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Freedom of conscience and religion also applies to conflicts in the workplace. In the Federal Republicof Germany and the U.S. legislation and the jurisprudence have developed certain standards ofconduct in such cases. In the German system, the issue of conscience in the workplace is governedby the principle of pacta sunt servanda (agreements must be kept) enshrined in the Civil Code (BGB).In the United States the freedom of conscience and religion is guaranteed by the provisionsof Title VII of the Civil Rights Act l964. In such cases, the duty of the employer is to examine theconfl icting interests of employer and employee, and to consider whether the resulting confl ict can beresolved without harm to the company. Such conflicts usually occur when the time of work coincideswith e.g. the time of prayer or religious holidays of the employee. In such a situation, the employeris obliged to examine and change the workplace organization, so as to enable the employee to carryout his/her obligations under religious law. Only when it is impossible to reconcile the confl ictinginterests of the employee and the employer, that the interest of the employer prevails over the interestof the employee. In Germany and the United States courts in their judgments have developed preciserules for the interpretation of freedom of conscience and religion under labour law, having regardto the rights of the employee and the employer’s interest. These judgments have become thebenchmark for resolving disputes arising out of violations of freedom of conscience, religion orbelief, and may also affect the legislation of other countries.
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On 26 June 2013, the Federal Supreme Court of the United States released a judgment in the United States v. Windsor, in which it challenged the constitutionality of the defi nition of marriage under federal law. In reasons for its decision, the Court confi rmed the unfounded exclusion of samesex marriages, concluded under state law, from access to entitlements associated with the institution of marriage. Making its decision the court applied a rational basis review, one of the three standard test in the review of the constitutionality of legislative interference with individual rights in the United States. The author provides a reconstruction of the content of public interest associated with the institution of marriage, and acquaint the Polish reader with the controversies associated with the application of rational basis review by the U.S. judiciary in matters concerning the rights of homosexuals.
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The processes, tools and concepts of political liberalism have become the fundamental factors in executing the domestic politics of countries since the dominance of neo-liberal policies in the world politics after the Cold War. The legitimacy of the laws has been ensured for about two centuries through constitutional and normative sense of law, which is brought by liberalism, and constitutional administration based on the rights and freedoms of the people. Although liberalism continues on its way from economics after the 2000s, liberal politics have been interrupted in various countries in the context of constitutionalism. The right-wing, authoritarian, and populist leaders in power tend to push the boundaries of absolute bindingness of norms and are inclined to the behaviors that can be explained by the paradigm of decisionism. It is argued in this study that the liberal constitutional aspects of the legitimacy of laws have been distressed. This “epistemological break” substitutes decisionist ones for liberal values. This argument has been discussed through the dilemma of constitutionalism and decisionism paradigms. While the constitutionalism paradigm was discussed over many liberal thinkers, Carl Schmitt’s views were focused on for decisionism paradigm. The reason why he is the most widely known theorist in the context of the decisionist paradigm, Schmitt has a very large footprint in the decisionist literature, and Schmitt frequently has addressed it in his works.
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The crisis of the efficiency of court proceedings should be an important argument to increase interest in problems faced by contemporary judges. It also provokes a question how far the inability to resolve this issue influences the lasting transformation of the system of government (global and national) and to what extent it is a result of ordinary neglect and a lack of appropriate skills and legal intuition of both administrative decision-makers and judges. The negative dimension of the excessive length of judicial proceedings additionally speaks for the development of a new policy aimed at efficient litigation. It’s because the polemic about the sources of the problem outlined in the article title exacerbates and deepens divisions between judges and the Ministry of Justice. What is more, there are numerous constitutional and economic uncertainties and further areas of the conflicts of laws and interests are likely to appear. The legal regulation of the situation is not easy because of the fragmented identification of the relationship between the actual situation and the legal status as well as the state of public awareness. Consequently, the stabilization of the situation becomes an indispensable necessity in face of the standard of the right to access to court.
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Justice is a category which empowerment is located in a man, and consequently, in human groups - communities and organizations created by people. It is commonly accepted that justice means: relationships between people or their institutions, proper distribution of goods, impartiality, adequate decisions making, applying the same moral and ethical measures to own behavior and the behavior of other people and using the same criteria to the assessment of the behavior of different social actors. Justice is also such organization of the social and economic system that provides everyone with an equal access to different kinds of goods, services, intangibles or at least with a chance for equal (fair) access. In relation to the economy and economic activity, justice is combined with equality to a significant extent. It is about equal opportunities for starting a business, equal opportunities to obtain the right position in the area of the economy and to maintain this position as well as the equal rights and obligations of entrepreneurs engaged in economic activity. Justice in economic activity should also be combined with the need (necessity) to meet legal requirements.Social justice is a concept characterizing the principle expressed in the Constitution. This principle should be treated as a condition and a requirement addressed to the legislator to create a system of law and legal order, including formal law, according to the principle of social justice.
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The article is devoted to the relationship that occurs between social justice (as a target) and law (a tool for achieving this target). The fundamental problem is to determine the definition of social justice which is or should be implemented by law. Its understanding is influenced by different social factors which dynamics determines its redefinitions so there is no basis for the reconstruction of a single, general and indisputable theory of social justice. Therefore, the concept of social justice is “essentially contested”, which means that its significance and the criteria of an application always involve disputes and controversies. This weakness can be overcome through public deliberation which is an attempt to reconcile differences through discussion and persuasion. In this context, the Author has drawn attention to the Polish Constitutional Tribunal which applies its own arbitrary understanding of the principle when ruling on the base of the “social justice” clause (social justice becomes a matter of individual axiology and beliefs of judges in a given case). Nevertheless, social justice is foremost the aim of the state which should strive to achieve it. So the question must be posed: how the legislature should identify such aim and the manner of its implementation? Undoubtedly, it should be done in accordance with a democratic legislative procedure. On the other hand, it seems that the results of research conducted within the framework of social science (even taking into account the diversity and the adversarial nature of many theories) can significantly expand knowledge, inter alia, on the concept of social justice and associated problems. Social justice is, in fact, a “smooth” category subject to continuous redefinitions as a result of social conditions and people's greater awareness of their consequences. It can be illustrated by the issue of the legalization of same-sex couples, which has become a reality in some countries while in others it is still subject to increased number of litigations or a subject of public discourse. It seems that when searching the answer to the question of whether the legalization of same-sex couples leads to the realization of social justice it may be helpful to refer, for example, to the theory of Anthony Giddens concerning the transformation of intimacy. One way or another, the “essentially contested” issue of social justice as the aim of a state organization should be identified (at the stage of law-making, the stage of interpretation, including constitutional, and the stage of the application of law) as a part of the political and legal discourse. Referring to the Habermas’s concept of the idea of deliberative democracy, it should be noted that the legal implementation of social justice within available resources (for example economic) should be subject to democratic procedures and should take into account the possibility of popular participation in the legislative process.
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In this scientific work, the authors analyzed the constitutional position of Republic Srpska towards central authorities in Sarajevo. Without prejudice to the review, the authors applying dogmatic- normativity, target, comparative, developmental method and method of content analysis of norms that regulate the basic framework of political power in the Republic of Srpska and the Bosnia and Herzegovina. First, analyze the basic constitutional, political and institutional foundations of Republic Srpska and Bosnia and Herzegovina. Then, explore procedures and act on the transfer of jurisdiction of the Republic Srpska of the central authorities in Sarajevo. At the end of its overall score and the court about the nature of the constitutional position of the Republic Srpska, avoiding the fact that for the subject of their research take the government form of the Republic Srpska (in doing so, the purpose of scientific research would be missed) and BiH (as this would prejudice the conclusion about the character of complex government form creations, such as BiH). The significance of the research enterprise is reflected in the Court’s order granting the constitutional position of the entity under the Paris- Dayton Peace Agreement (about the character and nature of the constitutional Dayton BiH) and about the current political power relations of Srpska and BiH. From this, it can accompany the development path of Srpska and BiH, and predict the tendency of their mutual relations in the future, in order to prevent preventively new ones, but also endangering the national interest of the Serbian people in this part of the Balkans.
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An important feature of modern democratic states is their discursive nature, which results in a constant negotiating situation, which is a special type of communication situation. Moving away from substantive law to procedures and creating the so-called framework conditions result in the need to take argumentative actions in favor of own interestsand values. Such situation raises the need to develop communicative skills, and within them the skills of argumentation. The concept of justice does not have single and unambiguous content. There are many competing theories and justice formulas which are reflected in contemporary discourseand expressed in contents of the applicable law and its principles. The Constitution of the Republic of Poland uses the notion of social justice in art. 2. When justice is used in public discourse we can call it the creation of an argument from justice which can have as different content as the theories and formulas adopted for its construction. Therefore, a dispute over the mere content of such argument can occur. There is often a conflict between theargument from justice and other arguments, in particular legal arguments. Such situation can be considered as hard case. In practice, the argument from justice has great importance in restoring the violated state of justice in matters of transitional justice and the argumentative approach to the issue of cultural goods restitution.
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The article aims to present Roman regulations concerning speculators from the perspective of the methods of classifying its features by the compilers, which take into account both the normative content of original laws (created by the original authors of these laws), as well as the content added by later legislative factors: emperors, the senate and jurisprudence. The study of the Julian law on embezzlement of public funds may be conducted following the Justinian’s title Ad legem Iuliam peculatus et de sacrilegis et de residuis (D. 48, 13). Peculatus was the basic type of the offense of embezzlement of public funds. In the time of Augustus, two separate types of offense isolated from peculatus, which were sacrilegium (probably within one law - lex Iulia peculatus) and embezzlement of a specific kind of money, i.e. pecunia residua (probably within a separate law - lex Iulia de residuis). Despite being quite precisely defended by law, the type of the offense of embezzlement of public funds raised doubts in cases where the act committed by the offender was similar to theft (crimen furti), or forgery (crimen falsi).
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This paper seeks to shed further light on the issue of citing and referring to foreign law in the United States Supreme Court, especially in cases surrounding the expansion of human and constitutional rights. Therefore, the author introduces the reader to the origins and most important features of the human rights system in the American constitutional and legal system. Likewise, he points to the issue of conflicts between different kinds of methods of constitutional interpretation, a debate especially controversial and di cult in American constitutional adjudication. Likewise, the author looks back to the issue of relationship between the American domestic legal system and international law, as a part of the controversy surrounding this debate. Last part of the article is dedicated to examining most important cases in this domain, which are mostly with regard to the VIII and XIV Amendments of the US Constitution.
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Republic of Serbia has the Constitution containing numerous principles of liberalism, which in practice is not applied to the full extent. Constitutional projection of the liberal society is not sufficient so that liberal democracy is realistically brought to life, nor the main principles regarding each individual – freedom and equality, for example. Time is required for liberal democracy, and that is not questionable. But such level of democracy requires virtue, quality of those who govern, lead the country, as well as an achievable plan and method, ideology, to which govern elite adhere. Transferred to this paper’s terminology, political elite is the one who makes decisions regarding all citizens of Serbia, and it must be the elite, the best, so that those decisions are fruitful for all. Governing the state is by itself, a complicated task. Leading a country which, from a lower level of liberalism and capitalism has to overgrow to a higher one, into liberal democracy, is even more complex, and in the case of Serbia, due to particular external and internal issues, exercising power is demanding in particular. Hence, the political elite has a liberal constitutional base according to which it makes decisions and undertakes power measures, but on the other hand, it has liberally undeveloped society, without authority of institutions, and based on various criteria degraded citizen. That gap between proscribed and realized liberalism and democracy, political elite attempts to overcome by populism. But in the long run, populism politics is not the road to the liberal democracy and the achievement of freedom and equality of all.
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In the year 2016 Law on Public Order and Peace came into effect which brought innovations when it comes to the regulation of the prostitution in the Republic of Serbia. Specifically, in addition to the people who indulge in prostitution, which are mostly women, this Law prescribes punishment of misdemeanor for prostitution service users. The subject of the analysis in this paper is the legal regulation of the prostitution in the Republic of Serbia. It will analyze the provisions of the Law on Public Order and Peace which regulate prostitution, as well as provisions of international documents that are relevant when it comes to the regulation of the prostitution, by applying the normative methods. Given the fact that the international documents designate the demand for commercial sex acts as the main factor which has influence on the growth of the prostitution, comparative analysis will provide an insight into whether the Republic of Serbia has legally effective solution in the field of the prostitution which has effect on the decreasing the demand. The main goal of this research is to determine whether the Republic of Serbia has regulated prostitution in accordance with international documents and current models of legal regulation of prostitution in member states of the EU that have results in the suppression of the prostitution. The results of the research showed that the Republic of Serbia still has prohibition model of regulation which is almost completely abandoned because of the inefficiency in the field of the suppression of the prostitution, and which repressive measures mostly affect women in prostitution. Effective results in the field of the suppression of the prostitution can only be achieved by modifying existing models in such a manner so that the measures against the prostitution will be directed towards the users who form the demand for prostitution.
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The essence of the idea of modern local self-government, which has been developing since the nineteenth century, is not only the decentralization and deconcentration of exercising public powers, but primarily its corporate character. The use of the term “local community” while defining different structures of self-government by the Polish legislator not only emphasizes the corporate character of local self-government structures, but also refers to social, cultural, economic ties. These bonds can have also ethnic, national or even language nature. The establishment of local self-government, particularly municipalities where these bonds are the strongest,provides a chance and opportunity to realize the objectives based on these bonds. The members of minorities are an integral part of the local community and their values and interests in legally relevant scope become the targets of such local corporations. That is why the national, ethnic and language minorities can participate in exercising power in the area inhabited by them. They can “self-manage” and, above all, realize the goals and values associated with the maintenance of national, ethnic or linguistic identity. This reinforces their feeling of empowerment in the exercise of public power through the structures of local self-government.
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The Author analyzes the provisions of the Electoral Code concerning an electoral campaign with a special emphasis on the elections to municipal councils (city councils). The analysis, extended by references to the electoral practice, shows that the Electoral Code does not fully implement the principle of electoral equality, mainly by creating worse position of local electoral committees that intend to propose candidates in only one municipality. This refers mainly to conducting the electoral campaign in public media and its financing. It should be considered that some modifications of these areas of electoral aware necessary. Another drawback of the Electoral Code is the lack of effective mechanisms to ensure transparency of the electoral campaign. It is reflected in ineffective tools, mainly limited to formal issues, to control the financial reports of electoral committees. As a result,it is difficult to conclude that the solutions of the Electoral Code, although much more complex, provide an essential qualitative change in relation to the previous legal status of local self-government elections
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The aim of this paper is to describe the function, importance and role that head of state as an political institution has in the political system in Central Asian states based on legal acts, especially the constitution, and laws relating to this matter, as well as political practice. The head of state is each country’s important institution in political system responsible for the well functioning of government. It gets its importance especially in those systems of government that can be characterized as presidential or semi-presidential. As the system of government in Central Asian republics can be classified into one of these, we can conclude that the president of the republic is one of the most important government institution in these political systems. A comparative analysis of the constitutional position and role of head of state in this paper covers five Central Asian states - Uzbekistan, Kazakhstan, Kyrgyzstan, Tajikistan and Turkmenistan. The first part of this paper deals with general characteristics and determinants of political system that are common to all these countries, while the second part of the paper deals with the specific position and role that the president of the republic has in these states individually. The third part of the paper deals with challenges to the political system of these states.
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The Author of the article has presented the legal bases of the employment of self-government employees. After several years of the evolution of the system of employment in the administrative apparatus of the state, the legislator has completely gone away from the concept of the employment relationship regulated by administrative law to the employment relationship regulated by labor law. So currently the employees working in local self-government organizational units are employed under a contract of employment or as a result of appointment or election. All of them can be the bases of the employment relationship. The act of 2008 on Local Self-government Employees no longer provides a typically clerical basis of employment. The labor relationships of persons appointed before the entry into force of this law have ex lege transformed into contractual relationships. In matters not provided by the Act of 2008, the appropriate provisions of the Labor Code,other acts of labor law and the provisions of the Civil Code should be applied respectively.
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The Constitution of the Free City of Danzig adopted on 30 June 1922 devoted the second chapter, including 19 articles (6-24), to the Volkstag (People’s Assembly), which served as a legislative power. According to art. 11 of the Constitution, the Assembly was allowed to issue its own standing orders specifically regulating its organization and the mode of operation. The Standing Orders of the Volkstag, which was passed in 1923 and officially announced in 1924, consisted of 94 paragraphs organized in 14 chapters. It regulated, among others, issues related to: participation in the deputies’ deliberations, the Bureau, political fractions, internal committees, the presentation of draft laws and their adoption, questions and interpellations, petitions or the conduct of meetings. The first amendment of the Standing Orders was made in 1925 but the changes were not significant. On 20 September 1930 a substantial revision of the Constitution was adopted, which required changes of the Volkstag Standing Orders. This was done in April 1935 after the takeover of power by the National - Socialist Party (NSDAP). The amendments to the Standing Orders had a very important character. Their main objective was to strengthen the power of the Nazi party. As a result, the legislative competences of Volkstag were greatly reduced in favor of the Senate, which was an executive power.
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This article analyzes the evolution of legal status of political parties in our country, from the time of their creation to the present day. In this regard it analyzes the constitutional and legal status of political parties in the Kingdom of Serbia, Kingdom of Serbs, Croats and Slovenes, Kingdom of Yugoslavia, the Democratic Federal Yugoslavia and Federal People’s Republic of Yugoslavia starting from the first Law on Meetings and Associations of the Kingdom of Serbia in 1881 and ending with 1963 when the last political journal in socialistic Yugoslavia was closed. Changes in legal status of political parties are good indicator of social-political change in the process of democratization.
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The system of constitutional principles became considerably complicated in 1997 when the ethical principles of social relations, such as common good, solidarity and subsidiarity were introduced to the text of the Constitution. The extension of the catalog of constitutional principles caused that the concept of political and socio-economic system ultimately ceased to be useful in the description of the system of constitutional principles. In order to present a coherent system of constitutional principles it is necessary to outline the new structure of constitutional norms based on the distinction of the most fundamental values of the political system. One of the five sets of principles is the system of social and ethical principles. It is based on the main idea of the principle of the righteous state based on a broad interpretation of social justice, and on the other hand on the whole system of new social principles, which include the principle of solidarity.
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