From a Directive Principle to a Fundamental Right

2019 ◽  
pp. 66-117
Author(s):  
Florian Matthey-Prakash
Keyword(s):  
Elementary Education ◽  
The State ◽  
Fundamental Rights ◽  
Historical Background ◽  
Constitutional Amendment ◽  
State Action

Chapter 2 recounts the developments around adjudication of fundamental rights and directive principles that climaxed with the inclusion of Article 21A in the constitutional text. By examining the historical background of the Eighty-Ninth Constitutional Amendment, the chapter then tries to find some answers concerning its doctrinal and practical significance.Surprisingly, the chapter concludes, there was very little of a ‘vision’ of what the purpose of Article 21A would be. Still, the fundamental right to elementary education is now part of the constitutional text, and the fact that there is one explicitly justiciable socio-economic right might have a significance that goes beyond mere symbolism. Whatever the motivation for including Article 21A in the constitutional text may have been (even if the intention was only to symbolically declare that the State takes the matter of elementary education seriously, or to appease groups calling for State action), the provision is now part of the constitutional text, and the judiciary is called upon to adjudicate on it when it is approached.

scholarly journals Dilemmas and Perspectives of Financing Nepal’s School Education

2015 ◽  
Vol 4 ◽  
pp. 29-36
Author(s):  
Matrika Prasad Koirala ◽  
Amit Koirala
Keyword(s):  
Elementary Education ◽  
The State ◽  
Fundamental Rights ◽  
Educational Governance ◽  
Local Society ◽  
International Commitments ◽  
Educational Cost ◽  
Set Up ◽  
Near Future ◽  
Institutional Mechanism

When concerns are growing that the elementary education should be fundamental rights, the challenges with financing of education is getting deeper for Nepal. This paper tries to explore the possibilities of bearing educational cost by the state. As elementary education has been made compulsory and free in line with international commitments and theoretical concerns, but the financial provision are not equipped to address the commitments. The present programmes, actions, strategies and budgets mark gaps with each other and with the resources. The existing institutional mechanism does not convince to be optimistic even in near future. The only hope remains with a reform in an institutional set up with committed professionals who can adrenalize the educational governance, which is also full of challenges; or seek alternatives from the local society and early practices.DOI: http://dx.doi.org/10.3126/av.v4i0.12354Academic Voices Vol.4 2014: 29-36

scholarly journals The idea of public constitutional order and the a constitutional judge in protecting it

2019 ◽  
Vol 7 (1) ◽  
pp. 181-198
Author(s):  
Sardar Mala Aziz
Keyword(s):  
Competent Authority ◽  
Social Philosophy ◽  
The State ◽  
Fundamental Rights ◽  
Constitutional Amendment ◽  
Governance System ◽  
Constitutional Order ◽  
Fundamental Rights And Freedoms ◽  
Judicial Protection ◽  
Political Economic

   This paper focuses on the notion that constitutional rules are not all equal in terms of the values ​​they express; some even are of great value compared to other rules. Moreover, there is a kind of substantive hierarchy among constitutional rules. So that the rules relating to the type of governance system in the state and its political, economic, and social philosophy, as well as rules related to fundamental rights and freedoms which they have a higher value compare to other constitutional rules, which encouraged the constitutional legislator while creating the constitution to stipulate that it is not possible to amend the constitutional provisions of a higher value. Consequently, the competent authority to amend the constitution needs to respect these rules and avoid taking any action that would jeopardize these constitutional rules and undermine the wisdom of their existence. Since they are considered as peremptory constitutional rules and thus constitute a true reflection of the idea of public constitutional order. In addition to these legislative protections, these peremptory constitutional rules enjoy judicial protection by the constitutional Judges, who reviews the constitutionality of constitutional amendment laws, and also what is practiced of functions through special constitutional complaint called " Lawsuit to guarantee rights " which is intended to protect the rights and freedoms of individuals against all who tends to jeopardize and misuse it.

When the State Speaks, What Should It Say?

2012 ◽  
Author(s):  
Corey Brettschneider
Keyword(s):  
Freedom Of Expression ◽  
The State ◽  
Hate Groups ◽  
New Approach ◽  
State Action ◽  
Democratic State ◽  
Theory Of Value ◽  
The Right ◽  
Equal Citizenship ◽  
The Ideal

How should a liberal democracy respond to hate groups and others that oppose the ideal of free and equal citizenship? The democratic state faces the hard choice of either protecting the rights of hate groups and allowing their views to spread, or banning their views and violating citizens' rights to freedoms of expression, association, and religion. Avoiding the familiar yet problematic responses to these issues, this book proposes a new approach called value democracy. The theory of value democracy argues that the state should protect the right to express illiberal beliefs, but the state should also engage in democratic persuasion when it speaks through its various expressive capacities: publicly criticizing, and giving reasons to reject, hate-based or other discriminatory viewpoints. Distinguishing between two kinds of state action—expressive and coercive—the book contends that public criticism of viewpoints advocating discrimination based on race, gender, or sexual orientation should be pursued through the state's expressive capacities as speaker, educator, and spender. When the state uses its expressive capacities to promote the values of free and equal citizenship, it engages in democratic persuasion. By using democratic persuasion, the state can both respect rights and counter hateful or discriminatory viewpoints. The book extends this analysis from freedom of expression to the freedoms of religion and association, and shows that value democracy can uphold the protection of these freedoms while promoting equality for all citizens.

The Guardian of the Constitution

2018 ◽  
Author(s):  
Benjamin A. Schupmann
Keyword(s):  
The State ◽  
Constitutional Amendment ◽  
Public Order ◽  
Positive Law ◽  
Mass Democracy ◽  
The Guardian

Chapter 5 analyzes Schmitt’s theory of dictatorship. Schmitt’s theory of dictatorship was part of his broader criticism of positivism and its inability to effectively respond to the instabilities mass democracy wrought on the state and constitution. Positive laws, including constitutional amendment procedures, could themselves become threats to the fundamental commitments of public order. The suspension of positive laws might be justified. Schmitt argued dictatorship was a necessary final bulwark against this sort of revolutionary threat. The dictator, as guardian of last resort capable of acting outside positive law, could become necessary for a state to survive internal enemies. Yet, although dictatorship could suspend positive law, Schmitt argued it did not suspend the fundamental public order of the state and constitution—a distinction positivism was unable to recognize. This chapter concludes with an analysis of Schmitt’s discussion of the role of the president as guardian of the constitution.

The State Action Doctrine and The Local Government Antitrust Act: The Restructured Public Hospital Model

1988 ◽  
Vol 14 (2-3) ◽  
pp. 171-219
Author(s):  
Theodore N. McDowel ◽  
J. Marbury Rainer
Keyword(s):  
Local Government ◽  
Public Hospital ◽  
The State ◽  
State Action ◽  
Hospital Facility ◽  
Practical Matter ◽  
Antitrust Analysis ◽  
The Impact ◽  
State Action Doctrine ◽  
Public Entity

This Article analyzes the development and complexities of the antitrust state action doctrine and the Local Government Antitrust Act as these doctrines apply to both “municipalities” and private entities. The restructuring of a public hospital is used as a model to facilitate the antitrust analysis. The restructuring model, which typically involves the leasing of a hospital facility by a public entity to a private nonprofit corporation, offers the unique opportunity to compare the different standards employed under the state action doctrine and the Local Government Antitrust Act. As a practical matter, the Article provides a framework for a public hospital to evaluate the impact of corporate restructuring on its antitrust liability exposure and to develop strategies to minimize antitrust risks.

scholarly journals Securitisation gaps: Towards ideational understandings of state weakness

2021 ◽  
pp. 1-20
Author(s):  
Kevork Oskanian
Keyword(s):  
The State ◽  
Collective Knowledge ◽  
State Action ◽  
Role Of The State ◽  
Wide Range ◽  
State And Society ◽  
Interpretive Approach ◽  
Recent Developments ◽  
The Republic

Abstract This article contributes a securitisation-based, interpretive approach to state weakness. The long-dominant positivist approaches to the phenomenon have been extensively criticised for a wide range of deficiencies. Responding to Lemay-Hébert's suggestion of a ‘Durkheimian’, ideational-interpretive approach as a possible alternative, I base my conceptualisation on Migdal's view of state weakness as emerging from a ‘state-in-society's’ contested ‘strategies of survival’. I argue that several recent developments in Securitisation Theory enable it to capture this contested ‘collective knowledge’ on the state: a move away from state-centrism, the development of a contextualised ‘sociological’ version, linkages made between securitisation and legitimacy, and the acknowledgment of ‘securitisations’ as a contested Bourdieusian field. I introduce the concept of ‘securitisation gaps’ – divergences in the security discourses and practices of state and society – as a concept aimed at capturing this contested role of the state, operationalised along two logics (reactive/substitutive) – depending on whether they emerge from securitisations of the state action or inaction – and three intensities (latent, manifest, and violent), depending on the extent to which they involve challenges to state authority. The approach is briefly illustrated through the changing securitisation gaps in the Republic of Lebanon during the 2019–20 ‘October Uprising’.

Symposium on the State and Economic Development

1990 ◽  
Vol 4 (3) ◽  
pp. 3-7 ◽  
Author(s):  
Pranab Bardhan
Keyword(s):  
Economic Development ◽  
Latin American ◽  
State Intervention ◽  
The State ◽  
Market Mechanism ◽  
State Action ◽  
South Korean ◽  
American Experience ◽  
Advantages And Disadvantages ◽  
Role Of The State

The role of the state in economic development is one of the oldest topics in economics, yet controversies rage with similar passion and camps are divided on lines today broadly similar to the early writings. Though the authors of the papers in this symposium present different views, they all refuse to pose the question as a simple choice between the market mechanism and state intervention. Larry Westphal and Albert Fishlow evaluate the South Korean and the Latin American experience, respectively, in their essential complexity. Mrinal Datta-Chaudhuri draws upon a comparative study of the Indian and East Asian cases to bring out the contradictions and complementaries in the relationship between the state and the economy. Anne Krueger's paper reflects on how the comparative advantages and disadvantages of state action flow from its organizational and incentive characteristics.

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