A Democratic Defense of Constitutional Balancing

2010 ◽  
Vol 4 (1) ◽  
pp. 79-106 ◽  
Author(s):  
Stephen Gardbaum
Keyword(s):  
Judicial Review ◽  
General Structure ◽  
Prima Facie ◽  
Constitutional Rights ◽  
Constitutional Democracy ◽  
First Order ◽  
Constitutional Right ◽  
Normative Justification ◽  
Inherent Part

We all live in the age of constitutional balancing. Abstracting away differences of nuance and doctrinal detail, balancing is a common feature of the structure of rights analysis across contemporary constitutional systems. Indeed, abstracting just a little further still, balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can in principle be limited or overridden by certain non-constitutional rights premised on conflicting public policy objectives.It is not surprising, then, that a significant literature about balancing has developed at both domestic and comparative levels. What is surprising is that so little of this literature has attempted to present the normative case for constitutional balancing or the general structure of rights analysis of which it is an inherent part. Rather, the existing scholarship has mostly focused on five other tasks: (1) describing and comparing first-order practices of balancing; (2) providing second-order conceptual analyses; (3) explaining balancing's rise to dominance; (4) advancing critiques of balancing; and (5) rebutting these critiques.In this article, I attempt to present one particular normative justification of constitutional balancing; namely a democratic justification. I argue that balancing appropriately bolsters the role of majoritarian decision-making about rights within a system of constitutional democracy. It thereby renders entrenched rights enforced by the power of constitutional or judicial review more consistent with certain enduring democratic concerns. I also explain the implications of this justification for how courts should exercise their powers of review.

Global quantification in Zermelo-Fraenkel set theory

1985 ◽  
Vol 50 (2) ◽  
pp. 289-301
Author(s):  
John Mayberry
Keyword(s):  
Set Theory ◽  
Order Theory ◽  
Prima Facie ◽  
Local Theory ◽  
Axiom Schema ◽  
First Order ◽  
First Order Theory ◽  
Naturally Occurring ◽  
Universe Of Sets

My aim here is to investigate the role of global quantifiers—quantifiers ranging over the entire universe of sets—in the formalization of Zermelo-Fraenkel set theory. The use of such quantifiers in the formulas substituted into axiom schemata introduces, at least prima facie, a strong element of impredicativity into the thapry. The axiom schema of replacement provides an example of this. For each instance of that schema enlarges the very domain over which its own global quantifiers vary. The fundamental question at issue is this: How does the employment of these global quantifiers, and the choice of logical principles governing their use, affect the strengths of the axiom schemata in which they occur?I shall attack this question by comparing three quite different formalizations of the intuitive principles which constitute the Zermelo-Fraenkel system. The first of these, local Zermelo-Fraenkel set theory (LZF), is formalized without using global quantifiers. The second, global Zermelo-Fraenkel set theory (GZF), is the extension of the local theory obtained by introducing global quantifiers subject to intuitionistic logical laws, and taking the axiom schema of strong collection (Schema XII, §2) as an additional assumption of the theory. The third system is the conventional formalization of Zermelo-Fraenkel as a classical, first order theory. The local theory, LZF, is already very strong, indeed strong enough to formalize any naturally occurring mathematical argument. I have argued (in [3]) that it is the natural formalization of naive set theory. My intention, therefore, is to use it as a standard against which to measure the strength of each of the other two systems.

Introduction Building Constitutionalism in Fragile Democracies

2020 ◽  
pp. 1-18
Author(s):  
Yvonne Tew
Keyword(s):  
Judicial Review ◽  
State Building ◽  
Democratic Governance ◽  
Constitutional Democracy ◽  
Democratic Transitions ◽  
Constitutional Order ◽  
Institutional Power ◽  
Constitutional State ◽  
Facilitative Role

What role do courts play in developing constitutional democracy in Asia? Constitutional Statecraft in Asian Courts explores the role of judicial review and constitutionalism in safeguarding democratic governance and facilitating constitutional governance. It offers an in-depth look at contemporary Malaysia and Singapore, helping us understand how courts engage in constitutional state-building even as they confront dominant political parties and negotiate democratic transitions. The book considers how the judiciary can negotiate institutional power to consolidate its position vis-à-vis the dominant political branches of government. It also examines the facilitative role courts can play in crafting the foundational principles of an evolving constitutional order. The judicial strategies evident in Malaysia and Singapore suit the challenges of many other emerging Asian democracies, providing both guidance and caution as these states negotiate their emerging constitutionalism. At the heart of this book is an account of how judicial strategies of constitutionalism can sculpt the contours of state-building. It is, in brief, about how courts engage in constitutional statecraft.

Some Thoughts on the Aesthetics of Retribution

2004 ◽  
Vol 17 (2) ◽  
pp. 233-254
Author(s):  
Theodore Y. Blumoff
Keyword(s):  
Emotional Reactivity ◽  
Criminal Liability ◽  
Prima Facie ◽  
Necessary Condition ◽  
Negative Component ◽  
First Order ◽  
The People ◽  
Criminal Intent

There is a tendency among those who identify themselves as subjectivists on the issue of defining criminal intent to dismiss or minimize the role of actual non-trivial harm in the determination of criminal liability and punishment. That is to say, they are those who argue that an individual’s subjective intent is a sufficient indication of potential dangerousness and culpability to justify punishment. In this essay, the author presents a view, based on Adam Smith’s recognition of the “irregularity of the sentiments,” that actual physical harm matters; that it reflects the negative component of the two great motivators, pleasure and pain; and that it can release the worst sort of emotional reactivity: retribution. The infliction of a non-trivial first order harm can invoke a deeply felt aesthetic reaction which, in turn, reflects our natural (and cognitively “irregular”) human sentiments. Trying to dispense with harm as a feature in our understanding of criminality seems prima facie absurd. Awareness of the sentiment, as Smith understood, helps temper the worst parts of our nature: that which hopes to crush the people and ideas we find threatening. Ironically, the existence of and need for harm as a necessary condition of criminality heightens our awareness of the limitations of reason in dealing with victims of crime. We are not simply cognitive creatures.

Contempt of Parliament and Constitutional Rights

1998 ◽  
Vol 42 (2) ◽  
pp. 237-237
Keyword(s):  
Judicial Review ◽  
Freedom Of Expression ◽  
Constitutional Rights ◽  
Select Committee ◽  
Public Servants ◽  
Legal Representation ◽  
Members Of Parliament ◽  
The Supreme Court ◽  
Fair Hearing ◽  
Constitutional Right

The appellant, Mutasa, was a former Speaker of the then House of Assembly. He had addressed a seminar of senior public servants where he had voiced the opinion that the calibre of MPs was so low as to make Parliament meaningless and that they were uninformed, lacked intelligence and demeaned the institution of Parliament. The respondent, the Speaker of Parliament, ruled that the appellant's words constituted a breach of parliamentary privilege and a select committee of members of Parliament was appointed to investigate the matter. The committee took evidence from witnesses in the absence of Mutasa. He was questioned but was not allowed legal representation and the select committee also refused his request to recall, for further examination, witnesses who had testified. As a result of the committee's recommendations, Mutasa was found guilty of contempt of Parliament and severely reprimanded by the Speaker. Mutasa sought a judicial review of the proceedings of the select committee arguing that the finding of contempt should be quashed on the grounds that the committee's procedure had violated his right to a fair hearing (contrary to section 18(2) of the Constitution) and that his utterances outside Parliament were protected by his constitutional right to freedom of expression. The Speaker then issued a certificate under section 6(1) of the Privileges, Immunities and Powers of Parliament Act which the presiding judge deemed to be conclusive of the matter and accordingly stayed the proceedings. Mutasa appealed to the Supreme Court.

The Right to Freedom of Expression, Press and Culture in South Africa: A Survey of Recent Developments

2013 ◽  
Vol 2 (1) ◽  
pp. 170-185
Author(s):  
Lufuno Nevondwe ◽  
Motlhatlego Matotoka
Keyword(s):  
South Africa ◽  
South African ◽  
Freedom Of Expression ◽  
Media Industry ◽  
Constitutional Rights ◽  
Recent Developments ◽  
The Media ◽  
Constitutional Right ◽  
The Right

This article reflects on the recent case and determination in Goodman Gallery v Film and Publication Board and Print Media South Africa v Minister of Home Affairs and Another which set important precedents in the media industry. These determinations also show the consistency of the South African Courts and tribunals in ensuring that the right to human dignity, the achievement of equality, and the advancement of human rights and freedoms which are among the founding values of the Constitution are afforded adequate protection. These constitutional rights are often in conflict with each other. The article determines whether one constitutional right supersedes the other. It also comments briefly on the role of the media in South Africa and its challenges under democracy. The article further considers the statutory mandate of the Films and Publication Board and provides a critique of the decision in Goodman Gallery.

The Rule of Law: The Role of Judicial Review in Promoting Human Rights and Social Reform

2016 ◽  
Author(s):  
Lauren Sampson
Keyword(s):  
Judicial Review ◽  
Review Process ◽  
Constitutional Rights ◽  
Same Sex ◽  
Political Debate ◽  
State Legislation ◽  
Same Sex Marriage ◽  
The Rule Of Law ◽  
Proportionality Test

The purpose of this paper is to investigate the expanded scope of judicial review after the introduction of the Canadian Charter of Rights and Freedoms in 1982 and the subsequent power of courts to strike down legislation that violates constitutional rights. Subsequent interpretations of the Charter have transformed such rights into litigation tools and sources of empowerment capable of mobilizing forces for social change. Through an analysis of major cases and rulings, the paper will argue that the adoption of the Charter and the constraints existent upon popularly controlled institutions have established  judicial systems as the primary guarantors of citizen and minority rights and the active instigators ofsocial reform in Canadian civil society. Each of the chosen cases bears monumental political and legal significance. R. v. Oakes created a proportionality test used to assess and potentially remove state legislation infringing on Charter‐protected liberties; R. v. Morgentaler decriminalized abortion and represented a definitive judicial foray into a contentious ethical and political debate; Vriend v. Alberta removed the last bastion of sanctioned discrimination against homosexuals, providing a foundation for The Same Sex Marriage Reference and finally Halpern v. Canada rendered Ontario the first jurisdiction in North America to recognize same‐sex marriage. The paper will also address the limited capacities of legislative bodies to meet demands for reform, leaving them to assume chiefly reactive roles. Finally, it will examine and evaluate criticism levied at the judicial review process, with particular attention paid toaccusations of anti‐majority and undemocratic tendencies.  

scholarly journals PERAN MAHKAMAH KONSTITUSI DALAM MENJAMIN HAK KONSTITUSIONAL WARGA NEGARA PADA PROSES DEMOKRATISASI DI INDONESIA

2009 ◽  
Vol 39 (4) ◽  
pp. 437
Author(s):  
Mutiara Hikmah
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Judicial Authority ◽  
Normative Messages

AbstrakThe Constitutional Court as the judicial authority is responsible for maintaining the constitution directly and participates in strengthening the rights of human rights. This is drawn directly from the nature of the understanding that the constitution itself as a political document that protects the rights of human rights of every citizen and people who live in the country. This began the constitutional functions of the most essential are the first, limiting the powers contained in the constitutional scheme of a nation, and second, to formulate protection constitutional rights of the citizens and the rights of human as a whole. That is why the role of the Constitutional Court directly correlated with the significance of the role of enforcement agencies of human rights in terms of "norms control". Embodiment of constitutional and judicial review is examining through compliance with the norms of the constitution messages that cannot be separated from the ·universality of normative messages of human rights.

scholarly journals Pathological Analysis of the Charter of Citizenship Rights in Iran in Judicial Rights Terms with a Focus on Human Dignity

2016 ◽  
Vol 10 (1) ◽  
pp. 177
Author(s):  
Fatemeh Piraman ◽  
Seyed Mohammad Sadegh Ahmadi ◽  
Masoud Raei
Keyword(s):  
Human Dignity ◽  
Focal Point ◽  
Legal Rights ◽  
Constitutional Rights ◽  
Citizenship Rights ◽  
Constitutional Right ◽  
Legal Security ◽  
Definition Of ◽  
The Right

Judicial right is one of the most significant fields of citizenship rights. A large part of the right legal instances become considerable when a citizen is under suspicion. To codify the examples of legal rights principally, the concept of human dignity needs to be the focal point on a constant basis. In the case of ignoring this criterion in arranging the constitutional rights the justice would not be attained, and the legal security of the citizens would be disrupted.Within the constitutional rights of Iran, the charter of the citizenship rights as a comprehensive document considered within the constitutional right field.  In the preface and principles of this document human dignity is confirmed as one of the most significant factors in codifying the citizenship rights. However, in the continuation and in the arrangement of the instances of the citizenship rights this criterion has not been considered as expected.The charter of the constitutional rights compared to previous rules of it has no significant innovation. Two groups of factors have caused the insignificant role of human dignity within the judicial rights. The first groups include the general factors such as presenting an inaccurate definition of citizen and mingling the instances of human rights with examples of rights. The second group of factors that mostly relate the lack of precise positioning towards some of the accepted principles of the legal right has provided the possibility of violating human dignity in this charter.

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