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The article is devoted to the problems of the development of Ukrainian constitutionalism, identification of problematic issues and development of ways to avoid them. The research conducted in the article has established that constitutionalism is a complex and multifaceted political, legal, historical, social and cultural phenomenon. The article states that constitutionalism in modern scientific doctrine is considered in the historical-philosophical, political and legal aspects. Legal understanding of constitutionalism involves the normative consolidation and practical implementation of the features of constitutionalism, constitutional values and principles with the formation of appropriate regulatory methodology and mechanisms.It is also shown that constitutionalism is a complex systemic formation, which elements: factual and legal constitution, constitutional theory, constitutional relations, constitutional legal consciousness, constitutional legality and legal order. The basic values of constitutionalism include civil and political freedom, the service of the state to society and law, and civil consent. Society and the state are faced with the need to realize these shortcomings and make appropriate changes to the Constitution of Ukraine. Elaboration of the concept of amendments to the Basic Law and the draft law on amendments to the Constitution of Ukraine on its basis is becoming an increasingly important factor in stimulating further development of domestic constitutional and legal thought, raising legal awareness and legal culture. The state of modern Ukrainian society and the political process in Ukraine objectively requires the improvement of the constitutional regulation of public relations. The need and importance of changes to the Constitution is explained primarily by the need to improve the political and institutional design of statehood, the rejection of the vestiges of the Soviet legal heritage, the implementation of the latest political and legal vision of the state. Scientific support of constitutional and legal modernization should be based on the principles of deep mastery of the theory of modern constitutionalism, comprehensive analysis of Ukraine’s interaction with international institutions on constitutional reform, creative understanding of the European legal and political space to which Ukraine seeks to integrate. This will allow to determine the optimal ways of constitutional construction, which would organically combine the best foreign developments in this field and established domestic legal traditions.

In On the People’s Terms, Philip Pettit incorporates the Sieyèsian notion of constituent power into his constitutional theory of non-domination. In this article, I argue that Emmanuel Sieyès’s understanding of liberty precludes such an appropriation. While a republican, his conceptualisation of liberty in the face of commercial society stood apart from theories of civic vigilance, preferring instead to disentangle individuals from politics and maximise what he understood to be their non-political freedoms. Sieyès saw that liberty was heightened through relations of representation and commercial dependency. This conception of liberty was pivotal to the identity of the nation, and so allowed Sieyès to assess forms of collective injustice committed by the French nobility. It also provided the normative foundation of his theory of constituent power. For Sieyès, constituent power guarded against legislative excess in a decidedly minimal sense, intending instead to separate citizens from the political sphere so they were not burdened with ongoing participation or public vigilance.

The subject of the constitution modification procedures are a central issue of constitutional theory since relative immodificability is one of the essential characteristics of the formal concept of constitution currently prevalent. Although the procedure for reforming the Brazilian Federal Constitution and the various amendments approved in the thirty years of its validity are the subject of fruitful literature, the theme of amendments to state constitutions is lacking in exploration in Brazil. This study which is made on the basis of partial results of an ongoing scientific research project, intends to explore this theme of great relevance in an ambience of constitutional pluralism typical of the federal state. To this end, after making a brief introduction to the theme, with general reflections on the constitutional rigidity and on the required procedures for formal amendment of the constitutional text as well as on the implications arising from subnational constitutionalism, the text briefly examines the historical development of the legal regime of constitutional amendment in the Brazilian federal Constitutional Law. After such contextualization the results of the research itself are exposed, tracing a comparative overvies of the formal procedures for changing the 27 subconstitutions in force in the country in relation to several aspects, specially initiative, popular initiative, rounds, quorums, time lapses, material limits and stability. The research concludes that the state constitutions and the Organic Law of the Federal District suffer significant influence from the federal model in terms of their own emendability, but in spite of this present significant originality, notably when a significant majority (more than 2/3 of the current charters) establishes popular initiative of popular amendments. It was also found that 1/3 of the analyzed subconstitutions have entrenched clauses, with greater or lesser dependence on the federal model and that the majority of State constitutions and the semi-constitution of the Federal District reveals a similar degree of stability in comparison beetwen them, some of which stand out for showing greater or lesser frequency in the formal alteration of their texts, which, however, does not seem to be related to the procedural requirements for constitutional reform adopted. Regarding the methodology, the research is characterized as basic, quantitative, qualitative and comparative.

In this paper, I first provide an idealized functional account of political parties and party systems. I argue that parties are difficult to regulate constitutionally because of their Janus-faced public-private character. The key function they perform, when functioning as they ought to function, is to facilitate a mutually responsive relationship between public policy and popular opinion by acting as an intermediary between a state and its people. They perform this intermediary function in a unique manner, because of their bi-directionality and their plenary character. When they perform this function effectively, political parties significantly reduce four key information and transaction costs which would otherwise make democratic governance impossible: political participation costs, voters’ information costs, policy packaging costs, and ally prediction costs. This idealised account helps us identify pathological parties and party-systems and ground four principles that constitutions should seek to optimise in relation to political parties. The second part of this paper outlines and defends these four principles. Here I argue that state constitutions: i. should guarantee maximum autonomy for the formation, organisation, and operation of political parties, moderated by the restrictions necessitated by their purpose of winning (a share in) state power (for fixed terms) in competitive elections by acting as intermediaries between the state and its people (the ‘purposive autonomy principle’); ii. should try to optimise the party system such that the total number of serious political parties is large enough to broadly represent every major ‘voter type’, but not so large that the information costs on judicious voters are too high (the ‘party system optimality principle’); iii. should ensure a separation of parties and the state (the ‘party-state separation principle’); and iv. should discourage the factionalization of political parties (the ‘anti-faction principle’). These political principles are drawn from the value of democracy itself. They are likely to bring real world political parties and party systems closer to their idealised form, thereby improving and deepening democratic governance. As such, they should—alongside other relevant political and constitutional norms—inform fundamental constitutional design choices.

‘Bill Scheuerman’s ‘The End of Law’ offers a compelling case for the claim that Carl Schmitt’s constitutional theory is not authentically democratic. This does not entail, however, that Schmitt’s views are of no relevance for understanding the contemporary crisis of democracy. Schmitt’s arguments offer a blueprint for the populist-authoritarian subversion of democracy. Defenders of democracy are therefore well-advised to engage with Schmitt’s ideas.’

The standard opinion is that the force of the constitution hinges on the fact that it is willingly endorsed by the people or, at least representative of the people. This Article challenges this view. More specifically, I differentiate between two types of legitimation: representational legitimation and non-representational or reason-based legitimation. While representational legitimation rests on the fact that the constitution is representative of who the people are or what they want, reason-based constitutions are based on the judgement that the constitution is just or, at least grounded in reason. I also show that some of the puzzles in constitutional theory can be resolved by acknowledging the significance of the latter type of legitimation. For instance, I illustrate that constitutions that were not adopted freely by the nations and could not have been characterized as representative of the people such as the German Constitution can still be legitimate. To put it provocatively: the legitimation of a constitution need not rest on the conviction that it represents the people whom it governs; it may simply rest on the belief that it is a good or just constitution. Representational legitimacy is only one form of legitimacy but not the only one.

In this review essay, I focus on the contribution of Legislated Rights 1 to a central issue in constitutional theory: namely, how the institutional division of labour between the legislature and th...

Legislated Rights is a welcome contribution to constitutional theory. The book’s overall aim is to rehabilitate the role of legislation and legislatures in ‘securing human rights’ (p. 1). 1 A major...

In the article some problems of the theory of functions of constitutional and legal responsibility are researched. The relationshipbetween the goals, objectives and functions of constitutional legal responsibility, the functions of the Constitution, the functions of constitutionallaw, the functions of the state and the like is substantiated.Exploring the problems of constitutional and legal responsibility, it is necessary to proceed from a methodological position onunderstanding the functions of legal responsibility in general and the functions of constitutional and legal responsibility in particular,as an active way of constitutional and legal responsibility, directions and forms of its impact on public relationship, the content of thistype of legal responsibility, its purpose in society and the state, as well as its place in the system of protection of the Constitution andthe constitutional order.Equally important in creating a holistic theory of the functions of constitutional responsibility is the consideration and relationshipof the category “function of constitutional responsibility” and phenomena such as “objectives of constitutional responsibility”,“tasks of constitutional and legal responsibility” and “principles of constitutional and legal responsibility”. Certain theoretical differencesin the definition of these essentially different and, at the same time, interconnected categories give rise to significant contradictionsand conflicts in constitutional theory and legislative practice. They can be overcome only by creating a holistic system of conceptsin which the concept of “function of constitutional and legal responsibility” will occupy a clearly defined place.It is concluded that the concept of “functions of constitutional and legal responsibility”, on the one hand, and the concept of“functions of the Constitution”, “functions of constitutional law”, “functions of the state”, “functions of subjects of constitutional law”,on the other hand, are mutually related. Consequently, this issue of scientific research is relevant and practically significant both interms of the theory of constitutional law and its institutions, primarily the theory of constitutional and legal responsibility, and theapplied aspect, primarily in the context of formation and implementation of legal personality of subjects in constitutional and legal relationship,first of all, bodies and officials of state power and local self-government.It is argued that its functionality and effectiveness depend on the correct definition of the goals and objectives of constitutionalresponsibility.

Neste estudo examinou-se a controvérsia sobre a constitucionalidade da Lei 13.303/16, denominada “Estatuto das Empresas Estatais”. Concluiu-se, de início, que o ponto de partida dessa controvérsia está na própria compreensão do estudo do Direito como um estudo técnico ou científico. Após, conclui-se que a correta compreensão das empresas estatais prepõe a ênfase sobre o aspecto estatal e não sobre o aspecto empresarial. A compreensão do regime jurídico das empresas estatais passou por três fases: submissão ao direito privado; submissão ao direito público e ao direito privado com dicotomia de regimes; unificação de regimes. Propôs-se o ingresso numa quarta fase: a forma de empresa estatal só é válida para as exploradoras de atividade econômica. As demais são contrafações de autarquia.

Scholarly consensus sees EU supremacy as “necessarily bidimensional”: the supranational dimension necessarily stands alongside the national dimension, which rejects the absolute and unconditional supremacy of EU law. I argue that this view of bidimensional supremacy is conceptually flawed and descriptively inaccurate. On the conceptual side, I identify the fallacy of symmetry (the idea that national and supranational perspectives on supremacy are similar in nature and equally reductionist), the fallacy of selection (the view that bidimensionalism alone can overcome what it perceives as an inevitable subjective bias in the choice between national and supranational supremacy claims), and the fallacy of construction (an originally shared popular sovereignty theory, which turns out to be riddled with biases that disrupt the equilibrium within the internally divided sovereign). On the interpretative side, I suggest that the empirical evidence in support of bidimensional supremacy is weaker than it is generally assumed. I then offer an interpretation of the PSPP judgment of the German Federal Constitutional Court, which holds a judgment of the Court of Justice of the European Union to be ultra vires, unlawful and thus non-binding. PSPP presents a problem of German origins and cast, rather than one stemming from the inner structure of EU constitutionalism. At most, PSPP represents a contingent, rather than necessary, and thus unexceptional instance of bidimensional supremacy.

Mexican constitutional theory has generally mentioned the public order and benefit as the groundwork for the State's assets recovering considered as illegal. What has changed over time are the different hypothesis in which state appropriation can be enforced, some of them go from considering state appropriation as a punishment, authority, right to a faculty. Today the asset recovery, by constitutional mandate, is considered a civil and autonomous act nature through by all means the State must become the possessor of all assets whose legitimate origin cannot be proven. This by all means is a figure whose origin and constitutional proceedings becomes controversial., Atendiendo a su historia constitucional, México ha aludido, en lo general, al bien común y al orden público, como el fundamento para que el Estado se apropie de los bienes considerados, lato sensu, como ilícitos. Lo que ha cambiado a lo largo del tiempo, radicalmente en ciertos casos, es el considerar a la apropiación estatal una pena, sanción, derecho o facultad, así como la vía en que aquella habría de hacerse valer. Hoy en día la extinción de dominio, por mandato constitucional expreso, es la acción, cuya substanciación es de índole civil y autónoma, por medio de la cual el Estado habrá de hacerse del patrimonio cuya legítima procedencia no pueda acreditarse. Figura cuya construcción, tanto constitucional como convencional y legal, deviene en polémica.

This article claims that, despite its ambivalent relationship with the heterarchical paradigm,A Union of Peoplesis a truly innovative contribution to the complex debate on the European project, especially in the current troubled climate. Its ability to dismantle the prevailing positivist understanding of the interaction between legal orders and to stand out from the overwhelming and often repetitive literature on the philosophy of EU law should be praised. What is especially noteworthy is the idea of “corrective justice.” This notion explains very well the adoption of financial assistance measures as expression of a new form of solidarity, based on the notion of fair redress for a committed wrong, namely the structural deficiencies detectable in the design of the eurozone.

The American constitutional theorist Bruce Ackerman has recently suggested that the UK Parliament should call a constitutional convention to draft a written constitution that can be put to voters in a national referendum after a two-year drafting period. In this article, I examine a number of points of disjoint between these proposals and Ackerman’s own, “dualist” theory of constitutional change, developed from an intriguingly novel reading of American constitutional history. While this theory advocates generation-spanning, multi-institutional processes of constitutional change, Ackerman’s UK proposals involve a more fleeting and nationalistic approach, with unitary majorities apparently reigning supreme. The question is: can this disjoint between Ackerman 1 and Ackerman 2 be justified as Ackerman’s attempt to work within the contours of the UK’s constitutional culture, traditionally conceived? Or might Ackerman’s unfiltered American theory have something important to offer a UK audience today, given the divisions that the Brexit process has revealed in British society between opposing, traditional and non-traditional understandings of British sovereignty and democracy?

portuguesEm 1971 o filosofo estadunidense John Rawls apresentou ao mundo sua obra intitulada Uma Teoria da Justica, e nela o autor defende, entre outros pontos importantes para a filosofia e a teoria politica, uma teoria constitucional da desobediencia civil enquanto um ato politico, publico, consciente e nao-violento. A partir da ideia rawlsiana de uma teoria constitucional da desobediencia civil, neste trabalho deseja-se pensar como a desobediencia civil, formulada pelo autor em TJ, estaria “casada” com suas obras posteriores a 1971, em especial com o Liberalismo Politico de 1993, uma vez que o autor nao retoma o tema em suas obras tardias. Dessa maneira, levanta-se a hipotese de que ha uma continuidade nas obras do autor estadunidense, sobre a qual se pretende: (i) apresentar o conceito de desobediencia civil cunhado pelo autor na obra de 1971; (ii) relacionar o conceito rawlsiano de desobediencia civil com o pluralismo razoavel exposto pelo autor nas suas obras tardias; e (iii) discutir o papel da razao publica no pensamento rawlsiano e o porque deve-se apelar ao senso de justica da maioria – que outrora permitiu uma lei injusta – nas discussoes sobre desobediencia civil. EnglishIn 1971 the American philosopher John Rawls introduced to the world his work titled A Theory of Justice and in her the author defends, among other important points for the philosophy and the political theory, a constitutional theory of civil disobedience as a public, conscious, political and non violent act. From the Rawlsian idea of a constitutional theory of civil disobedience, in this work we wish to think how the civil disobedience formulated by the author in TJ would be "married" to his works after 1971, especially with Political Liberalism of 1993, since the author does not take up the theme in his later works. In this way, the hypothesis is raised that there is a continuity in the works of the American author, on which it is intended: (i) present the concept of civil disobedience coined by the author in the 1971 work; (ii) relate the Rawlsian concept of civil disobedience to the reasonable pluralism exposed by the author in his late works; (iii) and to discuss the role of public reason in Rawlsian thought and why one should appeal to the sense of justice of the majority - which once permitted an unjust law - in discussions about civil disobedience..

The article analyzes peculiarities of formation of a two-house parliament in the conditions of constitutional democracy. It has been established that parliamentarism, which theoretical origins date back into the doctrines about folk and national sovereignty, is logically connected with the establishment of principles of the supremacy of law and democracy in society and the state, with the implementation of effective mechanisms to guarantee constitutional human rights, as well as with the formation of such institutions that would ensure the most complete and comprehensive conduction of its functions and meeting the needs of society. Ukrainian parliamentarism has long-standing historical roots. Modern legal scholars consider that there are a few precursors of national parliamentarism. These are Viche democracy and feudal congresses in Kyievan Rus, Cossack councils and Cossack democracy in general, the activities of the Central Rada and even to some extent the “parliamentarism” of the Soviet era. However, the establishment and development of full-fledged national parliamentarism became possible only after Ukraine’s independence in 1991. It has been summarized that nowadays, comprehensive outspread of the theory and practice of bicameralism should be recognized as one of the most distinctive tendencies of genesis of modern constitutionalism. In the last decades, many countries around the world, regardless their state form of government, have intensified processes of transition to a bicameral structure of a parliament. Even if in the early 70’s of XX century two-house parliaments functioned in 45 countries in the world, in 2008 their number reached 70. Yet, another ten more countries are preparing to switch to the bicameral structure of their parliaments. Currently, two-house parliaments have ceased to be a tribute of historical traditions of constitutionalism or some “anomaly” of the state legal development of countries, which are united by one legal system. Bicameralism has become a daily political and legal phenomenon for a large number of population of our planet. These are the most economically developed countries of the world that have chosen such a system of parliamentarism at present. Therefore, out of fifteen countries that have the highest indicators of the gross domestic product in the world, only two, that is China and South Korea, have one-house national legislative bodies. It has been recapitulated that the European Union and its member states are gradually asserting bicameralism both in the constitutional theory and in practice. Particularly, two-house parliaments are successfully functioning in such unitary member states of the European Union as Austria, Ireland, Spain, Italy, Poland, Slovenia, Romania, France, the Czech Republic, Switzerland and others.

The change of the scientific paradigm in Russian jurisprudence is accompanied by the affirmation of pluralism in a legal science. The paper has highlighted that the modern Russian constitutional theory seeks to express itself in the problems of ontological and axiological foundations, claiming to form an integral ”constitutional philosophy.”Constitutional axiology represents one of the most significant concepts of constitutionalism. Constitutional axiology is built as a field of scientific reflection (the nature, content, system of constitutional values). From these standpoints, the author provides for the assessment of law-enforcement carried out by the body of constitutional justice. The paper recognizes the high importance of research of constitutional law from the axiological point of view.The author has concluded that constitutional values as a reflection and expression of the “charter” of the life of the society (“protoconstitutional”) represent objectivated systemic totality functioning as the ultimate goal of constitutional development. Constitutional values represent concepts that must correspond to the social and spiritual environment of the society and the purpose of the State.The paper critically assesses the concept of a “living constitution” in its Russian interpretation as the constitutional and appraisal activity of the Constitutional Court of the Russian Federation with regard to “generation” of constitutional values. It is noted that the result of the work of the Constitutional Court of the Russian Federation expressed in its legal determinations, can not represent other (“generated” by it) constitutional values except those contained in the Constitution of the Russian Federation. “Transformation” of the content and legal attitudes and meanings of the Constitution, constitutional values without changing the text of the Constitution may lead to “distortions” of the essence of the Constitution and intent for the Constitution to be an act with the highest legal force.

Attraverso un'insolita categoria di teoria costituzionale - il disordine - questo breve saggio affronta l'introduzione della giustizia costituzionale con la Corte costituzionale nella Costituzione italiana. Dal punto di vista storiografico il saggio descrive gli eventi più importanti quando la Corte ha definito le caratteristiche e i limiti della revisione della legislazione in Italia, e quindi i suoi strumenti e la sua posizione e la posizione del Parlamento e dei giudici come effetto. Il saggio sottolinea che il disturbo più importante è stato il disgiungimento delle rigidità soggettive dal diritto, soprattutto attraverso l'arte. 2 della Costituzione.

The ‘Basic Law: Israel as the Nation-State of the Jewish People,’ passed by the Knesset on July 19, 2018. This Article describes the main provisions of the Basic Law; it discusses some of the past history leading to the legislation. It also provides some evaluation as to its effects and speculations concerning its future. Last I use this basic law to make a broader point concerning constitutional legitimation. More specifically I argue that there are two ways to gain constitutional legitimacy: representational and reasons-based. While particularistic values such as the ones entrenched in the basic law gain legitimacy from representation, universalistic values need not rest on representation. I conclude by arguing that given the failure to gain consensual support for the basic law it is an illegitimate attempt to entrench particularistic values in a divisive society. It is only by representing the public as a whole that this law can gain constitutional legitimacy.

Aaron Aleksander Olizarowski, prawnik i autor "De politica hominum societate" (1651), reinterpretował strukturę Arystotelesowskiej filozofii praktycznej i oparł swoją koncepcję wspólnoty politycznej na znanym w prawie rzymskim pojęciu "spółki" (societas). W tych zabiegach wyraża się oryginalny charakter całego traktatu, który stanowi ważny dokument dialogu Rzeczypospolitej z Zachodem na temat sprawiedliwego ustroju społecznego. Aaron Alexander Olizarovius, lawyer and author of "De politica hominum societate" (1651), restructured Aristotle’s practical philosophy and based his understanding of the political community on the notion of economic partnership (societas) known in Roman law. These aspects point to the creative nature of the treaty as an important document of the dialogue between the Polish-Lithuanian Commonwealth and Western Europe on just social order.

Este Ensaio articula dois pontos entrelaçados sobre os efeitos dos direitos fundamentais nos litígios privados. Em primeiro lugar, apresenta um caso contra a doutrina da eficácia horizontal direta, embora não sob a alegação familiar de que põe em risco a liberdade individual. Argumenta, em vez disso, que a mediação legislativa representa valores de segurança jurídica, ociosidade deliberativa e legitimidade política valorizadas em uma democracia constitucional. O segundo ponto é que a discussão sobre o efeito horizontal dos direitos fundamentais não é neutra em termos de resultado. O fato de tais direitos vincularem diretamente apenas aos legisladores tem consequências normativas tanto em termos de sua influência no litígio privado quanto em termos das responsabilidades do Estado como legislador. Esses argumentos são duplamente condicionais. Por um lado, baseiam-se em três premissas da teoria constitucional discutidas na primeira seção: deveres de proteção de direitos fundamentais, direitos fundamentais como princípios e um modelo concentrado de controle da constitucionalidade das leis. Por outro lado, a rejeição do efeito horizontal direto não é absoluta: ela se aplica apenas ao caso central em que as premissas se verificam, permitindo, assim, uma série de casos não essenciais de efeito direto., This Essay articulates two intertwined points about the effects of fundamental rights in private disputes. First, it presents a case against the doctrine of direct horizontal effect, although not on the familiar grounds that it places individual freedom in jeopardy. It argues instead that legislative mediation instantiates values of legal certainty, deliberative idleness, and political legitimacy cherished in a constitutional democracy. The second point is that the quarrel concerning the horizontal effect of fundamental rights is not outcome-neutral. The fact that such rights bind directly only law-making agencies has normative consequences both in terms of their influence on private litigation and in terms of the responsibilities of the state qua law-maker. These arguments are doubly conditional. On the one hand, they are based on three premises of constitutional theory discussed in the first section: protective entitlements, fundamental rights as principles, and a concentrated model of judicial review of legislation. On the other hand, the rejection of direct horizontal effect is not absolute: it holds only within the core case where the premises obtain, thereby allowing a number of noncore cases of direct effect.

Since the entry into force of the Grundgesetz (GG), the Federal Republic of Germany’s constitutional law in the economic field oscillates around the idea of Soziale Marktwirtschaft (social market economy), which the GG does not explicitly include but which finds its way into the economic constitution via fundamental economic rights. Beneath constitutional theory, it is the concept of regulation that has been introduced into German administrative law in a differentiated and interesting process of legal “importation” using European Union law as a means of transmission. Regulation in this sense poses great challenges at both the constitutional and administrative levels concerning basic theoretical and practical issues. Furthermore, its internal and external limits lead to the question of how to address the ever growing plea for a return of state activity to the economy., Anayasanın (Grundgesetz-GG) yürürlüğe girmesinden bu yana Federal Almanya Cumhuriyeti anayasa hukuku, Anayasa’nın açıkça içermediği ancak temel ekonomik haklar vasıtasıyla devletin iktisadi bünyesinde [ekonomik anayasasında] kendisine yer bulan “sosyal piyasa ekonomisi” (social market economy-Soziale Marktwirshaft) fikri etrafında dönüp durmaktadır. Anayasa teorisi altında Alman idare hukukuna, Avrupa Birliği hukukunun bir iletim aracı olarak kullanılması gibi farklı ve ilginç bir hukuk “ithalatı” süreciyle yerleştirilen şey, regülasyon kavramıdır. Bu manada regülasyon, hem anayasal hem de idari düzeyde temel teorik ve pratik meselelere ilişkin büyük zorluklar çıkarmaktadır. Ayrıca, regülasyon kavramının iç ve dış sınırları; devletin ekonomik faaliyete geri dönmesi yönünde giderek artan taleplerin nasıl karşılanacağı sorusunu da beraberinde getirmektedir.

The question addressed by this article is whether a form of constituent power exists at the EU level. It is argued that European integration has not suppressed the idea of people as constituent power. Instead, the idea of ‘people’ has been constructed through the discourses of security and rights. Ever since the early stages of European integration, the security and rights discourses have consisted in the articulation of a meta-constitutional rationale, which is here called the ‘security of the European project’, i.e. a form of political morality that is pursued by the EU as a polity over time and aims at its own survival. Security and rights discourses have contributed to constructing two ideas of ‘people-as-constituent-power’. The first idea is that of ‘mobile people’, i.e. people exercising EU free movement rights. The second idea is that of ‘peoples’ in the plural, conceived as States and citizens at the same time. Nevertheless, these discourses are characterised by a certain degree of ambiguity and have been unrolling as if the development of the EU polity was a mere technical, neutral matter. This state of affairs cannot continue: the European project has always been a political project, and, as integration reaches its more advanced stages, the time has come to disclose its political nature and address conflict openly.

The chapter’s overview of the constitutional theory and general legal theory of the EU reflects two different manifestations of the still limited cultivation of theory within EU law. The discussion of the relatively crowded field of EU constitutional theory, both explanatory and normative, reveals the abiding importance of the relationship of different positions (affirmative and critical) to the received state tradition of constitutional practice and theory as a distinguishing mark and point of opposition. The discussion of the wider contribution of legal theory to the study of EU legal doctrine more generally is more developmental. While acknowledging work that is explicit and systematic in its theorization, it is mainly concerned with how this more sparsely populated intellectual landscape might be filled by teasing out the fuller theoretical significance of the quite different background suppositions—positivist, idealist, culturalist, and pragmatic—of how law works that ground EU legal studies.

Institutionalism is a legal theory that has been developed within the precinct of public law studies. It is the doctrinal outcome of two great jurists, Maurice Hauriou and especially Santi Romano, ...

For quite some time Samuel of Pufendorf is considered to be one of the early representative of a balanced philosophy of state concerning his discussion of a right to resist. The article examines this estimation in an examination of Pufendorf ’s De iure naturae et gentium and the consequential work De officio hominis et civis. For this purpose in an initial step the rights of subjects and Pufendorf ’s valuation of them will be examined; subsequently the monarch’s rights are being studied. Both are connected by the contractual work which is meant to constitute the state. The result show that Pufendorf values the rights of monarchs much higher than those of subjects, he turns them in to the despotism of the monarchs. The state appears to be one-sidedly arranged in favor of the monarch.