scholarly journals FUNDAMENTAL RIGHTS AND TOLERANCE AS PRECONDITIONS OF THE DEVELOPMENT OF THE STATE

2019 ◽  
Vol 2 (55) ◽  
pp. 543
Author(s):  
Flávio PANSIERI ◽  
Rene SAMPAR
Keyword(s):  
Political Philosophy ◽  
Constitutional Law ◽  
The State ◽  
Fundamental Rights ◽  
Pivotal Mechanism

ABSTRACTThis article aims to analyze tolerance as a fundamental right without which the most elementary notion of the development of the state cannot occur. The authors adopt democratic constitutionalism as the pivotal mechanism in today’s engineering of the state. Tolerance, in this regard, works as a resilient device against authoritarian notions which do not admit diversity and dissent, pivotal gears in any democratic context. For this purpose, the authors draw upon the method of bibliographical review with authors in the fields of law, political philosophy, and political science.KEYWORDS: Constitutional Law; Tolerance and freedom; Democratic constitutionalism. RESUMOEste artigo tem como objetivo analisar a tolerância como um direito fundamental sem o qual a noção mais elementar do desenvolvimento do estado não pode ocorrer. Os autores adotam o constitucionalismo democrático como o mecanismo central da engenharia do estado de hoje. A tolerância, nesse sentido, funciona como um dispositivo resiliente contra noções autoritárias que não admitem diversidade e discordância, engrenagens fundamentais em qualquer contexto democrático. Para esse fim, os autores recorrem ao método de revisão bibliográfica com autores nos campos do direito, filosofia política e ciência política.PALAVRAS-CHAVE: Lei Constitucional; Tolerância e liberdade; Democracia constitucional.

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

scholarly journals The natural human right to security and security as a constitutional human right

2020 ◽  
pp. 219-233
Author(s):  
Jadwiga Potrzeszcz
Keyword(s):  
Constitutional Law ◽  
Primary Objective ◽  
The State ◽  
Fundamental Rights ◽  
Human Right ◽  
Positive Law ◽  
The Right

In this article it was formulated the thesis on the existence of a natural hu­man right to security, and subsequently the analyse of the issue of the relation­ship between the natural human right to security and security as a constitutional human right. The primary objective of the research was to answer the question whether the natural human right to security influences the existence of security as a human right, guaranteed by positive law, in particular in constitutional law. The above analysis of the provisions of the Polish Constitution proved that the right to security as a constitutional human right was not expressly stated in any of these provisions. Certainly, the formulation of an explicit constitutional human right to security raises concerns about the scope of the citizen’s ability to enforce this right from the state, e.g. by means of a constitutional complaint. Regardless of the difficulties raised, it is worth interpreting the constitution­al human right to security from all the regulations of the Polish Constitution as a function of fundamental rights. In justified individual cases of violations, the constitutional human right to security may be derived from art. 30 of the Pol­ish Constitution, which stipulates that the inherent and inalienable dignity of man is the source of his rights and freedoms.

LIBERTY AND THE CONSTITUTION

Legal Theory ◽  
2015 ◽  
Vol 21 (3-4) ◽  
pp. 156-241 ◽  
Author(s):  
Michael S. Moore
Keyword(s):  
Political Philosophy ◽  
Constitutional Law ◽  
Supreme Court Decision ◽  
The State ◽  
Moral Rights ◽  
Legal Rights ◽  
American Constitution ◽  
State Coercion ◽  
Constitutional Right ◽  
Do So

ABSTRACTThe article uses the recent U.S. Supreme Court decision in the same-sex marriage caseObergefell v. Hodgesas the springboard for a general enquiry into the nature and existence of a constitutional right to liberty under the American Constitution. The discussion is divided into two main parts. The first examines the meaning and the justifiability of there being a moral right to liberty as a matter of political philosophy. Two such rights are distinguished and defended: first, a right not to be coerced by the state when the state is motivated by improper reasons (prominent among which are paternalistic reasons); and second, a right not to be coerced by the state when there are insufficient justifying reasons for the state to do so, irrespective of how such state coercion may be motivated. Neither right is regarded as “absolute,” and so it is morally permissible for the state to override such rights in certain circumstances. The second part of the article examines the distinct and additional considerations that must be taken into account when these two moral rights to liberty are fashioned into corresponding legal rights under American constitutional law. Both such rights survive the transformation, but each becomes altered somewhat in its content. This legal transformation includes recognition of the nonabsolute nature of moral rights, such recognition taking the form of some doctrine of “compelling state interests.” The discussion in these two main parts of the article is prefaced with a defense of the article's use of political philosophy to inform constitutional law, a defense motivated by Chief Justice Robert's denunciation of such an approach to constitutional law in his opinion inObergefell.

scholarly journals Naturschutz und Verfassungsrecht

2017 ◽  
Vol 2 (1) ◽  
pp. 60
Author(s):  
D Czybulka
Keyword(s):  
Nature Conservation ◽  
Constitutional Law ◽  
The State ◽  
Fundamental Rights ◽  
Natural Basis ◽  
Social Commitment ◽  
Federal States ◽  
Locus Standi ◽  
Basic Law ◽  
The Individual

Nature Conservation and Constitutional Law in Germany Germany's federal structure is mirrored in its constitutional law consisting of the federation's Basic Law and the constitutions of the federal states subject to conformity with the former. "Nature conservation" in the constitutional context means the "protection of the natural basis of existence" comprising all natural values such as flora, fauna, soil, water, air, climate, landscape and their interdependencies. The process of incorporating provisions on nature conservation in the constitutions of both state levels intensified in the 1970's and 1980's leading to the amendment of the constitutions in several federal states (adopting for example state aim definitions, locus standi for nature conservation NGO's, individual rights to enjoy nature, municipal responsibilities and so forth), revived with the unification of Germany and came to a first halt with the amendment of the Basic Law in 1994, introducing Article 20a. Nature conservation directly or indirectly is subject of different categories of constitutional provisions - competences, state aims, fundamental rights and through disputed fundamental duties.As to legislative powers the federation itself enjoys only a framework competence (see Federal Nature Conservation Act), which is unfavourable especially to the implementation of international commitments. This framework is complemented by the nature conservation legislation of the federal states to which also the executive powers in this field are allocated.Article 20a of the Basic Law provides that "The state protects […] the natural basis of existence …". As a state aim ("Staatszielbestimmung") it addresses the state bodies which thus are legally bound to always respect and perform to the end of the constitu-tionally prescribed objective. As a provision of mere objective law, the individual has no locus standi to enforce its implementation. Its role therefore must be seen as a means of interpretation of enacted law to ensure conformity with the constitution, as a guideline for discretionary decisions and as a support in planning processes for weighing up interests. Under the latter aspect Article 20a can be understood as a principle of non-deterioration regarding the environmental situation, as a "guideline for integrity" and as a decision in favour of raising the standards of protection and implementing them.Academic discussion on a fundamental right related to nature conservation calls for abondonment of the anthropocentric approach inherent in the constitution (human dignity). A first promising step would be to adopt an "ecological minimum standard" vested as fundamental right. However, in practice a right of nature itself is denied. Instead nature's interests are represented by the state (for example protection of certain sites and biotopes by law) and by NGO's (with locus standi in German administrative courts in most states (Länder)). Claims of individuals against the state to avert a destruction of nature are also denied. Nature conservation as fundamental duty is materialized in the principle of social commitment of property. To this extent nature conservation also amounts to an "ecological" limit for the excercise of individual freedoms guaranteed under the constitution. A respective limitation of nature conservation by these freedoms as well as the scope of any limit to nature conservation are disputed issues.

The Open Society and the Democracy to Come: Bergson, Deleuze and Guattari

2016 ◽  
Vol 10 (3) ◽  
pp. 352-366 ◽  
Author(s):  
Bruce Baugh
Keyword(s):  
Political Philosophy ◽  
The State ◽  
Open Society ◽  
Minor Literature ◽  
Deleuze And Guattari ◽  
The People ◽  
To Come ◽  
Polar Opposite ◽  
A Minor ◽  
Gain Access

In Bergsonism, Deleuze refers to Bergson's concept of an ‘open society’, which would be a ‘society of creators’ who gain access to the ‘open creative totality’ through acting and creating. Deleuze and Guattari's political philosophy is oriented toward the goal of such an open society. This would be a democracy, but not in the sense of the rule of the actually existing people, but the rule of ‘the people to come,’ for in the actually existing situation, such a people is ‘lacking’. When the people becomes a society of creators, the result is a society open to the future, creativity and the new. Their openness and creative freedom is the polar opposite of the conformism and ‘herd mentality’ condemned by Deleuze and Nietzsche, a mentality which is the basis of all narrow nationalisms (of ethnicity, race, religion and creed). It is the freedom of creating and commanding, not the Kantian freedom to obey Reason and the State. This paper uses Bergson's The Two Sources of Morality and Religion, and Deleuze and Guattari's Kafka: For a Minor Literature, A Thousand Plateaus and What is Philosophy? to sketch Deleuze and Guattari's conception of the open society and of a democracy that remains ‘to come’.

COMPARATIVE METHOD IN CONSTITUTIONAL LAW: BETWEEN PRESUMPTIONS OF SIMILARITIES AND DIFFERENCES

2019 ◽  
Vol 14 (5) ◽  
pp. 84-113
Author(s):  
ALEXANDRA A. TROITSKAYA
Keyword(s):  
Political Philosophy ◽  
Theoretical Model ◽  
Constitutional Law ◽  
Comparative Method ◽  
Comparative Law ◽  
Middle Level ◽  
Legal Research ◽  
Universal Principles ◽  
The World ◽  
Similarities And Differences

The two main approaches to the use of the comparative method in legal research, functional and cultural, have some "predetermined" considerations regarding the results that will (or should) be discovered by comparing various legal phenomena — should the emphasis be on similarities or differences between these phenomena. These considerations are based on the vision of, respectively, the universal or pluralistic nature of law of various societies, and in fact they are able to correct substantially the process of cognition of legal phenomena using the comparative method, adjusting it to the desired result. In the case of similarities, we can talk about artificially narrowing the circle of countries under investigation. In the case of differences, the isolation of systems and the uniqueness of their cultural characteristics are unreasonably exaggerated. The alternative assumptions presented in the theory of comparative law regarding the existence of universal principles of law or the fundamental uniqueness of each legal system require a critical rethinking of constitutional provisions and practice in comparative studies. The use of the comparative method in constitutional law is not reducible to the implementation of the ideas of political philosophy, and objective conclusions should not be replaced by predetermined normative guidelines. The similarities and differences revealed by the researcher of constitutional ideas, norms and practices can be considered as a result of comparison of independent value.Constitutional law is associated with a variety of substantial constructs existing in the world, not excluding, however, their intercommunication. Understanding these constructions requires attention to both the similarities and the differences in specific legal orders (as well as the reasons for their functioning in this, and not another form). The use of the comparative method in the absence of striving for predetermined results is simultaneously aimed at understanding the laws of development of constitutional institutions and maintaining the horizon of their diversity as an important component of this development. Each time, the researcher should distance himself from his prejudices regarding the similarities or differences between the institutes under study, rechecking whether the obtained results are really the results of applying the comparative method, and not the initial constructions.The logic of a comparative study corresponds to the construction of theories of "middle level", aimed at forming the theoretical model of a particular legal in-stitution, taking into account the practice of implementing this institution in specific states. The focus on middle-level theories within the framework of the comparative method allows one to go beyond the description of single systems, formulate conclusions at the level of generalization that ensure the comparability of the studied objects, and at the same time maintain an understanding of the diversity of constitutional models.

“Promising” Ideas: Hobbes and contract in Spinoza’s political philosophy

2018 ◽  
Author(s):  
Don Garrett
Keyword(s):  
Political Philosophy ◽  
The State ◽  
Key Topics ◽  
The Right ◽  
Good And Evil

Like Hobbes, Spinoza prominently invokes promising and contracts (covenants) in his discussion of the foundations of the state—primarily, but not exclusively, in his Theological-Political Treatise. His understanding of their nature and significance, however, differs in important ways from that of Hobbes. This chapter poses four related puzzles concerning Spinoza’s claims about promises and contracts as they invoke or relate specifically to Hobbes: “whether the right of nature is preserved intact”; whether “reason urges peace in all circumstances”; whether breaking a promise is ever “in accordance with reason”; and whether one is obligated to keep a pledge extorted by a robber. Next, it analyzes and compares the doctrines of Hobbes and Spinoza on several key topics: rights and powers, good and evil, reason and passion, and faith and deception (both “evil deception” [“dolus malus”] and “good deception” [“dolus bonus”]). Finally, it employs these doctrines to resolve the four puzzles.

Oxford Studies in Political Philosophy, Volume 3

2017 ◽  
Keyword(s):  
Political Philosophy ◽  
Social Issues ◽  
Just War Theory ◽  
The State ◽  
State Legitimacy ◽  
Ex Post ◽  
Personal Morality ◽  
George Sher ◽  
Parent Child Relationships ◽  
David Enoch

This volume features ten papers in political philosophy, addressing a range of central topics and represent cutting-edge work in the field. Papers in the first part look at equality and justice: Keith Hyams examines the contribution of ex ante equality to ex post fairness; Elizabeth Anderson looks at equality from a political economy perspective; Serena Olsaretti’s paper studies liberal equality and the moral status of parent–child relationships; and George Sher investigates doing justice to desert. In the second part, papers address questions of state legitimacy: Ralf Bader explores counterfactual justifications of the state; David Enoch examines political philosophy and epistemology; and Seth Lazar and Laura Valentini look at proxy battles in just war theory. The final three papers cover social issues that are not easily understood in terms of personal morality, yet which need not centrally involve the state: the moral neglect of negligence (Seana Valentine Shiffrin), the case for collective pensions (Michael Otsuka); and authority and harm (Jonathan Parry).

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).

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