SOFT LAW AND SOVEREIGNTY – FROM A POLITICAL TO A LEGAL LIMITATION

Firstly, the author analyses the theory of sovereignty from the point of its birth and then he considers more recent theoretical challenges facing the notion of sovereignty in a globalised world. Particular attention is paid to soft law – that new, formally non-binding source of international law in the light of its factual influence on the desovereignisation of states. The author holds the position that the relativisation of the notion of sovereignty has been a process that began already in the 18th century and that has only additionally accelerated with new challenges posed by globalisation. The author argues for the only possible and proper use of the notion of sovereignty in its original meaning as an absolute, completely unlimited, and indivisible power. On the other hand, he takes a critical approach not only to the theory of constitutional pluralism but also to the ideas of the state’s legal sovereignty. He pleads for rejection of separating different aspects of sovereignty, artificially distinguishing between the factual and legal sovereignty, as well as the external and internal sovereignty. While theoretically possible, it is of no practical use because the notion of sovereignty can only be correctly understood as a political and legal illimitability. For all other various modalities and attempts at relativising and grading sovereignty, from the 18th century to this day, different terms should be coined. Being mindful of the situation in most of the present-day states, the author advocates the introduction of the term "pseudo-sovereignty".

The Transformation of Global Intellectual Property Protection

This chapter traces the transformation of global intellectual property protection. The classical Convention regime, epitomised by the Paris Convention protecting industrial property and the Berne Convention protecting copyright, dominated the international IP scene for about a century. Other norm sets have become relevant for IP more recently. These often strengthen IP rights or grant them complementary protection and include international investment agreements (IIAs), predominantly in the form of bilateral investment treaties (BITs) and investment chapters in trade treaties; the protection of property ownership as a fundamental right; private regulation of IP; and IP-specific counter-norms. Ultimately, this transformation of global IP law necessitates a broadening of the constitutional discourses relevant for IP. Constitutional pluralism, new constitutionalism, and societal constitutionalism represent the main currents of such global constitutional discourses.

The concept of constitutional pluralism as the fundamental basis for the development of the European Union legal order

The objective of this article is to analyze the concept of constitutional pluralism as a methodological basis for the construction of the legal system of the European Union. In particular, attention is paid to investigating the particularities of the interaction and operation of the different constitutional legal systems within the legal sphere of the European Union, studying the constitutional collisions derived from the interaction of European Union law and the law national of the Member States. Dialectical, comparative legal, historical, systemic-structural and formal dogmatic methods were used in the research. The article concluded that the national constitutional courts of the Member States of the European Union can give priority to their constitutional rules only if those rules are clear and reflect substantial constitutional obligations. However, in any case, in order to maintain the coherence of the legislation of the European Union and the national legislation of the Member States, it is necessary to amend the national Constitutions of the Member States of the European Union.

Is Constitutional Pluralism (Il)liberal? On the Political Theory of European Legal Integration in Times of Crisis

This Article uncovers the normative political theory underlying the legal doctrine of constitutional pluralism, as it is used in the EU today. Constitutional pluralism, once described as a semi-official legal doctrine in the EU, is now being used by some member states to challenge its authority and rules. By reconstructing the political thought of one of its founders, N. MacCormick, this Article takes issue with two most common interpretations of constitutional pluralism: On the one hand, it has been claimed that the normative political content of constitutional pluralism is virtually identical, or at least compatible, with that of Kantian rights-based cosmopolitanism; on the other, it has been contended, especially with regard to its uses in Hungary and Poland, that it was an inherently dangerous, illiberal, normative theory. This Article offers to move away from current legal debates to go back to the origins of constitutional pluralism. It argues that constitutional pluralism is not a purely liberal theory indeed. But neither is it inherently illiberal. Rather, both liberal and illiberal readings are possible, but partial, interpretations of MacCormickian constitutional pluralism. A more systematic interpretation shows that constitutional pluralism opens a path to move beyond this somewhat archetypical divide.

Kako predavati ustavno pravo u dvadeset prvom veku

Constitutionalist discourse has undergone a fundamental transformation at the beginning of the 21st century. New, major constitutional topics have been introduced, inspired by constitutional pluralism and constitutionalism beyond the nation-state. The systemic challenges to modern liberal constitutionalism have prompted a new understanding not only of the constitution, but also of constitutional law as a university subject. The crisis of key parameters of constitutional democracy commands a thorough re-examination of both the cognitive and performative dimensions of teaching constitutional law. For that reason, this paper seeks answers to the question what and how to teach in the epoch of postmodern constitutionalism. The paper advocates the viewpoint that the professor should not only describe phenomena, but also explain the essence of the problem: for example, the republican argument of classical constitutionalism’s irrelevance, or the difference between normality and pathology of constitutional systems in the context of democratic transition, or indeed the trans-nationalization of the constitution and the postmodern paradigm of constitution-building without constituent power. The need for interdisciplinary and multidisciplinary approach, including co-teaching is demonstrated through the topics of monistic and pluralistic federalism, and constitutional guaranties of individual and/or collective rights. The paper concludes that teaching of constitutional law should be guided by global doubt, as the hermeneutics of truth and ethico-political consideration.

National to Transnational Legal Pluralism

This chapter studies state law within the United States legal system(s), showing that law is not fully unified and hierarchically organized, a condition that also exists within highly developed national legal systems across Europe. It looks at pluralism internal to national legal systems before considering constitutional pluralism in the European Union, as well as global legal pluralism. Flowing through preceding chapters is the movement from decentralized community law to the consolidation of law within the territorial state—with regime law absorbing or trying to suppress or recognizing or accommodating or turning a blind eye to resilient forms of lived community law. The chapter leaves aside community law to center on the state legal system itself, and thereafter on manifestations of cross-polity laws. As with previous chapters, the focus is on legal pluralism while questioning the image of the monist law state. Unlike previous chapters, which have been largely descriptive, the last part of the chapter is more analytical and critical in discussing global legal pluralism.

Towards a Tyranny of Values?

This contribution develops the framework of European reactions to the undermining of checks and balances in EU Member States. It surveys the normative setting with its various institutional options and contrasting constitutional principles and then applies these principles to the panoply of relevant instruments. The building blocks of this framework are competence, procedure, standards, and control. This should help Europe to speak with a principled voice. The contribution shows how red lines can be drawn that respect constitutional pluralism, and how any action’s legitimacy is enhanced if many institutions undertake it jointly.