Search

Consumer protection is an integral part of the current phase of the European integration project. However, eclipsed by market-building, the image of European consumers is homogeneously defined by individual economic interests against a uniform metric. This article proposes the alternative image of an "embedded consumer" to align with the imaginary of the constitutional person under primary EU law, especially the Charter of Fundamental Rights of the European Union. Under the Charter, a constitutional person is fundamentally shaped and significantly enabled by their communities and thus bears "duties and responsibilities" towards the community. This obligation does not always amount to individual legal responsibility as individuals are inevitably vulnerable (when social structures lack fairness) and rely on social institutions to build up their resilience. Accordingly, the embedded consumer is also socially responsible and humanly vulnerable. This entails that a responsible consumer policy should move beyond individual responsibilisation and involve public obligations and corporate responsibilities to create a conducive framework for sustainable and responsible consumption. A responsible framework is a balanced one, on the one hand, which consciously navigates the conflicts between the various rights of the consumer as a person and between the consumer's rights and the community's interests. On the other hand, it also takes consumer vulnerability as the starting point for consumer policy. Such an "embedded consumer" is not merely futuristic but represents a transformation underway in the EU. EU consumer law and policy should be informed by the embedded consumer and the collective vision it reflects. [ABSTRACT FROM AUTHOR]

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 287-309 | Article | (Table of Contents) I. Introduction. – II. A Brief (Constitutional) History of Kosovo. – III. Human Rights in Kosovo’s Legal Order. – III.1 Constitutional Integration. - III.2 Judicial Application. – IV. Standard-Setting, Monitoring and Cooperation Mechanisms. – IV.1 The Horizontal Facility. – IV.2 Other Programmes and Projects. – IV.3 From Projects to Change. – V. Conclusion and Outlook. | (Abstract) Areas of contested statehood present challenges to human rights on both a normative and a practical level. As areas of contested statehood face difficulties in acceding to human rights treaties and international organizations, more creative solutions have had to be found to ensure the protection of human rights in line with international standards. In recent years, Kosovo has been one of the most prominent examples of an area of contested statehood in Europe. This Article focuses on the role of one key international actor – the Council of Europe (CoE) – regarding the promotion of human rights in Kosovo. Combining doctrinal and empirical analysis, the Article discusses two key aspects of the relationship between the CoE and Kosovo: (1) the constitutionalisation and judicial application of the CoE’s human rights standards in Kosovo’s constitutional legal order; and (2) Kosovo’s interaction with the CoE’s human rights standard-setting, monitoring, and advisory mechanisms. This Article argues that these two aspects of the CoE’s and Kosovo’s relationship have been relatively impactful in embedding the CoE’s human rights standards in Kosovo. This has occurred to such an extent that Kosovo’s human rights system has now become inextricably tied to the Council of Europe’s human rights standards, despite not (yet) being a member of the CoE.

The article focuses on the concept of "digital constitutionalism" and the need for a socio-legal approach to address its complexities. Topics include the theoretical models of digital constitutionalism which range from incorporating private tech companies into constitutional values to the role of non-legally binding Internet bills of rights and the importance of a multilevel process in adapting constitutional principles to the digital age.

Copyright of Latin American Law Review is the property of Universidad de los Andes 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 expansion of presidential powers in many Latin American countries poses a serious threat to democratic cohesion in the region. Chiefly, during the second half of the Twenty century, the administrative legislation has overcome the boundaries of what is known as the Social State in Latin America. The latter has taken shape through constitutional and legislative reforms that have increased the “fire-power” of the presidential ruling. The “constitutionalisation”, as Loughlin calls it, which has taken place in Latin America at the begging of the Twenty-first century, shows up the instability of human rights of political and working-force minorities. Besides, the steady reduction of social security standards reflects the weakness of governments to take seriously economic equality as a priority. These social goals were some of the main conquests of democratic constitutionalism in Latin America in the late 1990s. Yet these constitutional changes represent the displacement of subcultures of the political scenario. Herein, Plan Colombia, as this essay will describe, becomes a neocolonial program that in the name of political homogenisation deploys warfare against basic liberties and social rights to enforce authoritarian presidentialism in the continent.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1333-1359 | Article | (Table of Contents) I. Introduction. – II. The law of integration. – II.1. The summa divisio of the modern law and the autonomous “sphere of intervention”. – II.2. The concept of law-making treaty and the search for a European constitution. – II.3. Jürgen Habermas and the revision of Kant’s cosmopolitan right. – III. The law of intervention. – III.1. Two faces. – III.2. The concept of intervention treaty. – III.3. Post-war Europe. – IV. Joseph Weiler and the political messianism in EU law. – V. Conclusion. | (Abstract) In this Article, the EU Treaties which establish a new and autonomous legal order are analysed through the lens of Pierre Pescatore’s qualification of their operating sphere as “sphere of intervention”. Combining Jürgen Habermas' revision of Kant's concept of cosmopolitan law and Joseph Weiler's thesis on the messianic impact of the European integration process, a concept of international treaty is presented that is suitable for a proper analysis of the transformative character of the EU Treaties and the Common Market as such a "sphere of intervention”. Highlighting implications of the theory of international treaty, legal philosophy and messianism, the concept of the European autonomous legal order, endowed with direct effect and supremacy, shall be proven to be the historical answer to the aporias of classical international law and to the totalitarian abuse of the law in the fascist regimes in Europe in the first half of the 20th century – not only on a symbolical level but also on the level of the concrete legal structure of the European integration process. The general aim of this Article is therefore to contribute to the debate about the nature of the EU Treaties as constituting an autonomous legal order from an international law perspective by identifying a type of international treaty suitable to explain the special character of a legal order that is identical neither with international nor with domestic law, but rather constituting a realm in-between the former and showing an independent legal standing in itself.

For a long time, we felt in Germany as though we were in a world of bliss. While the independence of the judiciary was being attacked in Poland, the USA and most recently in Israel, we were blessed with a strong constitutional court. Over the decades, it has proven to be independent and impartial; it has earned immense trust and respect among the public. However, the independence of the Federal Constitutional Court is built on sand. Now, a public debate has flared up as to whether and how the independence of the Constitutional Court should be protected. A look into other legal systems can contribute to this debate.

Recently, Baptiste Charvin wrote on this blog that the right to abortion has become the subject of political instrumentalization in France. In his view, it illustrates a general phenomenon of 'constitutional desacralization' and underlines the division the French people are experiencing, 'despite being governed by a Constitution that enshrines a set of values that should be shared by all.' I argue that the French parliamentary debate on the right to abortion is anything but a phenomenon of recent political opportunism. Instead, it reflects – for once – a majority opinion, not the division of French society.

Constitutionalisation means entering the legal rule into a group of fundamental rules that the government is obliged to support and implement. In fact, Constitutionalisation is a process of change and transformation that occurs due to the influence of basic norms in different trends of law and it may be as a result of imbuing the set of legal order with these norms. In Iran, some articles of the Criminal Procedure Law approved in 2013 are in conflict with some of the principles of Constitutional law that are related to the Procedure. Based on this, it seems necessary to analyze the existing conflicts and examine the possibility of the criminal judge for referring to the constitutional law and not implementing the legal articles that are in conflict with the constitutional principles. The Constitutionalisation of criminal Procedure gives judges the possibility to refer to the constitutional law in the face of conflicting laws. In addition, it will be possible to invalidate the proceedings and decisions by the higher judicial authorities based on the contradiction of the ordinary law with the constitutional law. One of the tools to achieve this goal is redefining the principles related to criminal Procedure. Redefinition with using Constitutionalisation tool give the possibility to the criminal judges to reach the mentioned results after knowing those principles that govern the criminal Procedure.

In the Law of Political Economy perspective, private property is the corner stone right. Constitutionally, it amounts to a right of decision-making as a matter of principle towards the object of property. It is a decentralisation of the State’s sovereignty. This feature entitles owners to set rules in connection with the use of their property to which users of their property must submit. This is the origin of the authority relationships within business firms. Within liberal constitutional orders, this strong enabling characteristic of property was originally designed for individuals only. But business corporations, subsequently introduced in the legal system, have found the way to have access to these same rights. Concentrating productive assets, they have in effect concentrated rights of decision-making as a matter if principle. And the global firms (or enterprises) using corporations to structure their activities now make use of their prerogatives in a global legal space in which the Law of Political Economy is unable to reconnect economic and political issues. One way out of this major issue raised by globalisation is to constitutionalise world private governments. Recent court cases addressing climate change demonstrate that this is a viable solution. 1

In many parts of the world, labour has increasingly turned to legal means to defend and advance its interests in the face of formidable challenges. Constitutional protection of labour rights has gained a new impetus as these rights have come to be seen as an essential ingredient of human rights. Within this context, the paper aims to feed into the research on the constitutional protection of collective labour rights exploring the jurisprudence of the Turkish Constitutional Court (TCC) as an example of the treatment of these rights as human rights. I contend that the type of constitutional review that grants litigants direct access to the court bolsters the review of labour rights as human rights. Being such a legal remedy, the Turkish individual application system, which necessitates a close collaboration between the TCC and the European Court of Human Rights (ECtHR), provides labour with new windows of opportunities compared with the constitutionalty review of laws procedure. Although the TCC's collective labour rights case law in individual applications includes some unsatisfactory judgments from labour's viewpoint, it has largely contributed to the constitutional protection of collective labour rights in Turkey. [ABSTRACT FROM AUTHOR]

Deployment of illegality or public policy to render unenforceable is one area of the common law which developed early to contain untrammelled party autonomy or freedom of contract. Traditionally, contracts that advance immoral purpose, undermine integrity in public office or governance as well as ousting jurisdiction of the courts are peremptorily deemed contrary to public policy and consequently unenforceable. In this paper I argue that the imposition of general obligation on all organs of government and private bodies and individuals to observe fundamental human rights and freedoms enshrined in Chapter 5 of the 1992 Constitution makes it imperative for the common law concept of public policy to be expanded to encapsulate non-compliance with fundamental freedoms and human rights as a ground for rendering contract unenforceable. [ABSTRACT FROM AUTHOR]

The constitutionalisation of cities is analysed as a process through which urban residents operate as constitutionalising forces within their cities through lived experiences, practices and engagement, and cities try to impose themselves as constitutionalising forces within a rapidly transforming global society. This article explores the tensions generated by the constitutionalisation of cities. It focuses on identifying their character, assessing current economic and socio-cultural processes within cities and articulating a vision of the cityscape. Finally, it applies the idea of chronotopes, as developed in literary studies, to the study of cities. This multidisciplinary approach allows us to understand the constitutionalisation of cities, so far as they seek to break into a global society dominated by states and financial capital. It suggests a vision in which acts of urban citizenship may become emancipatory. [ABSTRACT FROM AUTHOR]

In contemporary politics of migration governance, the criterion of legal validity is hindered by legal efficiency. Or parliamentary government before executive governance. This tension between legal efficiency and legal validity can emerge in bilateral soft agreements. The article analyses the EU-Turkey Statement (2016) and the Memorandum of Understanding between Libya and Italy (2017). From these bilateral soft agreements, a turn from legal validity to legal efficiency can be observed. The efficiency criterion, by replacing the one of validity, limits significantly the role of the Parliaments and thus affects the overall institutional balance and the rule of law. The article recognises the geopolitical contingences that determine the adoption of soft law bilateral agreements. However, it suggests reflecting on how legal forms are manipulated to externalise and securitise the borders of Europe by retuning border management from legal efficiency towards legal validity, or in other words from soft to hard law. [ABSTRACT FROM AUTHOR]

Constitutionalisation expanded and intensified, especially after the expansion of the European Union, consecrating itself on the foundation of state sovereignty. The idea must be perceived as integrating fundamental rights and freedoms and the guarantee or security each state can provide its citizens. Although an old phenomenon, the constitutionalisation of law imposed itself on the political market after the 20th century through the awareness that a clear and solid constitution could establish a democratic framework for developing the rule of law. Constitutionalisation occurs in all legal systems based on a fundamental law that enjoys supremacy. However, constitutionalisation takes on its features from state to state, considering each one's particularities. In a narrow sense, the constitutionalisation of law is the action by which a legal norm is given constitutional status, or a legal institution is consecrated by a constitutional norm (Cornu, 2003). This research is a concise summary of the phenomenon of constitutionalisation and its effect on the civil service. As can be seen, the civil service is consistently a product of the constitution, being regulated by various fundamental texts. [ABSTRACT FROM AUTHOR]

This article considers case law from the courts of England and Wales on the balance between copyright and freedom of expression and how this has developed over the last 50 years or so. Although there has been no fundamental change in the approach of the English courts to this issue, the enactment of the Human Rights Act 1998 and the jurisprudence of the Court of Justice of the European Union have led to an acceptance that decisions in cases involving conflicts between copyright and freedom of expression need to be grounded in the European human rights framework. Like the CJEU, the English courts have generally preferred to treat human rights considerations as influencing the interpretation and application of the internal mechanisms in copyright law rather than as supplying an external corrective mechanism. In that sense progress has been made towards the constitutionalisation of copyright law. [ABSTRACT FROM AUTHOR]

In the Law of Political Economy perspective, private property is the corner stone right. Constitutionally, it amounts to a right of decision-making as a matter of principle towards the object of property. It is a decentralisation of the State's sovereignty. This feature entitles owners to set rules in connection with the use of their property to which users of their property must submit. This is the origin of the authority relationships within business firms. Within liberal constitutional orders, this strong enabling characteristic of property was originally designed for individuals only. But business corporations, subsequently introduced in the legal system, have found the way to have access to these same rights. Concentrating productive assets, they have in effect concentrated rights of decision-making as a matter if principle. And the global firms (or enterprises) using corporations to structure their activities now make use of their prerogatives in a global legal space in which the Law of Political Economy is unable to reconnect economic and political issues. One way out of this major issue raised by globalisation is to constitutionalise world private governments. Recent court cases addressing climate change demonstrate that this is a viable solution. [ABSTRACT FROM AUTHOR]

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 87-108 | Article | (Table of Contents) I. EU's shifting borders: an introduction. - II. Protecting borders and respecting human rights. - II.1. How to reconcile diverging constitutional objectives in light of hybridity and informality? - II.2. Which way forward with accountability? - III. EU's external borders: of administrative integration and the physical and legal infrastructures of deflection. - III.1. Hotspots as incubators of liminality and of an emerging European integrated administration. - III.2. Beyond hotspots: securitisation and deflection of "risky" migrants. - III.3. Screening, border asylum procedures, and streamlined returns: what's "new" in the new pact on migration and asylum? - IV. Overview of contributions. | (Abstract) Borders have gone far beyond their traditional static function of merely demarcating nation-states. Alongside physical border barriers, such as walls and barbwire fences, new technologies driven by sophisticated legal innovations have contributed to the multiplicity of border controls. These legal techniques have turned the border into an individualised moving barrier, conceptualized as a "shifting border" by Ayelet Shachar. Against this backdrop, this Article introduces, conceptually and thematically, the contributions to this Special Section which critically assess the paradigm of the shifting border in the EU and analyse its implications. We first map out intricate legal issues invoked by the rise of hybridity and informality in the EU's cooperation with third countries on migration and the resulting accountability deficit. Next, we scrutinize the physical and legal infrastructures of mobility regulation (and often deflection) that are currently employed at the EU's external territorial borders. We highlight the emergence of increasing horizontal (between the EU and national level) and vertical (across national levels) administrative integration as a prevailing mode of policy implementation at the EU's borders and reflect on the implications, including both challenges and opportunities, of this development. Finally, we scrutinise the Commission's proposals as part of a New Pact on Migration and Asylum with respect to the envisaged processes at the borders and the streamlining of external border control, asylum, and return in a seamless process finding that they create further risks for fundamental rights and procedural guarantees.

Globalisation has provoked a deep transformation in international law, political affairs and governance with contradictory consequences. It has stimulated the cosmopolitan project of global constitutionalism, transnational integration and the unification of democratic standards. However, it also resulted in the fragmentation of international affairs, the deterioration of constitutional democracy and a feeling of a growing shortage in democracy on national and international levels of governance. Trying to balance the impact of these two opposing trends, the author analyses the positive and negative effects of globalisation on constitutional development regarding such issues as transnational constitutionalisation, democracy and national sovereignty, the changing place of multilayer constitutionalism, the international separation of powers, and the system of global governance in the establishment of transnational constitutional democratic legitimacy. From this point of view, the populist backslide in Central and Eastern Europe (CEE) looks dangerous and unforeseen, but it is a systemic and potentially predictable reaction of global regions on the uneven character of integration, the lack of democratic legitimacy and a new answer to the contortions and dysfunctions of global governance. An adequate response to these challenges could be found in a new concept of constitutional integration based on ongoing dialogue between the transnational and national actors of legal globalisation. This dialogue is possible by using a conflict-mediation strategy, elaborated by international experts, especially, for the deliberation of complex and protracted conflicts, which have no clear practical solutions in the short to medium term.

Copyright of Legal Studies / Studia Prawnicze is the property of Polish Academy of Sciences, Institute of Legal Studies 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 promise of constitutionalisation is, according to Kratochwil, the existential comfort that comes from having a coherent framework for judgement and action. This apparent epistemological confidence comes at the price of parting with a realistic assessment of the concrete situation, and it conceals that politics operate across all levels all the time. This paper critiques this vision and points beyond the idea of exhaustive frameworks. Figuring out contextually appropriate configurations of constitutionalisation and fragmentation allows for greater agency and pluralism. A more fundamental tension in Kratochwil's work remains, however, his falling back on the abstract to articulate the experiential. [ABSTRACT FROM AUTHOR]

The The continuity of the administrative apparatus is an indispensable element of any state, be it a democracy or an authoritarian regime. Given that permanency is an attribute of administration, any change from authoritarianism to democracy must therefore be followed by finding adequate corrective measures to transform public administration accordingly. In post-war Germany, it was the constitutionalisation of administrative law that had the pivotal role in attaining this goal. The paper aims at shedding more light on how to view and critique the Polish departure from the administration of the PRL-era authoritarian system in the context of the path followed by Germany. [ABSTRACT FROM AUTHOR]

Today social media represent an essential instrument for exercising a broad range of fundamental rights. The phenomenon of social media exclusion, arising when a user is prevented from using specific social media websites or parts of them, therefore has profound fundamental rights implications. Based on the analysis of recent case law from the US and Germany, the article outlines the essential characteristics of social media exclusion. Preventing individuals from accessing social media does not nullify their constitutional rights. However, without social media one could not enjoy her fundamental rights to such an enhanced level as has become standard in recent years. This article argues that curtailing the possibility of accessing social media should be subject to minimal constitutional safeguards, and examines which measures have been put in place by national courts in the US and Germany to this end. Finally, this article reflects on the role played by national courts from a general perspective, contending that judges represent a main catalyst of the process of constitutionalisation of the social media environment. National courts articulate traditional constitutional principles in the context of social media, in this way solving constitutional collisions between the state constitutional dimension and that of private platforms. [ABSTRACT FROM AUTHOR]

This paper argues that there is no hierarchy in the importance attached to the different categories of human rights. Hence, Civil and Political Rights (CPRs) and Economic, Social, and Cultural Rights (ESCRs) are both human rights and must be placed on the same pedestal. In a democracy, it is imperative that all rights be accorded equal treatment. The aim of this paper is to investigate whether Botswana accords equal treatment to the two categories of human rights. Using a case study approach, the paper concludes that while the Constitution of Botswana provides for CPRs, ESCRs are absent from this instrument. Consequently, the provision of economic, social, and cultural goods is policy-based. The paper argues that this raises accountability and justiciability challenges because the state cannot be sanctioned for failing to provide non-rights. It recommends the constitutionalisation of ESCRs to maximise the accountability and justiciability of ESCRs. [ABSTRACT FROM AUTHOR]

Public policy-making is considered as the most important manifestation of government’s ruling, exertion of authority and arrangement of public affairs based on the “rule of law”. Public policy-making cycle, from think tank and policy-making to assessment and supervision is formed in relation to basic/fundamental rights and therefore, under the influence of the legal and political system, its position and function would be different. In the Iranian legal system, the concept of “general policies of the system” has legal and political affinity/relationship with public policy-making. However, as the result of the existing legal vacuum, its position and function is questionable and accordingly strategies and solutions implied in the process of public policy-making cannot be utilized in assessment and supervision of general policies of the system. Hence, in order to utilize the capacity and capability of “public policy-making” within “general policies” concept in the structure of basic/fundamental rights system in Iran, this legal establishment shall be placed in the procedure of Constitutionalisation in two different but coordinated courses by separating minor and major departments. Therefore in the process of localization, this concept is redefined based on Iranian legal system.

The purpose of the constitutionalisation of private law is the influence of constitutional norms on private relations. Contrary to traditional views, the guaranteed rights of the constitution are not the only means of defending individuals against the state, but it is necessary to apply and interpret all branches of the legal system in the light of it. Therefore, private rights are also dominated by these rights and people need to set up their own private relationships in the shadow of it. This research intends to examine the theory of the constitutionalisation of private law and its possible acceptance in Iran's law through a descriptive and analytical method. It can briefly be said that the basic rights over the entire legal system, especially indirectly, are superior. Also, despite the lack of a constitutional court in Iran, and the lack of a welcome judicial approach to Constitutionalisation, it should be said that iran private law has the necessary capacities for Constitutionalisation.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(3), 1353-1378 | Article | (Table of Contents) I. Introduction. - I.1. Mapping out the constitutional and legislative framework for EU citizenship law. - I.2. The multiple constitutional functions of Art. 21 TFEU. - I.3. Tensions between primary and secondary law: the UK Settlement as an illustration. - II. Deconstitutionalising the perimeters of EU citizenship law: from Martínez Sala v. Freistaat Bayern to Brey as reflected in the UK Settlement. - II.1. Enshrining EU citizens' rights in EU primary law: "constitutional engineering". - II.2. The adoption of new legislation: fresh political guidance. - II.3. Legislation acting as a gateway to EU citizenship rights. - II.4. Interim conclusion: deconstitutionalisation. - III. Constitutionalising the perimeters of EU citizenship law: from Metock to Lounes, via the UK Settlement. - III.1. EU legislation and the rights attached to EU citizenship: from Singh to Akrich. - III.2. Ambiguities on the sources of rights: the adoption of a new legislative framework revirement in Metock. - III.3. Shifting to Art. 21, para. 1, TFEU: from the UK Settlement to Lounes. - III.4. Interim conclusion: constitutional protection? - IV. Soul searching: acknowledging the political dimension of EU citizenship law and locating the debate at legislative level. - IV.1. Art. 21, para. 1, TFEU and Directive 2004/38: the Directive as a gateway to EU primary rights? - IV.2. Concluding remarks on the relationship between primary and secondary rights. | (Abstract) In a series of recent cases on the rights of mobile EU citizens who do not perform an economic activity, the Court of Justice of the EU "deconstitutionalised" its understanding of key aspects of the free movement of EU citizens. The Court moved the discussion to the secondary law level, having kept it at the primary law level for many years. This line of cases sheds light on the ability of the Court to reframe the interplay between primary and secondary law as well as between the judicial and political guidance. The post-Brey case law provides a remarkable, if not unique, example of deconstitutionalisation following a period of intense constitutionalisation. The practical implications of this process are well illustrated in the context of the debate on Brexit that tests the relationship between treaty and legislative rights. This Article makes an enquiry into whether the trend towards a broader deference to political guidance in EU citizenship case law has been mirrored in other areas of citizens' rights having been subject to controversy in the context of Brexit, such as the status of third-country national family members.

Copyright of Journal of Constitutional History / Giornale di Storia Costituzionale is the property of Giornale di Storia Costituzionale (Journal of Constitutional History) 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.)

This article reviews the legal and political science literatures on the extensive interpretation of the European fundamental freedoms and on possible ways out. The common market rules were originally laid down in an international treaty, the Treaty of Rome. In functional terms, this treaty became a de facto constitution, implying that its content, including the fundamental freedoms, were constitutionalised. We review how this constitutionalisation constrains legislators at the Member State and European levels. In order to identify possible ways out, we also review several reform options: institutional reforms of the European judicial system; the de-constitutionalisation of the fundamental freedoms; counterbalancing these freedoms with further strengthened social rights; and contestation of over-constitutionalisation within the given primary law framework. We conclude that reform options are available that could gradually free the legislators from the over-constitutionalisation of the common market rules. Such options should become part of the 'Conference on the Future of Europe' process and debates about EU reforms in general, as more flexibility is warranted in a heterogeneous EU. [ABSTRACT FROM AUTHOR]

This paper investigates the constitutionalisation of the test for statutory illegality (the test) in South African contract law, firstly through a careful evaluation of the manner in which the Constitutional Court (CC) applied the test in Cool Ideas v Hubbard, secondly through the manner in which the CC purports to constitutionalise the test in the said case, and thirdly through asking if such a method is desirable in the constitutional dispensation. It can be conceded that the approach taken by the main judgment to the application of the test in this case is more compelling than that taken by Froneman J. However, the fundamental differences in these approaches, particularly in the determination of the impact of the Constitution and its underlying values, highlight the need for an investigation into the test and the way it should operate in the constitutional dispensation. The paper begins by setting out the test and shows that it is capable of reflecting the values that underlie the Constitution (while maintaining a workable level of legal certainty) and that the test can operate in a manner that enhances the vision and goals of the Constitution. It also proposes a framework within which the various factors of the test should be weighed up, with a view to determining whether the contract under investigation is valid or invalid. Then the paper evaluates the CC's application of the test. It criticises the main judgment for its incomplete undertaking of the enquiry envisaged in sections 8(1) and (2) of the Constitution, as it took into account neither the "spirit, purport and objects" underpinning section 25(1), nor the fundamental values of the Constitution. It also criticises Froneman J's judgment for not connecting the value of fairness with the "spirit, purport and objects" underpinning section 25(1) or the broader fundamental values of the Constitution. Thereafter, it considers the manner in which the CC purports to constitutionalise the test. It points out that equity considerations apply in all matters, whether a substantive right is implicated or not, as they ensure that the "application" and "interpretation" of a statute enhance and are in line with the "objective normative value system" that is the Bill of Rights. Lastly, it considers the desirability of the CC's approach to the application of the test and its constitutionalisation. It points out that the main judgment goes to the extremes of objectivity in interpreting the relevant provisions of the Housing Consumers Protection Measures Act, 1998 (within the application of the test), while Froneman J goes to the extremes of subjectivity. In this regard, it suggests that courts can use the "balance of convenience" test to adjust their decisions to accommodate the circumstances of each case. Therefore, it concludes that the approach to constitutionalising the test lies somewhere between that of the main judgment and that of Froneman J

The international norm development that in 2010 culminated with the UN Resolution on the Human Right to Water and Sanitation changed international law. To what extent did this influence the parallel legal developments evident in many national constitutions across the globe? This article analyses the mobilisation for a constitutional right to water and sanitation in Kenya and Slovenia, identifying the main national and transnational actors involved and assessing their significance for the processes of constitutionalising the right. By analysing two very different cases, tracing their constitutionalisation processes through analysis of archival material, the article provides multifaceted insights into processes of norm diffusion from international norm entrepreneurs to the national level and the agency of domestic actors and their opportunity structures. We find that although the outcomes of the processes in Kenya and Slovenia are similar in that both constitutions contain articles securing the right to water, the framing of the right differs. Furthermore, we conclude that while there is involvement of international actors in both cases, domestic pro-water activists and their normative and political opportunity structures are more important for understanding the successful constitutionalisation of the right to water and differences in the framing of the right.

Die Forderung nach der Verankerung der sozialen Marktwirtschaft im Grundgesetz wirft zunächst die Frage auf, ob eine solche Konstitutionalisierung der Wirtschaftsordnung erforderlich ist. Die Erfahrung der letzten siebzig Jahre zeigt jedoch, dass sich die soziale Marktwirtschaft auch ohne solche verfassungsrechtliche Verankerung fest etabliert hat. Ebenso wenig ist umgekehrt die Streichung des Vergesellschaftungsartikels erforderlich, weil diese Verfassungsnorm bislang niemals zur Anwendung gekommen ist und weil für Eigentumseingriffe ohnehin die Schranken des Art. 14 GG gelten. Auch die Hoffnung auf mehr Klarheit dürfte trügen, da neue Rechts- oder Verfassungsbegriffe naturgemäß begrifflich unschärfer sind als tradiertere Begriffe. Fehl geht auch die Behauptung, die vorgeschlagene Neuregelung verbessere den individuellen Rechtsschutz. Der Vorschlag eines neuen Art. 15 GG ist nämlich als bloße Staatszielbestimmung konzipiert, nicht als individuelles Grundrecht. Gleichermaßen unrichtig ist schließlich die Aussage, die Gewährleistungen der EU-Verträge würden den Bürger nicht vor Übergriffen seiner eigenen Regierung schützen. Ganz im Gegenteil haben sich gerade die europäischen Grundfreiheiten als kraftvolles Liberalisierungsinstrument erwiesen. Für die Verankerung der sozialen Marktwirtschaft im Grundgesetz spricht immerhin, dass diese dadurch zweifelsfrei Teil dessen objektiver Wertordnung würde. The plea to lay down the social market economy in the constitution raises the question of whether such a constitutionalisation of the economic order is indeed necessary. The experience of the last 70 years shows, however, that the social market economy has firmly established itself even without such constitutional safeguard. Conversely, the deletion of the article on socialization is not necessary either, because this constitutional norm has never been applied to date, and because the restrictions of Article 14 of the German 'Grundgesetz' apply to property encroachments anyway. The hope for more clarity is also likely to be deceptive, because new legal or constitutional concepts are naturally more vague than more traditional concepts. The assertion that the proposed new regulation improves individual legal protection is equally wrong. The proposal of a new Article 15 of the 'Grundgesetz' is formulated as a mere determination of a state objective, not as an individual fundamental right. Equally incorrect is the statement that the guarantees of the EU Treaties would not protect the citizen against encroachments by his own government. On the contrary, European fundamental freedoms have proved to be a powerful instrument of liberalisation. An argument in favour of laying down the social market economy in the 'Grundgesetz' is at least that this would undoubtedly make it part of its objective order of values. [ABSTRACT FROM AUTHOR]

While the Association of Southeast Asian Nations (ASEAN) Charter has been read by commentators as a constitutional document, its use of the peoples of Southeast Asia as fictional authors of the text has not been fully explored. A people's reading of the ASEAN Charter provides a critical perspective that uncovers the elitist and statist nature of this document. A close textual analysis of the preamble reveals that these purported authors are displaced by the Heads of State as the speaking subject and creators of the new legal entity. This textual displacement transforms the constituent treaty into a state monologue as it imposes a utopian vision of capitalism on the geopolitical body of the region. Contrary to its democratic claims, the Charter has only constitutionalised reification, class structures, and the exclusion of the peoples from power. The ASEAN constitution silences its own authors. [ABSTRACT FROM AUTHOR]

'Digital constitutionalism' is an appealing concept to explain the recent emergence of constitutional counteractions against the challenges produced by digital technology. However, the existing scholarship does not offer a unitary picture of this notion. This paper carries out a literature review of the topic and suggests a new systematisation of the theoretical framework surrounding the concept of digital constitutionalism. It is argued that digital constitutionalism is the ideology that adapts the values of contemporary constitutionalism to the digital society. It does not identify the normative responses to the challenges of digital technology, but rather embodies the set of principles and values that informs and guides them. Conversely, the emerging normative responses can be regarded as the components of a process of constitutionalisation of the digital environment. In light of the adopted definitions, the paper ultimately illustrates a new way of mapping the constitutional responses that have emerged to address the challenges of digital technology. They not only include the constitutional tools that we could define as 'classic' in the context of constitutional theory, such as the binding legal texts produced in the state-centric dimension, but, significantly, also new instruments, which are developed in the transnational dimension of private actors. [ABSTRACT FROM AUTHOR]

Copyright of Estudios de Derecho is the property of Estudios de Derecho 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.)