The Absolute and the Relative Dimension of Constitutional Rights

2021 ◽  
pp. 235-252
Author(s):  
Robert Alexy
Keyword(s):  
Judicial Review ◽  
The Other ◽  
Constitutional Rights ◽  
Legal Systems ◽  
Relative Validity ◽  
Relative Dimension ◽  
Constitutional Review ◽  
Other Hand ◽  
The Absolute ◽  
Principle Of Proportionality

The principle of proportionality is necessary if it can claim validity in all legal systems. What can claim validity in all legal systems has absolute validity. On the other hand, what can only claim to have validity in some legal systems has merely relative validity. This distinction is applicable not only to the principle of proportionality as a norm about the application of constitutional rights but also to the constitutional rights themselves, and the institutionalization of the protection of constitutional rights by means of judicial review. This leads to three questions, which are connected systematically: (1) Do constitutional rights have an absolute character? (2) Does the principle of proportionality have an absolute character? (3) Does constitutional review have an absolute character? In this chapter the first two questions are discussed.

Moderne Ikonen

2009 ◽  
Vol 54 (2) ◽  
pp. 123-143
Author(s):  
Bernadette Collenberg-Plotnikov
Keyword(s):  
Mass Culture ◽  
Visual Experience ◽  
Modern Art ◽  
The Other ◽  
Recent Discussion ◽  
Christian Church ◽  
Other Hand ◽  
The Absolute ◽  
Modern Mass

›Ikonen‹ sind heute nicht mehr nur die Ikonen der christlichen Kirche, sondern vor allem die Ikonen der modernen Massenkultur. Beide Arten von Ikonen werden in der neueren Kunstreflexion aufgegriffen: Kunst gilt entweder, verstanden als Erbin der religiösen Ikone, als Phänomen, das Absolutes in singulärer Weise anschaulich er- fahrbar macht. Oder aber die Kunst gilt umgekehrt lediglich als Klasse in der Welt der säkularen Ikonen. Demgegenüber wird im Beitrag erstens die These vertretenwerden, daß die neuere Kunst sowohl Aspekte transzendenter als auch immanenter Ikonen umfaßt. Zugleich ist es aber, so die zweite These, für unser Kunstverständnis charakteristisch, ein theoretisches Kontrastverhältnis zwischen Kunst und Ikone an- zunehmen. Dieses gründet auf einer spezifischen Reflexivität der Kunst, durch die sie sich von der Ikone beiderlei Art kategorial unterscheidet. Today, the word ›icon‹ usually no longer refers to the icons of the Christian church, but to the icons of the modern mass-culture. Both sorts of icons play a key-role in the recent discussion about art: Either art is supposed to be a descendant of the religious icon, a phenomenon that gives us a singular visual experience of the Absolute. On the other hand, art is supposed to be just one class among others in the wide world of the secular icons. In contrast to these two positions this essay contends that modern art comprehends aspects of transcendent as well as of immanent icons. Furthermore, it argues that at the same time it is characteristic for our notion of art to suppose a contrast between art and icon. This contrast is based on a specific reflectivity of art, which marks a categorical difference between art and both sorts of icons.

scholarly journals Nietzsche’s Dionysos

2017 ◽  
Vol 3 (3) ◽  
pp. 604
Author(s):  
Dieter Mersch
Keyword(s):  
Necessary Conditions ◽  
Central Point ◽  
The Other ◽  
Other Hand ◽  
The Absolute ◽  
The Aesthetic

Nietzsche’s Dionysus, admittedly, represents a direct provocation and an attack on the classical interpretation accepted since Winckelmann, an interpretation that elevates the Apollonian to its central point of focus; Nietzsche’s introduction of another principle to oppose it, rather than representing a genuine invention, in actuality bridges the small gap between Hegel and Hölderlin. If, namely, the Hegelian aesthetic from the very beginning points to Schein and Erscheinung – as necessary conditions of truth, for the truth would not exist if it were not to “superficially appear” (scheinen) and “make its appearance” (erscheinen), writes Hegel – Schein and Erscheinung would still nonetheless be bound up everywhere with the criterium of the absolute; after all, the untruth of the aesthetic rests squarely in the fact that it cannot do other than to draw upon the language of Erscheinung. For Hölderlin, on the other hand, the Dionysian advances to become a metapoetic symbol combining itself – the enigmatic and continually transforming – with the practice of art. Nietzsche follows those very same lines even while giving the metaphor a thoroughly different twist.

Greening the Machine Question: Towards an Ecological Framework for Assessing Robot Rights

2020 ◽  
Author(s):  
Joshua C. Gellers
Keyword(s):  
The Other ◽  
Macro Level ◽  
Ecological Framework ◽  
Legal Systems ◽  
Other Hand ◽  
The World ◽  
Rights Of Nature ◽  
Robot Rights ◽  
The One ◽  
And Behavior

Could robots have rights? On the one hand, robots are becoming increasingly human-like in appearance and behavior. On the other hand, legal systems around the world are increasingly recognizing the rights of nonhuman entities. Observing these macro-level trends, in this paper I present an ecological framework for evaluating the conditions under which some robots might be considered eligible for certain rights. I argue that a critical, materialist, and broadly ecological interpretation of the environment, along with decisions by jurists establishing or upholding the rights of nature, support extension of rights to nonhuman entities like robots.

Constitutional Rights and Democracy: A Reply to Professor Bellamy

2013 ◽  
Vol 14 (8) ◽  
pp. 1039-1051 ◽  
Author(s):  
W.J. Waluchow
Keyword(s):  
Judicial Review ◽  
Constitutional Rights ◽  
Social Cooperation ◽  
Bill Of Rights ◽  
Political Equality ◽  
Constitutional Review ◽  
The People ◽  
Democratic Character ◽  
Self Rule ◽  
Elected Representatives

In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.

Federal Control over Industry

1922 ◽  
Vol 16 (3) ◽  
pp. 432-443
Author(s):  
Nathan Isaacs
Keyword(s):  
Legal History ◽  
The Other ◽  
Natural Phenomenon ◽  
Legal Systems ◽  
Other Hand ◽  
American Law ◽  
Anglo American ◽  
State Of Affairs ◽  
Federal Control

Legal history teaches two doctrines, which seem at first glance diametrically opposed to each other, with reference to the current agitation concerning the dangers of federal encroachment. First, that the agitation, in so far as it is called out by a temporary accidental state of affairs due to the war, is ephemeral. On the other hand, the essential facts involved are of a type that are always with us. In other words, federal encroachment, when stripped of the mask and guise that temporarily makes it seem dreadful, is a perfectly natural phenomenon quite familiar to students of Anglo-American law, and, for that matter, of other legal systems.

scholarly journals Dissenting Opinion dan Concurring Opinion dalam Putusan Mahkamah Konstitusi

2018 ◽  
Vol 3 (2) ◽  
pp. 307-324
Author(s):  
Haidar Adam
Keyword(s):  
Law Enforcement ◽  
Judicial Review ◽  
The Other ◽  
Constitutional Court ◽  
Procedural Law ◽  
Other Hand ◽  
The Difference

Abstract: This article discusses about dissenting opinion and concurring opinion in the decision of the Constitutional Court. Law enforcement can be done through the Constitutional Court in the form of law judicial review. The issue of dissenting opinion is regulated through Law No. 24 Year 2003 and Constitutional Court Regulation No. 6 of PMK Year 2005 concerning Procedural Law of Tests of Act. The phrase used in the Constitutional Court Law is “the different opinion of the judiciary members". The different opinion, according to Jimly, is divided into two namely dissenting opinion and concurrent opinion. A verdict is considered concurring if there is an argument by a member of the panel of judges that is different from that of the other members of the judiciary but it does not affect the difference of the decision. On the other hand, a decision is said to be dissenting if the opinion of a member of the panel of judges is different from that of the majority of the other members of the panel of judges and the difference is not merely in the case of reasoning but to touching on the verdict. Keywords: Dissenting opinion, concurring opinion, the court constitution’s decision. Abstrak: Penegakan hukum dapat dilakukan melalui pengadilan oleh Mahkamah Konstitusi dalam bentuk pengujian terhadap undang-undang. Masalah dissenting opinion diatur melalui Undang-Undang Nomor 24 Tahun 2003 dan Peraturan Mahkamah Konstitusi Nomor 6 PMK Tahun 2005 tentang Hukum Acara Pengujian Undang Undang. Frase yang dipakai dalam UUMK adalah “pendapat anggota majelis hakim yang berbeda”. Pendapat yang berbeda menurut Jimly, dibedakan menjadi dua yaitu dissenting opinion dan concurrent opinion. Suatu putusan dianggap sebagai concurring apabila terdapat argumentasi anggota majelis hakim yang berbeda dengan mayoritas anggota majelis hakim yang lain, namun tidak berimbas pada perbedaan amar putusan. Di sisi lain, suatu putusan dikatakan dissenting, jika pendapat suatu anggota majelis hakim berbeda dengan pendapat mayoritas anggota majelis hakim yang lain dan sampai menyentuh pada amar putusan. Kata Kunci: Dissenting opinion, concurring opinion, putusan Mahkamah Konstitusi.

scholarly journals Functions of Alternative Punishments to Imprisonment in Reducing the Criminal Population of the State Prisons

2014 ◽  
Vol 44 ◽  
pp. 74-85
Author(s):  
Alireza Milani ◽  
Mehdi Rezaee Moghadam
Keyword(s):  
Criminal Policy ◽  
The State ◽  
Penal Code ◽  
The Other ◽  
Legal Systems ◽  
Economic Costs ◽  
Policy Makers ◽  
Other Hand ◽  
Mental Problems ◽  
State Prisons

In accordance with the inefficiency of imprisonment punishments in reforming and rehabilitating the prisoners, also due to the criminal environment of the prisons, economic costs of the prison and damages caused by imprisoning the head of the household, contradiction with the principle of personal punishment, health and mental problems existing and the like, are some of the problems which have created serious challenges for the imprisonment punishments. Hence, attempts for employing other punishments as alternatives to the imprisonment punishment have drawn the attention of various countries and legal systems. Accordingly, today the Iranian criminal policy makers, in line with dis-imprisonment and prohibiting the indiscriminate use of imprisonment punishment have begun to enact a law in which a chapter has been assigned to alternatives of the imprisonment punishment and prediction of a half freedom system. This paper, while introducing and investigating alternative punishments of imprisonment in the Islamic Penal Code of 2013 concludes that not only is transparent and clear rules and regulations necessary in this area, but also a successful enforcement of these laws requires an appropriate culture building in the society. On the other hand, the issue of alternatives should be institutionalized among the judges.

scholarly journals Critique of the radical religious paradigm: An epistemological analysis from the principles of Islamic jurisprudence

2021 ◽  
Vol 11 (1) ◽  
pp. 163-184
Author(s):  
Ade Dedi Rohayana ◽  
Muhammad Jauhari Sofi
Keyword(s):  
The Other ◽  
Public Security ◽  
Personal Safety ◽  
Literal Interpretation ◽  
Other Hand ◽  
Global Issue ◽  
Islamic Jurisprudence ◽  
The Absolute ◽  
Epistemological Analysis ◽  
Religious Understanding

One important factor enabling Islamophobia, radicalism has been a global issue endangering personal safety and public security. It is strongly associated with incorrect understanding of religious doctrines. This paper aims to present a critique of the religious paradigm promoted by the radical groups from the principles of Islamic jurisprudence (ushul fiqh) perspective. Using an epistemological analysis to uncover the nature of their religious understanding and its justification, this study argues that the radical religious paradigm is characterized by a monolithic, textual, and rigid interpretation of the sacred texts. According to the radical groups, the sources of Islamic laws or teachings are restricted to only the Qur’an and the hadith, leaving no space for alternative interpretations. They do not give place for ra’yu (reason) in determining the laws or teachings. On the other hand, ushul fiqh perspective maintains that the sources of the Islamic laws or teachings are not restricted to only the two said sources; it also gives place for ra’yu (reason). The sources can also be found in the form of isyarah (signaling) and ruh (spirit) of the Qur’an and the hadith. In this sense, ushul fiqh refuses the literal interpretation proposed by the radical groups since not all of the texts in the Qur’an and the hadith can be understood literally. Taken together, these findings strengthen the idea that incorrect understanding of religious doctrines helps lead to the absolute, puritanical, and intolerant stance towards differences.

scholarly journals Liquid CO2 Extraction of Jasminum grandiflorum and Comparison with Conventional Processes

2012 ◽  
Vol 7 (1) ◽  
pp. 1934578X1200700
Author(s):  
Om Prakash ◽  
Deeptanjali Sahoo ◽  
Prasant Kumar Rout
Keyword(s):  
Essential Oil ◽  
Free Product ◽  
Polar Compounds ◽  
The Other ◽  
Benzyl Acetate ◽  
Methyl Anthranilate ◽  
Direct Extraction ◽  
Other Hand ◽  
Liquid Co2 ◽  
The Absolute

The concrete (0.35%) of Jasminum grandiflorum L. flowers was prepared by extraction in n-pentane, and the absolute (0.27%) by fractionation of the n-pentane extract (concrete) with cold methanol. Direct extraction of flowers with liquid CO2 gave a relatively fat-free product in 0.26% yield. The liquid CO2 extract was enriched with terpenoids and benzenoids, thus providing the organoleptically accepted product. The major compounds, such as benzyl acetate, ( E,E)-α-farnesene and ( Z)-3-hexenyl benzoate, along with compounds like indole, methyl anthranilate, ( Z)-jasmone, ( Z)-methyl jasmonoate and ( Z)-methyl epi-jasmonoate, are responsible for the high diffusivity of the jasmine fragrance. These compounds have been obtained with improved recoveries in the liquid CO2 extract. On the other hand, the yield of the essential oil was poor (0.05%), and some polar compounds (oxygenated terpenoids) were recovered in less amounts in comparison with either the n-pentane or liquid CO2 extract.

Nature and the Dialectic of Nature in Hegel's Objective Idealism

1992 ◽  
Vol 13 (02) ◽  
pp. 30-51 ◽  
Author(s):  
Dieter Wandschneider
Keyword(s):  
Direct Evidence ◽  
German Idealism ◽  
The Self ◽  
The Other ◽  
The Real ◽  
Other Hand ◽  
The Absolute ◽  
Absolute Identity ◽  
The Ideal ◽  
Dialectic Of Nature

When the Ideal is understood as ontologically fundamental within the framework of an idealistic system, and the Real, on the other hand, as derived, then the first and foremost task of a philosophy of this kind is to prove the claimed fundamentally of the Ideal. This is immediately followed by the further demand to also substantiate on this basis the existence of the Real and particularly of natural being. These tasks have been understood and attempts made to solve them in very different ways in German Idealism - about which I cannot go into more detail here. Let me say this much: that Fichte and Schelling, it appears to me, already fail at the first task, ie. neither Fichte nor Schelling really succeeds in substantiating their pretended ideal as an absolute principle of philosophy. Fichte believes he has such a principle in the direct evidence of the self. However, as this is of little use for the foundation of a generally binding philosophy because of its ultimately private character, Fichte already replaces it with the principle of the absolute self already in his first Wissenschaftlehre of 1794. As a construction detached from the concrete self, this of course lacks that original direct certainty from which Fichte started in the first place, in other words: because the construction of an absolute self can no longer refer to direct evidence, it must be substantiated separately, something which Fichte, I believe, nonetheless fails to do. The same criticism can, in my view, be made of Schelling, who ingeniously substitutes constructions for arguments. His early intuition of an absolute identity which simultaneously underlies spirit and nature, remains just as thetic and unproven as that eternal subject on which he based the representation of his system in, for example, the Munich lectures of 1827.

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