81. Global constitutionalism as a grammar of global law?Matej Avbelj, 2016, izvirni znanstveni članek Opis: The article examines the viability and the desirability of the use of constitutional grammar on the global plane. It asks whether global constitutionalism is a viable and/or desirable concept that should be theoretically (and later practically) invested in to know and to understand better the phenomenon of global law as well as, potentially, to come up with normatively advantageous outcomes. The argument is broken down into three parts. The first conceptual part contains a study of the conventional meaning of constitutionalism and global law. This is followed by an examination of the descriptive, explanatory and normative fit between the two phenomena. The final part passes a verdict on the viability and desirability question. It is argued that constitutionalism is only a part of the grammar of global law, its morphology, while principled legal pluralism acts as its syntax.
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82. Rule of Law and the Economic Crisis in a Pluralist European UnionMatej Avbelj, 2016, izvirni znanstveni članek Opis: By way of introduction to the special issue, the article’s objective is threefold. First, it conceptually re-examines the often assumed correlation between the rule of law and economy. Secondly, it situates this conceptual relationship in the present crisis-ridden context of the European Union as synthesized in the contributions to the special issue. By so doing, it demonstrates that due to the EU’s pluralist nature, the economic and rule of law crises have had very different faces and consequences in different member states. Despite that the article in conclusion nevertheless tries to identify the shared patterns of the crisis and, in the inevitable absence of a single way of improving the situation, proposes at least a common one.
Ključne besede: rule of law, economy, European Union, pluralism, liberalism
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83. The UN, the EU, and the Kadi Case : a new Appeal for Genuine Institutional CooperationMatej Avbelj, David Roth-Isigkeit, 2016, izvirni znanstveni članek Opis: While the Kadi affair has attracted a lot of attention, this Article approaches it from a rarely used contextual theoretical perspective of resolving instituti onal conflicts through reflexive sincere cooperation. The argument is short and simple: The institutional relationship between the EU judiciary and the UN Security Council should have been conducted not in strategic-pragmatic terms motivated by institutional power-plays, but rather by genuine pluralist institutional cooperation. The argument is preceded by an in-depth analysis of the theoretical and concrete practical shortcomings stemming f rom the lack of institutional cooperation between the UN and the EU in the Kadi affair. Thes e shortcomings were not inevitable, as the EU and the UN legal and political system s are already connected with a whole set of bridging mechanisms. These should be, however , strengthened and their use should be made more common. In order to achieve that, the A rticle suggests an amendment to the Statute of the Court of Justice of the EU and further improvement of the safeguards in the UN Security Council sanctioning mechani sms procedures. There is no dilemma: Enhanced institutional cooperation between the institutio ns of the two systems will work to their mutual advantage as well as, most imp ortantly, maintain the rights and liberties of individuals like Kadi
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84. Constitutional and Administrative Pluralism in the EU System of Banking SupervisionMatej Avbelj, 2016, izvirni znanstveni članek Opis: This Article examines the relationship between the developing European Union (EU) system of banking supervision and the theories of constitutional pluralism. It questions the remaining epistemic, explanatory, and normative value of these theories with regard to the EU system of banking supervision. The argument is broken down into three parts. First, the Article briefly describes the system of banking supervision in the European Union and the pluralist challenges that it spurs. Second, it schematically maps out the leading theories of constitutional pluralism to test, by way of their application to the field of EU banking supervision, their epistemic, explanatory, and normative value. Finally, to the extent that this value has diminished, the Article offers another pluralist theory, not a constitutional one, which could supplement the identified epistemic, explanatory, and normative gaps. This is a theory of administrative pluralism.
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85. The sociology of (Slovenian) constitutional democracyMatej Avbelj, 2018, izvirni znanstveni članek Opis: This article puts in the centre the increasingly notable discrepancy between constitutional democracy as a form and its actual practice in Central Europe, with a particular focus on Slovenia. It does so by following Martin Krygier who has long insisted with regard to the rule of law that "we would do well to explore [...] the sociology of the rule of law." As he has noted, "this is a social science that does not quite yet exist". As a result, especially lawyers have satisfied themselves with studying the rule of law in conceptual terms, limiting themselves to drawing a laundry list of formal requirements that an ideal concept of the rule of law should meet here and there, indeed everywhere. What has been too often neglected, however, by academics and institutional actors alike, is a social dimension of the rule of law. The formal legal-institutional architecture of the rule of law has too often ignored the broader social context, wherein, rather than in the legal institutions themselves, lies "a great deal that matters most to whether law can rule." The same conclusion as to the rule of law can be applied to a wider notion of constitutional democracy. Lest we are left with a partial, superficial or even flawed understanding of the concept, our focus must be centred on the constitutive social considerations of constitutional democracy. The latter's sociological dimension shall not remain outside legal theory, as it has been too often the case so far. To prevent that this article explores the following question: what is it in the Central European societies, such as Hungary, Poland and Slovenia, that inhibits the formal infrastructure of constitutional democracy to deliver its intended effects in practice? In pursuit of the answers, the article will be broken down into three parts. First, we are going to explain the concept of constitutional democracy as it has developed both in the Slovenian constitutional practice and in theory. Having passed the conceptual threshold, the next part will outline the main elements of the sociology of constitutional democracy, as applied to the Slovenian case. Of course, due to the space constraints the discussion will be necessarily schematic and will be used to respond to the main research question of this article, which boils to the identification of the main social factors that hinder the actual emergence of constitutional democracy in Slovenia. Finally, the article will close down with some normative proposals for improving the state of constitutional democracy in Central Europe in the not so distant future.
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86. Prihodnost varovanja človekovih pravic v Evropski unijiMatej Avbelj, 2019, izvirni znanstveni članek Opis: Deset let po uveljavitvi Listine Evropske unije o temeljnih pravicah ta prispevek naslavlja vprašanje prihodnosti varovanja človekovih pravic v tej supranacionalni organizaciji. Iskanje odgovora se sestoji iz dveh delov. Prispevek najprej analizira razvoj človekovih pravic v Uniji skozi pet zgodovinskih faz, ki jih v drugem delu podvrže teoretični normativni oceni v luči prevladujočih teorij evropske integracije. Z izbiro teorije zveze kot najbolj prepričljive teorije o pravni in politični naravi integracije prispevek predlaga uravnotežen pristop, ki spoštuje pluralna ustavna razmerja znotraj integracije in ki poudarek s formalnega vidika varovanja človekovih pravic premakne predvsem na njihovo dejansko zaščito.
Ključne besede: temeljne pravice, pravno varstvo
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87. Conceptual framework and empirical methodology for measuring multidimensional judicial ideologyMatej Avbelj, Janez Šušteršič, 2019, izvirni znanstveni članek Opis: The article presents a conceptual framework and empirical methodology of an on-going research on the role of ideology in the decisions of the Slovenian Constitution Court. The literature review demonstrates that research on judicial ideology in the courts of European countries and international courts is still rare. This can be explained by conceptual, methodological and empirical challenges posed by this type of research. The article hence advances a conceptual framework which is, contra to the mainstream theoretical approach in the field, based on a multidimensional conception of ideology that is empirically operationalised along the economic, social and authoritarian dimensions with five possible ideological positions on each dimension. By applying the newly developed methodology to a sample of Courts decisions, it is demonstrated that this methodological approach is able to account for ideological differences between judges. This confirms that (judges) ideology is a complex multidimensional set of values and convictions that cannot be reduced to simply equating ideology with (possible) political affiliations.
Ključne besede: judicial ideology, multidimensional methodology, constitutional Court of the Republic of Slovenia, objectivist concept of law
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88. Constitutional pluralism and authoritarianismMatej Avbelj, 2020, izvirni znanstveni članek Opis: This article examines the relationship between constitutional pluralism and authoritarianism. It does so since the Weiss decision of the FCC spurred unusual attacks on constitutional pluralism. This particular theoretical vision of European integration has been described as inherently dangerous and its abandonment has been called for out of chiefly instrumentalist reasons, in order to prevent constitutional pluralism turning into an autocrats’ refuge. The article argues this critique of constitutional pluralism does not succeed. Due to its truncated, exclusively positivist understanding of constitutional pluralism, it has failed to take into account pluralism’s normative core. The latter presents itself an antipode to authoritarianism, which means that the autocratic regimes simply cannot credibly avail themselves of the theory of constitutional pluralism to justify their authoritarian actions.
Ključne besede: German Federal Constitutional Court, constitutional pluralism, principled legal pluralism, primacy
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90. Constitutional backsliding in Slovenia?Matej Avbelj, 2021, izvirni znanstveni članek Opis: Executive Summary
• Despite many achievements since independence across social, political, economic and constitutional domains, which are unobjectionable, equally many constitutional and political objectives still need to be met.
• Slovenia is unique with its specific model of state-owned capitalism, monopolized by the postcommunist left, that has resulted in the absence of economic pluralism, which consequently stands in the way of all other forms of social pluralism, including the existence of a vibrant pluralist civil society and professional pluralist media.
• The relatively small size of the country and the increasing weakness of the state’s formal institutional infrastructure (especially regarding the judiciary) and the growing passivity of the electorate, have enabled strong factional groups to create a parallel infrastructure of decisionmaking, which uses the formal institutions of the state as an instrument for their on-going economic self-enrichment and further entrenchment of their de facto political power.
• The dynamics of politics in Slovenia is thus opposite to that in the currently backsliding CEE countries. Rather than seeking a profound change in the society, the political agenda of the contemporary ‘Slovenian new class’ (i.e. the informal power structure undergirding the postcommunist left) is the preservation of the status quo by all means. Whenever this status quo is at least potentially challenged, bitter political and social conflicts, as at present, erupt.
• Under the radar of international attention, the specific Slovenian transition has resulted in an institutionally undernourished rule of law system and democratic governance, marked by an implosion of the political space, incessant populism and growing political radicalization in favour of illiberal democracy. The latter has traditionally existed on the (far-)left, but more recently its support started to build also on the former centre-right, which began to voice public support for the actually backsliding CEE countries.
• The course of the development of the Slovenian constitutional democracy three decades after the country’s declaration of independence therefore remains uncertain as never before.
Ključne besede: Slovenia, independence, constitutional objectives
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