The Japanese Supreme Court as a Litmus Test for Generic Constitutionalism?

2020 ◽  
Vol 9 (1) ◽  
pp. 17-48
Author(s):  
Elisa Bertolini ◽  
Graziella Romeo
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Cultural Context ◽  
Legal Reasoning ◽  
Comparative Law ◽  
Fundamental Rights ◽  
Legal Tradition ◽  
Litmus Test ◽  
Proportionality Test ◽  
Constitutional Adjudication

Scholars have, at times, resorted to the concept of generic constitutional law to describe commonalities emerging across jurisdictions with regard to the way in which constitutional law protects rights and prescribes how they can be limited. Comparative law studies on fundamental rights underline how courts, operating in diverse legal cultures all influenced by the Western Legal Tradition, tend to resort to some adjudication techniques such as the reasonableness test and the proportionality test. Those comparative studies, nonetheless, concede that constitutional adjudication techniques may be differently articulated and applied according to diverse degrees of strictness. However, those differences do not receive much attention when it comes to the comparison of legal reasoning concerning rights. Adjudication techniques seem to be able to trigger the same theory of rights at any latitude, the same understanding of the dialectic between liberty and authority. Against this backdrop, our paper aims at arguing that the Japanese Supreme Court uses both proportionality and reasonableness with a clear cultural imprinting, thus potentially questioning generic constitutionalism, proving that the cultural context may alter the functioning of the abstract models of the constitutional aggregates.

Dieter Grimm

2020 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
Constitutional Law ◽  
The United States ◽  
Public Intellectual ◽  
Law School ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
European Democracy ◽  
Humboldt University ◽  
Post War ◽  
Constitutional Adjudication

Dieter Grimm is one of Germany’s foremost scholars of constitutional law and theory with a high international reputation and an exceptional career. He teaches constitutional law at Humboldt University Berlin and did so simultaneously at the Yale Law School until 2017. He was one of the most influential justices of the German Constitutional Court where he served from 1987 to 1999 and left his marks on the jurisprudence of the Court, especially in the field of fundamental rights. He directed one of the finest academic institutions worldwide, the Wissenschaftskolleg zu Berlin (Institute for Advanced Study). He is also well known as a public intellectual who speaks up in questions of German politics and European integration. This book contains a conversation that three scholars of constitutional law led with Dieter Grimm on his background, his childhood under the Nazi regime and in destroyed post-war Germany, his education in Germany, France, and the United States, his academic achievement, the main subjects of his research, his experience as a member of a leading constitutional court, especially in the time of seminal changes in the world after the fall of the Berlin Wall, and his views on actual challenges for law and society. The book is an invaluable source of information on an outstanding career and the functioning of constitutional adjudication, which one would not find in legal textbooks or treatises. Oxford University Press previously published his books on Constitutionalism. Past, Present, and Future (2016) and The Constitution of European Democracy (2017).

Introduction

2018 ◽  
Author(s):  
Lucas A. Powe
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Local State ◽  
Court Cases ◽  
Law And Politics ◽  
The Supreme Court ◽  
Entire Nation ◽  
Constitutional Adjudication ◽  
The Impact

This book examines the impact of Supreme Court cases from Texas on the entire nation. It argues that the most important Supreme Court cases have originated in Texas, which help explain why it is Texas and not California that provides breadth and depth to constitutional adjudication. Texas litigants, lawyers, politicians, and judges all play important roles in the underlying interplay of law and politics at the local, state, and national levels. In all its facets, Texas offers a window to all constitutional law and the Supreme Court. The book shows that Texas's impact literally started at the beginning by precipitating a debate over national powers and then a war with Mexico, and that the fraught relationship between Texas, the nation, the Constitution, and the Supreme Court in the century and a half since Texas v. White has produced more constitutional law than any other state.

Constitutional Adjudication in Switzerland

2020 ◽  
pp. 779-840
Author(s):  
Giovanni Biaggini
Keyword(s):  
Supreme Court ◽  
Public Law ◽  
Decision Processes ◽  
Fundamental Rights ◽  
Constitutional Review ◽  
The Public ◽  
Federal Laws ◽  
Constitutional System ◽  
Constitutional Adjudication ◽  
Federal Supreme

This chapter considers how constitutional adjudication is conducted in Switzerland. It debunks the notion that the Swiss constitutional system is underdeveloped with regard to constitutional adjudication. The chapter contends that Switzerland has a thoroughly respectable system of constitutional adjudication, albeit with certain idiosyncratic flaws. In particular, this applies to cantonal state authority: the cantons are subject to comprehensive constitutional adjudication. This does not exclude the results of direct democratic decision processes. The Federal Supreme Court (Bundesgericht; Tribunal federal, Tribunale federale) has—and makes use of—the power to review cantonal laws and to revoke them if necessary. Constitutional case law in relation to the cantons is the basis on which the Federal Supreme Court developed an extraordinarily creative jurisprudence in the twentieth century; this jurisprudence has led, inter alia, to the recognition and use of several unwritten federal fundamental rights. In addition, the chapter argues that federal laws have ceased being completely immune against any kind of constitutional review. Finally, Switzerland played an important pioneering role in the development and testing of the public law appeal (Staatsrechtliche Beschwerde).

Uncertain sovereignty: Ceylon as a Dominion 1948–1972

2019 ◽  
Vol 17 (4) ◽  
pp. 1258-1282
Author(s):  
Rehan Abeyratne
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Fundamental Rights ◽  
Judicial Power ◽  
Privy Council ◽  
Minority Communities ◽  
Cautious Approach ◽  
Legislative Power ◽  
The Supreme Court ◽  
The Subject

Abstract This article, a contribution to a symposium on dominion constitutionalism, looks at sovereignty in Ceylon’s Dominion period (1948–1972). While the Ceylon Constitution has been the subject of in-depth historical and sociopolitical study, it has received less attention from legal scholars. This article hopes to fill that gap. It analyzes Ceylon Supreme Court and Privy Council judgments from this era on both rights-based and structural questions of constitutional law. In each area, sovereignty-related concerns influenced the judicial approach and case outcomes. On fundamental rights, both the Supreme Court and the Privy Council adopted a cautious approach, declining to invalidate legislation that had discriminatory effects on minority communities. This reluctance to entrench fundamental rights resulted, at least in part, from judges’ undue deference to the Ceylon Parliament, which was wrongly looked upon like its all-powerful British progenitor. On constitutional structure, the Ceylon Supreme Court deferred to Parliament even when legislation encroached into the judicial realm. The Privy Council, though, was not so passive. It upheld a separate, inviolable judicial power that Parliament could not legislate away. But by asserting itself as a check on legislative power, the Council—as a foreign judicial body intervening in Ceylonese affairs—stoked concerns that Ceylon was less than fully sovereign, which ultimately ended Dominion status.

scholarly journals JUDICIALIZAÇÃO E ATIVISMO JUDICIAL EM PERSPECTIVA: UMA ANÁLISE A PARTIR DAS EXPERIÊNCIAS DAS SUPREMAS CORTES DO BRASIL E DO CANADÁ

2020 ◽  
Vol 1 (54) ◽  
pp. 425
Author(s):  
Edith Maria Barbosa RAMOS ◽  
Pedro Trovão do ROSÁRIO ◽  
Sara Barros Pereira de MIRANDA
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Scientific Basis ◽  
Fundamental Rights ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
Scientific Journals ◽  
Supreme Courts ◽  
The Supreme Court ◽  
Theoretical Construction

RESUMOA presente pesquisa por escopo analisar os fenômenos da judicialização e do ativismo judicial a partir das experiências da Suprema Corte do Canadá e do Supremo Tribunal Federal brasileiro. Observou-se que, em ambos os países, tem havido, nas últimas décadas, uma contínua expansão da autoridade do Poder Judiciário e da sua atuação em temáticas de natureza política até então abordadas apenas pelos Poderes Legislativo e Executivo, o que pode ser evidenciado a partir da análise das decisões proferidas pelas Cortes Supremas dos dois países. Apesar das diferenças na arquitetura constitucional, ambas as Cortes atuam como condutoras do processo de expansão alcance do poder de suas estruturas judiciárias. O presente artigo foi desenvolvido a partir de levantamento bibliográfico em artigos obtidos em diferentes bancos de dados e indexadores, publicados na integra em português e inglês, acessados de forma gratuita. Foram selecionadas revistas científicas na área do Direito Constitucional Comparado com extratos elevados, qualis A e B. Utilizou-se, ainda, dados constantes em documentos oficiais e na legislação pertinente com recorte epistemológico e científico fundado na construção teórica contemporânea dos Direitos Fundamentais. PALAVRAS-CHAVE: Judicialização; Ativismo Judicial; Suprema Corte do Canadá; Supremo Tribunal Federal brasileiro. ABSTRACTThis research by scope analyzes the phenomena of judicialization and judicial activism from the experiences of the Supreme Court of Canada and the Brazilian Supreme Court. It has been observed that, in both countries, there has been, in the last decades, a continuous expansion of the authority of the Judiciary Power and its action in themes of a political nature hitherto addressed only by the Legislative and Executive Powers, which can be evidenced by from the analysis of the decisions of the Supreme Courts of both countries. Despite differences in constitutional architecture, both courts act as drivers of the process of expanding the power of their judicial structures. This article was developed from a bibliographic survey in articles obtained in different databases and indexers, published in full in Portuguese and English, accessed for free. Scientific journals were selected in the area of Constitutional Law Compared with high extracts, qualis A and B. It was also used data in official documents and relevant legislation with epistemological and scientific basis based on the contemporary theoretical construction of Fundamental Rights. KEYWORDS: Judicialization; Judicial activism; Supreme Court of Canada; Brazilian Supreme Court.

scholarly journals The Question of Comparison

2021 ◽  
Author(s):  
Ida Petretta
Keyword(s):  
Legal Reasoning ◽  
Comparative Law ◽  
Legal Tradition

Abstract Comparison is a key component of legal reasoning. We move merrily from like to like within the doctrine of precedent. We invoke comparison whenever we distinguish or apply a case. This Article begins by elucidating how comparison is present in law. The Article shows how law cannot function without comparison, and how the legal world skips over the central role comparison plays in these matters. The Article explores the literature on legal comparison and draws on insights from philosophy, comparative law, and anthropology to better understand comparison in practice. This Article argues that while we are entangled in the questions of sameness and difference, of finding the function and tying together, we are still not asking the question of comparison. What is function and how is it related to comparison? Inspired by James Tully’s writings, the Article explores the aspectival views of the legal world suggested by the different games of comparison. The Article draws on Stephen Mulhall’s work on Wittgenstein’s seeing as, aspect dawning, and aspect blindness to further ask about our relationship to comparison. The Article shows how mainstream comparisons are ontic comparisons that think togetherness through the comparatist. The comparatist steers the belonging together and (un)makes the meaning of all things in mainstream comparison. The argument builds on earlier work by Igor Stramignoni, showing how the Western legal tradition is within a kind of Heideggerian calculative thinking. The Article explores the possibility of other kinds of comparison through Stramignoni’s poetic comparisons. This Article calls on us to slow down our comparisons and begin to question comparison itself.

scholarly journals O Supremo Tribunal Federal e o Argumento de Direito Constitucional Comparado: Uma Leitura Empírica a partir dos Casos de Liberdade de Expressão no Brasil / The Supreme Court and the Comparative Constitutional Law’s Argument: An Empirical Reading from the Cases of Freedom of Expression in Brasil

2016 ◽  
Author(s):  
Cecilia Caballero Lois ◽  
Gabriel Lima Marques
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Freedom Of Expression ◽  
Comparative Law ◽  
Constitutional Court ◽  
The Supreme Court ◽  
Cases Study ◽  
Qualitative Characteristics

Resumo: O presente artigo tem por escopo verificar empiricamente quais são as peculiaridades que envolvem o uso do argumento de direito constitucional comparado no Supremo Tribunal Federal. Para tanto, valendo-se da coleta de dados obtidos a partir de um estudo de casos pertencentes à jurisprudência do Supremo, nos quais a liberdade de expressão constava como matéria em debate, serão apresentadas as características quantitativas e qualitativas que permeiam tal práxis. A partir daí, consoante à leitura dos acórdãos e desempenhadas as devidas considerações com fulcro em instrumental bibliográfico específico, será traçado um perfil da corte constitucional brasileira no particular do mencionado exercício, onde serão por fim fornecidas as conclusões que apontam para um uso em geral, descontextualizado e carente de metodologiaPalavras-chave: Direito Constitucional; Direito Comparado; Suprema CorteAbstract: This article has for scope, verify empirically which are the peculiarities that involves the use of comparative constitutional law's argument in Brazilian Supreme Court. To achieve this, using a set of data obtained from a cases study that belongs to the jurisprudence of the Supreme Court, and in which ones the freedom of expression consisted as a matter for debate, will be presented the quantitative and qualitative characteristics that permeate this practice. From there, according with the reading of the judgments and performed the appropriate considerations with  fulcrum in a specific bibliographic instrumental, we will in the end, trace a profile of the Brazilian constitutional court in this sense, and present the findings that pointing to an use in general, decontextualized and with a lacking of methodology.Keywords: Constitutional Law; Comparative Law; Supreme Court

scholarly journals Opening of the Case of Action and Preclusive Effectiveness of the Judged Thing

2020 ◽  
Vol 11 (11) ◽  
pp. 55-69
Author(s):  
Maria Celeste Cordeiro Leite dos Santos ◽  
Paulo Muanis do Amaral Rocha
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Comparative Law ◽  
Res Judicata ◽  
Federal Supreme ◽  
Do So

The objective of this paper is to show whether or not the Federal Supreme Court of Brazil can extend the cause of action in direct (or indirect) actions of constitutionality. How this extension can be made and whether the res judicata should be observed, given that such extension was used in a previous case, attacking the same infra-constitutional law. To do so, with simplicity, but not leaving the depth aside, we will use the issue with a focus on national jurisprudence, comparative law and various doctrines. Finally, we will address objective and subjective actions and how the “erga omnes” effect occurs in these types of actions; whether only the parts of that particular process suffer the effects of the decision rendered there, or if the whole society will benefit from what was decided in that action and in what way.

Germany

2013 ◽  
Author(s):  
Michal Bobek
Keyword(s):  
Supreme Court ◽  
Comparative Law ◽  
Case Law ◽  
National Origin ◽  
Constitutional Court ◽  
Legal Tradition ◽  
Foreign Law ◽  
Federal Constitutional ◽  
Federal Supreme ◽  
Domestic Case

The chapter deals with Germany. Although the German legal tradition is relatively open to non-mandatory legal inspiration, the sources of such inspiration are nonetheless generally limited to sources of national origin. The practice of three of the supreme federal jurisdictions, the Federal Constitutional Court, the Federal Supreme Court, and the Federal Administrative Court, discloses only sporadic passing references to foreign inspiration, typically within a larger block of citations of domestic case law or scholarship. References to foreign solutions serve as an additional supportive argument. In the German context, however, the limited quantity of direct uses of foreign law by courts should be weighed against the relatively rich comparative law scholarship.

Committing Ghana to International Agreements: A Review of the Roles of Parliament and the President

2021 ◽  
Vol 29 (2) ◽  
pp. 204-222
Author(s):  
Justice Srem-Sai
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Common Law ◽  
International Agreements ◽  
Legal Tradition ◽  
International Organisations ◽  
The Relationship ◽  
Domestic Law

Ghana, a dualist state within the broader common law legal tradition, is confronted with the issue on the roles of parliament and the president in making and implementing treaties. This challenge is affecting the country's relationship with other states and international organisations. The purpose of this article is to assist in clarifying Ghana's constitutional law and practice position on the relationship between the country's treaty obligations and its domestic law. The article will also point out some challenges with the jurisprudence of Ghana's Supreme Court on the issue.

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