Limiting Clauses: On the Continental European Tradition of Special Limiting Clauses and the General Limiting Clause of Art 52(1) Charter of Fundamental Richts of the European Union
Abstract In the Continental European tradition, provisions granting fundamental rights frequently include a written limiting clause such as art 11(2) ECHR: “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ….” Instead of the traditional system of special limiting clauses, in which provisions granting rights include their own limiting clauses, one finds in the Charter of Fundamental Rights of the European Union in art 52(1) a general limiting clause. The introduction of this provision is a welcome basis for analysing the nature of limiting clauses in general and the respects in which general limiting clauses differ from systems of written and unwritten special limiting clauses in particular. The formal requirement of limitation by law and the substantive requirement of proportionality prove to be the essential limiting criteria.
On balancing and subsumption: A structural comparison
The formal structure of subsumption may be represented in a deductive scheme, which one might call the “Subsumption Formula.” The author argues that there is an analogous scheme for the formal structure of balancing or weighing, which he terms the “Weight Formula.” In short, subsumption and balancing have comparable schemata, through which the formal structure of a set of premisses, which warrant the inference to a legal result, can be identified. The relation in the two cases between these premisses and the ensuing legal result is, however, different. The Subsumption Formula is represented by a scheme that works according to the rules of logic, the Weight Formula, by a scheme that works according to the rules of arithmetic. In spite of this difference, the two formulae are alike in that judgments, in both cases, remain the basis of the argument.
Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution
The Austrian Constitution discussed here is that of October 1, 1920, as valid on January 1, 1930; on that day the text of the Constitution was officially published by an act of the Austrian Chancellor in the Bundesgesetzblatt fiur die Republik osterreich (the official Gazette for the obligatory publications of statutes). All later amendments will not be considered because they were enacted under a semi-fascist regime and had the tendency to restrict the democratic control of the constitutionality of legislation. The Austrian Constitution of 1920-30 provided for guarantees to assure the constitutionality not only of statutes but also of ordinances. The latter were general legal rules enacted by administrative organs and not by a parliament, that is by a legislative organ. In Austria, as well as in other countries of the European continent these ordinances played a much greater role than in the United States. There were two kinds of ordinances: Ordinances based on statutes, i.e. ordinances the function of which was to execute the statutes, and ordinances which, like statutes, were enacted directly "on the basis of the constitution," that is ordinances issued in place of statutes. The significance of ordinances is due to the peculiar position which the administrative authorities occupy in the legal systems of the European continent. There they have, in their capacity as law-applying organs, the same rank as courts. The administrative act has in principle the same legal effect as a judicial decision. Besides, the administra-