scholarly journals O Papel da Interpretação Constitucional na Jurisdição Constitucional Brasileira e no Judicial Review Norte-Americano: um Estudo Comparado

2012 ◽  
Vol 7 (1) ◽  
Author(s):  
Isabella Karla Lima dos Santos
Keyword(s):  
Judicial Review ◽  
Conceptual Analysis ◽  
Control Model ◽  
Fundamental Rights ◽  
Constitutional Interpretation ◽  
Constitutional Courts ◽  
Democratic State ◽  
The Will ◽  
Key Aspects

Resumo: Este trabalho busca analisar o instituto da Interpretação Constitucional no direito americano e brasileiro, de maneira comparada. Nosso objetivo é demonstrar as semelhanças e diferenças entre os dois países, no que diz respeito ao âmbito de incidência da interpretação constitucional e ao espaço de liberdade conferido ao intérprete judicial, bem como demonstrar a influência do modelo de controle de constitucionalidade norte-americano (difuso) sobre o brasileiro (misto). Para tanto, iremos fazer uma breve análise conceitual sobre aspectos fundamentais ao entendimento do tema deste trabalho e, em seguida, estudaremos os modelos de controle de constitucionalidade dos dois países de modo comparado, com ênfase no papel do intérprete constitucional e o seu âmbito de atuação dentro de cada modelo. Buscamos demonstrar que o fundamental não é o modo como se interpreta a Constituição, mas o resultado obtido, que deve ser sempre a efetivação dos direitos fundamentais. Tanto o Judiciário americano quanto o brasileiro recebem críticas quanto ao caráter contramajoritário de suas decisões, contudo, deixamos claro que um Estado Democrático de Direito se faz não só através do respeito à vontade da maioria, mas também quando há a concretização dos direitos fundamentais dos cidadãos por meio das decisões das Cortes Constitucionais. Palavras-chave: Direito Comparado; Jurisdição Constitucional; Judicial Review of Legislation; Interpretação Constitucional; Direitos Fundamentais. Abstract: This paper seeks to analyse the Constitutional Interpretation Institute in American and Brazilian Law, comparative way. Our goal is to demonstrate the similarities and differences between the two countries, with regard to the scope of constitutional interpretation and impact to the area of freedom conferred upon the court interpreter, as well as demonstrate the influence of constitutionality control model (diffuse) on the Brazilian (mixed). To this end, we will do a brief conceptual analysis on key aspects to understanding of the topic of this work and then we will study the models of judicial review of the two countries so compared with emphasis on the role of constitutional interpreter and its scope of action within each model. We seek to demonstrate that the key is not how to interpret the Constitution, but the results obtained, which should always be the practice of fundamental rights. Both the American and Brazilian Courts receive criticism about the against majority character of their decisions, however, we are clear that a democratic State of law is made not only by respecting the will of the majority, but also when there is the realization of the fundamental rights of citizens by means of decisions of Constitutional Courts. Keywords: Comparative Law; Constitutional Jurisdiction; Judicial Review of Legislation; Constitutional Interpretation; Fundamental Rights.

11. Laws, Constitutions, and Federalism

Politics ◽  
2018 ◽  
Author(s):  
Peter Ferdinand ◽  
Robert Garner ◽  
Stephanie Lawson
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Basic Structure ◽  
The State ◽  
Fundamental Rights ◽  
Political Life ◽  
Social Diversity ◽  
Constitutional Courts ◽  
Alternative Approach

This chapter explores the interrelationships between law, constitutions, and federalism. It first explains the importance of constitutions in shaping the basic structure of the state and the fundamental rights of citizens that they establish before discussing the Universal Declaration of Human Rights, in particular asking whether it is Western-centric. It then considers the ways in which states may attempt to realize justice in applying the law, with emphasis on the distinction between Islamic and Western practice. It also examines the role of constitutional courts and judicial review, legal adjudication of political problems, how the institution of federalism is used to contain the powers of the state and to manage diverse societies, and consociationalism as an alternative approach to handling social diversity. Finally, it analyses the increasing legalization of political life.

Juristocracy vs. Theocracy: Constitutional Courts and the Containment of Sacred Law

2009 ◽  
Vol 1 (2) ◽  
pp. 129-165 ◽  
Author(s):  
Ran Hirschl
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
The Political ◽  
Political Movements ◽  
Social Forces ◽  
Constitutional Courts ◽  
Law And Courts ◽  
Political Interests ◽  
Formal Recognition

AbstractOne of the fascinating yet seldom explored phenomena in predominantly religious polities in the Middle East and elsewhere is the growing reliance on constitutional courts and their jurisprudential ingenuity to contain the spread of religiosity or advance a pragmatic version of it. In this article, I explore the scope and nature of this phenomenon. I proceed in several main steps. First, I define what may be termed "constitutional theocracy" with its often conflicting legal commitments, political interests, and social realities. Second, I examine the main epistemological, juridical and political reasons why constitutional law and courts are so appealing to secularist, modernist, cosmopolitan, and other non-religious social forces in polities facing deep divisions along secular/religious lines. Third, I look at various modes of interpretive ingenuity drawn upon by constitutional courts in Egypt, Pakistan, Israel, and Turkey in order to contain, limit, and mitigate the resurgence of religiosity in their respective polities. All of these countries have experienced a growth in the influence of religious political movements, with a commensurate increase in the levels of popular support that they receive. Despite the considerable differences in these countries' formal recognition of, and commitment to, religious values, there are, however, some striking parallels in the way that the constitutional courts in these (and in other similarly situated countries) have positioned themselves as important secularizing forces within their respective societies. I conclude by drawing some general lessons concerning the political construction of judicial review and the secularizing role of constitutional courts in an increasingly religious world.

scholarly journals Principled Silence or Mere Silence on Principles? The Role of the EU Charter’s Principles in the Case Law of the Court of Justice

2015 ◽  
Vol 11 (2) ◽  
pp. 321-356 ◽  
Author(s):  
Jasper Krommendijk
Keyword(s):  
Direct Effect ◽  
Judicial Review ◽  
Case Law ◽  
Fundamental Rights ◽  
Historical Background ◽  
Social Rights ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Eu

Historical background of the inclusion of social rights in the Charter of Fundamental Rights – Distinction between rights and principles – Similarities between the conditions for direct effect and the criteria for distinguishing between Charter rights and principles – Implications of this distinction for the possibilities of judicial review – Reluctance of the ECJ to explicitly deal with the distinction until Glatzel, as illustrated by its earlier judgments in Dominguez and AMS.

scholarly journals O substancialismo jurídico na administração pública concretista de direitos fundamentais: a juridicidade administrativa como instrumento de justiça constitucional | Legal “substantialism” in public administration concretist of fundamental rights: The administrative legality as a constitutional instrument of Justice

KPGT_dlutz_1 ◽  
2017 ◽  
Vol 31 (2) ◽  
pp. 304
Author(s):  
Sandro Lúcio Dezan ◽  
Ricarlos Almagro Vitoriano Cunha
Keyword(s):  
Decision Making ◽  
Public Administration ◽  
Constitutional Law ◽  
Administrative Law ◽  
Fundamental Rights ◽  
The Public ◽  
Democratic State ◽  
Constitutional Justice ◽  
Initial Line

Resumo: o presente texto tem por finalidade definir o papel da Administração Pública na interpretação e na aplicação do texto constitucional, no que respeita à concreção de direitos fundamentais em países de modernidade tardia, sob o amparo da tensão existente entre o que se denominou de procedimentalismo e de substancialismo jurídico. Busca-se, em linhas iniciais abordar os contornos da tendência de legitimação da função jurídica administrativa de caráter constitucional contramajoritário, a aferir uma nova e importante tarefa ao Estado-executivo, para além de sua comum concepção de “fiel executor da lei”, de modo a concluir que a justiça constitucional envolve a jurisdição (por meio do Poder Judiciário) e a juridicidade (por meio da Administração Pública). Sob essa última perspectiva, busca-se assinalar que a aplicação e concreção do direito também é tarefa da Administração Pública, no âmbito de sua função atípica decisional, ditada pelo próprio texto constitucional, legitimador e impositivo das ações valorativas substanciais no âmbito do Estado Democrático de Direito. Palavras-chave: Direito Constitucional. Direito Administrativo. Democracia. Princípio da juridicidade administrativa. Procedimentalismo. Substancialismo. Abstract: The purpose of this text is to define the role of the Public Administration in the interpretation and application of the constitutional text with regard to the realization of fundamental rights in countries of late modernity, under the protection of the tension between what was called “proceduralism” and “legal substantiality”. In an initial line, it seeks to address the contours of the tendency to legitimize the administrative-legal function of a countermajoritarian constitutional character, to assess a new and important task for the Executive State, in addition to its common conception of "faithful executor of the law". In order to conclude that constitutional justice involves jurisdiction (through the Judiciary) and “juridicialism” (through Public Administration). Under this latter perspective, this paper points out that the application and the scope of its atypical decision-making function, dictated by the constitutional text itself, legitimating and imposing substantial value actions within the Democratic State of Law. Keywords: Administrative Law. Constitutional Law. Democracy. Principle of administrative juridicialism. Proceduralism. Substantialism.

scholarly journals THE GOVERNMENT BY THE PEOPLE – THE FOUNDATION OF A DEMOCRATIC STATE

2021 ◽  
Vol 17 (3(65)) ◽  
pp. 21-31
Author(s):  
Александр Фёдорович МАЛЫЙ ◽  
Алмаз Альбертович НИГМЕТЗЯНОВ ◽  
Игорь Геннадиевич НИКИТЕНКО
Keyword(s):  
Social Relations ◽  
Scientific Methods ◽  
Legal Norms ◽  
Constitutional Principle ◽  
The People ◽  
Democratic State ◽  
Foreign Countries ◽  
The Will ◽  
The Government

The forms of direct expression of the will of the people are diverse, and their use is the basis for the functioning of a democratic state. Their research remains relevant due to the objective changes in social relations and the accompanying political technologies. Purpose: to focus on the analysis of legislation that changes in the light of political considerations, to show the role of society in setting priorities for the development of particular relations, and to use the experience of foreign countries in analyzing such a form of expression of will as a referendum. Methods: the authors use comparison, description, interpretation, theoretical methods of formal logic. Special scientific methods such as legal-dogmatic and interpretation of legal norms are used. Results: the study concludes that there is no alternative to the government by the people as a constitutional principle that balances the interests of all segments of society. It is important to take into account the experience of other countries, which provides a wealth material for analysis.

Who Guards the Guardians?

2017 ◽  
Author(s):  
András Sajó ◽  
Renáta Uitz
Keyword(s):  
Judicial Review ◽  
Judicial Activism ◽  
Constitutional Interpretation ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Constitutional Adjudication

This chapter examines constitutional adjudication as a mechanism designed to ensure that the constitution is properly observed. It begins with an overview of the development of constitutional review power and its prevailing modalities around the globe, focusing primarily on the emergence of specialized constitutional courts. It describes models and variations of constitutional review, along with the politics of apex courts. Turning to the constitutional review of legislation, the chapter considers what interpreting a constitution means in practice and whether fears of judicial self-aggrandizement through constitutional interpretation are justified. Finally, it discusses accusations of judicial activism and deference levelled against apex courts as well as the mounting opposition to judicial review.

Constitutional Law

2017 ◽  
Author(s):  
Axel Tschentscher
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Direct Democracy ◽  
Genetic Diagnosis ◽  
Embryonic Stem ◽  
Fundamental Rights ◽  
Surrogate Motherhood ◽  
Constitutional Courts ◽  
Anglo American ◽  
The 1960S

Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system. Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.

Courts and Judicial Review

2020 ◽  
pp. 720-746
Author(s):  
Li-Ann Thio
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
Administrative State ◽  
Liberal Democracies ◽  
The Rule Of Law ◽  
Developmental States ◽  
Liberal Democratic ◽  
Rule Making

The legal culture, political context, and organization of any one national state is key to apprehending the role of courts and judicial review in upholding the rule of law and the administrative state. Constitutional principles like the separation of powers, basic rights, and governance priorities like efficiency will shape the scope, intensity, and grounds of judicial review, which actors are susceptible to it, and questions of standing. Different ideological communities place varying emphasis on these factors. Models of judicial review, based on the French special administrative courts or English common law courts of general jurisdiction, were first developed in Western liberal democracies. These have been influential exports beyond Europe, although susceptible to autochthonous adaptations informed by local culture and exigencies. This chapter examines the chief features of courts and judicial review in Western liberal democracies, where the function of judicial review has gone beyond ensuring legality and conformity of administrative processes to standards of substantive and procedural fairness, to include protecting fundamental rights and promoting participatory democracy in the rule-making process. It examines how judicial review operates, similarly or distinctly, under other government regimes beyond liberal democratic orders, within non-liberal developmental states with communitarian cultures and socialist legal systems.

Unconstitutionality, Invalidity, and Charter Challenges

2002 ◽  
Vol 15 (1) ◽  
pp. 69-83 ◽  
Author(s):  
Michael Giudice
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
Legal Positivism ◽  
Moral Reasons ◽  
Political Morality ◽  
Social Fact ◽  
Form Part ◽  
Law Making ◽  
Do So

Inclusive legal positivism maintains that the existence and content of laws may, but need not, depend on standards of morality. As Wil Waluchow argues, inclusive positivism derives much of its plausibility through its explanation of Charter societies such as Canada. On his account, the fundamental rights of political morality contained in the Canadian Charter of Rights and Freedoms serve as ultimate criteria of the existence or validity of all laws in Canada, and thus form part of Canada’s rule of recognition. In this paper I challenge Waluchow’s inclusive positivist picture of Charter challenges. I argue instead that exclusive legal positivism, which maintains that resort to moral reasons may never figure in determinations of the existence or content of laws, better captures our ordinary understanding of the authoritative role of judges, constitutionality, and the traditional positivist conception of legal validity as a matter of social fact. Specifically, I argue that Joseph Raz’s notion of a directed law-making power, and not reliance on an inclusive positivist rule of recognition, best explains the duty of judicial review in Charter cases. Further, the fundamental rights of political morality recognized in the Charter are best understood as constitutional objectives, and not criteria of validity, which all subordinate laws in Canada ought to respect, yet may fail to do so in practice.

The Canadian Charter's Override Clause: Lessons for Israel

2016 ◽  
Vol 49 (1) ◽  
pp. 67-102 ◽  
Author(s):  
Lorraine E Weinrib
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Fundamental Rights ◽  
Detailed Account ◽  
Political Leaders ◽  
Public Power ◽  
Canadian Charter ◽  
Political Dynamics ◽  
Constitutional State

This article considers the role of legislative override clauses in the Canadian and Israeli rights-protecting systems, which share many institutional features. After providing a detailed account of the adoption of the override clause in the Canadian Charter of Rights and Freedoms, as a compromise between legislative supremacy and final judicial review, the article analyses the distinctive and unexpected political dynamics generated by this compromise, including its effect on the exercise of public power and elections. Although adopted to appease political leaders who opposed the Charter on substantive and institutional grounds, the legislative override has to date worked to legitimate judicial review and bring Canada further into the model of the modern constitutional state. The article then considers the lessons that Israel might learn from this analysis in the light of proposals to adopt an override clause to apply to a wider range of fundamental rights and to operate against Supreme Court judgments.

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