rule of law and fundamental rights critical comparative analysis of constitutional review in the united states germany and mexico

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Rule Of Law And Fundamental Rights

Author : Alfredo Narváez Medécigo
ISBN : 9783319245621
Genre : Law
File Size : 80. 31 MB
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This book, which originated from the broadly held view that there is a lack of Rule-of-law in Mexico, and from the emphasis of traditional academia on cultural elements as the main explanation, explores the question of whether there is any relationship between the system of constitutional review ― and thus the ‘law’ as such ― and the level of Rule-of-law in a given state. To do so, it elaborates a theoretical model for achieving Rule-of-law and compares it to the constitutional review systems of the United States, the Federal Republic of Germany, and Mexico. The study concludes that the two former states correspond to the model, while the latter does not. This is fundamentally due to the role each legal system assigns to ordinary jurisdiction in carrying out constitutional review. Whereas the US and Germany have fostered the policy that constitutional review regarding the enforcement of basic rights is the responsibility of ordinary courts, Mexico has relied too heavily on the specialized constitutional jurisdiction.

The Constitution Of Freedom

Author : András Sajó
ISBN : 9780198732174
Genre : Law
File Size : 82. 10 MB
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Constitutional democracy is more fragile and less "natural" than autocracy. While this may sound surprising to complacent democrats, more and more people find autocracy attractive, because they were never forced to understand or imagine what despotism is. Generations who have lived in stabledemocracies with the promise that their enviable world will become the global "normal" find government rule without constitutionalism difficult to conceive. It is difficult, but never too late, to see one's own constitutional system as something that is fragile, or up for grabs and in need ofconstant attention and care. In this book, Andras Sajo and Renata Uitz explore how constitutionalism protects us and how it might be undone by its own means. Sajo and Uitz's intellectual history of the constitutional ideal is rich in contextual detail and informed by case studies that give an overview of both the theory and practice of constitutionalism worldwide. Classic constitutions are contrasted with twentieth-century and contemporary endeavours,and experimentations in checks and balances. Their endeavour is neither apologetic (and certainly not celebratory), nor purely defensive: this book demonstrates why constitutionalism should continue to matter. Between the rise of populist, anti-constitutional sentiment and the normalization of theapparatus of counter-terrorism, it is imperative that the political communities who seek to sustain democracy as freedom understand the importance of constitutionalism. This book is essential reading for students of law and general readers without prior knowledge of the field, as well as those inpolitics who believe they know how government works. It shows what is at stake in the debate on constitutionalism.

States Of Emergency And The Law

Author : M. Ehteshamul Bari
ISBN : 9781351685917
Genre : Law
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In Bangladesh, the absence of effective constitutional safeguards for governing emergency regimes has resulted in each of the five emergencies being invoked on the imprecise ground of internal disturbance. Two of these emergencies were even continued after the alleged threat posed to the life of the nation was over. Furthermore, during these five periods of emergency, either all or most of the fundamental rights guaranteed by the Constitution were suspended and the power of preventive detention was abused. Since no systematic and structured research has so far been carried out evaluating the Bangladeshi Constitution’s provisions concerning the proclamation of emergency,suspension of fundamental rights and preventive detention, and the invocation of these extraordinary measures, this book will enhance knowledge by identifying the flaws, deficiencies and lacunae of the constitutional provisions concerning these exceptional measures. Consequently, based on these findings, recommendations will be put forward to rectify these defects from comparative constitutional law and normative perspectives. The outcome of this book will not only establish the best means for ensuring the maintenance of the rule of law but also for preventing undue intrusion on the fundamental human rights of individuals during emergency situations in Bangladesh. This book will be of great interest and use to scholars and students of comparative constitutional law, human rights law and Asian law. Given the law reform analysis undertaken in this work, it will also be beneficial for the policy makers in Bangladesh and for the policy makers of constitutional polities facing similar problems with the issue of constraining the exercise of emergency powers.

Proportionality Analysis And Models Of Judicial Review

Author : Benedikt Pirker
ISBN : 9089521410
Genre : Law
File Size : 78. 42 MB
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Proportionality analysis describes a particular legal technique of resolving conflicts between human rights or constitutional rights and public interests through a process of balancing. However, as a general tendency, the current vivid academic debate on proportionality pays insufficient attention to the institutional context - the question of judicial review. Based on the premise that proportionality analysis is a permissible approach to resolve conflicts between rights and other interests, this book lays out a strategy for courts and tribunals to deal with the challenge of using proportionality analysis in an adequate manner, taking into account their situation and context of judicial review. For this purpose, the book develops the concept of models of judicial review in a first theoretical chapter. These models are then applied to six comparative case studies in German and US constitutional law, the law of the European Convention on Human Rights, European Union law, World Trade Organization law, and international investment law. (Series: European Administrative Law - Vol. 8)

Current Issues In Korean Law

Author : Laurent Mayali
ISBN : 1882239229
Genre : Constitutional law
File Size : 67. 34 MB
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This volume is the first in a series of comparative studies that focuses on Korea's legal system and its political institutions under the sponsorship of the Korea Law Center at UC Berkeley Law School. Korea has experienced an astonishing pace of legal reforms within an interval of two generations. The collapse of the authoritarian regime started an irreversible process of democratization that has not yet completed its full course. The papers included in this volume cast new lights on the challenges and institutions that define the substance and the structure of current legal reforms. Although it is not the purpose of this volume to provide a comprehensive report on the current state of Korean law, the selective range of the themes is not a simple happenstance. It is representative of the current political debate which echoes the Korean society's determination to resolve the paradoxes of its legal tradition and overcome the trials of its democratic aspirations.

Social And Economic Rights In Theory And Practice

Author : Helena Alviar García
ISBN : 9781317964421
Genre : Law
File Size : 81. 24 MB
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Since World War II, a growing number of jurisdictions in both the developing and industrialized worlds have adopted progressive constitutions that guarantee social and economic rights (SER) in addition to political and civil rights. Parallel developments have occurred at transnational level with the adoption of treaties that commit signatory states to respect and fulfil SER for their peoples. This book is a product of the International Social and Economic Rights Project (iSERP), a global consortium of judges, lawyers, human rights advocates, and legal academics who critically examine the effectiveness of SER law in promoting real change in people’s lives. The book addresses a range of practical, political, and legal questions under these headings, with acute sensitivity to the racial, cultural, and gender implications of SER and the path-breaking SER jurisprudence now emerging in the "Global South". The book brings together internationally renowned experts in the field of social and economic rights to discuss a range of rights controversies from both theoretical and practical perspectives. Contributors of the book consider specific issues in the litigation and adjudication of SER cases from the differing standpoints of activists, lawyers, and adjudicators in order to identify and address the specific challenges facing the SER community. This book will be of great use and interest to students and scholars of comparative constitutional law, human rights, public international law, development studies, and democratic political theory.

The Oxford Handbook Of Comparative Constitutional Law

Author : Michel Rosenfeld
ISBN : 9780191640179
Genre : Law
File Size : 23. 85 MB
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The field of comparative constitutional law has grown immensely over the past couple of decades. Once a minor and obscure adjunct to the field of domestic constitutional law, comparative constitutional law has now moved front and centre. Driven by the global spread of democratic government and the expansion of international human rights law, the prominence and visibility of the field, among judges, politicians, and scholars has grown exponentially. Even in the United States, where domestic constitutional exclusivism has traditionally held a firm grip, use of comparative constitutional materials has become the subject of a lively and much publicized controversy among various justices of the U.S. Supreme Court. The trend towards harmonization and international borrowing has been controversial. Whereas it seems fair to assume that there ought to be great convergence among industrialized democracies over the uses and functions of commercial contracts, that seems far from the case in constitutional law. Can a parliamentary democracy be compared to a presidential one? A federal republic to a unitary one? Moreover, what about differences in ideology or national identity? Can constitutional rights deployed in a libertarian context be profitably compared to those at work in a social welfare context? Is it perilous to compare minority rights in a multi-ethnic state to those in its ethnically homogeneous counterparts? These controversies form the background to the field of comparative constitutional law, challenging not only legal scholars, but also those in other fields, such as philosophy and political theory. Providing the first single-volume, comprehensive reference resource, the Oxford Handbook of Comparative Constitutional Law will be an essential road map to the field for all those working within it, or encountering it for the first time. Leading experts in the field examine the history and methodology of the discipline, the central concepts of constitutional law, constitutional processes, and institutions - from legislative reform to judicial interpretation, rights, and emerging trends.

Unconstitutional Constitutional Amendments

Author : Yaniv Roznai
ISBN : 9780198768791
Genre :
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Can constitutional amendments be unconstitutional? The problem of 'unconstitutional constitutional amendments' has become one of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. This book describes and analyses the increasing tendency in global constitutionalism substantively to limit formal changes to constitutions. The challenges of constitutional unamendability to constitutional theory become even more complex when constitutional courts enforce such limitations through substantive judicial review of amendments, often resulting in the declaration that these constitutional amendments are 'unconstitutional'. Combining historical comparisons, constitutional theory, and a wide comparative study, Yaniv Roznai sets out to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments.

The Rule Of Law In Comparative Perspective

Author : Mortimer Sellers
ISBN : 9048137497
Genre : Law
File Size : 77. 1 MB
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This volume compares the different conceptions of the rule of law that have developed in different legal cultures. It describes the social purposes and practical applications of the rule of law and how it might be improved in the varied circumstances.

Advanced Introduction To Comparative Constitutional Law

Author : Mark Tushnet
ISBN : 9781781007327
Genre : Law
File Size : 47. 56 MB
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Mark Tushnet, a world-renowned scholar of constitutional law, presents an introduction to comparative constitutional law through an analysis of topics at the cutting edge of contemporary scholarship.

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