On the Limits of Constitutional Adjudication

Author: Juliano Zaiden Benvindo
Publisher: Springer Science & Business Media
ISBN: 9783642114342
Format: PDF, ePub, Mobi
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Juliano Z. Benvindo investigates the current movement of constitutional courts towards political activism, especially by focusing on the increasing use of the balancing method as a “rational” justification for this process. From the critical perception of the serious risks of this movement to democracy, the book takes as examples two constitutional realities, Germany and Brazil, in order to discuss the rationality, correctness, and legitimacy of constitutional decisions within this context. Through a dialogue between Jacques Derrida’s deconstruction and Jürgen Habermas’s proceduralism, the author confronts Robert Alexy’s defense of the balancing method as well as those two constitutional realities. This confrontation leads to the introduction of the concept of limited rationality applied to constitutional democracy and constitutional adjudication, which affirms the double bind of history and justice as a condition for a practice of decision-making committed to the principle of separation of powers.

Proportionality and Judicial Activism

Author: Niels Petersen
Publisher: Cambridge University Press
ISBN: 1107177987
Format: PDF, ePub
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The principle of proportionality is currently one of the most discussed topics in the field of comparative constitutional law. Many critics claim that courts use the proportionality test as an instrument of judicial self-empowerment. Proportionality and Judicial Activism tests this hypothesis empirically; it systematically and comparatively analyses the fundamental rights jurisprudence of the Canadian Supreme Court, the German Federal Constitutional Court and the South African Constitutional Court. The book shows that the proportionality test does give judges a considerable amount of discretion. However, this analytical openness does not necessarily lead to judicial activism. Instead, judges are faced with significant institutional constraints, as a result of which all three examined courts refrain from using proportionality for purposes of judicial activism.

Courts Privacy and Data Protection in the Digital Environment

Author: Maja Brkan
Publisher: Edward Elgar Publishing
ISBN: 1784718718
Format: PDF, ePub, Docs
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Through critical analysis of case law in European and national courts, this book reveals the significant role courts play in the protection of privacy and personal data within the new technological environment. It addresses the pressing question from a public who are increasingly aware of their privacy rights in a world of continual technological advances – namely, what can I do if my data privacy rights are breached?

International Judicial Lawmaking

Author: Armin Von Bogdandy
Publisher: Springer Science & Business Media
ISBN: 3642295878
Format: PDF, ePub
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Over the past two decades new international courts have entered the scene of international law and existing institutions have started to play more significant roles. The present volume studies one particular dimension of their increasing practice: international judicial lawmaking. It observes that in a number of fields of international law, judicial institutions have become significant actors and shape the law through adjudication. The contributions in this volume set out to capture this phenomenon in principle, in particular detail, and with regard to a number of individual institutions. Specifically, the volume asks how international judicial lawmaking scores when it comes to democratic legitimation. It formulates this question as part of the broader quest for legitimate global governance and places it within the context of the research project on the exercise of international public authority at the Max Planck Institute for Comparative Public Law and International Law.

Comparative Judicial Review

Author: Erin F. Delaney
Publisher: Edward Elgar Publishing
ISBN: 1788110609
Format: PDF, ePub
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Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. This edited volume brings together the leading scholars of constitutional law and politics to provide a comprehensive overview of judicial review, covering theories of its creation, mechanisms of its constraint, and its comparative applications, including theories of interpretation and doctrinal developments. This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.

Unconstitutional Constitutional Amendments

Author: Yaniv Roznai
Publisher: Oxford University Press
ISBN: 0198768796
Format: PDF
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Can constitutional amendments be unconstitutional? The problem of 'unconstitutional constitutional amendments' has become one of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. This book describes and analyses the increasing tendency in global constitutionalism substantively to limit formal changes to constitutions. The challenges of constitutional unamendability to constitutional theory become even more complex when constitutional courts enforce such limitations through substantive judicial review of amendments, often resulting in the declaration that these constitutional amendments are 'unconstitutional'. Combining historical comparisons, constitutional theory, and a wide comparative study, Yaniv Roznai sets out to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments.

Rights and Democracy

Author: Henk Botha
Publisher: AFRICAN SUN MeDIA
ISBN: 1919980024
Format: PDF
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The twelve essays in this book pay tribute to senior Harvard law professor Frank Michelman whose thinking – and input – on Constitutional Law has made a great contribution to constitutional development in South Africa. These essays are the work of some of the best practical and academic legal minds in this country and, given South Africa’s recent successes in this field, represent an advanced position in constitutional thinking in the world.

A Theory of Constitutional Rights

Author: Robert Alexy
Publisher: Oxford University Press, USA
ISBN: 0199584230
Format: PDF, ePub, Mobi
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This classic work of constitutional theory analyzes the general structure of constitutional rights and their judicial application. It deals with a wide range of problems common to all systems of constitutional rights review - from balancing rights to deciding the limits of their scope.

Judicial Dialogue and Human Rights

Author: Amrei Müller
Publisher: Cambridge University Press
ISBN: 1107173582
Format: PDF, Kindle
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This book offers a comprehensive analysis of the extent, method, purpose and effects of domestic and international courts' judicial dialogue on human rights. The analysis covers national courts' judicial dialogue from different regions of the world, including Eastern Europe, Latin America, Canada, Nigeria and Malaysia. The text is complemented by studies on specific subject matters such as LGTBI people's and asylum seekers' rights that further contribute to a better understanding of factors that stimulate or hold back judicial dialogue, and by first hand insights of domestic and European Court of Human Rights judges into their courts' involvement in judicial dialogue. The book features contributions from leading scholars and judges, whose combined perspectives provide an interesting and timely study.