scholarly journals Konstitusionele voorskrifte rakende regspersone

2017 ◽  
Vol 1 (1) ◽  
pp. 166
Author(s):  
Gerrit Pienaar
Keyword(s):  
Fundamental Rights ◽  
Customary Law ◽  
Constitutional Court ◽  
Private Law ◽  
Bill Of Rights ◽  
Freedom Of Association ◽  
State Action ◽  
Section 8 ◽  
The Common ◽  
The Right

The interim Constitution of 1993 and the final Constitution of 1996 contain specific provisions applicable to juristic persons. Juristic persons are also entitled to the fundamental rights contained in the Bill of Rights to the extent that these rights are applicable to them. It must be kept in mind that juristic persons have peculiar characteristics and that the fundamental rights of juristic persons differ from those of natural persons. Juristic persons are also under the obligation to respect the fundamental rights of natural persons and other juristic persons to the extent provided for in the Bill of Rights. In the case of juristic persons acting as organs of state the vertical application of the Bill of Rights safeguards the fundamental rights of persons against state action or interference. The circumstances where juristic persons act as organs of state are discussed with reference to case law. Difference of opinion exists regarding the horizontal application of the Bill of Rights, that is the application of the Bill of Rights to private law relationships. In terms of the interim Constitution the Bill of Rights was applied horizontally in an indirect manner. Section 35(3) provided that the common and customary law must be developed by both the Supreme Court and the Constitutional Court to promote the values underlying an open and democratic society based on human dignity, equality and freedom, without completely abolishing the common and customary law. The final Constitution provides in section 8(2) that natural and juristic persons in private law relationships are also bound by the Bill of Rights if, and to the extent that, such rights are applicable, taking into account the nature of the rights and the nature of any duty imposed by such right. The direct horizontal application of the Bill of Rights is, however, limited by section 36. The extent of the rights of juristic persons and limitations on them in private law relationships are investigated, taking into account the right of freedom of association in terms of section 18. The variousprinciples to be taken into consideration in the case of clubs, religious organisations, educational institutions, political organisations and trading and professional institutions are discussed. 

6 South Africa: From Constitutional Promise to Social Transformation

2007 ◽  
Author(s):  
Klug Heinz
Keyword(s):  
South Africa ◽  
Social Transformation ◽  
Democratic Transition ◽  
Customary Law ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
Constitutional Democracy ◽  
Constitutional Amendments ◽  
The Common ◽  
Democratic Elections

South Africa's emergence as a constitutional democracy after four decades of apartheid and nearly three centuries of colonialism is rightly heralded as a miracle. With 243 sections and seven schedules, the constitution of South Africa also represents an attempt to constitutionalise all the hopes, fears, and conflicts of its democratic transition. This process is epitomised by the two-stage constitution-making process in which the conflicting parties first negotiated an ‘interim’ constitution and then, after democratic elections, empowered the new Parliament to sit as a constitutional assembly in order to produce a ‘final’ constitution. This chapter describes South Africa's constitution, the union and apartheid constitutions, democratic transition, constitutional principles, the 1993 interim constitution, regionalism and cooperative governance, rule of law and the Bill of Rights, amending procedures, Constitutional Court, sources of constitutional interpretation, constitution as statute, modes of interpretation, duty to develop the common law and customary law, internal directives for interpretation, problems of interpretation, certification and the problem of future constitutional amendments, and legal legacies and popular experience of the law.

Is There a Right to Free Movement across Borders?

2018 ◽  
Author(s):  
Sarah Song
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Free Movement ◽  
Individual Freedom ◽  
Freedom Of Association ◽  
Human Right ◽  
Freedom Of Movement ◽  
The Third ◽  
The Right ◽  
Logical Extension

Chapter 6 examines three rights-based arguments for freedom of movement across borders. Three rights-based arguments have been offered in support of freedom of international movement. The first claims that freedom of movement is a fundamental human right in itself. The second adopts a “cantilever” strategy, arguing that freedom of international movement is a logical extension of existing fundamental rights, including the right of domestic free movement and the right to exit one’s country. The third argument is libertarian: international free movement is necessary to respect individual freedom of association and contract. This chapter shows why these arguments fail to justify a general right to free movement across the globe. What is morally required is not a general right of international free movement but an approach that privileges those whose basic human rights are at stake.

From Property Rights to Liberty Rights: We the Corporations, A Review Essay

2021 ◽  
Vol 95 (2) ◽  
pp. 335-340
Author(s):  
Laura Phillips Sawyer
Keyword(s):  
Civil Rights ◽  
Civil Liberties ◽  
Political Process ◽  
Constitutional Rights ◽  
Bill Of Rights ◽  
State Action ◽  
Unequal Treatment ◽  
The People ◽  
The Right ◽  
We The People

A long-standing, and deeply controversial, question in constitutional law is whether or not the Constitution's protections for “persons” and “people” extend to corporations. Law professor Adam Winkler's We the Corporations chronicles the most important legal battles launched by corporations to “win their constitutional rights,” by which he means both civil rights against discriminatory state action and civil liberties enshrined in the Bill of Rights and the Constitution (p. xvii). Today, we think of the former as the right to be free from unequal treatment, often protected by statutory laws, and the latter as liberties that affect the ability to live one's life fully, such as the freedom of religion, speech, or association. The vim in Winkler's argument is that the court blurred this distinction when it applied liberty rights to nonprofit corporations and then, through a series of twentieth-century rulings, corporations were able to advance greater claims to liberty rights. Ultimately, those liberty rights have been employed to strike down significant bipartisan regulations, such as campaign finance laws, which were intended to advance democratic participation in the political process. At its core, this book asks, to what extent do “we the people” rule corporations and to what extent do they rule us?

Within the Public-Private Divide. Right to Housing and Consumer Law in Recent European Private Law Trends

Global Jurist ◽  
2018 ◽  
Vol 19 (2) ◽  
Author(s):  
Rocco Alessio Albanese
Keyword(s):  
Fundamental Rights ◽  
Private Law ◽  
The European Union ◽  
The Public ◽  
Consumer Law ◽  
Charter Of Fundamental Rights ◽  
Recent Trends ◽  
New Perspective ◽  
The Right ◽  
Protection Of Right

Abstract This paper intends to discuss some major European legal issues by building on the critique of a certain narrow relevance of human basic needs, according to traditional Western legal conceptions of the subject as well as of the public-private divide. In particular it aims at verifying the potentiality of consumer law for rethinking the right to housing, within recent trends of European Private Law, by adopting a remedial approach. For this reason the paper analyzes three well-known cases decided by the Court of Justice of the European Union (CJEU) – namely Aziz, Sanchez Morcillo and Kušionová – as examples of this meaningful trend. Through the combination of the fairness test over contractual terms with the criteria of effectiveness and proportionality, a broader protection of right to housing is recognised even in horizontal private relationships. Art. 7 of the EU Charter of Fundamental Rights (CFREU) could represent the constitutional reference for this new perspective. The paper also intends to show how the relevance of the basic need for housing is traced to debtor's families. CJEU's interpretative itinerary seems to start from a fairness test about contractual terms, but eventually comes to give protection to subjective situations that are even out of the domain of the contract.

El derecho a ser informado como elemento esencial del derecho a la protección de datos. Una visión crítica de la jurisprudencia del Tribunal Constitucional y de su cambio de doctrina en la STC 39/2016

2016 ◽  
pp. 191-216
Author(s):  
Miguel Ángel CABELLOS ESPIÉRREZ
Keyword(s):  
Video Surveillance ◽  
Data Protection ◽  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Surveillance Systems ◽  
Control Technology ◽  
Specific Regulation ◽  
The Right

LABURPENA: Lan eremuan bideozaintzaren erabilerak ondorio garrantzitsuak dakartza funtsezko eskubideei dagokienez, esate baterako intimitateari eta datu pertsonalen babesari dagokienez. Hala eta guztiz ere, oraindik ez daukagu araudi zehatz eta espezifikorik kontrol-teknika hori lan eremuan erabiltzeari buruz. Horrek behartuta, errealitate horri araudi-esparru anitz eta generikoa aplikatzeko modua auzitegiek zehaztu behar dute, kontuan hartuta, gainera, Espainiako Konstituzioaren 18.4 artikulua alde horretatik lausoa dela. Konstituzio Auzitegiak, datuen babeserako funtsezko eskubidea aztertzean, datuen titularraren adostasuna eta titular horri eman beharreko informazioa eskubide horretan berebizikoak zirela ezarri zuen; hortik ondorioztatzen da titularraren adostasuna eta hari emandako informazioa mugatuz gero behar bezala justifikatu beharko dela. Hala ere, Konstituzio Auzitegiak, duela gutxiko jurisprudentzian, bere doktrina aldatu du. Aldaketa horrek, lan eremuan, argi eta garbi langileak informazioa jasotzeko duen eskubidea debaluatzea dakar, bere datuetatik zein lortzen ari diren jakiteari dagokionez. RESUMEN: La utilización de la videovigilancia en el ámbito laboral posee importantes implicaciones en relación con derechos fundamentales como los relativos a la intimidad y a la protección de datos personales. Pese a ello, carecemos aún de una normativa detallada y específica en relación con el uso de dicha técnica de control en el ámbito laboral, lo que obliga a que sean los tribunales los que vayan concretando la aplicación de un marco normativo plural y genérico a esa realidad, dada además la vaguedad del art. 18.4 CE. El TC, al analizar el derecho fundamental a la protección de datos, había establecido el carácter central en él del consentimiento del titular de los datos y de la información que debe dársele a éste, de donde se sigue que cualquier limitación del papel de ambos deberá estar debidamente justificada. Sin embargo, en su más reciente jurisprudencia el TC ha realizado un cambio de doctrina que supone, en el ámbito laboral, una clara devaluación del derecho a la información por parte del trabajador en relación con qué datos suyos se están obteniendo. ABSTRACT : T he use of video surveillance systems within the work sphere has major implications for fundamental rights such as privacy and data protection. Nonetheless, we still lack of a detailed and specific regulation regarding the use of that control technology within the work sphere, which obliges courts to define the application of a plural and generic normative framework to that issue, given the vagueness of art. 18.4 of the Constitution. The Constitutional Court, when analyzing the fundamental right to data protection, had settled the centralityof the consent of the data rightholder and of the information to be provided to the latter, and from this it followed that any restriction on the role of both rights should be duly justified. However, in its most recent case law the Constitutional Court has changed its doctrine which means, within the work sphere, a clear devaluation of the right of information by the employee regarding the obtained data of him/her.

The Right to Healthcare in the Common European Asylum System

2018 ◽  
Vol 20 (2) ◽  
pp. 135-156
Author(s):  
Marco Inglese
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Convention ◽  
Undocumented Migrants ◽  
The European Union ◽  
Common European Asylum System ◽  
The Common ◽  
Interpretative Approach ◽  
The Right

Abstract This article seeks to ascertain the role of healthcare in the Common European Asylum System (CEAS). The article is structured as follows. First, it outlines the international conceptualisation of healthcare in the International Covenant of Economic, Social and Cultural Rights (ICESCR) and the European Social Charter (ESC) before delving into the European Convention on Human Rights (ECHR). Second, focusing on the European Union (EU), it analyses the role of Article 35 of the Charter of Fundamental Rights of the European Union (the Charter) in order to verify its impact on the development of the CEAS. Third, and in conclusion, it will argue that the identification of the role of healthcare in the CEAS should be understood in light of the Charter’s scope of application. This interpretative approach will be beneficial for asylum seekers and undocumented migrants, as well as for the Member States (MSs).

scholarly journals Kedudukan Perempuan dalam Hukum Waris Adat Batak Toba

2018 ◽  
Author(s):  
Elpina
Keyword(s):  
Law Enforcement ◽  
Indigenous Peoples ◽  
Customary Law ◽  
Social Culture ◽  
Kinship System ◽  
Law Enforcement Officials ◽  
The Common ◽  
The Law ◽  
The Right ◽  
Political Economic

Customary law is the law of life (living low) that grow and develop in the midst of the community in accordancewith the development of society. Customary law who live in midst of ethnic Indonesia is very strategic to be knownand understood by law enforcement officials, legal observers and guidance in applying the appropriate legal andfair for Indonesian society. The common law does not give the right role and the same degree between men andwomen in life, social, culture, political, economic and domestic life and marriage property and inheritance.Landing directly above the law would cause problems among indigenous peoples, especially the indigenous peopleembrace patrilinieal or matrilineal kinship system, such as that experienced by the Batak people who mbracepatrilineal kindship systems knows in Toba Batak society is patrilineal system, which through the male lineage andis the next generation of his parents while girls not the generation of their parents, as a result of this system is veryinfluential on the position of girls in matters of inheritance.

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

The Secularized State

2020 ◽  
pp. 220-236
Author(s):  
Ernst-Wolfgang Böckenförde ◽  
Mirjam Künkler ◽  
Tine Stein
Keyword(s):  
Religious Freedom ◽  
Religious Faith ◽  
The State ◽  
Religious Communities ◽  
Constitutional Court ◽  
Freedom Of Association ◽  
Democratic State ◽  
Federal Constitutional ◽  
Freedom Of Belief ◽  
The Right

In this article Böckenförde contrasts his concept of open encompassing neutrality (found in most Scandinavian countries and in Germany) with that of distancing neutrality, as practised in France. While the latter champions negative religious freedom, open encompassing neutrality aims for a balancing of negative and positive religious freedom. Religious freedom for Böckenförde is multidimensional and includes the right to have (or not) a religious faith (freedom of belief), to affirm (or not) this faith privately and openly (freedom to profess), to exercise (or not) one’s religion publicly (freedom of worship), and to join together (or not) in religious communities (religious freedom of association). The correlate to these individual and group rights is the open and overarching principle of the state’s neutrality towards religion and other worldviews, entailing a prohibition on the state justifying law on religious grounds. Furthermore, it requires the state not to privilege religion over non-religion and one religious faith over another. Siding with the ruling of the Federal Constitutional Court (at a time when he was not a sitting judge), Böckenförde underlines that even religious communities who reject the democratic state have the right to be recognized and legally protected. What matters is not whether communities accept or reject the state, but whether they obey or violate its laws. This was the court’s view on the Jehovah’s Witnesses, and it must also be applied, Böckenförde writes, to religious fundamentalists who do not accept the secular order, as long as they do not violate any laws.

OSTVARIVANjE PRAVA NA KOLEKTIVNO PREGOVARANjE U REPUBLICI SRBIJI

2021 ◽  
pp. 99-112
Author(s):  
Bojan Urdarević ◽  
Keyword(s):  
Collective Bargaining ◽  
Working Conditions ◽  
Legal Framework ◽  
Academic Community ◽  
Fundamental Rights ◽  
Freedom Of Association ◽  
Conflicting Interests ◽  
Collective Negotiations ◽  
The One ◽  
The Right

Freedom of association and the right to collective bargaining are fundamental rights of workers and a means of achieving a balance between the interests of workers and employers. Through collective bargaining, the parties in the collective negotiations identify common but also mutually conflicting interests and come to a common agreement. In this sense, collective bargaining can be a means of achieving a balance between, on the one hand, employers' desire for greater flexibility at work and on the other hand, the desire of employees to adapt their obligations and needs. It is important to note that the success of collective bargaining depends largely on the economic, institutional, political and legal framework in which collective negotiations between unions and employers take place. For this reason, the level of development of collective bargaining and social dialogue is different from state to state. Today, the right to collective bargaining has become widely recognized in the academic community as a key instrument for regulating working conditions and relations between employers and workers in a way that ensures fairer distribution of funds, improves working conditions and preserves the dignity of workers,but also institutionalizes industrial conflicts.

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