Results for 'constitutional rights'

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  1. Constitutional Rights and Proportionality.Robert Alexy - 2014 - Revus 22:51-65.
    There are two basic views concerning the relationship between constitutional rights and proportionality analysis. The first maintains that there exists a necessary connection between constitutional rights and proportionality, the second argues that the question of whether constitutional rights and proportionality are connected depends on what the framers of the constitution have actually decided, that is, on positive law. The first thesis may be termed ‘necessity thesis’, the second ‘contingency thesis’. According to the necessity thesis, (...)
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  2. Constitutional Rights, Balancing, and Rationality.Robert Alexy - 2003 - Ratio Juris 16 (2):131-140.
  3. A Theory of Constitutional Rights.Robert Alexy - 2002 - Oxford University Press UK.
    This book analyses the general structure of constitutional rights reasoning under the German Basic Law. It deals with a wide range of problems common to all systems of constitutional rights review. In an extended introduction the translator argues for its applicability to the British Constitution, with particular reference to the Human Rights Act 1998.
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  4.  1
    Constitutional Rights, Balancing, and Rationality.Robert Alexy - 2003 - Ratio Juris 16 (2):131-40.
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    Constitutional Rights -What They Are and What They Ought to Be.Carl Wellman - 2016 - Cham: Springer Verlag.
    This work explains the nature of constitutional rights. It does so by means of an analysis of the nature of law in general, the nature of constitutions, and the nature of rights. It looks in detail at several aspects of constitutional law, rights and institutions, as well as aspects related to public officials, private persons and associations. In addition, the book critically examines a considerable number of debates about whether some actual or proposed constitutional (...)
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  6. Specifying Constitutional Rights.John Oberdiek - 2010 - Constitutional Commentary 271 (1).
  7.  19
    Constitutional Rights, Balancing and the Structure of Autonomy.George Pavlakos - 2011 - Canadian Journal of Law and Jurisprudence 24 (1):129-153.
    The question of the character of constitutional rights norms is complex and admits of no easy answer. Without reducing the complexity of the issue, I attempt in this paper to formulate some clear views on the matter. I shall argue that constitutional rights reasoning is a species of rational practical reasoning that combines both balancing and the grounds as to why balancing is appropriate . Absent the latter type of reason, the application of constitutional principles (...)
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  8. Constitutional Rights for Nonresident Aliens.Alec D. Walen - 2009 - Philosophy & Public Policy Quarterly 29 (3/4):2.
    Nonresident aliens benefit from basic U.S. constitutional rights reciprocity of obligation requires as much, and recognizing their rights would not unduly interfere with U.S. action abroad.
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    Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse.Jacco Bomhoff - 2013 - New York: Cambridge University Press.
  10.  12
    Constitutive Rights.Eric J. Mitnick - 2000 - Oxford Journal of Legal Studies 20 (2):185-204.
    Prevailing accounts of the relationship between rights and identity impose a false choice between conceptions of rights as the instrument of self-invention or the foil to collective virtue. This article proposes an alternative conception of rights as constitutive of social relations and aspects of individual identity. To do so, it draws on H. L. A. Hart's famous distinction between special and general rights, and it describes the exclusionary and inclusionary conditions under which these forms of right (...)
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  11.  10
    Are constitutional rights personal?Linda Ross Meyer - 2000 - Legal Theory 6 (4):405-422.
    Professor Matthew Adler has argued that many constitutional rights are not personal moral rights, but that are pragmatic and instrumental in nature. 1 The reason rights are not personal, in Adlerthe constitutionality of a statute depends not just on how it affects someone, but on what it sayspersonal” legal disability that would set him apart from any other citizen, and is, therefore, not enforcing a personal right. Instead, Adler believes that constitutional rights are better (...)
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  12.  1
    Constitutional Rights, Moral Controversy, and the Supreme Court.Michael J. Perry - 2008 - Cambridge University Press.
    In this important book, Michael J. Perry examines three of the most disputed constitutional issues of our time: capital punishment, state laws banning abortion, and state policies denying the benefit of law to same-sex unions. The author, a leading constitutional scholar, explains that if a majority of the justices of the Supreme Court believes that a law violates the Constitution, it does not necessarily follow that the Court should rule that the law is unconstitutional. In cases in which (...)
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  13. Constitutional Rights and the Possibility of Detached Constitutional Interpretation.Wilfrid J. Waluchow - 2015 - Problema 9:23-52.
    In this paper I defend constitutional review against the charge that it neces- sarily runs afoul of democratic principle. In so doing, I draw both on Dworkin’s theory of constructive interpretation as well as Raz’s theory of detached normative statements and reasoning from a point of view. After arguing that constructive interpretation can be undertaken from a point of view other than that of the interpreter, I go on to argue for the following claims: (1) Constitutional interpretation and (...)
     
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  14. Constitutional rights and the rule of law.T. R. S. Allan - 2012 - In Matthias Klatt (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy. Oxford University Press.
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  15. Constitutional Rights and Democracy: A Reply to Professor Bellamy.Wilfrid J. Waluchow - 2013 - German Law Journal 14:1039-1051.
    -/- In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows (...)
     
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  16.  47
    Constitutional Rights and Democracy in the U.S.A.: The Issue -of Judicial Review.Rex Martin & Stephen M. Griffin - 1995 - Ratio Juris 8 (2):180-198.
  17. Constitutional rights and statutory limitations.Julian Rivers - 2012 - In Matthias Klatt (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy. Oxford University Press.
     
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  18. Constitutional rights and common law.Allan Trs - 1991 - Oxford Journal of Legal Studies 11 (4).
  19.  46
    Constitutional rights and judicial review.T. R. S. Allan - 2018 - Jurisprudence 9 (1):138-145.
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    The Global Model of Constitutional Rights.Kai Möller - 2012 - Oxford University Press.
    The rapid spread of judicially-enforced constitutional rights has been one of the most dramatic developments in modern law. This book argues that there is now a global model for how such rights should function, and develops an original, philosophically grounded, account of their nature and scope.
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  21. The Construction of Constitutional Rights.Robert Alexy - 2010 - Law and Ethics of Human Rights 4 (1):21-32.
    This article calls for the construction of constitutional rights as principles, rather than as rules. The rule construction conceives subsumption or classification as the appropriate form for the application of constitutional rights. It attempts, in this way, to avoid the problems associated with balancing. By contrast, the principles construction argues that balancing is inevitable and unavoidable. Balancing is at the very core of the proportionality test. The debate over the construction of constitutional rights is, (...)
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  22.  20
    Art and money: Constitutional rights in the private sphere?Graber Christoph Beat & Teubner Gunther - 1998 - Oxford Journal of Legal Studies 18 (1):61-73.
    The present debate on constitutional rights aims to protect the individual against the intrusive power of the state. Analysing the precarious relationship between art and money, the authors argue that constitutional rights need to be extended into the regimes of private governance. This requires four fundamental changes. (1) Constitutional rights can no longer be limited to the protection of individual actors. Instead, they need to be extended to guarantees of freedom of discourses. (2) The (...)
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  23.  28
    Collective Criminalization and the Constitutional Right to Endanger Others.Dennis J. Baker - 2009 - Criminal Justice Ethics 28 (2):168-200.
    The U.S. Supreme Court recently held that the Second Amendment of the Constitution protects an individual's right to bear and keep arms.1 The Court's opinion will stimulate f...
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  24.  8
    Establishing a constitutional ‘right of asylum’ in early nineteenth-century Britain.Thomas C. Jones - 2020 - History of European Ideas 46 (5):545-562.
    ABSTRACT For several generations before the First World War, the idea that the British constitution contained a ‘right of asylum' for foreign nationals was commonplace. Though this belief had profound consequences for Britain's treatment of political and religious exiles, its relations with foreign states, and the drafting of its extradition and immigration laws, there has been little enquiry into its origins. This article delineates the emergence of the idea of a constitutional ‘right of asylum', locating it in a series (...)
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  25.  57
    Justice, legitimacy, and constitutional rights.Wilfried Hinsch - 2010 - Critical Review of International Social and Political Philosophy 13 (1):39-54.
  26. A Theory of Constitutional Rights.Julian Rivers (ed.) - 2002 - Oxford University Press.
    This book analyzes the general structure of constitutional rights reasoning under the Geman Basic Law. It deals with a wide range of problems common to all systems of constitutional rights review. In an extended introduction the translator argues for its applicability to the British Constitution, with particular reference to the Human Rights Act 1998.
     
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  27. An Account of the Democratic Status of Constitutional Rights.Iñigo González-Ricoy - 2013 - Res Publica 19 (3):241-256.
    The paper makes a twofold contribution. Firstly, it advances a preliminary account of the conditions that need to obtain for constitutional rights to be democratic. Secondly, in so doing, it defends precommitment-based theories from a criticism raised by Jeremy Waldron—namely, that constitutional rights do not become any more democratic when they are democratically adopted, for the people could adopt undemocratic policies without such policies becoming democratic as a result. The paper shows that the reductio applies to (...)
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  28. Two dogmas of constitutionalism: Constitutional rights and judicial review.Pablo de Lora - 2002 - Rechtstheorie 33 (2-4):381-395.
  29. Minorities in India: Constitutional rights and actual governance.N. K. Dhondy - 2000 - Journal of Dharma 25 (3-4):325-340.
     
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  30.  71
    Is there a constitutional right to preconception sex selection?Carl H. Coleman - 2001 - American Journal of Bioethics 1 (1):27 – 28.
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  31. Is There a Constitutional Right To Privacy?Michael Vertin - 2000 - Lonergan Workshop 16:1-47.
  32. Minorities in India: Constitutional rights and actual governance-Response to Mr. Dhondy's paper.V. K. K. Nair - 2000 - Journal of Dharma 25 (3-4):341-344.
  33. Alexy's theory of constitutional rights and the problem of judicial review.Mattias Kumm - 2012 - In Matthias Klatt (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy. Oxford University Press.
     
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  34.  21
    Abortion: The husband's constitutional rights.Wesley D. H. Teo - 1975 - Ethics 85 (4):337-342.
  35.  19
    Foundationalism and constitutional rights: The contribution of pragmatism.Frederic R. Kellogg - 1987 - Journal of Social Philosophy 18 (3):43-52.
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  36.  6
    A Non-positivistic Concept of Constitutional Rights.Robert Alexy - 2020 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 33 (1):35-46.
    There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, (...) rights, according to the non-positivistic conception, also have an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights understood as positive rights and human rights understood as moral rights, and, with this, to the dual nature of constitutional rights. (shrink)
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  37. Hua jie fa lü yu dao de zhi zheng: yi xian fa xing quan li wei yuan ze = Resolving the Dispute Between Law and Morality: Constitutional Rights as Principles.Liqin Zou - 2013 - Beijng Shi: She hui ke xue wen xian chu ban she.
     
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  38. Ways of Solving Conflicts of Constitutional Rights: Proportionalism and Specificationism.José Juan Moreso - 2012 - Ratio Juris 25 (1):31-46.
    This paper deals with the question of the conflict of constitutional rights with regard to basic rights. Two extreme accounts are outlined: the subsumptive approach and the particularistic approach, that embody two main conceptions of practical rationality. Between the two approaches there is room for a range of options, two of which are examined: the proportionalist approach, which conserves the scope of rights restricting their stringency, and the specificationist approach, which preserves the stringency of rights (...)
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  39.  17
    The Reductionism of Global Models of Constitutional Rights.Vanessa MacDonnell - 2018 - The Law and Ethics of Human Rights 12 (1):73-101.
    In this Article I argue that the reductionism of global models of constitutional rights is problematic. Despite how they are labelled, these theories are typically modelled on the domestic constitutional law of an exclusive group of Western countries. The criteria for selecting these countries are not usually clearly or satisfactorily articulated. They then go on to present a simplistic version of the domestic constitutional law of the countries they are describing. The combined effect of these analytic (...)
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  40.  18
    Stability and Change under the Global Model of Constitutional Rights: A Reply to Vanessa MacDonnell.Kai Möller - 2018 - The Law and Ethics of Human Rights 12 (1):103-110.
    The essay responds to a challenge posed by Vanessa MacDonnell and examines the question of stability and change under the global model of constitutional rights. Constitutionalism offers the promise of both stability and justice, but it may seem that there will often be a tension between these values. While some have accused the global model, and in particular proportionality, of overemphasizing justice at the cost of stability, MacDonnell claims that it underemphasizes the necessity of social change. In this (...)
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  41.  31
    Right to Experimental Treatment: FDA New Drug Approval, Constitutional Rights, and the Public's Health.Elizabeth Weeks Leonard - 2009 - Journal of Law, Medicine and Ethics 37 (2):269-279.
    On May 2, 2006, a divided panel of the U.S. Court of Appeals for the District of Columbia, in a startling opinion, Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, held that terminally ill patients who have exhausted all other available options have a constitutional right to experimental treatment that FDA has not yet approved. Although ultimately overturned by the full court, Abigail Alliance generated considerable interest from various constituencies. Meanwhile, FDA proposed similar regulatory amendments, as have (...)
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  42.  6
    Right to Experimental Treatment: FDA New Drug Approval, Constitutional Rights, and the Public's Health.Elizabeth Weeks Leonard - 2009 - Journal of Law, Medicine and Ethics 37 (2):269-279.
    Do terminally ill patients who have exhausted all other available, government-approved treatment options have a constitutional right to experimental treatment that may prolong their lives? On May 2, 2006, a divided panel of the U.S. Court of Appeals for the District of Columbia, in a startling opinion, Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, held “Yes.” The plaintiffs, Abigail Alliance for Better Access to Developmental Drugs and Washington Legal Foundation, sought to enjoin the Food and (...)
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  43.  12
    Member Corporations, Property Corporations, and Constitutional Rights.David Ciepley - 2017 - Law and Ethics of Human Rights 11 (1):31-59.
  44.  10
    Commentary on Kant's treatment of constitutional right (metaphysics of morals II: general remark A, §§ 51-52 conclusion, appendix).Bernd Ludwig - 2009 - In Karl Ameriks, Otfried Höffe & Nicolas Walker (eds.), Kant's Moral and Legal Philosophy. Cambridge University Press. pp. 265.
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  45.  11
    Two Conceptions of Positive Liberty: Towards an Autonomy-based Theory of Constitutional Rights.Kai Möller - 2009 - Oxford Journal of Legal Studies 29 (4):757-786.
    In the jurisprudence of constitutional courts around the world, there is an emerging trend towards an autonomy-based understanding of constitutional rights: increasingly, rights are interpreted as being about enabling people to live autonomous lives, rather than disabling the state in certain ways. This article investigates the conception of autonomy employed by courts by presenting two candidates and examining which of them explains the current practice of constitutional rights law better. The first, labelled the excluded (...)
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    Fundamental Human Rights under the Nigerian Constitution: Right or Wrong?S. P. Agi - 2007 - Sophia: An African Journal of Philosophy 8 (2).
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    Should Empathy Play any Role in the Interpretation of Constitutional Rights?Lucia Corso - 2014 - Ratio Juris 27 (1):94-115.
    This paper explores the role that empathy can play in the interpretation of constitutional rights. It starts by analyzing the complex concept of empathy, comparing it with similar yet distinct concepts such as projection, sympathy and emotional contagion, then it discusses the widespread distrust of empathy among lawyers and legal thinkers. It will be argued that empathy can play a significant role in the interpretation of constitutional rights, mostly in identifying the interests and needs put forward (...)
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  48.  26
    Judicial review and the protection of constitutional rights.Sadurski Wojciech - 2002 - Oxford Journal of Legal Studies 22 (2):275-299.
    Does the effective protection of constitutional rights require a system of robust judicial review? This differs from the question of whether judicial review is democratically legitimate, although the two are often merged. The dominant liberal constitutional discourse concerning the requirement of judicial review has arguably suffered from a degree of insensitivity to the actual effects of specific judicial review systems. In contrast to a fact‐insensitive approach, I suggest that the ‘matrix’ of rights‐protection in any specific system (...)
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  49. The Content and Purpose of a Theory of Constitutional Rights.Robert Alexy - 2002 - In Julian Rivers (ed.), A Theory of Constitutional Rights. Oxford University Press.
     
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  50.  11
    Autonomy and end-of-life advance directives in Italy: the courts' struggle against the political majority's attacks on constitutional rights.Stefano Biondi - 2010 - Clinical Ethics 5 (2):67-72.
    This paper explores the significance of a landmark Italian judgement regarding end-of-life advance directives, emphasizing the legal and political context in which the decision was made. The analysis particularly focuses on the political majority's attempt to overturn the outcome of the courts' proceedings – thereby challenging the country's institutional order and jeopardizing constitutional rights.
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