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The paper concerns standards of functioning of judiciary relevant from the point of view of a democratic legal state. It deals with a problem of separateness and independence of judiciary from other powers in the context of constitutional separation of powers. It emphasizes the importance of the independence of judges and the importance of the state position of the National Judiciary Council. The author assesses the solutions adopted in the Act of 8th December 2017 amending the Act on National Judiciary Council and in the Act of 20th December 2019 amending the Act on the Organisational Structure of Common Courts and other acts. The analysis is conducted along with the judgment of the Supreme Administrative Court of November 4, 2021 (no. III FSK 3626/21). The problem presented is a problem of appointing of the judges according to a new procedure: the proposal made by a „new Council” and the President’s decision to appoint a judge (assessor). The text is also a reply to prof. M. Dobrowolski’s text published in Tax Law Journal 2022, no. 4. Problematyka artykułu dotyczy istotnych z punktu widzenia demokratycznego państwa prawnego standardów funkcjonowania władzy sądowniczej. W kontekście konstytucyjnej zasady podziału i równowagi władzy ustawodawczej, wykonawczej i sądowniczej analizuje problematykę odrębności i niezależności sądów od innych władz, znaczenie sędziowskiej niezawisłości i ustrojowej pozycji Krajowej Rady Sądownictwa, ocenia rozwiązania przyjęte w ustawie z dnia 8 grudnia 2017 roku o zmianie ustawy o Krajowej Radzie Sądownictwa (Dz.U. z 2018 r., poz. 3) oraz ustawie z dnia 20 grudnia 2019 roku o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Dz.U. z 2020 r., poz. 198). Ta analiza prowadzona jest w kontekście wyroku wydanego przez Naczelny Sąd Administracyjny w dniu 4 listopada 2021 r., sygn. III FSK 3626/21. Problem dotyczy powołań sędziowskich, a także asesorskich w trybie: wniosek „nowej Rady”, tj. „neo-KRS”, a postanowienie Prezydenta RP o powołaniu na urząd sędziego (asesora).

Many explanations and interpretations about the origin, history and nature of the separation of powers doctrine show that the democratic value of the parliamentary government system is at a high level. Indeed, in contrary to the general knowledge, not only the presidency system but also the parliamentary government system keeps its democratic value at high level in many aspects and establishes a brake and balance mechanism between the powers. This study discusses the features of the parliamentary system, especially the rationalized parliamentary system, and the possibility of its applicability in Turkey. The study reveals that, for Turkey, the system inspired by the presidential system, which is called the Presidential Government System is more convenient than the parliamentary system in terms of breaking down democracy, and this brings deficiencies in terms of democracy as a whole, especially on the constitutional system including the fundamental rights and freedoms. In analysing the subject, the study argues that the capability of the rationalized parliamentary system which is a form of the parliamentary government system to provide inducement in bolstering the democracy in Turkey should be earnestly contemplated considering that the legislative, executive and judiciary powers that define the pure presidency system lack independence in terms of the power and influence map. It is claimed that the inducements created by the parliamentary system may offend democracy as well as strengthen the brake and balance mechanism between the powers. In this context, we briefly addressed the historical precedents of the current types of the parliamentary government, and we emphasized the presence of various different types of parliamentarism while discussing the main characteristics of the parliamentarism. We have also attempted to review the empirical evidence on which the answer to this question may be based for Turkey around the question of whether it is superior or more stable than presidential forms as a system of government. Here, we sometimes evaluated the deficiencies in the Presidential Government System. In this respect, we have tried to emphasize the importance of designing a rationalized form if Turkey is to adopt the parliamentary system. We said that by doing so, Turkey would have attained a higher level of constitutional fiction in terms of its democratic value and brake and balance system, Erkler ayrılığı doktrinin kökeni, tarihi ve doğasıyla ilgili pek çok açıklama ve yorum parlamenter hükümet sistemine ilişkin demokratiklik değerin yüksek seviyede seyrettiğini göstermektedir. Gerçekten de çok bilinenin aksine yalnızca başkanlık sistemi değil, aynı zamanda parlamenter hükümet sistemi de pek çok açıdan demokratiklik değerini yüksek seviyede tutmakta ve erkler arasında fren ve denge mekanizmasını tesis etmektedir. Bu makale parlamenter sistemin ve özellikle rasyonelleştirilmiş parlamenter sistemin özellikleri ve Türkiye’de uygulanabilirliği olasılığını tartışmaktadır. Makale, Türkiye açısından Cumhurbaşkanlığı Hükümet Sistemi olarak adlandırılan başkanlık sisteminden mülhem sistemin demokrasiyi parçalamak bakımından parlamenter sisteme göre daha elverişli olduğunu ve bunun başta temel hak ve özgürlükler olmak üzere anayasal kurgu üzerinde bir bütün olarak demokratiklik bakımından beraberinde noksanlıklar getirdiğini ortaya koymaktadır. Konuyu irdelerken, saf başkanlık sistemini tanımlayan yasama, yürütme ve hatta yargının yetki ve etki haritası açısından bağımsızlıklarının olmadığı düşünüldüğünde parlamenter hükümet sisteminin bir formu olan rasyonelleştirilmiş parlamenter sistemin Türkiye’ye yönelik demokrasiyi pekiştiren teşvikler üreteceği ihtimali üzerinde ciddi düşünülmesi gereğini söylemektedir. Parlamenter sistemin yaratacağı teşvikler demokrasiyi güçlendirebileceği gibi erkler arasında fren ve denge mekanizmasını yeniden güçlendireceğini iddia etmektedir. Bu bağlamda parlamentarizmin temel özelliklerini tartışırken, bugün var olan parlamenter hükümet biçimlerinin tarihsel öncüllerine kısaca değindikten sonra günümüzde birçok farklı parlamentarizm biçiminin var olduğunu vurguladık. Bir hükümet sistemi olarak başkanlık biçimlerinden daha üstün mü yoksa daha istikrarlı mı olduğu sorunu etrafında Türkiye için bu sorunun cevabının dayandırılabileceği ampirik kanıtları da gözden geçirmeye çalıştık. Burada kimi zaman Cumhurbaşkanlığı Hükümet Sistemindeki noksanlıklar üzerinden değerlendirme yaptık. Bu bakımdan Türkiye’nin parlamenter sistemi benimseyecek olursa bunun rasyonelleştirilmiş formunun dizayn edilmesinin önemini vurgulamaya çalıştık. Böyle olmakla Türkiye’nin demokratiklik değeri ve fren ve denge sistemi bakımlarından daha yüksek seviyeli bir anayasal kurguya kavuşmuş olacağını söyledik.

This article analyses how notions of parliamentary sovereignty, were posited against universal principles of the separation of powers, using the debate in the Swedish Diet (Riksdag) in 1769 on the Act of Security as an example. The act was launched as an attack on the prevailing parliamentary sovereignty. Since the mid- eighteenth century, the Riksdag had established itself as the sovereign power in Swedish politics and its critics argued for the need of personal and material security. The analysis shows how egalitarian ideas and democratic elements became part of the political discourse. This article argues that this debate was decisive for the coming end of the Swedish Age of Liberty (1719–72), and that it exemplifies a political conflict between radicals and conservatives. It also shows how the debate was a battle for alternative paths of state formation. Either a strong state, dominated by elite groups with capacity to control policy, or a more participatory government, with traces of early democratization. The analysis draws on two key analytical concepts: the ‘rule of law’ and ‘political participation’. In the debate, the rule of law became an instrument for limiting political participation when the aristocracy tried to strengthen its powers. Skiftande regimer: representation, administration och institutionell förändring, ca 1537–1810

This article interprets the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms. When a legislature activates the notwithstanding clause, subsection 33(2) temporarily ensures a protected law’s ‘operation’ by preventing it from being ‘inconsistent’ with the Constitution of Canada in the sense of the supremacy clause, thereby precluding judicial remedies such as striking down. Construed in the light of its components (some never considered by the Supreme Court of Canada) and other constitutional features, the notwithstanding clause does not make rights irrelevant or strip them of their legal character. Nor does it confide the assessment of trade-offs about rights to the legislature alone. Instead, subsection 33(3) indicates a framework for such assessments in which the voting public plays a crucial evaluative role. The courts, as interpreters and guardians of the Constitution, can, and in some circumstances should, support the public’s constitutional role by declaring the extent to which a protected law unjustifiably limits Charter rights. The public’s ability to take such declarations into account in evaluating rights trade-offs would advance the democratic purpose of subsection 33(3), a purpose that underpins our constitutional framework more broadly.

Since the end of the 1980s the Supreme Court has cut its caseload nearly in half. While this decrease has not gone unnoticed, researchers have largely focused their explanations on institutional factors, such as changes in personnel, creation of the certiorari pool, or an increase in the amount of discretion justices have to set their agenda. Most existing work fails to consider how the preferences of members of Congress and the president also contribute to this staggering decrease. I provide the first systematic examination of how extrainstitutional influences affect the size of the Court’s caseload. I examine the 1951–2016 terms of the Court to reveal that a constraining political environment significantly reduces the number of cases the justices agree to hear each term. These results suggest that the justices consider the preferences of actors in the other branches of government much earlier than their decisions on the merits.

Ungarns Verfassung von 2012 steht als symbolträchtigstes rechtliches Dokument der Ära Orbán seit seiner Verabschiedung europaweit im Kreuzfeuer der Kritik. Die Vorwürfe beziehen sich auf das ausgrenzende Verfahren der Verfassungsgebung, die ideologische Aufladung und auf die Aushebelung der Gewaltenteilung. Das Werk sucht rechtsdogmatisch begründete Antworten auf diese Kritikpunkte und verwendet hierfür die Errungenschaften der europäischen und der ungarischen Verfassungstradition als Maßstab. Besondere Aufmerksamkeit widmet der Autor den Höhen und Tiefen der ungarischen Rechtsgeschichte, der Zeit ab 1989/90 und letzten Endes der Frage, ob mit einer langen Lebensdauer des Grundgesetzes in einem demokratischen Europa gerechnet werden kann. Hungary's 2012 Basic Law, the most symbolic legal document of the Orbán era, has been in the crossfire of criticism throughout Europe from the moment it has been adopted. The objections refer to the exclusionary procedure of constitution-making, the ideological bias, and the undermining of the separation of powers. This study seeks well-founded legal dogmatic answers to these criticisms, using the achievements of the European and Hungarian constitutional traditions as a yardstick. Special attention is paid to the ups and downs of Hungarian legal history, to the period after 1989/90, and finally to the question of whether the Fundamental Law can be expected to have a long life in a democratic Europe.

В статье рассматриваются конституционные и институциональные основы реализации принципа народовластия в Кыргызской Республике и Республике Беларусь, где разделение властей на законодательную, исполнительную и судебную дополняется представительной ветвью власти. Исследовательскую методологию составили как специальные методы и подходы (системный, структурно-функциональный и институциональный), так и прикладные – прямой бинарный анализ, позволяющий определить типичное и уникальное в опыте разных государств. В результате исследования проанализированы компетенции Жогорку Кенеш и Национального собрания, перераспределение полномочий парламента и Президента, в связи с установлением конституционного статуса Народного Курултая и Всебелорусского народного собрания, оценки экспертов в связи с прошедшими конституционными изменениями в республиках. Автор приходит к выводу о сходстве институционального дизайна форм правления рассматриваемых стран, а также неоднозначности официального закрепления места НК и ВНС, благодаря которым, с одной стороны, в более полной мере реализуется принцип народовластия, а с другой – они могут стать институтами, ослабляющими роль парламента, а также обеспечивающими президентский PR и впоследствии транзит власти., The article examines the constitutional and institutional foundations for the implementation of the principle of democracy in the Kyrgyz Republic and the Republic of Belarus, in which the separation of powers into legislative, executive and judicial is supplemented by a representative branch of government. The research methodology consists of both special methods and approaches (systemic, structural-functional and institutional) and applied ones – direct binary analysis, which allows us to determine what is typical and unique in the experience of different states. As a result of the study, the competencies of the Jogorku Kenesh and the National Assembly, the redistribution of powers of the parliament and the President, in connection with the establishment of the constitutional status of the People's Kurultai and the All-Belarusian People's Assembly, expert assessments in connection with the past constitutional changes in the republics were analyzed. The author comes to the conclusion about the similarity of the institutional design of the forms of government of the countries under consideration, as well as the ambiguity of the official consolidation of the place of the People's Kurultai and the All-Belarusian People's Assembly, thanks to which, on the one hand, the principle of democracy is more fully realized, and on the other hand, they can become institutions that weaken the role of parliament, as well as ensuring presidential PR and subsequently the transit of power.

Resumo O presente artigo tem como objetivo geral apresentar diálogos institucionais como mecanismo de aprimoramento da fórmula democrática, ressaltando a necessidade do estabelecimento de uma relação dialógica entre poderes estatais, e como objetivo específico expor as experiências do Canadá e da África do Sul, potencialmente úteis para o Brasil. Inicialmente, o estudo aborda e delimita o conceito de diálogo institucional para então demonstrar a possibilidade de uma relação dialógica entre política e direito no âmbito da construção do processo decisional e da interpretação constitucional. Na sequência, investiga a sua experiência tanto no arranjo institucional canadense, como nos recentes posicionamentos da Corte Constitucional da África do Sul. Ao final, conclui que diálogos institucionais são instrumentos facilitadores para a superação de bloqueios porque podem criar interlocução qualificada entre os poderes estatais e também com segmentos da sociedade, recompondo fissuras na separação dos poderes muitas vezes gerada pelo modelo juriscêntrico de solução de judicializações de políticas públicas. Abstract The present article has as background to present the theory of institutional dialogues as a pretended mechanism of improvement of the democratic formula, emphasizing the need to establish a dialogical relationship between the State powers, and as a specific goal expose the experiences of Canada and South Africa’s potentially useful for Brazil. Initially, it addresses and delimits the concept of institutional dialogue to demonstrate the possibility of a dialogical relationship between politics and law in the construction of the decision-making process and constitutional interpretation. In the following, he investigates his experience both in the Canadian institutional arrangement and in the recent and new positions of the Constitutional Court of South Africa. Finally, concludes that institutional dialogues are facilitators instruments for overcoming blocks because they can create a qualified dialogue between State powers and also with segments of society, putting cracks in separation of powers often generated by model centralized in the judge to decide cases about public policies.

El presente artículo pretende criticar la idea de que la creación normativa efectuada por la Administración es ilegítima. Se sugiere que existen cuatro “mitos” que se erigen sobre la base de tesis comúnmente aceptadas por parte relevante de la doctrina dedicada a la teoría del Estado (y, en cierta medida, la teoría del derecho), e incluso a veces respaldada en textos constitucionales vigentes. Los mitos son: 1. La separación de poderes del Estado exige separación de facultades; 2. La función de la Administración se limita a la ejecución de normas legales; 3. La potestad normativa de la Administración es contraria a principios morales del derecho, y 4. ‘Ejecución de normas legales’ y ‘creación normativa’ son mutuamente excluyentes. Estos mitos han impedido la construcción de una defensa sólida en favor de la potestad normativa de la Administración en el Estado moderno, razón por la cual se proponen elementos para su revisión. This article seeks to offer a critique to the idea that rulemaking powers exercised by the Administration are illegitimate or somehow unlawful. I suggest that four “myths” are commonly accepted by a considerable group of scholars devoted to the research of the theory of the State (and, to some extent, jurisprudence), and are even sometimes supported by existing constitutional texts. The myths are: 1. Separation of powers requires separation of “types of powers”; 2. The role of the Administration is limited to the enforcement of legal rules; 3. Administrative rulemaking power contradicts moral principles of law, and 4. ‘Enforcement of legal rules’ and ‘creation of rules’ exclude each other. These myths have prevented the elaboration of a strong defense in favor of administrative rulemaking power in the modern State. This is why I present some arguments that allow for their review.

The article is devoted to the study of the nature of the legislative pover and the disclosure of its role to serve as a legitimate basis for legislative activity. The provision is substantiated that the parliament, as a representative body of the whole people, has the highest level of legitimacy and on this basis exercises the right to legislate public relations according to the principle of separation of powers, including the exclusive right to regulate the most important issues of organization and exercise of power (article 92 of the Constitution of Ukraine). The relationship between the concepts of legislative power and legislative activity of the parliament is revealed and the recognition of the legislative activity of the parliament as the main, key function of the parliament and the organizational way of implementing the legislative power of the state is substantiated. The conditions, scope, limits, advantages and disadvantages of the practice of delegated legislation, which is widespread in democratic countries, as well as the legally sanctioned government rule-making on the basis of the instructions of the government provided by separate laws are investigated. The powers of the parliament in the field of law-making activity are analyzed, the source of which is the legislative power delegated by the people to the Verkhovna Rada of Ukraine, due to which the parliament receives from the people the primary right to carry out its law-making activity. The essence of legislative activity carried out within the legislative process is revealed, as activity on revealing of need for legal regulation of public relations, estimation of draft laws, their completion, carrying out professional examination, discussion and completion in committees, i.e. all actions directed on proper elaboration of laws’ projects. It is noted that the legislative process is not only and not so much limited by parliament, but also includes pre-parliamentary stages of work on the draft law (initiation, drafting, public discussion, examination, coordination with interested bodies and organizations). The general characteristic of subjects of law-making activity is given, the nature of powers of parliament on the organization and implementation of control over law-making activity is analyzed.

En el presente artículo se analiza la naturaleza y el ámbito material de validez del principio de interpretación conforme con la Constitución en Alemania. Esta figura jurisprudencial, cuyo fundamento jurídico se encuentra o, en la presunción de constitucionalidad de leyes o, en la unidad y construcción escalonada del orden jurídico o, en el principio de conservación de la norma —favor legis—, constituye una forma de control normativo que permite salvaguardar la validez de la norma secundaria que en alguna de sus posibles interpretaciones pudiera coludir con un mandato constitucional, al descalificar la validez de sólo alguna de sus posibles interpretaciones. Con esto se permite evitar que con motivo de la anulación de la norma secundaria se produzca una laguna en el orden jurídico que deba ser colmada mediante el desarrollo judicial del derecho, lo que en cierta forma falsearía la división de poderes.

This article argues that the Constitution’s entrenched provision for judicial review may be understood as a guarantee of legal accountability for a specific class of governmental powers, namely, powers whose exercise has a legal effect on rights and obligations (‘jurisdictions’). The paper’s argument is prompted by the observations in Kaldas v Barbour (2017) 350 ALR 292; [2017] NSWCA 275 on the class of administrative actions that are amenable to entrenched judicial review of State powers. The article shows that the application of this understanding to entrenched review of Commonwealth powers has significant explanatory value. It casts new light on two puzzling features of entrenched review of Commonwealth powers: The discrimen between executive and judicial power that underpins a separation of powers rationale for entrenched review of Commonwealth executive action and the demarcation between s 75(iii) and s 75(v) injunctions against Commonwealth officers. Viewing entrenched review as a guarantee of legal accountability for jurisdictions prompts new insights into its constitutional rationale and its specific contribution to government under law.

The article examines the historical relationship of people’s sovereignty with parliamentarism, with the constituent power and legislative activity, which allows a better understanding of the essence, specifics and boundaries of both the constituent power and legislative activity, as well as its derivative legislative activity. The development of the idea of popular representation and its reflection in the doctrine of democracy can be traced. The phenomenon of parliamentarism in the modern world as a system of political organization of the state is studied, in which the parliament, due to the fact that it is the highest body of popular representation, as elected directly by all people and, therefore, designed to express the sovereign will of all authorities. The scope, limits, and procedure for exercising the sovereign power of the people, including the exercise of legislative and constituent power directly by the people, the peculiarities of adopting the constitution, amending it by a referendum or constituent assembly or parliament, the possibilities and features of the people’s exercise of legislative initiative, the power of parliament to exercise constituent and legislative power. The special role of the current Constitution and the procedures established by it in the exercise of the power delegated by the people by the parliament is emphasized. Some constitutional constituent powers of the parliament are analyzed (appointment of an all-Ukrainian referendum, appointment of the President of Ukraine, appointment of the Prime Minister of Ukraine and a number of ministers and other officials, resignation of the Prime Minister of Ukraine, members of the Cabinet of Ministers Ukraine and others), implementation by the parliament of budgetary, control, ceremonial powers. Particular attention is paid to one of the most important tasks of the parliament - to exercise legislative power, in accordance with the constitutional principle of separation of powers, enshrined in Article 6 of the Constitution of Ukraine. The direct connection and dependence of the legislative powers on the legislative power of the parliament is emphasized.

The article analyzes using the normative and systematic methods, as well as analysis and synthesis, judicial authority, its place on the role in system of checks and balances including the content of theoretical law researches of institute of this power in the works of legal scholars. According to the authors of the article came to the conclusion judicial authority is one of varieties of state power and is exercised only by court in person of judges, as well as jurors involved in prescribed manner, and no other bodies and persons have the right to assume exercise of its powers, justice is exercised regardless of legislative and executive power, it is carried out through constitutional, civil, administrative, criminal and other forms of legal proceedings. The article concludes judiciary should be recognized as sphere of authority assigned to specialized state bodies – by court to resolve disputes within competence of relevant authorities arise when they apply the law. From the point of view of the authors "vocation" of judiciary is to protect the rights, the legal foundations of public and social life from violations, regardless of who committed them. Justice in state governed by the rule of law can only be exercised by judiciary, and no one has the right to appropriate magisterial functions. When exercising their powers, judicial authority is guided exclusively by law and does not depend on any influence of representative or executive power, and very legality and independence of justice are recognized as the most important guarantees of human rights and freedoms.

The article analyses the goals and imperatives of the Republic of Korea’s trade policy before the COVID-19 pandemic and taking into account its consequences. The RoK's trade policy aims to synchronize the interests of the state, conglomerates and small and medium-sized enterprises. For this purpose, a system of division of powers in the field of trade policy and diplomacy has been designed, which has proven to be very effective. The COVID-19 situation, which has exacerbated the growing trend of protectionism in international trade, highlighted the chronic structural problems of trade in the Republic of Korea of trade in the area of geographical and commodity structure – despite the positive dynamics of the country's exports. The challenge of countering protectionism, coupled with the need to diversify the commodity and geographic structure of exports, implies two areas of work: strengthening an industrial structure capable of producing competitive goods and expanding the network of free trade agreements. The need to address logistical problems, digitalization, and the trend towards decarbonization forces Korea to rely more heavily on the idea of promoting free trade. The country's leadership continues to criticize protectionism, guided by the idea of a balanced use of bilateral and multilateral instruments of liberalization.

This article discusses the rise of an approach to philanthropic giving known as philanthrocapitalism. I relate it to a new paradigm in management theory that has claimed that private profit making naturally aligns with improved public welfare. I show how growing belief in the inherent “compatibility” of corporate missions and public benefits has led to new laws and contributed to major shifts in how giving practices are structured and legitimated. The original point made in this article is that the philanthrocapitalist turn is more than simply an organizational change in the structure of different philanthropic institutions. Rather, the belief that profit-making and public welfare are naturally aligned also has significant, undertheorized implications for different principles in European-American legal traditions. The ascendancy of the philanthrocapitalist approach represents a subtle but profound displacement of belief in the need for democratic checks and balances on the use of public funds for private enrichment.

The article analyzes the issues of improving constitutional control, ways to increase its effectiveness. The subject of the research is the legislative foundations of constitutional justice in Uzbekistan. The actual issues of interaction between the Constitutional Court of Uzbekistan, and the state bodies of Uzbekistan, the parliament, government and the Supreme Court of the Republic of Uzbekistan within the system of separation of powers are indicated. In order to analyze the current state, the author briefly shows the role of constitutional justice. Taking into account the specifics of the functional purpose, powers and legal consequences caused by the adoption of final decisions, the Constitutional Court occupies a special place not only within the judicial system, but also in the whole mechanism of exercising state power in our country, which allows it to be considered as an independent and independent body of state power, standing from the point of view of its constitutional and legal status on a par with President, parliament and government. Analysis of the current state of constitutional review allows us to note the following. The control carried out by the Constitutional Court needs to improve its legal framework and the practice of exercising constitutional control. The absence of the proper determination of the legal framework of the interaction of Constitutional Court with other state bodies makes constitutional review ineffective. The issues of introducing the consideration the gaps in law by the Constitutional Court, granting citizens right to apply to the Constitutional Court were considered. The author claims that when introducing this practice, the analysis of the experience of foreign countries is especially relevant. In conclusion, measures to improve the cooperation of the Сonstitutional Court with state bodies of Uzbekistan, taking into account the peculiarities of its constitutional and legal status are proposed.

To preserve democratic accountability, the actions of federal agencies remain subject to review by elected officials in the legislative and executive branches. Yet given the vast scope and complexity of the modern federal government, elected officials cannot possibly intervene in all agency matters. This leaves the courts to evaluate agency actions. Applying Rosenbloom’s separation of powers theory of public administration to Nagel’s theory of power as anticipated exchange, we expect that agencies become more judicialized in response to the courts’ influence. Leveraging novel data on personnel records, agency litigation, and policymaking from 1996 to 2016, we estimate regression models using ordinary least squares to provide an original and systematic account of the courts’ influence on agency personnel and professionalization. We find that agencies become more judicialized with increased exposure to the courts. Our dynamic comparison of the rise and fall of the number of judge-like policymakers within agencies highlights agency responses to judicial procedural preferences and suggests that federal agencies adopt personnel and processes that respond to the institutional perspectives of all three branches of government.

We explore the effects of a particular facet of separation of powers—namely, the executive’s independence from the legislature—on maintaining a norm of legislative restraint in which antagonistic factions refrain from passing laws that infringe on their rival’s liberties. Our main result establishes that executive independence may sometimes undermine and at other times facilitate legislative restraint, depending on the probabilities with which the factions hold legislative and executive power. Our results contribute to the larger game-theoretic literature exploring the effects of political institutions; our results also contribute to the literature exploring how institutions designed to protect liberty affect tacit cooperation among rival factions.

The purpose of this article is to analyze the control of local budget expenditures in Ukraine under the influence of the crisis caused by COVID-19 and to find ways to improve the internal financial control of expenditures of budgetary organizations. The relevance of the study is due to the need to create a system of separation of powers and responsibilities in the public sector on the basis of ensuring economical, efficient, effective and legal use of budget resources to achieve the goals set by the organization. The study was conducted on the basis of data from Ukraine. Expenditures of budgetary institutions as an object of internal financial control are considered. The analysis of control of expenses of local budgets is carried out. It is established that Ukraine needs further reform of the state financial control of expenditures of budgetary institutions - in the direction of decentralized control. It is proved that the creation of a modern information and analytical resource optimizes the accounting and control system, which will lead to the introduction of more effective mechanisms for administration, de-shadowing of the economy and increasing control over budget expenditures. Thanks to digital technologies, the economic activity of budgetary institutions will become more transparent, risk assessment will be optimized and the capabilities and effectiveness of the system of internal financial control of expenditures will increase. © Universal Journal of Accounting and Finance 2021.

The concepts of the rule of law, the separation of powers, and checks and balances are related in complicated ways. Jacob T Levy brings this to light in his thought-provoking McDonald Lecture, “The Separation of Powers and the Challenge to Constitutional Democracy.”1 In this response to Levy’s paper I want to further explore the relationship between these three ideas. I will argue that, when thinking about the rule of law, we must consider the idea of “role morality” and its place in constraining power. We should think of the constraints on power that stem from role morality as “internal” as opposed to “external” checks on power. I also suggest that we would do well to broaden our understanding of what the rule of law requires, and to think of it not just as a matter of ensuring impartiality and formal legal equality in the sense that the law applies to all actors within the system. We might benefit from thinking of the rule of law as a weightier moral concept that demands that decision-makers comply with moral ideals, and not just with the rules as laid out.

Jacob Levy describes three variants of the separation of powers in the 31st Annual McDonald Lecture in Constitutional Studies, only one of which is germane to this reflection. The first variant he describes is based solely on the independence of the judiciary from both the executive and legislative branches of governments; consequently, this variant encompasses both presidential and parliamentary systems under its conceptual ambit. Another variant, which Levy attributes to Montesquieu, envisages the separation of powers between executive, judicial, and legislative branches as a way of allowing for the “pooled”1 rule of “the one” (i.e. monarch), “the few” (i.e. aristocrats), and “the many” (i.e. the people). Levy also describes a distinctly American variant of the separation of powers undergirded by a system of checks and balances. This variant was designed to ensure “mutual monitoring between executive and legislative”2 and it vests the legislative branch with the power to impeach the executive in order to “maintain effective limits on the political power and the political ambition of the president.”3

In what follows, I reflect on themes arising from my reading of Jacob Levy’s The Separation of Powers and the Challenge to Constitutional Democracy. According to Levy, the separation of powers in contemporary constitutional democracies is failing, thus endangering the rule of law. Briefly, this is because political parties have bridged the gap between the legislature and the executive: by giving rise to partisan politics that cross the institutional divide, political parties have dampened, if not disabled, the institutional incentive and motivation of the legislature to keep the executive in check. Furthermore, when this is combined with the myth of the united and undifferentiated people, which the executive, populistically, can easily claim to embody, the simple act of opposing the executive may be framed as seditious. In the end, the power of the executive is set free by the partisan loyalty of fellow party members and by the framing of opposition as disloyal and deleterious to the polity.

No doubt exists that the separation of powers is a fundamental architectural principle in Canadian public law jurisprudence. But what about the idea of a mixed constitution? A simple CanLII search for “mixed constitution” turns up six cases. In five1 of these cases, the search reveals the following phrases: “pre-mix constituted goods,” “the mix constituting the excavated material,” “the Owners’ mixes constitute ‘bread and rolls’,” “the improper mixing constituted a fraudulent misrepresentation,” and “quality control for the asphalt mix constituted.” Clearly baking and aggregate blends figure largely in constituted mixes, but the constitutional jurisprudential sense is largely absent. That said, concerns about pre-mixing, constituted goods, excavating, improper mixing, and quality control do have some salience for the discussion that follows.

In modern legislative institutions rely on Parliament to oversee government action, particularly through select committees (PSCs). PSCs are used in democratic parliaments to achieve good governance and hold the ruling government accountable. Nonetheless, the inadequacy of the current structure hinder the PSCs from operating effectively and efficiently. Therefore, the main objective of this article is to critically analyse the practices of the PSCs in the Parliament of Malaysia during Barisan Nasional from 2004 – 2012. This article adopts a qualitative approach of parliamentary ethnography through analysing documents as instruments in collecting data and library research. This study critically assesses the composition, membership and chairperson of the PSCs based on the provisions in the Standing Orders and other relevant statutes that govern parliamentary select committees in the Parliament. Based on the analysis, the article concluded that the composition of members and chairperson of PSCs during Barisan Nasional (2004 -2012) should be revisited and improved for future practice. Unlike the standards indicated in the Commonwealth Parliamentary Association (CPA) Recommended Benchmarks for Democratic Legislatures, 2018, the study found several areas that need revisiting, including composition, membership and chairperson of PSC.

This paper studies the interactions between European Union institutions and the Member States with regard to state aid control. The mandate of the European Commission includes the maintenance and strengthening of economic integration, and as such it may discipline any Member States that undermine the single market. Relying on an original database covering all state aid applications with rulings between 2000 and 2017, we show that, on the one hand, the Commission tends to reject programs originating from countries that are resistant to EU integration, which is proxied by the transposition deficit. On the other hand, when firms or national governments appeal the decisions made by the Commission, the reversal of the Commission's rejection decisions by the Court of Justice of the European Union is positively correlated with the transposition deficit. This evidence suggests that while the Commission is biased against countries with greater resistance to integration, the Court corrects this bias since its mandate is to guarantee the rule of law in the EU system of governance. We argue that these revealed policy preferences are consistent with the assumption that these two bodies attempt to strengthen their legitimacy by making decisions in line with their mandates. Moreover, the interaction between these twin pursuits of legitimacy reinforces the overall legitimacy of the Union, suggesting another driver of evolution in an equilibrium approach of institutions.

The centralization of conflict resolution and the administration of justice, two crucial elements of state formation, are often ignored by the state-building literature. This article studies the monopolization of justice administration, using the historical example of the General Indian Court (gic) of colonial Mexico. The author argues that this court’s development and decision-making process can show us how the rule of law develops in highly authoritarian contexts. Centralized courts could be used strategically to solve an agency problem, limiting local elites’ power and monitoring state agents. To curb these actors’ power, the Spanish Crown allowed the indigenous population to raise claims and access property rights. But this access remained limited and subject to the Crown’s strategic considerations. The author’s theory predicts that a favorable ruling for the indigenous population was more likely in cases that threatened to increase local elites’ power. This article shows the conditions under which the rule of law can emerge in a context where a powerful ruler is interested in imposing limits on local powers—and on their potential predation of the general population. It also highlights the endogenous factors behind the creation of colonial institutions and the importance of judicial systems in colonial governance.

This is a doctrinal, comparative, and socio-legal analysis examining the role of the courts of India, Ireland, and Bangladesh in environmental matters. Considering the challenges they face, this thesis proposes and constructs ‘judicial pro-activism’ and ‘collaboration’ as methods to help judges in ensuring environmental justice while maintaining constitutional principles. The thesis discusses environmental justice discourse and examines the roles of the judiciaries of the selected jurisdictions in ensuring the elements of environmental justice. The examination shows that in an attempt to protect the environment, these judiciaries have encroached on the domain of other organs and have engaged in adventurism in exercising activism, or have shown judicial passivity causing injustice. A critical examination of the judicial decisions also demonstrates that the judiciary alone cannot resolve multi-faceted environmental problems by pronouncing judgments. It includes qualitative data gathered through semi-structured interviews with judges, lawyers, academics, and environmental activists. Data analyzed through a constant comparative method shows gaps between academics and practitioners impacting the development of environmental jurisprudence in the selected jurisdictions. To better protect environmental rights and the environment, and based on qualitative data, this thesis proposes that the courts should adopt a proactive role and a collaborative approach to reach a sustainable, effective, and robust decision. Case references from the selected jurisdictions are examined to develop a collaborative method. Finally, this thesis examines the functioning of the National Green Tribunal (NGT) of India to develop a stronger environmental institution to better protect and ensure environmental justice. The thesis demonstrates, through an examination of the salient features and innovative working procedures of the NGT (involving other organs and stakeholders by means of stakeholder consultation and monitoring mechanism), that the NGT has adopted a collaborative approach and can be used as a model for Bangladesh and Ireland.

Onyedinci yüzyılın önemli düşünürlerinden olan ve toplumsal sözleşme kuramını merkeze alan düşünürlerden biri olarak bilinen John Locke, siyasi düşünce tarihinde önemli bir yere sahiptir. Locke, insan doğasını barışçıl ve eşitlikçi bir şekilde değerlendiren yaklaşımı, bunun yanında mülkiyet ve devlet konularındaki fikirleri ile liberal düşüncenin inşasında önemli bir rol üstlenmiştir. Locke açısından devletin kurulma amacı, insanın doğal hakları olan hayat, özgürlük ve mülkiyet haklarının korunmasıdır. Bu amaç doğrultusunda, Locke’nin düşüncesinde devlet, sınırsız yetkilerle donatılmış bir aygıt değil, aksine, sınırlı yetkilere sahip, minimal bir devlet olarak belirmektedir. Yine, Locke’ye göre bu devlet, önceden belirlenmiş ve kalıcı nitelikte yasalar ile yönetilen bir işleyişe sahip olmalıdır. Ayrıca devletin işleyişinde kuvvetler ayrılığı prensibi benimsenmelidir. Bu açıdan Locke, liberal demokratik rejimlerin en önemli yönetim ilkelerinden biri olan kuvvetler ayrılığı prensibini sistematik bir şekilde ele alan ilk düşünür olarak dikkat çekmektedir. Bu çerçevede, bu çalışmanın konusu John Locke’nin düşüncesinde mülkiyet ve devlettir. Mülkiyet meselesi, Locke’nin devlete ilişkin düşünceleri için merkezi bir yere sahiptir. Bu noktadan hareketle, bu çalışma, Locke’nin siyaset felsefesinde önemli bir yere sahip olan devlet konusundaki düşüncelerini, mülkiyet meselesine yönelik düşüncelerinden hareketle ortaya koymayı amaçlamaktadır. Çalışmada öncelikle Locke’nin fikirleri için bir kalkış noktası oluşturan doğa durumuna ilişkin görüşleri ele alınacaktır. Daha sonra ise, mülkiyet ve devlet konularındaki düşünceleri incelenecektir., John Locke, one of the important philosophers of the seventeenth century and known as one of the philosophers who centered the theory of social contract, has an important place in the history of political thought. Locke has played an important role in the construction of liberal thought with his approach that evaluates human nature in a peaceful and egalitarian way, as well as his ideas on property and state. According to Locke, the aim of the establishment of the state is the protection of the natural Rights; life, liberty and property. For this aim, in Locke's thought, the state emerges not as equipped with unlimited powers, but as a minimal state with limited powers. Again, according to Locke, this state should have a functioning governed by predetermined and permanent laws. In addition, the principle of separation of powers should be adopted in the functioning of the state. In this respect, Locke draws attention as the first philosopher who systematically examined the principle of separation of powers, which is one of the most important administration principles of liberal democratic regimes. In this framework, the subject of this study is property and state in John Locke's thought. The issue of property is central to Locke's thoughts on the state. From this point of view, this study aims to reveal Locke's thoughts on the state, which has an important place in his political philosophy, based on his thoughts on the property issue. In the study, first of all, Locke's views on the state of nature, which constitutes a starting point for his ideas, will be discussed. Then, his thoughts on property and state will be examined.

Este texto propõe-se a explicar porque, no Império do Brasil, não foi criado um Tribunal de Contas e não foram codificadas as leis de contabilidade pública, embora tais matérias tenham sido discutidas no Parlamento desde 1826. O problema foi abordado no bojo das discussões sobre a verdade dos orçamentos e a análise considerou os pontos de vista de luzias e saquaremas quanto à fiscalização das contas públicas e à divisão de poderes na monarquia. As reformas institucionais do sistema de contabilidade pública e de tomada de contas efetuadas no Império foram analisadas à luz dos debates parlamentares e da bibliografia de apoio. A abordagem foi institucionalista histórica e as fontes investigadas foram os relatórios dos ministros da Fazenda, os anais da Câmara dos Deputados e do Senado, jornais e livros de época.

The article deals with the problematic issues of improving the functioning of the mechanism of combating drug crime and on this basis formulated recommendations aimed at improving the legal basis and practice of crimino-logical impact on drug crime. It is concluded that the search for directions of rationalization of the mechanism of combating drug crime can and should be conducted by revealing the degree of influence of the whole management mechanism, its individual elements on the objects of criminological influence in the sphere of combating drug crime, in particular, on the state of law, ensuring public safety, combating crime. The first direction of improvement of the mechanism of combating drug crime is the necessity of a scientifically grounded approach in determining the objective activity for combating drug crime on the basis of objective social needs. The formation of the subject competence of the subjects of combating drug crime must be laid down in three important conditions: first, the prin-ciple of separation of powers, according to which law enforcement agencies are assigned to the executive branch of power; secondly, the protection of only the part of the public relations which the offender encroaches upon by committing a criminal offense can be attributed to the substantive activity of law enforcement agencies; third, law enforcement agencies may be subject only to those relationships that objectively require coercive measures. Another important direction of improving the mechanism of combating drug crime is to bring the crime management system in line with the requirements of scientifically sound principles. These are the principles of balance of rights and re-sponsibilities, personal responsibility of the official for the actions or decisions taken, differentiation of competences of different bodies, divisions and officials, fixing them in the normative legal acts, conformity of the position, deter-mining the main executive level, proportional application coercive measures, etc. It is emphasized that the structural and organizational improvement of the mechanism of combating drug crime necessitates the need to determine the structure - the leader of state policy in this field, as well as the subjects of direct counteraction to drug crime. In view of these circumstances, it is important to create an organizational model of the mechanism for combating drug crime, which would include, first, the enhancement of the status of coordination bodies under the Cabinet of Ministers of Ukraine; secondly, the organizational units in the structure of the executive power of the regional level, which would provide at this level the organization of anti-narcotic activities, especially outside the sphere of law enforcement agencies; third, coordination units providing structurally (by directions): operational-search activities, external intelligence, pre-trial investigation, administrative activities in the field of control over legal drug traffick-ing, providing a single information base on drug trafficking and combating drug crime, other areas counteraction, due to the nature of the complex operational environment.

The article reveals the importance of legal culture for the social and state life of any country and for ensuring the life of both an individual and social groups, communities and humanity as a whole, which is due to its ability to involve a person in the system of legal values, accumulate legal experience and transfer it from generation to generation. It is noted that the European legal culture, in addition to natural rights, democracy, the rule of law, has other values that ensure the sustainable development of society, social justice and legal progress. It is emphasized that the analysis of legal monuments, which are so rich in European state-legal history, helps to trace the evolution of the formation of value-legal guidelines in modern Europe. Based on the analysis of the text of the Polish Constitution of 1791, those provisions that contain the fundamental values of European legal culture that have become value guidelines for the further state-legal development of Poland are highlighted. All values that stem from their content are divided into two groups: 1) values that reflect the value guidelines of the Polish society of that time (patriotism, religious tolerance, freedom, dignity, equality, property, inviolability of legal certainty, people); 2) values that reflect value guidelines for the organization of state power (the principle of sovereignty of the people, the principle of separation of powers, the principle of popular representation, the constancy of the constitution, the principle of majority, the principle of political responsibility). According to the results of the study, the Polish Constitution of 1791 is an example of an amazing symbiosis of traditions and innovations, when such progressive values as patriotism, religious tolerance, people, territorial integrity, freedom, the principle of sovereignty of the people, the principle of separation of powers, political responsibility, the principle of popular representation, the principle of majority coexist with traditional estate privileges and the institution of dependent peasants. It is indicated about the special attitude of the Polish people to this document as a certain state symbol.

Мета: дослідження верховенства права як принципу в діяльності судової влади в таких аспектах, як з’ясування витоків ідеї верховенства права, співвідношення концепцій верховенства права і судової влади, аналіз відповідної доктрини в Україні. Методи: діалектичний, герменевтич- ний, прогностичний, порівняльно-правовий, формально-логічний, метод моделювання, декомпозиції, комплексного аналізу, міжгалузевий метод юридичних досліджень, логічні методи, що були вико- ристані як інструментарій для досягнення поставленої мети. Результати. Застосовуючи принцип верховенства права, суддя має пам’ятати про нього як про глобальну мету правосуддя – панування верховенства права в суспільстві. Вирішення кожного спору й будь-якого правового конфлікту має бути спрямоване на дотримання цього принципу. Обговорення. З практичної позиції верховенство право визначає місце судів у системі публічної влади, яке має засвідчувати не лише реальний розпо- діл влади, а й спроможність судової влади обмежувати дискреційні повноваження законодавчої та виконавчої влади і в такий спосіб гарантувати захист від свавілля. Це можливо лише за умови неза- лежності суду (і процедур правосуддя) від інших гілок влади. Такий підхід до взаємозв’язку поділу влади (традиційно – елементу концепції правової держави) зближує концепції верховенства права та ідеї правової держави в сучасних умовах.

Efforts to build a regional human rights mechanism in Asia are being renewed. Separation of powers adjudication will be inevitable if the right of access to court is included in the new mechanism. This is significant since the potential for separation of powers cases involving human rights issues in Asia is high. An Asian human rights mechanism must take this possibility into account, since adjudicating on such issues may severely impact its stability and long-term viability. A mechanism based on existing regional systems such as the ECHR can seek to minimize these risks via institutional solutions. On the other hand, an Asian mechanism can side-step these issues in the short term by focusing on a narrow set of rights, which minimize the potential for raising issues of separation of powers. In the long term, however, a complete charter of fundamental rights cannot ignore separation of powers issues being linked with human rights. The aim of this paper is to highlight both the inevitability and risks of adjudicating cases involving a nexus between separation of powers and human rights by a regional human rights court.

The article presents the author’s interpretation of the role and significance of politics in the history and theory of legal science and practice. It is emphasized that the actualization of this theory is associated with modern ideas of digitalization in the management of both individual social groups and society as a whole. Significant in the modern period problems of the exercise of powers by state authorities and their officials, the balance of public and private interests, the separation of powers of the judicial and administrative branches of government, the implementation of the idea of the common good, the special role of the head of state, studied by the police, determine the relevance of the analysis of the role and significance of police studies in the history and theory of legal science and practice.

Este trabajo surge de la convicción de que se ha estudiado exhaustivamente lo que podríamos llamar la vertiente positiva de la historia del Estado de Derecho, sobre todo la separación de poderes; pero no se ha estudiado tanto su vertiente negativa, el concepto de arbitrariedad y cómo ha sido percibida esta por los ciudadanos a través de la Historia. Para ello, tras un rápido repaso a los precedentes clásicos y de la Edad Media (con la Carta Magna a la cabeza), se analizan las tres grandes revoluciones modernas contra el poder arbitrario: la inglesa del siglo XVII y la americana y la francesa del XVIII, para a continuación estudiar la lucha española del siglo XIX. El análisis de estos grandes momentos históricos nos lleva a un resultado muy sugerente para el mundo jurídico: la distinta percepción de quien era el poder arbitrario (el rey en Inglaterra, el Parlamento en Estados Unidos y el rey y sus tribunales en Francia y España) llevó a una diferente articulación de la común división de poderes, con mecanismos de control de la arbitrariedad política eficaces en Estados Unidos y Gran Bretaña y bastante menos, en Francia y España., The main purpose of this study, based on the conviction that what we might call the positive aspect of the history of the Rule of Law, especially the separation of powers, has been thoroughly studied, is to examine its negative aspect, i.e., the arbitrariness concept and the manner in which citizens have perceived it throughout history. To address this matter, first there is a brief review of the historical background of the Ancient Times and the Middle Ages (with emphasis on the Magna Carta). Secondly, the three major revolutions of Modern Times against the arbitrary use of power are analyzed: the English Revolution of the 17th Century, the American Revolution and the French Revolution of the 18th Century and then the Spanish Revolution of the 19th Century. The analysis of these important historical times provides a very interesting result to the judicial sphere: the different perception of the one holding the arbitrary power (the King in England, the Parliament in the United States of America and the King and its Courts in France and Spain) led to a different articulation of the common division of powers, with efficient mechanisms to prevent the arbitrary use of power in politics in the United States of America and Great Britain and rather less efficient in France and Spain.

We investigate whether judicial decisions are affected by career concerns of judges by analysing two questions: Do judges respond to pandering incentives by ruling in favour of the government in the hope of receiving jobs after retiring from the Court? Does the government actually reward judges who ruled in its favour with prestigious jobs? To answer these questions we construct a dataset of all Supreme Court of India cases involving the government from 1999 till 2014, with an indicator for whether the decision was in its favour or not. We find that pandering incentives have a causal effect on judicial decision-making. The exposure of a judge to pandering incentives in a case is jointly determined by 1) whether the case is politically salient (exogenously determined by a system of random allocation of cases) and 2) whether the judge retires with enough time left in a government’s term to be rewarded with a prestigious job (date of retirement is exogenously determined by law to be their 65th birthday). We find that pandering occurs through through the more active channel of writing favourable judgements rather than passively being on a bench that decides a case in favour of the government. Furthermore, we find that deciding in favour of the government is positively associated with both the likelihood and the speed with which judges are appointed to prestigious post-Supreme Court jobs. These findings suggest the presence of corruption in the form government influence over judicial decision-making that seriously undermines judicial independence.

Fil: Primiterra, Emiliano. Universidad de Buenos Aires; Argentina Resumen: La obra de Juan Quidort de París posee una gran influencia de Tomás de Aquino, como así también de Cicerón. Sin embargo, su propuesta sobre lo que es el poder político es distintas a las de ellos dos. En el presente trabajo me propondré demostrar las influencias de los autores que sirvieron a la teoría quidortiana determinando las diferencias y aportes propios de Juan de París a la hora de pensar tesis de la separación de poderes en el Siglo XIII. Abstract: The work of John Quidort of París has a great influence by Tomás Aquinas and Cicero. However the proposals on the nature of the political power in these philosophers are different in some respects. In the present paper I will demónstrate the influences of both authors wliich help the quidort theory, not without-first-determining the dif- ferences and personal thesis of John of París at the first moment when the Parisian philosoplier thinks the separation of powers' thesis at 13th century.

Introduction. In the context of the COVID-19 pandemic announced by the WHO in 2020, American researchers bring up the question of the legitimacy, adequacy, or, on the contrary, redundancy of measures taken by the US leadership to protect the population. The study of the US President’s history of emergency powers can demonstrate how previous American Presidents managed to preserve or, conversely, subvert the established liberal foundations of American society in emergency situations. Methods and Materials. The author used methods of structural analysis and synthesis, historical and legal comparative method, formal legal method, and method of legal modeling. Analysis. The author studied A. Lincoln’s extra-constitutional authority to emancipate slaves, suspend the Habeas Corpus Act, create a volunteer army, and declare a naval blockade. On the basis of legal sources, we carried out the analysis of F. Roosevelt’s decisions on the creation of courts-martial and the internment of people of Japanese descent; reviewed the activities of G. Bush after the September 11 attacks and D. Trump’s emergency measures related to building the border wall in the south of the USA. Results. During the research, we found, that each military, economic, or social crisis increased the political significance and role of the executive branch in emergencies. We can characterize the increase of the emergency powers, delegated to the US Presidents, as steadily growing due to the crises that took place in various periods of American history. It was proved, that the precedents of emergency measures created by A. Lincoln, F. Roosevelt and George W. Bush had a long-term impact on the actions of the next US Presidents, opening up new legal opportunities for the use of emergency powers. At the same time, Congress and the US Supreme Court have taken a controversial stance on the validity of the President’s actions at various historical stages. Most of the time, the status of the legislative and judicial branches of government, as well as the understanding of “emergency situation” itself depended on the specific case and practical political needs.

Los procesos de independencia en América Central y en el Perú son el resultado de un conjunto de pensamientos y acciones de cambio del sistema colonial español, concebidos por diversos personajes, que impulsaron la emancipación y perfilaron la nueva estructura del Estado liberal en la primera mitad del siglo XIX, basado en el principio de la separación de poderes, concepto legado por la escuela francesa. En ambos procesos, destacan dos sabios que ejercieron una notable influencia, José Cecilio del Valle en América Central, e Hipólito Unanue en el Perú, quienes con su reflexión y dedicación, fueron decisivos en la formación de consensos que forjaron la emancipación y la creación de nuevas unidades políticas independientes.

The COVID-19 pandemic has not only caused millions to die and even more to lose their jobs, it has also prompted more governments to simultaneously declare a state of emergency than ever before enabling us to compare their decisions more directly. States of emergency usually imply the extension of executive powers that diminishes the powers of other branches of government, as well as to the civil liberties of individuals. Here, we analyze the use of emergency provisions during the first wave of the COVID-19 pandemic and find that it can be largely explained by drawing on political economy. It does, hence, not constitute an exception. We show that many governments have (mis-)used the pandemic as a pretext to curtail media freedom. We further show that executive decrees are considered as a substitute for states of emergency by many governments.

During the 30 years of Ukraine's independence, work has been underway to build a system for ensuring the national security of the state (security and defense sector, defense forces). With the publication of a new version of the Law of Ukraine “On National Security of Ukraine”, the structure of governing documents of the state has changed. At present, the stage of elaboration of the relevant normative documents by the central executive bodies, which perform tasks in the field of national security and defense, is underway. When forming the regulatory framework of the state, it is advisable to take into account the experience of building national security systems of the world. The article analyzes the experience of the USA, Canada, Europe, China, Turkey, Japan, and South Korea. Leading Western countries have two basic models of division of powers of the main defense institutions, which can be called American and European. These are in fact “presidential” and “parliamentary” models. In both, all military functions, including military intelligence and military counterintelligence, are vested in the Ministry of Defense. This combination of powers is accompanied by a developed system of civilian control over the military authorities. Dual positions, such as “head of the coordinating body - assistant or adviser to a national security official”, are now being created in many NATO countries. This allows to significantly increase the controllability and coordination of the security and defense sector, increase the efficiency of making and implementing security and defense decisions. In general, the structure of national security systems has the same global trends and is functionally divided into defense forces and security forces. Situation centers (information and analytical units) are used to prepare and make decisions in crisis situations. Given that in accordance with the requirements of normative documents of Ukraine there is a need to create situational centers in various spheres of state activity and taking into account the state of crisis response systems in Ukraine it is advisable to create a single state hierarchical network of situational centers with elements, which are responsible for the relevant areas (spheres) of the state in the coordinating role of the Main Situational Center of Ukraine.

The Constitution’s division of powers from which E. Corwin famously asserted an “invitation to struggle” in the making of US foreign policy (1957, 171) has become overshadowed by partisan conflict in the contemporary era. Although much of the extant literature points to Congress’s subsidiary role in foreign policy relative to the presidency-centered model, the appeal of partisanship has worked to further deepen congressional abrogation and extend presidential unilateralism (Lindsay in Congress and the politics of U.S. Foreign Policy. The Johns Hopkins University Press, Baltimore, 1994; Kriner in After the rubicon: congress, presidents, and the politics of waging war. University of Chicago Press, Chicago, 2010; Potter in Pres Stud Quart 46(4):849–867, 2016). Our analysis illustrates a puzzle. On one hand, there are growing levels of majority support in the USA for political leadership on the world stage. But on the other hand, our analysis of congressional behavior such as voting, lawmaking, and oversight shows relatively clear patterns of congressional decline—Congress no longer exercises much of its power in foreign affairs, neither in form or substance. Partisan incentives for congressional abdication to the presidency carry at least one additional risk we point to: Congressional capitulation from its constitutional duty places democracy in the jeopardy that the Framers’ design was intended to prevent.

The article provides a comparative legal analysis of the articles of the Constitution of Turkey in 1982 and amendments to it in the executive branch, which were submitted to the national referendum of Turkey in 2017. The consequences of the constitutional reform on the further democratic development of Turkey are analyzed, as well as the possible transformation of Turkey into a country with an authoritarian form of government. The article examines the work of Turkish and foreign researchers on the impact of the new political system on the independence of all branches of government, and analyzes the international legal position of the European Union on constitutional changes in the context of fulfilling the Copenhagen criteria for Turkey’s membership in the European Union and the possibility of closing negotiations on Turkey’s accession to the European Union. It is stated that under the 1982 constitution, Turkey was a parliamentary republic in which real power belonged to the head of government, and the country’s president performed mainly representative functions. The latest amendments to Turkey’s basic law were made after a referendum on September 12, 2010 to bring it in line with European Union standards. The referendum began the demilitarization of the 1982 constitution and changed the foundations of Turkish statehood, laid in the 1920s by the founder of the Turkish Republic, Mustafa Kemal Ataturk. In particular, the influence of the army on the political and social life of the country has decreased. It is said that by applying draconian laws and judicial repression the President seeks to reduce the influence of the democratic opposition, which will not have the courage or ability to challenge the growing authoritarianism in the country. For this reason, the party’s legal regime combines the full subordination of the judiciary to the executive with a combination of strategies to use judicial repression to demobilize all sources of opposition and to suppress any possible alternatives within the current political bloc.

The author examines the tension that exists between the various components of the separation of powers (in particular the ideas of independence and separation, and the system of checks and balances). He analyses different ways of solving them. Attention is paid, for example, to attempting to supplement the separation of powers with some other normative thesis. The author rejects previous approaches and argues that the components of the separation of powers can be understood as separate principles. Conflicts between these principles should be resolved through proportionality.

Emergency governance, we are often told, is executive governance. Only the executive branch has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. Ordinary checks and balances, then, are believed to effectively disappear during a crisis. Referring to the classic theorist of emergency rule, conventional accounts describe crisis governance as “Schmittian” and “post-Madisonian,” characterized by an unbound executive that faces few, if any, legal constraints. This Article interrogates these propositions using evidence from how countries around the world have responded to the 2020 global pandemic. It presents data from an original and global survey of over one hundred countries to evaluate the nature of emergency powers during the pandemic. The survey captures, for each country, the legal basis for the country’s pandemic response as well as the extent to which there has been judicial or legislative oversight, and whether the central pandemic response has encountered pushback from subnational units. This Article finds that, contrary to this conventional wisdom, courts, legislatures and subnational governments have played important roles in constraining national executives. Courts have played three different roles: (1) they have insisted on procedural integrity of invocations of emergency; (2) they have engaged in substantive review of rights restrictions, balancing rights against public health concerns; and (3) they have in some cases demanded that government take affirmative steps to combat the COVID-19 virus and its effects. Legislatures have likewise played an active role in providing oversight and, in many cases, in producing new legislation that responds to the current crisis. Subnational governments, too, have pushed back against central authorities, engaging in valuable checks and balances that shaped the appropriate response. Taken together, these findings suggest that, in the current crisis, emergency governance has been closer to the Madisonian ideal of strong checks and balances than to Schmittian accounts of an unbound executive. This Article considers the implications of these findings for theories of emergency governance, arguing that the conventional theories are based on one particular type of crisis—a national security crisis—and therefore their insights are ill-suited to other kinds of emergencies, such as a pandemic. It develops a typology of crises and conceptualizes how different kinds of emergencies require different modes of crisis governance. Specifically, in crises like a pandemic—in which information is dispersed, the crisis is slow-moving, and local governments are needed to implement the crisis response—the executive is structurally more bound than in national security crises. This Article further defends the role of institutional checks and balances during emergencies, arguing that they are likely to produce more legitimate and reasoned responses than the executive acting alone. This is especially important in situations in which it is not clear what the optimal response is, and for which different societies may have legitimate differences over how to balance protective measures against civil liberties. For many crises, then, emergency governance should be Madisonian, not Schmittian.

In The Jurists Foundation v Federal Government, the Supreme Court of Pakistan delivered a significant judgment about the country's Chief of Army Staff (COAS). The Court held that an executive attem...

A medida que la indeterminación y fragmentación legal se extienden por el ordenamiento internacional, los gobiernos encuentran más oportunidades para expandir su margen de discrecionalidad y esquivar el control de legalidad del poder judicial. La consecuencia de este desequilibrio entre poderes es la afectación de las premisas del Estado de Derecho y, a la postre, la desprotección de los ciudadanos. Sin embargo, la llamada coordinación inter-judicial puede mejorar la posición jurídica del ciudadano tanto en el estado como en el orden internacional, puesto que recupera y avanza el principio de separación de poderes, el imperio de la ley y la protección de los derechos fundamentales (y humanos) en el ordenamiento nacional e internacional, respectivamente.