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Laura M Henderson
Article

Fiscal Consolidation in Federal Belgium

Collective Action Problem and Solutions

Journal Politics of the Low Countries, Issue 2 2019
Keywords fiscal consolidation, fiscal policy, federalism, intergovernmental relations, High Council of Finance
Authors Johanna Schnabel
AbstractAuthor's information

    Fiscal consolidation confronts federal states with a collective action problem, especially in federations with a tightly coupled fiscal regime such as Belgium. However, the Belgian federation has successfully solved this collective action problem even though it lacks the political institutions that the literature on dynamic federalism has identified as the main mechanisms through which federal states achieve cooperation across levels of government. This article argues that the regionalization of the party system, on the one hand, and the rationalization of the deficit problem by the High Council of Finance, on the other, are crucial to understand how Belgium was able to solve the collective action problem despite its tightly coupled fiscal regime and particularly high levels of deficits and debts. The article thus emphasizes the importance of compromise and consensus in reducing deficits and debts in federal states.


Johanna Schnabel
School of Politics and International Relations, University of Kent, Rutherford College, Canterbury CT2 7NX, United Kingdom.
Law Review

2019/1 EELC’s review of the year 2018

Journal European Employment Law Cases, Issue 1 2019
Authors Ruben Houweling, Catherine Barnard, Filip Dorssemont e.a.
Abstract

    For the second time, various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Catherine Barnard

Filip Dorssemont

Jean-Philippe Lhernould

Francesca Maffei

Niklas Bruun

Anthony Kerr

Jan-Pieter Vos

Luca Ratti

Daiva Petrylaite

Andrej Poruban

Stein Evju
Article

Constitutional Narcissism on the Couch of Psychoanalysis

Constitutional Unamendability in Portugal and Spain

Journal European Journal of Law Reform, Issue 3 2019
Keywords unamendable/ eternity clauses, de jure and de facto constitutional change, constitutional narcissism, foundational design, helicopter founding fathers, constitutional alma mater
Authors Catarina Santos Botelho
AbstractAuthor's information

    Comparing the Portuguese Constitution, which has the longest unamendable clause in the world, with the silence of the Spanish Constitution regarding the language of eternity is indeed a fascinating exercise. Each state’s quantum of constitutional change seems to be quite different. One can wonder how two neighbouring states that share a heavy history of right-wing dictatorships and transitioned to democracy forty years ago opted for such dissimilar constitutional designs. However, appearances are often misleading, and an effort should be done to unveil this curious mismatch.
    Both legal orders suffer from what I call constitutional narcissism, which manifests itself through the urge to perpetuate the foundational constitutional moment. Unamendable clauses (Portugal) and quasi-unamendable clauses (Spain) recast one of constitutional theory’s inner paradoxes: Can the constituent power of the people be petrified in one historical constituent decision and constrain future democratic transitions? And what if a volatile contemporary majority seeks to undermine the democratic process and run against the constitutional DNA achievements of the last centuries?
    Even if the original version of the Portuguese Constitution prohibited several provisions from ever being amended, some of these provisions were indeed modified or removed in the 1989 constitutional amendment process. This occurred without major disagreement from the political organs, scholars, or the judiciary. Therefore, the vexata quaestio remains unanswered: Given their obsolescence or hindrance towards good governance, should entrenchment clauses be eliminated de jure (through a channelled constitutional amendment process, such as the double amendment procedure) or de facto (through a revolutionary process materialized outside of the constitutional framework)?


Catarina Santos Botelho
Assistant Professor and Department Chair of Constitutional Law at the Porto Faculty of Law, Universidade Católica Portuguesa. Email: cbotelho@porto.ucp.pt. I thank Paul Kahn, Nuno Garoupa, Richard Albert, Gonçalo Almeida Ribeiro, Yaniv Roznai, Ana Teresa Ribeiro, and Luís Heleno Terrinha for their very helpful comments.
Article

Constitutional Unamendability in the Nordic Countries

Journal European Journal of Law Reform, Issue 3 2019
Keywords the Nordic constitutions, constitutional unamendability, explicit limits, implicit limits, supra-constitutional limits, review of constitutional amendments
Authors Tuomas Ojanen
AbstractAuthor's information

    With the exception of the Constitution of Norway, the Constitutions of Denmark, Finland, Iceland and Sweden are silent on any substantive limits to the power of constitutional amendment. Until now, the topic of constitutional unamendability has also attracted very little attention in Nordic constitutional scholarship.
    However, some idiosyncrasies making up the identity of the Nordic constitutions, as well as constitutional limits to Nordic participation in European integration, may implicate the existence of some implicit limits to amendment powers. Similarly, international human rights obligations binding upon the Nordic countries, as well as European Union law and European Economic Area law, may impose some external, supra-constitutional limitations on the powers of Nordic constitutional amenders. However, the existence of any implicit or supra-constitutional unamendability is speculative in the current state of evolution of Nordic constitutionalism. This is even more so since the use of constitutional amendment powers are beyond judicial review by the Nordic courts.


Tuomas Ojanen
Tuomas Ojanen is Professor of Constitutional Law, University of Helsinki, contact: tuomas.ojanen@helsinki.fi.
Article

Judicial Review of Constitutional Amendments in Turkey

The Question of Unamendability

Journal European Journal of Law Reform, Issue 3 2019
Keywords judicial review of constitutional amendments, constitutional unamendability, judicial activism, competitive authoritarianism, abusive constitutionalism
Authors Ergun Özbudun
AbstractAuthor's information

    This article deals with the judicial review of constitutional amendments, which has been a hotly debated constitutional and political issue in Turkey, particularly with regard to the unamendable provisions of the constitution. Since its creation by the Constitution of 1961, the Turkish Constitutional Court has followed a markedly activist and tutelarist approach regarding this issue and annulled several constitutional amendments arguing that they violated the unamendable provisions of the Constitution. Recently, however, the Court adopted a self-restraining approach. This shift can be explained as part of the political regime’s drift towards competitive authoritarianism and the governing party’s (AKP) capturing almost total control over the entire judiciary.


Ergun Özbudun
Ergun Özbudun is Professor of Constitutional Law at İstanbul Şehir University. This is an enlarged and updated version of my article ‘Judicial Review of Constitutional Amendments in Turkey’, European Public Law, Vol. 15, No. 4, 2009, pp. 533-538.
Article

Transitional Constitutional Unamendability?

Journal European Journal of Law Reform, Issue 3 2019
Keywords transitional constitutionalism, constitutional unamendability, decline of constitutional democracy, constitution-making in Hungary, the Hungarian Constitutional Court
Authors Gábor Halmai
AbstractAuthor's information

    This article discusses the pros and cons for a suggestion to use unamendable provisions in transitional constitutions to protect the integrity and identity of constitutions drafted after a democratic transition. The presumption for such a suggestion could be that most democratic constitution-making processes are elite-driven exercises in countries with no or very little constitutional culture. The article tries to answer the question, whether in such situations unamendable constitutional provisions can help to entrench basic principles and values of constitutionalism with the help of constitutional courts reviewing amendments aimed at violating the core of constitutionalism. The article investigates the experiences of some backsliding constitutional democracies, especially Hungary, and raises the question, whether unamendable constitutional provision could have prevented the decline of constitutionalism.
    In order to discuss the issue of transitional unamendability, the article engages in the scholarly discussion on transitional constitutionalism in general, and deals with the relationship of constitutional law and constitutional culture. Another side topic of the article is whether such transitional unamendability provisions should also contain international or transnational values and principles, and what happens if those are not in conformity with the unamendable provisions that serve to build up a national constitutional identity. Again, the example of Hungary can be important here, how national constitutional identity protected by the Constitutional Court can serve to abandon the European constitutional whole.


Gábor Halmai
Gábor Halmai is Professor and Chair of Comparative Constitutional Law, European University Institute, Florence; email: gabor.halmai@eui.eu.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA.
Article

Consensus Democracy and Bureaucracy in the Low Countries

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensus democracy, bureaucracy, governance system, Lijphart, policymaking
Authors Frits van der Meer, Caspar van den Berg, Charlotte van Dijck e.a.
AbstractAuthor's information

    Taking Lijphart’s work on consensus democracies as our point of departure, we signal a major shortcoming in Lijphart’s focus being almost exclusively on the political hardware of the state structure, leaving little attention for the administrative and bureaucratic characteristics of governance systems. We propose to expand the Lijphart’s model which overviews structural aspects of the executive and the state with seven additional features of the bureaucratic system. We argue that these features are critical for understanding the processes of policymaking and service delivery. Next, in order to better understand the functioning of the Netherlands and Belgium as consensus democracies, we provide a short analysis of the historical context and current characteristics of the political-administrative systems in both countries.


Frits van der Meer
Frits van der Meer, Professor Institute Public Administration, Leiden University.

Caspar van den Berg
Caspar van den Berg, Campus Fryslân, University of Groningen.

Charlotte van Dijck
Charlotte van Dijck, PhD Fellow Research Foundation Flanders (FWO), KU Leuven Public Governance Institute.

Gerrit Dijkstra
Gerrit Dijkstra, Senior Lecturer, Leiden University.

Trui Steen
Trui Steen, Professor, KU Leuven Public Governance Institute.
Article

Post-Legislative Scrutiny of the Law against Gender-Based Violence

The Successful Story of the Cabo Verde Parliament

Journal European Journal of Law Reform, Issue 2 2019
Keywords oversight, post-legislative scrutiny, Cabo Verde, parliament
Authors Elisabete Azevedo-Harman and Ricardo Godinho Gomes
AbstractAuthor's information

    In 2011 Cabo Verde’s parliament approved the Law Against Gender-Based Violence (GBV). In 2014, 3 years later, the Women’s Caucus (WC) of this parliament agreed to trace the implementation of the law and its impact. This decision was taken without a clear perception of how to conduct post-legislative scrutiny (PLS) and without suspecting the eventual troubling findings. Post-legislative scrutiny has not previously been done in Cabo Verde, partly because of the inexperience of this democratic parliament, partly because PLS is a rather recent and still underdeveloped legislative activity anchored in oversight and legislation functions. In 2014 and 2015, Women’s Caucus conducted PLS of the GBV Law finding that the government had not enacted the necessary implementation rules to enforce this law, which hampered budget allocations and funding. According to the country’s legislative process this should have taken place within 10 months of the law’s approval. This study describes and discusses how the post-legislative scrutiny of the GBV Law was conducted and the lessons learned through this pioneering process in Cabo Verde’s parliament.


Elisabete Azevedo-Harman
Elisabete Azevedo-Harman is Professor on legislative and political institutions in Angolan and Mozambican universities, political advisor, international expert on parliamentary and institutional development. Currently is a senior consultant of the National Assembly of Angola.

Ricardo Godinho Gomes
Ricardo Godinho Gomes is a political scientist in the field of democratic governance since 2006 for UNDP, more specifically in electoral assistance, parliamentary strengthening and public finance management. He is a UNDP programme manager and he was the head of the management units of the project in support of electoral cycles in PALOP and Timor-Leste (2010-2013) and the Pro PALOP-TL SAI (2014-2017).
Article

Better Regulation and Post-Legislative Scrutiny in the European Union

Journal European Journal of Law Reform, Issue 2 2019
Keywords parliaments, post-legislative scrutiny, better regulation, European Union, legislation, regulation, democracy
Authors Davor Jancic
AbstractAuthor's information

    This article analyses the manner in which the EU’s Better Regulation Agenda impacts pre-legislative and post-legislative scrutiny by national parliaments, as two important dimensions of their function of democratic control over EU decision making. To this end, the article critically assesses the institutional arrangements and procedures foreseen under the Commission’s 2015 Better Regulation package and examines the 2017 review of the Better Regulation Agenda, which is a fresh push towards its enhancement. The article is structured as follows. After an overview of the legal grounding and evolution of better regulation in EU law, the analysis surveys the implications for parliaments of the Juncker Commission’s package of reforms, which are laid out in a Communication and implemented through a set of guidelines, a refurbished toolbox for practitioners, a revised Regulatory Fitness and Performance Programme (REFIT), and an Interinstitutional Agreement on Better Lawmaking adopted in 2016. On this basis, the article discusses post-legislative scrutiny of EU legislation on its own merits as well as from the perspective of its relationship with pre-legislative scrutiny. The latter is important since it is the most efficient way for parliaments to influence the contents of EU policies. The article concludes that the Better Regulation Agenda maintains the status quo in domestic parliamentary participation in EU affairs and misses the opportunity to fortify the latter’s European embeddedness.


Davor Jancic
Dr Davor Jancic is Lecturer in Law, Director of the English & European Law LLB programme, Department of Law, Queen Mary University of London.
Article

Post-Legislative Scrutiny in New Zealand

A Focus on Delegated Legislation

Journal European Journal of Law Reform, Issue 2 2019
Keywords post-legislative scrutiny, regulations review, parliamentary oversight, New Zealand, law reform proposals, comparative law
Authors Charles Chauvel
AbstractAuthor's information

    In New Zealand, a scheme for the political post-legislative scrutiny of delegated legislation has operated since 1989. The Regulations Review Committee of the House of Representatives systematically considers delegated legislation and may inquire into matters relating to it. By convention the Committee is chaired by a member of an opposition party and is supported by a dedicated secretariat. It may, on grounds that go beyond vires, draw the attention of the House to any provision of any regulation. If one of its members moves to disallow a statutory instrument, and if debate on the member’s motion is not brought on within a specified period, the instrument ceases to have legal effect. The note considers aspects of the Committee’s jurisdiction, and whether the successful operation of the Committee may have led to excess focus on the scrutiny of delegated legislation at the expense of the systemic post-enactment scrutiny of primary legislation.


Charles Chauvel
Charles Chauvel is a Former Member of Parliament, New Zealand and Official of the United Nations.
Article

The Role of National Human Rights Institutions in Post-Legislative Scrutiny

Journal European Journal of Law Reform, Issue 2 2019
Keywords National Human Rights Institution, parliament, legislation, reporting, post-legislative scrutiny
Authors Luka Glušac
AbstractAuthor's information

    This article explores the role of national human rights institutions (NHRIs) in post-legislative scrutiny (PLS), a topic that has been notably neglected in existing literature. The present research demonstrates that (1) legislative review is actually part of NHRIs’ mandate and (2) the applicable international standards (e.g. Belgrade and Paris Principles) provide for their actorness in all stages of legislative process. The main hypothesis is that NHRIs have already been conducting activities most relevant for PLS, even though they have not often been labelled as such by parliaments or scholars. In other words, we argue that their de facto role in PLS has already been well established through their practice, despite the lack of de jure recognition by parliamentary procedures. We support this thesis by providing empirical evidence from national practices to show NHRIs’ relevance for PLS of both primary and secondary legislation. The central part of this article concentrates on the potential of NHRIs to act as (1) triggers for PLS, and (2) stakeholders in PLS that has already been initiated. The article concludes with a summary of the results, lessons learned, their theoretical and practical implications and the avenues for further research.


Luka Glušac
Luka Glušac received his PhD in Political Science from the University of Belgrade; Faculty of Political Sciences. His PhD thesis explored the evolution of national human rights institutions (NHRIs) and their relations with the United Nations. He is adviser in the Secretariat of the Ombudsman of Serbia, since 2011. In 2018, he served as a National Institutions Fellow at The Office of the United Nations High Commissioner for Human Rights (OHCHR) in Geneva. He can be contacted at lukaglusac@gmail.com.
Article

Post-Legislative Scrutiny in a Non-Westminster Parliament

Opportunities, Challenges and Considerations

Journal European Journal of Law Reform, Issue 2 2019
Keywords post-legislative scrutiny, parliamentary oversight, legislative process, Verkhovna Rada of Ukraine, French Senate, Belgian federal parliament
Authors Jonathan Murphy and Svitlana Mishura
AbstractAuthor's information

    Post-legislative scrutiny (PLS) has generated growing interest as a means both for strengthening the legislative process and for permitting parliament to more effectively integrate its legislative and oversight functions. Engagement throughout the cycle of legislative development, adoption and implementation enables parliament to assure laws are properly implemented and to rectify weaknesses either in original legislative conceptualization or in executive implementation. Carried out properly, PLS should improve governance and increase its democratic accountability. Recent attention to PLS has however focused mainly on its role and use in Westminster-type parliaments. This article explores PLS from the perspective of non-Westminster parliaments. It seeks to understand why PLS in non-Westminster parliaments has received comparatively less scholarly and parliamentary development practitioner attention. The article uses a case study of Ukraine to explore the context and challenges for effective PLS, a non-Westminster emerging democracy. It concludes by proposing rebalancing discussion of PLS to take better account of diverse parliamentary models and suggests approaches to supporting PLS development in parliaments where it has not previously been consistently used


Jonathan Murphy
Jonathan Murphy is Docent, University of Jyvaskyla, Finland and parliamentary development consultant.

Svitlana Mishura
Svitlana Mishura is Deputy Head of the Main Legal Department of the Administration of the Parliament of Ukraine. The authors would like to thank UNDP Ukraine and the Verkhovna Rada of Ukraine for their support to the development of this article, and Anastasia Petrova for her invaluable research assistance in collecting data on PLS in the Verkhovna Rada.
Article

Access_open A Tale of Two Houses?

Post-Legislative Scrutiny in the UK Parliament

Journal European Journal of Law Reform, Issue 2 2019
Keywords post-legislative scrutiny, committees, recommendations, UK Parliament
Authors Tom Caygill
AbstractAuthor's information

    In the last decade a more systematic approach to post-legislative scrutiny has been taken by both the UK Government and Parliament. Currently, owing to a lack of systematic analysis we do not know how both Houses of the UK Parliament are undertaking post-legislative scrutiny. The aim of the article is to determine the similarities and differences between the House of Commons and the House of Lords when undertaking post-legislative scrutiny. The article addresses this gap in knowledge through the use of four case studies, which address how legislation is selected for review, what recommendations are produced and how government responses are followed up. The article finds that there are a number of differences in the way legislation is selected by both Houses and also highlights the differences between them in terms of the output of their recommendations. Overall, this article contributes to our knowledge of the processes available to the UK Parliament for the undertaking of post-legislative scrutiny. This is important as post-legislative scrutiny, as a formalized activity, is relatively new, and there is a contribution to be made here in terms of how such procedures can be utilized in other legislatures.


Tom Caygill
Tom Caygill is a Doctoral candidate, School of Geography, Politics and Sociology, Newcastle University (UK). Funding: This work was supported by the Economic and Social Research Council [Grant number ES/J500082/1].
Article

Post-Legislative Scrutiny as a Form of Executive Oversight

Tools and Practices in Europe

Journal European Journal of Law Reform, Issue 2 2019
Keywords scrutiny of law enforcement, ex-post impact assessment, parliamentary oversight of the executive, post-legislative scrutiny
Authors Elena Griglio
AbstractAuthor's information

    Parliaments’ engagement in post-legislative scrutiny can be considered either as an extension of the legislative function or within the framework of the oversight of the executive. This article makes use of the latter view to assess how parliaments in Europe approach post-legislative scrutiny and to which extent this function can be regarded as a form of executive oversight. Although rules and practices of parliaments in this realm are remarkably heterogeneous, the focus on some selected parliaments (Italy, France, Germany, Sweden, and the European Parliament) reveals three different conceptual categories. In the ‘basic’ approach (passive scrutinizers), parliaments limit their role solely to the assessment of the ex-post scrutiny performed by the government and external agencies. Differently, parliaments willing to engage in a more proactive approach might choose either to act on an informal basis, establishing ad hoc research/evaluation administrative units (informal scrutinizers) or to address post-legislative scrutiny in a formal and highly institutionalized manner (formal scrutinizers). As a matter of fact, the practise of parliaments often combines characters of different categories. While in all of these approaches post-legislative scrutiny shows potential for executive oversight, only the third can potentially lead to a kind of ‘hard’ oversight.


Elena Griglio
Dr Elena Griglio is a Senior Parliamentary Official, Italian Senate and Adjunct Professor, Luiss Guido Carli University.

Franklin De Vrieze
Franklin De Vrieze is Senior Governance Adviser, Westminster Foundation for Democracy Editor of the Special Issue of EJLR on Post-Legislative Scrutiny.
Article

Legislative Reform in Post-Conflict Settings

A Practitioner’s View

Journal European Journal of Law Reform, Issue 1 2019
Keywords post-conflict, rule of law, law reform, legislative reform
Authors Nathalia Berkowitz
AbstractAuthor's information

    Following conflict, considerable effort is often dedicated to legislative reform. This effort includes not only domestic actors but also international actors frequently acting with the aim of establishing the rule of law. This article seeks, first, to provide some context for legislative reform in post-conflict settings and outline some of the criticisms that have been made. Drawing on the work of legislative experts, the article then identifies some of the simple questions that those involved in legislative reform ask and discusses some of the key challenges in answering them. The article suggests that establishing the rule of law is more than putting laws ‘on the books’ and that the way in which legislation is created may itself contribute to developing the rule of law. It suggests that as the rule-of-law community develops new approaches, it might find it useful to draw on the approach of legislative experts and their concern with how effective legislation is created.


Nathalia Berkowitz
Nathalia Berkowitz is a former Barrister and legislative drafter working as an independent consultant focusing on rule of law reform. Nathalia has over 10 years’ experience supporting legislative reform and judicial process in countries around the world. She is a UK [Government] deployable civilian expert and faculty member of the University of Salamanca’s Global and International Studies Program. She can be contacted at nathaliapendo@gmail.com.
Article

Law Reform in a Federal System

The Australian Example

Journal European Journal of Law Reform, Issue 1 2019
Keywords customary law, federal system, Australia
Authors Kathryn Cronin
AbstractAuthor's information

    The Australian law reform arrangements comprise a ‘crowded field’ of law reformers. These include permanent, semi-permanent and ad hoc commissions, committees and inquiries charged with examining and recommending reform of Commonwealth/federal and state laws. These are supplemented by citizen-led deliberative forums on law reform. The author’s experience in her roles as a commissioner and deputy president of the Australian Law Reform Commission (ALRC) and also as counsel assigned to advise the Joint Standing Committee on Migration in the Australian Federal Parliament highlighted facets of Australian law reform – the particular role of a law commission working in a federal system and the co-option of legal expertise to scrutinize law reforms proposed within the parliamentary committee system.


Kathryn Cronin
Kathryn Cronin is former Deputy President Australian Law Reform Commissioner and now barrister at Garden Court Chambers.
Article

Access_open Enemy of All Humanity

The Dehumanizing Effects of a Dangerous Concept

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords enemy of all humanity, hostis humani generis, piracy, international criminal law, Luban
Authors Marc de Wilde
AbstractAuthor's information

    In his contribution to this special issue, David Luban proposes to revive the age-old concept of ‘the enemy of all humanity.’ On his view, this concept supports the aims of international criminal justice by emphasizing that atrocity and persecution crimes are ‘radically evil’ and therefore ‘everyone’s business.’ Criticizing Luban’s proposal, this paper shows that in the past, the ‘enemy of all humanity’ concept has often served to establish parallel systems of justice, depriving these ‘enemies’ of their rights as suspects under criminal law and as lawful combatants under the laws of war. Thus, even if the ‘enemy of all humanity’ concept is used with the intention to bring today’s perpetrators of ‘radical evil’ to justice, it risks undermining, rather than protecting, the rule of law.


Marc de Wilde
Marc de Wilde is Professor of Jurisprudence at the University of Amsterdam.
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