The Abuse Of Constitutional Identity In The European Union
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The Abuse Of Constitutional Identity In The European Union
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Author : Julian Scholtes
language : en
Publisher: Oxford University Press
Release Date : 2023-09
The Abuse Of Constitutional Identity In The European Union written by Julian Scholtes and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2023-09 with Law categories.
The idea of constitutional identity has been central to the negotiation of authority between EU and national constitutional orders. Many national constitutional courts have declared that the reach of EU law is limited by certain core elements of the national constitution, often labelled 'constitutional identity'. With the rise of illiberal democracies within the EU, the idea of constitutional identity has increasingly come under criticism, being seen as easily embedded in authoritarian, nativist rhetoric and vulnerable to being abused. In The Abuse of Constitutional Identity in the European Union, Julian Scholtes provides novel insights into how European authoritarians have utilised the concept of constitutional identity to further their illiberal goals. Employing a comparative theoretical perspective, his book identifies the factors behind legitimate constitutional identity claims and critically analyses the ways in which these claims can be abused. Scholtes examines abuses of constitutional identity in three distinct theoretical dimensions: generative, substantive, and relational. The generative dimension looks at how constitutional identity claims come about, while the substantive dimension examines a claim's broader relation to a normative theory of constitutionalism. The relational dimension, on the other hand, considers how constitutional identity claims are advanced and whether they are employed as a means of constitutional dialogue or constitutional disengagement.
The Abuse Of Constitutional Identity
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Author : Julian Scholtes
language : en
Publisher:
Release Date : 2022
The Abuse Of Constitutional Identity written by Julian Scholtes and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2022 with Constitutional law categories.
'Constitutional identity' has become a key argument in the negotiation of authority between national legal orders and the legal order of the European Union. Many national constitutional courts have declared that the reach of EU law is limited by certain core elements of the national constitution, often labelled 'constitutional identity'. However, the rise of 'illiberal democracies' within the European Union, especially exemplified by the democratic backsliding of Hungary and Poland, has put constitutional identity into a questionable spotlight. Both countries have been leaning on the constitutional identity to both erode European legality and defend their authoritarian constitutional projects againstEuropean criticism. This dissertation deals with the question of how to delimit legitimate invocations of constitutional identity from abuses of constitutional identity. It develops a typology of constitutional identity abuse in three dimensions: The generative, the substantive, and the relational. The generative dimension is concerned with how a constitutional identity claim has come about, its relation to constituent power, constitutional enactment and amendment, the independence of courts, and the regulation of historical memory. The substantive dimension deals with what a constitutional identity claim entails, digging into the normative expectations invoked by the concept and the ways in which it ought to be regarded as intertwined with and embedded in a normative conception of constitutionalism. Finally, the relational dimension is concerned with how a constitutional identity claim is advanced. Advancing a constitutional identity claim in the European legal space evokes notions of diversity, dialogue, recognition, and pluralism, which need to be reciprocated. In each of these dimensions, ways in which constitutional identity can be abused will be identified, using Europe's 'backsliding democracies' Hungary and Poland as the primary case studies, while discussing other countries where appropriate.
Constitutional Identity In A Europe Of Multilevel Constitutionalism
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Author : Christian Calliess
language : en
Publisher: Cambridge University Press
Release Date : 2019-10-24
Constitutional Identity In A Europe Of Multilevel Constitutionalism written by Christian Calliess and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2019-10-24 with Law categories.
Presents a critical outline and comparison of selected EU Member State constitutional identities in the context of EU multilevel constitutionalism.
National Constitutional Identity And European Integration
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Author : Alejandro Saiz Arnaiz (jurist)
language : en
Publisher:
Release Date : 2013
National Constitutional Identity And European Integration written by Alejandro Saiz Arnaiz (jurist) and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013 with Constitutional law categories.
Over the past few years, 'national constitutional identity' has become the new buzzword in European constitutionalism. Much has been written about the concept involving the Member States' national constitutional identities: it has been welcomed for (finally) accommodating constitutional particularities in EU law, demonized for potentially disintegrating the EU, and wielded as a 'sword' by certain constitutional courts. Scholars, judges, and advocates in general have rendered the concept currently so fashionable and, yet, so ambivalent, that an in-depth analysis is warranted to put some order into the intense debate over constitutional identity. This collection brings together a series of contributions in order to shed some light into the dark corners of constitutional identity. To this end, a threefold approach has been followed: a conceptual or philosophical approach, an approach based on EU law, and an analysis of the case-law of several European courts. First, the book explores what constitutional identity means and who decides on it. Further, the contributions analyze (and at times unveil) the areas that might collide or at least interact with constitutional identity. Among other issues, the book touches upon EU law primacy , Article 53 of the Charter of Fundamental Rights, EU criminal law and the essential functions of the State, and the existence of an EU 'constitutional core' enjoyable and enforceable through EU citizenship. Finally, the book deals with the case-law of European courts on national constitutional identity, including the perspective of various national constitutional courts, such as those of Eastern and Central European Member States, the Court of Justice of the European Union, and the much-less analyzed European Court of Human Rights. (Series: Law and Cosmopolitan Values - Vol. 4)
National Ist Constitutional Identity
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Author : Gábor Halmai
language : en
Publisher:
Release Date : 2017
National Ist Constitutional Identity written by Gábor Halmai and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017 with categories.
This paper discusses a decision of the Hungarian Constitutional Court issued in December 2016, in which the judges refer to the country's constitutional identityto justify the government's refusal to apply the EU's refugee relocation scheme in Hungary. The misuse of constitutional identity, the paper argues cannot be derived from the previous jurisprudence of the Court. Right before and after the EU accession of the country the Court followed a mild approach of limited EU law primacy approach, which did not change immediately after Viktor Orbán's government introduced an illiberal constitutional system and packed the Constitutional Court after 2010. The reason for change has been the government's anti-migration policy, and the Court was instrumental to justify the government's desire to exclude refugees from Hungary and to evade its obligations under European law. The paper concludes that this abuse of constitutional identity for merely nationalistic political purposes discredits every genuine and legitimate reference to national constitutional identity claims, and strengthens the calls for an end of constitutional pluralism in the EU altogether.
Constitutional Identity And European Union Axiology
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Author : Grzegorz Pastuszko
language : en
Publisher:
Release Date : 2022
Constitutional Identity And European Union Axiology written by Grzegorz Pastuszko and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2022 with categories.
Limitations Of National Sovereignty Through European Integration
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Author : Rainer Arnold
language : en
Publisher: Springer
Release Date : 2016-02-25
Limitations Of National Sovereignty Through European Integration written by Rainer Arnold and has been published by Springer this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016-02-25 with Law categories.
The book considers the changes which national sovereignty has undergone through the supranational European integration. In various contributions by renowned academics and high judges demonstrate the serious impacts of supranationality on the EU member states and even on third countries which are connected with the EU by international treaties. It becomes clear that primacy of EU law, the most significant expression of supra-nationality, collides with national sovereignty as anchored in the national constitutions. The studies clearly show that most member states do not fully deny EU law primacy but are aware of the need to find an adequate balance between the supranational and the national orders. The result from the analyses of the authors from various European countries is that the upcoming constitutional paradigm is “constitutional identity”, a concept established by jurisprudence in Germany, France, Czech Republic (without being named so) and debated also in Poland which, herself, denies supranational impact on the national Constitution entirely. Studies on selected EU member states clarify the specific national approaches towards the limitations of their sovereignty as developed by the constitutional jurisprudence (Poland, Czech Republic, Hungary, Romania, Italy, Germany with comparative references to United Kingdom and France). It is illuminated that traditionally strong sovereignty concepts (UK, France) are considerably relativized and functionally opened towards the integration challenges. Basic issues are furthermore reflected, such as the supranational impact on the State’s power to reform its Constitution, the relation of national and constitutional identity and the national and supranational perspectives of identity. The book also includes Europe beyond the EU by research on the supranational character of association treaties (from a Ukrainian perspective) and on the Europeanization of a third country preparing EU membership (Albania).
The Tangled Complexity Of The Eu Constitutional Process
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Author : Giuseppe Martinico
language : en
Publisher: Taylor & Francis
Release Date : 2022-08-05
The Tangled Complexity Of The Eu Constitutional Process written by Giuseppe Martinico and has been published by Taylor & Francis this book supported file pdf, txt, epub, kindle and other format this book has been release on 2022-08-05 with Law categories.
Offering a fresh view on the EU constitutionalisation process, the new edition of The Tangled Complexity of the EU Constitutional Process presents three main points: the idea of constitutional complexity, the tension between constitutional evolutionism and constitutional constructivism in the process of European integration, and the functional nature of conflicts in the evolution of the EU. Because of its prodigiousness, European law produces consternation among constitutionalists accustomed to traditional patterns of power. This book argues that while constitutional conflicts have frequently been depicted as elements of disturbance along the path towards legal coherence, they are physiological and might even be functional to the development of the European legal order, which should not be understood in a deterministic manner. The new edition will be of particular interest to academics and students in the disciplines of law, international relations, and political science.
The Constitutional Identity Of Member States And The Primacy Of European Union Law
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Author :
language : en
Publisher:
Release Date : 2013
The Constitutional Identity Of Member States And The Primacy Of European Union Law written by and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013 with Constitutional law categories.
The Legitimacy Of Eu Criminal Law
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Author : Irene Wieczorek
language : en
Publisher: Bloomsbury Publishing
Release Date : 2020-07-09
The Legitimacy Of Eu Criminal Law written by Irene Wieczorek and has been published by Bloomsbury Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2020-07-09 with Law categories.
This book traces the history of the EU competence, EU policy discourse and EU legislation in the field of criminalisation from Maastricht until the present day. It asks 'Why EU Criminal Law?' looking at what rationales the Treaty, policy document and legislation put forth when deciding whether a certain behaviour should be a criminal offence. To interpret the EU approach to criminalisation, it relies on both modern and post-modern theoretical frameworks on the legitimacy of criminal law, read jointly with the theories on the functions of EU harmonisation of national law. The book demonstrates that while EU constitutional law leans towards an effectiveness-based, enforcement-driven, understanding of criminal law, the EU has in fact in more than one instance adopted symbolic EU criminal law, ie criminal law aimed at highlighting what values are important to the EU, but which is not fit to actually deter individuals from harming such values. The book then questions whether this approach is consistent or in contradiction with the values-based constitutional identity the EU has set for itself.