The Weimar Republic, founded in November 1918, was the first real democracy on German territory. It didn’t last long. On the 23th of March 1933, Hitler took power and abolished democracy to start... Show moreThe Weimar Republic, founded in November 1918, was the first real democracy on German territory. It didn’t last long. On the 23th of March 1933, Hitler took power and abolished democracy to start building his totalitarian Third Reich. Since then, the Weimar Republic became famous – or rather infamous – for being a ‘failed democracy’. In this research, the downfall of Weimar’s democracy is of central interest. After broadly stating the historical reality of the first Germany democracy, this thesis focusses on the juridical and philosophical concepts underlying the Weimar democracy to answer the question to what extent they offered real possibilities to defend the democratic state. It answers this question for the dominant philosophical school in Germany when the Weimar Constitution was drafted: legal positivism, for the Weimar Constitution itself as well as for Hans Kelsen, Carl Schmitt, Hermann Heller and Rudolf Smend. Show less
In recent decades, the Netherlands’ struggle with multiculturalism has caused an upsurge in public interest in the relationship between state and religion.The Dutch political tradition... Show more In recent decades, the Netherlands’ struggle with multiculturalism has caused an upsurge in public interest in the relationship between state and religion.The Dutch political tradition plays a central role in this book because the Netherlands developed a unique method of bridging seemingly irreconcilable religious differences: pacification. since the Batavian Revolution, the development of the Dutch state has been focused on democracy, upholding fundamental rights, and the separation of church and state that was supposed to turn the Netherlands into a religiously neutral state. In the second half of the twentieth century, the appearance of new religions on the Dutch stage, most notably Islam, has had a significant impact on the Netherlands’ national identity.the Dutch are now asking, should this religious friction be dealt with? How absolute is freedom of expression? Can religious ideas be criticized without restriction? The ability to deal with criticism is a crucial component of liberal democracy and freedom of speech. In facing this new religious pressure, the Dutch, like the rest of Europe, must once again reach for the system that best protects these essential principles: the religiously neutral state. Show less
Het doel van dit onderzoek is om tot inzicht te komen inzake de omvang van de juridische beperking die uitgaat van de botsing tussen de verschillende levensbeschouwingen voor de vrijheid van... Show moreHet doel van dit onderzoek is om tot inzicht te komen inzake de omvang van de juridische beperking die uitgaat van de botsing tussen de verschillende levensbeschouwingen voor de vrijheid van meningsuiting. Show less
This inquiry seeks to determine to what extent equality and freedom are constituents of a liberal democratic state; part 1 deals with equality, part 2 with freedom. Since the concept of the liberal... Show moreThis inquiry seeks to determine to what extent equality and freedom are constituents of a liberal democratic state; part 1 deals with equality, part 2 with freedom. Since the concept of the liberal democratic state is the subject matter at hand, it seems obvious that freedom is not absent, but that does not answer the question to what extent it should be allowed to citizens, which is what is inquired in detail. As for equality: equal rights, such as the right for every (adult) citizen to vote, are generally accepted to be an integral part of a liberal democratic state, but this raises the question on what foundation such rights are based. Equal rights have widely been defended on the basis of various moral viewpoints. After dealing with some preliminary matters in chapter 1, the tenability of some important and representative theories are examined in chapters 2 to 5. Rawls’s theory focuses on rationality as the pivotal feature to consider beings as equals and to treat them equally, but fails to indicate the import of this feature in that it remains unclear whether rationality is a moral characteristic. The problem with Dworkin’s position, on the other hand, is its abstract nature: Dworkin does not base his account on rationality as a special characteristic, but instead speaks of some beings being ‘intrinsically valuable’. In Kateb’s account, ‘human dignity’ is the focal concept. When it comes to providing the basis for human dignity, this position appears to be difficult to uphold, primarily because it remains unclear precisely which characteristic of human beings is supposed to account for their alleged dignity. In Kant’s alternative, this problem is absent, as reason – in a special sense – is the crucial feature for him. The main problem in this case is that it is difficult to see how dignity should follow from being reasonable or acting on the basis of reason. Starting from a moral outlook is problematic for these reasons and others, so in chapter 6, a position that does not use such a basis is defended. ‘Basic equality’ is the crucial notion here. Simply put, the actual (approximate) equality, which I call factual equality, is the starting point, to be specified by basic equality. Factual equality is observed in many ways, and basic equality is the sort of factual equality between two or more beings that is considered relevant to them (and simultaneously by them, as they are, in a liberal democratic state, also the ones who establish this). Basic equality must in turn be specified. Rationality, I argue, is the most viable characteristic to realize this specification in a liberal democratic state; this has no moral connotation. The upshot of this stance is that a realistic alternative to the theories discussed above is offered, the benefits of which are twofold. On the one hand, vague and problematic terms are shunned, which adds to the position’s consistency and tenability, while it provides, on the other hand, a solid basis for a liberal democratic state to recognize one of its essential features. This means that formal equality, manifested in political equality (exhibited by political liberties, such as the right to vote and the freedom of speech) and legal equality, resulting in equal treatment (e.g. of employees by their employers), can be upheld without the need to resort to moral premises that not only fail to constitute a consistent account but are in addition not universally acknowledged. Part 2 of the inquiry deals with freedom. After some general remarks are made in chapter 7, the import of freedom is indicated in chapter 8. This makes it clear why granting citizens as much freedom as possible is beneficial for both the liberal democratic state as a whole and for citizens themselves. However, as the phrase ‘as much as possible’ indicates, it is important to define the limits (if any) of freedom carefully. Since part 1 of the inquiry emphasizes the importance of (basic) equality, it would seem appealing to connect it with freedom. The merits and difficulties of such a position – Dworkin’s ideas are examined here – are expounded in chapter 9. An alternative for it is offered in chapters 10 and 11, where a demarcation line to limit freedom is defended. Mill’s harm principle provides a useful frame of reference here; the ignore principle, as it is called, seeks to find the optimal outcome in balancing the various interests that are involved. The foregoing prompts the question of whether the liberal democratic state can adopt a neutral stance, and how it should respond to those who deny certain principles of a liberal democratic state, notably those defended in part 1 of this study. In other words: what should the state’s position be towards those who deny that people are equal, e.g. on the basis of racial differences? This is the central issue that is examined in chapters 12 to 15. I argue that it is not the task of a liberal democratic state to decide what people should think, but that, in line with what is maintained in chapters 10 and 11, only equal treatment should be guaranteed, meaning that the outward acts of citizens may legitimately be regulated but nothing else. In this light, Rawls’s and Habermas’s positions are examined critically. Finally, some attention is devoted to the subject matter of militant democracy. The question is pertinent whether the liberal democratic state might be undermined by its own principles. After all, a majority is able to radically change this form of government to one that is ultimately incompatible with those very principles. I try to approach this issue as consistently as the others that present themselves throughout this inquiry. Show less
The referendum is one of the most studied and practiced institutions of semi-direct democracy around the world, in several latitudes and historical times, in different systems and political regimes... Show moreThe referendum is one of the most studied and practiced institutions of semi-direct democracy around the world, in several latitudes and historical times, in different systems and political regimes, at international, national, regional or local levels, with different legal frameworks and with various political consequences. However, Portugal, whose constitutional experience begins in 1820 with the liberal revolution, had its first democratic referendum only in 1998. This study try to conceptually characterize the referendum, in order to establish its fundamental typologies regarding the most relevant experiences in this field and to situate the case for and against the referendum as an expression of semi-direct democracy in the political and philosophical debate of different historical moments. In the next chapters, entirely dedicated to the Portuguese case, we shall present the historical evolution of the nation al and local referendum in the constitutional and political life in Portugal since 1820. An added emphasis will be given to the referendum experience of the Portuguese democracy born in 1974, particular attention being payed to the political debate about the formal introduction of the referendum in the 1976 Constitution and to the concrete experience of referendums proposed and held since then. Show less
Constitutionalism is the permanent quest to control state power, of which the judicial review of legislation is a prime example. Although the judicial review of legislation is increasingly common... Show moreConstitutionalism is the permanent quest to control state power, of which the judicial review of legislation is a prime example. Although the judicial review of legislation is increasingly common in modern societies, it is not a finished project. This device still raises questions as to whether judicial review is justified, and how it may be structured. Yet, judicial review’s justification and its scope are seldom addressed in the same study, thereby making for an inconvenient divorce of these two related avenues of study. To narrow the divide, the object of this work is quite straightforward. Namely, is the idea of judicial review defensible, and what influences its design and scope? This work addresses these matters by comparing the judicial review of legislation in the United Kingdom (the Human Rights Act of 1998), the Netherlands (the Halsema Proposal of 2002) and the Constitution of South Africa of 1996. Show less
