Lately, the municipal level of government has seen much experimentation with new forms of democracy and democratic decision-making. These experiments aim to revitalize local democracy by engaging... Show moreLately, the municipal level of government has seen much experimentation with new forms of democracy and democratic decision-making. These experiments aim to revitalize local democracy by engaging citizens more directly in the preparation, decision-making and execution of municipal policy.These experiments raise certain legal questions because local democracy is not just a matter of political culture, but of rules and regulations too. There are laws which stipulate which powers local authorities may exercise, how they may exercise these and how they ought to relate to each other. The question is what room this legal framework offers for all sorts of local democratic innovations that aim to enhance the institutionalized local democracy.This question is answered in this thesis with the help of four case studies. The cases and their design are tested for their compatibility with relevant laws and regulations and with the principles that form the foundation of the institutionalized local democracy. Show less
This contribution explores the role of human dignity in the constitutional system of the Netherlands. In what way are human dignity-related norms part of the constitutional framework? Is there a... Show moreThis contribution explores the role of human dignity in the constitutional system of the Netherlands. In what way are human dignity-related norms part of the constitutional framework? Is there a role for human dignity besides the human rights standards that are enshrined in the Dutch constitution? And if so, what is its legal status? Can human dignity norms be invoked before Dutch courts? In order to shed some light on these questions, the author first investigates the text of the Dutch Constitution as well as Dutch constitutional history and tradition (§ 1). In the second phase of the investigation, he discusses some recent proposals for constitutional amendments in which human dignity was a key factor (§ 2). After that, he inquires whether human dignity is referred to in ordinary legislation (§ 3) and in case law of the Dutch courts (§ 4). In § 5, the author summarises his findings. Show less
The subject of this thesis is the administrative relation between the levels of authority in the Netherlands. Focus of attention within this study is the distribution of administrative tasks and... Show moreThe subject of this thesis is the administrative relation between the levels of authority in the Netherlands. Focus of attention within this study is the distribution of administrative tasks and legislative power between government tiers. And more particular the way it has developed since the constitutional reform in 1848; what motives have underpinned the fluctuating ways in which responsibilities and powers were divided. The constitutional reform of 1848 has laid the foundation for the current administrative structure. A three tiers-system forms the basis of its organisation. Decentralization, the transfer of functions and powers of the national government to the provinces and municipalities, gives meaning to the administrative stratification. This study shows that in The Netherlands the leitmotiv for decentralization is to improve the governmental performance; efficiency, standardization and simplification are recurring objectives. Decentralization is also often used as an instrument to resolve specific policy issues. A third motive for decentralisation is improvement of the administration and organisation of government. This study shows there is little debate about the underlying motives for decentralization. In some occasions articles of (constitutional) law are changed without any parliamentary debate whatsoever. Even if debate takes place, justifications are often unfounded or accompanied by defective reasoning. Show less
This paper addresses the constitutional entrenchment of foreign policy preferences, or “world views”, from the vantage point of International Relations theory. Empirically, norms that sketch out... Show moreThis paper addresses the constitutional entrenchment of foreign policy preferences, or “world views”, from the vantage point of International Relations theory. Empirically, norms that sketch out certain visions of global governance have become a popular feature of constitutional design. The paper expounds both their potential, as well as pitfalls to avoid, with a particular focus on Constructivist scholarship. In terms of their merits, they can serve as evidence of a “normative basis” for foreign policy and as parameters for legitimacy. Furthermore, they represent both evidence of, and fuel for, processes of socialization in foreign policy. However, Constructivists tempted to draw on such constitutional worldviews should heed three main caveats. Firstly, while the constitution is supreme in the legal realm, it is only one of many possible expressions of normative preferences from a political science perspective. Secondly, they should avoid confusion between domestic constitutional standards and universal ones. Thirdly, they should be aware of the problematic of the “dead hand of the past”, i.e., while constitutional entrenchment may lend norms particular gravitas, it also makes them prone to become out-dated. By staying clear of these pitfalls, Constructivist theorists can embrace contemporary constitutions in their quest to elucidate which principles and ideas shape the international order and its maturing legal framework. 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
Het komt in Nederland gelukkig niet vaak voor maar soms is wetgeving in strijd met mensenrechten. Burgers kunnen deze schending in Nederland bij de rechter aan de orde stellen. Wat kan de rechter... Show moreHet komt in Nederland gelukkig niet vaak voor maar soms is wetgeving in strijd met mensenrechten. Burgers kunnen deze schending in Nederland bij de rechter aan de orde stellen. Wat kan de rechter doen als hij hen gelijk geeft? Over wat voor gereedschap beschikt de Nederlandse rechter? En gebeurt het ook weleens dat de rechter helemaal niets doet? Die vragen staan centraal in dit boek. Het geeft een uitgebreid overzicht van de constitutionele remedies in de gereedschapskist van de rechter. Het gaat vervolgens in op het gebruik van de rechter om weliswaar vast te stellen dat wetgeving in strijd is met mensenrechten, maar daaraan geen gevolgen te verbinden omdat daarmee ‘de grenzen van de rechtsvormende taak van de rechter zouden worden overschreden’. De rechter vindt het oplossen van de mensenrechtenschending dan een zaak van de politiek. Kan hij dat eigenlijk wel doen? Ubi ius ibi remedium: waar recht is, moet toch ook een remedie zijn? En doen rechters in andere landen dat ook? Het boek bevat een analyse van de eisen die het Europese recht stelt, en een rechtsvergelijking met de constitutionele stelsels in Duitsland, het Verenigd Koninkrijk en Canada Show less
Diverse assessments of the EU's role in global governance suggest a great need for dependable and justifiable benchmarks. This chapter argues that constitutional foreign policy objectives are an... Show moreDiverse assessments of the EU's role in global governance suggest a great need for dependable and justifiable benchmarks. This chapter argues that constitutional foreign policy objectives are an important source for such benchmarks — for conceptual, empirical, and normative reasons. Conceptually speaking, global governance is an inherently rule-oriented as well as goal-oriented concept. Empirically, such substantive global governance goals can be found today in many constitutions, including those of the rising powers of the emerging multipolar world. EU primary law post-Lisbon is part of this trend, but also goes further. Next to an extensive collection of substantive objectives, it also puts a distinctive emphasis on law as an essential ingredient of its foreign policy and consequently of its vision for global governance. From a normative point of view, the peculiar features pertaining to constitutional law as a source for global governance guidance, as opposed to policy documents or other law, appear at first sight as problematic. In particular for the EU, facing the challenge of ‘relative decline’ in a multi-polar world, entrenching such an ambitious agenda in its highest laws may appear as audacious wishful thinking. On closer inspection, however, these particular features reveal the true value of the constitutional codification of a global governance agenda. Show less
References to 'balancing' and 'weighing' are ubiquitous in modern constitutional rights adjudication discourse in many Western legal systems. This thesis traces the rise of this form of language to... Show moreReferences to 'balancing' and 'weighing' are ubiquitous in modern constitutional rights adjudication discourse in many Western legal systems. This thesis traces the rise of this form of language to a series of decisions by the German Federal Constitutional Court and the U.S. Supreme Court of the late 1950s and early 1960s and to scholarly debates surrounding these decisions. Based on a detailed study of these historical origins, the thesis develops 'local meanings' of balancing that show striking differences as between jurisdictions. These local meanings are then compared on a conceptual grid derived from the common problematic of managing the relative formality of the legal order. Balancing in the U.S., in this model, is the expression of a skeptical pragmatism, whereas in German law. it is the centrepiece of an aspirational legalism. Understanding these differences is crucial to an evaluation of the legitimizing potential of balancing-based legal reasoning.So, while balancing in the U.S. is mostly seen as a pragmatic solution for when legal doctrinal models break down, German balancing is instead the expression of basic choices pertaining to the foundations of the constitutional legal order as a whole.The range of striking differences found between these meanings counters widely accepted claims as to the convergence of practices of constitutional rights adjudication on a 'balancing model' Show less
This thesis examines the attitude of the Hungarian Constitutional Court (“HCC”) and thePolish Constitutional Tribunal (“PCT”) towards EU law in their case-law. The predominantGerman legal influence... Show moreThis thesis examines the attitude of the Hungarian Constitutional Court (“HCC”) and thePolish Constitutional Tribunal (“PCT”) towards EU law in their case-law. The predominantGerman legal influence in the Central European region is explored from perspectives of legalhistory and culture in order to explain its enduring attraction. In order to provide theframework for the research, the case-law of the German Federal Constitutional Court(“FCC”) on the main principles comprehending the essential core of national sovereignty, thecontents of which are not susceptible to transfer or limitation, are set against theconstitutional requirements of EU law as enunciated by the European Court of Justice(“ECJ”) in its own foundational case-law. Such analysis thus provides the “German model,”by which the FCC has “negotiated” its position vis-à-vis the Union’s fundamental principles(e.g., primacy, direct effect, priority of ECJ rulings) which the ECJ has developed through itsjudgments. In pursuing this research, the decision-making of the two Central European courts isconsidered in the light of the putative influence of the German model. The increasingly activeparticipation of the HCC and particularly the PCT in helping to negotiate the newconstitutional context of the Union, based post-Lisbon on the respect of nationalconstitutional identities in Art. 4(2) TEU, is explored. The multilayered judicial construct ofEurope still remains replete with recognition problems for which the research seeks tosuggest some limited and focused changes. Show less
