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The introduction by the Amsterdam Treaty of the flexibility clauses, authorising a majority of Member States to cooperate more closely in areas covered by the Treaties, has been received with mixed feelings. Flexibility is by no means a new phenomenon in the EU's development. It has been on the Community's agenda already since the 1970s. The Single European Act introduced several provisions allowing for flexible approaches to the single market, whilst the Maastricht Treaty launched a differentiated approach to the EMU and social policy. In addition to these forms of differentiation in primary Community law, for many years there has also been a number of quite important, though less visible, forms of differentiation in secondary Community law. This book aims to link both levels of differentiation and seeks to unveil the many faces of differentiation in EU law. It analyses whether, and to which extent, there is a shift in European integration from a system of unity and uniformity to one of flexibility and differentiation. A first series of contributions to the book analyse a number of exemplary policy fields (EMU, social policy, environment, free movement of persons, justice and home affairs) in order to identify their degree of differentiation. A second set of contributions examine various 'horizontal' institutional matters of cross-sectoral importance. These two main parts are framed by introductory articles on the development of flexibility and by contributions drawing on the constitutional limits to differentiation. The contributions are made by Dominik Hanf, José M. de Areilza, Jean-Victor Louis, Sean Van Raepenbusch, Ludwig Kramer, Georgia Papagianni, Grainne de Burca, Ellen Vos, Linda Senden, Sacha Prechal, Wouter Devroe, Deirdre Curtin, Bruno De Witte, Eddy De Smijter en Jan Wouters.
This book examines how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers. This volume critically assesses the phenomena of judicialization of politics and politicization of the judiciary. It explores the rising impact of courts on key constitutional principles, such as democracy and separation of powers, which is paralleled by increasing criticism of this influence from both liberal and illiberal perspectives. The book also addresses the challenges to rule of law as a principle, preconditioned on independent and powerful courts, which are triggered by both democratic backsliding and the mushrooming of populist constitutionalism and illiberal constitutional regimes. Presenting a wide range of case studies, the book will be a valuable resource for students and academics in constitutional law and political science seeking to understand the increasingly complex relationships between the judiciary, executive and legislature.
This landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law. Divided into sections on constitutional design and redesign, identity, structure, individual rights and state duties, courts and constitutional interpretation, this comprehensive volume covers over 100 countries as well as a range of approaches to the boundaries of constitutional law. While some chapters reference the text of legal instruments expressly labeled constitutional, others focus on the idea of entrenchment or take a more functional approach. Challenging the current boundaries of the field, the contributors offer diverse perspectives - cultural, historical and institutional - as well as suggestions for future research. A unique and enlightening volume, Comparative Constitutional Law is an essential resource for students and scholars of the subject.
To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.
Classic Books Library presents this brand new edition of “The Federalist Papers”, a collection of separate essays and articles compiled in 1788 by Alexander Hamilton. Following the United States Declaration of Independence in 1776, the governing doctrines and policies of the States lacked cohesion. “The Federalist”, as it was previously known, was constructed by American statesman Alexander Hamilton, and was intended to catalyse the ratification of the United States Constitution. Hamilton recruited fellow statesmen James Madison Jr., and John Jay to write papers for the compendium, and the three are known as some of the Founding Fathers of the United States. Alexander Hamilton (c. 1755–1804) was an American lawyer, journalist and highly influential government official. He also served as a Senior Officer in the Army between 1799-1800 and founded the Federalist Party, the system that governed the nation’s finances. His contributions to the Constitution and leadership made a significant and lasting impact on the early development of the nation of the United States.
This book features eleven contributions on the fundamental principles of EEA law: legislative and judicial homogeneity, reciprocity, prosperity, priority, authority, loyalty, proportionality, equality, liability and sovereignty. Written by EFTA Court and national judges, high EFTA officials, private practitioners and scholars, it raises awareness of EEA law and provides insights for EEA and EU law practitioners and researchers. It focuses on the principles at the core of EEA law, some of which are common to EU and EEA law, while others have a specific place in EEA law and some ensure consistency between the EEA Agreement and the Treaty on the Functioning of the European Union. It is the only book to focus on the fundamental principles of EEA law.
Juliano Z. Benvindo investigates the current movement of constitutional courts towards political activism, especially by focusing on the increasing use of the balancing method as a “rational” justification for this process. From the critical perception of the serious risks of this movement to democracy, the book takes as examples two constitutional realities, Germany and Brazil, in order to discuss the rationality, correctness, and legitimacy of constitutional decisions within this context. Through a dialogue between Jacques Derrida’s deconstruction and Jürgen Habermas’s proceduralism, the author confronts Robert Alexy’s defense of the balancing method as well as those two constitutional realities. This confrontation leads to the introduction of the concept of limited rationality applied to constitutional democracy and constitutional adjudication, which affirms the double bind of history and justice as a condition for a practice of decision-making committed to the principle of separation of powers.
A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.