After Hitler: 1951–1975

2021 ◽  
pp. 93-154
Author(s):  
Justin Collings
Keyword(s):  
The State ◽  
Fundamental Rights ◽  
Civil Servants ◽  
Right To Life ◽  
Quarter Century ◽  
Basic Law ◽  
German Constitution ◽  
The Right ◽  
Duration Of Pregnancy

This chapter explores the German Constitutional Court’s engagement with the memory of Nazism in the first quarter century of the Court’s operation. The chapter shows how the Court came to identify itself, internally and externally, as an overtly anti-Nazi institution. It highlights how the Court construed the postwar German Basic Law as a fundamentally anti-Nazi document and the basis of an anti-Nazi state. The most dramatic case in this regard is the Court’s Civil Servants judgment of 1953, which is discussed at length. The chapter also explores the mnemonic backdrop to the Court’s landmark fundamental rights judgments of the late-1950s. The chapter concludes by discussing the Court’s 1975 abortion judgment, which controversially invoked the memory of Nazism to explain why the right to life had a different valence in Germany than in other democratic states, and why the German Constitution accordingly required the state to protect unborn life throughout the duration of pregnancy.

Equality and the right to education: let’s talk about sex education

2018 ◽  
pp. 111-128
Author(s):  
Meghan Campbell
Keyword(s):  
Human Rights ◽  
Health Education ◽  
Gender Equality ◽  
Sex Education ◽  
Gender Norms ◽  
The State ◽  
Fundamental Rights ◽  
Right To Life ◽  
Right To Education ◽  
The Right

This chapter addresses the challenges girls face in accessing human rights-based sex education. Sex education sharply brings into focus the discriminatory gender norms that influence and undermine a girl's right to education and the accountability challenges that are becoming increasingly pervasive throughout all of education. The Convention on the Elimination of Discrimination Against Women (CEDAW), the prominent legal instrument on women's rights, offers new ways of conceptualising and addressing these challenges. There are specific obligations referring to sex education in the treaty and most importantly there is a positive obligation on the state to provide sex education to fulfil the fundamental rights of girls and women. Indeed, sex education is a necessary measure to ensure girls and women's right to life, health, education, gender equality, and freedom from violence.

scholarly journals The doctrine of action popularis in international litigation: genesis and value dimension

2020 ◽  
pp. 26-38
Author(s):  
Oleksandr BAZOV
Keyword(s):  
Public Relations ◽  
The State ◽  
Fundamental Rights ◽  
Special Importance ◽  
Judicial Process ◽  
National Interests ◽  
Basic Law ◽  
International Legal Order ◽  
Rights And Interests ◽  
The Right

The article is devoted to the analysis of the genesis and value dimension of the doctrine of action popularis and its application in the field of international criminal justice. The main ideas that formed the basis of the doctrine of action popularis are studied. The judicial practice of application of the modern doctrine of action popularis is analyzed. In the process of constitutional and legal reform in the field of justice in 2016, the Basic Law of the state was supplemented with new provisions, in particular, that in order to protect the rights, freedoms and interests of individuals in public relations there are administrative courts (part five of Art. Article 125 of the Constitution of Ukraine), and on the introduction of the legal institution of a constitutional complaint (part four of Article 55, Article 151-1 of the Constitution of Ukraine). Therefore, the issues of research of the judicial doctrine of action popularis, which determines the judicial protection of the rights and interests of an indefinite number of persons, acquire special importance. On the basis of which the principles of this doctrine since the days of Ancient Rome, the protection of the rights and interests of a particular person was carried out, in particular, taking into account national, national interests, and according to which doctrine every member of society had the legal right to protect public interests. , which are of paramount importance for society, the people, the state as a whole (translated from the Latin publicum - society, people, state), the right to combat crime. One of the trends in the development of modern international law is the formation of legal and institutional foundations for the protection of values, which are most important for the entire international community, and which form the basis of the modern international legal order. The need to ensure a fair balance, which must be established between the general interests of society as a whole and the requirements for the protection of individual fundamental rights, is reflected in the practice of international courts. Key words: Doctrine of action popularis, international court, international crimes, international judicial process.

Recht und Pflicht – Einschränkungen von Freiheit?

2021 ◽  
Vol 69 (1) ◽  
pp. 98-113
Author(s):  
Klaus Vieweg
Keyword(s):  
Free Will ◽  
The State ◽  
Individual Rights ◽  
Right To Life ◽  
Emergency Situations ◽  
The Will ◽  
Definition Of ◽  
The Right

Abstract Can one speak philosophically of a justified limitation of freedom? Hegel’s logically founded definition of free will and his understanding of right and duty can contribute to a clarification of the concept of freedom. Important is a precise differentiation between freedom and caprice (Willkür) – the latter being a necessary but one-sided element of the free will. In caprice, the will is not yet in the form of reason. Rational rights and duties are not a restriction of freedom. Insofar as individual rights can collide (e. g. in emergency situations), there can be a temporary and proportionate restriction of certain rights in favour of higher rights, such as the right to life. Dictatorships are instances of capricious rule which restrict freedom; the rationally designed state, by contrast, restricts only caprice. What is tobe defined are the duties and the rights of the state and the duties and the rights of the citizens.

Fundamental Rights in the Indian Constitution: Could it include ‘Right to Sanitation’?

2016 ◽  
Vol 5 (6) ◽  
pp. 291-296
Author(s):  
Anil Kumar Mohapatra
Keyword(s):  
Fundamental Rights ◽  
Safe Drinking Water ◽  
Right To Life ◽  
Personal Liberty ◽  
Sanitation Facility ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The World ◽  
The Government ◽  
The Right

Long before India gained independence, M.K. Gandhi remarked that the availability of Sanitation facility is more important than gaining Independence for an Indian. Of late, it is now increasingly felt and realized in India that facilities like toilet, safe drinking water, accompanied by good hygienic conditions are fundamental necessities of a person. These are prerequisites of social and economic justice and genuine development. The Supreme Court of India in one judgement held that Right to life and personal liberty, should include right to privacy and human dignity etc. Despite that it has been an admitted shame that India still has the largest number of people defecating in open in the world. There are reported incidences of rape and murder of women in many places in India as women rely on open field for attending to the call of nature in morning and evening. The attempts like Community toi-let system, pay-and-use toilet system and schemes like ‘Mo Swabhiman -Mo Paikhana’ have been found to be less effective. In this connection the ‘Clean India Mission’ campaign launched by the Government of India in 2014 has been regarded as a right approach in that direction. Government of the day is actively considering the demand to convert the Right to Sanitation from a developmental right to a fundamental right. It would make the state more accountable and responsible. Against this background, the paper argues that spending huge money on that would yield good dividend in future for the country.

scholarly journals Advocacy as a tool for the realization of the fundamental right of a person to professional legal assistance

2021 ◽  
Vol 66 ◽  
pp. 240-243
Author(s):  
P. Badzeliuk
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Legal Status ◽  
Legal Profession ◽  
The State ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Legal Assistance ◽  
The Right ◽  
Legal Entities

This article is devoted to the study of the implementation of the fundamental right of a person to professional legal assistance through the vectors of influence of the bar, the role of the human rights institution in the mechanism of such a right and its place in public life.An effective justice system provides not only an independent and impartial judiciary, but also an independent legal profession. Lawyers play an important role in ensuring access to justice. They facilitate the interaction between individuals and legal entities and the judiciary by providing legal advice to their clients and presenting them to the courts. Without the assistance of a lawyer, the right to a fair trial and the right to an effective remedy would be irrevocably violated.Thus, the bar in the mechanism of protection of human and civil rights and freedoms is one of the means of self-limitation of state power through the creation and active functioning of an independent human rights institution, which is an active subject in the process of fundamental rights. The main constitutional function of the state is to implement and protect the rights and freedoms of man and citizen, and the constitutional and legal status of the legal profession allows it to actively ensure the rights of civil society as a whole and not just the individual. Effectively implement the human rights function of the state by ensuring proper interaction between the authorities and civil society, while being an active participant in the law enforcement mechanism and occupying an independent place in the justice system.Thus, the activities of lawyers are a complex manifestation of both state and public interest. After all, it is through advocacy and thanks to it that the rule of law realizes the possibility of ensuring the rights and freedoms of its citizens. Advocacy, on the one hand, has a constitutionally defined state character, and on the other hand, lawyers should be as independent as possible from the state in order to effectively protect citizens and legal entities from administrative arbitrariness. Thus, the bar is a unique legal phenomenon that performs a state (public-law) function, while remaining an independent, non-governmental self-governing institution.

scholarly journals Right to life and possible interference in its implementation: Constitutional and legal aspect

2021 ◽  
Vol 21 (4) ◽  
pp. 453-457
Author(s):  
Marina L. Voronkova ◽  
Keyword(s):  
Death Penalty ◽  
Russian Federation ◽  
Legal Aspect ◽  
The State ◽  
Human Embryos ◽  
Right To Life ◽  
Legal Method ◽  
The World ◽  
The Russian Federation ◽  
The Right

Introduction. The problems of realizing the right to life are relevant to varying degrees in all countries of the world. Their importance can hardly be overestimated, since the preservation of a full-fledged family, society and the state as a whole depends on their solution. The article examines the problems associated with abortion, surrogacy, the development of biotechnology, death penalty, and analyzes the legislative experience of various states and Russia in these areas. The purpose of the study is to conduct a comprehensive analysis of the problems arising in connection with the realization of the right to life and its possible restrictions. In the course of studying the problems, both general scientific and special legal methods were used: historical and dialectical methods, methods of analysis and synthesis, as well as the comparative legal method. Theoretical analysis. Russia (RSFSR) was the first country in the world to legislate in 1920 to allow abortion. According to the author, artificial termination of pregnancy solely at the request of a woman (without taking into account medical and social factors) causes irreparable harm to society, especially given the difficult demographic situation in modern Russia. In addition, this does not correspond to the guiding thesis of responsibility to future generations, enshrined in the preamble to the Constitution of the Russian Federation. In the context of realizing the right to life, each state faces a problem related to death penalty. Can a state, where the right to life is guaranteed, take the life of criminals? Apparently, each state should decide this issue based on the extent to which a particular crime poses a threat to society, a threat to life and health of people. Results. In our opinion, in countries with liberal legislation in relation to abortion, such as Russia, it is necessary to prohibit abortion at the request of a woman, since in this case the woman’s desire violates the right to life of an unborn child. The state should protect the right to life from the moment of conception, not birth, but this is a long process that should lead to an extensive interpretation of Part 2 of Art. 17 of the Constitution of the Russian Federation by the Constitutional Court of the Russian Federation. In addition, Russia needs to pay attention to the legislative experience of Germany and France in relation to surrogacy. In these countries, the legislator has clearly substantiated why surrogacy is in fact a crime against the family. In these countries, surrogacy is criminalized. Also, with the development of biotechnology all over the world, the problems of IVF and cryopreservation of human embryos are acute. This problem can also be solved at the level of legislation by allowing IVF only to married couples (man and woman) who cannot give birth to a child, and by limiting the number of fertilized eggs to a minimum, so that later the issue of destroying unclaimed embryos is not resolved. In general, it seems that in a mature society that wants to develop and tries to prevent the destruction of its state, it is necessary to protect the right to life by all possible legislative methods.

Shielding the Confidentiality, Privacy, and Data Security of Bio-Medical Information in India

2019 ◽  
pp. 81-99
Author(s):  
Varinder Singh ◽  
Shikha Dhiman
Keyword(s):  
Data Security ◽  
Medical Information ◽  
Fundamental Rights ◽  
Right To Life ◽  
Indian Constitution ◽  
Modern Times ◽  
Personal Liberty ◽  
The Right

The framers of Indian Constitution were very much cognizant about the significance of human nobility and worthiness and hence they incorporated the “right to life and personal liberty” in the Constitution of India. Right to life is considered as one of the primordial fundamental rights. There is no doubt that Indian Judiciary has lived up to the expectations of the Constitution framers, both in interpreting and implementing Article 21 initially, but there are still a few complications left as to the viability of Article 21 in modern times. Looking at the wider arena of right to life, it can be articulated that broader connotation of “right to life” aims at achieving the norms of “privacy” as well.

Administrative Procedure and Judicial Review in Germany

2021 ◽  
pp. 53-58
Author(s):  
Lilly Weidemann
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Protective Effects ◽  
Administrative Procedure ◽  
Basic Law ◽  
Federal Statute ◽  
The Right ◽  
Substantive Law ◽  
Subjective Rights

This chapter explores administrative procedure and judicial review in Germany. The German Basic Law contains a guarantee of access to justice. According to section 40(1) of the Code of Administrative Court Procedure (CACP), recourse to the administrative courts shall be available in all public-law disputes of a non-constitutional nature insofar as the disputes are not explicitly allocated to another court by a federal statute. German administrative court procedure generally aims to protect subjective rights. In general, all measures taken by a public authority are subject to review by courts. This principle forms an essential part of the fundamental rights constitutionally guaranteed. Thus, no measure by the public administration is excluded from this guarantee. The infringement of a procedural provision with protective effects does not necessarily lead to the right of the applicant to have the decision quashed. This usually requires the infringement of a right of the appellant resulting from substantive law. Damages cannot be claimed within the same (administrative) court proceeding that aims to quash an administrative decision.

scholarly journals CONSTITUTIONALISM AND JUDICIALIZATION OF POLITICS: THE “JUDICIAL” RIGHT TO HEALTHCARE IN BRAZIL

2015 ◽  
Vol 3 (3-4) ◽  
pp. 358-393
Author(s):  
Bruno Irion Coletto ◽  
Pedro Da Silva Moreira
Keyword(s):  
Public Policy ◽  
Public Policies ◽  
Public Debate ◽  
The State ◽  
Fundamental Rights ◽  
Scarce Resources ◽  
The Public ◽  
Critical Understanding ◽  
The Right ◽  
The Way

The right to healthcare in Brazil is seriously protected by the courts. Judicialization of everyday implementation of this public policy is a fact. One explanation may be provided by the way judges understand the effectiveness of this right. People hold subjective right to individualized healthcare benefits, and so they hold standing to sue the state in order to achieve it, regardless any consideration of public policies. Through an analysis of the jurisprudence on this issue, this paper aims to provide a critical understanding not just about what is actually happening in Brazilian courts regarding healthcare, but also to criticize it. The conclusion is that a “strong” conception of constitutionalism and fundamental rights may revel itself as “weak,” from the standpoint of general equality. Judicialization ends up empting the public debate, leading the task of solving the distribution of scarce resources to a “gowned aristocracy.” 

scholarly journals The Basic Law at 60 – Introduction to the Special Issue

2010 ◽  
Vol 11 (1) ◽  
pp. 1-7 ◽  
Author(s):  
Susanne Baer ◽  
Christian Boulanger ◽  
Alexander Klose ◽  
Rosemarie Will
Keyword(s):  
The Political ◽  
Special Issue ◽  
Success Story ◽  
Basic Law ◽  
German Constitution ◽  
Political Spectrum ◽  
The Right ◽  
Political Turmoil ◽  
Democratic Constitution ◽  
The Welfare State

For Germany 2009 was a year of constitutional anniversaries: the first democratic constitution (Paulskirchenverfassung of 1849) was promulgated 160 years ago; the 1919 Weimar Constitution would have turned 90; and finally, the country celebrated 60 years of the Basic Law, which was proclaimed and signed in Bonn on 23 May 1949. Despite its birth in the midst of economic and political turmoil and widespread disillusion with politics, the Basic Law has come to be regarded as a “success story.” As is well known, it was never meant to last – the very term “Grundgesetz” (basic law) indicated that it was intended to serve as a temporary constitutional framework until the enactment of a new constitution for the whole of Germany. Yet the Basic Law outgrew its provisional character. Today, not only the political establishment is united in praising the Grundgesetz. The scholarly assessment also has been mostly positive. The constitutional bargain struck in 1949 has been able to achieve what no previous German constitution had managed. The right and the left of the German political spectrum fashioned an enduring compromise that combined democracy, federalism and the welfare state. It is part of the story that the old anti-liberal and nationalist elite had been thoroughly delegitimized by loosing the war. Also, the Allies gave the effort an additional nudge. The progressive changes could then be implemented quite effectively by relying on the juristic culture of the Rechtsstaat that dates back to the bureaucratic legacy of, among others, the Prussian state.

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