Search results - CEJSH

1

Article 7 TEU: A Commentary on a Much Talked-about “Dead” Provision

100%

Kochenov D.

Polish Yearbook of International Law

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2018

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vol. 38

165-187

EN

This article contributes to the growing literature on Art. 7 TEU by showcasing the strong and weak points of this provision in the context of the on-going rule of law backsliding in Hungary and Poland – backsliding which threatens the very fabric of EU constitutionalism. The article presents the general context of the EU’s institutional reactions to the so-called “reforms” in Poland and Hungary, which are aimed at hijacking the state machinery by the political parties in charge. Next it introduces the background of Art. 7 TEU and the hopes the provision was endowed with by its drafters before moving on to analysis of its scope and all the mechanisms made available through this instrument, including the key procedural rules governing their use. The author posits that it may be necessary to put our hopes in alternative instruments and policies to combat the current rule of law backsliding, and the article concludes by outlining three possible scenarios to reverse the backsliding, none of which are (necessarily) connected with Art. 7 as such.

2

Endogenous and Exogenous Limits of the African Charter on Democracy, Elections and Governance

100%

Wasiński M. J.

Polish Yearbook of International Law

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2018

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vol. 38

29-57

EN

This article analyses the capacity of the African Charter on Democracy, Elections and Governance to counteract the democratic governance shortfall. It argues that the tangible impact of the treaty on the states’ practice has been limited by various endogenous and exogenous factors. The former are identifed as directly linked to content of the document and refer to the accuracy of the drafting. The latter are rooted outside the text and beyond the character of the Charter and include issues relating to the states’ reluctance to ratify the document, certain constitutional constraints undermining implementation on the national level, and the weak international guarantees of enforcement.

3

Zasada rządów prawa w koncepcji Alberta Venn Diceya

100%

Zabdyr-Jamróz M.

Politeja : Pismo Wydziału Studiów Miedzynarodowych i Politycznych Uniwersytetu Jagiellońskiego

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2013

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issue 1(23)

311-345

EN

The aim of this paper is to present the original theory of the English rule of law developed by Victorian‑era constitutional scholar, Albert Venn Dicey. The uniqueness of this theory will be presented, as well as its historical and doctrinal context, and theoretical implications. Dicey’s legal positivism identifies the rule of law as one of the two basic principles of the English unwritten constitution (together with the principle of sovereignty of Parliament). The rule of law itself consists of three components – the ideas of legal freedom, legal equality and predominance of the legal spirit. The latter is due to the inductive nature of the British constitution and in practice results in a strong emphasis on the institutional guarantees of the rule of law. The second idea – legal equality – in Dicey’s opinion interfered with the concept of administrative law, as it was developed on the European continent thus making it manifestly contrary to the English rule of law.

4

On the essence of democracy and the election system

100%

Szonert Z.

Law and Administration in Post-Soviet Europe

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2015

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vol. 2

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issue 1

51-63

5

Corruption as a Threat to the Rule of Law in a Democratic Law-Observing State

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Hrynicki W. M.

Security Dimensions: International & National Studies

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2020

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vol. 34(34)

158-183

EN

This paper shows that corruption constitutes a threat to the rule of law in a democratic law-observing state, destroying it from within and ridiculing it outside. It destabilises social relations in such a state, which adversely affects the political system as well as the development of legislation and economy. The paper also reminds that corruption erodes social relations, causing demoralisation and slackening of morals in society. Corruption may also be a threat to the life, health and property of citizens. The author tracks views about corruption using the method of theoretical analysis of the notions (critical analysis of secondary sources); the statistical method, mainly analysing the latest Corruption Perceptions Index (2019); and the dogmatic-legal method. He concludes that corruption destabilises multiple areas of the functioning of a democratic law-observing state, disrupting the political space, spoiling the law, and causing destructive phenomena in the economic as well as in the moral sphere. It ultimately destabilises state structures, rendering them dysfunctional and perverting the principles of democracy. Corruption interacts with legality acting as a feedback loop, as it destroys the rule of law and democracy, which in turn deepens corruptive phenomena.

6

State of Democracy in Poland versus Environmental Protection

100%

Markowska A.

Central European Economic Journal

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2021

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vol. 8

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issue 55

219-230

EN

The paper starts with a review of literature focusing on links between democracy and environmental protection, pointing out a fair weight of scientific evidence that democratic societies on average enjoy a higher level of environmental quality than autocracies. It subsequently provides a quick insight into the recent trends in the state of democracy and the rule of law in Poland as well as a few examples of measures taken concerning environmental policy that have been undertaken after 2015. The paper concludes by expressing concern about certain negative patterns in the Polish environmental policy in the past few years, which seem to be connected to the deficiencies in the rule of law and democracy as observed in Poland. The shrinking space for civil society to participate in democratic governance concerning environmental issues and the excessive appetite of the current government for large infrastructural investments seem to be in contradiction with the European and global strive for sustainable development and tackling climate change. It remains to be seen if the recent negative trends in the Polish environmental policy will have a structural impact on the state of environment in Poland.

7

"Jednotní v rozmanitosti": požadavky na EU jako právní společenství států

100%

Streinz R.

Právník. Teoretický časopis pro otázky státu a práva (The Lawyer - Scientific Review for Problems of State and Law)

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2022

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vol. 161

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issue 6

578-588

EN

According to the motto “United in diversity”, unity in diversity is a hallmark of the European Union. This allows for national peculiarities which the Union shall respect as national identities of the Member States pursuant to Art. 4 (2) TEU. This, however, requires compliance with Union law and, above all, with the values declared to be common to the Member States in Art. 2 TEU, as the Union is a legal community. The rule of law is an indispensable basis of mutual trust and requires judicial independence from the legislature and the executive as the powers to be controlled by the judiciary. To ensure judicial independence, the preliminary ruling procedure (Art. 267 TFEU) and, above all, the infringement procedure (Art. 258 TFEU) associated with sanctions (Art. 260 TFEU) need to be considered, in addition to the less than effective procedure according to Art. 7 TEU. An integration community demands that its Member States restrict their own freedom of policymaking and accept these restrictions. Therefore, maintaining the right balance between integration and remaining national competences of the Member States is an ongoing task as is ensuring the rule of law.

CS

Jednota v rozmanitosti je charakteristickým znakem Evropské unie. Národní zvláštnosti každého členského státu jsou součástí jeho identity, kterou je Evropská unie podle čl. 4 odst. 2 SEU povinna respektovat. Na druhé straně se však vyžaduje dodržování unijního práva, zejména společných hodnot podle čl. 2 SEU. Právo je totiž základem Evropské unie jako právního společenství. Princip právního státu představuje nezadatelný fundament vzájemné důvěry, který mimo jiné vyžaduje soudcovskou nezávislost na zákonodárné a výkonné moci, které soudy kontrolují. K dodržování těchto hodnot slouží jednak velmi málo účinné řízení podle čl. 7 SEU, jednak řízení o porušení smlouvy, v němž mohou být členskému státu ukládány sankce. Integrativní společenství vyžaduje omezení politické moci členských států. Proto je stanovení a dodržování správné míry poměru mezi unijní integrací a pravomocemi členských států trvalým úkolem obdobně jako respektování principu právního státu.

8

Państwo a dobrobyt ekonomiczny - między wolnością a przymusem

100%

Piątek D., Sarzec K.

Gospodarka Narodowa. The Polish Journal of Economics

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2009

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vol. 232

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issue 5-6

1-19

EN

The article examines the key aspects of a debate on the concept of the state and the relationship between freedom and the rule of law in economic studies. On the basis of selected research reports, the authors discuss the results of studies on the influence of economic freedom and the rule of law on prosperity. The paper reviews the most common definitions of economic freedom and the rule of law and methods for measuring them. It follows up with a description of the results of studies on how economic freedom and the rule of law influence economic growth. The analysis made in the paper shows that economic freedom and the rule of law are indispensable for sustained economic growth. They have a major positive influence on the rate of growth. Economic freedom promotes innovation in business and prosperity. However, the government tends to limit economic freedom and forces businesses to behave in a specific way to benefit the economy and the public. This works when the government acts in keeping with the rule of law, the authors say. The rule of law promotes business efficiency and leads to lower transaction costs, which results in faster economic growth, the authors conclude.

9

Monitorowanie przestrzegania zasady praworządności w Unii Europejskiej

100%

Kleinowski M.

Przegląd Zachodni

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2016

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issue 4(361)

235-264

EN

Changes to Poland’s constitutional court implemented by the Polish Law and Justice party government have caused a serious constitutional crisis in Poland. Under the Rule of Law Framework European Commission launched a dialogue with the Polish authorities on the rule of law and media independence in Poland. This “procedure” acts as an early warning tool in addition to article 7 TEU mechanisms. This article describes the intervention tools available to the European Union in the event that one of its member states threatens fundamental principles enshrined in article 2 TEU. It also tries to explain how the EU’s rule of law investigation could possibly affect Poland’s position in European Union.

10

Państwo prawa w polskim porządku konstytucyjnym a jego wspólnotowe rozumienie

100%

Kowalska K. S.

Krakowskie Studia Małopolskie

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2019

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vol. 24

7-20

EN

The aim of the article is to define a rule of law for a proper functioning of the state, especially in the context of the provision of legal freedoms and guarantees to constitutional units. The determination of the was presented consequences of a breach of the rule of law which governs the complex acquis. The study will consist of attempts to define the rule of law, starting from the scope of this rule, on the basis of a doctrinal interpretation. This rule based on the Constitution of the Republic of Poland as well as on the Judgments Constitutional Court of the Republic of Poland. The specificity of the functioning of the European Union system requires to consider in this context the relationship between national and EU law on the regulation of the rule of law at the Community level. For the topic addressed, it is equally important to refer to the mechanisms provided by EU law to enforce Member States to respect common principles and values. The method used to implement the previously articulated objectives legal text interpretation.

11

PRAWDA MATERIALNA CZY PRAWDA SĄDOWA GWARANCJĄ PRAWORZĄDNOŚCI?

100%

Boczek M.

Eunomia – Rozwój Zrównoważony – Sustainable Development

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2020

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issue 2(99)

21-31

EN

Regardless of the times in which we live, the notion of truth blends with the notion of untruth, wisdom with stupidity, faith with unbelief, justice with injustice, and lawlessness with unrighteousness. Human attitudes appear to be permanent, although there are a number of instruments with which to change them. Because of mass media, law has entered every person's life. Good law can be corrupted and bad law can be repaired; the point is to be properly prepared for it and to take on such a challenge when required by a justified situation. Principles of the law, the less comprehensive and more understandable for the citizen, the better accepted by the society. The fewer ridiculous, stupid and nondescript verdicts, the closer the law to the judge and judge. Regulations, orders and prohibitions cannot be divorced from reality, they must keep up with the flow of time. Otherwise, law becomes lawlessness, justice becomes injustice, and the rule of law disappears. The quality of values will be whatever the demand is.

12

Sytuacja w zakresie praworządności w Unii Europejskiej w 2021 r. – opinia w sprawie komunikatu Komisji

100%

Łacny J.

Zeszyty Prawnicze BAS

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2022

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issue 2(74)

101-132

EN

The opinion analyses the European Commission’s report on the situation regarding the respect for the principle of the rule of law by the EU Member States, with a special focus on Poland. The Commission formulated therein critical remarks concerning the solutions related to the Polish system of justice. Reservations are raised, inter alia, as to the lack of independence of the Disciplinary Chamber of the Supreme Court, which makes decisions in cases directly affecting judges and their judicial functions, and as to the issue of the independence and legitimacy of the Constitutional Tribunal. The European Commission also has reservations about the widespread use of fast-track legislative procedures in Poland. However, it praised Polish anti-corruption measures and legislative work aimed at implementing the Audiovisual Media Services Directive.

13

Axiology of the Law of the European Legal Space and the Development of the Administrative Court System in Poland

100%

Wrońska I., Dubowski T.

Miscellanea Historico-Iuridica

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2023

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vol. 22

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issue 2

221-243

EN

The primary objective of the study was to determine the unique characteristics of the axiology of the law of the European legal space and its impact on the development of the administrative courts system in Poland by indicating its rooting in legally expressed values, as well as in extra-legal values that are common axioms of the European legal space discussed herein. It was noted that international law – which is the background of the study – determines the basis for the operation of a democratic state, thus exerting a fundamental and significant influence on the formation of standards of democratic states in Europe, including the administrative court system in Poland. The achievement of the primary objective of the deliberations will be assisted by two intermediate objectives. The first one, seeking to lay the foundations for the introduction of the aforementioned “European legal space” category as a normative category that includes a common axiology of law, which underlies the democratic state, including the nature of human rights, through the analysis of the legal and non-legal norms that form that category. The achievement of the second intermediate objective, on the other hand, will make it possible in fine to treat that space as a normative and axiological concept to rot the unique structure of the administrative court system in Poland as one of the structural elements of the democratic system. In the literature on the subject, the issue of the axiology of the law of the European legal space from the standpoint of its impact on the administrative court system in Poland has not been analyzed in a comprehensive manner, and the available publications only partially address this topic, which prompted the study of the issue stated in the title of this paper. By setting the framework for the deliberations, they were narrowed down to the European legal space, which was considered to be the normative space of influence of European international organizations, namely the Council of Europe, the European Union, and the Organization for Security and Cooperation in Europe. The purpose of the specific scope of the conducted analyses have resulted in the use of specific research methods. The dogmatic-legal method was the leading method, and it is present virtually all parts of the deliberations. The position of the doctrine was analyzed Polish and foreign monographs and papers, as well as acts of universally applicable international law and those of a regional nature. The case law of international courts was also analyzed. The author made an extensive use of the legal-comparative method. It proved useful in the search for a way to define the concept of the European legal space, as well as other concepts, due to the need to confront the legal achievements of the international organizations that make up that space.

14

Hegel, revolution, and the rule of law

100%

Ramet S. P.

Eastern Review

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2020

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vol. 9

9-31

EN

Georg Wilhelm Friedrich Hegel was one of the philosophic giants of the nineteenth century. Well versed in both ancient and more recent philosophical tracts, he rejected the individualism of Hobbes and Locke, as well as their notion that the state was an agency set up in the first place to protect life and property, and, drawing inspiration from Aristotle, outlined a vision of the state as an agency bound, in the first place, to protect the weak and the powerless. Hegel further rejected Kant’s individualistic ethics and counseled that ethical behavior had to be understood as taking place in a social context, with real duties toward other people. For Hegel, an individual had rights and duties within the context of the family, in the community, and, as a citizen, vis-à-vis the state. He emphasized the network of duties in which each individual finds himself, urging political moderation and concern for the good of the entire community. He has been condemned as a proto-totalitarian, lauded as a democrat of sorts, and described variously as liberal, anti-liberal, authoritarian, conservative-monarchist, and constitutionalist. This essay will argue that Hegel came to champion a constitutional-legal order (Rechtsstaat) under an autocratic monarch, with protection for liberal values. The absolute authority of the monarch, thus, was limited to those powers which he needed in order to advance and protect the interests of the citizens of the realm.

15

Uwagi o kształtowaniu się instytucji ombudsmana w Polsce i Meksyku, 1990–2022

89%

Czarnecki Ł., Krawiec G.

Przegląd Prawa Konstytucyjnego

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2023

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issue 2(72)

181-191

PL

Współcześnie instytucja ombudsmana stała się barometrem wdrażania systemu rule of law, demokracji i transparentności. Czy fakt, iż instytucja ombudsmana powstała w państwach autorytarnych ma wpływ na jego działalność współcześnie? Pytanie to będzie przedmiotem analizy porównawczej Polski i Meksyku, w których doszła w ostatnich dekadach do transformacji demokratycznej. W konkluzji należy zaobserwować, że pomimo różnic historyczno-ustrojowych, mamy do czynienia z podobnym kontekstem i mechanizmem funkcjonowania instytucji ombudsmana. Oba kraje mają przeszłość związaną z formą ustroju autorytarną i oba przeszły transformację demokratyczną w latach dziewięćdziesiątych i oba zmagają się ze współczesnymi formami autorytarnych form władzy.

EN

The ombudsman institution has become a barometer of implementing the rule of law, democracy and transparency system. Does the fact that the institution of the ombudsman was established in authoritarian countries influence its activities today? This question will be the subject of a comparative analysis of Poland and Mexico, in which there has been a democratic transformation in recent decades. In conclusion, it should be observed that despite the historical and political differences, we are dealing with a similar context and mechanism of functioning of the ombudsman institution. Both countries have an authoritarian past and both underwent a democratic transformation in the 1990s. and both struggle with contemporary forms of authoritarian forms of power.

16

Zasada praworządności wyznacznikiem kontroli działań administracji publicznej realizowanej przez prokuratora w ramach postępowania administracyjnego

89%

Kozicka B., Pierzchała E.

Opolskie Studia Administracyjno-Prawne

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2018

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vol. 16

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issue 1 (3)

19-36

PL

Opus iustitiae PAX – the properly shaped dimension of justice is a guarantee of peaceful – not based on a conflict and violence – relations between citizens and the state. These words fully reflect the leading thought of this study. It is the concern for a good law and a state governed by the rule of law, which lies at the foundation of actions taken within the scope of legal means by the Prosecutor’s Office that – as the “custodian of law” – is entitled to in the sphere of control over administration. Administrative courts execute justice as a separate part of judicial power. Justice and law are conditions for an effective state, good governance and social peace, which have accompanied us for centuries. Administrative courts uphold the principle of equality before the law, which is regulated by Art. 21, par. 1 of the Constitution of the Republic of Poland. Since it is administrative courts which – by performing tasks of control over the activity of public administration – become the guarantee of realization of the above-mentioned principle, their position and range of cognition in the situation of launching administrative-court proceedings by the Prosecutor were presented in the work.

17

Does the Rule of Law also apply to the Security Council? Limiting its powers by way of responsibility and accountability

88%

Šturma P.

Polish Yearbook of International Law

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2012

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vol. 32

299-305

EN

Both States and international organizations are subjects of international law. They possess an international legal personality, which also implies international responsibility in case of breach of their obligations. This contribution presents the argument that also the UN Security Council is not legibus solutus, therefore its acts may entail the responsibility of the Organization. A problem remains in the implementation of such responsibility.

18

Konstytucja w praktyce sądów administracyjnych

88%

Kiczka K.

Prawo

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2017

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issue 323

35-45

EN

The Constitution is directly applied by administrative courts. Constitutional regulations are the basis for shaping the control pattern. The pro-constitutional interpretation of law is of great importance. The direct application of the Constitution by the administrative courts concerns different matters and serves to ensure the rule of law in the executive branch activities.

19

Globalization and a Normative Framework of Freedom

88%

Hohoš L.

Human Affairs

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2007

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vol. 17

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issue 1

42-53

EN

The author considers the question of whether or even what normative structure of social order is able to encourage the advancement of the measure of positive liberty in the process of globalization. Related to this is the issue of the insufficiency of guarantees provided by orthodox liberalism for human self-determination. The author considers possible scenarios as to the way in which an elite cosmopolitan minority, profiting from globalization and feeling no responsibility for the majority left to its own fate, would pursue its own interests. The ideas of Ralf Dahrendorf concerning the global rule of law in the name of freedom and the need for international law are referred to. Globalization is occurring just as Marx intuitively predicted: capitalism becomes the bearer of hidden immanent self-destructive mechanisms. In conclusion, the author's hypothesis is that the new era of law in the 21st century will ensure that certain civilization legal norms become natural or customary.

20

Does a Democratic Rule of Law Create Opportunity for Civic Engagement?

88%

Sawicka J.

Krytyka Prawa. Niezależne studia nad prawem

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2019

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vol. 11

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issue 1

150-163

EN

The aim of the article is to outline the relationship between the rule of law and civic engagement in the public sphere and to attempt to answer the question whether the rule of law can be an effective tool in preventing the transformation of democracy in a tyranny of the majority; whether it can also create optimal conditions for democracy to develop. In other words, does the rule of law serve democracy and political engagement or does it rather limit the spontaneity of civic activity because stability cannot be reconciled with the freedom of citizens? The current “juridification” of the public domain (the expansion of law into various areas of social existence) marginalises the validity and scope of civic presence in the decision-making process in the name of law-abidingness and the neutrality of instruments of control and of choices made by the ruling power. Can the effective solution to this situation be the opening of the concept of the rule of law to the idea of political nature and the expansion of the domain of grassroots participation?

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