Fundamental Constitutional Values Research Articles

The national constitutional model of identity as a key to the consolidation of Ukrainian society

The article examines the relationship between constitutional and national identity, and on this basis, a national constitutional model of identity is formed, its features are outlined, taking into account the possibilities of consolidating Ukrainian society. It is emphasized that only a harmonious combination of the “spirit of the people” and the universal values of constitutionalism is a guarantee of the development of a modern national constitutional state. Constitutional principles can be optimally realized in social practice only in the context of the nation’s history, in close connection with the national-mental attitudes of its representatives, and hence the formation of civil society - a community of free and equal persons.
 It is proved that the Constitution of Ukraine is the result of the genesis of the main constitutional principles in the national context, which gave it a special color. This made it possible to meet the needs of the nation in accordance with its national identity, as well as in accordance with the direction of such evolution, its dynamics, dictated by the history of the state. Therefore, the constitutional identity is a special collective identity of the nation, which is defined or formed by the Constitution.
 It is concluded that the national constitutional identity is a complex of national legal values and features of the constitutional system, which at the same time consolidate citizens into one nation and distinguish the state from other states, international and regional institutions or peoples of the world. In the development of national constitutional identity, the national aspect, the doctrine of constitutional patriotism, fundamental constitutional values, and the Constitution of Ukraine as the highest source of identity play a significant role.

Constitutional-legal and socio-political problems of Ukrainian statehood: history and modernity

The article highlights the doctrinal and applied political and legal problems of the genesis and development of Ukrainian statehood in the context of today’s challenges.It is proven that Ukrainian statehood is an inviolable requirement of the existence of the Ukrainian people and their sovereign will, the entire centuries-old history of Ukrainian statehood and the right to self-determination exercised by the Ukrainian nation, the entire Ukrainian people. This is a determining factor in strengthening civil harmony on the land of Ukraine and the foundation of the national identity of the Ukrainian people, national patriotic consciousness and spirituality. Preservation of the foundations of national statehood, protection of the state sovereignty of Ukraine, the integrity and inviolability of its territory determines the content and direction of the state’s foreign and domestic policy and is the object of Ukraine’s national security, the cause of the entire Ukrainian people. The problems of the history, theory and practice of Ukrainian state-building in the conditions of full-scale armed aggression of the Russian Federation and the Russian-Ukrainian war are considered. It is proven that the Ukrainian people and the Ukrainian state faced a number of complex systemic internal and external threats and challenges, primarily related to such fundamental constitutional values as sovereignty, independence, freedom, democracy, territorial integrity, etc. Parallels are drawn between the historical past and the present in the context of the relationship between Ukrainian statehood and Horde Muscovy. It is proven that statehood is a broad, multi-structural concept that consists of various elements, one of which is the state. At the same time, statehood and the stateare concepts that do not coincide, they cannot be equated. The concept of «statehood» in the categorical apparatus of modern political and legal science performs a number of explanatory, axiological and identifying functions that reveal the substantive and formal-legal specificity of various stages of this process in the direction of the formation of a sovereign state and its institutions The conceptual issues of the human dimension of Ukrainian statehood, the strategy of its development through the prism of the realization and protection of human right sare considered. Attention is focused on the fundamental challenges of modernization of Ukrainian statehood from the standpoint of the principles of classical constitutionalism. Certain trends in the development of Ukrainian statehood in the aspect of the formationof civil society in Ukraine, institutions of a social legal state, parliamentarism and implementation of power decentralization are outlined. Key words: statehood, state, Ukrainian people, society, public power, democracy,constitutional reform.

Constitutional and legal problems of the functioning of the business ombudsman service: domestic and foreign experience

The article examines the current constitutional and legal problems of the formation and implementation of business ombudsmen’s activities in Ukraine in the context of foreign experience. The role and importance of business-ombudsmen in the mechanism of protection of the right to engage in entrepreneurial activity are shown. World experience shows that the activities of the business-ombudsman are quite broad and affect various aspects of business. The basic principles that underlie the functional separation, independence and organizational diversity of business-ombudsmen are revealed. The main models of business ombudsman services are analyzed. The main characteristics of the institute of business-ombudsman in different countries of the world show that it is: 1) the direction of specialization of the classical model of ombudsman; 2) a legal institution, which is formed, as a rule, under the government (government ombudsman) or parliament (parliamentary ombudsman), less often under the head of state; 3) authentic structure, the specifics of which are related to a certain group of entities – entrepreneurs and the protection of their subjective rights; 4) an institution that combines a set of norms of homogeneous content aimed at regulating the status and activities that are in a relationship of coordination of the business ombudsman and (if any) regional or municipal business-ombudsmen; 5) an institution,the legal basis for the organization and operation of which may be an act of the government (Australia, France) and a separate special law (Russian Federation), or individual articles or chapters in other (usually profile in terms of business regulation) activities) legislation (Georgia). It is concluded that the fundamental constitutional values, including, first of all, the human right to entrepreneurship, free enterprise, market economy and responsible government to civil society – are the functional and teleological dominant of the business-ombudsman, the feasibility and practice of which, and is due to the solution of these interrelated problems. Key words: ombudsman, business-ombudsman, human rights, entrepreneurship,business, control, rule of law, democracy.

Statehood – the basis of political and legal being of the Ukrainian people: history and modernity

The article highlights the doctrinal and applied political and legal problems of the genesis and development of Ukrainian statehood in the context of today’s challenges. It is proven that Ukrainian statehood is an inviolable requirement of the existence of the Ukrainian people and their sovereign will, the entire centuries-old history of Ukrainian statehood and the right to self-determination exercised by the Ukrainian nation, the entire Ukrainian people. This is a determining factor in strengthening civil harmony on the land of Ukraine and the foundation of the national identity of the Ukrainian people, national patriotic consciousness and spirituality. Preservation of the foundations of national statehood, protection of the state sovereignty of Ukraine, the integrity and inviolability of its territory determines the content and direction of the state’s foreign and domestic policy and is the object of Ukraine’s national security, the cause of the entire Ukrainian people. The problems of the history, theory and practice of Ukrainian state-building in the conditions of full-scale armed aggression of the Russian Federation and the Russian-Ukrainian war are considered. It is proven that the Ukrainian people and the Ukrainian state faced a number of complex systemic internal and external threats and challenges, primarily related to such fundamental constitutional values as sovereignty, independence, freedom, democracy, territorial integrity, etc. Parallels are drawn between the historical past and the present in the context of the relationship between Ukrainian statehood and Horde Muscovy. It is proven that statehood is a broad, multi-structural concept that consists of various elements, one of which is the state. At the same time, statehood and the state are concepts that do not coincide, they cannot be equated. The concept of «statehood» in the categorical apparatus of modern political and legal science performs a number of explanatory, axiological and identifying functions that reveal the substantive and formal-legal specificity of various stages of this process in the direction of the formation of a sovereign state and its institutions The conceptual issues of the human dimension of Ukrainian statehood, the strategy of its development through the prism of the realization and protection of human rights are considered. Attention is focused on the fundamental challenges of modernization of Ukrainian statehood from the standpoint of the principles of classical constitutionalism. Certain trends in the development of Ukrainian statehood in the aspect of the formation of civil society in Ukraine, institutions of a social legal state, parliamentarism and implementation of power decentralization are outlined.

Местное самоуправление как конституционная ценность: от истоков к современному состоянию

July 6, 2021 dates 30 years since the appearance of the first law on local self-government in the modern history of Russia. Over the past period, the Russian state and the Russian legal system have undergone a difficult path to modernization of the legislation on local self-government and its approbation to actual reality. During this historical period, Russian Federation adopted the Constitution, the text of which was significantly transformed in 2020; local self-government, in addition to the mentioned law of 1991, incorporated all the «joys and hardships» from the federal laws «On General Principles of the organization of Local Self-Government in the Russian Federation» of 1995 and 2003.
 This article presents a comparative legal analysis of certain provisions of federal laws on local selfgovernment, which have been regulating for 30 years at the level of the federal legislator the issues of local self-government in the Russian Federation as one of the fundamental constitutional values of modern democratic states. The author makes a disappointing conclusion that the named constitutional value has been significantly changed both in form and content over the past historical period of the development of the Russian statehood. This predetermined the situation of «crisis» of the current state of local self-government in the Russian Federation and the possibility of its «dissolution» with the emergence of a constitutional category «a unified system of public power».

Practice of the Constitutional Court of Ukraine on the Protection of Personal Rights in Criminal Judicial Procedure

The article deals with the analysis of the legal positions of the Constitutional Court of Ukraine in the sphere of protection of individual rights in criminal proceedings. It is substantiated that these rights are part of the system of fundamental constitutional values guaranteed by the Basic Law of Ukraine, the establishment and enforcement of which is the main duty of the state. These constitutional values are most threatened during a person’s investigation and trial, as well as in places of imprisonment. Understanding the content of these constitutional values, their fundamentality in the application of legislative provisions in criminal proceedings is the key to the effectiveness of the rule of law in this area and demonstrates the level of legal culture of society as a whole. The decisions of the Constitutional Court of Ukraine in the sphere of protection of individual rights in criminal proceedings have been analysed and it is determined that such decisions represent a significant share of decisions awarded by the Constitutional Court on protection of human rights and freedoms and address a wide range of criminal issues. Depending on the subject of consideration and the formulated legal positions of the Constitutional Court of Ukraine, the following types of decisions of the national body of constitutional control in the sphere of protection of individual rights in criminal proceedings are identified: regarding the requirements for normative legal acts (type, content); on the right of a person to legal aid; on restricting a person’s right to liberty; on protection, including judicial, rights and freedoms of a person at various stages of criminal proceedings - from entering information about a criminal offense in the Unified Register of pre-trial investigations to sentencing in the case; on guaranteeing, affirming and ensuring by the state the right to life, health and dignity of a person in sentencing and imposition of punishment. It is concluded that the Constitutional Court of Ukraine protects the rights and freedoms of persons in criminal proceedings by making decisions, including on constitutional complaints, at the highest constitutional level. After the publication of the decisions of the Constitutional Court, the legal positions set out in them, being in normative unity with the provisions of the Constitution of Ukraine interpreted in the decisions, become direct regulators of public relations, including determining the content and scope of constitutional human and civil rights.

The PSPP Judgment of the Bundesverfassungsgericht and the Slovenian Constitutional System

The BVerfG’s judgment on the PSPP marks another important part of the EU constitutional mosaic. It was the first time that the court declared an EU act ultra vires. Intense academic commentary ensued, mostly adopting a critical attitude towards the judgment. However, a summary rejection of the underlying idea of an exceptional national constitutional review of EU acts does not seem warranted. Unconditional primacy has been disputed by different national courts for some time now, and on two occasions, national apex courts already declared EU acts ultra vires. Considering its inherent diversity, the EU should be able to accommodate legitimate national constitutional concerns. A common frame of reference, possibly provided by Art. 4(2) TEU, could facilitate such accommodation if very high standards of violation were adopted by national courts, which would also respect the principle of loyal cooperation. In this regard, EU law also marks red lines when it comes to its fundamental principles, limiting the possibility of abuse. The Slovenian Constitution introduces EU law through Art. 3a, adopted for the purpose of accession to the EU. The Slovenian Constitutional Court's case law is generally very EU-friendly, and it could be marked by cooperative vagueness, echoing the doctrines of the CJEU. A clear answer regarding the relationship between national (constitutional) law and EU law is lacking in its jurisprudence. The court explicitly left the question of absolute primacy open. The substantive preconditions for the transfer of sovereign rights in Art. 3a, namely, respect for human rights and fundamental freedoms, democracy, and the principles of the rule of law, have been interpreted in different ways in academia. However, considering the inalienable right to self-determination, in exceptional cases of serious encroachment on fundamental constitutional values, the SCC would probably adopt its version of the BVerfG’s doctrines.

Repere de identitate constituțională în România pre- și post-comunistă

The Romanian Constitution, in art. 1 parag. 3, states that fundamental constitutional values such as human dignity, citizen rights and liberties, the free development of human personality, justice and political pluralism are to be understood through the spirit of the Romanian democratic traditions. Thus, working with traditions, we have to seek constitutional identity signs in the past, in order to see, in a wider analytical and institutional background, what defines the political identity of the Romanian people as a whole and as individuals (citizenship can be discussed in paradox terms). Such an academic endeavor can successfully turn into a book subject, considering its complexity and its inter, intra and pluri scientific field connections. In the limits of a research article, we will briefly explore the constitutional history of pre- and modern Romania (which is mainly a history of constitutional transplant). One of the aimed purposes of the paper is to discover the Romanian individual that constitutes the soul or matrix of the national state or to see if a Constitution really constitute constitutional identity.

Constitutional and legal foundations of the control activities of the Ombudsman in the modern world: axiological, ontological and teleological aspects.

The article examines the current constitutional and legal problems of the formation and implementation of the control activities of ombudsman in the modern world. It is proved that the history of development, the causes, the processes of institutionalization and constitution of Ombudsman services in the modern world, the permanent transformation of their functions and the differentiation of their specialization are evidence of the improvement of the classical system of separation of powers. Following the legal traditions of democratic countries, the Institute of the Ukrainian Parliament Commissioner for Human Rights was introduced in Ukraine. Today, it has become an important way of ensuring human rights. The introduction of the Institute of the Ukrainian Parliament Commissioner for Human Rights fully meets the current trends in the modern democratic world and is a reflection on those systemic challenges and complex problems that exist in the field of human rights protection. The article argues that the social tension and insecurity of certain segments of the population, in particular children, pensioners, persons with disabilities, servicemen, migrants, internally displaced persons, ethnic minorities, persons belonging to the LGBTI community, entrepreneurs, patients and other categories of the community , demonstrates the need to improve national mechanisms and forms of human rights protection, including strengthening the oversight functions of the Ukrainian Parliament Commissioner for Human Rights. It is argued that the functional isolation, independence and organizational diversity of control bodies, primarily ombudsman, is evidence of the formation of control power, the conceptual idea of which is the existence of a system of organizational, regulatory, institutional measures to ensure control over public authority. It is concluded that fundamental constitutional values, among which, first of all, human rights and the authority responsible to him are the functional and teleological dominant activity of the Ombudsman, the feasibility of creating and the practice of functioning of which, in fact, is due to the solution of these interrelated tasks. According to the author, in order to improve the Ombudsman Institute in Ukraine, it is advisable to continue the constitutional and project work on amendments to the Constitution of Ukraine, which provide for the possibility of introducing specialized parliamentary ombudsmen (on issues of the child, servicemen, equal opportunities, national minorities, etc.) the scope of their control activities.

A Capabilities Approach to the Adjudication of the Right to a Basic Education in South Africa

This article explores the contours of what a capabilities approach to the adjudication of the right to a basic education in South Africa entails. The right to a basic education fulfils an important role within South Africa’s project of transformative constitutionalism, which aims to transform society through processes grounded in law. In turn, transformative constitutionalism’s focus on the fundamental constitutional values of freedom, dignity and equality—and its recognition of the relevance of context—resonates with the values underlying the capabilities approach. Certain principles common to transformative constitutionalism and the capabilities approach, namely participation through informational broadening and substantive reasoning through explicitness, should be observed by reviewing courts at all stages of the adjudicative process. Thereafter, the first step of a capabilities approach to adjudication is for courts to interpret the content of the right with reference to the capabilities and functioning outcomes it represents in concrete contexts. Next, a capabilities-based standard of review should be applied to impugned government laws, policy or conduct. Finally, a capabilities approach to remedies should be adopted. This article concludes by evaluating selected education-related judgments by South African courts against the requirements posited by a capabilities approach to adjudication.

How many chief justices? Judicial appointments and ethics in Queensland

ABSTRACTAustralia has recently experienced what many regard as its greatest judicial crisis. The appointment of Timothy Carmody QC as Chief Justice of Queensland in 2014 emerged from a process that was tainted by the state government’s willingness to break confidences gained in the course of consultation for the appointment. Equally, a strongly negative and heterodox reaction to the appointment by the whole Queensland Supreme Court bench meant that, together, politicians and judges brought on a collapse of the traditional ethics surrounding judicial appointments. Nevertheless, the extreme circumstances of the Carmody affair suggest that, where judges have a legitimate concern that a judicial appointment might put a fundamental constitutional value like judicial independence at risk, a court may be justified in publically expressing concern about the appointment.

Indirect Effect of EU Law under Constitutional Scrutiny – the Overview of Approach of Czech Constitutional Court

Summary The paper deals with the non-normative impacts of the EU law in the national legal systems (Czech Republic in particular) and focuses on the approach of the Czech Constitutional Court (CCC) towards the so-called principle of indirect effect of EU law. The authors examine the case law of CCC and offer the conclusions about the place, constitutional relevance and (national) limits of the EU-consistent interpretation of national law. CCC up to date case law clearly indicates that a EU-consistent interpretation is the most ideal tool for meeting the Czech Republic’s membership obligations. But it is simultaneously a tool for preserving the autonomy of the national authorities applying law and reduces possible tensions between supranational and nation law. CCC accepts the indirect effect broadly and used this concept even in controversial cases (European arrest warrant, State responsibility for damages etc.). But still it does not approach this effect without reservations. CCC points on the necessity to protect the fundamental constitutional values (‘Solange’ concept) even in connection with the duty of EU-consistent interpretation.

Winnowing the chaff out of the grains: the intermixture of customary law and spiritualism in Ghana

Belief in the supernatural runs so deep in the cultural lives of Ghanaians that customary law – ‘the rules of law, which by custom are applicable to particular communities in Ghana’ – has not been spared its influence. This article asserts that state sanctioned enforcement of superstition inspired customs violates the fundamental constitutional value of freedom of conscience relative to persons who do not subscribe to such beliefs in the supernatural. But in order to accommodate the twin state interests of preserving customary laws and respecting the freedom of conscience, this article proposes the development of a body of customary laws devoid of superstition. It sets out to discuss why this idea is imperative and how it can be achieved.

A Perspective on the Principle of Social Solidarity in South Africa

The principle of social solidarity constitutes an indispensable phenomenon that is capable of providing long-term solutions to various socio-economic challenges faced largely by the indigent people in the society. This article explores the significance of social solidarity within the context of social protection, looking at its impact in mitigating the harmful effects of unemployment, poverty and inequalities that are widely experienced in South Africa. Adopting the qualitative method, the article is both exploratory and descriptive in form and uses primary and secondary sources as source material. It is asserted that social solidarity is a fundamental constitutional value that culminated in the inclusion of social security rights in the Constitution. It is through this principle that the value of ubuntu finds expression with ease. Undoubtedly, social solidarity plays an effective role in producing an appropriate social orientation of the society by stabilizing social welfare, an ideal which is necessary for sustainable development. DOI: 10.5901/mjss.2014.v5n27p966

Judicialisation of Trade Policy and the Impact on National Constitutional Rights of EU Free Trade Agreements with Partner Countries in Europe

AbstractThis article looks at the way in which the model of the European Court of Justice (ECJ) as a trade policy actor, both internally and externally, has been emulated by courts of European states with a free trade agreement with the Union. It examines in particular how, through application or rejection of—deference or defence to—EU law as interpreted by the ECJ, those courts have sought to balance the benefits of open international trade with the protection of domestic fundamental constitutional values. The article concludes by emphasising how the ‘de‐politicisation’ of trade policy through its concomitant judicialisation has allowed such courts to seise upon a role in trade policy determination, enabling them to become actors in the process of determining the rate and extent to which the Europeanisation of trade law occurs in their national systems.

Protecting Sovereignty in the Peripheries: Boundary Maintenance by Courts in Australia, Canada, the United States, and the European Union

In its 2012 decision on the Medicaid expansion provision in the Patient Protection and Affordable Care Act, the U.S. Supreme Court ruled that Congress had overstepped the line between constitutional persuasion and unconstitutional coercion. Chief Justice John Roberts reasoned that the provision violated the Constitution by threatening the states with the loss of all their Medicaid funding if they did not comply with Congress’ instructions to expand health care coverage for poor and disabled individuals in their states. Have courts in other federal or federal-like systems recognized the same state sovereignty limitation on the exercise of national power? What judicially created doctrines have been used to maintain the constitutional boundaries between the central government and subsidiary units in the periphery? Are any of these doctrines of constitutional federalism similar to the anti-commandeering and anti-coercion rules in U.S. law, which has been used recently to preclude Congress from conscripting states into carrying out national policies protecting the environment and curbing gun violence, and from coercing the states into accepting any federal conditions on the receipt of federal funding? After tracing the development of the anti-commandeering and anti-coercion rules in U.S. constitutional law, the efforts by courts in Australia, Canada, and the European Union to protect state, provincial, and Member State sovereignty from attempts by the central government to intrude upon their governing autonomy are examined. Comparison of the application of the anti-commandeering and anti-coercion rules in U.S. law and their analogues in Australian law (the doctrine of implied immunity of government instrumentalities), Canadian law (the doctrine of interjurisdictional immunity), and EU law (the principle of subsidiarity) reveals that judicial enforcement in the United States of a strict prohibition against the federal government compelling states to enact or administer its policies is unique. Protecting sovereignty in the periphery is a fundamental constitutional value proclaimed by each court in this comparative study. But the changing nature of center-periphery relations and the demands of governing in the modern era have led courts in Australia, Canada, and the European Union to narrow and even reject state sovereignty doctrines that immunize governing units in the peripheries from central government regulation and control.

Konstytucyjne publiczne prawo gospodarcze

Wolność gospodarcza należy do podstawowych wartości konstytucyjnych. Podlega ona interpretacji w orzeczeniach Trybunału Konstytucyjnego jako zasada konstytucyjna i konstytucyjne prawo podmiotowe. Celem tej interpretacji jest wyznaczenie miejsca wolności gospodarczej w konstytucyjnym ujęciu społecznej gospodarki rynkowej oraz ustalenie jej cech znamiennych (tożsamości). Rozumienie wolności gospodarczej wyznacza też stanowisko ustawodawcy, który w regulacjach ustawowych ujmuje zagadnienia przedsiębiorczości. Uwzględnia stanowisko Trybunału Konstytucyjnego na temat zasad stanowienia prawa. Istotne znaczenie dla charakterystyki wolności gospodarczej ma również prawo europejskie. Nauka publicznego prawa gospodarczego winna zestawić konstytucyjne ujęcie wolności gospodarczej z jego rozumieniem w ustawodawstwie zwykłym oraz orzecznictwie przez uwzględnienie także perspektywy europejskiej.

The Legal Consequences brought about by the Constitutional Court’s Statement that a Law or Other Legal Act Is in Conflict with the Constitution

The Constitutional Court investigates the compliance of law (part thereof) or other legal act (part thereof) with the Constitution according to: 1) the contents of norms; 2) the extent of regulation; 3) the form; 4) the procedure of its adoption, signing, publication, and entry into effect, which is established in the Constitution. Law (or part thereof) or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution. The Constitutional Court, having assessed the emergence of a possible legal situation after the entry into effect of the Constitutional Court’s ruling recognising that a law or other legal act is recognised to be in conflict with the Constitution, has the powers to establish a later date of the publication and entry into effect of its ruling that recognised a particular law or other legal act to be in conflict with the Constitution. The concept of the provisions of the Constitution as presented by the Constitutional Court is binding on all institutions that apply law, as well as on their officials and on all courts. The power of a decision (ruling) of the Constitutional Court recognising a law or another legal act as unconstitutional may not be overruled by a repeated adoption of the same law or legal act by the Seimas or another law-making entity. The general rule “the power of decisions of the Constitutional Court is directed to the future” consolidated in the Constitution is not absolute. The Constitutional Court, having found that an impugned legal act (part thereof) is not only in conflict with the Constitution, but also essentially negates the fundamental constitutional values – the independence of the State of Lithuania, democracy, the republic, or the innate nature of human rights and freedoms – enjoys the powers to rule that the consequences of the application of that legal act (part thereof) are unconstitutional.

The Asymmetry of Human Dignity as a Constitutional Value and Fundamental Human Right in Europe

The meaning of human dignity as a fundamental value or right has traditionally been a focal point of interest for moral philosophers who have noted the historical variability of the concept and the centrality of Kantian theory in modern thinking. In recent years, human dignity has also begun to generate intense interest amongst jurists and legal theorists looking to understand the role of human dignity in constitutional texts and judicial reasoning in supreme courts. One important contribution links the historical variability of the philosophical and moral principle to legal indeterminacy in modern constitutions and their interpretation by constitutional courts. In this chapter, we offer an alternative perspective on human dignity as a fundamental value or principle in human rights instruments and national constitutions. We argue that the indeterminacy of human dignity as a fundamental constitutional value or principle facilitates the co-existence of a plurality and diversity of conceptions of human dignity in the constitutional architecture of democratic European legal systems. Indeterminacy accommodates expansive and religiously motivated conceptions of human dignity which extend dignity to all human life from the moment of conception as well as gradualist or secular conceptions which attach human dignity only to persons already born. We show that a comparative analysis of human dignity as a constitutionally protected human rights value and principle reveals an important asymmetry in the meaning and role of human dignity which runs along two lines. The first line of asymmetry reveals that the dividing line between pre-natal and post-natal human life is critical to human rights claims and directly enforceable legal entitlements flowing from the protection of human dignity as a constitutional value. Secondly, we argue that a second line of asymmetry is disclosed in the weight that human dignity carries as a limiting and ‘relational’ value against interference with fundamental human rights, whether by the State or others, particularly in the context of experimental and research interventions on ‘human beings’ and ‘human life’. The first part of the chapter charts the rise of human dignity as a fundamental principle in human rights texts, including the Council of Europe and European Union Treaties and case law, culminating in the paradoxical judgment of the Grand Chamber of the Court of Justice of the European Union in the Brustle case. The second part examines the role of human dignity in the national constitutions of France and Germany and the respective case law of their supreme courts. Our analysis shows that the indeterminacy of human dignity as a fundamental value or principle creates an asymmetry in the existence, substantive content and attribution of direct legal rights in legal orders which are founded on respect for the plurality and diversity of moral and religious cultures in democratic societies in Europe.

The Wolves and the Sheep of Constitutional Law: A Review Essay on Kermit Roosevelt's - the Myth of Judicial Activism

The debate over judicial activism is nothing new, but recent years have seen the debate becoming increasingly bitter. In The Myth of Judicial Activism, Professor Kermit Roosevelt tries to provide a more levelheaded assessment of the judiciary's role. But his approach - which largely adopts the consensus of the legal establishment - suffers from a fundamental flaw: like Judge Robert Bork and Justice Steven Breyer before him, Roosevelt centers his jurisprudence around preserving democratic decisionmaking, rather than protecting liberty. This basic error renders this approach incompatible with the constitutional design, and distracts all of these thinkers from the more fundamental philosophical issues that lie at the heart of the judicial activism debate. This article uses Roosevelt's book as a point of departure for a more general discussion over the judiciary's role in preserving the fundamental constitutional value of liberty, and explains why focusing on democracy rather than liberty leads to erroneous conclusions.