Courts and fundamental rights: evolutions
Panel formed with individual proposals.
This paper proposal explores the shrinking space for civil society and its defenders in Europe. Drawing from various case studies, it sheds light on the widespread judicial harassment of lawyers representing anti-government voices. The liberal order being undermined by populist politicians in many parts of the world, there is strong evidence that governments abuse their powers and use the judiciary to stigmatize and criminalize activists for their work. As a consequence, it became increasingly difficult for lawyers to exercise their profession. Azerbaijan and Russia, for instance, have a long history of politically motivated convictions against civil society activists and being reminded by the international community to comply with human rights standards. Against this backdrop, this paper looks at the relationship between lawyers, courts and politics. It concludes with a critical assessment of the current international human rights system to tackle judicial wrongdoing more effectively.
The proposal seeks to analyze the impeachment as a mechanism of institutional control of political actors, searching for its historical and theoretical bases in common law, so as to uncover the sources of the Brazilian originalist model. One of the objectives was to place the general idea of responsibility within the scope of representative democracy, accounting for failures resulted from frustration of expectations and/or abuse of power. While identifying distinctions between political accountability and legal responsibility, it was appropriate to bring forth the requirement of legal violation in classical Athenian precedents (eisangeliai). In the end, this analysis goes over historical mutations of the impeachment: a) establishment of procedural parameters (British first cases) - b) inceptive prerequisite of legal violation (Stuart period) - c) attemptable specification of appropriate legal hypotheses (US) - d) constitutional provision of precise categories of legal violation (Brazil).
I analyze the ways constitutional amendments are a vehicle for expanding understandings of rights and thereby serve as an alternative to rights-expansive court decisions. I focus on the role of rights-expanding constitutional amendments in U.S. states, which present an ideal case for analyzing this phenomenon, because state constitutional amendment processes are sufficiently flexible that enacting amendments to secure rights is a viable alternative to pursuing rights-expansive judicial rulings. By identifying recent U.S. state constitutional amendments that have expanded rights and the reasons why groups have opted to pursue the amendment route, I contribute to a better understanding of the conditions under which groups will turn to pass constitutional amendments to expand rights, the rights most likely to be protected through passage of amendments, and the consequences of relying on amendments rather than court decisions to update understandings of rights.
The article analyzes the role of the Supreme Court of Justice in the democratic environment of Mexico, highlighting that it is a court with a performance that is more reactive than proactive, which implies that their strict adherence to the orthodoxy of the procedures, does not give rise to issues of a social nature that need to be measured with an optical constitutional and regulations that meets the feel of concerns related to new conditions of life in Mexican society. It analyzes the role it has played since 2018 in which it highlights the protectionism of human rights as opposed to judicial control of power in the context of a government that violates the Constitution and judicializes politics against its adversaries.
In recent decades, a good part of the literature on civil disobedience has challenged John Rawls‘s classic liberal model of civil disobedience by normalizing disobedience as part of democratic politics. It has little to say, however, on how courts should deal with normalized disobedience. I showcase how Taiwan‘s courts have dealt with disobedience since 2008, a time when social and political movements began to be energized by a government seeking closer ties with China. I analyzed how the courts negotiated legality, social legitimacy, and political divide. I identify five models of judicial responses, which include “static formal law“, “conflict management“, “tolerance“, “dynamic formal law“, and “adjudicating change“. I argue that step by step, Taiwan‘s courts were driven to adjust and relax legality in order to accommodate disobedience, and yet such tampering with legality poses risks to the institutional legitimacy of the judiciary and further aggravates political polarization.
The main objective of this research is to elaborate a detailed guide on the most relevant aspects related to case law on the right to education in Brazil. Based on four cases ruled by the brazilian Supreme Court, we seek to explore three points: the increasing judicialization of the issue after 2000´s - the confused nature of said legal right (social, individual or collective) - and, finally, ideologically, the contrast between the theoretical republicanism that inspired our founding fathers and the jurisprudential communitarianism. In this way, it was possible to formulate some conclusions about the judicial reasoning of the Supreme Court: a) the increase in cases resulted from changes in governmental policies on education - b) in Brazil, the right to education is often entangled with other rights such as freedom and equality - c) despite not expressing themselves explicitly about political-ideological directions, Justices tend to align themselves with the communitarian bias.