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.
The Beginnings of Germany's Federal Constitutional Court
In this paper I take up aspects of the origins of the Constitutional Court of the Federal Republic of Germany, with special attention to the reasons for the aggregation of power and to the question of how far constitutional court models from abroad played a role in the development of the Court. Where the beginnings of the Federal Constitutional Court are concerned, the German tradition and the experience with the lawless regime of the national socialists played a fundamental role. To a certain degree the Austrian model and to a lesser degree that of the United States figured in the deliberations of Germany's post-War constitutional framers, too.
A Formal Model of Legal Argumentation
. The paper gives a formal reconstruction of some fundamental patterns of legal reasoning, intended to reconcile symbolic logic and argumentation theory. Legal norms are represented as unidirectional inference rules which can be combined into arguments. The value of each argument (its qualification as justified, defensible, or defeated) is determined by the importance of the rules it contains. Applicability arguments, intended to contest or support the applicability of norms, preference arguments, purporting to establish preference relations among norms, and interpretative arguments are also formalised. All those argument types are connected in a unitary model, which relates legal reasoning to the indeterminacy of legal systems, intended as the possibility to develop incompatible defensible arguments. The model is applied to permissive norms and normative hierarchies, and is implemented in a Prolog program.