Democratic Constitutional State Research Articles

Measuring political radicalism and extremism in surveys: Three new scales.

This paper introduces three new scales to measure left- and right-wing radical as well as general extremist attitudes that can be applied across Western European countries. We therefore propose a thorough conceptualization of extremist attitudes that consists of two dimensions: general extremism, by which we understand attitudes that oppose the constitutional democratic state, and another dimension that differentiates between right- and left-wing radicalism by which we understand people who take far-reaching but often one-sided positions on political issues (e.g., on nationalism or anti-imperialism) by advocating fundamental socio-political change. Based on data from Germany, Great Britain, and the Netherlands (n = 6,201) we created short indices for general extremism and left- and right-wing radicalism. We check for convergence validity by assessing the psychometric properties of the extracted indices, i.e. their internal coherence and the degree to which a scale is able to distinguish strongly extremist and non-extremist individuals. Finally, we correlate the scales with various constructs that are likely related to extremist attitudes in order to assure external or construct validity. The results indicate that the three scales are highly valid and applicable across three Western European countries. Overall, we find that about two to four percent of citizens in each country hold left-wing or right-wing extremist attitudes.

Still the "Last Marxist"?

Jürgen Habermas’s recent engagement with Marx in Auch eine Geschichte der Philosophie has mostly gone unnoticed by commentators. Habermas is among the few representatives of the Frankfurt School who has consistently stressed the importance of the “Marxian heritage” for a rigorous understanding of critical theory. In this essay, I critically examine two guiding threads in Habermas’s ongoing reconstruction of historical materialism: the relationship between labor and interaction, as well as the emancipatory potential unleashed by the democratic constitutional state. I argue that Habermas’s reconstruction of historical materialism points to several lacunae in Marx’s work, but that it also reveals valuable insights into the latter’s oeuvre that have yet to be adequately addressed by Habermas. I conclude that it is time for Habermas to consciously reclaim the “Marxian heritage.”

The Symbolic in the Political Liturgy of the Democratic Constitutional State: from the Reactualization of the Myth to Hierophania

The Symbolic in the Political Liturgy of the Democratic Constitutional State: from the Reactualization of the Myth to Hierophania

Human Rights and Views of the Catholic Church under Habermas Discourse Theory


 
 
 This article aims to explain the views of the Catholic Church on human rights and put them into dialogue with the concept of human rights based on discourse theory as put forward by Jürgen Habermas. In the view of the Catholic Church, the ethical basis for the concept of human rights is the biblical view of human beings as being made in the image of God, which later became the forerunner to the birth of the concept of human dignity and the ethical basis for human rights. This article shows that the discourse theory rejects this theological model of justification for human rights. The criticism of the discourse theory as it relates to an absolute paradigm is that the absolute paradigm requires metaphysical premises. However, in a modern society characterized by a pluralism of worldviews and philosophical and religious beliefs, such metaphysical claims are no longer acceptable. Through the lens of discourse theory, the foundation of the notion of human rights cannot be based on the pre-political basis of religious values. This discourse theory grounding model is based on the conditions of contemporary post-metaphysical society, characterized by a plurality of comprehensive doctrines. However, Habermas emphasizes the role of religion in the public sphere in promoting human rights. He advocates for the reinvention of public reason by encouraging religious people to translate sacred terms into secular language when entering formal political spaces. According to Habermas’ theories, democratic decision-making must allow citizens the right to use religious terms in public debate. Furthermore, this article shows that discourse theory creates a roadmap for human rights by allowing religion, law, and politics to coexist. Only if we adhere to the principles of discourse theory can we guarantee the fair and just participation of both secular and religious members in a democratic constitutional state.
 Keywords: Human Rights, Catholic Church, Religion, Habermas’s Discourse Theory
 
 

State-legal Ideology as a Factor of Developed Public Legal Consciousness Formation in the Russian Federation

This article is devoted to the study of the relationship and mutual infl uence of the state-legal ideology and public legal consciousness. The article discusses the possibility of the existence of a state-legal ideology in the Russian Federation in the context of the constitutionally enshrined principle of ideological diversity, and concludes that such an ideology is admissible and necessary. The author reveals the interdependence of the state-legal ideology and public legal consciousness, in particular, through consideration of the content of the functions of the latter. The study establishes the relationship between legal informing and state ideological infl uence. The author analyzes the impact of the state-legal ideology both on the individual legal consciousness of the individual and on the collective consciousness of society, and also notes that the state-legal ideology can be an eff ective means of combating the deformation of both types of legal consciousness, expressed in various forms. The article concludes that the non-ideological existence of the state is impossible, as well as the high role of state-legal ideology as a means of maintaining stable statehood and progressive state building. In addition, based on the results of the study, the position is substantiated, according to which the state-legal ideology should be considered a factor that ensures the formation and constant increase in the level of public legal consciousness as an integral attribute of a democratic constitutional state.

Presentación de la Revista Cuadernos de Trabajo N° 25

In the edition that coincides with the 73rd anniversary of our higher education institution, we analyze a problem that has increased in the last 40 years and that goes unnoticed, causing "normal" behavior to appear in the thoughts of many Peruvians, even in high-level authorities who, when occupying a position, establish their own procedures, exceeding the established norms. The articles we present affect these aspects, as well as the causes and effects of this social phenomenon, they also present approaches for its solution, leaving us as a reflection on the urgency of national and multisectoral work in favor of formalization and respect for the democratic constitutional state of law.

El uso de la fuerza en las protestas violentas y el imperio de la ley

In terms of the National Security and Defense Doctrine, the rule of law is expressed as the democratic constitutional State of law, in which the supremacy of the Political Constitution governs in the course of the republican life of Peru. Every modern and orderly society imposes the law before the illegal actions that some of its citizens may incur, since the rights of other people and national interests are of greater preeminence before the violence that is the consequence of any protest. Despite this perogrullo truth,it is necessary to find an adequate balance that guarantees the protection of individual and collective rights, at the same time that the security of the country is safeguarded

Report on Abusive Judicial Review of Electoral Matters

It is commonplace to state that the borderline courts are the last obstacle in the defense of fundamental rights, the rule of law, the division of powers, and hence, of constitutional democracy. Nevertheless, there are judgments of last resort which are very illustrative examples of argumentative practices used to conceal decisions that may be systematically politicized, and therefore can be detrimental to fundamental electoral rights, to the certainty and legality of electoral acts and resolutions, as well as to the holding of free, authentic, and periodical elections. The practice of using the democratic legitimacy of the judicial function to intentionally undermine the core of democracy is barely theorized. However, it is highly possible that in the future these types of attack will be part of the authoritarian tools used by groups of an anti-democratic nature. That is to say, the circumstance that the courts and not the political actors are the ones that implement undemocratic measures with the advantage of the difficulty for its identification, given the traditional role assigned to the judiciary in the democratic constitutional state of law, makes it essential to review the use of the weighting of the argumentative representation. This, in order to prevent democracy from being damaged by constitutional interpretation and to avoid the tolerance for the absence of a minimum social consensus on the arguments that it intends to sustain with re-lative temporary stability. Even more so, when it comes to those who make up the constitutional jurisdiction specialized in elections and democracy. In Mexico, the Superior Court of the Electoral Tribunal of the Federal Judiciary (TEPJF) is the highest electoral court. This body has issued controversial and transcendent decisions for electoral democracy which can be subject to critical legal analysis as an input for legislative activity. This is particularly related to issues concerning citizen participation such as the revocation of mandate and the imposition of sanctions due to its diffusion by public servants, as well as cases of gender-based political violence (VPG, by its acronym in Spanish) and the deprivation of an honest way of living (MHV, by its acronym in Spanish) as a sanction. Another topic worth considering is the rulings on the modification or defective abandonment of the jurisprudence in matters such as the assumption of competence over parliamentary acts in the integration of the administrative or government bodies by the Congress of the Union, and the messages of the legislators, which are not protected by the principle of parliamentary immunity, as has been established.

Communication of the Judiciary

The author describes the limitations of the freedom of expression of judges and courts in the context of the fundamental right to freedom of expression, which, due to its prominent position in a democratic constitutional state, is limited in content compared to the general one, also in view of the historical precedents in Hungary. Starting from the relevant constitutional and statutory provisions and in the light of the practice of the Venice Commission and the European Court of Human Rights, the study outlines and analyses the possibilities for individual judges and courts to express their opinions. The paper presents, through a number of pragmatic examples, the prevailing practice in Hungary on the subject under study, which works with undoubtedly one of the most stringent regulatory solutions.

헌법상 반부패조항으로서 헌법 제46조에 대한 헌정사적 비판

This study begins with with the awareness of the need to explain why Article 46 of the current Constitution, which is one of the provisions for preventing corruption, imposes the obligation of integrity and anti-corruption on “members of the National Assembly” only, instead of requesting it for the entire public sector. When examining the introduction path of Article 46 of the current Constitution, the following doubts could be raised. At that time, the military dictatorship, which had the initiative to amend the constitution, branded politicians such as members of the National Assembly as corrupt groups and used the constitutional amendment as a means of propaganda to secure the legitimacy of military rule. This study attempts to analyze this issue from a constitutional interpretation perspective and a constitutional history perspective to confirm this more accurately.
 In summary, the results of this study are as follows: 1) from a constitutional interpretation perspective, Article 46 of the constitution does not have a special significance or function as a provision against corruption in the constitution, 2) the obligation of National Assembly members to maintain integrity in Article 46(1) and the prohibition of abuse of their position in Article 46(3) were included in the constitution as propaganda tools to label National Assembly members as a strong factor of corruption and abuse of power and to secure the legitimacy of military rule, and 3) the obligation to prioritize national interests in Article 46(2) is given the meaning of binding to the Political Party and free Mandate from a constitutional theory perspective, but is associated with securing the legitimacy of military rule in terms of its introduction.
 The sharp blade of fighting corruption is a necessary tool for the success of a democratic constitutional state. However, sometimes it is necessary to reflect critically on the historical fact that this tool was used as a tool to cover up the unclean power. And based on this reflection, it is necessary to understand Article 46 of the Constitution again and discuss its existence.

THE IMPORTANCE OF IDEOLOGICAL DIVERSITY AND POLITICAL PLURALISM FOR THE DOMESTIC STATE: CONSTITUTIONAL–LEGAL AND THEORETICAL–LEGAL ASPECTS

The purpose of this article is to emphasize the role and significance of the constitutional principle ofideological diversity and political pluralism for maintaining the democratic foundations of the nationalstatehood. The authors show that the existence of this or that ideology is possible only within the frameworkof a constitutionally fixed legal ideology, the essence of which is to maintain a balance of constitutional values, the interests of society, the state and the individual. The paper establishes that the principle of ideologicaldiversity and political pluralism is of particular importance in a democratic constitutional state. Indeed, insuch a state, pluralism, formalized in the form of ideological diversity, is the basis of the constitutional order.Moreover, the priority of human rights as the most important foundation of the rule of law cannot be fullyrealized outside the above-mentioned principles of ideological diversity. The most complete realization ofthese rights and obligations is possible precisely in conditions of ideological diversity.

American individualist anarchists’ critique of the democratic state

RESEARCH OBJECTIVE: The aim of this paper is to investigate major premisses of American individualist anarchist movement as the critique toward the constitutional democratic state.
 THE RESEARCH PROBLEM AND METHODS: Paper analyses premises that led individualist anarchists to formulate their thesis about supreme character of individual rights and individual sovereignty. Consequently, this brought them to conclusion that such defined sovereignty is irreconcilable with any form of government, including constitutional democracy.
 THE PROCESS OF ARGUMENTATION: After taking preliminary considerations, reconstructing development of individualist anarchist theory paper examines the shortcomings of constitutional democratic state pointed out by anarchists.
 RESEARCH RESULTS: The result of the study is to clarify the Individualist Anarchists critique of the state, including the constitutional democratic state. Also, to elaborate why classical elements like judicial control, constitution, legal protection of individual rights was not perceived by individualist anarchist as sufficient to legitimise the political authority as such.
 CONCLUSIONS, INNOVATIONS, AND RECOMMENDATIONS: Adopting anarchists’ perspective and introducing into discourse stateless order as the possible alternative allows to introduce more critical voices about original shortages in legitimization of state power.

The Constitutional Court in Austria: history and modernity

It has been found that the organization of the internal political life of the state, as well as nature and direction of its foreign policy is largely determined by the state system and political system of this state. Austria – a democratic legal state based on a principle of the supremacy of the constitution. The foundation of all actions of state authorities – legislative, judicial and executive, including government, – laid down in the constitution, that is, they must correspond to the constitution. In order for the supremacy of the constitution to exist not only on paper, but also to operate in practice, a democratic constitutional state needs institutions, which really ensure the priority of the constitution. The Constitutional Court is the most important from these institutions. It is «a guardian of the Constitution». The most important task of the Constitutional Court is to check the constitutional laws and cancel in case of inconsistency with the constitution. The Constitutional Court in Austria is the oldest one in the world (founded in 1920). Constitution of Austria became the first constitution in the world, which provided for the creation of a constitutional court. The Constitutional Court in Austria deals with issues of compliance of newly issued laws with the country’s constitution, resolves disputes between the region territories and between the region territories and the federal center. The Constitutional Court is the most important guarantor of the observance of the basic rights and freedoms of every citizen in relation to the state. It has been distinguished three stages, during which the responsibilities on formation the Constitutional Court in Austria were fixed. At the first stage, the Constitutional Court formed the Parliament and the reduction of party influence on the Constitutional Court, which achieved independence from the executive power, took place. At the second stage, powers regarding the formation of the Constitutional Court passed to the executive power, which contributed to the establishment of authoritarianism. At the third stage, the balance between the interests of executive and legislative powers was achieved in the formation of the Constitutional Court, which ensured the independence of judges. Comparing methods of formation of the Constitutional court in Austria, there is a noticeable tendency to strengthen the role of the executive power in the formation of the Constitutional Court and the achievement of parity of powers regarding its formation between the executive and legislative powers.

현행 「집회 및 시위에 관한 법률」상의 옥외집회 금지장소에 대한 헌법적 고찰

In a democratic constitutional state, assemblies function as the realization of democracy and the realization of political expression in that they are a means of public participation in the process of political communication. In relation to democracy, assemblies function as a supplement to representative democracy. And assemblies also function as a means of realizing pluralism in that they inform the majority of the opinions of the minority and reflect them within the national community. When interpreting assemblies as a connecting channel between the national will and the people's will, in order to effectively realize the freedom of assembly, assemblies must and should be held in the most efficient way to convey the will of the people. In this case, as the embodiment of the freedom of assembly, the selection of the meeting place is directly and closely related to the purpose of holding the assembly, and it can be said to be the means that can deliver the purpose most effectively. The current 「Assembly and Demonstration Law」 considers the constitutional significance of freedom of assembly within a democracy and the importance of choosing a meeting place in realizing freedom of assembly. Accordingly, the Assembly and Demonstration Act stipulates the contents of prohibited places in the form of permitted in principle and prohibited in exceptional cases. Article 11 of the Assembly and Demonstration Act stipulates a specific place as a place where gatherings are prohibited. However, it is intended to protect the freedom of assembly thickly by defining it as a relative prohibited place rather than an absolute prohibited place. Regarding the interpretation of these prohibited places, the place where assembly is prohibited today is the ‘President’s Office’. Article 11 of the current Assembly and Demonstration Act stipulates only the “President’s official residence” as a prohibited place for outdoor assembly, but not the President’s office. Accordingly, a question arises as to whether the President’s office can be derived from the President’s official residence stipulated in Article 11, Paragraph 3 of the Assembly and Demonstration Act. However, according to the literal interpretation and the systematic interpretation of President’s official residence centering on Article 11 of the Assembly and Demonstration Act, it is difficult to interpret that the President’s office is included within the scope of the President’s official residence. Although there is no provision for the Office of the President in the current Act on Assembly and Demonstration, the interpretation that restricts the freedom of assembly near the President’s office is a violation of the principle of statutory reservation or a violation of fundamental rights due to sluggish legislative omission. Therefore, establishing a clear standard for judging illegality by stipulating which places are prohibited by law has a major meaning in realizing freedom of assembly. If Article 11 of the Act on Assembly and Demonstration stipulates the President’s office along with the President’s official residence, this is to define both work space and non-work space for executive agencies. This type of regulation is also appropriate in that it has unity with the system of Article 11 of the Assembly and Demonstration Act for legislative and judicial institutions, which already stipulates work space and non-work space in harmony. In addition, if the President’s office, which is a work space, is separately stipulated, exceptions to the permission of assembly can be provided, such as the place for other work spaces stipulated in Article 11 of the Assembly and Demonstration Act. Reasons for this can be considered as ‘when there is no concern about interfering with the President's work’ and ‘when there is no concern that it will spread to a large-scale assembly or demonstration’.

O relevanciji ustavnog naslijeđa SPQR-a i njegovom značaju za suvremeni konstitucionalizam

The text emphasizes the need to study the historical Roman constitution, as an integral part of the comprehensive analysis of the sources of the ideological apparatus of the contemporary constitutional democratic state. The authors remind us of the methodological instruction from T. Mommsen’s Staatsrecht that the said studies are not only a unique direction towards understanding SPQR constitutionalism and its legate, but also constitute an approach that enables conclusions regarding results that are not temporally and substantively limited, nor are they – “so much as narrowly legalistic as it is often thought”. Thanks to the choice of an open and broad approach of modern constitutional legal analysis, which is guided by the thought: the constitution is culture (P. Haberle), the continuity and vitality of new knowledge about the old topics of government and freedom, property and owner, wealth and poverty, class and classless society is strengthened as unchanging constants of the constitutional system of the contemporary state and society.

El nombramiento de las autoridades independientes. Lecciones a partir de la experiencia española y europea

Abstract This analysis focuses on the system of appointments of independent authorities as a key to their proper functioning within the democratic constitutional state, based on the Spanish experience and bearing in mind the particularities of the European constitutional context in which these institutions are rooted. To this end, we first refer to the premises underlying the creation of the various authorities. We then set out the measures used to guarantee the independence regarding the appointment and dismissal of the members of these bodies and, finally, we examine the recent problem concerning the renewal of the heads of the Spanish Data Protection Agency, due to non-compliance with the appointment procedure. Finally, the case of the AEPD allows us to examine the effectiveness of certain remedies arising from the court’s intervention with the help of European law.

URGENCY OF RECHTSVINDING AND JURISPRUDENCE IN THE CONSTITUTIONAL COURT AUTHORITY

Indonesia is a democratic state based on the law (constitutional democratic state), with the understanding that the Constitution has a position as the supreme law because the whole administration of the state should be based on the Constitution. The Constitutional Court was present as the guardian of the constitution to the realization of the ideals of Indonesia as a democratic state based on law. The research entitled Rechtsvinding and Jurisprudence Used by the Constitutional Court examines the importance of rechtsvinding and the attachment of using jurisprudence in deciding cases according to the authority possessed by the Constitutional Court. This research uses the Socio-Legal method, which is a research method that examines a problem through normative analysis, then uses a non-legal science approach that develops in society. The results of the research that has been done are; 1 Rechtsvinding by the Constitutional Court interpreted as an effort to how the Constitutional Court interpreting the Constitution (1945), testing the laws against the 1945 Constitution, to decide the other cases the authority granted by the 1945 Constitution, 2) The Constitutional Court there is no obligation to be bound and is not there is a prohibition to use the jurisprudence of the Supreme Court.

민주공화국에서의 시민교육 — 포퓰리즘에 대한 헌법이론적 측면에서의 검토를 중심으로 —

Among several important constitutional principles, populist constitutionalism emphasizes the principle of popular sovereignty or popular sovereignty. The principle of popular sovereignty is not only an important ideology of democracy, but also an important ideology of populism. The principle of popular sovereignty in harmony with representative democracy accepts the principle of rule of law as an essential component, whereas the principle of absolute popular sovereignty pursued by populism seems to be incompatible with the principle of rule of law. This is where the incompatibility between populism and liberal constitutionalism begins.
 Although populism's critique of liberal constitutionalism provides a very important insight into structural problems in liberal democracy, populist constitutionalism ultimately leads to the completion of an authoritarian or dictatorial ruling system to maintain their permanent maintenance of political dominance. It poses a serious threat to democracy in that it seeks to justify it through constitutional amendment or constitutional enactment.
 As the legal-practical approach of populism, the instrumentalist approach holds that the legal values pursued by populism are determined according to how effectively they are useful as a tool for environmental domination that well explains and predicts current social phenomena. This instrumentalist approach can be seen to contain elements of an opportunistic and seditious nature within it. Paradoxically, using the instrumentalist approach of the populists to overthrow the liberal-democratic constitutional system and to realize their political programs, the most used tool is also the constitution.
 Populists criticize the liberal understanding of constitutionalism and the rule of law.
 Their critique is the constitutional control mechanism for political phenomena based on liberal constitutionalism. What they criticize is the control of politics through the rule of law, that is, the establishment of limits for political domains through the law, that is, the pursuit of depoliticization through the law. Populists prefer the theoretical approach for critique of liberal constitutionalism and the arguments formed through it, and they share and spread their opinions on it through various media as well as various media.
 Despite these populists' criticisms of liberal constitutionalism and the rule of law, the starting point of the constitutional evaluation of populism must be evaluated from the perspective of democracy and the rule of law from the point of view of the liberal constitutionalism they criticize.
 A democratic constitutional state attempts to find a constitutional theory formed within the framework of a constitutional system in the rule of law, as a clue to solving problems related to various domestic and international political phenomena such as populism. The principle of the rule of law, which has justice, legal stability, and proportionality as its ideological components, is a dynamic constitutional concept that can be continuously developed. Therefore, in relation to the continuous development of the principle of the rule of law and the guarantee of the possibility of formation, the constitutional order is newly formed and developed dynamically in the form of populism in the conceptual framework of the modern rule of law, which has been confirmed through the practice of law and the theory of law. What legal control standards can be established and suggested over the political realities that exist? Otherwise, a democratic constitutional state must be able to develop and develop a new constitutional interpretation that seeks an appropriate and balanced point that can accommodate constitutional-developmental constitutional policies based on populism to some extent within the scope of the constitutional order.

Improvement of Human Capital Development: A Factor in Increasing the Mobilisation Potential of Ukraine

Based on historical, legal, and sociological research conducted within a research project funded by the Ministry of Education and Science of Ukraine titled "Improvement of human capital development: a factor in increasing the mobilisation potential of Ukraine", theoretical and methodological principles for improving the mobilisation potential of Ukraine through human capital formation mechanisms are substantiated in this paper. An overview of the main approaches to the recruitment of armies in the context of historical evolution is conducted, and a list of actual and potential threats to a reduction of Ukraine's mobilisation potential is updated. Factors of motivation and demotivation influencing the participation or otherwise of Ukrainian youth in military mobilisation are defined. Optimal legal models for military mobilisation in a democratic constitutional state are also proposed. A general strategy whereby the policy of formation of patriotism through education and media for the actualisation of the mobilisation potential of Ukraine may be realised is also outlined. The article aims to develop conceptual bases for improving the mobilisation potential of Ukraine based on optimising the mechanisms of human capital formation. It also aims to enhance the mobilisation potential of Ukraine as a system-forming factor in ensuring the state's defence capabilities.

Privacy, Data Protection and Law Enforcement. Opacity of the Individual and Transparency of Power

SUMMARY: Introduction; 1 Principles of the democratic constitutional state; 1.1 The Recognition of Human Rights in their Double Function; 1.2 The Rule of Law; 1.3 Democracy; 2 The democratic constitutional state and the invention of two complementary legal tools of power control; 2.1 Limiting power through opacity tools; 2.2 Channelling power through transparency tools; 3 Privacy as a tool for opacity (creating zones of non-interference); 3.1 The negative role of privacy; 3.2 The positive role of privacy; 3.3 The non-absolute nature of privacy; 4 Data protection as a tool for transparency; 4.1 Introduction; 4.2 The rationale behind data protection; 4.3 Data protection as an opacity tool?; 4.4 The charter of fundamental rights of the european union; 5 The shift from opacity towards transparency in european human rights law; 5.1 European human rights law and the legality requirement; 5.2 The success of the legality requirement; 5.3 A critical comment about the strasbourg focus on the legality requirement; 5.4 The danger of proceduralisation; 5.5 A requirement fundamental to opacity: necessary in a democratic state; 6. Combining privacy and data protection 6.1 Combining the tools; 6.2 Determining the switch; 6.3 An example: camera surveillance; 6.4 A second example: passenger profiling; 6.5 Workable criteria?; Conclusion.