The Significance of Constitutional Rights for Private Law: Theory and Practice in West Germany

1968 ◽  
Vol 17 (3) ◽  
pp. 571-601 ◽  
Author(s):  
Kenneth M. Lewan
Author(s):  
Jud Mathews

This chapter explores the development of Canadian constitutionalism leading up to judicial engagement with the horizontal effect of rights. The Supreme Court of Canada already enjoyed an exceptionally broad jurisdiction when the enactment of the Charter of Rights and Freedoms in 1982 gave it an extensive set of constitutional rights to interpret. At the same time, the very breadth of the Court’s formal powers was a reason to use them carefully, especially because the Charter triggered anxieties about federalism among many advocates for provincial autonomy. This chapter shows how, in this context, the Supreme Court of Canada had little to gain from announcing a far-reaching constitutionalization of private law.


2021 ◽  
Author(s):  
Sergey Nevskiy ◽  
Aleksandr Hudokormov ◽  
Mihail Pokidchenko ◽  
Irina Chaplygina ◽  
Al'fred Shyuller ◽  
...  

The monograph traces the history of the development of German neoliberal economic thought from the origins of the Freiburg School in the 1930s to the first results of the practical implementation of the concept of a social market economy in West Germany in the late 1940s-early 1960s. The author demonstrates the broad historical context of the development of German ideas about the theory and practice of the policy of order (Ordnungstheorie und Ordnungspolitik), shows the features of the formation and spread of the scientific and intellectual economic tradition in Germany, as well as beyond its borders, starting with the birth of the German historical school and the perception of its heritage by Russian socio-economic thought in the second half of the XIX — early XX century and ending with the practical implementation of the concept of order of the Freiburg school and the correlation of its ideological and spiritual and moral foundations with the social teaching of Catholicism and liberalism of Friedrich von Hayek. Special attention is paid to some controversial issues of the formation of the theory of ordoliberalism during the period of national socialism and the problems of the social market economy in modern Germany. The book is intended to fill the shortage of specialized scientific literature on relevant issues and to acquaint the Russian reader, primarily students, teachers and researchers, with the variety of ideological and scientific-theoretical foundations of the socio-economic system of the post-war Germany.


2006 ◽  
Vol 7 (4) ◽  
pp. 341-369 ◽  
Author(s):  
Mattias Kumm

In 1931 Carl Schmitt published an article titled “the turn to the total state.” The total state that Schmitt describes is not yet a totalitarian state. Germany is still a liberal democracy and the Weimar Constitution is still the supreme law of the land. But the total state Schmitt describes is a state in which the traditional lines between the sphere in which the private law society governs itself and the sphere of state intervention, or the public domain, have been undermined. According to Schmitt, the pluralistic forces of civil society have captured the state and made it an instrument to serve their purposes. Everything is up for grabs politically. It is a state of political mobilization and deep ideological conflict, reflected in the plurality of deeply divided political parties in parliament. It is possible to distinguish between three features, which together illustrate the total prevalence of politics over law underlying “the turn to the total state.”


Author(s):  
Sagi Peari

While the previous chapters are concerned with elaboration and exposition of the Choice and Equality pillars, this chapter is more concerned with implementation. Thus, it delineates CEF’s distinctiveness from other choice-of-law accounts and traces its conceptual independence from such notions as the corrective justice theory of private law and the notion of international human rights. Taking the provisions of the American Second Restatement as an example, this chapter analyzes them from the standpoint of CEF. Ultimately, in its last section, the chapter makes some observations about CEF’s suitability to provide a normative framework to meet the challenges of the digital age and the Internet.


2016 ◽  
pp. 49-105
Author(s):  
Andrzej Bierć ◽  
Joanna Mucha-Kujawa

The subject of „designating” state in private transactions is important not only because of the issue of representation and liability for the obligations with public property but primarily on account of widely understood protection of the state’s property interests. The present essay is dedicated to theoretical exploration of the way to „designate” state in private trading on the ground of national theory and practice, at the same time taking into account European solutions, in particular of German legal traditions. Authors, analizing the ways to „designate” state in private transactions in European legal traditions, indicate the dominance of public nature approach, which treats the state as an entity of public law acting in private transctions as fiscus (treasury) and administering - depending on legal tradition - a different scope of rights. In national doctrine, however, fiscus (called treasury) is generally treated as a special private law entity not bothering that it is deprived of typical features of a private law entity but at the same time uses in practice – to some degree – imperious instruments shaping property relations of the state. Taking into consideration European perspective and its influence on national theory and practice, the authors indicate a need to undertake harmonization actions towards treating the treasury – the equivalent of fiscus in European states - as an entity of public law to ensure cohesion of the concept of public treasury on the ground of the whole legal system, not only private law.


2005 ◽  
Vol 5 (2) ◽  
pp. 126-146 ◽  
Author(s):  
Colleen M. Grogan ◽  
Michael K. Gusmano

Despite calls for greater deliberation among citizens on public policy, we have little information about how existing deliberation is structured or how well it works. We examine Connecticut's effort to put public deliberation to work in Medicaid policy-making. Findings from our participant-observation study and in-person interviews with 100 participants in this process suggest some important qualifications to literature on public deliberation. Greater inclusion of diverse social groups from the target population is important, but this should not replace the inclusion of professional advocates since the latter are often more willing than citizen representatives to challenge policy experts on technical issues. Incorporating public deliberation into the process at an early stage is ideal, but deliberation during the later stages of policymaking (including during implementation) can still produce useful results. Finally, the style and purpose of deliberation can shape the range of topics on the agenda, so it is important to understand how the structure of a deliberative forum can affect the style and purpose of deliberation. The essence of democracy itself is now widely taken to be deliberation, as opposed to voting, interest aggregation, constitutional rights, or even self-government. (Dryzek 2000, 1).


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