Interpretation Of Constitutional Rights Research Articles

What is purposive interpretation?

Purposive interpretation leads a double life. As a matter of constitutional practice, it forms the doctrine through which courts in Canada and around the world determine the concrete protections that abstract constitutional rights afford. However, as a matter of constitutional theory, purposive interpretation is routinely rejected as either an empty phrase that offers no alternative to established theories of constitutional interpretation or a dangerous doctrine that provides no basis for distinguishing between justified and unjustified interpretations of constitutional rights. This essay formulates a conception of purposive interpretation that is not vulnerable to these objections. The purposive approach to the interpretation of constitutional rights follows from a set of ideas about how legal interpretation differs from interpretation more broadly, how constitutional interpretation differs from interpretation in other legal domains, and how constitutional interpretation constrains both the purposes it attributes to particular provisions and the application of those purposes to particular contexts. My aim is to show that these ideas fit together in a coherent doctrinal whole that is neither empty nor dangerous. Purposive interpretation is not empty because it offers a genuine alternative to the presuppositions and structure of opposing interpretive paradigms. Purposive interpretation is not dangerous because it provides a principled set of resources for distinguishing between justified and unjustified interpretations.

The Legal Treatment of Muslims in Italy in the Age of Fear and Insecurity

AbstractAlthough diverging influences have always characterized the relation between religion and democracy, in Italy, tensions arising from these divergences are especially exacerbated by the country’s current religious diversity and plurality, and they are magnified when combined with chronic emergencies such as immigration and international terrorism. These critical factors complicate the application of freedom of religion and the supreme principle of secularism (principio supremo di laicità), which are essential parts of the Italian legal system. This article analyzes these aspects of the law by considering the relation between Islamic communities and the state. In particular, the article focuses on both endogenous influences (Italy’s traditional system of state-church relationship) and exogenous influences (immigration and international terrorism). These factors muddle the interpretation of constitutional rights, including the right of Muslims and Islamic groups to be equal and equally free before the law.

The Contextual Dependence of the Interpretation of Constitutional Rights: An Analysis from the Point of View of Semantic Holism

The analysis aims to reflect on how the external context conditions the legal interpretation of the constitutional provisions that recognize fundamental rights. To this end, some methodological indications from the field of philosophy of language are adopted, implicitly defending the possibility of a transposition, not mechanical and uncritical but analogical, of some essential acquisitions of semantic holism.

ПРИНЦИПЫ КОНСТИТУЦИОННОГО ТОЛКОВАНИЯ. ПРАКТИКА КОНСТИТУЦИОННОГО СУДА АЗЕРБАЙДЖАНСКОЙ РЕСПУБЛИКИ

The article studies four classical ways of interpretation of constitutional rights by constitutional justice body. The author concludes that in applying the four canons of interpretation, a sequence must be observed where the grammatical interpretation is the basic method of understanding the meaning of the Constitution and laws of the Republic of Azerbaijan on the issues of implementation of human rights and freedoms. Systematic and teleological interpretation are used as additional methods. The methods under consideration acts as a certain framework for judges (или The methods under consideration provided a framework for judges.). Thus, following them does not allow the constitutional justice bodies to go beyond their own competence. The analysis of classical methods of interpretation stimulates further research in this area, including a separate analysis that requires interdisciplinary interpretation, constitutional conformal interpretation, a comparative interpretation of constitutional text, etc.

Euthanasia and assisted dying: what is the current position and what are the key arguments informing the debate?

Assisted dying is a highly controversial moral issue incorporating both physician-assisted dying (PAD) and voluntary active euthanasia. End-of-life practices are debated in many countries, with assisted dying receiving different consideration across various jurisdictions. In this paper, we provide an analytic framework of the current position and the main arguments related to the rights and moral principles concerning assisted dying. Assisted dying proponents focus on the respect of autonomy, self-determination and forestalling suffering. On the other hand, concerns are raised regarding the interpretation of the constitutional right to life and balancing this with the premise of assisted dying, alongside the impacts of assisted dying on the doctor-patient relationship, which is fundamentally based on trust, mutual respect and the premise of 'first do no harm'. Our review is underpinning the interpretation of constitutional rights and the Hippocratic Oath with the premise of assisted dying, alongside the impacts of assisted dying on the doctor-patient relationship. Most clinicians remain untrained in such decision making, with fears against crossing key ethical divides. Due to the increasing number of cases of assisted dying and lack of consensus, our review enables the integration of ethical and legal aspects and facilitates decision making.

Interpretação constitucional comparativa: aproximação crítica e arcabouço metodológico

This paper addresses the comparative constitutional interpretation problem, especially in fundamental rights cases. Firstly, it exposes of the debate on judicial use of foreign law. Then, it explains three kinds of use of foreign law: mandatory, advisable and voluntary uses. The purpose of the paper is to offer a normative justification for voluntary use. For this, it proposes two main arguments already offered by Jeremy Waldron, but in weaker forms. After the failures of these arguments being exposed, two main conclusions are drawn. First, the courts and judges of a country can benefit themselves not only of a legal consensus among nations but also of unique experiences from other countries. For this, comparability criteria are necessary. Second, the best advice is not to treat like cases alike in the world, but to treat comparable cases in a comparative way. Finally, it proposes a methodological framework for the comparability analysis in the judicial interpretation of constitutional rights.

How proportional is proportionality?

Proportionality is a set of rules determining the conditions for a limitation of constitutionally protected rights. It is the mainstay of the protection of constitutional human rights in many Western democracies and worldwide. Aharon Barak’s Proportionality is probably the most important and comprehensive book written on the subject to date. The essay presents several key arguments concerning the weaknesses of proportionality in the model proposed and developed by Barak, and shows how Barak’s rejection of various arguments against proportionality is not fully convincing. The essay suggests that the benefits of Barak’s structuring of proportionality are more modest than Barak maintains; points out the weaknesses of Barak’s approach in regard to the interpretation of constitutional rights, which entails a trivialization of the rights and has problematic consequences for the interpretation and application of proportionality as well as undesirable symbolic connotations; and asserts that Barak’s approach increases the problem of incommensurability, which is inherent in the doctrine of proportionality. The essay claims that despite the importance of the book it does not provide a satisfactory answer to many difficult and complex problems regarding proportionality.

Contesting Expertise in Prison Law

Prisons present a special context for the interpretation of constitutional rights, where prisoner complaints are pitched against the justifications of prison administrators. In the United States, the history of prisoner rights can be told as a story of the ebb and flow of judicial willingness to defer to the expertise-infused claims of prison administrators. Deference is ostensibly justified by a judicial worry that prison administrators possess specialized knowledge and navigate unique risks, beyond the purview of courts. In recent years, expansive judicial deference in the face of “correctional expertise” has eroded the scope and viability of prisoners’ rights, serving to restore elements of the historical category of “civil death” to the legal conception of the American prisoner. In Canada too, courts have often articulated standards of extreme deference to prison administrators, both before and after the advent of the Charter of Rights and Freedoms, and notwithstanding that the Charter places a burden on government to justify any infringement of rights. Recently, however, two cases from the Supreme Court of British Columbia mark a break from excessive deference and signify the (late) arrival of a Charter-based prison jurisprudence. In each case, prisoner success depended on expert evidence that challenged the assertions and presumed expertise of institutional defendants. In order to prove a rights infringement and avoid justification under section 1, the evidence must illuminate and specify the effects of penal techniques and policies on both prisoners and third parties. The litigation must interrogate the internal penal world, including presumptions about the workings of prisoner society and conceptions of risk management.

Should Empathy Play any Role in the Interpretation of Constitutional Rights?

AbstractThis 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 in the claims and counterclaims of the parties. In the final section, the impact of empathetic judging on judicial minimalism will be briefly discussed.

Mental Illness and the Workplace: A National Concern

No country, however rich, can afford the waste of its human resources. Demoralization caused by vast unemployment is our greatest extravagance. Morally, it is the greatest menace to our social order. -Franklin D Roosevelt On a recent visit to Washington, I visited the Roosevelt Memorial. Although I do not sympathize with President Roosevelt's interpretation of constitutional rights, I was struck by some of the values he championed, and I've quoted one of the most inspiring inscriptions as the epigraph to this editorial. This quotation suggests that unemployment and work should be a national concern-that we should all attend to its effects. Roosevelt was referring to the national effects of the Great Depression; the recently released report of the Standing Senate Committee on Social Affairs, Science and Technology (the Kirby and Keon Commission) highlights, among other areas, the effects of clinical depression and other mental disorders on the Canadian workforce.1 The Commission's report supports a national strategy to address mental health and addictions in the workplace. With this report, Canada joins many other industrialized nations searching for a strategy to tackle this issue. However, the question of protecting worker health and safety is not as straightforward as it has been in the past. During the industrial revolution, when workers moved from agricultural trades to factories, books such as The Jungle1 exposed the horrendous conditions endured by many and called for workplace reform to protect workers' physical health and safety. Currently, we live in a technological revolution. This revolution has, in the last decade, introduced globalization, new modes of communication, and changes in workforce demographics that have created new occupational health challenges.3 5 In this age, rather than using their physical strength and risking physical injury, workers are increasingly called on to use their minds. Instead of toiling in sweatshops, workers have been increasingly exposed to stressful work environments characterized by tighter deadlines and increased production targets set with seemingly little consideration for individual workloads,6-8 at the same time as companies downsize and restructure.4,5 Further, stress associated with work is compounded by the additional stress of other life events, and reactions to all these stressors are influenced by other underlying risk factors. Herein lies the difficulty in finding an answer. According to a traditional occupational disease model, worker health is jeopardized by continuous exposure to hazardous employmentrelated conditions.9 However, the most advanced etiologic models of adult mental illness include not only factors related to work environment but also genetic vulnerability, developmental factors, neurobiological factors, childhood experiences, life events, chronic situations (such as a stressful home life), and the presence of other disorders.10 Each dimension's relative weight, and how the dimensions interact, is not yet understood. Consequently, we have a complex picture with no clear focus. Nevertheless, we are not without hope. In her paper published in this issue's In Review section, Dr Krupa1 ' reviews the current state of the evidence for interventions. She begins by emphasizing the importance of recognizing the complexity of work activities and demands. She also stresses the importance of distinguishing between disorder-related symptoms and the ability to fulfill work responsibilities; the answers to these questions will not be found solely in medical treatment. Her discussion focuses on interventions at the individual, employer, and workplace-organization levels. She notes that interventions aimed at both workers and employers offer the most promise. It appears that, globally, countries are seeking to implement complex strategies for a complex problem by balancing the role of public benefits (that is, financial supports), programs, health services, and legislation with the role of the workplace and the worker. …

Balancing, constitutional review, and representation

Balancing is one of the main issues in current debates on the interpretation of constitutional rights. Numerous authors have raised the objection that balancing is both irrational and subjective. Here it is argued that this objection is unjustified. To show this, balancing is grounded in a theory of discursive constitutionalism that connects the concept of balancing with the concepts of constitutional rights, of discourse, of constitutional review, and of representation. The main theses are these: first, balancing is based on a rational form of argument that can be made explicit by means of a Weight Formula; and second, constitutional review complies with the requirements of democratic legitimation to the extent that it succeeds in becoming an argumentative representation of the people in supplying this formula with arguments.