Constitutional Law

In this article, I analyse the legal practice of Finnish legislative emergency preparation and its principles. In approaching the principles of legislative emergency preparation, a distinction is made between the role that law takes in promoting the resilience of society and the resilience of the legal system itself. By differentiating societal and legal resilience, the article approaches legislative emergency preparation as something that includes both forms of resilience and objectives specific to them. My research question concerns how recent Finnish legislation (...) on responding and preventing hybrid threats affects the balance between these two types of objectives. To approach this phenomenon, I define two temporal principles of emergency governance: the temporal limits of the state of emergency and the temporal distinctiveness of the state of normalcy and emergency. I argue that recent legislation, in which concerns of societal resilience tend to enjoy preference, contradict these two temporal principles. (shrink)

I discuss issues with what I see as a gender-neutral, cis-centric conception of gender equality that has come to dominate U.S. law, focusing on the law’s systematic failure to protect incarcerated trans women’s health and bodily integrity.

At a House hearing on December 5, 2023, the presidents of three universities—Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both of them were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many (...) private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by aggressive, threatening, or violent conduct. -/- These “demotions” augur even worse consequences, including termination, for less powerful faculty who say the “wrong” thing, in particular statements in support of Trumpism, an increasingly mainstream ideology that stitches together white supremacy, misogyny, a preference for autocracy over democracy, and several phobias—homophobia, Islamophobia, transphobia, and xenophobia. The question I address in this paper is whether these consequences are constitutional at public schools. Whose right is stronger—a public-school teacher’s First Amendment right to express pro-Trumpist sentiments or a public school’s right to maintain a fair, inclusive, and welcoming learning environment? In this article, I argue that the public school has the upper hand here, that it is indeed constitutionally permitted to prohibit political hate speech that contributes to a hostile learning environment. Still, I narrowly limit this prohibition to dehumanizing speech—that is, speech explicitly suggesting that some human beings are “lesser”, intrinsically less valuable, than other human beings. -/- One objection to this position is that public schools may not prohibit any speech, no matter how dehumanizing, because such prohibition amounts to constitutionally impermissible viewpoint discrimination. I argue, however, that viewpoint discrimination is an integral part of education and therefore constitutionally permissible. Education necessarily involves promoting some values over others. These values fall into seven categories: constitutional principles, the humanist virtues, successful character traits and behaviors, knowledge and truth, art and beauty, health (both mental and physical), and social goods (such as justice, peace, and rule of law). (shrink)

This paper examines the debate on AI legal personhood, emphasizing the role of path dependencies in shaping current trajectories and prospects. Three primary path dependencies emerge: prevailing legal theories on personhood (singularist vs. clustered), the actual participation of AI in socio-digital institutions (instrumental vs. non-instrumental), and the impact of technological advancements. We argue that these factors dynamically interact, with technological optimism fostering broader attribution of the legal entitlements to AI entities and periods of scepticism narrowing such entitlements. Additional influences include (...) regulatory cross-linkages (e.g., data privacy, liability, cybersecurity) and historical legal precedents. Current regulatory frameworks, particularly in the EU, generally resist extending legal personhood to AI systems. Case law suggests that without explicit legislation, courts are unlikely to grant AI legal personhood on their own, although some authors suggest that the courts can do so. For this to happen, AI systems would first need to prove de facto legitimacy through sustained participation within socio-digital institutions. The chapter concludes by assessing near- and long-term prospects for legal personification, from generative AI and AI agents in the next 5–20 years to transformative possibilities such as AI integration with human cognition via Brain-Machine Interfaces in a more distant future. (shrink)

Malevolent Legalities draws upon archival research conducted at the Scalia Papers at the Harvard Law School Historical and Special Collections to examine the influence of Justice Antonin Scalia’s judicial philosophy of “textualist-originalism” on the US Supreme Court’s antidiscrimination jurisprudence. The book focuses on six US Supreme Court cases, organized into two parts. The main argument of the book, grounded in archival and legal materials, is that textualist-originalism makes it lawful for discrimination to be performed through the text, and explicitly seeks (...) to prevent progress by enacting a regime of “static law.” -/- In Shelby County v. Holder (2013), Justice Ginsburg remarked that discrimination today behaves like the Hydra, the many-headed serpent in Ancient Greek mythology which regenerates each time its head is severed. The analysis of archival and legal materials is therefore prefaced by the development of a unique methodology for studying discrimination called discriminatology, understood as a framework for analyzing how discrimination persists through time, is performed through the text, and is a product of the manipulation of legal speech. In this way, Malevolent Legalities approaches the study of textualist-originalism as itself a vehicle for discrimination performed mala fide or “in bad faith.”. (shrink)

This paper presents a new version of the democratic argument for the freedom of expression that has the resources to give a plausible reply to the perennial objection—ordinarily considered fatal—that such accounts fail to deliver protections for abstract art, instrumental music, and lots of other deserving nonpolitical speech. The argument begins with the observation that there are different things that a free speech theory might aim to accomplish. It will hope to justify a right to free speech, of course, with (...) a particular scope and shape, but that right might be a moral right, an ordinary legal right, or a specifically constitutional right. The new version of the argument—the refined argument from democracy—aims to justify a specifically constitutional right to political speech, administered by strong-form judicial review. The democracy theorist can accommodate the intuition that abstract art deserves protection by agreeing that we have a moral right, and probably ought to have an ordinary legal right, to produce and view abstract art. She must only insist that abstract art should not be protected by a specifically constitutional right administered by strong-form judicial review. Not because abstract art does not deserve constitutional protection, but because, on this view, whether a particular right ought to be enshrined in the constitution and administered by judicial review is not solely a matter of the importance of the right or the value of the interests it protects. (shrink)

Who should decide who gets to say what on online social media platforms like Facebook, Twitter, and YouTube? American legal scholars have often thought that the private owners of these platforms should decide, in part because such an arrangement is thought to serve valuable free speech interests. This standard view has come under pressure with the enactment of statutes like Texas House Bill 20, which forbids certain platforms from “censoring” user content based on viewpoint. Such efforts to regulate the speech (...) policies of online platforms have been challenged for undermining the editorial speech rights of these platforms and allowing the proliferation of hate speech. This Article develops a democratic theory of free speech, according to which one of the most important reasons for protecting robust free speech rights is that free speech can contribute not only to democratic elections but to a democratic culture more generally. To achieve robust cultural democracy, a community’s speech environment must enable people not only to rationally persuade one another about matters of public importance and convey mutual respect to one another as political equals but also allow people to influence each other in a less articulate and rational manner—to “democratically vibe” with one another. This theory yields a qualified normative defense of government regulation of the speech policies of large social media platforms that can help to realize cultural democracy, suggesting that First Amendment doctrine should focus to a greater extent on protecting the speech rights of platform users, rather than platform owners. Although far from a ringing endorsement of H.B. 20 or S.B. 7072, this Article suggests that First Amendment law should be friendlier to state regulation of platform speech than many critics have thought. (shrink)

The ongoing digital transformation of almost all areas of human action and agency calls for a readjustment of the norms that regulate these practices. For example, the digitisation of communicative practices poses new challenges to their functioning. This paper explains some of these challenges and argues that they cannot be met by a normative framework that focuses mainly on defensive (free speech and property) rights. In the context of mediated digital communication, the application of such a framework may even have (...) paradoxical consequences. Accordingly, this paper argues for a broader system of communicative rights, understood as rights to meaningful participation in well-functioning communicative practices. (shrink)

The 2024 Global Religious Recognition Report is a compilation of the most recent available data on recognition and registration impacting conditions of religious freedom throughout the world. Each page of the 259-page report is dedicated to each sovereign state and dependent or disputed territory, including an overview of the constitutional structure, secularity and recognition and registration policies and practices. Detailed explanations of registration policy have been gathered from the Office of International Religious Freedom's International Religious Freedom Report in addition to (...) other credible sources. The RoRB classification for each country and territory has been updated in accordance with the criteria set out in the Spectrum of Religious Recognition (SRR) which was included towards the front of this year's report. This year's report includes an abridged version of Dr Monica Gyimah's article (the full article can be found in Journal of Astronist Studies Volume 1 Issue 1) that highlights recognition and registration issues specifically impacting indigenous religious communities. (shrink)

This book aims to distil the essentials of liberal constitutionalism from the jurisprudence and practice of contemporary liberal-democratic states. It argues that the model liberal-democratic constitution is best understood as a unity of three constitutional frameworks: libertarian, egalitarian, and communitarian. When viewed in this light, the liberal constitution embodies a surprising synthesis. It reconciles a commitment to individual liberty and freedom of conscience with the perfectionist idea that the state ought to cultivate a type of personality whose fundamental ends are (...) the goods essential to dignity. (shrink)

In 303 Creative LLC v. Elenis, a web designer sought a legal right to refuse to make wedding websites for same-sex couples while making wedding websites for other couples as a service provided by her business open to the public. The web designer also sought a legal right to post a notice on her business webpage stating that she would refuse to provide such services for same-sex couples’ weddings. Here, I argue that 303 Creative marks a fairly radical break from (...) previous legal cases dealing with whether service providers have the legal right to deny services for same-sex weddings. This is because, if we take the web designer at her word, the web designer appears to have sought these legal rights, in significant part, in order to use an act of commercial discrimination as an act of religious message sending. In support of this conclusion, I argue that acts of selective commercial service constitute the primary means by which the web designer sought to promote her preferred religious messages and that these acts of selective commercial service are acts of discrimination. I also discuss some of the significance of this case for religion and politics in the United States. (shrink)

Orwell’s views on the nature of free speech are significantly more complex than is often recognized. This paper examines what he had to say about freedom of speech and intellectual freedom. It seeks to provide a philosophical analysis of his understanding and use of these concepts and to address some apparent tensions in his thought. In so doing, the paper identifies five dominant aspects of Orwell’s account of free speech. He viewed free speech as closely related to intellectual freedom, which (...) he highly valued; he treated free speech as primarily about the ability to say what one believes to be true; he thought that both government and various kinds of private actors posed serious threats to free speech; he believed that free speech required social safeguards, in addition to legal protection; and he recognized that free speech was a right with limits. He wrote little about the freedom of speech for liars. The paper concludes with the observation that he, therefore, left us with a number of crucial questions to discuss and think about for ourselves. (shrink)

In 'Sociocybernetics and Political Theory in a Complex World', Roberto Mancilla posits that because current political and constitutional theory was crafted since the XVII century, in the age of globalisation, Google and Big Data, other arrangements are needed. He proposes a recasting of the ideas of the State, Separation of Powers, The Public/Private Distinction and Constitutionalism by means of cybernetics, a body of knowledge that gave way to the technology that we have today. This will be done by means of (...) a general introduction to sociocybernetics and complexity and then through the critical dismantling of said concepts of political theory and then proposals imbued with newer ideas. (shrink)

This paper is about when associations, and in particular associations that are part of the state, should be treated as legal persons. I distinguish two forms of association – those that render coherent the agency of their members and those that are group agents – and argue that only the latter should be treated as persons. Following this, I discuss the conditions under which associations that are part of the state can legitimately be group agents.

How should we make sense of pregnancy discrimination as an issue of gender equality? In a striking 1974 decision, Geduldig v. Aiello, the U.S. Supreme Court has answered that we simply cannot. Pregnancy discrimination does not constitute a form of sex discrimination prohibited by law, the 6–3 decision claims, because differential treatment based on pregnancy draws only a gender-neutral line between “pregnant women” and “nonpregnant persons,” not the gender line between women and men. While courts have since invoked Geduldig to (...) curtail both reproductive and transgender rights, the prevailing feminist response to this line of cases is still to double down on an awkwardly cissexist conception of gender, finding the sex discrimination in the “direct” way that pregnancy is thought to connect to womanhood. The failure of that prevailing feminist response, legitimizing rather than challenging biological essentialism in legal analysis and public discourse, epitomizes a broader failure of feminist analysis and intersectional solidarity: it fails to confront the political and social problem that is pregnancy discrimination for either cis or trans people. This essay offers a trans feminist alternative. I argue that pregnancy discrimination is discrimination on the basis of sex, within the legally relevant meaning of that phrase, not because pregnancy is in one way or another distinctive to women as a gender category but because pregnant persons make up a gender category of their own. On my analysis, pregnancy discrimination comes out as a form of sex discrimination directly and immediately, not by way of womanhood. (shrink)

I. Einleitung -/- II. Das ontologische Kriterium: Meinungen und Tatsachen fallen in distinkte ontologische Kategorien. -/- III. Auf die Klassifikation der Äußerungstypen abstellende Kriterien 1. Meinungsäußerungen sind nicht wahrheitsfähig. 2. Meinungsäußerungen sind keinem Beweis zugänglich. 3. Meinungsäußerungen sind Aussagen mit abgeschwächtem Geltungsanspruch. 4. Meinungsäußerungen sind Werturteile. 5. Meinungsäußerungen zeichnen sich durch das Element des Dafürhaltens und der eigenen Stellungnahme des Sprechers aus. 6. Meinungsäußerungen messen etwas an einem vom Äußernden selbst gewählten Maßstab. 7. Meinungsäußerungen werden anders rezipiert und kognitiv prozessiert (...) als Tatsachenbehauptungen. -/- IV. Auf den Schutzzweck des Grundrechts abstellende Kriterien 1. Für eine Meinungsäußerung muss der Sprecher keine Begründung angeben (können). 2. Geschützt ist der Prozess der autonomen Meinungsbildung, der bei Tatsachenbehauptungen nicht aktiviert wird. 3. Meinungsäußerungen zielen darauf ab, andere zu beeinflussen und damit einen Beitrag zur Meinungsbildung zu leisten. 4. Nicht als Meinungsäußerungen geschützt sind erwiesen unwahre Tatsachenbehauptungen. 5. Nicht als Meinungsäußerungen geschützt sind bewusst unwahre Tatsachenbehauptungen. -/- V. Fazit . (shrink)

Mandatory reporting laws are one of the main tools that governments in the US use to curb abuse. While clergy have historically been exempted from these laws, this privilege has increasingly come under fire. This essay argues a certain degree of clergy privilege is warranted. Specifically, it argues three main points. First, laws that require every adult to report credible evidence of abuse are problematic and ought to be repealed. Second, if religion is special, there should be widespread exemptions for (...) clergy from mandatory reporting laws. Third, if religion is not special, confessors should still be exempt from mandatory reporting laws. One of the upshots of this essay is that, regardless of whether religion is special, confessors should not be obligated to report abuse heard in the confessional. (shrink)

This Article addresses the question of what limits, if any, freedom of speech would place on holding authors liable for the reputational damage they cause with fiction. By “freedom of speech” I am not referring to the First Amendment but rather to one conception of the moral idea underlying it. According to this conception, the limits that freedom of speech places on the scope of authors’ liability for causing false and defamatory beliefs are whatever limits are necessary to adequately protect (...) our interests as potential authors and audiences, and whose costs are acceptable in terms of other interests. To apply this conception, it will be necessary to identify our interests as potential authors of and audiences for fiction about real people, and to assess how these interests would be affected by different limits. Ultimately, I will argue that freedom of speech is consistent with holding authors liable for reputational damage caused by their violations of fiction’s “veracity rules” and for reputational damage caused by mistakes that their target audience would be expected to make. But liability for beliefs that are traceable to mistakes that only an author’s incidental audience would be expected to make is, I will argue, prohibitedby freedom of speech, so long as the costs of that protection remain acceptable. (shrink)

In the study of American law, originalism is primarily a theory about the meaning of the Constitution-that its meaning can only change when its words change. Originalism also appears in biblical theology as a theory on the meaning of the Biblethat its meaning is that intended by the original authors. Originalism in Theology and Law: Comparing Perspectives on the Bible and the Constitution offers a study of originalism in both the Bible and the Constitution. While there are significant connections between (...) originalism as a theory of biblical interpretation and as Constitutional interpretation, there are also differences in the type of text as well as its purpose, function, origins, or authority, which may affect which nuanced version of originalism best fits a particular text, or the best method of interpreting it. (shrink)

Although this article uses Obergefell v Hodges (2015) as its frame, it aims to bring out some distinctive features of Justice Kennedy’s jurisprudence of dignity more broadly. There are two reasons why such an investigation is important. The first is important to those interested in the legal case. Indeed, in Dobbs v Jackson Women’s Health (2022), the Court now argues that the relevant ‘test’ for determining whether a right is protected under the Due Process Clause is whether the right is (...) found to be ‘deeply rooted’ in the nation’s history and tradition. This article aims to critique this decision, as well as originalist approaches to constitutional interpretation more broadly, and seeks to resurrect and reconstruct Kennedy’s jurisprudence of dignity that has undergirded (sometimes quietly) the expansion of civil rights protections to the LGBTQ+ community. The second reason this investigation is important is of interest to philosophers and legal historians. Dignity is a notoriously elusive concept, and much ink has been spilt trying to sort out the precise nature of its content and its boundaries. This article brings together the many (seemingly disparate) uses of dignity found across cases involving gay rights, abortion, and foreign sovereign immunity, and argues Kennedy effectively weaves these uses together in ways that may sharpen our understanding of dignity in both the philosophical and legal literatures. (shrink)

Despite the plethora of freedom of religion literature (under section 2(a) of the Canadian Charter of Rights and Freedoms), the corresponding literature on the freedom of conscience is minimal. To further the discussion on the freedom of conscience, I rely heavily on the philosophical literature to make an important distinction; the difference between individual- based and communal-based conceptions of conscience. Whereas the former is plagued with subjectivity, making it difficult to conceptualize a working framework for the Charter right, the latter (...) offers a promising foothold to rise above subjectivity and find a firm footing based on communal relations. In emphasizing the importance of the dialogical nature of human beings and the relational necessity undergirding moral judgements, I argue that the concept of conscience should be understood and practiced in community, rather than individually. (shrink)

Resumen. -/- Premio de artículos jurídicos «GARCÍA GOYENA» (Curso 2013-2014). Tercer accésit El proceso de integración europea, en el que vivimos inmersos, reviste caracteres económicos, sociales, políticos y jurídicos; que dotan de características peculiares a un proyecto de integración cuya naturaleza está en constante discusión, casi tanto como su futuro. Sin duda, uno de los grandes protagonistas del proceso de integración ha sido y es el Tribunal de Justicia de la Unión Europea, sobre todo con la proclamación y consagración de (...) los principios definitorios de la relación entre el ordenamiento comunitario, hoy de la Unión Europea con los ordenamientos nacionales: los principios de eficacia directa y de primacía del Derecho comunitario. Esto lo ha hecho a la vez que desarrollaba su jurisprudencia sobre las libertades económicas fundamentales consagradas en el Tratado de la Comunidad Económica Europea (libre circulación de mercancías, libre prestación de servicios, libre circulación de trabajadores y libre circulación de capitales). Este trabajo tiene por objeto estudiar dicha jurisprudencia, analizando el papel preponderante de la libre circulación de mercancías, así como las perspectivas de futuro tras la entrada en vigor del Tratado de Lisboa. -/- Abstract. -/- The process of European integration, in which we are immersed, has economic, social, political and legal characters giving special characteristics to an integration project whose nature is in constant discussion as its future. Certainly one of the great protagonists of the integration process has been and is the European Court of Justice, especially with the proclamation and consecration of the defining principles of the relationship between Community law, now European Union law, and national law: principles of direct effect and supremacy of EU law. ECJ recognised this principles while it developed its jurisprudence on fundamental economic freedoms recognised in the Treaty establishing the European Economic Community (free movement of goods, freedom to provide services, free movement of workers and free movement of capitals). This work aims to study this case law, analyzing the dominant role of the free movement of goods as well as the future trends after the entry into force of Lisbon Treaty. (shrink)

Bu kitap, Carl Schmitt'in demokrasi ve diktatörlük üzerine düşüncelerini politik felsefenin sorgu sahasında ele almayı amaçlayarak Schmitt'i kendi döneminin polemikleri arasında konumlandırmaktadır. Bu amaçla Weimar dönemi hukukçuları üzerinde önemli etkisi olan Carl Friedrich Wilhelm von Gerber ve Paul Laband'ın anayasa düşünceleri ekseninde Alman İmparatorluğu'nun hukuk mirası incelenmiştir. Weimar Cumhuriyeti'nin krizlerle şekillenen politik atmosferi, politik felsefe açısından verimli tartışmaların ortaya çıkmasını sağlamıştır. Bu tartışmaların izi; dönemin hukukçularından Gerhard Anschütz, Richard Thoma, Georg Jellinek, Hans Kelsen ve Hermann Heller'ın demokrasi ve diktatörlük tartışmasına (...) kaynaklık eden düşünceleri üzerinden sürülmüştür. Schmitt, çoğunluğu 1920'li yıllara denk gelen anayasa hukuku çalışmaları ile Weimar dönemi hukuk tartışmaları arasında belirleyici bir yerde durmaktadır. Schmitt ile anayasanın koruyuculuğu ve parlamentarizm hakkında polemiğe giren düşünürler, kitabın ayrı bir bölümünün konusunu oluşturmaktadır. Politik felsefenin güncel bir uğrağı olmayı sürdüren Schmitt'in demokrasi ve diktatörlük üzerine düşünceleri, çağdaş dünyanın karşı karşıya kaldığı demokrasi sorunlarının derinleştirilmesinde verimli bir kaynaktır. Bu kitabın amaçları arasında, kendi tarihsel bağlamı içerisinde Schmitt'in devlet düşüncesinin spesifik bir incelemesini yapmanın yanında, kendisini diktatörlüğün karşısında konumlandıran liberal demokrasi anlayışını tartışmaya açmak da bulunmaktadır. (shrink)

La mal llamada “Conquista del Desierto” constituyó una serie de campañas militares ocurridas en el actual territorio patagónico argentino entre los años 1878 y 1885 cuyo resultado fue el asesinato, la violación y sometimiento a la esclavitud de diversos pueblos y comunidades indígenas. Este no fue un caso aislado, sino que se suma a una serie de ataques sistemáticos que han sufrido los indígenas en la Argentina. En los últimos años, a raíz del reclamo y las luchas de los pueblos (...) y comunidades indígenas, así como también de las organizaciones de derechos humanos, se han comenzado a juzgar algunos de estos hechos. En particular, la Masacre de Napalpí (1924) y la Masacre de La Bomba (1947) fueron los primeros que lograron respuestas judiciales favorables. En ambos se determinó que el accionar estatal era constitutivo de un genocidio y, por lo tanto, se debía resarcir a las comunidades actuales. Ahora bien, la Campaña del Desierto, al día de hoy, no tiene respuesta por parte del Estado. Teniendo presente este panorama, nuestro objetivo en este trabajo es reconstruir los diferentes problemas que enfrenta la posibilidad del reclamo judicial. Para ello, comenzaremos describiendo en qué consistió la Campaña del Desierto. Luego, explicaremos la noción de genocidio aplicado a hechos de injusticias históricas. Como tercer paso, reconstruiremos los casos jurisprudenciales que se han preocupado por genocidios indígenas ocurridos en el pasado. Con este panorama revelado, nos enfocaremos en los diferentes problemas jurídicos y políticos que surgen en los reclamos de justicia. (shrink)

El objetivo principal de esta contribución es identificar los retos y perspectivas que presenta la investigación biomédica con datos en España, realizando una breve aproximación al marco jurídico actual, atendiendo en particular los biobancos; y con un enfoque jurídico multinivel, es decir, teniendo en cuenta la regulación no solo interna sino también europea, para poder identificar algunas de las carencias que presenta el actual marco normativo. -/- El avance de los biobancos y la tecnología de investigación en la actualidad está (...) mejorando la efectividad de la investigación científica biomédica, gracias al uso masivo de datos. Sin embargo, al mismo tiempo, esta investigación enfrenta dilemas éticos y legales en la búsqueda de un equilibro con otros derechos, en especial aquellos vinculados a la esfera de la privacidad de la persona, lo que hace esencial conocer el marco jurídico aplicable. (shrink)

La Sentencia del TJUE de 13 de mayo de 2014, Google Spain (C-131/12) ha supuesto un hito muy relevante en el sistema de protección de derechos fundamentales de la Unión Europea, dando origen al derecho al olvido, y abriendo un camino del que queda mucho por explorar. Una de las cuestiones más controvertidas es determinar el alcance territorial del derecho al olvido, que está vinculado al alcance territorial de una sentencia que no tenemos derecho a olvidar.

A Constituição Brasileira de 1988, assim como boa parte das Constituições contemporâneas, abriga uma espécie normativa que a doutrina denomina Princípios Constitucionais. Até recentemente, pouca atenção era conferida às normas principiológicas, seja por parte da doutrina e da jurisprudência. Hoje, são elas alvo de acirrados debates no meio acadêmico, mais precisamente no que concerne ao seu grau de eficária e concretização. Os autores trazem, aqui, subsídios para a discussão, procurando encontrar instrumentos e mecanismos aptos a concretizá-los em sua plenitude.

Despite a long and venerable tradition, the material constitution almost disappeared from constitutional scholarship after the Second World War. Its marginalisation saw the rise of a normative and legalistic style in constitutional law that neglected the role of social reality and political economy. This collection not only retrieves the history and development of the concept of the material constitution, but it tests its theoretical and practical relevance in the contemporary world. With essays from a diverse range of contributors, the collection (...) demonstrates that the material constitution speaks to several pressing issues, from the significance of economic development in constitutional orders to questions of constitutional identity. Offering original analyses supported by international case studies, this book develops a new model of constitutional reality, one that informs our understanding of the world in profound ways. (shrink)

In this incisive and thought-provoking book, Francois Venter illuminates the issues arising from the fact that the current language of constitutional law is strongly premised on a particular worldview rooted in the history of the states around the North Atlantic Ocean. Highlighting how this terminological hegemony is being challenged from various directions, Venter explores the problem that all constitutional comparatists face: that they all must use the same words to express different meanings. Offering a compact but comprehensive constitutional history, Venter (...) investigates the ways in which the standard vocabulary does not fit comfortably in many contemporary constitutional orders, as well as examining how its cogency is increasingly being questioned. Chapters contextualize comparative constitutional methods to demonstrate how the language choices made by comparatists are shaped by their own perspectives, arguing that careful explanation of the meanings attached to constitutional terms is imperative in order to be persuasive or even understood. Tackling the foundational elements of the field, this book will be a critical read for constitutional scholars across the globe. It will also be of interest to high-level practitioners of constitutional law and political scientists for its investigation of terminology that is crucial to their work. (shrink)

The subject of this book is the social and political meaning of constitutional texts to the detriment of their legal concretization. Focusing on the discrepancy between the hypertrophically symbolic function of constitutions and their insufficient legal concretization, it offers a critical counterpoint to constitutional theory that treats constitutional texts as a panacea to solving political, legal, and social problems. In contrast to the premises of Niklas Luhmann's systems theory regarding law and constitution in world's society, symbolic constitutionalization is approached here (...) in both a comprehensive and far-reaching perspective. Chapter 1 sets out the debate about symbolic legislation. Chapter 2 explains the notion of symbolic constitutionalization as a problem embracing the whole legal system. Chapter 3 approaches the issue in terms of allopoiesis of law, characterizing it primarily as a problem in peripheral modernity and referring to the Brazilian experience. The final chapter discusses the tendency to a symbolic constitutionalization of world society in the scope of a paradoxical peripheralization of the centre. (shrink)

We enter here upon a history of conversational traffic between the respective departments of philosophy and law in the old academy of liberalism, where lawyers hear much from philosophers, yes-and philosophers hear from lawyers, too, in what has fruitfully been a both-ways exchange. Our philosophical protagonist is John Rawls. This book comprises a study of the rise and workings, within the Rawlsian political-liberal philosophy, of the idea of a country's higher-legal constitution as a public platform for the justification of political (...) coercion. A study of Rawls on constitutionalism can help us, I believe, in scoping out and managing a cluster of constitutional lawyers' debates-interminable ones, it seems, in the constitutional-democratic precincts of our times-that I will catalogue soon below. But conversely, I believe, those seeking the best and truest readings of Rawls might have something to learn from the controversies of the lawyers. My approach to Rawls has accordingly been that of a critically leavened (while no doubt broadly sympathetic) exegesis, while with the legal-discursive materials I take more of a diagnostic turn. My hope is that a treatment of these two discourses in relation to each other will prove an aid to both political-philosophical and legal-practical reflection. (shrink)

The book is aimed at students and scholars of law, politics and philosophy. Of unprecedented breadth, it offers both a survey of, and an original contribution to, the field by some the world's leading scholars of constitutional theory.

This study aims to identify various meanings of the expression (name) “dignity”, with particular emphasis on the meanings of this expression as it appears in the text of the Constitution of the Republic of Poland. The meaning of the name “dignity” is the concept of dignity; in turn, the different concepts of dignity encompass dignity of particular types. Twelve different meanings of the expression “dignity” are indicated – twelve different concepts of dignity, and thus twelve types of dignity. Half of (...) them are meanings (concepts) that recognize dignity as something belonging to a human being as a subject of law. They were considered in the essay Godność jako właściwość osoby. Typy godności – propozycja systematyzacji [Dignity as a Quality of Person – a Proposed Systematisation]. This group of meanings includes three concepts of dignity which recognize dignity as something constitutive of being a person: (1) inherent dignity of the person, (2) dignity established by qualities specific to a thinking being, and (3) dignity as a historically emergent social status of all human beings. The second group of meanings, treating dignity as something with which the human being (the person) is endowed, includes concepts which encompass (4) personal dignity (honour and good reputation), (5) dignity as moral excellence, and (6) dignity as appropriateness of attitude or behaviour. -/- Dignity as an attribute of collective entities and dignity as an institutionally grounded attribute are a subject of this paper. The Constitution of the Republic of Poland speaks of (1) the dignity of the Nation, (2) the dignity of office or function, and (3) public dignity. The expression “the dignity of the Nation” can be understood in four different ways: (i) analogously to the understanding of dignity of the person, (ii) of personal dignity, (iii) of dignity as moral excellence, and (iv) of dignity as appropriateness of attitude or behaviour. The expression “dignity” when designating something institutionally grounded can designate (4) the dignity of social roles, (5) the dignity of a profession, and – specifically to the Polish language – (6) dignity meaning a surname. -/- The author argues that it is unacceptable to ascribe different concepts of dignity to the expression “dignity” appearing in a specific legal provision. (shrink)

In this Article, I take up the thesis that international and comparative law sources are relevant to interpreting the U.S. Constitution because the Constitution itself warrants respect only insofar as it is a means for achieving minimal protections for human dignity. I argue a narrow version of this thesis: Our domestic constitutional interpretations should be checked by looking to the minimal set of rights recognized in other systems that share certain contents. And I take up the problem that what may (...) appear as shared values at one level may reflect different understandings at a deeper, more reflective level. For example, the framers of our Constitution clearly sought to advance liberty. But the liberty they sought to advance may not have been the same liberty that became of concern during the Fourteenth Amendment's period of ratification, and in the subsequent history of Supreme Court constitutional cases following its adoption. In this article I propose to consider the set of rationally based aspirations that our system of constitutional rights and many other related systems seem to presuppose as a ground for developing a growing conception of liberty and dignity that the U.S. Supreme Court should adopt. (shrink)