Direitos Sociais, Estado De Direito E Desigualdade: Reflexxes Sobre as Crrticas Judicializaaao Dos Direitos Prestacionais (Social Rights, Rule of Law and Inequality: Reflections on the critical reviews about judicialization of positive rights)

2015 ◽  
Author(s):  
Jane Reis Gonnalves Pereira
Keyword(s):  
Rule Of Law ◽  
Social Rights ◽  
Positive Rights ◽  
Critical Reviews

Kooperation, Konflikt und Anerkennung

2001 ◽  
Vol 45 (1) ◽  
pp. 168-180 ◽  
Author(s):  
Arno Anzenbacher
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Social Rights ◽  
Moral Norms ◽  
The Rule Of Law ◽  
Theory Of Justice ◽  
Conflict And Cooperation ◽  
Positive Rights ◽  
Systematic Development ◽  
The Welfare State

Abstract The systematic development of the concept of justice occurs on the basis of human rights. First, this human rights basis is examined in terms of theories of conflict and cooperation. Furthermore, it is investigated whether wisdom suffices as the basis of human rights or whether moral norms are necessary. With the distinguishing of human rights into negative, active and positive rights, distinctions result with respect to the concept of justice, leading to the concepts of a state under the rule of law, democracy and the welfare state, and explaining the concept of socialjustice through exchange, participation, distribution, and procedural faimess. Overcoming the tension between formal rights of freedom and social rights, reference is made to the principles of subsidiarity and democracy. Finally, issues arising with respect to the theory of justice are considered in relation to the problern of globalisation.

Crisis of the Rule of Law in Europe: The Cases of Hungary, Poland and Spain

2021 ◽  
Vol 7 (3) ◽  
pp. 379-398
Author(s):  
David Parra Gómez
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Social Rights ◽  
Institutional Reforms ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
Division Of Powers ◽  
European Democracy ◽  
Aggressive Interference

Democracy is an instrument at the service of a noble purpose: to ensure the freedom and equality of all citizens by guaranteeing the civil, political and social rights contained in constitutional texts. Among the great principles on which this instrument rests is the division of powers, which consists, substantially, in the fact that power is not concentrated, but that the various functions of the State are exercised by different bodies, which, moreover, control each other. Well, the increasingly aggressive interference of the Executive and, to a lesser extent, the Legislative in material spheres that should be reserved exclusively for the Judiciary, violates this principle and, for this reason, distorts the idea of democracy, an alarming trend that, for some time now, are observed in European Union countries such as Hungary, Poland and Spain. Preventing the alarming degradation of European democracy, of which these three countries are an example, requires not only more than necessary institutional reforms to ensure respect for these principles and prevent the arbitrariness of the public authorities, but also a media network and an education system that explains and promotes these values and principles, that is, one that makes citizens aware of and defend constitutionalism. Keywords: Rule of law; Democracy; Separation of powers; judicial independence; Europe.

Building respect for the rule of law in violent contexts: The Office of the High Commissioner for Human Rights' experience and approach

2014 ◽  
Vol 96 (895-896) ◽  
pp. 881-900
Author(s):  
Annyssa Bellal
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Armed Conflicts ◽  
Social Rights ◽  
Concerted Action ◽  
Cultural Economic ◽  
The Rule Of Law ◽  
Post Conflict ◽  
Conflict Situations ◽  
High Commissioner

AbstractHow does the Office of the High Commissioner for Human Rights (OHCHR) discharge its mandate of “promoting and protecting the effective enjoyment by all of all civil, cultural, economic, political and social rights”, especially in armed conflicts and other situations of violence? What are its concrete responsibilities, and how does it work to generate respect for the rule of law on the ground? This article aims to provide an overview of OHCHR's activities, and point to some of the challenges associated with its work to generate respect for the rule of law, in particular in violent contexts. It begins with an overview of the unique mandate of OHCHR and situates it within the broader United Nations human rights machinery. It then gives an account of OHCHR's experience and approach in building respect for the rule of law, including in armed conflicts and post-conflict situations, outlining how this informs OHCHR's field setup. Finally, the article summarizes the main challenges that OHCHR faces in the discharge of its mandate. It highlights the need for more concerted action on the part of human rights/humanitarian protection organizations on the ground, despite differences in mandates and constituencies.

scholarly journals The fallacy of the social State in Colombia

2021 ◽  
Vol 3 (5) ◽  
pp. 57-92
Author(s):  
René Moreno Alfonso
Keyword(s):  
Quality Of Life ◽  
Rule Of Law ◽  
National Development ◽  
Social Needs ◽  
Social Rights ◽  
Social Rule ◽  
Social State ◽  
Social Actors ◽  
The Social

This document carries out a normative and jurisprudential analysis on the model of the Social State of Law and Social Rights introduced by the 1991 Constitution, to validate its development. The main goal is to contrast the normative design with the reality of Colombian society to consider whether the social purposes of the state are met or if, on the contrary, the Social State of Law is a legal discourse and not a reality. To achieve such goal, the emergence and evolution of the concept of Social State of Law and its application in Colombian constitutionalism are taken into account; The study of social rights is carried out in conceptual and quantitative terms with satisfaction/deficiency indicators to identify the effectiveness degree those rights that allow the progress or setbacks of the Social State of Law to be concluded. The contrast among constitutional norms, jurisprudential rules and empirical data on the effectiveness of social rights lead us to the conclusion that in 30 years of legitimacy of the Colombian Constitution 1991-2021, the Social Rule of Law in our country is a fallacy that needs to be transformed into reality by social actors to undertake the programmatic content of the constitution. To fulfill social needs, there are legalpolitical instruments such as the National Development Plan and the Multi-Year Budgets, which meet public policy to procure the improvement and quality of life of Colombians and show that the Social State of Law is not a simple constitutional formula.

The right to be free: is media freedom good news for women's rights?

2016 ◽  
Vol 13 (2) ◽  
pp. 327-355 ◽  
Author(s):  
ARUSHA COORAY ◽  
NABAMITA DUTTA ◽  
SUSHANTA MALLICK
Keyword(s):  
Women's Rights ◽  
Good News ◽  
Women’S Rights ◽  
Social Rights ◽  
Government Control ◽  
Free Press ◽  
Media Freedom ◽  
Positive Rights ◽  
Free Media ◽  
The Impact

AbstractUsing an extensive dataset covering 187 countries during 1993–2011, this paper explores the impact of media freedom from government control on women's rights. To measure women's rights, we consider economic, political and social rights that capture the extent of government's respect for these rights at country level over time. A free press improves government's accountability to the society and leads to better governance. In the context of women's rights, a free press can enhance positive rights by helping women raise voices and gain recognition, and thereby making the government create a more conducive environment for women's empowerment. Further, higher press freedom can reduce the infringement of negative rights by calling for greater public accountability. Yet, a free media, while necessary, may not be sufficient in enhancing such rights, and other institutional factors related to a country's development might be essential to reap the benefit of a free media. Our estimated marginal impacts show that greater access of media (in the form of internet and mobile users) and countries with greater democratic capital enhance the impact of media freedom on women's economic and social rights, with little effect on political rights.

The Outcome of the Financial Crisis in Italy

2020 ◽  
pp. 276-310
Author(s):  
Matteo De Nes ◽  
Andrea Pin
Keyword(s):  
European Monetary Union ◽  
Local Governments ◽  
Golden Rule ◽  
Social Rights ◽  
Constitutional Court ◽  
Scientific Debate ◽  
Positive Rights ◽  
Balanced Budget ◽  
Social Expenditures ◽  
Italian Constitution

Although Italy was not involved in any official programme of financial assistance granted by so-called European ‘rescue funds’, an informal letter sent by the ECB to the Italian Government triggered de facto the adoption of pervasive austerity measures. The national and local governments, legal scholarship, and society at large have swung from adhesion to austerity policies to profound scepticism towards these measures. The reform that epitomises all the others is the constitutionalisation of the so-called ‘golden rule’ of a balanced budget, passed in 2012. This amendment crystallised the neo-liberal economic theory within the text of the Italian Constitution, and its implementation domesticated external constraints deriving from the European Monetary Union. Italy cut social expenditures, increased taxes, and shrunk social rights. Political and social tensions and concerns about the protection of fundamental social rights enshrined in the Italian Constitution ensued shortly after the amendment’s passage. The Italian Constitutional Court has played a pivotal role in addressing such tensions, prompting an intense scientific debate on the role and powers of the judiciary, as well as on the traditional legal theories concerning positive rights.

scholarly journals Judicial Independence vis-à-vis Judicial Populism: the Case of Ulayat Rights and Educational Rights

2020 ◽  
Vol 6 (1) ◽  
pp. 110
Author(s):  
Rosa Ristawati ◽  
Radian Salman
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Judicial Independence ◽  
Social Rights ◽  
Constitutional Court ◽  
State Budget ◽  
The Rule Of Law ◽  
Educational Rights ◽  
The Republic ◽  
Case Number

Judicial populism may occur when judicial branches are much more influenced by the interest of people majority. In this context, it is when justices deliver decisions according to what the people wanted and not what it has to be decided by laws. The Constitutional Court of the Republic of Indonesia (MKRI) has the pivotal role to protect the Constitution, democracy, and the rule of law principles by adhering judicial independence in the decision making process. This paper aims to briefly find out whether the MKRI decisions on the particular issue of economic and social rights show the tendency of judicial populism and defending judicial independence. A brief conclusion would be drawn from the analysis of the two MKRI’s landmark decisions on the relevant issues of economic and social rights, in particular issues of Ulayat rights and educational rights (Case Number 35/PUU-X/2012 on the judicial review of Law No. 41 of 1999 on the Forest and Case Number No. 13/PUU-VII/2008 on the judicial review of Law No. 16 of 2008 on the Amendment of the Law No. 45/2007 on the State Budget). In a short analysis of both landmark decisions, the MKRI tends to defend its independence in delivering its decision. The Court also shows its consistency in protecting the Constitution by strictly upholding the constitutional values laid down in the Constitution and against the judicial populism. The Court in both decisions shows its constitutional commitment to preserving democratic values of minority-marginalized protection against the dominant-majoritarian interest. In the particular issue of education rights, the Court hinders the fulfilment of educational rights from the elite interest by preserving the constitutional purpose of making priority 20% for the education budget. In general, the MKRI has to guard preventing the Constitution and the rule of law principles, specifically on the issue of the protection of economic-social rights. It upholds judicial independence and put asides judicial populism.

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