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O zasadach prawa urzędniczego (podstawowe problemy)

O zasadach prawa urzędniczego (podstawowe problemy)

Author(s): Bolesław Maciej Ćwiertniak / Language(s): Polish Issue: 3/2015

The author points to the fact that the clerical law literature (created by both, the labour law experts as well as those specializing in the administrative law) lacks any well-organized thoughts about the principles of this area of law. Neither are any catalogues of principles prepared as in case of e.g. the labour law. There, in the Labour code, the legislator quoted the catalogue of basic principles, supplemented with the “ordinary rules” of science and judicature (parts I and III). The author presents the achievements of the theory of law and of the legal science referring to expression of the principles (part III), considering it substantial when evaluating principles of the clerical law. An attempt has been made to reconstruct such principles: constitutional (contained by the Constitution as well as those formulated by basic pragmatic assumptions of the clerical law). The author emphasizes some legal regulations of the acts regarding employees of the state administration, the civil service and the territorial government workers. These have been included in the subsequent chapters of the study (parts IV–V). Relations of such principles to other legal regulations, i.e. the administrative law, general rules of the code of administrative proceedings, provisions of the labour law: its sections and institutions, have been included in the general remarks and research demands in the final part of the study. Relations between the “civil service principles” and the civil service ethics have also been pinpointed.

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Odpowiedzialność polityczna i odpowiedzialność karna polityków oraz kategoria więźnia politycznego w percepcji Zgromadzenia Parlamentarnego Rady Europy

Author(s): Jerzy Jaskiernia / Language(s): Polish Issue: 2/2014

The author analyses the position of the Parliamentary Assembly of the Council of Europe (PACE) toward the questions of the responsibility of politicians. In resolution 1950 (2013) Keeping political and criminal responsibility separate PACE considers that “democracy and rule of law require that politicians will be effectively protected from criminal prosecutions based on their decisions. Political decisions should be subject to political responsibility, the ultimate judges being the voters”. The distinctions between political decision-making and criminal acts must be based on national constitutional and criminal law, which in turn should respect the principles, in line with the conclusions of the European Commission for Democracy through Law (Venice Commission). In resolution 19000 (2012) The definition of political prisoners PACE reaffirms its support for the criteria of “political prisoner” elaborated in 2001 by a group of independent experts of the CoE Secretary General, mandated to assess cases of alleged political prisoners in Armenia and Azerbaijan in the context of accession of the two States to Organization. Also PACE resolutions represent only so- called “soft law” (not legally binding), they have an important moral and political meaning, and may open the way for the further conventional regulation.

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Charakterystyka aktów ustrojowych autonomii nordyckich

Author(s): Stanisław Sagan,Viktoriya Serzhanova,Dominika Wapińska / Language(s): Polish Issue: 2/2014

The paper aims at characterizing the acts determining government and politics of the three Nordic autonomies: functioning within Finland archipelago of the Aland Islands, as well as connected with Denmark Faroe Islands and Greenland. They are an essential part of the achievements in the area of government and politics of the states belonging to the Nordic culture and may become basis of their future constitutions. The Nordic autonomies, which are developing in a peaceful way to achieve complete independence, are known to have been aspiring to receive their autonomous status in history because of different reasons. Presently they also remain at different points of their ways to gain independence. At the beginning the Authors present the concept and terminology used to describe the phenomenon and status of the autonomies in the Nordic world. Later on, they analyze the acts determining the government and politics, as well as the status of the Aland Islands, the Faroe Islands and Greenland. The main among them are: Act on the Aland Self-Government of 16 August 1991, the Home Rule Act of the Faroe Islands of 23 March 1948, as well the Act on Greenland Self- Government of 12 June 2009. The study also presents the analysis of the system of autonomous authorities, focuses on the division of competences between them and the central ones, as well as the territorial structures of the self- governing regions.

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Recenzje

Recenzje

Author(s): Bogusław Przywora,Andrzej Pogłódek,Jarosław Kostrubiec / Language(s): Polish Issue: 3/2014

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Demokracja a finansowanie partii politycznych w świetle Konstytucji RP

Author(s): Ryszard Piotrowski / Language(s): Polish Issue: 2/2014

Political parties play an important role in the contemporary democratic system, whereby the authority of a majority is constrained by human dignity and human rights. Without parties, there would be no political pluralism, one of the basic legal and systemic principles of the contemporary democratic state. On the practical level, though, the statutory rules governing the financing of political parties – laid down in the Political Parties Act and in the Electoral Code – produce results which weaken Constitutional democracy. An argument for keeping, in principle, the present model – where political parties are financed out of state budget and from other statutory sources – invokes the immanent risk of the system’s oligarchization, which would come with the elimination of subsidies and its inevitable outcome, a “privatization” of political parties. Yet the present system of political parties’ financing is in need of a major revamp. Most importantly, the changes should make the financing of political parties fully and genuinely transparent and subject to public control – whether in respect of the spending of budgetary resources or funds from membership fees, donations and other sources. The auditing powers of the State Electoral Commission in respect of political parties’ financing should be widened and rendered more exercisable. The financing of political parties is supposed to consolidate the democratic system, advance political pluralism, foster the formation and growth of new parties, and promote equal chances in electoral rivalry – rather than service to stabilize the electoral advantage of the parties with access to public money.

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Konstytucjonalizacja dialogu społecznego

Author(s): Stanislaw Leszek Stadniczeńko / Language(s): Polish Issue: 2/2014

Human life happens in a daily interaction space of symbolic interactions and communication dialogue, in which individuals produce specific practices and come into contact with social structures materialized in the daily activities. The article aims to show the value of dialogue as a unique tool of democratic creation of future filled with peace, respect for others, solidarity, kindness and hope. The addition to the term “dialogue” of the adjective term “social” means that the perspective, at which it is targeted, is not individual, but covers the society as a whole. The dialogue itself is understood as conversation, an exchange of views, which can lead to achievement of common compromise and aiming at common goals. For direct expression of the will of the nation or its communities forms of direct democracy are used. The principle of dialogue presented in the article refers to both the sphere of domestic and international law, including the law of EU.

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Wybory do Sejmu i Senatu w świetle ordynacji wyborczych z 1935 r.

Author(s): Marek Woźnicki / Language(s): Polish Issue: 2/2014

The April Constitution of Poland passed on 23 April 1935 limited the powers of the Sejm and Senate while strengthening the authority of the President of Poland. Thereby it was necessary to introduce new rules to electoral law consistent with the new Constitution. The Electoral Law in relation to Elections to the Sejm and the Senate of 8 July 1935 conducted many new regulations. The elections to the Sejm took place in 104 districts, each with 2 seats in the Sejm. Candidates for elections were entitled to stand for election by the Districts Assemblies, not by the political parties. The elections to Senate were indirect, 64 senators were elected by Voivodeships Assemblies, and 32 received seat from the President of Poland. Suffrage in these elections had only the citizens with higher education or with merits for country, or with the citizens’ confidence, at least 30-year-old. In this way the Sanacja party wanted to achieve domination in the Sejm and Senate and to remove opposition parties from the Parliament. These plans were accomplished, although the elections were boycotted by a significant part of citizens. The criticism of Electoral Law of 1935 was widespread, also the Sanacja’s politicians knew about disadvantages of this Law, however there were no changes in the election system in Poland until the beginning of World War II.

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O potrzebie optymalizacji procesu ustawodawczego w Polsce

Author(s): Wojciech Orłowski / Language(s): Polish Issue: 2/2014

For over 10 years now in the literature on the subject of law and in relevant publications there have been allegations concerning the quality of the enacted law in Poland. This paper is an attempt to analyze both appearing demands to rationalize the process of making law as well as those concerning the creating of the catalogue of the biggest problems in this area. The Polish Constitution of 1997 defined in detail the system of the sources of law in its separate Chapter three, which is not common in the European constitutionalism. It took place when Poland was preparing for the accession to the European Union, whose system of the sources of law significantly differs from the classical, “normative” concept of the sources of law adopted in the Polish Constitution. The concept of making law accepted in the Polish Constitution seems to not fully correspond to the duties regarding EU notification of the changes in the Polish legal regulations. It affects the legislation act itself as well as the procedure of its enacting. It particularly influences the actual restriction of the Senate legislative competences, giving it only 30 days for reviewing a given act. The paper states that the regulation of Chapter three of the Constitution supplemented by the Constitutional Tribunal rulings based on the analysis of Art. 2 of the Constitution make an effective limit for the activities undertaken by the legislator which are inconsistent with the Constitution. The paper also analyses the practice of application of the rules concerning the legislative process comprised in Chapter four of the Constitution. Finally, the conclusion is drawn that to reach good legislative results it is not enough only to properly regulate all the legislative stages, but also to regulate the political system itself

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Wyrok Trybunału Konstytucyjnego z dnia 12 grudnia 2011 r. (P 1/11) w sprawie delegalizacji prawotwórstwa zarządów województw dotyczącego unijnych regionalnych programów operacyjnych

Author(s): Andrzej Bałaban / Language(s): Polish Issue: 2/2014

The discussed sentence, in the quite detailed matter, is in fact regarding the concurrence of many more serious theoretical and conceptual issues concerning the model of state and the system of the law. The Constitutional Tribunal, as part of its justification, granted it the broader sense, being significant both for further possible references of other provisions of the Act, its amendment, and the different practice of its interpreting and applying. In the light of the verdict of the Tribunal the surprise must arouse the fact that in practice the rules of acting of the legal state were violated to such a serious extent. To evaluate the genesis of the verdict and its consequences, it is necessary to mention a few general problems according to the system of implementing regional operational programmes. These problems are: the eternal dispute about the borders of self-reliance of administration (especially national), establishment of the border of dividing acts of making law from acts of applying, completeness of the democracy features, and finally, borders of rights protection on to the individual in relation to the general interest. In the discussed case the self-government of the province was dependent on the cooperation with the government administration with regard to the distribution of EU resources. Self-governments participate not only in problems associated with areas of administrational competence but also in problems linked with its legal forms. In the Italian or Spanish model of the local self-government we would not find such issues, since they are only to a small degree dependent on Government coordinating actions.

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Pov’con przed Trybunałem w Strasburgu

Author(s): Leszek Garlicki / Language(s): Polish Issue: 2/2014

In the ECtHR’s case- law free expression constitutes one of the most protected human rights, particularly when it addresses matters of public interest. A recent judgment (Eon v. France, March 14, 2013) dealt with a conviction for exposing of a poster: “Get lost, you sad prick”, during President Sarkozy’s visit to one of the constituencies. The ECtHR held that the conviction had been in violation of Article 10 of the Convention as – in its substance - it contained a political message and – in its form – it duplicated the formula used once by the President himself. The Eon court followed several earlier judgments and decisions in which the ECtHR challenged those criminal law provisions that provided for a particular punishment for insulting the head of state (Colombani and Others v. France, 2002; Pakdemirli v.Turkey, 2005; Artun and Guvener v.Turkey, 2007; Otegi Mondragon v. Spain, 2011). Also the Constitutional Court of Poland had recently (2011) an opportunity to examine a similar provision of the Polish Penal Code. It seems that it took less generous interpretation of the freedom of expression than the one adopted by the ECtHR.

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Ochrona wolności wypowiedzi w świetle Uwag Ogólnych nr 34 Komitetu Praw Człowieka ONZ

Author(s): Wojciech Mojski / Language(s): Polish Issue: 2/2014

The purpose of this article is to analyze legal guarantees of freedom of expression provided for in The International Covenant on Civil and Political Rights (ICCPR) from the perspective of The U.N. Human Rights Committee’s (HRC) General Comments No. 34. The study is focused mainly on the HRC’s interpretations concerning regulations of the article 19 of ICCPR, which consists general direct provisions of this freedom and its general indirect limitations, and also the HRC’s comments on the article 20 of ICCPR, which is related to different forms of hate speech. Firstly, the analysis shows HRC’s general description of elements of freedom of expression, i.e. the right to hold opinions and freedom to seek, receive and impart information and ideas, but also of the principle of rights and freedoms limitations’ proportionality. It also concerns HRC’s comments on the specific forms and contexts of freedom of expression, mainly about freedom of press and media, crimes of defamation, public insult of head of state and constitutional authorities or public officials and also crimes of religious offence and some forms of hate speech. Moreover, there was indicated HRC’s stand on the matter of imprisonment penalty as a legal sanction for misuse of freedom of expression.

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Profesor Ewa Gdulewicz życiorys i twórczość naukowa Jubilatki

Author(s): Wieslaw Skrzydlo / Language(s): Polish Issue: 2/2014

Biography

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Przesłuchanie przed sejmową komisją śledczą jako gatunek komunikacji politycznej i medialnej

Przesłuchanie przed sejmową komisją śledczą jako gatunek komunikacji politycznej i medialnej

Author(s): Agnieszka Bednarz / Language(s): Polish Issue: 6/2015

Every human activity has its own distinctive, diverse varieties of expression. Furthermore, specific genre patterns correspond to characteristic situations of language actions. In this article I approach the hearings before the Parliamentary Investigation Committee as a genological and communication phenomenon. The aim of the article is to define hearings before the Investigation Committee as a variety of text genre and to present its typological determinants. In this study I will attempt to answer the question whether the operation of the Investigation Committee was conducive to crystallizing a relatively new genre of political and media-related communication, as well as whether there exists a genre pattern of these hearings. In my analysis I paid special attention to the comparison between the questioning of witnesses during a court trial and before an investigation committee. I presented the structure of communication, linguistic rendition, non-linguistic conditions of hearings, and the impact of mass media on the shape of the statements that were produced. The analysis was limited to the hearings of the Parliamentary Investigation Committee for Betting and Gambling, which dealt with the so-called “Gambling scandal”. The language of expression during live coverage of these hearings was taken into account in this article. However, while examining the linguistic structure and the language layer, I rely on text transcripts which constitute a record of the said statements and which reflect its specific characteristics. Eleven transcripts of the Committee meetings were used in this study.

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Kwestia państwowości Palestyny z perspektywy prawa międzynarodowego

Kwestia państwowości Palestyny z perspektywy prawa międzynarodowego

Author(s): Marcin Marcinko / Language(s): Polish Issue: 6/2015

A resolution passed in 2012 by the United Nations General Assembly on upgrading the Palestinian observer status to the rank of a non-member observer state provoked vivid discussions on political and legal aspects of the Palestinian statehood. Following this resolution the government bodies of the Palestinian Authority in official documents refer to their entity as “the State of Palestine”, however many countries seem to decisively oppose to consider the above-mentioned resolution as the basis for recognition of the Palestinian statehood. In their opinion, only on condition of fulfilling the commonly acknowledged criteria of statehood, i.e. assuming the full control as well as exercising an independent power (including capacity to maintain foreign relations) over the population within the specified territory under its control may Palestine be recognized as a sovereign state. Taking the position that the above criteria represent the level of legitimacy of the state-building process and are regarded as constituents of the definition of a state under the international law, the author of the present thesis has undertaken to find the answer to the question whether Palestine has complete control over the specified territory, whether Palestinians form a nation and whether the Palestinian authorities can be regarded as effective and capable of representing its entity in international relations. This article makes the point that a decision on recognition of a geopolitical entity as a state is more political than legal in character and it remains the matter of discretional decision of other members of international community, therefore the process of recognition of Palestine depends, de facto, on current trends in international politics and the balance of forces in the international arena.

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Zintegrowane zarządzanie granicami 2.0. Wpływ zasady dzielonej odpowiedzialności na pozycję krajowych i unijnych organów wykonawczych

Zintegrowane zarządzanie granicami 2.0. Wpływ zasady dzielonej odpowiedzialności na pozycję krajowych i unijnych organów wykonawczych

Author(s): Agnieszka Parol / Language(s): Polish Issue: 7/2016

The article addresses the Integrated Border Management System of the European Union in the context of the regulation on the European Border and Coast Guard (adopted in September 2016). The reason for the analysis is the wide impact of the adopted changes on executive powers in the Area of Freedom, Security and Justice. Firstly, the regulation establishes European Border and Coast Guard. It does not materialize the European Commission’s plans to set up a European Border Guard, which would be “a full-fledged multinational force” but constitutes the next step towards achieving this goal. Secondly, it extends Frontex’s competences and strengthens its mandate. This causes that the EU agency holds co-responsibility for the control and protection of the EU’s external borders. Thirdly, it sets the procedure of “qualified cooperation,” which strongly introduces a Member State to cooperation with Frontex in the event of an emergency situation at the borders. Refusal of the cooperation leads to the reintroduction of controls at internal borders. These changes are based on the principle of shared responsibility, which was introduced by the regulation. The principle affects how the executive powers at the external borders are exercised. It replaces the exclusive responsibility of the authorities of the Member States for the control and protection of the EU’s external borders and extends cooperation between the national and the EU authorities. For the moment, the leading position remains with national authorities. Due to the specific nature of the IBM, which enters the sovereignty of the Member States, special care to ensure compliance with treaties of new solutions is required. In particular, derogation clauses should be taken into account. In general, the regulation on the European Border and Coast Guard in the present shape does not violate treaty provisions.

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Wybrane instrumenty prawne regulujące instytucję azylu w prawodawstwie Unii Europejskiej

Wybrane instrumenty prawne regulujące instytucję azylu w prawodawstwie Unii Europejskiej

Author(s): Katarzyna Broma,Paweł Szewczyk / Language(s): Polish Issue: 7/2016

Granting asylum is the competence of every sovereign state. However, members of the European Union have the right to transfer a part of their own powers to the EU, which is reflected in primary legal acts. Nevertheless, granting asylum is not an exclusive right of the EU, but rather a competence shared with all Member States. The EU’s area of freedom, security and justice has been regulated within the framework of the European Union non-exclusive competences, including a com¬mon policy in the field of asylum. As part of their remit, the EU authorities issue acts of secondary legislation regarding the institution of asylum, while the Court of Justice of the European Union outlines national practice in case of interpretative difficulties concerning primary and secondary legislation. Finally, the ever-chang¬ing social and migration situation, as well as newly emerging secondary legal acts, have caused a rupture in the common asylum policy of EU Member States.

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Reakcje środowiska akademickich na ustawę lustracyjną

Reakcje środowiska akademickich na ustawę lustracyjną

Author(s): Krzysztof Kędziora / Language(s): Polish Issue: 27/2015

The article describes a response from academic communities – both collegial bodies and individuals – to so-called lustration bill. Opponents and supporters of the lustration bill present both formal and legal arguments, and moral ones. The aim of the article is to an adequate depiction of the response from academic communities to the lustration bill.

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Bugarska na putu ka Evropskoj uniji – o izmeni bugarskog Ustava od 24. Septembra 2003. –

Author(s): Branko Pavlica / Language(s): Serbian Issue: 1/2010

Taking into consideration the continuous complaints for corruption, organised crime and „the existence of the state not based on law“ the EU Commission required additional reforms of judiciary (transparency, openness, rendering of an accounting). Therefore, Sofia – being concerned that Brussels could stipulate the Bulgarian accession to EU by applying the so-called protection clauses – rapidly took on to carry out the Constitution reform. Actually, for twelve years the Constitution of the Republic of Bulgaria had remained “untouchable” for the fear that it could provoke serious reactions due to different positions on the reform. However, after the European Commission had criticised “the state of the Bulgarian judiciary” and since the accession to NATO was soon to come, there was no other choice. Therefore, it adopted amendments in the following sequence: the first amendment – on 23 February 2003, the second amendment – on 25 February 2005 and the third amendment – on 30 March 2006. The immediate cause for the adoption of the fourth constitutional amendment was, among other things, the Article 129, paragraph 4, which had been introduced by the third reform of 30 March 2006. The European Commission realised that the division of power was jeopardised, what also affected the independence of the judiciary. This was because the President of the state was authorised by the parliament to dismiss three supreme magistrates (the President of the Supreme Court of Cassation, the President of the Supreme Constitutional Court as well as the General State Prosecutor) in the case related to the Article 128 paragraph 4 point 5. As early as on 2 February 2007 the Assembly adopted the fourth amendment to the Constitution of the Republic of Bulgaria with 129 votes for, 28 against (with 6 abstentions), thus fulfilling some requests of the European Commission. As during the consultations on the new Law on Constitutional Court the parliament requested to make amendments that would “additionally change the Constitution” the fifth amendment is likely be adopted afterwards.

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Amerika i Rim – ima li osnova za analogiju?

Author(s): Predrag Vukasović / Language(s): Serbian Issue: 1/2008

It is one of the common places of the current anti-American thinking that the American imperialism can be compared with the Roman policy in Mediterranean basin in the period of Roman Republic’s territorial expansion. In the other hand, the champions and adherents of America’s leadership in the contemporary world like to draw an analogy between the civilizing influence of Rome in Antiquity and that of America today. The purpose of this article is to explore what is the historical foundation of the said analogy. The proposed research must necessarily be not only incomplete, but fragmentary: a comprehensive answer needs decades of meticulous studies. Author consciously limits his ambition only to the most important, outstanding and conspicuous traits of the explored analogy. He also try to take into account both similarities and differences between two historical phenomena divided by two millennia of uninterrupted historical experience. The oversight of differences leads us to fatalistic conviction that the human history is “the eternal return of the same”; the denial of sim01ilarities would destroy the possibility of understanding the past and its relevance for future generations. There are three possible fields of comparison between USA and Roman Republic: - their respective cultural backgrounds, the content and extent of the links tying the Roman and American cultures with the older and stronger cultures that created them, the Greek and Western European cultures respectively; - the constitutional forms of USA and Roman Republic and possible Roman influences on the American constitution-makers, and - The foreign policy of USA and Roman Republic and the role played by them in their respective worlds. The origins of distinct American civilization can be compared with the progressive development of the Ancient Rome. In both cases, the material, economic, political and military supremacy of USA and Rome owes much to the achievements of an older and spiritually stronger culture. But the direction into which the American and Roman cultures have moved is quite different: while Rome had been undergone ever increasing Hellenization, the rift that culturally separate America and West Europe becomes wider with years. Besides, the original position of two cultures are not identical: American culture had begun its development in the colonial era as an integral part of the early modern European culture, but Rome was a distinct, non-Hellenic, even “barbaric” culture in the first centuries of her history However, the considerable similarity in the respective cultural positions of Rome and America must not be overseen. Both peoples have an ambiguous attitude towards their teachers: they simultaneously despise their political and military ineffectiveness and admire their arts or use their sciences. The constitutional forms of USA are very far from the Roman Republic’s institutions. First of all, USA is a federation; Roman Republic was, despite a considerable degree of municipal autonomy, a unitary state. All American political and legal traditions are founded on the Anglo-Saxon legacy, very diferent from the legal reasoning rooted at the concepts and standards of Roman law, common to the European countries except Britain. If there are some traces of Roman influences in the USA Constitution, they must be attributed to the gen eral intellectual atmosphere of 18th century, to the period of Classicism in art and literature, as well as to the rationalist re-evaluation of the Classical Antiquity’s political heritage. When the founding fathers had written American Constitution, Roman Republic was the only example of a republican government transcending the city-stste’s framework. It is rather Polypus’ interpretation of the Roman Constitution’s mixed nature balancing the advantages and shortcomings of a monarchy, aristocracy and democracy, than the real, historical and empirical form of Roman government, which had inspired the American state-makers. Roman political and legal ideas were leaving a deeper and more permanent imprint on the subsequent French Revolution and Napoleon’s Code civil. Finally, the foreign policies have given the most fruitful, perhaps the only real basis for drawing the analogy between USA and Roman Republic. In order to make this analogy possible, the author has previously tried to define the “world” in which Rome had played the role comparable with that of USA in the shrinking and the globalized world of today; He finds that the respective processes of Mediterranean’s Hellenization and Romanization have fundamentally analogous causes and consequences with that of contemporary globalization. Rome, it is true, didn’t have an isolationist phase in her foreign policy; the Republic’s; noninvolvement in the main currents of Mediterranean international politics was not the result of her deliberate determination to remain untouched by conflicts devastating the surrounding countries, feature that characterized the USA foreign policy from Washington’s Farewell Address to the Spanish-American War in 1898. The era of World Wars have found is incomplete Roman counterpart in the First and Second Punic wars, although no Punic War had relative dimensions (in respect to the extent of Ancient Mediterranean) that can be compared with the Second World War. But American global involvement in the post-1945 world has an undeniable Roman parallel in Republic’s conquests after Second Punic War. The author traces these parallels both in its political and economic causes and in its ideological justifications.

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Ustavni konsensus u postkomunizmu: Slučaj Srbija

Ustavni konsensus u postkomunizmu: Slučaj Srbija

Author(s): Milan Podunavac / Language(s): Serbian Issue: 19-20/2002

In the light of the dramatic events in political society in Serbia the author examines the most basic question of political theory of constitutionalism, i.e. how is it posible for a revolution to culminate in a viable form of constitutional government.

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