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Article
Publication date: 1 January 2006

Elia Marzal

The object of this research is the reconstruction of the existing legal response by European Union states to the phenomenon of immigration. It seeks to analyse the process…

Abstract

Purpose

The object of this research is the reconstruction of the existing legal response by European Union states to the phenomenon of immigration. It seeks to analyse the process of conferral of protection.

Design/methodology/approach

One main dimension is selected and discussed: the case law of the national courts. The study focuses on the legal status of immigrants resulting from the intervention of these national courts.

Findings

The research shows that although the courts have conferred an increasing protection on immigrants, this has not challenged the fundamental principle of the sovereignty of the states to decide, according to their discretionary prerogatives, which immigrants are allowed to enter and stay in their territories. Notwithstanding the differences in the general constitutional and legal structures, the research also shows that the courts of the three countries considered – France, Germany and Spain – have progressively moved towards converging solutions in protecting immigrants.

Originality/value

The research contributes to a better understanding of the different legal orders analysed.

Details

Managerial Law, vol. 48 no. 1/2
Type: Research Article
ISSN: 0309-0558

Keywords

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Book part
Publication date: 6 May 2008

George Thomas

Popular constitutionalists seek to recover the popular sovereignty foundations of American constitutionalism, bringing the people in as active participants in the…

Abstract

Popular constitutionalists seek to recover the popular sovereignty foundations of American constitutionalism, bringing the people in as active participants in the constitutional enterprise as they create and refashion the Constitution by “majoritarian and populist mechanisms” (Amar, 1995, p. 89). The result is to recover an understanding, in FDR's words, of constitution as a “layman's document, not a lawyer's contract” (Kramer, 2004, p. 207). This understanding has deep roots in American constitutionalism, tracing its lineage back to the founding and, as popular constitutionalists insist, finds powerful expression in the likes of The Federalist and Abraham Lincoln (Ackerman, 1991; Tushnet, 1998). In exercising popular sovereignty, the people founded the Constitution, but they did not simply retreat from the trajectory of constitutional development. Rather, as Bruce Ackerman argues, since the Constitution of 1787 the people have spoken in a manner that has re-founded the Constitution giving us a “multiple origins originalism” (Kersch, 2006a, p. 801; see also Amar, 1998 and 2005). In turning to founding era thought and the notion of constitutional foundations, popular constitutionalists like Ackerman and Amar make common cause with conservatives who turn to original intent, but then they seek to synthesize this understanding with democratic expressions of popular will by emphasizing both formal and informal constitutional change, giving us layered “foundings,” and a more complex version of “living constitutionalism.” Such constitutional change, however, can only legitimately come from an authentic expression of “We the People.”

Details

Special Issue Constitutional Politics in a Conservative Era
Type: Book
ISBN: 978-0-7623-1486-7

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Abstract

Details

The Rise of Hungarian Populism: State Autocracy and the Orbán Regime
Type: Book
ISBN: 978-1-83867-751-0

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Book part
Publication date: 4 May 2020

Chris Kendall

This chapter examines the delicate balance achieved by apex courts in new democracies when dealing with impunity for rights violations during times of transitional…

Abstract

This chapter examines the delicate balance achieved by apex courts in new democracies when dealing with impunity for rights violations during times of transitional justice. While international law has clearly rejected amnesties for past rights violations, domestic politics sometimes incorporate amnesties as part of larger peace settlements. This puts courts in the difficult situation of balancing the competing demands of law and politics. Courts have achieved equipoise in this situation by adopting substantive interpretations and procedural approaches that use international law’s rights-based language but without implementing international law’s restrictions on amnesties. In many cases, courts do this without acknowledging the necessarily pragmatic nature of their decisions. In fact, oftentimes courts find ways of avoiding having to make any substantive decision, effectively removing themselves from a dispute that could call into question their adherence to international legal norms that transcend politics. In doing so, they empower political actors to continue down the road toward negotiated peace settlements, while at the same time protecting the courts’ legitimacy as institutions uniquely situated to protect international human rights norms – including those they have effectively deemphasized in the process.

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Article
Publication date: 1 October 2004

L. van Schalkwyk

In 1994, after the 1993 Constitution had been adopted, the Katz Commission questioned the constitutionality of some provisions of the Income Tax Act. The purpose of this…

Abstract

In 1994, after the 1993 Constitution had been adopted, the Katz Commission questioned the constitutionality of some provisions of the Income Tax Act. The purpose of this article is, firstly, to follow up on the progress made in amending the provisions concerned and, secondly, to establish reasons for the lack of success achieved by taxpayers who attack the constitutionality of certain provisions. Some progress has been made, but in this article, the author argues that SARS should amend section 104(2) of the Act. The establishment of a specialist ombudsman’s office is also proposed. Such an office that could assist taxpayers to enforce their constitutional rights against the Commissioner is the essential missing element.

Details

Meditari Accountancy Research, vol. 12 no. 2
Type: Research Article
ISSN: 1022-2529

Keywords

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Book part
Publication date: 15 January 2013

Dagmar Soennecken

While many consider court involvement in immigration matters a given, in liberal nation-states, there is actually a substantial degree of variation. This chapter revisits…

Abstract

While many consider court involvement in immigration matters a given, in liberal nation-states, there is actually a substantial degree of variation. This chapter revisits two “critical junctures” in the early immigration histories of Canada and Germany to show that institutions and policy legacies are not just historical backdrop, but actually shaped the strategies of political actors, subsequent institutional configurations, and policy options for long periods of time, thereby revealing unintended consequences, as well as alternative paths that the involvement of the courts (and other actors) could have taken.

Details

Special Issue: Who Belongs? Immigration, Citizenship, and the Constitution of Legality
Type: Book
ISBN: 978-1-78190-432-9

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Book part
Publication date: 26 February 2016

Brandon Nichole Wright

To identify challenges which prison inmates face in obtaining meaningful access to the courts in the absence of constitutionally mandated access to a prison law library.

Abstract

Purpose

To identify challenges which prison inmates face in obtaining meaningful access to the courts in the absence of constitutionally mandated access to a prison law library.

Methodology/approach

Beginning with a historical framework, the research explores a study of three pivotal legal cases, highlighting how the prison law library doctrine has evolved over time. Further secondary source research is conducted to illustrate the importance of the issue to the modern day inmate.

Findings

Jurisprudence of the prison law library doctrine never clearly defines what alternative measures to a prisoners right to access a library are or can be. Many decisions simply list suggestions and leave it to the correctional facility to tailor reasonable measures that work with their institution, heavily relying upon a separation of powers justification.

Research limitations/implications

The present research implicates a continuity of a lack of meaningful access to the courts to underserved communities.

Social implications

The present research provides a necessary starting point for further sociological field research into the area of prison law libraries as a Fourteenth Amendment necessity. This research illustrates a foundational flaw in providing inmates with meaningful access to courts and will educate judges and prison administrators alike about this constitutional violation.

Originality/value

Moreover, the present research provides librarians, attorneys, judges, politicians, community members, prison officials, and prison inmates with the vital information necessary to uphold the prisoners Due Process right to meaningful access to the court.

Details

Perspectives on Libraries as Institutions of Human Rights and Social Justice
Type: Book
ISBN: 978-1-78635-057-2

Keywords

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Book part
Publication date: 14 April 2016

Thomas M. Keck and Kevin J. McMahon

From one angle, abortion law appears to confirm the regime politics account of the Supreme Court; after all, the Reagan/Bush coalition succeeded in significantly…

Abstract

From one angle, abortion law appears to confirm the regime politics account of the Supreme Court; after all, the Reagan/Bush coalition succeeded in significantly curtailing the constitutional protection of abortion rights. From another angle, however, it is puzzling that the Reagan/Bush Court repeatedly refused to overturn Roe v. Wade. We argue that time and again electoral considerations led Republican elites to back away from a forceful assertion of their agenda for constitutional change. As a result, the justices generally acted within the range of possibilities acceptable to the governing regime but still typically had multiple doctrinal options from which to choose.

Details

Studies in Law, Politics, and Society
Type: Book
ISBN: 978-1-78635-076-3

Keywords

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Book part
Publication date: 9 April 2003

Matthew J Moore

The author argues that the familiar distinction between interpretive and non-interpretive theories of constitutional interpretation obscures another important distinction…

Abstract

The author argues that the familiar distinction between interpretive and non-interpretive theories of constitutional interpretation obscures another important distinction: that between hermeneutically open and hermeneutically closed theories. Closed theories seek resolution to constitutional conflict by employing methods of interpretation that are intuitively persuasive. Open theories deny that such methods are always available, and seek resolution of conflict through a combination of legal, political, and social means. The author argues that closed theories have failed to live up to their implicit promise of self-justification, and examines the practice of constitutional interpretation in Canada and Australia to support this view.

Details

Studies in Law, Politics and Society
Type: Book
ISBN: 978-1-84950-209-2

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Book part
Publication date: 9 September 2020

Chris Thornhill

This chapter proposes a sociological reconstruction of the emergence of citizenship as a source of legitimacy for political institutions, and it focuses on examining the…

Abstract

This chapter proposes a sociological reconstruction of the emergence of citizenship as a source of legitimacy for political institutions, and it focuses on examining the historical processes that first gave rise to this concept. It explains how citizenship has its origins in the transformation of feudal law, a process that culminated in patterns of military organization that characterized the rise of the early modern state in Europe. On this basis, it describes how the growth of constitutional democracy was integrally marked by the militarization of society and explains that military pressures have remained palpable in constitutional constructions of citizenship. In particular, it argues that, through the early growth of democracy, national citizenship practices were closely linked to global conflicts, and they tended to replicate such conflicts in national contexts. It concludes by showing how more recent processes of constitutional norm formation, based largely in international human rights law, have acted to soften the military dimensions of citizenship.

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