution

Abstract The author responds in two ways to the contributions in this special issue dealing with aspects of his scholarly work. In his first, more general response, he traces the influences that various institutions and individuals exerted on him and were reflected in his work on private law theory. In retrospect, he understands both his many years abroad and his involvement with extra-legal disciplines, especially systems theory and sociology of law, as a search for the identity of private law in foreign legal systems as well as in foreign disciplines. At the end of this search stands the concept of societal constitutionalism. The author understands private law as society’s constitution, more precisely: as the legal constitution of the self-governance of a variety of social systems. In a second, more specific response, the author deals with some of the questions raised in the various contributions to the special issue. From the perspective of both sociology of law and legal doctrine, the author addresses problems of society’s constitution that arise, on the one hand, outside the borders of the nation-state in transnational political processes and, on the other hand, outside the institutionalized political sector, in the "private" sectors of world society. They revolve around the theoretical and practical potential of societal constitutionalism: how, in non-state institutions, the new power centers of society, particularly in the emerging socio-digital institutions, private law can set the normative conditions for fundamental rights, the rule of law, democratic participation, and, increasingly today, ecological sensibility.

‘To make more room for 21st century themes’: the secular dynamics and demise of Quebec’s ‘Ethics and Religious Culture’ curriculum

ABSTRACT In this article, I examine the secular dynamics of Quebec’s controversial and ultimately short-lived Ethics and Religious Culture curriculum (ERC). I argue that the conflicting criticisms the ERC attracted over the course of its brief existence emerged from the tensions inherent in its conceptualisations of religion, learning, and knowledge. These tensions were themselves rooted in the constitutive concepts and epistemic assumptions of Quebec’s broader socio-spiritual context of political secularism. In this way, my analysis makes a broader argument about the dynamics and viability of religious education programming in secular societies, especially those programmes aimed at fostering ‘religious literacy’.

현대 사회에서 헌법상 근로자 개념의 재구성

This study explores the necessity and direction for the reconstruction of the constitutional concept of workers in light of changes in the contemporary labour environment. The emergence of diverse forms of labour that transcend the traditional “blue-collar” worker calls for a reassessment of the concept of workers as defined by labour law. However, the Korean Constitutional Court bases its definition of constitutional workers on labour law, while the legislature has been reluctant to amend the provisions defining workers for decades. In this context, courts attempt to include various forms of labour by expanding the interpretation of existing legal definitions. However, such judicial interpretations seem insufficient to keep pace with changes in the labour environment, complicating the law’s consistency, thereby increasing the complexity and placing an undue political burden on the judiciary. Based on this analysis, this study emphasizes that the primary responsibility for encompassing new labour realities through legal amendments lies with the legislature, advocating the necessity to reset the constitutional concept of labour as a basis for legislation and a standard for constitutional review in the post-remedial process. To this end, this research reinterprets Hugo Sinzheimer’s concept of labour constitution in a contemporary context and derives indicators for a new concept of workers that surpass dependency theory, aiming to provide a legal foundation that can flexibly and resiliently respond to the complexities of the labour environment. This study proposes setting the concept of workers as a higher-order concept and, based on this, suggests ways to diversify the concept of labourers and labour laws at the legal level. Traditional labour relations will be covered by the regulation of existing labour laws, while emerging grey areas will be encompassed through individual labour laws. Such an approach to diversified individual labour laws ensures that the constitutionally granted labour rights and the diversity and specificity of labour relations are harmoniously reflected, ultimately guaranteeing an equal level of protection for all workers.

A Constitution without Constitutionalism: A Gambian Paradox

Constitutionalism and democratization are the current governance trends in Africa, and these are complemented with new constitutions. The Gambia is not an exception as it transcends from dictatorship. However, the country faces a paradoxical menace of a constitution without constitutionalism as it faces deficit of constitutionalism in praxis despite its theoretical deliberation in the State’s 1997 Constitution. This research uses doctrinal or normative legal research with focus on provisions of laws, books, journal articles and other secondary materials that speak to the facts in issue. This Africa’s smallest mainland country is a victim of the 1884 – 1885 Berlin Conference as it still tries to give much premium to foreign legal systems over customary practices of the people before this Berlin project. While constitutionalism seeks to limit the power of the government, its most critical constituent as regards the concept of constitution without constitutionalism is the rule of law. The rule of law premises on the ground that all state’s constituents must be subject to the law. Therefore, the metaphor of a saviour, savage, and victim as the 1997 Constitution, the State and freedom of expression respectively suggests the totality of the complexity of a constitution without constitutionalism.

Viscoelasticity of hydrating shotcrete as key to realistic tunnel shell stress assessment with the New Austrian Tunneling Method

The New Austrian Tunneling Method (NATM) essentially rests on observational information concerning displacements measured in selected positions at the inner surface of shotcrete tunnel shells. The combination of these measurements with advanced material and structural mechanics, in the course of so-called hybrid methods, have successfully delivered, for more than 20 years, practically relevant estimations of internal and external forces and corresponding degrees of utilization. The reliability of the latter, however, may crucially depend on the used material model. Based on a recently proposed analytical structural mechanics model [Acta Mech 233, 2989–3019 (2022)], and focusing on the benchmark example of measurement cross section MC1452 of the Sieberg tunnel, driven in the 1990s in Miocene clay marl, the present paper compares the estimations of forces and degrees of utilization arising from differently refined constitutive concepts, namely (i) aging elasticity, (ii) aging linear viscoelasticity, and (iii) aging nonlinear viscoelasticity. It turns out that only the consideration of aging nonlinear viscoelastic material behavior provides access to realistic values for the degree of utilization, being lower than one. Simpler material models would indicate local material failure, which was not observed in situ.

Constitutional Symbolism in the Shadow of the Common Good

Abstract This paper aims to clarify the concept of the symbolic constitution and to explain one of its most significant functions: the representation of political unity in complex societies. Section B briefly outlines the concept of the symbolic constitution which informs the arguments of the paper. The next two sections proceed “hermeneutically” through critical engagements with (i) Martin Loughlin’s recent analysis of the symbolic constitution within an ideology-critique of neo-liberal constitutionalism (ii) Niklas Luhmann’s account of the role of symbolic constitutionalism in concealing the function of the modern constitution as a structural coupling between the political and legal sub-systems. Section E then considers the relationship between the symbolic constitution and an alternative “traditional” concept for the representation of political unity: the common good. I argue that the symbolic constitution is both (i) a placeholder which speaks to the abiding relevance of the common good (ii) a symptom of the decline of its preconditions.

Stress and insomnia – A vicious circle

Insomnia is experiencing unsatisfactory sleep, typically characterised by difficulties initiating or maintaining sleep. Individuals with insomnia are dissatisfied with their sleep quality and perceive it as hindering their ability to perform well in work, school and social settings. The common symptoms of insomnia include fatigue, decreased mood, irritability, general discomfort and cognitive difficulties. On the other hand, stress results from emotional or physical tension triggered by various events that can make a person feel frustrated, angry or anxious. Stress is the body’s response to a challenge or demand, accompanied by the release of hormones. The specific physiological response to stress depends on factors such as the type of stress, the individual’s characteristics, their neuroendocrine system and the combination of these elements, collectively determining how the brain and body react to a particular stressor. The activation of the hypothalamic–pituitary–adrenal axis is a response mechanism triggered by stress. Disturbed sleep, particularly insomnia, is a common side effect of stress, varying in intensity. Sleep plays a crucial role in maintaining both physical and mental well-being, making the physiological connections between sleep and stress vital in understanding the development of stress-induced pathophysiology. Current treatments for insomnia include cognitive behavioural therapy, improving sleep hygiene and employing psychological and pharmacological interventions. However, these approaches aim to improve insomnia symptoms rather than address its underlying cause. In the context of homoeopathy, the concept of constitution refers to an individual’s unique structure, composition, nature and physical makeup, influenced by both inherited qualities and environmental factors. Therefore, it is essential to individualise each case and administer a simillimum remedy, the remedy most likely to restore health, and achieve complete healing according to homoeopathic principles. This review explores the physiological and neuroendocrine changes that occur due to the interplay between stress and the development of insomnia.

Going back to the drawing board: The picture of family support in European constitutions

This paper aims to explore the extent in which contemporary constitutional concepts of the family influence the recognition of the importance and the implementation of family support in European context. The authors start from the premise that constitutions lay the foundation for national legislation and policy, at the same time indicating a state's recognition of internationally agreed standards in a given field. Considering family support as a human right, the authors reflect on the meaning of constitutional protection vis a vis policies and practices of providing support to children and families and look into family related constitutional provisions of various European countries. Building upon the work of the European Family Support Network – COST Action 18123, the key elements of constitutional protection of families are identified, having a direct effect on the conceptualization and delivery of family support. In conclusion, considering the place and significance afforded to family support in national constitutions, the paper offers a classification of constitutions in that respect and evaluates the implications of constitutional regulation on family support policies.