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Balancing Competing Individual Constitutional Rights: Raising Some Questions, Taunya Banks

Taunya Lovell Banks

Despite increasing support for global human rights ..., some scholars and constitutional democracies, like the United States, continue to resist constitutionalizing socio-economic rights. Socio-economic rights, unlike political and civil constitutional rights that usually prohibit government actions, are thought to impose positive obligations on government. As a result, constitutionalizing socio-economic rights raises questions about separation of powers and the competence of courts to decide traditionally legislative and executive matters. ... [W]hen transitional democracies, like South Africa, choose to constitutionalize socio-economic rights, courts inevitably must grapple with their role in the realization of those rights.... Two questions immediately come to mind: (1) …

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Authorizing Subnational Constitutions In Transitional Federal States: South Africa, Democracy, And The Kwazulu- Natal Constitution, Jonathan Marshfield

Jonathan Marshfield

Not all federal systems permit their constituent units to adopt constitutions. This Article considers whether, and under what circumstances, subnational constitutions tend to contribute to the volatility or stability of their respective federal systems. By examining the role that subnational constitutions played in South Africa’s celebrated democratization, this Article observes that a transitional federal state can increase its flexibility and adaptability by merely authorizing subnational constitutions. The Article concludes that federal systems, particularly those undergoing fundamental change, can be better equipped to manage regime-threatening conflicts and perpetuate a democratic political culture if they permit constituent units to adopt constitutions.

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Gunneflo - Demokrati Och Lagprövning: Om Rättfärdigandet Av En Positiv Respektive Negativ Inställning Till Lagprövning [Democracy And Judicial Review: On The Justicfication Of A Positive And A Negative Attitude To Judicial Review In A Democracy], Markus Gunneflo

Markus Gunneflo

This article focuses on the justification of a positive and a negative attitude respectively towards judicial review in a democracy. The analysis is performed by analyzing texts by four American theorists theorists with different opinions on the subject: Robert Dahl, Jeremy Waldron, Erwin Chemerinsky and Ronald Dworkin. The study shows that there are significant disagreements concerning democratic values between those who take a positive and those who take a negative attitude to judicial review inter alia on the understanding of democracy in terms of process or substance, rule by the broad mass of the people or rule by an elite, …

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Full-Text Articles in Law

Balancing Competing Individual Constitutional Rights: Raising Some Questions, Taunya Banks

Taunya Lovell Banks

Authorizing Subnational Constitutions In Transitional Federal States: South Africa, Democracy, And The Kwazulu- Natal Constitution, Jonathan Marshfield

Jonathan Marshfield

Gunneflo - Demokrati Och Lagprövning: Om Rättfärdigandet Av En Positiv Respektive Negativ Inställning Till Lagprövning [Democracy And Judicial Review: On The Justicfication Of A Positive And A Negative Attitude To Judicial Review In A Democracy], Markus Gunneflo

Markus Gunneflo