Constitutional Evolution in Central and Eastern Europe

Alexander H.E. Morawa and Kyriaki Topidi, eds. ashgate, December 2010

This book examines EU enlargement by studying how domestic constitutional evolution in the new member states contributes to European integration. In contrast to the usual top-down analytical pattern, it reverses the paradigm by looking at constitutional developments and dynamics from the bottom-up, studying how domestic constitutional evolution contributes to European integration. The authors analyze constitutional trends from the perspective of ’new Member States’ as policy-makers and not strictly as policy-takers. The issue of conditionality is also explored in a discussion of the extent to which pre-2004 and 2007 conditionality has had lasting effects at the level of constitutionalization of different areas and norms and if so, of what kind. The exploration of Europeanization effects in recent Member States substantiates and demonstrates how enlargement has been an important driving-force for the effective export of EU legal rules in this region.

The book utilizes a comparative approach to highlight the merits and obstacles created by the growing diversity in the constitutional rules and patterns of the new Member States. It also contains a section that places the CEE constitutionalizing map in a broader comparative European and global context, establishing links with similar transitional regimes in the continent and elsewhere.

Transnationalization of Legal Education: A Swiss (and Comparative) Perspective

Alexander H. E. Morawa & Xiaolu Zhang, “Transnationalization of Legal Education: A Swiss (and Comparative) Perspective, in: 58 Penn State Int’l Law Rev. 811-30 (2008)

How does a law school cope with the ever pressing need to globalize? Even in traditionally domestic fields such as family law, the probability that law graduates will handle a case with transnational implications continues to rise, making knowledge of the laws of foreign countries and the rules that govern transnational legal interaction an undeniable facet of practice. The question then arises as to how law schools must equip their graduates with the skills necessary to meet the challenges of global practice. For a law school, these questions can mean an evaluation of its curriculum, the needs of its students, and how best to accomplish globalization while still maintaining its identity.

The purpose of this paper is to chart the journey of a Swiss law school as it seeks to further extend its reach beyond the territorial and intellectual boundaries of a tradition of legal education that had for a long time been predominantly inward-looking, and to explore the possibilities of opening itself and its students to the opportunities, challenges, and demands of a global legal education.

Substantive Due Process in Human Rights Law: International Tribunals and the Review of Judgments of Civil Courts

Alexander H. E. Morawa, "Substantive Due Process in Human Rights Law: International Tribunals and the Review of Judgments of Civil Courts", in: Girsberger Daniel (Hrsg.), Luminati Michele (Hrsg.), ZGB gestern - heute - morgen, Festgabe zum Schweizerischen Juristentag 2007, S. 67 - 80 (Schulthess, 2007)

"The right to a fair trial, or to due process, is an essential prerequisite for any state to be recognized as abiding by the rule of law, or being a Rechtsstaat. The fairness of a trial, be it criminal, civil or administrative in character, is assessed on the basis of formal compliance with certain minimum guarantees: the independence and impartiality of the court or tribunal that decides the matter, the right to defend oneself (criminal cases) or to present one’s arguments (civil cases), equality of arms, the absence of undue delays, and so on. While in other matters that come under scrutiny from a human rights perspective (such as the rights to freedom of speech, freedom from torture, non-discrimination, or family life) the ‘what was done’ will be the object of review, in fair trial cases, the ‘how it was done’ is of interest. The substantive outcome of the proceedings – the right or wrong – matters little to the international adjudicator, as long as due process was observed. ..."

This essay proposes a method by which international human rights tribunals could, in the future, undertake a limited review of the substance of domestic decisions in order to curtail arbitrariness and unfairness.

Monographien

• "A European Certiorari" (2011)

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Aufsätze in Zeitschriften

• Alexander H. E. Morawa, "Global Constitutional Interaction – a Question of Methodology?", in: SZIER/RSDIE 4/2008, pp. 1-29

• Alexander H. E. Morawa & Xiaolu Zhang, “Transnationalization of Legal Education: A Swiss (and Comparative) Perspective, in: 58 Penn State Int’l Law Rev. 811-30 (2008)

• Alexander H. E. Morawa (translation by Mehmet Akif Akbaş), MĬLLETLERARASI ĬNSAN HAKLARI HUKUKUNDA HUKUK MAHKEMESĬ KARARLARININ ESAS BAKIMINDAN HUKUKA UYGUNLUĞUNUN DENETĬMĬ, IV/2 Journal of Yeditepe University Faculty of Law 231-46 (2007)

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