43 research outputs found

    Keeping faith : a study of Grotius' doctrine of natural law

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    Defence date: 25 November 1988Supervisor: Athanasios MoulakisFirst made available online on 24 April 2015.An Errata corrige, part of the defended PhD thesis, is missing. The Errata corrige can be provided by the author at any time.In the philosophical tradition, natural law has served as one designation of the borderline between human and divine. This tradition is associated with a complex of ideas which has been traced back as far as Heraclitus’ fragment according to which "all human laws are nourished by one which is divine" . In line with this, Aristotle’s definition of the right by nature as a kineton suggested that the right by nature is something ultimately moved by the prime unmoved Mover, the akineton. Something of the Heraclitan fragment is echoed in Augustine’s affirmation that "men derive all that is just and lawful in temporal law from eternal law" . Against the background of parts of various Greek, Stoic, Roman and Christian traditions the language of eternal, divine and human laws along with that of natural law and justice developed. It found a powerful synthesis in Thomas Aquinas’ Summa Theologiae in which natural law is conceived of as a participation of the eternal law, and as the source of human law. Of course, many things happened to the meaning of the concepts used, which I cannot here go into. Here I merely wish to point to the core of a tradition in which natural law stood as a philosophical symbol of the relation between God and man. [From the introduction

    National and constitutional identity before and after Lisbon

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    This essay seeks to reflect on how the conscious political effort to overcome the divisiveness caused by Member States' idiosyncracies has matured into the constitutional recognition of Member State identities as essential to the European project. Central findings concern the particular twist from 'national identity' to 'constitutional identity' in the Lisbon Treaty. This can be considered a codification of the case law of some of the Member State constitutional courts. This implies that, whereas the Lisbon Treaty failed to incorporate a 'supremacy clause' on the priority of EU law over conflicting Member State law, it has indeed formulated a legally binding rule on the priority of certain Member State constitutional law over EU law. The more precise contours of this priority have already become the object of controversial ECJ case law. This essay explains why this European controversy must necessarily remain open-ended, based as it is on tolerance, the acceptance of otherness and trust

    De constitutionele weg als koninklijke weg: over het proces van ontmanteling van de Nederlandse Antillen

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    Het doel van dit opstel is uit te leggen waarom de Grondwet en het Statuut zo'n ondergeschikte rol speelden bij de grootste constitutionele hervorming van de laatste decennia, en wat daarvan de gevolgen zijn

    The Legal And Constitutional Position of the Netherlands Armed Forces and International Military Cooperation

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    This report discusses:I.The Historical and Political Background of the Netherlands Military Law System; II. Rules concerning the Use of Military Force (including constitutional mission of armed forces, permissible operations within and outside the NL, joint operations with foreign and international armed forces; relations with executive and parliament); III.The Structure of the Armed Forces; IV.Soldiers’ Rights and Duties; V.The Relationship of the Superior to Subordinate Personnel; VI. Sanctions (disciplinary measures and criminal law); VII. Regulations governing Guard Duties (including use of arms and other equipment); VIII. Legal Reforms with respect to Multinational Operations and Structures.The descriptions are according the state of the law in 2001/2002

    Gevaarlijk spel: machtenscheiding en de interventies van het Hof van Justitie bij de toetreding van de EU tot het EVRM

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    This paper argues that the ECJ may be understood to have transgressed the line separating the Court from the political decision-makers by judging, before it was called to do so. This concerned statements by or on behalf of the Court on the negotiation of an accession agreement, more particularly a special procedure for referring cases from the Strasbourg Court (ECtHR) to Luxembourg (ECJ) if the compatibility of EU acts with the ECHR has not previously been referred to the ECJ. While negotiations were ongoing, the Court and its president have declared that the absence of such a reference procedure would be incompatible with EU law. In this paper it is submitted that such a procedure may set an example for introducing such a reference procedure also for similar situations for the other parties to the ECHR, thus reducing the case load in Strasbourg and honouring the principle of subsidiarity

    Public Security and Fundamental Principles of Criminal Law

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    The theme of this paper is “public security and constitutional principles of criminal law”. This paper presents some thoughts and formulates some questions concerning developments in the broad area of criminal law and public security which pose a challenge to constitutional law. The paper focuses not at answers or solutions to problems which our societies in Europe face, but attempts to articulate these problems in a manner aimed at understanding a reality for its constitutional implications, and this in turn with a view to understanding the meaning of constitutions under present-day circumstances

    Respecting Constitutional Identity in the EU

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    This essay discusses the Sayn-Wittgenstein judgment of the ECJ, in which for the first time an appeal to the constitutional identity of a member state in order to limit a right under EU law, under Article 4(2) TEU, i.e. the duty for the EU to respect the national identities of the Member States, was succesful. It tries to identify its meaning for the constitutional relations between the EU and the Member States constitutional orders as it is viewed by the ECJ. The careful conclusion is that these have reached a stage of greater maturity in comparison to the more formative period of EU primacy; it acknowledges that rights under EU law can be restricted on the basis of national constitutional law

    The Globalizing Turn in the Relationship Between Constitutionalism and Democracy: Some Reiterations from the Perspective of Constitutional Law

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    This essay compliments Neil Walker's Constitutionalism and the Incompleteness of Democracy: An Iterative Relationshipon, with some historical and constitutional observations. It submits that Walker's analysis is based to a large extent on reasoning derived from a particular continental European constitutional tradition. This creates certain problems of its own, that do not arise in a different constitutional tradition. This is not to say, however, that this invalidates his conclusions, but rather underpins them in an alternative manner
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