K otázce pozitivního a "nadpozitivního" práva

Author(s): Jan Spáčil / Language(s): Czech Issue: 3/1996

The article discusses the relationship between positive law and natural law, focusing on the concepts of constitutive power (pouvoir constituant) and constituted power (pouvoir constitué). It explores the idea that positive law, which is codified and enforced, is subordinate to natural law, which is seen as superior and fundamental. The author critiques the notion that natural law only becomes valid when it is codified into positive law, arguing instead that natural law should guide and correct positive law. The discussion includes references to various legal scholars and their views on the matter, emphasizing the complexity of integrating natural law into the legal system. The article also touches on the political implications of these legal theories, particularly in the context of democratic governance and the sovereignty of the people. The author concludes that while positive law is essential for order, it must be aligned with the higher principles of natural law to ensure justice and legitimacy.

Volební právo ČR z hlediska zkušeností voleb do Poslanenecké sněmovny

Author(s): Jan Filip / Language(s): Czech Issue: 3/1996

The article sums up practical experience from parliamentary elections and problems with the application of the new election law. First the author explains 16 main features of the electoral system. Then he weighs up the work of the proportional representation in the Czech conditions and focuses on various legal impefections relating to the principles of universal, equal, secret and direct suffrage. The most important problems were caused by the institution of election bails, treshold and the second scrutiny. Concerning the organizaton, the author describes the system of the election boards and some problems they had to face in their work. Last the author points aut that regardin to criminal law the legal protection of parliamentary elections was not sufficient.

Election campaign - comparison of legislation in the Czech Republic and Austria

Author(s): Reingard Riener-Hofer,Vojtěch Šimíček / Language(s): Czech Issue: 3/1996

The document compares the legal frameworks of election campaigns in the Czech Republic and Austria, focusing on their similarities and differences. It highlights the importance of fair and transparent election campaigns in democratic systems. The authors examine the historical context and current legal regulations governing elections in both countries. They discuss the role of political parties, the legal definitions of political and electoral parties, and the financial aspects of election campaigns. The document also addresses the legal provisions for direct democracy tools like referendums. The comparison reveals both commonalities and unique features in the legal approaches of the two countries. The authors emphasize the need for clear legal guidelines to ensure fair competition and public trust in the electoral process. They also point out the challenges and limitations of current regulations. The study aims to provide a comprehensive understanding of the legal aspects of election campaigns in these neighboring countries.

Konference Církev a stát 1996

Author(s): Michal Lamparter / Language(s): Czech Issue: 3/1996

The conference "Church and State 1996" held at Masaryk University focused on the relationship between churches and the state, addressing theoretical and practical issues. Key discussions included the restitution of church property, the role of religious institutions in modern society, and the interpretation of constitutional principles. Notable contributions came from legal experts and religious leaders, highlighting the importance of respecting property rights and the autonomy of religious organizations. The conference underscored the need for cooperation between the state and churches, especially in areas where their interests intersect. It also emphasized the significance of maintaining constitutional principles in contemporary society. The event concluded with positive feedback from participants, who appreciated the depth and relevance of the discussions. The conference's success was attributed to the diverse perspectives and the high level of academic and practical insights shared.

Rakouská praxe převádění a přechodu práva

Author(s): Heinz Schäffer / Language(s): Czech Issue: 1/1996

This paper is a translated part of the presentation presented in the framework of the inter-industry symposium, "Problems of transfer of rights in the Czech Republic, Hungary, Poland and the Slovak Republic", which took place in Prague on the 6th-7th October 1994. The paper has been edited. The document discusses the legal transitions and adaptations in Austria's constitutional and legal framework from the early 20th century to the post-World War II era. It highlights the establishment of the First Republic in 1918, the constitutional changes in 1920, and the impact of the 1934 authoritarian constitution. The document also covers the legal implications of Austria's annexation by Nazi Germany in 1938 and the subsequent restoration of Austrian sovereignty in 1945. It emphasizes the continuity and discontinuity in legal norms and the challenges of integrating various legal systems. The text provides detailed examples of legal transitions, including the incorporation of Burgenland and the adjustments made during the Second Republic. The focus is on the legal mechanisms used to ensure stability and continuity in Austria's legal order despite political upheavals.

Vědecká konference "Právny štát v histórií a súčasnosti"

Author(s): Miloš Večeřa / Language(s): Czech Issue: 1/1996

The scientific conference titled "Právní stát v historii a současnosti" was organized by the Institute of State and Law of the Slovak Academy of Sciences from October 4-6, 1995, in Piešťany. The conference gathered representatives from all law faculties in the Czech Republic, researchers from the Slovak and Czech Academies of Sciences, and other experts from various fields such as sociology, philosophy, and political science. Key presentations included Dr. Miloš Večeřa's analysis of the modern state as a legal and social state, Dr. Drahomíra Houbová's discussion on the legal effects of derogatory findings by the Constitutional Court of the Czech Republic, and Dr. Alexander Brostl's summary of the basic principles of the rule of law. The conference also featured discussions on the relationship between law and power, the role of judges in law-making, and the ethical aspects of legal practice. Over twenty contributions from the conference will be published in a special issue of the Slovak journal "Právny obzor."

Interes prawny jednostki samorządu terytorialnego w perspektywie tzw. rozporządzenia terytorialnego Rady Ministrów

Author(s): Joanna Bigos / Language(s): Polish Issue: 46 (5)/2023

The article adresses the legal interest of a unit of local government in the perspective of the so-called territorial regulation. The subjective scope of the considerations covers the municipality, poviat and self-governing voivodeship, which obliges to search for the sources of this interest in the organizational administrative law. This involves an examination of organizational norms, taking into account their construction and content specificity. The research assumption adopted leads to the conclusion that if a unit of local government is a structure or institution of organizational administrative law, then, in principle, its legal interest should be qualified in the same way and derive from the same source. The subject of consideration, however, is the special position of a unit of local government exposed to the reduction of the material substrate, and thus passive, in the context of the so-called territorial regulation. This regulation is a special legal act issued by the Council of Ministers, aiming to alter the boundaries of a unit of local government by creating, merging, dividing and abolishing, as well as determining the boundaries of municipalities and poviats, and changing the boundaries of voivodships. It is worth noting that the asymmetry in the position of units of local government, which manifests itself in this process, leads to a certain contradiction. This contradiction does not concern whether the unit of local government, whose material substrate is depleted, has a legal interest, but rather that it may not be entitled to any measures to protect its legal interest. Administrative law research methods have been applied to varying degrees in preparing the text, with the analytical-dogmatic method playing a dominant role. Source materials for writing the article include -legal acts, commentaries and court case law.

Ulga na dzieci – analiza konstrukcji prawnej oraz przegląd orzecznictwa sądowego

Author(s): Paweł Mańczyk,Dominika Wróblewska / Language(s): Polish Issue: 47 (1)/2024

The child tax credit is a tax relief under the Polish Personal Income Tax system. The purpose of this paper is to present this tax preference. Authors try to reach this objective by a detailed analysis of relevant legal provisions and jurisprudence. The main thesis of the article is that the child tax credit could have a positive impact on the birth rate in Poland provided that certain changes are introduced. In our conclusions we identify four shortcomings of the child tax credit:1) the child tax credit is available only for taxpayers who pay PIT on general terms; 2) the child tax credit for only one child depends on the income criterion which has not been indexed since 2013; 3) the value of the child tax credit is negligible and its amount has not changed since 2015; 4) taxpayers who care for unrelated, disabled and adult persons do not have the right to the child tax credit because of the tax authorities’ narrow understanding of the maintenance obligation. Authors formulate proposals for solutions of the said shortcomings. An analysis of legal acts, relevant literature and court decisions is the primary research method employed in this paper.

Црквена музика у светлости државног законодавства у Кнежевини и Краљевини Србији

Author(s): Vesna Sara Peno / Language(s): Serbian Issue: 12/2012

Offi cially, the Serbian Orthodox Church enjoyed a legally guaranteed status throughout the 19th century and Orthodox faith was considered to be prevalent both in the Principality of Serbia and in the Kingdom of Serbia. Nevertheless, after gaining its autonomy within the Constantinople Patriarchate in 1831 (under whose forced jurisdiction it had been since 1766), Knez Miloš’s attitude and a number of state provisions led to the unsparing diminishing of the Church authority together with frequent subversions of the Church Canon law. Introduction of the constitutional and legislative framework for the activities of the Serbian church, the enforcement of institutionalized mechanisms of control, and above all, direct interference of the State authorities in the elections of Church hierarchs and their activities, marked relations of the Church and the State in the 19th century. “Might makes right” rule was always on the State side. Investigations so far have least examined those provisions of the Government concerning general and theological education, in which church music also found its place. Presentation and analysis of the facts about the beginnings of organised music education go in favour of the existing fi ndings on concurrencies and discrepancies in two cultural policies – that of the State and the one of the Church. Attitudes of the Sovereign and the Government towards the educational process, so vital during the decades of the State formation, are also indicative for affi rmation of chanting practice and music art in general, as are (non-) confl icting interests between the prelates and distinguished public fi gures on one, and those in charge at the ministries on the other side. This paper presents all relevant government legislations regulating religious and music education at regular and theological schools. Attempts of the Church dignitaries and learned Serbian musicians to raise the level of music culture with the help of the State authorities are particularly emphasised. The emphasis was especially on the promotion of polyphonic church music and endeavours to print notated church chanting books. All relevant direct and indirect contributors to the expansion of church music are mentioned, among them especially music teachers at the Theological high school in Belgrade. Eventually, the paper points to those legal regulations which imposed on teachers certain duties related to everyday church services and reactions of the teachers to those regulations.

Was the Constitution of 3 May 1791 a Source of Inspiration for 19th Century Polish Constitutional Drafts? The Problem of Using Polish Constitutional Heritage in the Congress Kingdom of Poland in 1815 and 1831

Author(s): Michał Gałędek / Language(s): English Issue: Sp. Issue/2023

The article focuses on the problem of using legal heritage based on the example of the Constitution of 3 May 1791. This issue is considered in relation to two selected moments in the history of the Congress Kingdom of Poland – 1814/1815 and 1831. What connects them and, at the same time, makes them unique periods in the political and constitutional history of Polish territories under the partitions is the relative freedom the Polish elites had in their right to decide on the constitutional foundations of their own statehood. In 1814/1815, Prince Adam Jerzy Czartoryski was granted the emperor’s con- sent to prepare a draft which, after corrections, became the basis of the Constitutional Act granted by Alexander I on November 27, 1815. Similarly, in 1831, after the dethronement of Tsar Nicholas I, the insurgent elites were free to embark on an unfettered constitutional debate on the systemic reform of the state. Both in 1814/1815 and in 1831, Polish political and intellectual elites faced a dilemma as to whether the Constitution of 3 May could serve mainly as a monument to and symbol of Polish history, or whether it still had the potential to be directly applied; and if so, then to what extent and under what conditions? The publication is devoted to exploring the answers to these questions.

Političko-pravna osnova za status prekogranične euroregije Sandžak

Author(s): Sanjin Kodrić / Language(s): Bosnian Issue: 1/2022

As a rule, all modern states contain various territorial units within their borders, ranging from municipalities to regional and federal entities. There are two main types of state organization: unitary states, in which power is held by a single entity, and federations, in which power is distributed among multiple centers. The regional state is the third form of state organization, appearing as a hybrid of unitary and federal states. This form of state, commonly seen in Spain, Italy, and France, combines the positive aspects of unitary and federal systems while also addressing their weaknesses. The regional state is seen as the best solution for multi-ethnic states, such as those in the Balkans, as it allows for a high degree of decentralization while also maintaining unity and diversity. Regions within a regional state cannot possess the elements of statehood present in federal states, and can only handle matters specifically assigned to them by the constitution, with the possibility of additional competencies being delegated through laws. Regionalism, as a recent phenomenon, represents an enhancement of political and legal systems. In the scientific analysis of the Platform for Solving the Status of Bosniaks and the Status of the Sandžak Region, adopted in Novi Pazar on July 28, 2019, we will attempt to provide answers to numerous questions regarding the legal and political basis for realistic solutions for the Sandžak region, which has a large Bosniak population. These constitutional and theoretical solutions address the demands of the citizens of Sandžak, conveyed through their political representatives to the states of Serbia and Montenegro.

The importance of selected units of the public finances sector in the Polish legal order in the context of the right to protection of health – analysis of selected issues.

Author(s): Bartosz Namieciński,Dominika Trzeszczoń / Language(s): English Issue: 48 (2)/2024

The right to health care is one of the fundamental human rights and due to its nature is vested in every man. This subject matter is especially important in the Republic of Poland as it is touches an important sphere of public units’ activity. Public funds and units of the public finances sector are both involved in the implementation of the right to health care. A health care activity may take different forms, not limited solely to the area of public life. Nevertheless, public entities play a leading role in this regards: independent public healthcare establishments and public sector units are the most important entities that operate a health care activity in Poland. This is why it needs to be recognized that the right to health care and the protection of public finances are closely interrelated. As a consequence, finances spent on health care must be allocated in an ear-marked and economical fashion as it has an impact on the stability of public finances. Relevant regulations correlate with social interest so understood and with constitutional values. This study employs mostly the method of investigation of the law in force and an analytical research method. The analysis covered legislative acts and judicial decisions. The authors also review relevant opinions of legal scholars and commentators with a particular focus on the commentary from Polish financial law writers. The aim of the conducted research is to identify the constitutional foundations of healthcare system funding in Poland. In pursuing this goal, the authors also verify financial and systemic solutions related to the constitutional right to healthcare.

Sprawozdanie z Europejskiego Dnia Prawnika zorganizowanego na Wydziale Prawa i Administracji Uniwersytetu Szczecińskiego 25 października 2023 roku

Author(s): Dominika Kliber,Elżbieta Nowacka,Tomasz Kowalski,Karolina Pieśla / Language(s): Polish Issue: 19/2024

Interfaith Ritual Kinship in a Polyethnic Society: Review of the Film, “The Constitution”

Author(s): Keith Doubt / Language(s): English Issue: 4/2023

The Constitution [Ustav Republike Hrvatske], a Croatian film written and directed by Rajko Grli? (2016), dramatizes how living together in a society challenged by interethnic hatred and homophobia requires interconnectedness and understanding. 1 Seemingly intractable differences are unexpectedly reconciled at the end of the film through the cultural custom of ritual kinship known as kum or godfatherhood. The film’s inspired but natural solution to interethnic conflict and intolerance introduces the subject of this short essay, namely, the unique role and unrecognized importance of interfaith ritual kinship for preserving solidarity and social order in a polyethnic society. Despite the deep wounding of this South Slav heritage, the cultural custom is faintly but tellingly sustained.

Međuvjersko obredno srodstvo u polietničkom društvu: osvrt na film Ustav

Author(s): Keith Doubt / Language(s): Bosnian Issue: 4/2023

Ustav Republike Hrvatske, hrvatski film koji je napisao i režirao Rajko Grlić (2016), prikazuje kako zajednički život u društvu koje se suočava sa međunacionalnom mržnjom i homofobijom zahtijeva međusobnu povezanost i razumijevanje. 1 Naizgled nepremostive razlike neočekivano se prevazilaze na kraju filma kroz kulturni običaj obrednog srodstva poznatijeg kao kumstvo. Filmom nadahnuto, ali prirodno rješenje međuetničkih sukoba i netolerancije daje uvod temi ovog kratkog eseja, odnosno jedinstvenoj ulozi i neprepoznatoj važnost međuvjerskog obrednog srodstva za očuvanje solidarnosti i društvenog poretka u polietničkom društvu. Uprkos narušavanju ovog južnoslavenskog naslija, kulturni običaji se rijetko, ali i dalje uspješno održavaju.

Keletas pamąstymų apie valstybės mokslą ir konstitucinę sąvoką "tauta"

Author(s): Jan Kudrna / Language(s): Lithuanian Issue: 117/2023

This article is devoted to considerations of what the term "people" means within constitutional law and science of state. It is typical feature of constitutional law as a legal discipline that it does not itself define the terms it uses. Either it leaves their definition to the implementing laws, or this service is rendered to it by doctrine in the form of typically science of the state, or in some cases the necessary interpretation is provided by the decisions of the courts, typically the Constitutional Court or the Supreme Court. The term "people" is subject to doctrinal interpretation. However, even this is far from uniform. The present article demonstrates many of the paradoxes that anyone dealing with the concept of "people" will encounter. The view that the people, who are the source of power, are the citizens of the state is highly formalistic. It does not consider that many citizens of the state are completely passive and do not influence public life in any way. On the contrary, it excludes foreigners living in the territory of the state and participating in the shaping of public life. And it ignores the fact, that exercising many of the political rights granted to everyone could be more influential than using the individual right to vote. Even in the case of a formalistic interpretation based purely on citizenship, other issues need to be resolved. Are citizens who do not (yet) have the right to vote part of the people? And are citizens who permanently live abroad and who, for example, have never visited the territory of the state and do not share its fate part of the people? The author inclines to the view that foreigners who share the destiny of the state together with the citizens and participate in its maintenance should also be considered part of the people. They should be given access to the right to vote.

Die letzte Periode der römischen Verfassungsgeschichte: Das spätrömische Reich und der Dominat oder Periode der Absoluten Monarchie

Author(s): Carlos Sardinha / Language(s): German Issue: 1/2024

One of the aspects that caracterizes the period of the so-called Dominate (Dominatus) or Absolute Monarchy is the fact that the imperial power makes use of religion to legitimize itself. From another perspective, changes in the organization of the Imperial Chancery took place that reflect the reality of an absolute monarchy of divine right supported by a complex bureaucracy and a strong army, with important impact on the tax system. An exponential price increase characterizes the crisis of the 3rd century AD from Aurelian onwards and justifies Diocletian’s despotism on economic issues. Characteristic of this epoch is an Imperial Government formed by several Emperors at the same time. A system of Imperial Tetrarchy was thus established. The radical change in the imperial policy concerning Christianity took place under Emperor Constantine. After the Milan Agreement (313 AD), Constantine assumed himself more and more as the protector of the Church, collaborating with the Bishops in their fight against heresy and legislating favourably towards Christianity. The definitive division of the Empire into two took place after the death of Emperor Theodosius I, Augustus in the East between 379 and 394 AD, only Emperor in 394/395 AD, with two Emperors, one in the Eastern Roman Empire, the other in the Western Roman Empire. The so-called Barbarian Invasions, that is, the assault of several Germanic tribes and tribal groups on Roman territory in the 5th century has caused the fall of the Western Roman Empire. Yet the Eastern Half of the Empire continued to exist. In the 5th century the Western Roman State underwent a gradual disintegration. The conclusion of foedera, that is, treaties with Non-Roman Barbarian Groups which contained a right to settle on the territory of the Roman Empire, were instruments of power, to which the weakened Roman Emperors resorted in order to be able to continue to assert their claim to sovereignty over the territory of the Roman Empire. For other reasons, too, the authority of the Roman emperors came under scrutiny. The spread of the so-called patronage in both the Eastern and Western Roman Empires means, for example, that prominent personalities such as imperial officials and large landowners maintain private armies (e.g.: buccellarii) that act in their own interest and are not in the service of the common good. Especially after the reign of Majorian (457-461 AD), the disintegration of the Western Roman State could no longer be stopped.

The global financial crisis and the Constitution

Author(s): Christos KAZANTZIS / Language(s): English Issue: 1/2023

The study of constitutions in the context of the global financial crisis can be structured through two distinct questions: how can constitutions help in the crisis and what happens to constitutions during such a crisis? Beyond its economic impact, the 2008 financial crisis has produced new constitutional stories. One of the most important issues that we should discover is “How does the global financial crisis affect constitutions and their enforcement?” Nonetheless, one could begin by asking the exact opposite that is “Can constitutions affect the course and the consequences of the financial crisis?” The interaction between the financial crisis and constitutions differs in each legal order as it is correlated to the exact form the crisis took in each country, varying in terms of intensity and symptoms, and also because constitutions and political systems have their own safety valves in response to such challenges. Looking back to the 1930s, the New Deal constitutional moment and the collapse of the Weimar Constitution are suggestive of the interaction between major financial crises and constitutions, indicating that completely adverse reactions may occur. What happens depends on a combination of constitutional design and multiple external factors. This attempt to document how constitutions responded to the 2008 global financial crisis is structured by addressing a series of questions that aim to reveal what dominated the country- specific dialogues.

Perspective historique. La Constitution de la Ve République, un esprit, des institutions, une pratique?

Author(s): Ariane Vidal-Naquet / Language(s): French Issue: 71/2024

It can be argued that the Constitution of the Fifth Republic is an asset for France, if only because of its longevity. Besides, given the objective set by its founders in 1958, namely to restore the state around the executive, the Fifth Republic is undoubtedly a success. However, this success has led to an imbalance in the functioning of the institutions, which, despite attempts at reform, remain essentially centred on the head of state. The article addresses this issue through the prism of three fundamental issues: ‘the spirit’ of the Constitution, focused on the reconstruction of the State; ‘institutions’, unequal in favour of the President of the Republic; and ‘practice’, sometimes unconstitutional.

Tradycje francuskiego konstytucjonalizmu w polskiej myśli ustrojowej

Author(s): Katarzyna Kubuj / Language(s): Polish Issue: 71/2024

The influence of French constitutionalism on the Polish legal order is still present in the studies and analyses of the doctrine of constitutional law. Indeed, the French constitutional tradition forms part of the European legal heritage to which the founders of Polish statehood readily referred. The present text outlines the main thoughts and ideas which, over a period of more than two hundred years – from the second half of the 18th century to the present day – have influenced the constitutional shape of the Polish state either by way of recapitulating or negating various institutional solutions.