This article engages with current debates on the sociology of camps and camp-like institutions in contemporary society. Drawing on ethnographic material collected in Italy in 'nomad camps' where ...forcibly displaced Roma from former Yugoslavia were sheltered in the 1990s and 2000s, it argues that Agamben's conceptualisation of the camp as a space of exception, by constructing the camp as other to an idealised notion of citizenship and the rule of law, offers limited purchase for a sociological investigation of the complexity and ambivalence of social relations in and around camps as well as residents' everyday practices and experiences of political membership. Focusing on the resources, entitlements and 'rights' of camp residents and their interactions with state, regional and local authorities and non-governmental actors, this article invites to de-exceptionalise the camp and the experiences of its residents, and proposes the concept of 'campzenship' to capture the specific and situated form of political membership produced in and by the camp. Getting closer to the camp and its inhabitants through the adoption of an ethnographic gaze reveals the camp space as paradigmatic of the stratification and diversification of political membership in contemporary society, a social and political terrain where rights, entitlements and obligations are reshaped, bended, adjusted, neglected and activated by and through everyday interactions.
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Police "operational independence" is an overbroad and confusing term. Moreover, the idea that those who govern the police have no role in anything that can be characterized as police operations was ...significantly to blame for the policing failures that led to the use of the 'Emergencies Act' in February 2022 to clear the Ottawa occupation. The first part of this article examines the origins and meaning of police independence. It suggests that there is a growing consensus on limiting the ambit of police independence to the exercise of law enforcement discretion. The second part examines the juridical statute of police independence. It concludes that police independence limited to law enforcement discretion is an important constitutional principle and principle of fundamental justice. The third part argues for the codification of such limited law enforcement police independence in all Canadian policing acts. The Ottawa policing failures demonstrates that Justices Morden's and Epstein's attempts to limit the ambit of police operational in Ontario legislation have not been successful. Clear legislative definition of police independence as only applying to law enforcement decisions such as those relating to investigations, arrests and prosecutions is necessary.
This paper argues that the framing of the threshold for declaring a national emergency in section 3 of Canada's Emergencies Act reproduces an unhelpful anxiety that is commonplace among theorists and ...practitioners of emergency powers - namely: the concern that unexpected catastrophic events require exceptional, ungovernable powers to handle them. Section 3 defines the thresholds for a national emergency within a 'triple-incapacity framework': incapacity on a provincial level (or) incapacity on a federal level (and) legal incapacity. On the face of it, this framework creates a very high threshold for the declaration of emergencies, but it also reproduces a language of exception that orients officials and the public towards the very extreme case in which competence is lost. This is an incongruous framing - it is responsible for ambiguity and endless quarrels about whether there is "no other law" and "no other capacity", evading the purpose of emergency government which should be focused on capacities: the ability to construct and reconstruct - regularized, coordinated, multifaceted, multijurisdictional emergency management capabilities.
This paper examines the Canadian government's interpretation of the 'Emergencies Act' (EA) and its threshold for declaring a national emergency in response to protest and dissent. The authors revisit ...their previous article published in Criminal Law Quarterly (CLQ) which raised concerns about the government's novel interpretation of the EA when justifying its use during the Freedom Convoy protests of 2022. Based on evidence presented during a subsequent commission of inquiry and Commissioner Rouleau's final report, the authors analyze the government's legal interpretation of the phrase "threat to the security of Canada" and the inconsistent and ambiguous testimony provided by government officials and Cabinet Ministers. The authors argue that the Commissioner failed to address the most contentious legal arguments offered by the government, particularly the assertion that economic harm can satisfy the requirement for serious damage to property. The paper highlights the ongoing significance of this missed opportunity. The authors offer recommendations for amending the EA to explicitly address economic harm and disruptions to critical infrastructure to ensure that any powers available to address this new type of emergency are sufficiently tailored to meet this very specific threat. Finally, the authors caution against revising the EA or broadening the definition of threats to the security of Canada in the CSIS Act based on the bad facts of the Freedom Convoy protests.
Über das Amtsblatt der Europäischen Union vom 13. Februar 2023 eröffnete die Kommission den Blick auf eine gegen Ungarn eingereichte Klageschrift. Im Vertragsverletzungsverfahren begehrt sie die ...Feststellung eines Unionsrechtsverstoßes durch das vom ungarischen Parlament in 2021 verabschiedete Gesetz über ein strengeres Vorgehen gegen pädophile Straftäter und die Änderung bestimmter Gesetze zum Schutz von Kindern. Die Kommission schlägt mit der Klageschrift einen neuen Weg ein, da sie den vorgebrachten Verstoß in einem Punkt auf Art. 2 EUV als solchen, das heißt auf die isolierte Bestimmung, stützt.
Ignorance and Evil Eszter Polgári; Tamás Dombos
Verfassungsblog,
02/2023
2366-7044
Journal Article
Peer reviewed
Open access
On 2 February 2023, the Hungarian Constitutional Court published its long-awaited decision on legal gender recognition. For the first time, the Constitutional Court reviewed the provisions introduced ...into the Act on Registry Procedure in late May 2020 requiring the registration of the sex at birth (instead of sex) and banning any modification to that registry entry. With its decision, the Constitutional Court chose to remain concordant with the perceived political expectations, blatantly served the interest of the government majority, and echoed their fixation of biologically determined sex.
La France est le dernier État fondateur du Conseil de l’Europe à avoir ratifié la Convention européenne des droits de l’homme en 1974 et à avoir accepté le recours individuel en 1981. Depuis ...l’arrêt Bozano c. France de 1986, le débat est passé du plan politique au terrain juridique : l’application directe de la Convention, reconnue formellement par les juridictions internes a pris une dimension substantielle, à la lumière d’une jurisprudence très diversifiée de la Cour de Strasbourg. La « dialogue des juges » avec les juridictions suprêmes, Conseil d’État et Cour de cassation, a montré toute sa fécondité dans la durée. On ne saurait oublier que c’est un dialogue dans les deux sens, l’influence des juges français – de René Cassin à Jean-Paul Costa, tous deux présidents de la Cour - devant être soulignée. Bien plus, la France s’est fait le fer de lance du Protocole n°16 donnant toute sa dimension à ce dialogue juridictionnel, qui traduit le principe de subsidiarité, au moment même où de nouvelles contestations politiques se font jour à l’encontre des « juges étrangers ». Pour autant le lien étroit entre l’État de droit et l’idée européenne consacré par les pères fondateurs dès 1950 est plus nécessaire que jamais pour défendre les droits de l’homme sur tout le continent.
Abstract The article provides intellectual arguments and tools from legal dogmatics that can help to counter the rule of law backlash. It argues that resilience can be boosted by a systemic militant ...rule of law approach. When it comes to restoring the rule of law, legal theory turns to the Radbruch formula (supra-statutory law). This approach remains contested by lawyers who are convinced – following the tradition of positivist legal theory – that invoking this formula is unacceptable because it violates a fundamental requirement of the rule of law, namely that of legality. Irrespective of the value of this concern, Radbruch’s formula is not applicable to the current demise of the rule of law, as the law resulting from cheating and abuse in illiberal regimes does not result in evil law (though it may facilitate such developments). Instead of evil law, we face not-so-bad law. Legal imperfections exist in every legal system, and militant rule of law necessitates the systemic revision of these shortcomings in order to preempt the abuses of an anti-formalistic populist regime. In illiberal regimes, the self-corrective mechanisms of the rule of law are gradually eliminated, but the name of the game remains the rule of law. It means that judges still have (some) power to counter the backlash using extant interpretive techniques (for a while). This article will begin by introducing the concept of not-so-bad (NSB) law as an imperfection of the rule of law. In Part Two, the validity of NSB laws is discussed by relying on the source theory. It argues that even if validity is a matter of conformity to the source, the source can be understood to contain a legal merit component as determined by the rule of law, and falling short on this legal merit component can constitute a ground for declaring the norm’s invalid. Part Three describes the abuses of the rule of law in illiberal democracies and describes how the NSB law of illiberal regimes does not satisfy the validity requirements of legal positivism. Part Four discusses the opportunities open to judges for resisting or undoing NSB law using existing techniques of legal interpretation and without violating rule of law principles.
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The article analyzes the relationship between compliance with the rule of law and inflation. Annual data for the period of 2013—2019 of the Rule of Law Index from the non-governmental organization ...World Justice Project (WJP) for 40 countries of Central and Eastern Europe, the former Soviet Union, Asia and Latin America were used. By means of cross-section estimates and panel data using a random effects model (RE), the dependence of inflation on individual WJP sub-indices was empirically estimated, taking into account a wide analytical spectrum of different aspects of the rule of law. Recently, the issue of the rule of law is increasingly used in economic research. First of all, it concerns the dependence of transaction funds and trust on legal factors, which has a direct impact on the funds of production and inflation, as emphasized by the representatives of the new institutional school (New Institutional Economics). Instead, Neoclassical economics economists mainly analyze the influence of the rule of law mechanisms on the formation of trust in such institutions as the independent central bank or the state administrative apparatus. There is no lack of empirical evidence that the anti-inflationary influence of the central bank significantly depends on the concomitant conditions of compliance with the rule of law. Keynesian economics experts state that the importance of legal and regulatory norms increases significantly with a low interest rate (Zero Lower Bound — ZLB), which has been the case recently in most industrialized countries. Since the academic interpretation of the rule of law is quite broad, it is of practical interest to study the relevant macroeconomic effects in terms of such individual components as the system of counterbalances and checks for government, the fight against corruption, maintenance of law and order, efficiency of regulatory mechanisms, etc. The study showed that there is no reason to deny the anti-inflationary impact of the rule of law in general and in terms of individual components, but the obtained empirical estimates may be vulnerable to data aggregation and differ in terms of individual groups of countries. If we use the general index of the rule of law of the WJP, the anti-inflationary effect can be traced both for the general sample of 40 countries, and separately for both subgroups of countries: 1) Central and Eastern Europe (CEE) and the former Soviet Union, 2) Asia and Latin America. The use of WJP sub-indices shows an anti-inflationary effect for the general sample of countries and subgroups of CEE countries and the former Soviet Union (with a few exceptions), but the corresponding effect is completely lost for the countries of Asia and Latin America (it can mean that only complex simultaneous introduction of all components of the rule of law is anti-inflationary). This feature draws attention to the possibility of erroneous use of panel data estimates for large groups of countries that may not meet certain regional characteristics and incline to erroneous recommendations for economic policy. Among other results, weak signs of accelerating inflation have been observed over time in the CEE countries and the former Soviet Union, but not in Asia and Latin America. Also in these countries, inflation does not depend on GDP dynamics. In contrast, in the CEE and former Soviet Union countries, on average, each percentage point of GDP growth (lag per year) is marked by a 0.3-percentage-point decrease in inflation.
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