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Alexy and the “German” Model of Proportionality: Why the Theory of Constitutional Rights Does Not Provide a Representative Reconstruction of the Proportionality Test
Robert Alexy is one of the most prominent proponents of proportionality in international legal scholarship. His theory has two dimensions. On the one hand, it is a normative defense of balancing. On the other hand, it seeks to provide a reconstruction of the case law of the German Federal Constitutional Court. This Article focuses on the reconstructive part of his theory. It argues that his reconstruction of the jurisprudence of the German Constitutional Court is only partly accurate. In particular, it does not provide a suitable reconstruction of the decisions in which the Court finds a statute to be inconsistent with the constitution. For this reason, the normative critique of Alexy’s theory does not necessarily translate into a critique of the jurisprudence of the German Constitutional Court’s application of proportionality or even the proportionality doctrine itself. Instead, it targets only one specific interpretation of proportionality.
Journal Article
Constitutional dialogue : rights, democracy, institutions
\"The metaphor of 'dialogue' has been put to different descriptive and evaluative uses by constitutional and political theorists studying interactions between institutions concerning rights. It has also featured prominently in the opinions of courts and the rhetoric and deliberations of legislators. This volume brings together many of the world's leading constitutional and political theorists to debate the nature and merits of constitutional dialogues between the judicial, legislative, and executive branches. Constitutional Dialogue explores dialogue's democratic significance, examines its relevance to the functioning and design of constitutional institutions, and explores constitutional dialogues from an international and transnational perspective\"-- Provided by publisher.
Book
The constitutional right to asylum and humanitarianism in Indonesian law: \Foreign refugees\ and PR 125/2016
Article 28G(2) in Indonesia's 1945 Constitution reflects a human rights approach to asylum; it guarantees \"the right to obtain political asylum from another country,\" together with freedom from torture. It imposes an obligation upon the state to give access to basic rights to those to whom it offers asylum, following an appropriate determination procedure. By contrast, in Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees, the Indonesian government's response to asylum seekers and refugees is conceptualized as \"humanitarian assistance,\" and through a politicized and securitized immigration-control approach. We argue that the competition between these three approaches-the human right to asylum, humanitarianism, and immigration control-constitutes a \"triangulation\" of asylum and refugee protection in Indonesia, in which the latter two prevail. In light of this framework, this article provides a socio-political and legal analysis of why Article 28G(2) has not been widely accepted as the basis of asylum and refugee protection in Indonesia.
Journal Article
Un modelo de interpretación para la efectivización progresiva de derechos sociales de prestación
El presente artículo aborda, desde una perspectiva teórica, la problemática de la efectivización de los derechos sociales de prestación. La tesis central del artículo sostiene que esta efectivización puede darse mediante un modelo progresivo de tres niveles, a saber: el nivel de la funcionalidad básica, el nivel de la optimización del bienestar y el nivel de la complementación del bienestar. El artículo inicia con la fundamentación de la equiparabilidad de los derechos sociales de prestación con los derechos fundamentales “tradicionales o clásicos”, por ser dicha equiparabilidad el requisito teórico para justificar la justiciabilidad y efectivización de los derechos fundamentales prestacionales; a continuación, pasa a desarrollar la idea de obligación mínima esencial para luego incorporarla como primer nivel dentro de la estructura progresiva de efectivización. Finalmente, se pondrá a prueba este modelo teórico al reconstruir con base en el mismo el caso Cuscul Pivaral y otros vs. Guatemala resuelto por la Corte IDH.
Journal Article
Human rights in the constitutional law of the United States
\"In the period since the end of the Second World War, there has emerged what has never before existed: a truly global morality--specifically, a global political morality. That morality, which I call \"the morality of human rights\", consists both of a fundamental imperative, which serves as the normative ground of human rights, and of various human rights--of various rights, that is, recognized by the great majority of the countries of the world as human rights\"-- Provided by publisher.
Book
Constitutionalism and Anti-Privatisation Strikes: Introducing an Eclectic Model
The rise of neoliberal agendas of political actors and a wave of privatisation in the globalisation era have often been followed by anti-privatisation strikes. These are union strikes against the privatisation process and against contracting out and opening markets to competition. The article presents the distinction between different versions of constitutionalism regarding anti-privatisation strikes. It discusses two approaches to constitutionalism – the economic approach and the collective approach – and their manifestation in the case law of Israel and the United Kingdom. The collective approach suggests the recognition of a constitutional status of collective rights as a basis for counter-balancing the neoliberal practices of regulators and political actors. Following the effects of liberalisation on the labour market – both in influencing union organisational capacity and in weakening job security of individual employees, the collective approach is aimed at protecting employees’ rights in a globalised-privatised era. Within the collective approach, constitutionalism is used as a basis for recognising anti-privatisation strikes. In contrast, the economic approach denies the existence of a constitutional right to strike against privatisation. The article presents an eclectic model which merges the two approaches, and advocates its adoption. Drawing on New Institutional Economics, the eclectic model offers a theory for moderating the constitutionalism practice and developing partial and restrained constitutionalism. It proposes the adoption of a constitutional right to strike against privatisation, when its application reduces transaction costs and advances efficiency and economic goals for the benefit of the public.
Journal Article
The Magna Carta manifesto : liberties and commons for all
This remarkable book shines a fierce light on the current state of liberty and shows how longstanding restraints against tyranny - and the rights of habeas corpus, trial by jury, and due process of law, and the prohibition of torture - are being abridged. In providing a sweeping history of Magna Carta, the source of these protections since 1215, this powerful book demonstrates how these ancient rights are repeatedly laid aside when the greed of privatization, the lust for power, and the ambition of empire seize a state. Peter Linebaugh draws on primary sources to construct a wholly original history of the Great Charter and its scarcely-known companion, the Charter of the Forest, which was created at the same time to protect the subsistence rights of the poor.
Book
Freedoms and rights versus public morals: notes on constitutional practice in Poland
This article does not to seek a universal answer to the question of what morality or public morals are; rather it focuses on the issue of morality as grounds for limiting constitutional rights and freedoms. We narrow the problem to constitutional practice, and in particular to the judgments of the Polish Constitutional Tribunal, which settles disputes centered around the freedom of humans and public morals. Public morals as grounds for limiting personal rights or liberties rarely appear on the Constitutional Tribunal’s docket. The Constitutional Tribunal does not conduct philosophical, moralistic or ethical discussions in search of the meaning of public morals. Judges tend to apply the concept in an intuitive manner. We argue that they limit it to a folk understanding, which may be explained as follows: do good and avoid evil. Judges assign meaning to the public morals clause by referring to their own experiences or seek insight into morality in public opinion polls, which may not be a reliable source of knowledge about what is good and what is evil (the primacy of the “will of the majority”). Two difficult cases await the judgment of the Constitutional Tribunal. Each of them concerns major ethical and moral dilemmas. The first one relates to eugenic abortion, which is legal in Poland under certain conditions, while the second one involves the relationships of homosexual couples, which are not currently subject to legalization. The Constitutional Tribunal is not ready to solve these cases, making uses of public morality as grounds for limiting constitutional rights and freedoms.
Journal Article