Articles for category: Focus

Decommunization in Times of War: Ukraine’s Militant Democracy Problem  

The Ukrainian parliament Verkhovna Rada adopted four ‘memory laws’ shortly after the Maidan revolution in the spring of 2015: One contains a legislation criminalizing both Nazi and Communist totalitarian regimes, prohibiting the propaganda of their symbols; two laws commemorating, respectively, Ukraine’s fighters for twentieth-century independence movement and the victory over Nazism during the Second World War, and a law guaranteeing access to archives of repressive Soviet-era organs. These laws raise fundamental questions about the legitimate defense of democracy in times of political transformation and war.

9. Januar 2018

Memory Laws: Historical Evidence in Support of the „Slippery Slope“ Argument

The notion of memory laws emerged as recently as the 2000s, and it can be used in a narrow sense of denoting enactments criminalizing certain statements about the past (such as Holocaust denial) and in a broad sense as including any legal regulations of historical memory and commemorative practices. Such regulations are by no means a recent phenomenon.

8. Januar 2018

Law and Historical Memory: Theorising the Discipline

Recent years have witnessed a surge of studies on law and historical memory, often authored by comparative constitutional scholars. Such scholarship frequently takes ‘particularist’ forms, through studies of dramatic events within specific states or regions. As part of the T.M.C. Asser Institute – Verfassungsblog symposium on memory laws, however, this essay asks: Can the discipline be characterised as a whole? If so, in what ways and with what aims? 

7. Januar 2018

The Right to the Truth for the Families of Victims of the Katyń Massacre

Recently, Uladzislau Belavusau with his post about a de-communization law in Poland launched a joint ASSER-Verfassungsblog symposium on what he has coined "mnemonic constitutionalism". Aleksandra Gliszczyńska-Grabias followed up on this topic by mapping the landscape of various memory laws in the recent years and unfolding the ongoing challenges to fundamental rights, joined by Anna Wójcik with an exploration of how memory laws affect state security. With this contribution, I would like to discuss how the European Court of Human Rights has failed to offer redress to the families of the victims of the Katyń massacres seeking to receive information about their loved ones. I will compare the Polish case-study with the Spanish and South-American practice concerning the “right to the truth”, thus adding this concept to the array of topics discussed under the umbrella of “memory laws” and mnemonic constitutionalism.

6. Januar 2018

Memory Laws and Security

Recently, Uladzislau Belavusau with his post about a de-communization law in Poland launched a joint ASSER-Verfassungsblog symposium on what he has coined "mnemonic constitutionalism". Aleksandra Gliszczynska-Grabias followed up on this topic by mapping the landscape of various memory laws in the recent years and unfolding the ongoing challenges to fundamental rights. With this essay, I would like to highlight another aspect of mnemonic constitutionalism, affecting various understandings of security.

5. Januar 2018

Law and Memory

Recently, Uladzislau Belavusau with his post about a de-communization law in Poland launched a joint ASSER-Verfassungsblog symposium on what he has coined "mnemonic constitutionalism". Drawing on his idea of mnemonic constitutionalism, I would like to join this discussion by mapping the general landscape of how memory laws have recently been manufacturing the socio-constitutional climate in various states.

4. Januar 2018

From legal to political constitutionalism?

While the developments in Poland and in Hungary clearly have to do with a move away from legal constitutionalism, I am not so sure about their moving towards a form of political constitutionalism, as prof. Adam Czarnota suggests. In my view, a key dimension of political constitutionalism is the observation that specific constitutional norms and rights are ultimately ‘essentially contestable’ as reasonable disagreement is an intrinsic part of democracy. Therefore, the understanding and interpretation of such norms and rights ought to remain part of an on-going political debate, rather than being one-sidedly interpreted by the judiciary. Such an open and inclusionary political debate ought to take place within the limits of the constitution, as a basic framework for resolving disagreements. And it ought to be grounded in the ideas of audi alteram partem and the equal weight of different views in the debate.

4. Juni 2017

On the Separation of Powers and Judicial Self-Defence at times of unconstitutional capture

"It is the institutions that help us preserve decency. They need our help as well. Do not speak of “our institutions” unless you make them yours by acting on their behalf. Institutions do not protect themselves. They fall one after the other unless each is defended from the beginning. So choose an institution you care about - a court, a newspaper, a law, a labor union - and take its side."

4. Juni 2017

A state of constitutional necessity versus standard legal reasoning

N.W. Barber and A. Vermeule, in their seminal paper, differentiate between three types of cases in which the exceptional role of courts can come to light. I will be interested only in the third type of cases, which has been defined by Barber and Vermeule as follows: ‘There are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law.’

3. Juni 2017