To Örebro University

Today all five Nordic countries are counted among the legal systems that have a decentralized model of judicial review. All Nordic courts have the power of judicial review and may directly apply and enforce their national constitution. They are, however, also traditionally considered to have a model of weak judicial review, as judges are reluctant to use this power and give instead considerable deference to the legislature. The Nordic Supreme Courts have, however, not been an exception from the global trend of rising judicial power. They have often taken a firmer stand on constitutional issues in the last few decades, determining the fundamental questions of politics. In some cases, their decisions even provoked accusations of excessive judicial activism. This chapter, without being able to rely on the JUDICON dataset, will discuss the relationship between judicial and legislative power in the Nordic countries based on doctrinal and, in a smaller part, empirical research carried out in the last three decades.

This article discusses the implementation of duties to reduce the market for sexual services of trafficked persons, both adults and children. The article begins by describing the duties that stem from international and European obligations. It then presents the legislation and practice of five European states (Hungary, Italy, the Netherlands, Sweden and the United Kingdom) regarding human trafficking and the purchase of sexual acts from trafficking victims. The states in the study have introduced measures to combat human trafficking by effective prosecutions and sentencing of traffickers. They have, however, taken few measures to combat demand for the sexual services of trafficked persons; in some countries, no measures at all. As all the countries criminalise the purchase of sexual acts from children below the age of 18, the article examines whether this has afforded trafficked children effective protection against sexual exploitation. One key element in the crime of purchasing sex from a minor is knowledge of the child's age. The subjective elements that states require range from strict liability (below certain ages) to negligence, and their practice also varies. The article ends by discussing the lacunae that remain before states can be said to secure trafficked persons' right to effective protection against sexual exploitation.

Although long considered alien to the civil law tradition, the publication of separate dissenting or concurring opinions is now permitted by the majority of European constitutional courts, the only exceptions being the Austrian, Belgian, French, Italian, and Luxembourgish constitutional courts. The decades-long history of dissenting opinions in the practice of several European constitutional courts calls for an analysis.  While there is an extensive literature in the United States regarding the use of dissenting opinions, comprehensive empirical research is still absent in Europe.  American scholars have conducted research from several different points of view. Legal scholars have dealt primarily with the relationship between dissenting opinions and the doctrine of binding precedent, and have tried to solve the problem of the precedential value of plurality decisions, e.g. decisions lacking a reasoning shared by the majority of the judges.  Political scientists, for their part, have studied the policy-making role of judges and strategic opinion-writing.  Scholars of law and economics have analyzed the costs and benefits of writing separately.  Even judges themselves have often expressed their own thoughts in essays or conference speeches on the matter.

A tanulmány, a Magyar Alkotmánybíróság hat 2005-ös határozata kapcsán, a magyarországi nemzeti és etnikai kisebbségek védelmére kialakított intézményrendszert vizsgálja, valamint rövid történelmi és jogszabályi áttekintést is nyújt a témában. A cikk elsõ felében a szerzõ a két legújabb e tárgyban hozott alkotmánybírósági döntést (2005. szeptemberi és decemberi) mutatja be, majd a legjelentõsebb magyarországi kisebbség, a cigányság aktuális helyzetérõl ír. Emellett számba veszi a strasbourgi Emberi Jogi Bíróság azon döntéseit, melyeket az Egyezmény diszkrimináció tilalmát kimondó 14. cikkelyének megsértéséért Magyarország ellen benyújtott panaszok alapján hozott. Ezt a Magyar Alkotmánybíróság vázlatos bemutatása követi, mely érzékeltetni kívánja e szerv kiemelkedõ jelentõségét az alkotmánybíróságok legújabb generációjának sorában és döntéseinek súlyát a magyar jogrendszerben. A szerzõ végül szemlélteti az Alkotmánybíróság egyenlõség elvével kapcsolatos gyakorlatát, és elemzi a European Roma Rights Center által benyújtott indítványok alapján hozott 2005-ös határozatokat.

This chapter aims at presenting and evaluating the conditions of access to the Hungarian Constitutional Court after the enactment of the new Fundamental Law and the new Constitutional Court Act on 1 January 2012. The abolition of actio popularis and the concomitant introduction of full constitutional complaint opened a new scenario for the Hungarian Constitutional Court in which a shift of emphasis from abstract to concrete review may be expected. Two years after the entering into force of the new scheme it is possible to make an early evaluation of the practice based on the new framework. How are these new forms being used by the complainants and interpreted by the Court? Can we already delineate the new trends of case-law?

This paper discusses the different models of appointment applied for constitutional judges in Europe, taking into consideration also the appointment procedure of the two European regional courts. It offers an account and a comparative analysis of the three appointment models: the split, the collaborative and the parliamentary model, discussing their practical application and shortcomings. In particular, the paper deals with the question of how to avoid stands tills in the different appointment procedures and with the publicity of these procedures. The author concludes with a proposal for the Hungarian Constitutional Court, arguing that the split model is the one that ensures better that the composition of the Court expresses a balance between the branches of government.

Constitutional reasoning has been a flourishing field of research in comparative constitutional law in the past decade. This essay reviews two books that have made a significant contribution to the field. The success of these books is also shown by the fact that both were reprinted in paperback last year. The first book, as the author András Jakab declares, “provides a theory for constitutional lawyers about fundamental questions of European constitutional law” (at 1). At the same time, it serves as a conceptual foundation for the second book, which is an edited collection on comparative constitutional reasoning, and the final product of a five-year research project, involving twenty-five scholars from four continents who authored the various contributions, each examining one court’s style of constitutional reasoning. András Jakab is among the leaders of this research project (together with Arthur Dyevre and Giulio Itzcovich) and the editors of the second book. The essay will present the two books in this order.

The essay discusses the phenomenon of judicial dissent from a comparative perspective, with special focus on European constitutional courts most of which allow the publication of dissenting opinions. It presents the most common arguments for and against the publication of dissent, discusses dissenting opinions’ difficult relationship with certain fundamental principles, such as judicial independence and legal certainty, and examines their personal dimension, i.e. the judges’ point of view. Finally, it reflects on the compatibility of dissenting opinions with the perceived role of the judge in the civil law tradition.

Title in English: The Legal Systems of Eastern Europe

The chapter offers an introduction to the legal systems of Eastern Europe, explaining briefly their historical development and their main features today from a comparative perspective.

As John Merryman explains in his famous handbook on the civil law tradition, in continental Europe the standard attitude is that the law is certain and should appear so, and that this certainty would be impaired by noting dissents and by publishing separate opinions. It seems that the common law tradition, where judges write separately on a rather regular basis, is less obsessed with legal certainty, and considers other values, such as justice, transparency and legitimacy as equally, if not more, important. The paper aims at examining the paradoxical and counter-intuitive relationship between legal certainty and the possibility of publishing separate opinions. There is a paradox, because even if an apparently unanimous decision seems to enhance legal certainty, as the court speaks with one voice and gives only one answer to each legal question at hand, at the same time it endangers the predictability of the law, as future changes in case-law are more difficult to foresee. Thus, non-unanimous judgments demonstrate that there is a contrast between the two basic elements of legal certainty: consistency and predictability. This account of the relationship between legal certainty and dissenting opinions, however, reveals a positivist approach which sees the law as a set of rules. A non-positivist understanding of legal certainty, regarding deliberative reasoning as a defining element of law, focuses on the certainty of argumentative practices as something distinctively different from the certainty of normative elements. In this argumentation-based perspective, elaborated by Stefano Bertea, the object of legal certainty is an argumentative activity and so procedural law. In Habermas’s view procedural certainty consists in non-arbitrariness, i.e. that in procedures issuing judicial decisions only relevant reasons are decisive. Legal certainty, thus, incorporates a procedural and a rational component. The paper will attempt to shed new light on the different paradigms of legal certainty by discussing the phenomenon of judicial dissent from a theoretical and comparative perspective.

Ugo Mattei, when reflecting on transfer of legal knowledge from one system to another in his well-known article proposing a new, dynamic classification of legal systems, argues that law is remarkably path dependent and comparative research helps identifying the differences in the path of legal systems that make dependency occur. The very use of the concept ‘path dependency’ by Mattei reveals an interdisciplinary approach to law. Most lawyers do not know and employ this term which belongs to other social sciences, mainly economics. On the other hand, one of the fundamental maxims of comparative law is that comparison involves history. In order to understand a legal rule or institutions we have to go back to its roots. But it is a retrospective exercise. The theory of path dependency aims at predicting the future. But how does the historical perspective, including the theory of path dependency, fit within a contextual analysis? My presentation aims at reflecting on the concept of path dependency and the appeal it has or may have for comparatists.