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

Freedom of Communication in the US and Europe

ICL Journal ◽  
2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Pedro Tenorio
Keyword(s):  
United States ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Burden Of Proof ◽  
Freedom Of Speech ◽  
The United States ◽  
Constitutional Court ◽  
The Press ◽  
The Supreme Court ◽  
The Us

AbstractThis paper compares the freedom of communication in the jurisprudence of the Supreme Court of the United States and the European Court of Human Rights, departing from the judgments of the Supreme Court of the United States. It is noted that there are differences, as specified herein. Regulatory texts invite to speak of two distinct models, though this may be a far-fetched statement. This paper makes the following concluding remarks: 1) There are many concepts of freedom of expression that are compatible with democracy; the one derived from the Sullivan Judgment in the US (and in Europe from the Lingens Judgment) is not the only one, although it is currently considered the most consist­ent with democracy. This point is not discussed here. 2) Major changes sometimes occur through seemingly small details. In this sense, the shift of the burden of proof in defama­tion cases (Sullivan) has created an earthquake in the legal regime governing the press. The Sullivan doctrine can be summarized as follows: first, errors are inevitable, as freedom of speech requires ‘breathing room’; second, the malice of those accused of defamation must be proven; third, it is necessary to prove the lack of veracity of the slanderer. This doctrine allows the press to play its role as the watchdog of freedom. 3) In Spain, the press also appears to play this role, thus requiring us to ask whether there is, or ever was, a Sullivan Judgment in Spanish jurisprudence. We tend to attribute the privileged position of the press in Spain to the fact that the Constitutional Court has given preferential consid­eration to freedom of speech when it is in conflict with honor, intimacy and self-image privacy. This preference is justified by its connection to democracy. Since the judgment of the Spanish Constitutional Court (STC hereafter) 6/1981 of 16 March, the Spanish Consti­tutional Court has stressed the importance of freedom of information for democracy, and since the STC 159/1986 of 16 December, the Constitutional Court has suggested the pref­erential position of freedom of expression. However, the incorporation of the Sullivan doc­trine into the Spanish system occurred through STC 6/1988 of 21 January, almost ten years after the passage of the Constitution into law.

Austrian Constitutional Court: The Constitutionality of Restrictions on Nullity Appeals in Law of Criminal Procedure

ICL Journal ◽  
2017 ◽  
Vol 11 (2) ◽  
Author(s):  
Christoph Gärner
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Constitutional Law ◽  
Equal Protection ◽  
European Convention ◽  
Constitutional Court ◽  
Lower Court ◽  
The Supreme Court ◽  
Federal Constitutional ◽  
The Right

AbstractThe limitation of nullity appeals to cases of ‘serious concerns regarding the correctness of the facts’ on which the lower court based upon its decision is in conformity with constitutional law. It does not violate the procedural safeguards protected by Article 6 of the European Convention on Human Rights or the right to equal protection under the law protected by Article 7 of the Austrian Federal Constitutional Law. Despite the restrictive application in the jurisprudence of the Supreme Court of Austria, the limitation is proportionate und thus constitutional, as such limitations only apply to rulings by a penal of lay judges.

Indonesia

2021 ◽  
pp. 251-266
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
Constitutional Court ◽  
Constitutional Democracy ◽  
Checks And Balances ◽  
American Perspective ◽  
The People ◽  
The Supreme Court

This chapter highlights the origins and growth of Indonesian judicial review. Indonesia today is a constitutional democracy that has attained surprising success in eliminating hyper-presidentialism by implementing important checks and balances on presidential power; by separating executive, legislative, and judicial power; and by attaining rapidly an astonishing amount of decentralization since 1998. That degree of checks and balances and of decentralization has undoubtedly made Indonesians much freer than they were under President Suharto’s dictatorship. The Indonesian Constitutional Court seems to function well and enjoys the confidence of the people. Looked at from an American perspective, however, Indonesia is a constitutional democracy, which does not yet fully protect freedom of expression, freedom of religion, or economic freedoms to the extent that those freedoms are protected by the U.S. Supreme Court. Indonesia’s Bill of Rights and its system of judicial review originated for rights from wrongs reasons, because of borrowing, and because power is sufficiently divided in Indonesia, as a result of the separation of powers and federalism, so that there is political space in which the Supreme Court can operate.

scholarly journals Recent Developments in Italian Constitutional-Criminal Law

1969 ◽  
pp. 427
Author(s):  
Alberto Cadoppi
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Constitutional Law ◽  
Criminal Responsibility ◽  
Legal Rights ◽  
Constitutional Court ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Recent Developments

This article compares Italian "Constitutional- Criminal" law under Italy's Constitution with the development of legal rights in Canada under the Canadian Charter of Rights and Freedoms. The author explains the "constitutional approach'' to criminal law in Italy, which is a complex web of principles which govern the criminal law by defining the concepts of "crime" and "criminal responsibility". Professor Cadoppi then examines various aspects of "constitutional-criminal "law as it has been developed by legal scholars, and the extent to which this approach has been accepted by the Italian Constitutional Court. The legal rights found in "constitutional-criminal" law are thought to be extendable to Canadian constitutional law, given the broad language of section 7 of the Canadian Charter of Rights. The author notes that the Supreme Court of Canada has given the Canadian Charter an expansive interpretation comparable to the Italian ' 'constitutional-criminal'' law approach, and uses this parallel to show that Canadian and Italian courts are moving toward a vision of a new criminal law in which ' 'fundamental justice'' will prevail.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

The Israeli Unfinished Constitutional Revolution: Has the Time Come for Protecting Economic and Social Rights?

2004 ◽  
Vol 37 (2-3) ◽  
pp. 299-345 ◽  
Author(s):  
Yoram Rabin ◽  
Yuval Shany
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Hard Core ◽  
Social Rights ◽  
Cultural Rights ◽  
Basic Law ◽  
The Supreme Court ◽  
The Status ◽  
Interpretive Strategies ◽  
The Right

AbstractThis article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

Sign in / Sign up

Export Citation Format

Share Document