'Solange, chapter 3': Constitutional Courts in Central Europe—Democracy—European Union

Abstract: Soon after the accession of eight post‐communist states from Central and Eastern Europe to the EU, the constitutional courts of some of these countries questioned the principle of supremacy of EU law over national constitutional systems, on the basis of their being the guardians of national standards of protection of human rights and of democratic principles. In doing so, they entered into the well‐known pattern of behaviour favoured by a number of constitutional courts of the ‘older Europe’, which is called a ‘Solange story’ for the purposes of this article. But this resistance is ridden with paradoxes, the most important of which is a democracy paradox: while accession to the EU was supposed to be the most stable guarantee for human rights and democracy in post‐communist states, how can the supremacy of EU law be now resisted on these very grounds? It is argued that the sources of these constitutional courts’ adherence to the ‘Solange’ pattern are primarily domestic, and that it is a way of strengthening their position vis‐à‐vis other national political actors, especially at a time when the role and independence of those courts face serious domestic challenges.     

Reforming the Market or the State? Article 30 and the European Constitution: Economic Freedom and Political Rights

This article takes as its starting-point the relationship between Article 30 of 30 of the EC Treaty (general rule on the free movement of goods) and the European Constitution. On the one hand, it examines Article 30 in the context of the constitutional dilemmas facing the European Union, particularly the balance of powers to be defined between Member States and the Union, between public power and the market, and between the legitimacy of Community law vis à vis that of national law. On the other hand, it reviews different conceptions of the European Economic Constitution by analysing the role of Article 30 in the review of market regulation.     

The Time of Constitution‐Making: On the Differentiation of the Legal,Political and Moral Systems and Temporality of Constitutional Symbolism

Abstract. The article focuses on the problem of constitutional symbolism in functionally differentiated societies and its relevance to legal, political, and moral systems. The first part analyses differences between the three systems and their constitutional context. The second part concentrates on the moral symbolic function of modern constitutions and its temporal dimension. It shows that the “good/bad” moral code of constitutions draws on expressive symbolism and transforms it into evaluative symbolism and dogma of morality. The final part analyses the prospective character of modern constitution‐making and its symbolic selectivity regarding the past. The paper concludes by emphasising the systemic pluralisation effect of constitution‐making and the impossibility of constituting systems of “pure” law, morality, and politics.     

“摸着石头过河”与“可改可不改的不改”——改革背景下的当代中国宪法变迁

本文从＂良性违宪＂学说的萌发,法学界对于该理论的回应,直至＂宪法变通与地方试验＂说的提出,来对相关宪法变迁理论进行一个初步梳理和反思。文章指出：＂良性违宪＂行为的产生,除了宪法技术和分权机制的原因,还和＂摸着石头过河＂的制度突破模式与＂可改可不改的不改＂之宪法修改模式的相互冲突有关,而这种冲突的根源,则正在于改革本身;同时,这种表面上的冲突,实际上恰恰构成了改革时代宪法变迁模式的内在理路：从制度试验到推及全国到党的理论到宪法确认。     

Constitutional Directives: Morally‐Committed Political Constitutionalism

About 37 state constitutions around the world feature non‐justiciable thick moral commitments (‘constitutional directives’). These directives typically oblige the state to redistribute income and wealth, guarantee social minimums, or forge a religious or secular identity for the state. They have largely been ignored in a constitutional scholarship defined by its obsession with the legitimacy of judicial review and hostility to constitutionalising thick moral commitments other than basic rights. This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Their full realisation—through increasingly sophisticated mechanisms designed to ensure their political enforcement—is deferred to a future date. They are weakly contrajudicative in that these duties are not directly enforced by courts. Functionally, they help shape the discourse over a state's constitutional identity, and regulate its political and judicial organs. Properly understood, they are a key tool to realise a morally‐committed conception of political constitutionalism.     

Who is Afraid of Radical Pluralism? Legal Order and Political Stability in the Postnational Space*

Constitutional pluralism has become a principal model for understanding the legal and political structure of the European Union. Yet its variants are highly diverse, ranging from moderate “institutional” forms, closer to constitutionalist thinking, to “radical” ones which renounce a common framework to connect the different layers of law at play. Neil MacCormick, whose work was key for the rise of constitutional pluralism, shifted his approach from radical to institutional pluralism over time. This paper reconstructs the reasons for this shift—mainly concerns about political stability that also underlie many others' skepticism vis‐à‐vis radical pluralist ideas. It then seeks to show why such concerns are likely overdrawn. In the fluid, contested space of postnational politics, a common, overarching frame is problematic as it might inflame, rather than tame, tensions. Leaving fundamental issues open along radical pluralist lines may help to work around points of highly charged contestation and provide opportunities for resistance from less powerful actors.     

The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Abstract:  One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.     

The EU–ACP development cooperation – governance challenges for non‐state actors: the case of Malawi

The European Development Consensus 2005 contains a broad policy re‐statement of the EU’s world view vis‐à‐vis its internal and external relations. It places poverty eradication and sustainable development at the heart of its policy. The context within which poverty eradication is pursued is an increasingly globalised and interdependent world that constantly creates new opportunities and challenges. Combating global poverty is seen by both parties not only as a moral obligation; rather as a building block for a more stable, peaceful, prosperous and equitable world, reflecting the interdependency of its richer and poorer countries. The EU has in its relations with the African, Pacific and Caribbean countries, past and present, pursued a development agenda via successive aid and development cooperation arrangements starting with the Yaoundé I convention, through Lomé to the Cotonou Partnership Agreement (CPA). In this article I reflect on the CPA, based on a corpus of shared objectives, principles and the Lomé ‘acquis’ in relation to Malawi non‐state actors (NSAs). I reflect on the opportunities and challenges it presents and how contemplated social dialogue between government and NSAs on the one hand and the EU can translate into poverty reduction, sustainable development and integration of the local economy to the global economy. I conclude that unlike its predecessors, Yaoundé and Lomé conventions, the CPA acknowledges the complementary role of NSAs in the development process, however NSAs in Malawi face constraints in terms of organisation and capacity building that affects their participation. What I do not do is to offer a discussion of the CPA as a whole, for that is outside the scope of this article, but rather have focused on the governance aspect vis‐à‐vis NSAs.     

The Dual Nature of Law

The argument of this article is that the dual‐nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision‐making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation to both authoritative and non‐authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law.     

Fairness, job frustration, and moral dilemmas in policing that impact police effectiveness

Issues facing police officers in their daily role as highly visible agents of the justice system include moral dilemmas, challenges, and the frustrations associated with them. They are identified and discussed. Five recommendations are offered to counteract and ameliorate these pressures.     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

Green Constitutionalism: The Constitutional Protection of Future Generations

Abstract. The purpose of this paper is to propose and consider a new constitutional provision that can contribute to the protection of the vital needs of future generations. The proposal I wish to elaborate can be termed the posterity provision, and it has both substantive and procedural elements. The aim of this constitutional provision is twofold. The first is to encourage state authorities to make more future‐oriented deliberations and decisions. The second is to create more public awareness and improve the process of public deliberation about issues affecting near and remote future generations. It is argued that a good case can be made for the proposed reforms compared with alternative substantive constitutional environmental provisions found in existing constitutions and in the literature on legal and political theory. The main reason for this is that the proposed law constitutes a better and more adequate basis for judicial enforcement than the alternatives, which tend to be very vague or unclear. In this connection, I contend that there are both epistemological and moral reasons for introducing constitutional provisions that focus on the protection of critical natural resources essential for meeting the basic physiological needs of future people. It is also argued that the posterity provision can be defended on the basis of central ideas and ideals in recent theory of deliberative democracy.     

宪法解释案例实证问题研究

全国人大常委会法工委有关扩大宪法效力、公民选举权的行使、裁决立法冲突等宪法解释案例，尽管不是宪法规定的宪法解释，但其作用与正式的宪法解释并无实质性的差异，弥补了正式宪法解释缺位之不足而构成中国宪法解释的惯例。宪法上的宪法解释与现实中的宪法解释之间的距离，有助于认识和理解中国宪法之外的宪法解释机关对宪法进行解释的实际情况，以及宪法实施过程的特点。     

Liberalism and Its Other: The Politics of Primitivism in Colonial and Postcolonial Indian Law

Liberalism is widely regarded as a modern intellectual tradition that defends the rights and freedoms of autonomous individuals. Yet, in both colonial and postcolonial contexts, liberal theorists and lawmakers have struggled to defend the rights and freedoms of political subjects whom they regard as “primitive,” “backward,” or “indigenous.” Liberalism thus recurrently encounters its primitive other, a face‐off that gives rise to a peculiar set of dilemmas and contradictions for political theory and law. In what ways can postcolonial law rid itself of its colonial baggage? How can the ideal of universal liberal citizenship overcome paternalistic notions of protection? How might “primitive” subjects become full and equal citizens in postcolonial societies? To explore these dilemmas and contradictions, I study the intellectual trajectory of “primitivism” in India from the construction of so‐called tribal areas in the 1870s to legal debates and official reports on tribal rights in contemporary India. Through a close reading of these legal provisions for tribal peoples and places, I explore the continuing tension between the constitutional ideal of liberal citizenship and the disturbing reality of tribal subjecthood produced by colonial and postcolonial Indian states.     

两种宪法案件:从合宪性解释看宪法对司法的可能影响

碍于宪法的基本架构,违宪审查意义上的"宪法司法化"在我国绝无可能。但法官作为受宪法约束的公权力主体,基于其宪法义务,有在具体案件中对法律进行合宪性解释的必要。合宪性解释并非宪法解释,而是法律解释的一种方法。而且,合宪性解释已经从最初的法律解释方法转化成了法官的宪法义务。在部门法的研究中已经有在司法中进行合宪性解释的主张与尝试。合宪性解释可以在法律解释的体系解释、目的解释以及法外续造中应用。     

Moral Reasoning and the Use of Procedural Justice Rules in Hypothetical and Real-Life Dilemmas

The use of Leventhal's procedural justice rules in moral judgments was examined (1) in the match examples of the Colby and Kohlberg moral judgment interview manual (Study 1), (2) in hypothetical dilemmas given to a sample of 41 participants in professional ethics classes, and (3) in the real-life moral dilemmas produced by this sample (Study 2). Consistent support was found for the hypothesis that bias suppression is used more frequently at the higher moral reasoning stages. A higher number of justice rules were employed in solving a real-life than hypothetical moral problem, and most procedural justice rules were used more frequently in the real-life dilemma.     

The 'Checks and Balances' Doctrine in Member States as a Rule of EC Law: The Cases of France and Germany

Abstract: Though the impact of EC law on the legal status of national powers has been fairly well examined, little attention has been paid to the overall evaluation of the relations developed between national authorities. The paper argues that the mutation of the Judiciary and the Executive role vis‐à‐vis the Legislature appears to be an application of an emerging doctrine in EC public law that conspicuously resembles the ‘Checks and Balances’ theory of American constitutionalism. The action of one public authority is—or must be—countered by the reaction of another for the benefit of EC law. Apart from identifying the features of this ‘principle’ in comparison to its equivalent American doctrine, the paper deals with the question of a possible coexistence of this new model of governance with the traditional one. The comparative perspective is necessary here. Whereas in Germany the constitutional model appears to cope with European demands, in France it seems largely opposed to such a dynamic conception of the separation of powers.     

论我国宪法中“公共利益"的界定

2004年我国的宪法修正案中增加了“公共利益”的概念和制度。但由于其主体和内容的不确定性,需要对其内涵和外延作出必要的界定。我国宪法上的“公共利益”主要体现在征收和征用补偿条款中,但由于普通立法中“公共利益”缺乏明确性及相应的制度配套,导致实践中征收集体所有土地和城市房屋拆迁中对“公共利益”把握的缺失和“稀释”,对此,应当通过违宪审查和宪法委托的制度,使普通立法中的“公共利益”具有合宪性和明确性。     

Necessary Evil: Justification, Excuse or Pardon?

The problem of necessary evil is a sub-class of the problem of moral dilemmas. In cases of genuine moral dilemmas the agent cannot avoid doing evil whatever he does. In some cases of genuine moral dilemmas, the options facing the agent are incommensurable. But in some other cases of genuine moral dilemmas, though wrong doing is inescapable, there is a rationally best course of action. These are cases of necessary evil. There are several views regarding the doing of necessary evil. On the closure view it is never necessary to do what is evil. This is the view of some utilitarians and of Kant. Then there are people who believe that it is sometimes necessary to do evil. Of these some (like John Gardner) believe that evil in such cases is justified even though it remains an evil; while there are others (like Gandhi) who believe that evil in such cases can never be justified but it can at best be excused or pardoned. Some even think that in some extreme cases the individual who does evil (even if it is the lesser evil) should be punished even though the individual could not avoid doing evil whatever he chose. The paper stresses the significance of the distinction between justified wrong doing, pardonable wrong doing, and excusable wrong doing.