scholarly journals Interpretação Judicial na Transição do Antigo Regime ao Constitucionalismo

2014 ◽  
Vol 9 (2) ◽  
Author(s):  
Michael Stolleis
Keyword(s):  
Separation Of Powers ◽  
Thomas Hobbes ◽  
Early Modern Period ◽  
Fundamental Rights ◽  
Judicial Interpretation ◽  
History Of Interpretation ◽  
Constitutional State ◽  
Essential Question ◽  
History Of ◽  
The Individual

INTERPRETAÇÃO JUDICIAL NA TRANSIÇÃO DO ANTIGO REGIME AO CONSTITUCIONALISMO JUDICIAL INTERPRETATION IN TRANSITION FROM THE ANCIEN RÉGIME TO CONSTITUTIONALISM RESUMO: “Todas as leis precisam de interpretação” (Thomas Hobbes, Leviathan, parte 2, cap. 26). Se isso for pressuposto, uma questão essencial que surge é: quem será o intérprete e que limites ele terá que respeitar? No início do período moderno, quando o Estado absolutista surgiu, o juiz não era realmente independente, mas um instrumento obediente do príncipe. Desde a formação do Estado constitucional, o Judiciário ganhou cada vez mais independência. Em consequência, também a interpretação tornou-se “livre” – apenas limitada pelo texto da lei e da Constituição. A história da interpretação é uma história contínua de constitucionalizar o poder político no interesse dos direitos fundamentais do indivíduo. PALAVRAS-CHAVE: Interpretação; Separação dos poderes; Independência do Judiciário; Estado Constitucional. ABSTRACT: “All Lawes need Interpretation” (Thomas Hobbes, Leviathan, Part 2, chap. 26). If this is to be assumed, one essential question arises: who will be the interpreter and which limits has he to respect? In early modern period, when the absolutist state emerged, the judge was not really independent, but an obedient instrument of the prince. Since the formation of the constitutional state, the judiciary gained more and more independence. In consequence also the interpretation became “free” – merely restricted by the text of the law and of the constitution. The history of interpretation is a continuous history of constitutionalizing the political power in the interest of the fundamental rights of the individual. KEYWORDS: Interpretation; Separation of powers; Independence of justice; Constitutional state.

scholarly journals THE BRAZILIAN JUDICIARY AS AN ORGAN OF POLITICAL CONTROL

2014 ◽  
Vol 2 (2) ◽  
pp. 15-32
Author(s):  
Ada Pellegrini Grinover ◽  
Grasielly Spínola
Keyword(s):  
Separation Of Powers ◽  
Public Policies ◽  
Class Action ◽  
Fundamental Rights ◽  
Great Effort ◽  
The Public ◽  
Autistic People ◽  
Individual Actions ◽  
Jurisdictional Control ◽  
The Individual

The fruition of fundamental rights like healthcare, education, worthy housing and work is directly related to the creation and implantation of universal and egalitarian public policies by the Congress and the Public Administration. In the cases where the existing public policies are shown to be insufficient, inadequate or do not achieve the fundamental goals of the Federative Republic of Brazil, it arises the need of the action of the jurisdictional function to control the constitutionality over these public policies. In Brazil, this control is made both by direct way, by means of its own constitutional actions, and by diffuse way, by means of collective actions interposed in first instances courts. In this context, the enforcement of the liberal theories like Montesquieu’s Separation of Powers and the Intangibility of the Discretionary Activities reveal themselves incoherent with the Democratic Rule-of-the-Law State. In another way, the jurisdictional action is limited by the Reasonableness, by the Possible Reserve and by the Existential Minimum, and can also find some obstacles in the individual actions that end up influencing the public policies. Therefore, there is a great effort to colectivizing individual actions by Brazilian schoolars. Another problem is the difficulty of Judical Power in using the adequate procedural class action. It will be analyzed one specific decisions made by the Court of Justice of the State of São Paulo about the jurisdictional control of public policies related to the autistic people, with a goal to point out a direction to the improvement of the jurisdictional tutelage in terms of effectiveness and adequacy.

Separation of Powers in Foreign Affairs

2019 ◽  
pp. 46-64
Author(s):  
Martin S. Flaherty
Keyword(s):  
Separation Of Powers ◽  
Critical Role ◽  
Fundamental Rights ◽  
Foreign Affairs ◽  
The Other ◽  
History Of ◽  
Excess Power ◽  
Domestic Affairs

This chapter argues that separation of powers was understood to apply to foreign no less than domestic affairs. In so doing, it provides a corrective for both the history of the Founding and certain Founding myths that later constitutional approaches have projected upon that history. The chapter first brings together two dominant accounts of the Constitution's origins. It then argues that separation of powers mattered more, not less, with regard to the national government's enhanced powers in foreign affairs. The constitutional text and debates together confirm that the Founders sought to divide foreign affairs powers among the three branches in the same original ways they had for authority seen as ordinarily domestic. As in domestic affairs, moreover, the expectation was for the judiciary to play a critical role, especially in checking the other branches, the better to reign in excess power and safeguard fundamental rights.

Militant Democracy and Fundamental Rights, I

1937 ◽  
Vol 31 (3) ◽  
pp. 417-432 ◽  
Author(s):  
Karl Loewenstein
Keyword(s):  
French Revolution ◽  
Fundamental Rights ◽  
Political Organization ◽  
Constitutional Government ◽  
History Of ◽  
The One ◽  
The Individual ◽  
The French Revolution

Fascism a World Movement. Fascism is no longer an isolated incident in the individual history of a few countries. It has developed into a universal movement which in its seemingly irresistible surge is comparable to the rising of European liberalism against absolutism after the French Revolution. In one form or another, it covers today more areas and peoples in Europe and elsewhere than are still faithful to constitutional government. Fascism's pattern of political organization presents a variety of shades. One-party-controlled dictatorships rule outright in Italy, Germany, Turkey, and, if Franco wins, also Spain. The so-called “authoritarian” states may be classified as belonging to the one-party or multiple-party type. To the one-party authoritarian group, without genuine representative institutions, adhere at present Austria, Bulgaria, Greece, and Portugal; while Hungary, Rumania, Yugoslavia, Latvia, and Lithuania may be classed together as authoritarian states of the multiple-party type, with a semblance of parliamentary institutions.

scholarly journals Name & sign: About Zaharija Orfelin’s pseudonym

2016 ◽  
pp. 75-87
Author(s):  
Vladimir Simic
Keyword(s):  
Early Modern ◽  
Intellectual History ◽  
Historical Context ◽  
Early Modern Period ◽  
General Characteristic ◽  
Name Change ◽  
Modern Period ◽  
Historical Figure ◽  
History Of ◽  
The Individual

The problem of representation of intellectuals and artists in the early modern period has long occupied historians and researchers of various disciplines. One of the forms of artistic expression of intellectual self-consciousness was creation of pseudonyms. That was the metaphorical way of deliberation of individual identity, but also a signifier of cultural processes that took place between self, creativity and historical context. Onomastic studies had a long tradition and pre-modern intellectuals very early accepted idea that name reveals the essence of things and indicates the character of its wearer. The name was considered as a strong denotative force, which could affect private or public life of an individual. That was further confirmed in the manual of Adrien Baillet Auteurs Deguisez Sous Des Etrangers Noms published in 1690, for all those who wanted to create an alias. Zaharija Orfelin (1726-1785), as one of the early Serbian intellectuals and artists of the Enlightenment, also rejected his last name which remained unknown to date. Only one uncertain explanation was provided and that by Metropolitan Stefan Stratimirovic which stated that Zaharija?s last name was ?Stefanovic?, and that he himself invented the pseudonym ?Orfelin?. In the lack of other sources that thesis was accepted, but never did explain the motives behind the act. That aspect of his artistic personality remained unsolved, so this paper analyze the individual circumstances of his life in the context of onomastic and intellectual history of the early modern period. The invention of pseudonyms was recognized as a general characteristic of the era, so the comparisons and analogies of some biographical details are made between him and few other intellectuals and artists. Signatures that Orfelin put on his pieces are interpreted in the context of his public representation. From today?s perspective, it seems that Orfelins? historical figure stayed hidden behind the personality which was introduced by his chosen name. In that context, the name change referred to deeper internal changes in matters of his identity and public role.

scholarly journals THE BRAZILIAN JUDICIARY AS AN ORGAN OF POLITICAL CONTROL

2018 ◽  
Vol 2 (2) ◽  
pp. 15-32
Author(s):  
Ada Pellegrini Grinover ◽  
Grasielly Spínola
Keyword(s):  
Separation Of Powers ◽  
Public Policies ◽  
Class Action ◽  
Fundamental Rights ◽  
Great Effort ◽  
The Public ◽  
Autistic People ◽  
Individual Actions ◽  
Jurisdictional Control ◽  
The Individual

The fruition of fundamental rights like healthcare, education, worthy housing and work is directly related to the creation and implantation of universal and egalitarian public policies by the Congress and the Public Administration. In the cases where the existing public policies are shown to be insufficient, inadequate or do not achieve the fundamental goals of the Federative Republic of Brazil, it arises the need of the action of the jurisdictional function to control the constitutionality over these public policies. In Brazil, this control is made both by direct way, by means of its own constitutional actions, and by diffuse way, by means of collective actions interposed in first instances courts. In this context, the enforcement of the liberal theories like Montesquieu’s Separation of Powers and the Intangibility of the Discretionary Activities reveal themselves incoherent with the Democratic Rule-of-the-Law State. In another way, the jurisdictional action is limited by the Reasonableness, by the Possible Reserve and by the Existential Minimum, and can also find some obstacles in the individual actions that end up influencing the public policies. Therefore, there is a great effort to colectivizing individual actions by Brazilian schoolars. Another problem is the difficulty of Judical Power in using the adequate procedural class action. It will be analyzed one specific decisions made by the Court of Justice of the State of São Paulo about the jurisdictional control of public policies related to the autistic people, with a goal to point out a direction to the improvement of the jurisdictional tutelage in terms of effectiveness and adequacy.

scholarly journals LA DIVISIÓN DE PODERES EN EL PERÚ: LO UNO Y LAS FUNCIONES DEL ESTADO

2014 ◽  
Vol 16 (01) ◽  
Author(s):  
MICHAEL ESPINOZA COILA
Keyword(s):  
Separation Of Powers ◽  
The State ◽  
Functional Theory ◽  
Division Of Powers ◽  
Conditional Control ◽  
Constitutional State ◽  
Palabras Clave ◽  
Functionalist Theory ◽  
The Individual ◽  
State Functions

<h4 class="text-primary">Resumen</h4><p style="text-align: justify;">La presente investigación, mediante el método jurídico, analítico - sinteticoy el empleo de fichas textuales, se aproxima a la teoría de división de poderes y como contraparte la teoría funcional del Estado, la primera asume una concepción trinitaria del Estado (una sustancia y tres poderes: el ejecutivo, legislativo y judicial), la segunda concibe un Estado unitario (una sustancia, un poder). Considero que el Estado Peruano, aparenta decantar por una división de poderes, cuando es patente que no asume ninguna de los dos teorías, en consecuencia presenta poderes relativos que comparten funciones, con necesidad relativa y control condicionado, sin fidelidad de funciones, lo cual denomino Estado Constitucional Simbólico, finalmente propongo una estructura básica y funcional del Estado que responde al Estado Constitucional de Derecho conforme a la teoría funcional, que se sustenta en la necesidad, el control reciproco y la fidelidad de funciones.</p><p style="text-align: justify;"><strong>PALABRAS CLAVE: </strong>* Estado * poder * órgano * función * autoridad</p><h4 class="text-primary">ABSTRACT</h4><p><strong>THE DIVISION OF POWERS IN PERU: THE INDIVIDUAL AND STATE FUNCTIONS</strong></p><p style="text-align: justify;">This investigation is carried out using analytic-synthetic distinction and the judicial method, combined with the use of textual records. It approaches the separation of powers doctrine and its counterpart, functionalist theory. The first assumes a Trinitarian conception of the state (three branches: the executive, legislative and judicial); the second conceives a unitary state (one power). I believe that the Peruvian government appears inclined to a division of powers, while in reality it does not assume any of the two theories. In consequence the state exercises relative powers that share functions of relative necessity and conditional control, without loyalty between functions. I call this a «Symbolic Constitutional State». Finally I propose a basic and functional state structure that corresponds to the Constitutional rule of law according to functional theory, which is based on necessity, reciprocal control and loyalty between functions.</p><p style="text-align: justify;"><strong>KEY WORDS: </strong>* State * power * organism * function * authority</p>

scholarly journals Fundamental rights and religion: The space between Cathedral and Parliament

2015 ◽  
Vol 71 (1) ◽  
Author(s):  
Cilliers Breytenbach
Keyword(s):  
South Africa ◽  
Fundamental Rights ◽  
Religious Communities ◽  
Bill Of Rights ◽  
Common Concern ◽  
Basic Rights ◽  
The People ◽  
History Of ◽  
The Common ◽  
The Individual

This history of exclusion from basic rights in South Africa until fundamental rights of every individual were entrenched in the constitution illustrates that respect for sanctity of every person is the basis of the freedom of all the people of South Africa and that all religious communities should protect the Bill of Rights. Neither confessional nor denominational considerations should be put to the fore; the focus should fall instead on the common concern of all religions for the sanctity of the individual.

Paul and Political Critique: Liberalism, Ontology, and the Pauline Community

2017 ◽  
Vol 25 (4-5) ◽  
pp. 591-608
Author(s):  
Taylor Weaver
Keyword(s):  
Final Section ◽  
Thomas Hobbes ◽  
Recent History ◽  
Current Debate ◽  
Political Critique ◽  
History Of ◽  
Sustained Effort ◽  
Conceptual Problems ◽  
The Individual

While Paul has been used as a source for philosophy and politics in recent decades, his thoughts on community have not been well represented; nor has there been a sustained effort to bring together sophisticated debates on the community-individualism problem with Pauline communitarian thought. In light of the recent history of Paul in philosophy, the intention of this essay is to test the waters of interactivity through exploring how Paul’s communal activity and writing allows for thinking through contemporary political philosophical problems inherent in the concept of community, a problem that forms partially around notions of individuality and how communitarian or collectivistic sensibilities arrange the individual. The essay first points to a form of community found in Thomas Hobbes that is fraught with conceptual problems, before moving to an obverse conception of community found in Paul. The final section points to contemporary theorisations of community found in the work of Roberto Esposito and Jean-Luc Nancy, showing how they connect and help provide conceptual vocabulary to the Pauline motifs shown earlier, while also borrowing from the work of Paul. This points to the possibility for using Paulinist motifs in the current debate about community.


scholarly journals THE BRAZILIAN JUDICIARY AS AN ORGAN OF POLITICAL CONTROL

2018 ◽  
Vol 2 (2) ◽  
pp. 15-32
Author(s):  
Ada Pellegrini Grinover ◽  
Grasielly Spínola
Keyword(s):  
Separation Of Powers ◽  
Public Policies ◽  
Class Action ◽  
Fundamental Rights ◽  
Great Effort ◽  
The Public ◽  
Autistic People ◽  
Individual Actions ◽  
Jurisdictional Control ◽  
The Individual

The fruition of fundamental rights like healthcare, education, worthy housing and work is directly related to the creation and implantation of universal and egalitarian public policies by the Congress and the Public Administration. In the cases where the existing public policies are shown to be insufficient, inadequate or do not achieve the fundamental goals of the Federative Republic of Brazil, it arises the need of the action of the jurisdictional function to control the constitutionality over these public policies. In Brazil, this control is made both by direct way, by means of its own constitutional actions, and by diffuse way, by means of collective actions interposed in first instances courts. In this context, the enforcement of the liberal theories like Montesquieu’s Separation of Powers and the Intangibility of the Discretionary Activities reveal themselves incoherent with the Democratic Rule-of-the-Law State. In another way, the jurisdictional action is limited by the Reasonableness, by the Possible Reserve and by the Existential Minimum, and can also find some obstacles in the individual actions that end up influencing the public policies. Therefore, there is a great effort to colectivizing individual actions by Brazilian schoolars. Another problem is the difficulty of Judical Power in using the adequate procedural class action. It will be analyzed one specific decisions made by the Court of Justice of the State of São Paulo about the jurisdictional control of public policies related to the autistic people, with a goal to point out a direction to the improvement of the jurisdictional tutelage in terms of effectiveness and adequacy.

scholarly journals THE BRAZILIAN JUDICIARY AS AN ORGAN OF POLITICAL CONTROL

2018 ◽  
Vol 2 (2) ◽  
pp. 15-32
Author(s):  
Ada Pellegrini Grinover ◽  
Grasielly Spínola
Keyword(s):  
Separation Of Powers ◽  
Public Policies ◽  
Class Action ◽  
Fundamental Rights ◽  
Great Effort ◽  
The Public ◽  
Autistic People ◽  
Individual Actions ◽  
Jurisdictional Control ◽  
The Individual

The fruition of fundamental rights like healthcare, education, worthy housing and work is directly related to the creation and implantation of universal and egalitarian public policies by the Congress and the Public Administration. In the cases where the existing public policies are shown to be insufficient, inadequate or do not achieve the fundamental goals of the Federative Republic of Brazil, it arises the need of the action of the jurisdictional function to control the constitutionality over these public policies. In Brazil, this control is made both by direct way, by means of its own constitutional actions, and by diffuse way, by means of collective actions interposed in first instances courts. In this context, the enforcement of the liberal theories like Montesquieu’s Separation of Powers and the Intangibility of the Discretionary Activities reveal themselves incoherent with the Democratic Rule-of-the-Law State. In another way, the jurisdictional action is limited by the Reasonableness, by the Possible Reserve and by the Existential Minimum, and can also find some obstacles in the individual actions that end up influencing the public policies. Therefore, there is a great effort to colectivizing individual actions by Brazilian schoolars. Another problem is the difficulty of Judical Power in using the adequate procedural class action. It will be analyzed one specific decisions made by the Court of Justice of the State of São Paulo about the jurisdictional control of public policies related to the autistic people, with a goal to point out a direction to the improvement of the jurisdictional tutelage in terms of effectiveness and adequacy.

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