Lessons from the “Constitutional Mythology” or How to Reconcile the Concept of State Sovereignty with European Intagration

Hamuľák, Ondrej

doi:10.1515/danb-2015-0005

Cited by 9 publications

(3 citation statements)

References 22 publications

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“…The concept of sovereignty is both legal and philosophical. Legal theory distinguishes between sovereignty of people and sovereignty of states, being traditionally perceived as sovereigns in international relations-at least since the establishment of the Westphalian system of international law and relations ( Kabat-Rudnicka, 2020;Hamuľák, 2015).…”

Section: Eu Digital Sovereigntymentioning

confidence: 99%

5G and Digital Sovereignty of the EU: The Slovak Way

Gábriš¹,

Hamuľák

2021

TalTech Journal of European Studies

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Some recent views question the concept of sovereignty (especially the sovereignty of states), arguing that sovereignty is to be abandoned as a historical concept, because it existed in the world of the Westphalian system (created after 1648), where states were the major players, centers of power and objects of interest. Instead, we suggest that sovereignty should be perceived again as a “supreme power” (summa potestas), meaning a return to the pre-Bodinian concept of sovereignty and perceive it as a “power to exert control”. With regard to cyberspace, this does not mean direct control of all entities in the cyberspace, but only those that provide services which are perceived as “essential” or “critical” for the security and interests of the state. That is actually the approach taken with regard to ensuring the safety of 5G networks—through control imposed on the network operators, as required by the respective EU legislation and the EU Toolbox on 5G Networks specifically.

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Section: Eu Digital Sovereigntymentioning

confidence: 99%

5G and Digital Sovereignty of the EU: The Slovak Way

Gábriš¹,

Hamuľák

2021

TalTech Journal of European Studies

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“…In the world of cyberspace and its normative system, these approaches can be perfectly united with the Lessig's explanation of the regulatory system of cyberspace -allegedly consisting of four layers: "law", "social norms", "market" and the "code". 8 While law is created under specific rules for the enactment of law (an idea being close to legal positivism), market and social norms are rather sociological (societal and economical) rules, which may at the same time reflect the general notions of natural law and ideas of natural justice. The "Code" should then be understood as a part of the technological "ecosystem" -nature, or reality -giving foundation and framing (but also limiting) the whole system of norms in the cyberspace.…”

Section: Introductionmentioning

confidence: 99%

Pandemics in Cyberspace – Empire in Search of a Sovereign?

Gábriš

Hamuľák

2021

Baltic Journal of Law &Amp; Politics

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Traditionally, the idea of a sovereign is being connected either with an absolutist ruler (later replaced by “the people”) at the national level, or the nation-state at the international level – at least in the conditions of the Westphalian system created in 1648. Today, on the contrary, we are witnessing a “post-” situation in many respects – post-modernism, post-positivism, but also post-statism – basically being a sort of return to the pre-Westphalian system (see Ondrej Hamuľák, “Lessons from the ‘Constitutional Mythology’ or How to Reconcile the Concept of State Sovereignty with European Integration,” DANUBE: Law, Economics and Social Issues Review Vol. 6, No. 2 (2015); or Danuta Kabat-Rudnicka, “Autonomy or Sovereignty: the Case of the European Union,” International and Comparative Law Review Vol. 20, No. 2 (2020)). However, paternalistic views, prevailing especially in times of crisis and uncertainty, desperately search for a sovereign to lead us from the crises. With regard to cyberattacks and insecurity in the cyberspace this means an effort to subordinate cyberspace to state sovereignty. Still, given the limitations of traditional state-based monopolies of power and legislation, the state as an “analogue sovereign” shrinks in the digital cyberspace rather to a co-sovereign, co-ordinator, or in feudal terms a “senior” vis-à-vis their vassals. The actual ensuring of the tasks of state as a “digital sovereign” is namely often being entrusted to non-state (essentially private-owned) entities, under the threat of legal sanctions. The current situation of constructing “digital sovereignty” of traditional states or of the EU is thus marked by the necessity of cooperation between the state power and those non-state entities which are falling under its analogue jurisdiction.

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“…7 The predecessors of the superficiary right of building also include the German Platzrecht, which was subject to a special superficies payment (purkrecht) 8 charged for the permission to build a house on a plot of the City Lord. 2 Hamuľák (2015). 3 Ključnikov, Jünger (2013).…”

Section: Introductionmentioning

confidence: 99%

Superficiary Right of Building: Origin and Development in Central Europe

Petr

2016

DANUBE: Law and Economics Review

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The Czech Republic has been dealing for the last four years with a legal revolution in the field of private law. A new Civil Code was adopted in 2012 and many new and forgotten legal figures were restored in the text of the code. An interesting example of forgotten legal figures is the superficiary right of building, which has again entered the legal order of the Czech Republic after a long one hundred years. Unlike the Act on the Superficiary Right of Building of 1912, the new Civil Code extends the scope of persons that may create the superficiary right of building to their land. This should eliminate the obstacle that has substantially limited its wider use. The superficiary right of building is not likely to become a legal concept very frequently seen in public registers. The aim of this paper is, therefore, a reflection on divided ownership and the purpose and genesis of the superficiary right of building in relation to its origins, as well as a prediction of future developments of this legal concept in the real estate market. To analyse the concept, the paper employs formal and legal methods (logical, grammatical and historical method). A comparative study is conducted in the spirit of the comparative method. The superficiary right of building is a suitable complement to the range of options of property rights offered by the new Civil Code. The author concludes that the use of the superficiary right of building, although not limited in comparison with the 1912 Act, will likely be less frequent and focused on longer-term projects.

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Lessons from the “Constitutional Mythology” or How to Reconcile the Concept of State Sovereignty with European Intagration

Cited by 9 publications

References 22 publications

5G and Digital Sovereignty of the EU: The Slovak Way

5G and Digital Sovereignty of the EU: The Slovak Way

Pandemics in Cyberspace – Empire in Search of a Sovereign?

Superficiary Right of Building: Origin and Development in Central Europe

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