Robert Alexy’s A Theory of Constitutional Rights critical review: key jurisprudential and political questions

Abstract The question of the theoretical foundations of fundamental rights and of the coherence in the application of constitutional rights reasoning in different legal systems is one of the foremost issues of all democratic constitutional states where there is a presence of a Bill of Rights, in continental European jurisprudence as well as in other common law jurisdictions. The analysis of how constitutional rights reasoning on fundamental rights is structured in the legal process of constitutional states is in fact deeply linked with the very concept of democracy and of a democratic state: a substantive, structural theory of fundamental rights is essential in every contemporary democratic society, being crucial for both its legal and political structure. Alexy’s substantial general theory of fundamental rights constitutes in this respect a major contribution to the development of constitutional law and legal reasoning, one which goes well beyond the interpretation of the German basic law, providing a theory of general application relevant to most, if not all, European as well as non-continental legal orders.FCT Project VALUE ISOBARS, “The Landscape and Isobars of European Values in Relation to Science and New Technology", funded by the “7th Framework Programme “ of the European Commission (Refª SiS-CT-2009-230557)

The Uses of Human Rights Norms to Inform Constitutional Interpretation

Recent federal court of appeals decisions have relied on fundamental human rights norms to inform constitutional interpretation. This comment reviews the reasoning in those cases to identify possible constitutional uses of fundamental human rights norms and to suggest some conceptual framework for their use. The need for such a framework is illustrated by the cases themselves, which seem disparate and disjointed, with no discernible coherent philosophy, though each makes good sense when considered alone

Constitutional Reasoning in the European Union and the Charter of Fundamental Rights: In Search of Public Justification

This article argues that the CJEU’s use of the EU Charter of Fundamental Rights in situations falling within the scope of EU law needs to be supplemented by clearer constitutional reasoning about the role of fundamental rights in the public order of the European Union. The article demonstrates, through an analysis of the Charter’s drafting context, that the primary function of this instrument is to highlight the centrality of a set of public goods in the EU, rather than merely to add to the number of individual rights to which EU law gives rise. It is then argued that, in order for this function to be fulfilled, an interpretation of fundamental rights is required that both acknowledges their constitutional value as distinct from other sources of rights protection in the Union and offers adequate reasons for the application of the Charter standard. The idea of public justification provides a suitable starting point, particularly in situations of conflict with national laws, because it would give rise to a much-needed judicial debate about what the best standard of fundamental rights protection would be for the Union. However, such an interpretation of the Charter is currently lacking from the case law which, instead, utilises problematic forms of constitutional and quasi-constitutional discourse, through continued reliance on a conception of rights as tools of enforcement of EU law, which it had advanced in its earlier case law. While this type of reasoning was well suited to the idea of the EU as a social market economy, it structurally precludes the re-imagination of rights as collectively authored claims about good government under the Charter framework

Alcune considerazioni sul rapporto tra libertà fondamentali del Trattato europeo e diritto privato

The essay explores the “horizontal effectiveness” of fundamental rights and fundamental freedoms, i.e. the relationship between private law and the fundamental rights and freedoms recognized by the EU Charter, the European Convention and the EU Treaties. The author reflects on the reasons that impede the horizontal efficacy, i.e.the effectiveness in relationships between private parties, of certain fundamental freedoms. Particular attention is paid to the free movement of goods and to the reasons that, on a case-by-case basis, may justify the horizontal application of rules which instead should have only vertical effect. Finally, the author attempts to relate the issue of “horizontal effectiveness” to the so-called “remedial perspective”, and to the emerging phenomenon of the so-called “jurisprudence by principles”, which privileges reasoning based not on rules but rather, more or less directly, on constitutional principles, with or even without the mediation of either general rules or general clause

The Italian Constitutional Court’s Ruling against State Immunity when International Crimes Occur: Thoughts on Decision No 238 of 2014

The tension between access to justice and jurisdictional immunity of States is one of the most debated topics in current public international law. The present essay aims to explore the Italian Constitutional Court’s opinion on this matter, in particular after its recent judgment no. 238 of 2014, in which the Court stated that Italy is no longer bound by the rule on State immunity in the case of civil proceedings dealing with damages caused by the Nazi army during World War II. Studying the Court’s reasoning and the arguments provided in order to compel Italy not to implement the ICJ judgment in the Jurisdictional Immunities of the State could provide a new point of view in the International Community, based on domestic constitutional norms, about the fundamental need to protect the rights of the human being, even to the detriment of a international customary rule

Between Human Rights and Justice Principle in Children’s Civil Rights

Children’s rights are fundamental in a country. Children are the future generation of a country. They have rights in civil law field. The examples of such rights are the right to have family name, the right to get alimony, and the right to get inheritance from the parents. Indonesian Law Number 1 of 1974 regarding Marriage (Marriage Law) distinguishes the civil rights of legitimate and illegitimate children. In 2010, the Indonesian Constitutional Court produced a decision which became a controversial decision because it was deemed to ‘legalize’ illegitimate child to have the same rights as legitimate child. The reason behind such decision is the human rights which should apply nondiscriminative principle. Some parties disagree with the reasoning behind this decision. They consider the decision unjust and that it violates social and religious norms in giving illegitimate and legitimate children the same rights in spite of the status difference. The author will discuss children’s civil rights based on civil law, human rights, and justice principle in Indonesia

The African Commission on Human and People's Rights and the woman question

This paper proposes that in developing jurisprudence on women's rights, the African Commission will need to ask the woman question particularly the African woman question. The woman question requires a judicial or quasi-judicial body to always put woman at the centre of any decision with a view to addressing the historically disadvantaged position of women in society. Asking the African woman question means examining how the peculiar experiences of African women have been ignored by laws rooted in patriarchy across the region. Although the Commission has handled few cases directly dealing with women's rights, the paper suggests that the Commission can draw inspiration from decisions of other regional and international human rights bodies such as the European Court on Human Rights and the Committee on Elimination of All Forms of Discrimination against Women (CEDAW Committee) on how to ask the woman question. The paper recommends that in line with feminist reasoning there is a need for the African Commission to develop a consistent gender-sensitive approach in dealing with cases that may have implications for women. In essence the African Commission must ask the African woman question when dealing with cases on the enjoyment of women's fundamental rights

Call for consistent incorporation of super-diversity considerations in the European Court of Human Rights’ (non-discrimination) jurisprudence

Super-diversity may not yet be a term of art in the field of fundamental rights, courts are undoubtedly confronted with cases that de facto concern super-diversity, understood here as referring to various layers of ethnic population diversity and the related differential rights of the distinctive groups. Selected cases of the ECtHR are analysed in light of a theoretical frame of analysis concerning rights, interpretation of and legitimate limitations to rights. The comparison of the reasoning in these cases reveals marked differences in approach. The working paper proceeds with a call for a consistent incorporation by the ECTHR of ‘super-diversity’ considerations in the reasoning of judgments on fundamental rights of the respective groups. This would not only entail a refinement of the Court’s non-discrimination jurisprudence, but also to a rise in coherence and consistency of the Court’s overall jurisprudence, in line with the rule of law. The conclusion consists of some recommendations for the ECtHR on how it could proceed when developing its jurisprudence in this respect

Paradygmat psychicznego cierpienia zwierząt w estońskim orzecznictwie sądowym i relacjach medialnych

In the European context, animal rights legislation is relying on human rights language, since it aims to protect the animals from mental suffring. The fact that a legal norm is not labelled as a human rights norm does not alter its content. This article also shows that in the Estonian judicial system the concept of animals deserving protection of their fundamental rights is accepted by default. The reasoning of court judgments indicates that the main reason for criminal sanction is the violation of animals fundamental right not to be killed or tortured. The article supports the thesis that it is clear that there is an urgent need to recognize the animal rights in legislation directly and the need of such application of these laws by courts; altogether with placing such conviction in public awareness.W prawodawstwie Unii Europejskiej regulacje dotyczące praw zwierząt tworzy się z użyciem tego samego języka, którym opisuje się prawa człowieka. Dzieje się tak, ponieważ celem tychże regulacji jest ochrona zwierząt przed cierpieniem psychicznym właściwym istotom ludzkim. W orzecznictwie estońskich sądów koncepcja podstawowych praw zwierząt jest akceptowana. Analiza treści uzasadnień wyroków wskazuje, że najczęstszą przyczyną nakładania kar jest pogwałcenie podstawowych praw zwierząt, tj. prawa do życia i wolności od tortur. W artykule postawiono tezę, że istnieje pilna potrzeba szerokiego uznania praw zwierząt, dotyczy to zarówno prawodawstwa, praktyki orzeczniczej oraz powszechnej świadomości społecznej

Preferential Judicial Activism

The Author examines the Supreme Court’s use of “preferential judicial activism”—whereby justices decide whether to formalistically dismiss cases or instead choose to engage judicial activism based on their policy preferences—through contrasting the Court’s reasoning in Shelby v. Holder with its decisions in cases concerning national security. In Shelby, the majority characterized the Court’s review of the Voting Rights Act of 2006 as necessary given the fundamental rights at stake and the unusually broad reach of the Act in mandating federal jurisdiction over voting matters. However, in national security-related cases in which plaintiffs have alleged violations of fundamental rights, the Court’s response has been a rigid and formalistic refusal to address the plaintiffs’ claims, usually based on the acceptance of government invocations of procedural barriers to litigation. This judicial formalism has consistently led to the dismissal of cases alleging serious government abuse in the post-September 11 context. The Author argues that these instances of judicial formalism illustrate the judiciary’s internal struggle to determine its appropriate role when confronted with questions of constitutional rights during times of war or perceived emergency. Ultimately, taking this dynamic together with Shelby\u27s preferential judicial activism and its undermining of voter protections for racial minorities, it becomes clear that multiple reforms must be undertaken to protect individual rights. The Author concludes that Congress should better assert its role to protect the civil rights of vulnerable populations through passing additional legislation and that courts must acknowledge their own ongoing preferential judicial activism