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A Common Good in Doctrinal and Legal Terms. An Attempt at a Holistic Approach

A Common Good in Doctrinal and Legal Terms. An Attempt at a Holistic Approach

Author(s): Paweł Sydor / Language(s): English Issue: 9.1/2018

The aim of the article is to present two opposing visions of the common good (value) in the history of political and legal doctrines. Such outline of extreme positions allows the author to assess the wide range of doctrinal differences in particular epochs and to impose the principles of the rule of law expressed in art. 2 of the Constitution in the historical tradition derived from the ancient republicanism and political and legal thought of the Middle Ages and which absorbs the postulates of modern liberalism, republicanism and conservatism, based on the democratic model.

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Prawo odmowy zeznań przez duchownego w polskiej i niemieckiej procedurze cywilnej – analiza prawno-porównawcza

Prawo odmowy zeznań przez duchownego w polskiej i niemieckiej procedurze cywilnej – analiza prawno-porównawcza

Author(s): Marek Strzała / Language(s): Polish Issue: 21/2018

Section 261 para. 2 of the Polish Code of Civil Procedure provides for the possibility to refuse testimony by a clergyman regarding facts revealed to him during confession. This regulation differs from other Polish legal procedures, which usually treat such facts as inadmissible evidence. There is an ongoing debate in the doctrine about changing the rules of the civil procedure, which, as many authors argue, does not properly protect the clergy and people who reveal information to them. Given that, a point of reference can be sought in foreign regulations, which may provide ready solutions or indicate the right direction of normative changes as well as shed some light on some potential problems with the interpretation and application of regulations already introduced in other countries. This article aims to present the regulations of the German Zivilprozessordnung concerning the clergyman’s right to refuse testimony and to compare them with the current provisions of the Polish Code of Civil Procedure. The legal-comparative analysis concerns the model of legal regulation of the right to refuse testimony by clergymen, the subjective and objective scope of this right, the duty of the judge to advise the clergyman of his rights, the admissibility of the clergyman’s testimony and the issue of protecting information revealed to clergymen outside his pastoral service.

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Wpływ prawodawstwa okresu Polski Ludowej na przepisy prawa wyznaniowego III Rzeczypospolitej Polskiej – wybrane zagadnienia

Wpływ prawodawstwa okresu Polski Ludowej na przepisy prawa wyznaniowego III Rzeczypospolitej Polskiej – wybrane zagadnienia

Author(s): Katarzyna Krzysztofek-Strzała / Language(s): Polish Issue: 21/2018

The period of the Polish People’s Republic is known as the time when the law was an instrument in the hands of the authorities, and human and citizens’ rights were only illusory. The specificity of the law during this period resulted from its being interpreted through the Marxist-Leninist ideology commonly accepted by the political decision-makers. Although the Constitution of 1952 seemed to guarantee the freedom of conscience and religion to citizens and the freedom of fulfilling religious functions to religious communities, the interpretation of the Constitution led to completely different conclusions. However, in some parts the legislation of 1944-1989 was suitable for the incorporation into the new realities of the free Poland after 1989. This incorporation often required making adjustments and adapting it to the Third Republic of Poland ruled by law; sometimes it also required rejecting an unfair law that did not guarantee the freedom of conscience and religion ensured in the Constitution of 1997. One can also point out some provisions that were a dead letter of the law during the time of the Polish People’s Republic and were only realized in the free Poland. But the fact that not all the legal solutions from 1944-1989 were rejected is an expression of the will to maintain the continuity of the law and to single out those legal acts that after the political transformation could remain in force as acts that meet the standards of the state of law.

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IURISDICTIO EPISCOPALIS МЕЖДУ ИМПЕРИЯТА И CHRISTIANITAS: ИСТОРИКО-КАНОНИЧЕСКИ АНАЛИЗ
НА ПОЯВАТА НА POTESTAS SACRA

IURISDICTIO EPISCOPALIS МЕЖДУ ИМПЕРИЯТА И CHRISTIANITAS: ИСТОРИКО-КАНОНИЧЕСКИ АНАЛИЗ НА ПОЯВАТА НА POTESTAS SACRA

Author(s): Javier Belda Iniesta / Language(s): Bulgarian Issue: 2/2015

The emergence of Christianity in Roman society meant a necessary process of adaptation of both realities that coexisted in a common political and cultural space. Apart from the first misunderstandings on the part of each - crystallized in groups that guessed the imminent arrival, on the one hand, and the periodic violent reactions against this strange group of followers of Christ, executed by another - the truth is that both of them little by little adapted to a coexistence to which they were forced by the common space they shared. Christians, already of very diverse origin socially, geographically and religiously, had to take little by little awareness of their own identity, building over the years an internal organization that had to respond not only to the needs of this primitive religious society within the gigantic political framework of the Empire, but also to a series of circumstances that were presented to them within their own evolution as a particular human group, with a clear mission - the proclamation of the Gospel. Among these organizational needs was the need for administration of justice, necessary in every society, and clearly articulated in the Roman world, but absolutely remote from the evangelical principles that were supposed to guide all action of Christians. Thus begins the difficult task of building an organizational system capable of responding to the needs of the community and the message of Jesus, first carrying out this task within the Empire and later under its protection. This, however, does not suppose abandoning the religious authority due to the established political power, but rather a complicated combination between obedience to the authorities and application ad intra of a legal system according to the condition of believers, whose starting point was, without doubt, the Gospel. Of course, when both visions collided, the one born of faith was supposed to prevail but, as far as possible, the two were combined. This article aims to show the relationships maintained by the ecclesiastical authority as its power developed, starting with the exit from hiding until the fall of the Empire and the beginning of the Medieval era. We must be clear that concepts such as potestas, iurisdictio or auctoritas were still in a first stage of gestation, not only for the temporal power, which to a certain extent preserves the imperial heritage, but also for a Church that has just left the clandestine, and must coexist with an authority that is becoming aware of itself.

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CLAUSULA REBUS SIC STANTIBUS И HARDSHIP: АСПЕКТИ НА РАЗВИТИЕТО НА РОЛЯТА НА СЪДИЯТА

CLAUSULA REBUS SIC STANTIBUS И HARDSHIP: АСПЕКТИ НА РАЗВИТИЕТО НА РОЛЯТА НА СЪДИЯТА

Author(s): Pascal Pichonnaz / Language(s): Bulgarian Issue: 2/2015

Changed circumstances between conclusion of a contract and the time foreseen for performance may render performance much more burdensome for the debtor. The approaches in Civil law and in Common law differ fundamentally as to whether the debtor may be relieved from his obligation to perform or, as it is the case for general principles of contract law, as to a right to renegotiate the contract. In Civil law, the question of changed circumstances and their impact on a promise has crystalized around the doctrine of clausula rebus sic stantibus, which was initially understood as an implied precondition. In Common law, hardship would have no impact on the duty to perform, unless it amounts to frustration of contract. This article presents the historical roots of both approaches and shows the fundamental differences between them.

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Transitional Justice and the Council of Europe – A Special Emphasis on the Sejdic and Finci Case

Author(s): Adela Kabrtova / Language(s): English Issue: 2/2011

The aim of this essay is to show the importance of the Council of Europe (CoE) and its mechanisms during transitional justice processes in European countries. The CoE can provide a broad measure of what might be called transitional justice assistance to build up a new democratic order, encompassing rule of law, democracy and human rights standards. There will be a special emphasis on Bosnia and Herzegovina (BiH), specifically on one case that appeared before the European Court of Human Rights – Sejdic and Finci v. Bosnia and Herzegovina. In this case it will be shown how different mechanisms of the CoE, the Venice Commission, the Committee of Ministers and primarily the European Convention on Human Rights (Convention) and its ―watchdog the European Court of Human Rights (ECHR) can identify violations of human rights and can actively set up standards of human rights, rule of law and democracy.

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Lustration Law in Postcommunist Romania Case Study: Council for the Study of Security Archives

Author(s): Cristian George Gherasim / Language(s): English Issue: 1/2010

After the demise of communism the question of ethical and juridical responsibility arose. Romanian society seems to be reluctant to sanction those with criminal culpability for the wrongdoings of the former communist regime. Also, when trying to overcome this reluctance, policy makers were facing another dilemma as Romania‘s secret police files are used more to fight current political battles rather than to expiate the crimes of the totalitarian regime. A sample of the moral cleansing mechanisms, use for less than moral political purposes, is offered by the 2000 Romanian presidential elections and The Council for the Study of Security Archives ambiguous actions towards the leading presidential candidate, Ion Iliescu. Instead of erring on the side of caution and employing materials and evidence from a variety of sources, the Council set a dangerous precedent of sloppy research and contradictory declarations, forgetting that any moral reform must start within the Council itself. In 2008 The Romanian Constitutional Court ruled against the laws governing the functioning of the Council, declaring them unconstitutional. A major setback, the constitutional aspect has raised questions about the decisions previously taken by the Council. Normally, such decisions would lack relevance as they were made according to a law that acted against the state constitution.

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Bosnia and Herzegovina from Dayton to the European Union

Author(s): Nicola Sibona / Language(s): English Issue: 1/2010

The present paper aims at describing the need for a reform of the Dayton Constitution, given the prospective accession of BiH to the European Union. Notwithstanding the signing in June 2008 of the Stabilization and Association Agreement with the European Union, the country is still threatened in its unity and in its political life by ethnic nationalism; moreover, its inefficient and cumbersome institutional framework requires heavy intervention from the international community in order to function, through the Office of the High Representative, thereby impeding the development of proper self-government. The only possible solution which would not endanger the unity of the state seems to consist in a federalist choice, which could go beyond the ―institutional racism enacted by the Dayton Constitution, without risking jeopardizing the considerable autonomy enjoyed by the cantons and entities. Such a solution has to be reached with the utmost urgency, because an efficient state based on European perspectives and values is not an overly ambitious goal, which could be pursued once the political situation is finally stabilized, but it rather represents one essential condition to allow Bosnian society to develop, rejecting nationalism and ethnic hatred.

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ЗДРАВООХРАНЕНИЕ – КАК ВАЖНЫЙ ЭЛЕМЕНТ СОЦИАЛЬНОЙ ПОЛИТИКИ: ПРОБЛЕМЫ И ПЕРСПЕКТИВЫ РАЗВИТИЯ В ПРИДНЕСТРОВЬЕ

ЗДРАВООХРАНЕНИЕ – КАК ВАЖНЫЙ ЭЛЕМЕНТ СОЦИАЛЬНОЙ ПОЛИТИКИ: ПРОБЛЕМЫ И ПЕРСПЕКТИВЫ РАЗВИТИЯ В ПРИДНЕСТРОВЬЕ

Author(s): Veaceslav Popescul / Language(s): Russian Issue: 1/2018

Political instability and economic recession impede the development of social reforms and, ultimately, adversely affect the well-being of the population on both banks of the Dniester. Health care reform in Transdniestria requires operational. It is important to determine which medical services should be provided to the population free of charge within the guaranteed minimum of medical care, and for which you will have to pay, taking into account the current level of economic development and budget financing.Based on the reading, it is clear that the leadership of Transnistria itself solves the most acute problems in health care, not relying on the help of Western funds, and representatives of the civil society of Transnistria see absolutely different way to which available European funds to solve which problems and assistance to which category of Transnistrian population.

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GREAT UNION CONSTITUTIONALISM. POLITICAL AND LEGAL ASPECTS

GREAT UNION CONSTITUTIONALISM. POLITICAL AND LEGAL ASPECTS

Author(s): Marius Andreescu,Andra Nicoleta Puran / Language(s): English Issue: 5/2018

The activity of some great politicians and statesmen of the time was of particular importance for the achievement of the Great Union in 1918. A remarkable personality of that time is Ion I.C. Brătianu. In this study we recall the great politician and statesman and in particular his major contribution to the adoption of the Constitution of 1923 which conferred constitutional significance to the great Union; he also contributed to the legislation adopted on the basis of the Fundamental Law from 1923 which aligned the Romanian state to the European states. The study outlines the historical context and content of the Declarations adopted in 1918 by which the Romanian provinces under foreign rule joined the Kingdom of Romania. We consider that these documents are legal and political acts of constitutional value that are important for Romanian constitutionalism.

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The Premises of Appearance of Constitutionalism in Moldavia

The Premises of Appearance of Constitutionalism in Moldavia

Author(s): Loredana Maria Ilin-Grozoiu / Language(s): English Issue: 20/2008

The subsequent article deals with presenting the appearance of modern juridical institutions in Moldavia in the Phanariot epoch. The article presents some projects, memoirs, also styled “constitutions”, which include some principles of national modern constitutionalism. The conclusion is that due to the content of the articles, their grouping and their presentation, these memoirs may be considered a project of constitution.

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THE IDEA OF IUS, AEQUITAS AND IUSTITIA ASSOCIATED WITH THE IDEA OF THE USEFUL AND THE CONVENIENT:
COMMON UTILITY

THE IDEA OF IUS, AEQUITAS AND IUSTITIA ASSOCIATED WITH THE IDEA OF THE USEFUL AND THE CONVENIENT: COMMON UTILITY

Author(s): Juan M. Alburquerque / Language(s): English Issue: 2/2018

The iustitia, as Cicero affirmed, unique virtue, lady and queen of the virtues; Justice as a disposition of the spirit that respects the common utility. The Roman conceptions in Cicero's time reflect a good part of the basic principles that prevail with more frequency: objectivity of the legal order, justice, utility, equity, honesty, lawfulness, etc., authentic reference to a clear idea of utilitas. In this sense, it is analyzed in the present study: Utilitas omnium ↔ rei publicae causae; Utilitas publica ↔ utilitas omnium; Utilitas publica, from the perspective of priority interest that favors the State itself; Justinian and the pretended and possible return to the utilitarian conceptions publica ↔utilitas communis; Utilitas publishes: and a peculiar assumption, among others, extracted from the interdictal context in which public interest, common interest and private interest are combined.

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HUMANITAS IMPACTING IUS – THE CURIOUS CASE OF JUSTINIAN’S DIGEST. A LECTURE BETWEEN THE LINES OF HISTORY

HUMANITAS IMPACTING IUS – THE CURIOUS CASE OF JUSTINIAN’S DIGEST. A LECTURE BETWEEN THE LINES OF HISTORY

Author(s): Ionela Cuciureanu / Language(s): English Issue: 2/2018

A society in decline, an emperor who has the ambition to maintain the Empire on the top of the civilized world and a legal system that seems to lose its unity soon. These are, in an over – synthetized presentation, the conditions where the masterpiece arises. The information we have regarding this work are impressive, although not enough to scatter all the fog that surrounds it: 2 000 books (with a total of 3 billion lines) studied by the compilers – that is twice the volume of the Digest after it has been edited, 15 famous Law professors (under the guidance of Tribonian, “quaestor sacri palati” ) that excerpted the original works, a large amount of practical cases, mirroring the avatars of the Roman world – and all these in only three years. The complexity of the work, as well as the obscurity that surrounds some aspects of the process of its creation have given birth to various controversies between scholars. Consequently, should we be interested in the study of the Digest, we cannot ignore controversial issues as the theories regarding the existence of the so – called Predigests, and the different reasons that lay at their foundation. Moreover, the practical cases that the jurists give as examples to justify their sentences (and the sentences in themselves) are a source for the principles used nowadays in the legal system. Furthermore, the two ways in which the original excerpts of the classical authors were modified by the compilers – the interpolations and the glosses – also present a particular interest in the global analysis of the text. All things considered, it can be stated that the Digest represent one of Justinian’s key achievements, one of the works that crucially influenced the evolution of the humanity. But beyond their practical utility, they remain the symbol of the collective soul of a people that concurred not only land, but principles, not only by sword, but by the depth of spirit and by the greatness of culture.

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PROCJENA TROŠKOVA PRILAGODBE SPOLA: Preporuke za unapređenje pravnog i medicinskog pristupa transrodnim osobama u Bosni i Hercegovini

PROCJENA TROŠKOVA PRILAGODBE SPOLA: Preporuke za unapređenje pravnog i medicinskog pristupa transrodnim osobama u Bosni i Hercegovini

Author(s): Liam Isić / Language(s): Bosnian Issue: 36/2018

Ova publikacija ima za cilj da analizira položaj transrodnih osoba u bosanskohercegovačkom društvu, te da procjeni troškove prilagodbe spola i da preporuke za unapređenje pravnog i medicinskog pristupa transrodnim osobama u Bosni i Hercegovini. Na samom uvodu izložen je osnovni uvid u probleme i prepreke sa kojima se transrodne osobe suočavaju, a koje se odnose na nepostojanost ili neuređenost zakona, iz čega proizilazi problem neadekvatne zdravstvene zaštite. Nakon identifikovanja problema u domenu pravnog i medicinskog pristupa, iznijeti su konkretni razlozi zašto je zdravstvena zaštita transrodnim osobama potrebna, i koji su koraci u zdravstvu nužni kako bi osoba mogla započeti s procesom prilagodbe spola. U publikaciji su, također, iznesene činjenice koje se odnose na komplikovanu proceduru prilagodbe spola u BiH, te kako proces prilagodbe spola izgleda u susjednim državama (Srbiji i Hrvatskoj). Kako je po svemu navedenom jasno da se trenutačnom pravnom i medicinskom praksom diskriminiraju transrodne osobe, bilo je potrebno naglasiti da ovakva diskriminatorna praksa nije usklađena s međunarodnim standardima, pa samim tim ni Ustavom BiH, u kojem se navodi da se prava i slobode koji su predviđeni u Evropskoj konvenciji za zaštitu ljudskih prava i osnovnih sloboda i u njenim protokolima direktno primjenjuju u Bosni i Hercegovini, te da ovi akti imaju prioritet nad svim ostalim zakonima. U nastavku publikacije predstavljena su pitanja koja su dopisom dostavljena državnim i privatnim klinikama, kao i zavodima zdravstvenog osiguranja, o pružanju zdravstvene zaštite transrodnim osobama i pokrivanju troškova procesa prilagodbe spola, kao i odgovori ustanova i institucija na poslani upit. Na osnovu odgovora ustanova i intitucija potvrđen je nepovoljan položaj transrodnih osoba u bosanskohercegovačkom društvu, te je zbog toga u daljem tekstu bilo od iznimne važnosti da se procjene troškovi prilagodbe spola u BiH, Srbiji i Hrvatskoj, i da se daju preporuke za unapređenje pravnog i medicinskog pristupa transrodnim osobama u Bosni i Hercegovini.

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Nasilje u porodici nad LGBTI osobama: analiza stanja i preporuke

Nasilje u porodici nad LGBTI osobama: analiza stanja i preporuke

Author(s): Dalila Bašić,Amina Dizdar / Language(s): Bosnian Issue: 39/2018

LGBTI osobe su izložene konstantnoj diskriminaciji u svim oblastima života: sloboda okupljanja, zdravlje, obrazovanje, pravo na poštivanje privatnog i porodičnog života, sport, itd. Naročit problem predstavlja nasilje, kako fizičko tako i psihičko, s kojim se suočavaju pripadnici_e ove populacije unutar svojih porodica. Cilj ove publikacije jeste analiza stanja zaštite LGBTI osoba od porodičnog nasilja. Kroz rad navodimo kojim vrstama nasilja su najčešće podvrgnute LGBTI osobe, te koji je procenat LGBTI osoba koje su doživjele nasilje unutar svojih porodica, ko su najčešći_e počinitelji_ce nasilja i kakve su posljedice za žrtve koje su pretrpjele nasilje. Izvršile smo i analize relevantnih dokumenata, a pored toga obavile smo i intervjue s predstavnicima_ ama socijalnih službi, sigurnosnih agencija, centara za mentalno zdravlje i sigurne kuće u Kantonu Sarajevo. Izvršile smo i anketno ispitivanje LGBTI zajednice, te provele dva intervjua s osobama koje su bile žrtve porodičnog nasilja zbog svog rodnog identiteta i/ili seksualne orijentacije. Osvrnule smo se i na međunarodni i domaći institucionalni okvir u oblasti zaštite od nasilja u porodici, kroz koji se uočava nedostatak adekvatnih mehanizama za zaštitu LGBTI djece od nasilja koje najčešće vrše roditelji ili braća i sestre. Na kraju publikacije navodimo nekoliko preporuka koje je neophodno implementirati kako bi se poboljšao stepen zaštite LGBTI žrtava od porodičnog nasilja i suzbila diskriminacija zbog seksualne orijentacije i/ili rodnog identiteta.

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Domestic Violence Experienced by LGBTI Persons: Analysis and Recommendations

Domestic Violence Experienced by LGBTI Persons: Analysis and Recommendations

Author(s): Dalila Bašić,Amina Dizdar / Language(s): English Issue: 39/2018

(English edition) LGBTI persons are exposed to continuous discrimination in all spheres of life: freedom of assembly, health, education, right to respect of private and family life, in sports etc. A specific problem this population faces inside their families is violence, both physical and psychological. The purpose of this publication is to provide an analysis of the state of protection of LGBTI persons from domestic violence. The paper presents the types of violence LGBTI persons are most often subjected to, as well as the percentages of LGBTI persons who have experienced violence in their families, the most common perpetrators of violence and the consequences for the victims of violence. We also analysed the relevant documents, and conducted interviews with representatives of social services, security agencies, mental health centres and safe houses in Sarajevo Canton. We surveyed the LGBTI community and carried out two interviews with persons who experience domestic violence because of their gender identity and/or sexual orientation. We took into account the international and domestic institutional framework relevant to protection from domestic violence which indicates a lack of adequate mechanisms to protect LGBTI children from violence committed most often by parents or siblings. In the last part, we present a number of recommendations to be implemented in order to improve the level of protection of LGBTI domestic violence victims and combat discrimination on the grounds of sexual orientation and/or gender identity.

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POLOŽAJ BOSNE I HERCEGOVINE ZA VRIJEME AUSTROUGARSKE UPRAVE (DRŽAVNOPRAVNI ODNOSI)

POLOŽAJ BOSNE I HERCEGOVINE ZA VRIJEME AUSTROUGARSKE UPRAVE (DRŽAVNOPRAVNI ODNOSI)

Author(s): Hamdija Kapidžić / Language(s): Bosnian Issue: 4/1968

The international position of Bosnia and Herzegovina remained undefined until annexion of 1908 and was grounded in relation to Austria and Turkey on the 25th Article of the Berlin Treaty of 1878 and the Austro-Hungarian — Turkish convention of April 21, 1879. The endeavours of Austro-Hungary were directed towards recognition of her colonial possession and transformation of occupation into annexion. Austrian difficulties in bringing about annexion did not originate so much from the world powers as from the inner relationships within the Monarchy itself. Relationships based on international law gradually gave way to the relationships based on state law. The issue of turning occupation into annexion was dealt with by the Dual Government several times, in June and October 1882, in August 189G, and in 1877 and finally on the eve of annexion, 1908. The Monarchy as a whole and its constituent parts, Austria and Hungary, considered that in the new possession they should have a colony of its kind which was to make up for the losses in Italy and Germany. The position of Bosnia and Herzegovina in relation to Monarchy as well as to Austria and Hungary as her administrative halves was regulated by the law which was passed in December 1879 including Bosnia and Herzegovina into the commercial system of the Monarchy, and by the law of February 1880, the so called »Bosnian Law«. The latter regulated a provisory which guaranteed Austria and Hungary ingerencies to all affairs of Bosnia and Herzegovina. By this state of affairs were not satisfied Hungarians in the first place, who endeavoured to get Bosnia and Herzegovina exclusively for themselves, or at least one part of the new possession.

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O PROBLEMU UTVRĐIVANJA I OZAKONJENJA OSNOVNIH PRINCIPA UPRAVLJANJA BOSNOM I HERCEGOVINOM NA POČETKU AUSTRO-UGARSKE OKUPACIJE

O PROBLEMU UTVRĐIVANJA I OZAKONJENJA OSNOVNIH PRINCIPA UPRAVLJANJA BOSNOM I HERCEGOVINOM NA POČETKU AUSTRO-UGARSKE OKUPACIJE

Author(s): Dževad Juzbašić / Language(s): Bosnian Issue: 4/1968

The author has given a short survey of the controversies concerning the issue of governing Bosnia and Herzegovina in the course of the prolonged talks in the years 1878 and 1879 in which the emperor, the common ministers, and the representatives of the Austrian and the Hungarian governments took part. While the emperor, backed up by the Austrian Government, contended that there was no need for any special legislative act for ruling of Bosnia and Herzegovina, rejecting all ingerencies of legislation except in money matters, the Hungarian Government was categorically against leaving it exclusively to the Crown to govern Bosnia without any constitutional responsibilities taken over by ministers. The Hungarian Government, which was against widening of the domain of common organs of the Monarchy, was very cautious from the very beginning with the issue of Bosnian-Herzegovinian rule as a new function of the Common Ministry, as it was pregnant with the latent danger of destroying the delicate balance in the dualist system. That is the reason why count Tisza demanded legal guarantee which would, in accordance with the principles formulated in the Treaty of 1867, secure the Hungarian interests in influence and prevent possible undesired for channges. The issue of governing Bosnia and Herzegovina posed, soon after occupation, the problem not only of consituttionalism in both imperial states, but it also threatened to seriously jeopardize the Treaty of 1867 itself. The compromise which was finally arrived at by passing the Law of Governing Bosnia and Herzegovina in 1880, meant complete abandonment on the part of the emperor and the Austrian Government of the previous claims and full affirmation of the basic views of the Hungarian Government. The Law was characterized 6y a certain agreement of widening the circle of common affairs, and at the same t.me it secured equal rights of Austria and Hungary in the realm of Bosnian rule. Although it came into existence as a provisory solution, the Law remained in force until the fall of Austro-Hungary due to impotence of dualism to solve, within the framework of Monarchy, the question of the position of Bosnia and Herzegovina from the point of view of state law.

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Historical Events in Symbols and the Freedom of Expression: The Contemporary Constitutional Debate in Croatia

Historical Events in Symbols and the Freedom of Expression: The Contemporary Constitutional Debate in Croatia

Author(s): Đorđe Gardašević / Language(s): English Issue: 04/2018

In the last few years, the Croatian Constitutional Court delivered several important decisions that significantly shaped interpretative approaches to constitutional guarantee on the freedom of expression in the specific context of the public use of some symbols with contested meanings. Such developments undoubtedly deserve attention, especially in terms of particular tools that the Court used in defining limits to free speech. The primary focus of this article is directed to the issue of whether the use of contested symbols in public may be covered by constitutional free expression guarantees, and be therefore treated as the case of balancing process between them and some opposed interests, or it should be subjected to stricter prohibitions, including their complete ban. For those purposes, I am first presenting the relevant case-law of the Croatian Constitutional Court and then the cases already decided in a similar fashion by the European Court for Human Rights. In the final part I am presenting some personal views on how a further structured approach to constitutional interpretation in cases involving the use of contested symbols with historical meanings could possibly be construed in the Croatian context.

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Sąd jak inkarnacja Ludu. Dekonstrukcja idei ludowego konstytucjonalizmu

Sąd jak inkarnacja Ludu. Dekonstrukcja idei ludowego konstytucjonalizmu

Author(s): Arkadiusz Barut / Language(s): Polish Issue: 2/2017

The subject of this article is an analysis of the idea of popular constitutionalism formulated in American philosophy of law. The starting point for the author is to identify the lack of legitimacy of contemporary government, and consequently its product – the positive law. The solution to this problem is supposed to be the idea of deliberative politics, based on social discussion and responsive law, created through the activity of many subjects, reflecting differentiated identities and ways of seeing the world. Deliberative politics and the responsiveness of law may, however, mean either a social reality, real discussion on law and politics, or a regulatory idea which the activities of elite bodies may advance. In American philosophy of law, the idea that popular constitutionalism was to respond to the postulate of legitimisation of the law by providing the public, and in particular, representatives of ’new social movements‘ such as ‘the civil rights movement‘ in the 1960s, direct participation in its creation and application, was an expression of concern also expressed by the authors of the left in the face of the law-making judgments of the Warren Court. The reformulation of this idea, made in particular by Bruce Ackerman, or its identification with American Supreme Court’s jurisprudence, is an expression of a change in understanding or even deconstruction of fundamental political and legal ideas such as representation and democracy. The consequence is the detachment of the concept of the People from a relation to a particular empirical community. This process appears as an aspect of the ideological phenomenon that goes beyond the American context, i.e. legitimacy, according to the criterion of realizing the slogan of protection of human rights, of elitist bodies. The examples are: the conceptions of Pierre Rosanvallon, and Dominique Rousseau. The author of the article points out the dangers of this movement. The radical shifting of the meaning of words causes irrationalisation of public discourse, and the legitmisation of the role of played by constitutional court as a defender of human rights can exclude all possibilities of the criticism of its lawmaking.

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