Judicial Enforcement Of Rights Research Articles

India: A Model for the Enforcement of Economic, Social, and Cultural Rights

Under the modern international human rights regime, all people are entitled to two categories of rights: civil and political rights and economic, social, and cultural rights. While the judicial enforcement of civil and political rights is commonly accepted in virtually every country in the world, there is a significant degree of hostility towards the judicial enforcement of economic, social, and cultural rights. Critics have long held that the enforcement of these rights in the courtroom would be inherently undemocratic and unmanageable. This belief, and the general aversion to the judicial enforcement of these rights, is primarily rooted in the fact that the enforcement of these rights would require compelling the government to spend vast sums of money in the form of welfare programs. However, India has overcome these criticisms and emerged as a model for the enforcement of these rights. The following paper will serve to lay a foundational understanding of the modern international human rights regime, look to the functionality of both sets of rights, and examine how Indian jurisprudence has come to allow the enforcement of economic, social, and cultural rights in the courtroom. From there, this paper will examine PUCL v. Union of India, the landmark case that recognized the right to food in India, the impact this case has on the lives of the Indian people, and the economic impact of protecting the right to food in an attempt to demonstrate that the judicial enforcement of these rights is not only possible, but can also be done in an effective manner.

Constitutionalism and rights protection in Mexico and Brazil: comparative remarks

Comparative exercises between constitutional law in Brazil and in Mexico may seem destined to be exercises of identifying a reduced set of commonalities in an ocean of difference. The article, however, aims to suggest to what extent the opposite might be closer to the truth, and provide some sense of the amount of parallels between the two countries when viewed through constitutional lenses. Despite divergent paths of historical evolution in the XIX and the XX centuries, there are elements that confer to contemporary constitutional systems in Brazil and Mexico an air of commonality. The article underlines at least three of them: (i) commonalities in patterns of constitutional genesis and change; (ii) the existence of generous constitutional declarations of rights coupled with a varied assortment of rights-protecting channels in both places; and (iii) the existence in the two countries of old Supreme Courts with extensive jurisdictional menus and ample space for transformative action at their disposal. On the other hand, the main differences identified and analyzed in the article occur in the domain of rights protection and include the system of judicial enforcement of rights and the public profile of the two Supreme Courts.

The I·CONnect-Clough Center 2017 Global Review of Constitutional Law

The Italian Constitutional Court has long characterized its position within the constitutional system by exercising a significant effort in coordinating its powers both with other constitutional institutions (“horizontal relationality”) and with international and supranational law (“vertical relationality”). Accordingly, our report on constitutional developments in 2016 primarily focused on aspects of vertical relationality, while our 2017 report focused on horizontal relationality. These dimensions remained crucial in 2018: in particular, the Court intensified its capacity of relationality with civil society, by organizing an unprecedented calendar of visits by constitutional judges in public schools and prisons. Last year’s case law also stands out for an apparent judicial engagement on fundamental rights. The Court reasserted its crucial role in one of the most classical and characterizing fields of constitutional adjudication. While this concern emerges more clearly in crucial developments concerning limits to the judicial enforcement of rights (and focusing in particular on significant decisions reported in Part II in the field of the correction of correctional harshness, alternatives to mandatory sentences, and end-of-life choices), it runs through many other segments of the 2018 ICC’s case law (Part III).

Towards a Common Framework of Collective Redress in Europe? An Update on the Latest Initiatives of the European Commission

The essay describes the main contents of the Recommendation and the Communication issued in June 2013 by the European Commission on the topic of collective redress with the view to outlining a set of common and harmonized principles that should inspire Member States in their respective regulations on group actions for the judicial enforcement of rights granted under EU law.

How Global is Global Constitutionalism?: Comments on Kai Moller's The Global Model of Constitutional Rights

Kai Möller’s The Global Model of Constitutional Rights1 is an ambitious project. In this book, he aims to develop a theory of rights which could explain the main features of what he calls the “global model of constitutional rights.” These main features are as follows: rights inflation, positive obligations and socioeconomic rights, horizontal effects, and balancing and proportionality.2 According to him, despite the success of the so-called global model, especially regarding judicial practice, there is still no comprehensive theory able to explain it. Still according to him, such a comprehensive theory should be able to explain which values are protected by rights and what their limits are, as well as establish the proper relation between judicial enforcement of rights and democracy. The main features of Möller’s theory are as follows: it is a substantive, reconstructive, and general theory, in contrast to formal, normative, or particular theories. In the following sections, I will focus on the first two characteristics and attempt to analyze whether (i) his reconstructive theory can be substantive, and whether (ii) his substantive theory can be global. Additionally, since the proportionality test is a central feature of Möller’s global model, I will also analyze one specific element of his account of this test.

Realism, Pragmatism and the Appellate Judge

In colnmon law systems today, the nature of the appellate judicial role is xtill a subject fot intense debate. In the comnaon law world what defines a 'great' judge renzains a matter of permanent fascination and, in some respects, deep controversy. In fact, ambivalence about the character of judicial functions is only to be expected in legal systelns where judicial authority is, on the one hand, traditionally traced (as in classical conamon law thought) to cultural sources (the judge seen as guardian and interpreter of columunity values or of al1 ancient, even timeless, cultural wisdom) but, on the other, is practically based in a constitutional framework locatiI1g judiciaries politicAlly as part of the governmental structure of the state. The conditions of debate seen1 only to intensify as the regulatory scope and functions of the state grow. In these circumstances, recent legal thought in the common law world has reinterprete(l the position of the judge prirnarily in two broad but dis;tinct ways, each a response to the proliferation of modern governmental controls and regulatory strategies. One approach has tried to renovate and reintelpret, in the light of modern political conditions, something like the classical cotumon law conception of judges as voices of the culture or community in which they adjudicate; asserting, reflecting and protecting its values expressed through law. While jurists such as Roscoe Pouncl an(l Lon Fuller can be understood as having contributed in various ways to this line of approach, Ronald Dworkin is widely recognised as its most important contemporary theoretical exponent. Dworkin has tried to justify the judicial enforcement of rights as part of the legal matrix of the political community's values, and }1AS insisted upon a clear distinction between a judicial commitment to legal principle and the governmental task of forming and promoting policy. From a different viewpoint, an emphasis on the roots of the judge's authority in the social or cultural colltext of cldjudication may make it possible to recognise adjudication, alongside arbitration an(l Ine(liation, as part of a continuum of mechanisms of communal peace1llaking, tlle clistinctions between these being defined partly by the relative distancing of the decision-maker fronl tlle social context of relationships in connection with which a dispute is to be reselved.'