scholarly journals Towards a New Justificatory Theory of Comparative Constitutional Law

2015 ◽  
Vol 1 (1) ◽  
pp. 90-117
Author(s):  
Santiago Legarre
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
Supreme Court ◽  
Natural Law ◽  
Constitutional Law ◽  
Case Law ◽  
Legal Practice ◽  
The Us ◽  
Us Supreme Court ◽  
Comparative Constitutional Law

This paper tries to explain what comparative constitutional law is and takes the US legal practice as an example. The presence of comparative analysis is considered both in the academic arena and in the case law of the US Supreme Court. The conclusion of this part of the article is that for comparative constitutional law to be valid its role ought to be restricted by several constraints. The article also suggests that the comparative enterprise only makes sense if the universality of human rights is first acknowledged. The paper next delves into such universality and connects it with notions of new classical natural law that are considered essential in order to adequately understand the problem. Finally, it provides an example of the misuse of comparative constitutionalism.

Insult of Public Officials

2021 ◽  
pp. 388-409
Author(s):  
Christoph Bezemek
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
The United States ◽  
Public Officials ◽  
European Court ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
Structural Differences

This chapter assesses public insult, looking at the closely related question of ‘fighting words’ and the Supreme Court of the United States’ decision in Chaplinsky v New Hampshire. While Chaplinsky’s ‘fighting words’ exception has withered in the United States, it had found a home in Europe where insult laws are widely accepted both by the European Court of Human Rights and in domestic jurisdictions. However, the approach of the European Court is structurally different, turning not on a narrowly defined categorical exception but upon case-by-case proportionality analysis of a kind that the US Supreme Court would eschew. Considering the question of insult to public officials, the chapter focuses again on structural differences in doctrine. Expanding the focus to include the Inter-American Court of Human Rights (IACtHR) and the African Court on Human and Peoples’ Rights (ACtHPR), it shows that each proceeds on a rather different conception of ‘public figure’.

scholarly journals Litigation Dilemmas: Lessons from the Marcos Human Rights Class Action

2017 ◽  
Vol 42 (02) ◽  
pp. 479-508
Author(s):  
Nate Ela
Keyword(s):  
Human Rights ◽  
Social Movement ◽  
Supreme Court ◽  
Analytical Framework ◽  
Class Action ◽  
Legal Mobilization ◽  
The Us ◽  
Us Supreme Court ◽  
The Impact ◽  
Alien Tort Statute

How do activist plaintiffs experience the process of human rights litigation under the Alien Tort Statute (ATS)? Answering this question is key to understanding the impact on transnational legal mobilization of Kiobel v. Royal Dutch Petroleum Co., in which the US Supreme Court sharply limited the scope of the ATS. Yet sociolegal scholars know remarkably little about the experiences of ATS litigants, before or after Kiobel. This article describes how activist litigants in a landmark ATS class action against former Philippine President Ferdinand Marcos faced a series of strategic dilemmas, and how disagreements over how to resolve those dilemmas played into divisions between activists and organizations on the Philippine left. The article develops an analytical framework focused on litigation dilemmas to explain how and why activists who pursue ATS litigation as an opportunity for legal mobilization may also encounter strategic dilemmas that contribute to dissension within a social movement.

scholarly journals Vėliava – Flag – Drapeau, arba Ir vėl apie žmogaus teises

Teisė ◽  
2012 ◽  
Vol 83 ◽  
pp. 18-36 ◽  
Author(s):  
Gediminas Mesonis
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Legal Status ◽  
Freedom Of Speech ◽  
Legal Regulation ◽  
Human Right ◽  
Liberal Conception ◽  
The Us ◽  
Us Supreme Court ◽  
Anglo American

Straipsnyje analizuojama, kokią reikšmę turi skirtingos koncepcijos atskleidžiant konkrečios žmogaus teisės turinį. Konstatuojama, kad net „Vakarų“ demokratinėse valstybėse sprendžiant dėl žmogaus teisių turinio nuolat konkuruoja individualistinis ir traibalistinis požiūris į žmogaus teises. Esama koncepcijų dichotomija šiame straipsnyje iliustruojama žodžio laisvės turinio raidos kontekste. Straipsnyje į šios teisės turinio raidą žvelgiama per valstybės vėliavos teisinį statusą, analizuojant Jungtinių Amerikos Valstijų Aukščiausiojo Teismo jurisprudencijos ir kitų šalių teisinio reguliavimo patirtį. Konstatuojama, kad anglų–amerikiečių (liberalioji) žmogaus teisių ir laisvių koncepcija, spręsdama žmogaus teisės turinio problemą, prioritetą linkusi atiduoti konkretaus asmens, o ne grupės interesui.The article analyses the significance of different conceptions in disclosing the content of a concrete human right. It is stated that even in “western” democratic states, when one decides regarding the content of human rights, there is continuous competition between the individualistic and tribalistic approach to human rights. The existing dichotomy of these conceptions is illustrated in the context of the development of the content of freedom of speech. In the article the development of the content of this right is considered through the legal status of the flag, while analysing the experience of the jurisprudence of the US Supreme Court and that of legal regulation of other countries. It is stated that the Anglo-American (liberal) conception of human rights, while deciding the issue of the content of a human right, tends to give priority to the interest of a concrete person, but not that of a group.

Novelty in ECtHR Case Law on Torture, But It Is Not Enough—Reopening Domestic Proceedings to End Impunity

2017 ◽  
Author(s):  
Giuliana Ziccardi Capaldo
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Criminal Proceedings ◽  
Full Effect ◽  
Unitary Approach ◽  
Jus Cogens ◽  
Evolutionary Interpretation

This editorial focuses on the violation of the jus cogens principle of non-impunity for acts of torture as occurred in the Cestaro v. Italy case, where the perpetrators went unpunished due to the statute of limitations. The Italian Supreme Court failed to apply this principle of global constitutional law. Nor did the ECtHR implement effective remedies against impunity. The author proposes reopening time-barred criminal proceedings as a useful tool against impunity to give full effect to ECtHR jurisprudence supporting the generally recognized principle of the non-applicability of statutory limitations to crimes against humanity.She stresses the need to enhance the effectiveness of the supervisory role of the ECtHR in ensuring the observance of jus cogens human rights principles—of which the ECHR “forms part”—through a unitary approach of courts to the fight against impunity based on an evolutionary interpretation of the Convention, which would provide more effective and integrated protection of such rights.

Your Good Name

Liars ◽  
2021 ◽  
pp. 89-105
Author(s):  
Cass R. Sunstein
Keyword(s):  
Supreme Court ◽  
Free Speech ◽  
Constitutional Law ◽  
Breathing Space ◽  
The Us ◽  
Us Supreme Court ◽  
The Law ◽  
Modern Era ◽  
Do So

Can people protect their reputations? What if someone is circulating vicious lies about them? The US Supreme Court has given broad protection to libelous statements, saying that it must do so in order to allow “breathing space” for free speech. That idea is a cornerstone of the law of free speech. But in the modern era, and in light of the potentially devastating effects of falsehoods on individual lives and democracy itself, constitutional law should be updated. People should be allowed to demand retractions when they have been libeled, and they should also be able to obtain at least a modest amount of compensation. Much more needs to be done to allow people to protect their good name.

The Use and Abuse of Definitions in Constitutional Law

ICL Journal ◽  
2015 ◽  
Vol 9 (4) ◽  
Author(s):  
Alec Walen
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Same Sex ◽  
Same Sex Couples ◽  
The Us ◽  
Us Supreme Court ◽  
Constitutional Right ◽  
Definition Of ◽  
The Right ◽  
Constitutional Meaning

AbstractJustice Roberts′s dissent in Obergefell v Hodges - the case in which the US Supreme Court found a constitutional right for same sex couples to marry - rested on the premise the Court cannot invoke the right to marry as a basis for changing the definition of marriage. But his argument works only if the Court has no obligation to find a constitutional meaning for the term. I argue here that it has such an obligation. I argue further that an analogy with the concept of ‘person’ throws light on how that obligation should work. And finally, I argue that the most plausible constitutional definition would include same sex couples.

Defamation: Dignity Lost?

1998 ◽  
Vol 16 (3) ◽  
pp. 261-285
Author(s):  
Eleni Micha
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Interesting Case ◽  
The Us ◽  
Us Supreme Court ◽  
Protection Of Human Rights ◽  
The Subject ◽  
Similarities And Differences ◽  
Widespread Interest

Political libel cases always present a widespread interest due to the eventual conflict between freedom of expression and respect of personal reputation. Inasmuch as both principles are equally safeguarded in the area of the protection of human rights, one might ask how to achieve a balance of the different interests. What are the relevant criteria and what is the level of liability required for the award of damages? This article is an effort to review and analyse the solutions provided by the US Supreme Court, the European Commission and Court of Human Rights and Greek jurisprudence, since all three have already established an interesting case-law. The author examines the similarities and differences between the American and the European legal thought and presents her own argumentation on the subject. In addition, it is discussed if and how the Greek law is influenced by the Strasbourg case-law, since the Greek Constitution in itself recognises the supremacy of the ECHR.

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