Jurisprudence Of Rights Research Articles

Avant-Garde Literature and the Ground of Rights

With its demonstration of human frailty and finitude, avant-garde literature offers a more rigorous jurisprudence of rights than juridical or legal discourse is capable of offering itself. The paper takes as example the lowering of fault requirements in Canadian criminal law, which weakens common-law protection of the fundamental right to liberty through a fault standard that is “not concerned with what was in the accused’s mind, but with what should have been there.” Avant-garde literature, in opposition, demonstrates—and cannot help but demonstrate, in a mode unique to its discourse—the real limits of seeing and knowing, as shown through a reading of Claude Ollier’s La Mise-en- Scène.

Texas Supreme Court Justice Bob Gammage: A Jurisprudence of Rights and Liberties by John C. Domino

Reviewed by: Texas Supreme Court Justice Bob Gammage: A Jurisprudence of Rights and Liberties by John C. Domino Steven H. Wilson Texas Supreme Court Justice Bob Gammage: A Jurisprudence of Rights and Liberties. By John C. Domino. (Lanham, Md., and other cities: Lexington Books, 2019. Pp. x, 273. $95.00, ISBN 978-1-4985-7858-5.) Early in this study of the jurisprudence of Justice Robert (Bob) Gammage, John C. Domino states his hope that his book "will fill a major gap that exists in [End Page 368] the literature documenting the history of judicial politics in Texas" (p. 10). The author succeeds by keeping his focus squarely on that main topic: judicial politics. This book is not a biography; within a dozen pages in the first chapter, Domino has already placed his subject on the bench, having skipped lightly over Gammage's military service, his occasional college teaching, and even his climb up the rungs of Texas Democratic Party politics. Gammage served in the Texas House, the Texas Senate, and the United States House of Representatives, and he was briefly assistant attorney general of Texas. Domino lingers on Gammage's legislative career just long enough to describe his affiliation with the "Dirty Thirty" (a reform-minded group in the state capitol) and to summarize his role in the quixotic attempts to amend the Texas constitution in the 1970s (p. 2). These political tales are key to understanding Gammage's liberal views after his election to the judiciary. The second chapter is dedicated to Gammage's decade on the Third Court of Appeals in Austin (1982–1991), where he became a robust defender of individual rights and civil liberties. Gammage found support for his opinions as often in the state constitution as in federal judicial precedent. One notable example came in Kirby v. Edgewood Independent School District (1989), in which Mexican Americans argued that Texas's funding of public schools though local taxes violated the principle of equal protection by discriminating against students living in low-income school districts. A trial court ruled in favor of the plaintiffs, but the Third Court of Appeals reversed the ruling 2–1, arguing in part that access to education was not a fundamental right. In his long dissent, Gammage argued that, although the U.S. Constitution (and the federal judiciary) had not recognized such a right, the Texas constitution explicitly charged the state with providing public education. His views were vindicated the next year by the Texas Supreme Court, which reversed the Third Court and ruled in favor of the plaintiffs. The next chapter similarly covers Gammage's ascension to the Texas Supreme Court (1991–1995). Altogether, Gammage wrote more than 250 opinions, making an exhaustive analysis impractical. Instead, Domino offers summaries of milestone opinions that he believes best represent Gammage's "jurisprudence of rights and liberties" (p. 11). Justice Gammage continued to expound progressive views, but soon found himself again in the dissenting minority as the conservative majority on the court increased year by year, election by election. Faced with the prospect of losing his own seat unless he chased after the millions of donor dollars as was becoming the norm in state judicial campaigns, Gammage shocked the state (and gained national attention) by abruptly resigning in 1995. Domino tells us where the rising tide of dollars was coming from and why it flooded court races: conservative Democrats had given way to Gammage's generation of liberal Democrats, whose support for plaintiffs and progressive causes led to a backlash. Texas courts turned from blue to Republican red as lobbyists for business interests (including the medical community) joined with conservatives to spend whatever was necessary to elect judges who shared their views. The next chapter, "Court Wars: Judicial Politics and Reform," covers Gammage's subsequent leading role in the decade-long effort to reduce the role [End Page 369] of money in judicial campaigns. He and other reformers variously proposed limiting contributions, capping spending, and, more radically, eliminating the popular election of judges. In a concluding chapter, Domino gives a balanced summary of the goals and mixed achievements of these efforts. Steven H. Wilson Lehigh University Copyright © 2021 The Southern Historical Association

Administrative Law and Rights in the UK House of Lords and Supreme Court

Over the last three years the UK Supreme Court has undertaken renewed efforts to forge a jurisprudence of rights within the common law of judicial review in cases such as Kennedy v Information Commissioner, R (Osborn) v Parole Board, Pham v Secretary of State for the Home Department, Keyu v Secretary of State for Foreign and Commonwealth Affairs, and R (Unison) v Lord Chancellor. Much has been written of these developments from a contemporary perspective, with a great deal of commentary dedicated to analysing individual cases. The contribution of this paper is to place these developments in the context of the development of the modern system of judicial review, and to offer a ‘long view’ of the role which the House of Lords and Supreme Court have attributed to ‘rights’, including human and fundamental rights, within administrative law doctrine. In turn this serves to deepen our understanding of current trends. The paper charts the place of rights within administrative law over four decades, from 1977 to 2017. The paper identifies and analyses four episodes in the interrelationship between administrative law and ideas of rights within the House of Lords and Supreme Court. First, from the late 1970s and through the 1980s the House of Lords actively sought to forge an integrated, unified and coherent field of public law, and in doing so constructed the basic superstructure of contemporary judicial review. This new system was based in a public interest conception of public law which held that public law’s principal function was to ensure proper exercise of public power in the public interest. The corollary of this focus on protection of the public interest was that the courts marginalised the role of rights within judicial review. Second, through the 1990s the House of Lords came under pressure, due to the UK’s commitments under the European Convention on Human Rights, to give greater recognition and protection to basic rights within administrative law doctrine. The House of Lords duly took a number of steps to afford basic interests greater protection through the common law of review, albeit the courts were constrained in how far they could develop the common law by the public interest framework that had only recently been erected. Third, the 2000s saw the entry into force of the Human Rights Act 1998, which created a field of law specifically constituted to afford strong protection to basic rights and which afforded English courts the tools to ensure compliance with Convention obligations. With the emergence of this new field the pressure that had built up during the 1990s to develop the common law of review along rights-based lines fell away. With this pressure release the common law continued to develop broadly in line with the public interest framework put in place during the 1980s. Fourth, from around 2014 onwards the new Supreme Court has shown renewed interest in developing a rights-jurisprudence at common law, and ‘synthesising’ the common law of review and the law under the HRA, albeit there are divisions among the Justices as to how precisely the two fields ought to interrelate. The result has been that the common law of review, and human rights law, have been pushed into a state of flux. The new jurisprudence is characterised by a core tension. On the one hand the Justices have been moved to introduce a new discourse of rights into common law review by extra-legal drivers, including Brexit and government threats to repeal the HRA. On the other hand responding to these ‘external’ concerns is liable to undermine the ‘internal’ coherence of the common law of review. Thus, the paper tells a story of an apex court steering a significant field of common law doctrine over time, with a view to contextualising and analysing contemporary trends. In doing so the paper illustrates the different forces that have shaped judicial development of the common law of judicial review.

Personal Data Protection in Nigeria: Reflections on Opportunities, Options and Challenges to Legal Reforms

The right to personal data protection is, without doubt, an important right in the jurisprudence of rights in the contemporary information society. It is becoming as crucial as other orthodox human rights and also attracting significant attention from academics, lawyers, human rights activists and policy makers. In spite of the growing attention data protection receives at international and regional levels, Nigeria is still lagging behind many competitor states like South Africa in establishing an effective legal framework to protect personal data. Individuals’ personal data is being collected and used without any serious form of control to check against abuse. This paper reflects on opportunities, option and challenges to legal reforms on data protection in Nigeria. It contends that certain legislative and practical challenges stand in the way of an effective legal regime on personal data protection. The paper suggests appropriate legal reforms that are needed to enable prevent the increasing risks of violating the right to data protection in a country that is making rapid advances in Information and Communication Technology but hamstrung by an outdated regulatory framework.

The right to life in Islam Study of rights and jurisprudential rulings comparison

The right to life was the first fundamental rightsand the most important doctrinal rights approved by Islamic law for human dignity, and comes after other rights, it does not make sense to all the rights with the lack of this right. It is the right and most sacred and respected in the eyes of Islamic law, which necessitated the save and sponsorship and not abuse it, which it Makdt religious texts in the Qur'an and Sunnah frequent and categorical Sindh and significance.
 On the other hand these texts proved that the right to life in Islam Aigv when the human right to life, but in the right to life of animals and plants and all other living creatures.
 This research has dealt with the subject of the right to life and provisions that protect and preserve this right in Islamic law by detail because it is the most important kinds of rights in Islam, and the aim of the research is to demonstrate the keenness of Islam in its provisions and the provisions and purposes of the first priorities to save the soul and the bloodshed and respect the right to life, unlike what is happening today the waste of this right in the name of Islam with what we notice from a strong concern in the text and legal provisions of the emphasis on the sanctity of this right and worth the big
 In Islamic jurisprudence, we find all doctrinal matters related to this fundamental right, and associated legitimacy of the provisions, so ensure that this research to track some Matalq the right to life of the subjects, and the most important provisions in Islamic jurisprudence research and study in two sections: Section I with four demands: the first dealt with the concept of the right life, and in the second: rights jurisprudence in Islam, and in the third and fourth dealt with the right to life in the texts of the Qur'an and Sunnah. The second topic in which three demands: the first dealt with the right to life in the jurisprudence of rights, and the second dealing with some of the rulings affirming the sanctity of the right to life in a brief and whole, and in the third the right to life of the fetus in comparative jurisprudence will stand him Abeche detail in the Islamic Comparative Jurisprudence as permitted by Search volume first and because it represents the beginning of a fetus from the trip Second life.

Jurisprudence of Rights in Kesavananda Bharati

There is no more ambiguous word in legal and juristic literature than the word ‘right’. All the doctrines and concepts which invoke human dignity and freedom necessarily presuppose the existence of rights. Kesavananda Bharati forms one of the milestones in Indian constitutional jurisprudence. The main issue revolved around the question whether the Fundamental Rights conferred upon the citizens are ‘inviolable’ and ‘sacrosanct’, and thus, unamendable. This paper is an attempt to understand the jurisprudence of rights as discussed by the Hon’ble Supreme Court of India in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, wherein the Hon’ble Court had tried to discuss and understand the nature, extent and scope of the rights available to the people under the constitution.

From Interest-Based Balancing to Rights-Based Balancing: Two Models of Balancing in the Early Days of American Constitutional Balancing

Balancing tests are ubiquitous in current constitutional law. This Article reviews the development of constitutional balancing over the first five decades of the 20th century and identifies the formation of two types of balancing during these years: interests-based and rights-based balancing. Since these two types of balancing are still present within current constitutional law, this review may also help in better understanding balancing today. The Article attempts to show how the early development of balancing in the early 20th century by legal Progressives such as Holmes, Pound and Cardozo, was related to their criticism on the jurisprudence of rights, and their emphasis on a jurisprudence of interests. Balancing meant for the Progressives that rights were lowered to the status of interests, and that the Court had to balance them with other interests, rather than use them as trumps against public policy considerations. Later, however, balancing was used hand in hand with a heightened rhetoric of rights. The Article attempts to place the change from interests-based to rights-based balancing in historical context (in the change from the Lochner era to the post Lochner era) and explain its meaning - mainly its correlation with judicial activism (rights-based) and judicial deference (interests-based) and its interrelation with the ideas of judicial formalism and anti-formalism. Finally the Article suggests that the original interests-based model may have been more adapt to the anti-formalist movement from which it sprang, and to the metaphor of balancing itself, than the later rights-based model.

Rewriting Australian Liberalism: The High Court's Jurisprudence of Rights

The High Court's recent rights jurisprudence has been unusually controversial. This paper argues that it is possible to evaluate the important developments in the Court's jurisprudence by examining the philosophical foundations of its understanding of rights. Relying on the distinction between utilitarian rights and natural and human rights, the paper discerns in the Court's traditional legalism as well as its more recent jurisprudence of implied rights a consistent commitment to a utilitarian conception of rights. In contrast, the paper argues that the Court's human rights jurisprudence represents a fundamental shift in its view of rights and judicial review, with far-reaching consequences for Australian constitutionalism and liberalism.