Law Commons^™

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

A New American Dilemma?: U.S. Constitutionalism Vs. International Human Rights, Stanley N. Katz

University of Miami Law Review

No abstract provided.

August 9, 2013: The Christian Case Against Gay Marriage, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Christian Case Against Gay Marriage“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 28, 2013: Pro-Life Liberalism, Bruce Ledewitz

Hallowed Secularism

Blog post, “Pro-Life Liberalism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 14, 2013: Political Grandstanding On Gay Marriage, Bruce Ledewitz

Hallowed Secularism

Blog post, “Political Grandstanding on Gay Marriage“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 11, 2013: Should We Discard The Constitution?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Should We Discard the Constitution?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 2, 2013: Is Opposition To Gay Marriage Irrational?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is Opposition to Gay Marriage Irrational?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Fundamental Rights, Private Law, And Societal Constitution: On The Logic Of The So-Called Horizontal Effect, Florian Roedl

Indiana Journal of Global Legal Studies

The paper raises the issue of a normative justification of the horizontal effect of fundamental rights in private law. Justification in this sense means that the reasons given are neither functional nor instrumental, but that the reasons are supposed to be subject to the intrinsic logic of private law. In traditional doctrine, the reason usually given to confer horizontal effect to fundamental rights is a deferral to the constitution: The constitutional text decides whether and how fundamental rights apply to private legal relationships. This answer implies that fundamental rights are either logically or normatively alien to private law, that they …

Transnational Corporations' Outward Expression Of Inward Self-Constitution: The Enforcement Of Human Rights By Apple, Inc., Larry Cata Backer

Indiana Journal of Global Legal Studies

Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms, engages in both a descriptive and a normative project-the former looking to the incarnation of an abstraction and the later to the development of a set of presumptions and principles through which this incarnation can be judged. Constitutional theory is conventionally applied to states-that is, to those manifestations of organized power constituted by a …

June 29, 2013: The Other Side Of The Us Supreme Court Decisions, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Other Side of the US Supreme Court Decisions“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Main Structural Characteristics Of Global Constitutionalism., Elizabeth Lvova

Elizabeth Lvova

Nowadays current global problems stand as burning challenges of multi-level governance and reflect the importance of advanced cooperation of the states. Moreover the expansion of international human rights revealed the necessity of modification of international legal methods of common values security, shifting them on the global level. In these conditions modern international public law vividly evolved and is apt to reconfiguration including altering positions from cooperation to constitutionalization. Modifying relations among the international public authorities and the global activity of modern international actors (individuals, transnational companies and business organizations, international non-governmental organizations, etc.) pointed out the changes in the international …

June 1, 2013: The Economy, The Poor And Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Economy, the Poor and Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 10, 2013: The Executioner In Chief, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Executioner in Chief“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

February 3, 2013: The Response To Obama’S Contraception Initiative, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Response to Obama’s Contraception Initiative“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 24, 2013: What Was President Obama’S Speech About?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Was President Obama’s Speech About?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 17, 2013: I Agree With Some Of The Words Of Pastor Louie Giglio, Bruce Ledewitz

Hallowed Secularism

Blog post, “I Agree With Some of the Words of Pastor Louie Giglio“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Don’T Close Guantánamo, Jennifer Daskal

Jennifer Daskal

Thanks to the spotlight placed on the facility by human rights groups, international observers and detainees' lawyers, there has been a significant, if not uniform, improvement in conditions.

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Freedom From Ignorance: The International Duty To Provide Public Education, Areto A. Imoukhuede

Faculty Scholarship

This paper argues that public education is an international human right that the U.S. ought to recognise and protect. Recognising a right to public education would correct a major inconsistency in U.S. law by bringing education rights docrtine more in line with international human rights law. This piece discusses how current U.S. education rights doctrine is inconsistent with U.S. tradition and legal precedent. It then demonstrates how international law recognises public education as a fundamental duty of government before arguing for why the U.S. is obligated to follow international law regarding the right to public education.

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller

Faculty Scholarship

In this essay, Professor Darrell Miller responds to Professor Gregory Magarian's criticism of the manner in which judges, advocates, and scholars have used the First Amendment to frame Second Amendment interpretive questions.

Can Compulsory Health Insurance Be Justified? An Examination Of Taiwan's National Health Insurance , Chuan-Feng Wu

Journal of Law and Health

Since a great paradox lies beneath the universal health insurance mandate debate in both Taiwan and the U.S., Taiwan’s experience clarifying the constitutionality of its compulsory universal health insurance program might provide valuable lessons to the U.S. The goal of this Article is to provide a theoretical basis, based upon the human rights impact assessment in public health policies and a Rawlsian theory of justice, to decide whether the restriction on individual liberty imposed by Taiwan’s compulsory NHI is constitutionally justified. An analytic four-step assessment is established to evaluate the NHI’s burden on individual liberties: (1) examine the importance, legitimacy, …

Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman

Faculty Scholarship

No abstract provided.

Victory Without Success? – The Guantanamo Litigation, Permanent Preventive Detention, And Resisting Injustice, Jules Lobel

Articles

When the Center for Constitutional Rights (CCR) brought the first habeas cases challenging the Executive’s right to detain prisoners in a law free zone at Guantanamo in 2002, almost no legal commentator gave the plaintiffs much chance of succeeding. Yet, two years later in 2004, after losing in both the District Court and Court of Appeals, the Supreme Court in Rasul v. Bush handed CCR a resounding victory. Four years later, the Supreme Court again ruled in CCR’s favor in 2008 in Boumediene v. Bush, holding that the detainees had a constitutional right to habeas and declaring the Congressional …

Dignity Rights: Courts, Constitutions, And The Worth Of The Human Person, Erin Daly

Erin Daly

The right to dignity is now recognized in most of the world's constitutions, and hardly a new constitution is adopted without it. Over the last sixty years, courts in Latin America, Europe, Asia, Africa, the Middle East, and North America have developed a robust jurisprudence of dignity on subjects as diverse as health care, imprisonment, privacy, education, culture, the environment, sexuality, and death. As the range and growing number of cases about dignity attest, it is invoked and recognized by courts far more frequently than other constitutional guarantees. Dignity Rights is the first book to explore the constitutional law of …

Desafíos Para Los Derechos De La Persona Ante El Siglo Xxi: Familia Y Religión / Sfide Per I Diritti Della Persona Nel Xxi Secolo: Famiglia E Religione / Challenges Of Individual Rights In The Xxi Century: Family And Religion, Edoardo C. Raffiotta, Antonio Pérez Miras, Germán M. Teruel Lozano

Germán M. Teruel Lozano

Facing continuous changes and evolving social contexts that are a characteristic of a pluralistic society, a law professional encounters difficulties with re-arranged traditional institutions such as family and marriage, as well as difficulties in redefining the role of religion in our societies, especially in relation to individual rights and liberties within these institutions. To address these important topics, the author reviews the approach to the study of the challenges facing the constitution, and in particular the rights of the individual, in our multicultural societies.

Desafíos Para Los Derechos De La Persona Ante El Siglo Xxi: Ciencia Y Vida / Sfide Per I Diritti Della Persona Nel Xxi Secolo: Vita E Scienza / Challenges Of Individual Rights In The Xxi Century: Life And Science, Antonio Pérez Miras, Germán M. Teruel Lozano, Edoardo C. Raffiotta

Germán M. Teruel Lozano

Scientific advances often go beyond the classic thoughts of Law. Rapidly, new discoveries and the development of new techniques question fundamental aspects of human existence and the future of our species. So the law and legal operators cannot stand still when faced with the challenges posed by new discoveries and techniques, especially applied to humans. In this book the reader will find many works that examine these challenges, which arise with respect to constitutionalism, and in particular to the rights of the individual; intense debates, sometimes difficult to reconcile from the moral, but that cannot be ignored in the law.

El Reconocimiento Constitucional De Los Derechos De La Persona Y Sus Puntos Ciegos En La Constitución De Cádiz, Germán M. Teruel Lozano

Germán M. Teruel Lozano

Desafios Para Los Derechos De La Persona Ante El Siglo Xxi: Internet Y Nuevas Tecnologías / Sfide Per I Diritti Della Persona Nel Xxi Secolo: Internet E Nuove Tecnologie / Challenges Of Individual Rights In The Xxi Century: The Internet And New Tecnologies, Germán M. Teruel Lozano, Antonio Pérez Miras, Edoardo C. Raffiotta

Germán M. Teruel Lozano

The technological advances in recent decades have had an exceptional impact on the model of society causing what can be considered a true "revolution", which is both social and cultural and economic and legal. In particular, the Internet has made possible the birth of a new "civic habitat" that creates new opportunities for people to exercise their rights and freedoms in a space that knows no boundaries or time limits. Nevertheless, the Internet may also represent a new source of risk for the individual and his rights, thus giving rise to new challenges for their protection. Therefore this work seeks …