Aharon Barak
- Published in print:
- 2013
- Published Online:
- January 2015
- ISBN:
- 9780197265642
- eISBN:
- 9780191760389
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265642.003.0020
- Subject:
- Law, Human Rights and Immigration
This chapter draws the basic distinction between human dignity as a constitutional value and human dignity as a constitutional right. It describes the role and meaning of human dignity as an express ...
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This chapter draws the basic distinction between human dignity as a constitutional value and human dignity as a constitutional right. It describes the role and meaning of human dignity as an express or implied constitutional value. The chapter then focuses on the scope of the constitutional right to human dignity and the problem of partial overlap between the right to human dignity and other independent constitutional rights.Less
This chapter draws the basic distinction between human dignity as a constitutional value and human dignity as a constitutional right. It describes the role and meaning of human dignity as an express or implied constitutional value. The chapter then focuses on the scope of the constitutional right to human dignity and the problem of partial overlap between the right to human dignity and other independent constitutional rights.
Jacob T. Levy
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195368321
- eISBN:
- 9780199867509
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368321.003.0003
- Subject:
- Law, Constitutional and Administrative Law
This chapter provides an account of variation in constitutional values and choices within a federation, grounding it in a conception of federalism as a pragmatic alternative to competing conceptions ...
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This chapter provides an account of variation in constitutional values and choices within a federation, grounding it in a conception of federalism as a pragmatic alternative to competing conceptions of the nature of constitutional choice. In what the chapter calls the moral-realist tradition, constitutional similarity ought to be the norm because the purpose of a constitution is to operationalize principles of justice that are at bottom universal. In contrast, in the democratic-positivist tradition, constitutional divergence is unremarkable because constitutions embody little more than the contingent choices of one political association or another. Federalism charts a middle course. By granting some autonomy to subnational units, federalism permits contingent choice and preference satisfaction, yet by subordinating subnational choices to national ones, it sets collectively determined limits on the permissible range of those choices—a kind of “localized universalism”, one might say, that results in a so-called “bounded variation”. It is argued that the benefits of such an arrangement include experimentation without instability, diversity without alienation, and the institutionalization of feasible change—although this need not always imply “progress” of a moral or any other kind.Less
This chapter provides an account of variation in constitutional values and choices within a federation, grounding it in a conception of federalism as a pragmatic alternative to competing conceptions of the nature of constitutional choice. In what the chapter calls the moral-realist tradition, constitutional similarity ought to be the norm because the purpose of a constitution is to operationalize principles of justice that are at bottom universal. In contrast, in the democratic-positivist tradition, constitutional divergence is unremarkable because constitutions embody little more than the contingent choices of one political association or another. Federalism charts a middle course. By granting some autonomy to subnational units, federalism permits contingent choice and preference satisfaction, yet by subordinating subnational choices to national ones, it sets collectively determined limits on the permissible range of those choices—a kind of “localized universalism”, one might say, that results in a so-called “bounded variation”. It is argued that the benefits of such an arrangement include experimentation without instability, diversity without alienation, and the institutionalization of feasible change—although this need not always imply “progress” of a moral or any other kind.
Jaklic Klemen
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780198703228
- eISBN:
- 9780191773051
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198703228.003.0004
- Subject:
- Law, EU Law, Constitutional and Administrative Law
Chapter 3 moves to the analytical presentation of Joseph Weiler’s version of constitutional pluralism. In stark contrast to epistemic pluralism, this version seeks to build a particular external ...
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Chapter 3 moves to the analytical presentation of Joseph Weiler’s version of constitutional pluralism. In stark contrast to epistemic pluralism, this version seeks to build a particular external substantive balance between the two confronting constitutional identities, the nation-state and the European one. The substantive balance is emphatically about the content (the what) of the constitutional discourse, but is such that it claims not to unduly emphasize one substantive identity over the other. This is what is meant by pluralism. In contrast to epistemic pluralism, this necessarily implies a great degree of commensurability between the authority and knowledge claims coming from the distinct constitutional orders in Europe. Explicating this approach, Weiler’s multiple different individual contributions are pulled together in a particular way so as to cohere his concrete conception of pluralism for the first time. The chapter ends by identifying a cluster of different ultimate values underpinning such an approach.Less
Chapter 3 moves to the analytical presentation of Joseph Weiler’s version of constitutional pluralism. In stark contrast to epistemic pluralism, this version seeks to build a particular external substantive balance between the two confronting constitutional identities, the nation-state and the European one. The substantive balance is emphatically about the content (the what) of the constitutional discourse, but is such that it claims not to unduly emphasize one substantive identity over the other. This is what is meant by pluralism. In contrast to epistemic pluralism, this necessarily implies a great degree of commensurability between the authority and knowledge claims coming from the distinct constitutional orders in Europe. Explicating this approach, Weiler’s multiple different individual contributions are pulled together in a particular way so as to cohere his concrete conception of pluralism for the first time. The chapter ends by identifying a cluster of different ultimate values underpinning such an approach.
Jaklic Klemen
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780198703228
- eISBN:
- 9780191773051
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198703228.003.0005
- Subject:
- Law, EU Law, Constitutional and Administrative Law
Chapter 4 focuses on Miguel Maduro’s version of pluralism. This has two interconnected dimensions. The first is “interpretive pluralism”: a specific proposal for a discursive framework that—similarly ...
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Chapter 4 focuses on Miguel Maduro’s version of pluralism. This has two interconnected dimensions. The first is “interpretive pluralism”: a specific proposal for a discursive framework that—similarly to epistemic pluralism—aspires to retain as much space as possible for self-determinations by different constitutional identities themselves. The second is “participative pluralism.” This represents the ultimate normative goal of Maduro’s conception, which is enhancement of participation and representation. It is believed that the use of the pluralist interpretive formulas (“interpretive pluralism”) in constitutional interpretation across Europe will lead to the enhancement of participation/representation as envisioned by participative pluralism. Both these key dimensions are first identified in different parts of Maduro’s writings and then brought together in an attempt at reconciliation, presenting a more complete picture of his conception of pluralism. Like Walker’s, this conception primarily appears within the discourse of the how. The ultimate value behind the conception is identified.Less
Chapter 4 focuses on Miguel Maduro’s version of pluralism. This has two interconnected dimensions. The first is “interpretive pluralism”: a specific proposal for a discursive framework that—similarly to epistemic pluralism—aspires to retain as much space as possible for self-determinations by different constitutional identities themselves. The second is “participative pluralism.” This represents the ultimate normative goal of Maduro’s conception, which is enhancement of participation and representation. It is believed that the use of the pluralist interpretive formulas (“interpretive pluralism”) in constitutional interpretation across Europe will lead to the enhancement of participation/representation as envisioned by participative pluralism. Both these key dimensions are first identified in different parts of Maduro’s writings and then brought together in an attempt at reconciliation, presenting a more complete picture of his conception of pluralism. Like Walker’s, this conception primarily appears within the discourse of the how. The ultimate value behind the conception is identified.
Rodney A. Smolla
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814741030
- eISBN:
- 9780814788561
- Item type:
- book
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814741030.001.0001
- Subject:
- Law, Constitutional and Administrative Law
American college campuses, where ideas are freely exchanged, contested, and above all uncensored, are historical hotbeds of political and social turmoil. In the past decade alone, the media has ...
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American college campuses, where ideas are freely exchanged, contested, and above all uncensored, are historical hotbeds of political and social turmoil. In the past decade alone, the media has carefully tracked the controversy surrounding the speech of Iranian President Mahmoud Ahmadinejad at Columbia, the massacres at Virginia Tech, the dismissal of Harvard's President Lawrence Summers, and the lacrosse team rape case at Duke, among others. No matter what the event, the conflicts that arise on U.S. campuses can be viewed in terms of constitutional principles, which either control or influence outcomes of these events. In turn, constitutional principles are frequently shaped and forged by campus culture, creating a symbiotic relationship in which constitutional values influence the nature of universities, which themselves influence the nature of our constitutional values. This book uses the American university as a lens through which to view the Constitution in action. Drawing on landmark cases and conflicts played out on college campuses, it demonstrates how five key constitutional ideas—the living Constitution, the division between public and private spheres, the distinction between rights and privileges, ordered liberty, and equality—are not only fiercely contested on college campuses, but also dominate the shape and identity of American university life. The book demonstrates that the American college community, like the Constitution, is orderly and hierarchical yet intellectually free and open, a microcosm where these constitutional dichotomies play out with heightened intensity.Less
American college campuses, where ideas are freely exchanged, contested, and above all uncensored, are historical hotbeds of political and social turmoil. In the past decade alone, the media has carefully tracked the controversy surrounding the speech of Iranian President Mahmoud Ahmadinejad at Columbia, the massacres at Virginia Tech, the dismissal of Harvard's President Lawrence Summers, and the lacrosse team rape case at Duke, among others. No matter what the event, the conflicts that arise on U.S. campuses can be viewed in terms of constitutional principles, which either control or influence outcomes of these events. In turn, constitutional principles are frequently shaped and forged by campus culture, creating a symbiotic relationship in which constitutional values influence the nature of universities, which themselves influence the nature of our constitutional values. This book uses the American university as a lens through which to view the Constitution in action. Drawing on landmark cases and conflicts played out on college campuses, it demonstrates how five key constitutional ideas—the living Constitution, the division between public and private spheres, the distinction between rights and privileges, ordered liberty, and equality—are not only fiercely contested on college campuses, but also dominate the shape and identity of American university life. The book demonstrates that the American college community, like the Constitution, is orderly and hierarchical yet intellectually free and open, a microcosm where these constitutional dichotomies play out with heightened intensity.
- Published in print:
- 2010
- Published Online:
- March 2013
- ISBN:
- 9780226767963
- eISBN:
- 9780226767987
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226767987.003.0005
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines what values other than legislative primacy contribute to the interpretation of statutes. It analyzes the competing values of stability and responsiveness to changing ...
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This chapter examines what values other than legislative primacy contribute to the interpretation of statutes. It analyzes the competing values of stability and responsiveness to changing circumstances, coherence, constitutional values, fair notice, support for law enforcement and the personal values of judges. This chapter examines several cases and suggests that courts strongly favor legislative primacy as a value, although they disagree over how best to be faithful to the lawmakers.Less
This chapter examines what values other than legislative primacy contribute to the interpretation of statutes. It analyzes the competing values of stability and responsiveness to changing circumstances, coherence, constitutional values, fair notice, support for law enforcement and the personal values of judges. This chapter examines several cases and suggests that courts strongly favor legislative primacy as a value, although they disagree over how best to be faithful to the lawmakers.
Jean Thomas
- Published in print:
- 2015
- Published Online:
- June 2015
- ISBN:
- 9780199677733
- eISBN:
- 9780191757259
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199677733.003.0002
- Subject:
- Law, Human Rights and Immigration, Public International Law
In the US the argument that private actors ought sometimes to be held responsible for individuals’ public law rights has been made since the earliest rights adjudication. In the main, it has ...
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In the US the argument that private actors ought sometimes to be held responsible for individuals’ public law rights has been made since the earliest rights adjudication. In the main, it has consistently failed. The reason for this failure can be understood as partly related to the method of argument employed. This chapter considers the ways in which the problem has so far been addressed, both theoretically and in practice, and outlines the limitations of existing mechanisms for enforcing public rights against private actors. It shows how approaches that extend the protections of public rights to the private sphere through ‘horizontalization’ retain the state as the central duty–bearer and thus fail to address the central problem of recognizing and limiting direct private obligations. It argues that these approaches are therefore overly reliant on judicial discretion, leading to uncertainty and judicial deference to existing private law rules.Less
In the US the argument that private actors ought sometimes to be held responsible for individuals’ public law rights has been made since the earliest rights adjudication. In the main, it has consistently failed. The reason for this failure can be understood as partly related to the method of argument employed. This chapter considers the ways in which the problem has so far been addressed, both theoretically and in practice, and outlines the limitations of existing mechanisms for enforcing public rights against private actors. It shows how approaches that extend the protections of public rights to the private sphere through ‘horizontalization’ retain the state as the central duty–bearer and thus fail to address the central problem of recognizing and limiting direct private obligations. It argues that these approaches are therefore overly reliant on judicial discretion, leading to uncertainty and judicial deference to existing private law rules.
Robert A. Burt
Frank Iacobucci (ed.)
- Published in print:
- 2017
- Published Online:
- May 2018
- ISBN:
- 9780300224269
- eISBN:
- 9780300231854
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300224269.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This chapter discusses the concept of law and the legal and social role of the courts—especially the U.S. Supreme Court—as a moral and social agent for change, particularly in protecting the minority ...
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This chapter discusses the concept of law and the legal and social role of the courts—especially the U.S. Supreme Court—as a moral and social agent for change, particularly in protecting the minority or the disadvantaged in society as opposed to favoring the strong or majority. This raises questions about who is the majority or minority or the stronger or the weaker, and who decides the answers to these questions. The chapter shows how restricting constitutional interpretation to the specific meanings of the original language is too narrow and, given the majestic generalities of that language, even conflicts with the original authors' intentions. But then again, freeing judges from objectively determinative standards excessively opens them to confusing personal preferences with enduring constitutional values.Less
This chapter discusses the concept of law and the legal and social role of the courts—especially the U.S. Supreme Court—as a moral and social agent for change, particularly in protecting the minority or the disadvantaged in society as opposed to favoring the strong or majority. This raises questions about who is the majority or minority or the stronger or the weaker, and who decides the answers to these questions. The chapter shows how restricting constitutional interpretation to the specific meanings of the original language is too narrow and, given the majestic generalities of that language, even conflicts with the original authors' intentions. But then again, freeing judges from objectively determinative standards excessively opens them to confusing personal preferences with enduring constitutional values.
