Ownership and Eviction: Constitutional Rights in Private Law

2005 ◽  
Vol 9 (1) ◽  
pp. 32-64
Author(s):  
A J van der Walt
Keyword(s):  
Private Law ◽  
Constitutional Rights

Canada’s Constitution and Courts

2018 ◽  
Author(s):  
Jud Mathews
Keyword(s):  
Supreme Court ◽  
Private Law ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
Provincial Autonomy

This chapter explores the development of Canadian constitutionalism leading up to judicial engagement with the horizontal effect of rights. The Supreme Court of Canada already enjoyed an exceptionally broad jurisdiction when the enactment of the Charter of Rights and Freedoms in 1982 gave it an extensive set of constitutional rights to interpret. At the same time, the very breadth of the Court’s formal powers was a reason to use them carefully, especially because the Charter triggered anxieties about federalism among many advocates for provincial autonomy. This chapter shows how, in this context, the Supreme Court of Canada had little to gain from announcing a far-reaching constitutionalization of private law.

Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law

2006 ◽  
Vol 7 (4) ◽  
pp. 341-369 ◽  
Author(s):  
Mattias Kumm
Keyword(s):  
Political Parties ◽  
Liberal Democracy ◽  
State Intervention ◽  
Political Mobilization ◽  
Carl Schmitt ◽  
Private Law ◽  
Constitutional Rights ◽  
The Public ◽  
Total Prevalence ◽  
Total State

In 1931 Carl Schmitt published an article titled “the turn to the total state.” The total state that Schmitt describes is not yet a totalitarian state. Germany is still a liberal democracy and the Weimar Constitution is still the supreme law of the land. But the total state Schmitt describes is a state in which the traditional lines between the sphere in which the private law society governs itself and the sphere of state intervention, or the public domain, have been undermined. According to Schmitt, the pluralistic forces of civil society have captured the state and made it an instrument to serve their purposes. Everything is up for grabs politically. It is a state of political mobilization and deep ideological conflict, reflected in the plurality of deeply divided political parties in parliament. It is possible to distinguish between three features, which together illustrate the total prevalence of politics over law underlying “the turn to the total state.”

Remarks on the philosophy and politics of public law

Legal Studies ◽  
1998 ◽  
Vol 18 (2) ◽  
pp. 177-187 ◽  
Author(s):  
Günter Frankenberg
Keyword(s):  
Public Law ◽  
The State ◽  
Law Students ◽  
Private Law ◽  
Constitutional Rights ◽  
Scientific Interest ◽  
The Public ◽  
Administrative Courts

To this very day, public law scholars seem to be concerned about the identity of their area of scientific interest. Many of them in many European legal cultures routinely labour, some even agonise over distinguishing public law from what appears to be a securely established field of private law. More than 20 years ago, 20 to 30 variations of the public/private-theme, usually elevated to the rank of ‘theories’, could be counted in German scholarship alone, none of them satisfying the desire to clarify, once and for all, the nature, purpose, and scope of public law.In this vein, law students are required to discuss at least the major demarcation theories so as, for instance, to establish jurisdiction of administrative courts, liability of the state, or the scope of constitutional rights.

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