scholarly journals A APLICAÇÃO DOS PRINCÍPIOS EM DWORKIN

2021 ◽  
Vol 16 (1) ◽  
pp. 251-276
Author(s):  
João Maria Pegado de Medeiros
Keyword(s):  
Constitutional Law ◽  
Critical Analysis ◽  
Fundamental Rights ◽  
Legal Positivism ◽  
Ronald Dworkin

RESUMOO objetivo deste artigo é examinar a teoria dos princípios desenvolvida por Ronald Dworkin em seu livro “Levando os direitos a sério”, cuja obra oferece duras críticas ao positivismo jurídico, especialmente ao de Hart. O conteúdo deste trabalho não pretende ser simplesmente analítico, mas terá como fim uma análise crítica em relação à concepção de Dworkin, de modo a fazer uso de alguns conceitos importantes trazidos pelo autor, porém não simplesmente adequando a sua teoria à experiência constitucional brasileira.PALAVRAS-CHAVE: princípios; direitos fundamentais; direito constitucional.ABSTRACTThe purpose of this article is to examine the theory of principles developed by Ronald Dworkin in his book "Taking rights seriously", whose work offers harsh criticisms of legal positivism, especially Hart's theory. The content of this work is not intended to be merely analytical, but will have as its purpose a critical analysis of Dworkin's conception, in order to make use of some important concepts brought by the author, but not simply by adapting his theory to the Brazilian constitutional experience.KEYWORDS: principles; fundamental rights; constitutional law.

scholarly journals The Problems of Specification of Legal Principles in the Doctrine of the “Earlier” R. Dworkin

Legal Concept ◽  
2020 ◽  
pp. 52-59
Author(s):  
Sergey Kasatkin
Keyword(s):  
Fundamental Rights ◽  
Legal Positivism ◽  
Ronald Dworkin ◽  
Scientific Methods ◽  
Legal Principles ◽  
Legal Rules ◽  
General Scientific ◽  
The Subject ◽  
Russian Law ◽  
The One

Introduction: the subject of the paper is the analysis of the concept of legal principles of the authoritative American jurist Ronald Dworkin, formulated by him in the essay “The Model of Rules” and formed the core of his initial challenge to the doctrine of legal positivism. The paper based on the general scientific and specific scientific methods pursues a dual goal – first, to systematize R. Dvorkin’s understanding of the specifics of legal principles and their consequences for the criticism of positivism, and second, to assess the potential of the author’s considered ideas outside of American-British law. Results: the paper summarizes the proposed R. Dworkin’s interpretation of legal principles as standards that differ from legal rules in terms of “logical and regulatory” parameters, the grounds for legalizing and significance in judicial justification, and also shows the connection of this interpretation with the negation of the key ideas of positivism. At the same time, it is noted both an unconventional view of R. Dworkin for the domestic jurisprudence and legal practice, the otherness of the criteria for understanding and specification of legal principles, and the insufficiency of a number of the author’s statements. Conclusions: on the one hand, the paper states the “weakness” of the arguments of R. Dworkin’s explanation of the grounds for legalizing the principles and their strict opposition to the rules; on the other hand, it emphasizes the value of these arguments for explaining the “weight” of the principles and conflicts between them, for understanding the procedures for restricting the fundamental rights, etc., which makes it necessary and possible to further develop the concept of the American jurist, including taking into account the experience of continental and Russian law.

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).

scholarly journals Fundamental Human Rights and UNO Charter: A Critical Analysis with Islamic Perspectives.

2021 ◽  
pp. 97-117
Author(s):  
Inam Ullah Wattoo ◽  
Yasir Farooq
Keyword(s):  
Human Rights ◽  
Critical Analysis ◽  
Fundamental Rights ◽  
Equal Rights ◽  
The People ◽  
Peace And Justice ◽  
The World ◽  
Historical Observation ◽  
And Gender ◽  
Short Time

This study presents a critical analysis on the charter of human rights of United Nations, as it was design to promote peace and justice in the world but unfortunately it was not come in true. So the concepts and impacts of human rights presented by UN will be examine in the light of Seerah, and to find out the reasons which caused its failure. It is historical observation that fundamental human rights are very essential for justice and peace in the world. All the peoples have equal rights in all respects. No one is allowed to disregard the rights of others on the basis of race, color and religion. Holy Prophet Muḥammad (PBUH) founded the state of Yathrab and first time in the history declared the fundamental rights of human and vanished the differences based on race, color and gender. Rights for slaves, war prisoners and women were not only defined but were implemented by legal procedure in very short time. In 1948 United Nation declared a charter for human rights which proclaimed that inherent dignity and equal rights are the foundation of freedom, justice and peace of the world. This charter consist on 30 articles regarding individual and common rights of human. This charter of UN guaranteed the security of all fundamental rights of all human being. Although there are number of articles which caused uneasiness among the people of different religions such as article No. 19. Freedom of opinion and express must be observed but it should must be keep in mind that some irresponsible elements of different societies are using this for their criminal purposes as cartoon contest on Prophet Muḥammad (PBUH) by Geert wilders of Holland in recent days caused huge disturbance for world peace. Whereas, the Prophet of Islām ordered the Muslim to respect the clergy of other religions even He (PBUH) halted the Muslims to abuse the idols.

scholarly journals LATIN AMERICAN AND BRAZILIAN CONSTITUTIONALISM: THE RIGHTS OF THE TRADITIONAL PEOPLES

2018 ◽  
Vol 4 (5-6) ◽  
pp. 172-196
Author(s):  
Monique Falcão ◽  
Ricardo Falbo
Keyword(s):  
Social Status ◽  
Latin American ◽  
Constitutional Law ◽  
Minority Rights ◽  
Theoretical Framework ◽  
Social Processes ◽  
Status Quo ◽  
Fundamental Rights ◽  
The Political ◽  
Constitutional Changes

This article presents the XXI’s constitutionalism as the doctrine of the constitutional law hich supposes to be a theoretical framework able to assure the interpretation of the political and social processes from which political constitutions emerge. Thus, the 88’s Brazilian Constitution proceeded to the recognition of the fundamental rights and norms regarding theprotection of minority rights. The purpose of this work is to investigate if this supposed innovative characteristic of the 88’s Brazilian Constitution is able or not to set historicalconstitutionalism as the continuity or maintenance of the conservative processes of the politicaland social status quo in the country. This article intends to discuss the nature of constitutional changes and the impacts of these changes on the development of constitutionalism in Brazil by analyzing the extent to which political, social, and cultural latin-american processes influenced changes in Brazilian constitutionalism.

scholarly journals Constitutional law and international law at the turn of the century

2017 ◽  
Vol 1 (1) ◽  
pp. 1 ◽  
Author(s):  
JA Frowein
Keyword(s):  
World War Ii ◽  
World War I ◽  
International Law ◽  
Constitutional Law ◽  
The United States ◽  
Fundamental Rights ◽  
Strong Impact ◽  
World War ◽  
Constitutional Courts ◽  
Constitution Making

Constitutional law and international law operate in simultaneous conjunction and reciprocal tension. Both fields seem to have overcome the great challenges of destruction and neglect in the course of the 20th century. Both after World War I and World War II the world experienced new waves of constitution making. In both cases the current German constitutions (the Weimar Constitution of 1919 and the Grundgesetz of 1949) were influential. Characteristic of constitution-making in this century, is the final victory of liberal constitutions based on the rule of law, the Rechtsstaat, fundamental rights, meaningful control of public powers and the establishment of constitutional courts. Following the destruction of World War II, the notion of the Sozialstaat emerged strongly in Germany. In contrast to the Constitution of the United States of America, the principle of the responsibility of the state for social justice has emerged in almost all new constitutions, including Russia, Poland, South Africa, Spain, Italy and Portugal. Where courts are given the mandate to interpret bills of rights, fundamental rights have been developed into foundation stones of the legal system. The presence in a Bill of Rights of restrictive clauses, is important for its analysis. Generally restrictive clauses in new constitutions try to limit the possibilities of restriction. The importance of constitutional rules establishing and legitimizing the political organs, must not be overlooked. Of particular importance is the degree of control over the head of state, a positive attitude among political actors towards the constitution and the protection of the interests of minorities in a democratic system. In the field of Public International Law much of Kant's ideal of an international confederation of peace has been realized. Since 1990 the United Nation's Security Council has shown the potential of becoming a directorate for the community ofnations. International law has also been instrumental in the worldwide recognition of human rights. Especially in Europe, Convention Law has had a strong impact. Furthermore, global and regional systems of regulation have tended to alter the legal attitude towards state sovereignty. It may be that the South African constitutional approach in terms of which international law is subject to constitutional and other national law, is not in line with international tendencies.

scholarly journals LATIN AMERICAN AND BRAZILIAN CONSTITUTIONALISM: THE RIGHTS OF THE TRADITIONAL PEOPLES

2017 ◽  
Vol 4 (5-6) ◽  
pp. 172-196
Author(s):  
Monique Falcão ◽  
Ricardo Falbo
Keyword(s):  
Social Status ◽  
Latin American ◽  
Constitutional Law ◽  
Minority Rights ◽  
Theoretical Framework ◽  
Social Processes ◽  
Status Quo ◽  
Fundamental Rights ◽  
The Political ◽  
Constitutional Changes

This article presents the XXI’s constitutionalism as the doctrine of the constitutional law hich supposes to be a theoretical framework able to assure the interpretation of the political and social processes from which political constitutions emerge. Thus, the 88’s Brazilian Constitution proceeded to the recognition of the fundamental rights and norms regarding theprotection of minority rights. The purpose of this work is to investigate if this supposed innovative characteristic of the 88’s Brazilian Constitution is able or not to set historicalconstitutionalism as the continuity or maintenance of the conservative processes of the politicaland social status quo in the country. This article intends to discuss the nature of constitutional changes and the impacts of these changes on the development of constitutionalism in Brazil by analyzing the extent to which political, social, and cultural latin-american processes influenced changes in Brazilian constitutionalism.

Verfassungsanalogien – Das Bundesverfassungsgericht an der Grenze der Verfassungsinterpretation

Der Staat ◽  
2021 ◽  
Vol 60 (1) ◽  
pp. 7-41
Author(s):  
Carsten Bäcker
Keyword(s):  
Constitutional Law ◽  
Case Law ◽  
Point Of View ◽  
Fundamental Rights ◽  
Federal State ◽  
Constitutional Court ◽  
Sich Eine ◽  
Statutory Interpretation ◽  
Rights Protection ◽  
Federal Constitutional

Analogien sind methodologisch hoch umstritten; sie bewegen sich an der Grenze der Gesetzesinterpretation. Dem methodologischen Streit um die Analogien unterliegt die Frage nach den Grenzen der Gesetzesinterpretation. In der Rechtsprechung des Bundesverfassungsgerichts finden sich eine Reihe von Verfassungsanalogien. Diese Analogien zum Verfassungsgesetz werden zwar nur selten ausdrücklich als solche bezeichnet, sie finden sich aber in einer Vielzahl von dogmatischen Konstruktionen in der Rechtsprechung – wie etwa der Erweiterung des Grundrechtsschutzes für Deutsche auf EU-Bürger oder der Annahme von Gesetzgebungskompetenzen des Bundes als Annex zu dessen geschriebenen Kompetenzen. Die Existenz derartiger Analogien zum Verfassungsgesetz verlangt nach Antworten auf die Fragen nach den Grenzen der Kompetenz zur Verfassungsinterpretation. Der Beitrag spürt diesen Grenzen nach – und schließt mit der Aufforderung an das Bundesverfassungsgericht, die Annahme von Verfassungsanalogien zu explizieren und die sich darin spiegelnden Annahmen über die Grenzen der Kompetenz zur Verfassungsinterpretation zu reflektieren. Constitutional analogies. The Federal Constitutional Court at the limit of constitutional interpretation From a methodological point of view, the use of analogies in legal argument is highly controversial, for they reach to the limits of statutory interpretation. Underlying the methodological dispute over analogies is the question of what the limits of statutory interpretation are or ought to be. A number of analogies from constitutional law can be found in the case law of the Federal Constitutional Court. Although these analogies to constitutional law are rarely explicitly designated as such, in the case law they can be found in a variety of dogmatic constructions – for example, in the extension of Germans’ fundamental rights protection to EU citizens, or the assumption of legislative powers of the federal state as an appendix to its written powers. The existence of such analogies to constitutional law calls for answers to the question of the limits of the power to interpret the Constitution. It is the aim of this article to trace these limits, and in its conclusion it calls on the Federal Constitutional Court to explicate the adoption of analogies in constitutional law and to reflect on the assumptions found therein – respecting the limits of the power to interpret the Constitution.

Continuity with Deficiencies: The New Basic Law of Hungary

2013 ◽  
Vol 9 (1) ◽  
pp. 102-138 ◽  
Author(s):  
András Jakab ◽  
Pál Sonnevend
Keyword(s):  
Constitutional Law ◽  
The State ◽  
Fundamental Rights ◽  
Political Community ◽  
The Political ◽  
Basic Law ◽  
The Government ◽  
Democratic Constitution ◽  
Legal Procedures

Hungarian constitutional law – New Basic Law – Continuity with the previous democratic Constitution – Vision of the political community embedded in the new Basic Law – The level of protection of fundamental rights – Continuity and lack of foreseeability in the organisation of the state – European legal procedures against or about Hungary – The life prospects of the new Basic Law – Danger of constitutional crisis whenever the government does not hold a constitution-amending majority

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.

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