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Unlike other comparative jurisdictions that may remain silent on the possibility for supreme courts to use comparative law and natural law, the UAE legislator has allowed the Federal Supreme Court to invoke these two sources in its adjudication since the Court was established in 1973. This paper examines the legal framework that supports this permission, especially in light of Decree-Law Number 33-2022, which brought about a revision affecting it. The paper aims to define the space given to comparative law and natural law vis-à-vis UAE positive law. Furthermore, through an empirical approach, this paper examines the Federal Supreme Court case law to analyse the extent of its recourse to comparative law and/or to natural law in constitutional adjudication. [ABSTRACT FROM AUTHOR]

The relationship between international and domestic law in Indonesia is the subject of prolonged debate caused by the silence of the Indonesian Constitution on the choice between monism and dualism, which affects constitutional adjudication. This article discusses how the Constitutional Court engages with international law in its decisions and how the debate between monism and dualism is affected by it. It argues that the practice of the Court falls neither within the traditional scope of monism nor dualism but tends to be eclectic, which can be termed pragmatic monism. Here, the Court considers an international treaty part of domestic law upon ratification. However, its contents are only applicable if they are consistent with the Constitution, the highest law in the country. Nevertheless, such pragmatism is not without consequences where the consistency of the constitutional system as a whole is compromised for the instrumentality of its individual decisions on societal well-being. [ABSTRACT FROM AUTHOR]

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The dynamic constitution is one of the fundamental issues in modern constitutional law systems, through the theoretical basis of justification and the presentation of its practical mechanisms, which tries to bring yesterday's constitution together with today's values without changing the existence of the legal-political order and system based on order-oriented values to meet the renewed demands of citizens. Therefore, the main question in this Article is what is meant by the dynamic constitution and the mechanisms of its realization and its place in the constitutional law system of the Islamic Republic of Iran? The findings of this research, with the method of collecting data through a library and descriptive-analytical method and checking legal and official texts and documents, show that the dynamic constitution means the constitution compliance with citizens' demand and this concept is generally possible in four ways: revision, interpretation, unwritten principles and constitutional adjudication. Also, the reflection on the domestic constitutional law indicates that by emphasizing the difficulty of the revision process in the constitution, the lack of application of the hermeneutic interpretation method by the official interpreter and finally the danger of resorting to unwritten principles in fragile democracies, the dynamics of the constitution in the legal order and system of the interior shall be sought in the constitutional adjudication. [ABSTRACT FROM AUTHOR]

Anayasa Mahkemesi kurulduğu 1962 yılından bu yana, sadece TBMM kararlarını iptal etmekle kalmayıp, aynı zamanda en tartışmalı siyasi konularda da konum alan önemli bir aktör olarak ortaya çıkmıştır. Bu nedenle, Mahkeme’nin rolünü ve diğer siyasi aktörlerle ilişkilerini açıklayan geniş bir literatür oluşmuştur. Bu makalenin iki temel amacı vardır: (i) 1962-1980 yılları arasında Mahkeme ile diğer siyasi aktörler arasındaki ilişkileri analiz etmek ve (ii) bu ilişkinin gelişimini ve doğasını açıklayan alternatif bir teorik çerçeve önermek. Makalede Ran Hirschl'ün Hegemonik Koruma Tezi aracılığıyla Anayasa Mahkemesinin rolünü açıklayan baskın görüş eleştirilecek ve Joel Migdal’ın Toplum-içinde-Devlet yaklaşımına dayanarak alternatif ve daha nüanslı bir açıklama önerilecektir.

This article provides a comparative analysis of how courts have performed judicial review on supermajority rules governing courts' decision-making. Through an empirical approach, covering the cases of the United States, Peru and Poland, the article argues that the supermajority's legal source and the chronology of its establishment may influence the court's ability to review such rules and the case's outcome. Finally, the article addresses the paradox of whether courts must apply the very provision they are tasked to review. [ABSTRACT FROM AUTHOR]

Purposive interpretation leads a double life. As a matter of constitutional practice, it forms the doctrine through which courts in Canada and around the world determine the concrete protections that abstract constitutional rights afford. However, as a matter of constitutional theory, purposive interpretation is routinely rejected as either an empty phrase that offers no alternative to established theories of constitutional interpretation or a dangerous doctrine that provides no basis for distinguishing between justified and unjustified interpretations of constitutional rights. This essay formulates a conception of purposive interpretation that is not vulnerable to these objections. The purposive approach to the interpretation of constitutional rights follows from a set of ideas about how legal interpretation differs from interpretation more broadly, how constitutional interpretation differs from interpretation in other legal domains, and how constitutional interpretation constrains both the purposes it attributes to particular provisions and the application of those purposes to particular contexts. My aim is to show that these ideas fit together in a coherent doctrinal whole that is neither empty nor dangerous. Purposive interpretation is not empty because it offers a genuine alternative to the presuppositions and structure of opposing interpretive paradigms. Purposive interpretation is not dangerous because it provides a principled set of resources for distinguishing between justified and unjustified interpretations. [ABSTRACT FROM AUTHOR]

The state of law idea formulated in the provisions of Article 1 paragraph (3) of the 1945 Constitution of the Republic of Indonesia is a formulation containing normative statement that is still dubious and seems convincing. Embedding the nature of legality in the context of the idea of the rule of law through the statement that Pancasila is the source of legal norms need to be questioned. The idea of Pancasila is impossible to realize if it does not materialize into a living reality, not a dead one. The possibility if Pancasila is used as sources of law it will expand coercive actions and choices of legal imperatives. Pancasila must be able transforming and making itself relevant in midst of the challenges of social changes. The construction of the idea of a rule of law should not depend on absolute and certainty. It must be able to be created as a discursive space that is truly interpretive and not limitative. Pancasila is existed and recognized in the constitutional adjudication with presuppositions to explain the rationalization of legal reality. It must be carried out at the level of the goal for obtaining and achieving justice. The problem of the paradox of the rule of law idea can be raised through legal interpretations that are able to find a relationship between what should be normative and what is factual. Judges must be able to voice more than what is stated in the law and what is said by the law.

This article examines the necessity for constitutional adjudication in a democracy. Democracy is not the government of the minority by the majority, but self-government of the people in a pluralist society. The article regards constitutional adjudication as a necessary component of a constitutional democracy to preserve self-government and individual rights as a pre-condition for the acceptance of majority decisions by the minority. Thus, constitutional adjudication is needed to uphold the possibility of democratic change and to protect individual rights also against the majority. Recent critique of individual decisions does not change this basic insight and practice of constitutional democracies. [ABSTRACT FROM AUTHOR]

The subject-matter of the research is economic analysis in public law. This method evaluates both costs and benefits of the regulatory measures. When assessing the alternatives, the judges in public litigation take into account their side effects. If an economically effective alternative is found, it should be ensured that it imposes a minimal burden on the rightholder or the costs to third parties.The purpose of the research is to argue that the cost-benefits analysis should be limited primarily to the economic field. Otherwise, personal, political, and social rights can be conferred with the properties of goods (commodification).The methodology of research is based on approaches of school “law and economics”. Economic analysis of law makes it possible to construct a scale of constitutional values, albeit not uncontroversial, but universal. This scale offers the important advantage of introducing proportionality for seemingly disparate individual freedoms and public interests. The introduction of material and financial scales, including compensation even for irreparable intangible goods, represents a better solution than the available alternatives.The main results of the research and the scope of their application. The above-mentioned method consists of assessing the costs and benefits both for the right-holders and for achieving the common good. It is necessary to analyse the costs and benefits of the challenged legal provision to individuals. Then, the governmental costs incurred in using alternative means should be reviewed. The public authorities should not incur excessive organisational or financial costs from a legal alternative that is humane to the individual. Due to the objective constraint on public resources, judges take into account future budgetary expenditures.In constitutional adjudication and administrative litigation, cost-benefit analysis is most effective in the economic sphere. It is easier to ensure the measurability of judicial review, usually in monetary or other material terms. The preparatory works, including the financial and economic justification of draft laws or regulations, may serve as an informational source in reviewing the legislative provisions and administrative acts which entail material costs. The cost-benefit analysis is applicable to non-material sphere. Although such costs generated by regulators are often difficult to assess in public law. A cost-benefit analysis is possible even in the political sphere. At the same time the judges usually restrain itself from assessing the political expediency of legislative decisions and administrative actions. Conclusions. There is a danger of economic analysis being abused in public law. The disadvantages of using this methodology include the possible devaluation of values which are essential for democracy. The abstract common good and reducing public expenditure will prevail over individual freedoms.

A recent trend in futures studies has called for strengthening the inclusion of future generations in constitutional law. This is problematic from a practical and a normative viewpoint. This paper introduces a future-oriented theory of democratic constitutionalism that overcomes originalism (which privileges the past) and living constitutionalism (which privileges the present) without resorting to the explicit constitutional protection of the yet unborn. It is divided into five sections. The first challenges the notion that the constitutional entrenchment of the non-overlapping future is the best means of implementing long time horizons in democratic legal systems. The second maintains that constitutions are substantive normative expressions of the ultimate justification of authority. The third demonstrates that the substantive dimension of constitutions is cross-temporal and includes what I call 'the objective interests in the future' of all members of the people. The fourth connects such objective interests with rights to political participation. The final section focuses on the cross-temporal role of constitutional adjudication. Because rights to political participation include objective interests in the future and necessarily hold the status of constitutional rights in any legitimate democratic constitution, constitutional adjudication must guarantee their enforcement over government action. [ABSTRACT FROM AUTHOR]

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Both in terms of the law to be applied (the Constitution) and the acts of the public authorities to which it is called to be applied (parliamentary laws), the constitutional jurisdiction shows a unique profile that clearly differentiates it from the so-called ordinary jurisdiction. This raises the question of the singular characteristics that the persons entrusted with the exercise of this constitutional function should ideally possess. Against the backdrop of the ideal image of the judge of the common law culture, and having in view the so-called European model of constitutional adjudication, this paper attempts a first answer to the question. [ABSTRACT FROM AUTHOR]

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The subject-matter of the research is the constitutional test of necessity. This element of proportionality could be found in doctrine and case-law in the form of metaphors. The necessity as a prong of proportionality consists in testing the available alternatives in comparison with the measures that the legislator has chosen to achieve public aims. The notion of a least restrictive means can be used as a synonym for this element of proportionality. Although this term is cumbersome, it more precisely defines the nature of constitutional litigation, where the admissibility of interference with fundamental rights is assessed.The purpose of the research is to argue that this element of proportionality implies the assessment of the least restrictive alternatives for the rights-holder in order to achieve the goal chosen by the legislator.The methodology of research includes the method of analogy. Accordingly, the analogical reasoning is used in constitutional adjudication when testing necessity of legislative measures, but not the methods of logical subsumtion or judicial balancing. The sources of such analogy can be the rules of international law, ordinary legislation and comparative legal materials.The main results of the research and the scope of their application. The expression necessity is widely used in international law and ordinary legislation. Such approaches are relevant to constitutional adjudication. Thus, the ultima ratio principle, which initially appears in criminal and administrative law, acquires universal application in constitutional justice. This criterion, which requires the use of the most severe legal measures only as a last resort, with the ineffectiveness of softer alternatives, can be extended to the constitutionalization of other branches of legislation.The test of necessity, which is often expressed in metaphors, in the case-law of constitutional justice is based on the method of analogy. In the decisions of the constitutional justice bodies, the least restrictive means are often mentioned in comparison with those which were originally chosen by the legislator. At the same time, the discovered alternatives should be equally or at least minimally suitable in comparison with the existing legislative solutions. Comparative law, international law, or ordinary legislation are often an auxiliary source for constitutional judges to identify and formulate least restrictive alternatives.Conclusions. The value of the analogical reasoning, including the appeal of constitutional justice to comparative law materials, lies in the possibility of identifying some experimental legal regimes. Moreover, the perception of specific alternatives, their clarification or modification remains within the discretionary powers of the legislature. Thus, avoiding the well-known counter-majoritarian difficulty, constitutional justice conducts a dialogue with the parliament, and in the end, contributes to the optimal implementation of fundamental rights.

The present paper is going to deal with the composition, the recruitment base, the operational mechanisms and the innen structure of the constitutional courts in the course of constitutional adjudication of eight East-Central European countries (in alphabetical order: Croatia, the Czech Republic, Hungary, Poland, Romania, Serbia, Slovakia, Slovenia), from a comparative law perspective. Despite their partially different historical past and the distinctions in the existence of predecessor institutions (or the lack ther of), the inner organizational arrangements of the constitutional courts of the states analyzed and the rules of recruitment of constitutional judges therein show considerable similarity across the region.

This article aims to analyse how constitutional courts make use of advisory opinions of the European Commission for Democracy through Law (Venice Commission). Despite that national constitutional courts significantly engage with the advisory work of the Venice Commission, the causes and effects of this engagement remain less explored in constitutional law scholarship. In order to address this gap, this article, from a macro perspective, examines the case law in which the Venice Commission is referred to by constitutional courts, drawn from the Venice Commission's constitutional adjudication database (CODICES). In addition, appropriate data from the case law of the Constitutional Court of Turkey is examined in particular to expand the scope of the research through micro lens. The article argues that constitutional advice has some advantages for constitutional judges given that it provides a strategic tool for determining reasoning. Despite its non-binding nature, the Venice Commission's constitutional advice is occasionally considered by constitutional courts, depending on the strategic preferences of the courts, and the judges in a given jurisdiction. [ABSTRACT FROM AUTHOR]

After having briefly presented some institutional aspects of the Court of Justice of the European Union, the present report analyses forty of its leading cases in order to assess the general characteristics of the legal reasoning developed by the Court in interpreting the Treaties. The report underlines the importance of teleological interpretation and arguments from precedents, the frequency and cogency of the arguments based on the principle of the rule of law, the difficulty for the Court in referring to the political nature of the Union and the tendency to eschew constitutional rhetoric. Above all, the report underlines the high degree of impersonality that the Court is able to achieve in its judgments and concludes that it depends on a variety of factors such as the collegiate nature of the judgments, their subject matter, the declining but persisting influence of the French model, the need for translation and informatisation, the extensive use of precedents and literal self-quotations, and the contradictory and unsettled status of the Court of Justice as sensu lato constitutional court of the European legal space.

The present paper is going to deal with the composition, the recruitment base, the operational mechanisms and the innen structure of the constitutional courts in the course of constitutional adjudication of eight EastCentral European countries (in alphabetical order: Croatia, the Czech Republic, Hungary, Poland, Romania, Serbia, Slovakia, Slovenia), from a comparative law perspective. Despite their partially different historical past and the distinctions in the existence of predecessor institutions (or the lack therof), the inner organizational arrangements of the constitutional courts of the states analyzed and the rules of recruitment of constitutional judges therein show considerable similarity across the region. [ABSTRACT FROM AUTHOR]

This paper examines the contribution of German subnational constitutional courts to the judicialization of politics in the German states, known as Länder. This research goal entails three dimensions. First, I have to define and measure judicialization. To accomplish this task, I use an index recently developed by an international group of scholars of comparative politics. Second, based on major theoretical approaches, I identify possible causes that might give reasons for judicialization, namely institutional preconditions and preferences of justices. In a third step, I use a linear regression in order to test the theory empirically and find links between causes and effects of judicial decision-making in subnational constitutional courts. The findings confirm institutionalist approaches that contribute to explaining decision-making in German subnational constitutional courts. [ABSTRACT FROM AUTHOR]

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Through the analytical framework of 'transnational constitutional engagement', this article examines the dynamically developing practices of the South Korean Constitutional Court as it engages with international and foreign elements, both within and beyond constitutional adjudication processes. Diverse underlying factors and orientations in varied contexts, and the complex interactions between them, are responsible for shaping the modes of a local constitutional actor's engagement with the transnational. In the vertical aspect, the court adopts international human rights law as a substantive standard of constitutional review through a version of cosmopolitan constitutional interpretation, while it has nevertheless exhibited ambiguity and incoherency in concrete applications. The horizontal aspects of transnational engagement include the court's practice of referencing foreign law and cases in constitutional adjudication. The vibrancy and the evolving patterns of its citation practice reflect the court's growing self-perception vis-à-vis the world – although limitations remain, such as geographical asymmetries among referenced jurisdictions. The court has also been enthusiastic in interacting with various transnational counterparts beyond adjudication processes, demonstrating eminent leadership in regional network-building among constitutional courts in Asia. With both cosmopolitan aspirations and nationalist ambitions playing a role in their shaping, the modes of transnational constitutional engagement are not to be generalized, but require contextualization, and the relevant practices should be subject to constant evaluations for their contribution in producing sound and effective concretizations of the values of global constitutionalism. [ABSTRACT FROM AUTHOR]

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(2), 563-572 | Dialogue | (Table of Contents) I. Introduction. - II. From rights to policies and the interplay between legislation and case law. - III. Ordinary versus constitutional legislation. - IV. Is EU law over-constitutionalised? - V. Conclusion. | (Abstract) The influence of the Court of Justice in the evolution of equality law has been enormous. Interpreting rights provided in EU legislation as mere expressions of pre-existing constitutional rights, as the Court of Justice did in Mangold (judgment of 22 November 2005, case C-144/04 [GC]) and Kücükdeveci (judgment of 19 January 2010, case C-555/07 [GC]), poses challenges to majoritarianism and carries the risk of ossification. Although such mirroring of legislative and constitutional rights has recently been extended beyond the right to equal treatment, whether EU law is over-constitutionalised remains an open question. EU law is remarkably malleable and constitutionalisation coexists with indeterminacy and deference to the legislature.

Irrespective of the advantages or negative consequences of social rights, and unrelated to the textual recognition of such rights in a given constitution public opinion and a great number of scholars and politicians take such rights for granted. Most constitutional and supreme courts in welfare states have to operate (and in certain cases are willing to operate) as if these rights were part of constitutional reality. In this paper I take this point of departure as part of constitutional reality. This is, however, an open reality, i.e. even with strong textual recognition in more recent constitutions, it is to a great extent a matter of constitutional policy, a matter of judicial choice how these references will be used. The following remarks intend to review some of the applicable judicial strategies arguing that strong substantive recognition of such rights is justifiable only in very exceptional circumstances.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(1), 257-268 | Dialogue | (Table of Contents) I. A reference point in the crucial debate about social Europe. - II. Social Europe and European integration today: a worrying picture. - III. A constructive approach. - IV. Judicial enforcement of solidarity: possibilities and limitations. - V. Strengthening cooperation and synergies (il faut cultiver notre jardin). - VI. Non praevalebunt? | (Abstract) This Dialogue is conceived as a conversation with Silvana Sciarra about the present crisis of social Europe and European integration, starting from the ideas she has proposed in her recent book Solidarity and Conflict. European Social Law in Crisis (Cambridge: Cambridge University Press, 2018). A special focus is put on possible ways of restoring and enforcing solidarity as a fundamental principle of European Constitutional Law. After placing the book in context, including references to the current debate, we highlight Sciarra's general approach towards the crisis of solidarity in the EU and point out her understanding of two main issues: the role played by Courts, especially Constitutional Courts; the potential role of cooperation and "synergies", both at judicial and institutional level, both within and beyond the EU, in order to develop the social dimension of the integration process. In so doing, we also wish to contribute to such a debate. Finally, considering the growing risk of disintegration, we wonder if we are still in time to avoid a new European dark age, by applying Sciarra's proposal as an antidote to "fears" and as a remedy which should lead to a reconciliation between the European project and the principles of social Constitutionalism. We conclude that policy makers should listen to her call to action and engage with no delay to achieve this absolutely primary objective.

The article shows that two constitutional principles govern the election of justices and the composition of the 16 German state constitutional courts: democracy and the separation of powers. The recruitment of candidates, the vote on nominees in state parliaments, and the composition of benches of the courts in question support this assumption. There is no evidence indicating that a partisan takeover of German state constitutional courts has taken place. In addition, the majorities required for an appointment of justices of state constitutional courts seem less crucial than is often assumed. [ABSTRACT FROM AUTHOR]

This paper addresses the influence of the Austrian Constitutional Court outside Austria. More particularly, it considers the impact of the regulation of the Constitutional Court in the Federal Constitutional Law of 1920 on the German constitutional order. To do so, the paper first considers the relevance of foreign models in the discussion about constitutional adjudication during the constitution-making process in the Federal Republic of Germany. After that, it analyses the main similarities and differences between the constitutional courts of Austria and Germany. The paper argues that the spread of Austrian-like constitutional courts throughout Europe is based on a complex reception of the Austrian constitutional experience, which can be described as a peculiar combination of imitation, adaptation and change. [ABSTRACT FROM AUTHOR]

Aim. This research aims to discuss the importance of the principle of rule of law in protecting the judiciary's role, especially the independence of constitutional adjudication and its functions. Methods. The study applies the case study approach and comparative method to investigate the constitutional court systems of some countries of the Association of Southeast Asian Nations (ASEAN) and their independence. Results and conclusion. The resultsreveal a lack of the judiciary's independence, even among the top branches that are trying to implement democracy in Myanmar. The judiciary is under the control of the executive and legislature branches as their members belong to political parties. Moreover, a constitutional court is established with the members who are elected and nominated by the legislature and executive. Sometimes there can be conflicts when constitutional law does not mention the division of powers among governmental organisations like Myanmar, which results from the impractical functions of the Constitutional Tribunal of Myanmar. Cognitive value. This research highlights possible ways to solve the constitutional issues among the three great branches. This initiative is in the interest of Myanmar citizens and citizens of all nations as these are international issues. [ABSTRACT FROM AUTHOR]

The power of the Indonesian Constitutional Court to review laws is a constitutional adjudication process. It is a forum to resolve constitutional issues where a citizen can challenge Law that has injured his rights. The Court's reasoning provides audiences with the debates for its deliberation. Audiences may find reference to the international human rights law. It is an interesting practice. However, there is no studies yet about the information on the statistic of the Court made reference to international human rights law. As such, this study aims to identify reference to international human rights law in the Court's decision on judicial review cases from 2003 to 2016. Additionally, this study also aims to answer the question of what underlies the Court to made reference to international human rights law. As many studies show, the objective of Constitutional Court's references to the international human rights law is to strengthen constitutional rights protection. Nonetheless, the Court did not pay any interests to the global agenda of transnational constitutionalism or a convergence of rights and legal pluralism. The article is divided into 5 (five) sections, commencing with the introduction. The second part discusses the status of international human rights law in Indonesia. As the third presents information on Court's decision which cited international human rights law. Then, the fourth presents typical function of the decision that made reference to international human rights law. It concluded that the practice of referring to international law demonstrates the open attitude of Indonesian constitutional justices to the universal nature of fundamental rights.

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This Article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated, and b) the common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this Article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualized. It then examines the embryonic conceptualization of constitutional supremacy in the British legal culture by addressing the "constitutional statutes." It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions that are affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, this Article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies. [ABSTRACT FROM AUTHOR]

Copyright of Judges Forum Review / Revista Forumul Judecătorilor is the property of Editura Universitara and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Scholars have, at times, resorted to the concept of generic constitutional law to describe commonalities emerging across jurisdictions with regard to the way in which constitutional law protects rights and prescribes how they can be limited. Comparative law studies on fundamental rights underline how courts, operating in diverse legal cultures all influenced by the Western Legal Tradition, tend to resort to some adjudication techniques such as the reasonableness test and the proportionality test. Those comparative studies, nonetheless, concede that constitutional adjudication techniques may be differently articulated and applied according to diverse degrees of strictness. However, those differences do not receive much attention when it comes to the comparison of legal reasoning concerning rights. Adjudication techniques seem to be able to trigger the same theory of rights at any latitude, the same understanding of the dialectic between liberty and authority. Against this backdrop, our paper aims at arguing that the Japanese Supreme Court uses both proportionality and reasonableness with a clear cultural imprinting, thus potentially questioning generic constitutionalism, proving that the cultural context may alter the functioning of the abstract models of the constitutional aggregates. [ABSTRACT FROM AUTHOR]

Cepeda Espinosa reflects on how the social sciences, especially the theories of Philip Selznick on responsive law, influenced his approach to constitution making and institutional design, when he worked as presidential advisor to two Colombian presidents, as well as to constitutional adjudication, when he was a justice of the Constitutional Court. He also discusses how responsive constitutionalism has had a transformative impact in Colombia on the role of judges, the development of innovative legal notions, the design and implementation of public policies, and society at large. [ABSTRACT FROM AUTHOR]

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Copyright of Romanian Journal of Comparative Law / Revista Romana de Drept Comparat is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The use of references to foreign law and jurisprudence by the constitutional courts around the world currently gains more and more attention from scholars. The admis-sibility and usefulness of conducting such a horizontal dialogue between various juris-dictions raises controversies in other countries, but not in Poland, where no significant academic discussion on the legal basis and justification for using comparative arguments in constitutional jurisprudence has been conducted. The reasons for this lack of contro-versy seem to lie in the roots of the 1997 Constitution, and the way in which the Polish legal system is constructed. The Polish Constitutional Tribunal is quite prone to using comparative references in its reasoning. However, it rarely clearly indicated their role or significance for the resolution of the case before it. The analysis of the case-law of the Tribunal indicates that references to foreign law concern constitutional provisions, legislation, and the judgments of other constitutional courts. The purpose of the refer-ences stresses the universality of particular constitutional norms and deciphering their meaning, as well as gathering data significant for the assessment of the proportionality of a national law, as well as at drawing inspiration from the decisions taken by foreign courts. However, the persuasive use of a comparative argument demands that the meth-odological problems which can be noticed in the case-law should be addressed. They in-volve in particular: the need to justify the choice of comparative material that is analysed, the fragmented nature of the analysis, and the lack of a clear indication what role these kind of arguments have in constitutional argumentation.

In this paper, the author examines the relationship between the Constitutional and Supreme Court, starting with the principle of mutual cooperation and verification. The starting precept is the claim that constitutionalisation of that relationship creates adequate opportunity for mutual cooperation and verification of these institutions, while not destroying their independence and self-sufficiency. This is because the constitutional maker, by regulating their position, tasks and scope, established the framework of their activity while on the other hand giving them substantial authority on which they must develop and achieve rule of law and constitution. Respect, application and implementation of the constitution are not and cannot be a relationship of domination and supremacy. In particular because in a country regulated by the rule of law and constitution, everyone is obliged to respect these principles which achieve suitable application and implementation of the principles of constitutionality and legality.

In the last few years, the Croatian Constitutional Court delivered several important decisions that significantly shaped interpretative approaches to constitutional guarantee on the freedom of expression in the specific context of the public use of some symbols with contested meanings. Such developments undoubtedly deserve attention, especially in terms of particular tools that the Court used in defining limits to free speech. The primary focus of this article is directed to the issue of whether the use of contested symbols in public may be covered by constitutional free expression guarantees, and be therefore treated as the case of balancing process between them and some opposed interests, or it should be subjected to stricter prohibitions, including their complete ban. For those purposes, I am first presenting the relevant case-law of the Croatian Constitutional Court and then the cases already decided in a similar fashion by the European Court for Human Rights. In the final part I am presenting some personal views on how a further structured approach to constitutional interpretation in cases involving the use of contested symbols with historical meanings could possibly be construed in the Croatian context. [ABSTRACT FROM AUTHOR]

In this article, based on an address to the India Law Institute in New Delhi, the author, a former Justice of the High Court of Australia lists ten features of the constitutions of Australia and India that exhibit similarities; ten features where there are sometimes marked differences; and two areas of operation that illustrate the fact that especially in constitutional adjudication, judicial decisionmakers judicial decision-makers face what Julius Stone described as 'leeways for choice'. By reference to decisions in Australia and India on issues of race, aboriginality and human sexuality, the article identifies the inescapable challenge of choice and suggests useful guideposts. [ABSTRACT FROM AUTHOR]

This article explores historical experiences in France and Brazil and the contemporary constitutional set-up in China where parliaments are empowered to adjudicate constitutional issues. It also identifies the lessons thereof for the constitutional design in Ethiopia. Comparison among three legal regimes has been made with regard to the rationales and contexts under which legislative or nonlegislative parliaments were entrusted with the power of interpreting constitutions. The experience in France (1799 to 1946), Brazil (1824-1891) and China's current practice in constitutional interpretation are examined. The experiences across time in different jurisdictions are used to analyze the extent to which (non-)legislative assemblies are appropriate organs to adjudicate constitutional issues. The Constitution of Ethiopia is expected to take lessons from the difficulties encountered from the experiences of France, Brazil and China and resort to other institutional choices for constitutional adjudication. [ABSTRACT FROM AUTHOR]