Constitutional courts (CCs) are more and more often facing situation in which the status of entities of legal relation escapes public – private distinction. The reasons for this include i.a. the fact that states delegate their tasks to private actors and use private legal forms of action. On the other hand, in the relations between private entities we have often to do with a significant economic or social dominance of one of them, which disturbs the balance between them. To ensure efficiency of fundamental rights CCs develop different instruments that make it possible to apply constitutional provisions also in formally private relations. In this way, CCs play an active role in publicization of private relations. The analysis of the judicial decisions of CCs in particular countries proves that despite significant differences between their legal systems and tools used by CCs (Drittwirkung, state action theory etc.) the mechanism of this publicization is based on universal argumentation.
In periods of economic crisis, social rights have proved to be fragile and neglected by States. It is exactly in these periods, however, that these rights show their intrinsic fundamentality. Constitutional States, in order to achieve good governance, in compliance with the rule of law, must guarantee social rights even in times of crisis; only justifiable setbacks can be accepted.
This understanding represents an important development in public international law; good governance is no longer regarded as a neoliberal construction, but as a necessary instrument for States to cope with its constitution and international duties in guaranteeing all human rights, including social rights. Fundamental rights, understood as a whole, demand enforcement of all kinds of rights, realizing the rule of law, as a structuring pillar in good governance, which must go beyond the “publicly promulgated, equally enforced and independently adjudicated”.
The last decade of financial turmoil in Spain has caused the reconfiguration of its Welfare State. We can confirm this statement looking to the field of the right to adequate housing. Legislatures, courts and public administrations in all the different levels (local, regional, domestic and international) have coped with an increasing social vulnerability in relation with the access and stay in the house, offering us a laboratory to think about what is the best way to realise the right to housing.
The objective of this paper is to analyse the recent evolution in the legal nature of this right. Hence, we will take into account the legislative amendments, the forward and backward movements in the constitutional and European case-law, and the wakeup calls from the organs of the universal system of protection of fundamental rights, for the sake of evaluating whether we have come closer to an actual building of an effective subjective right to housing.
The purpose of this study is to analyze the role of constitutional jurisdiction in the application of fundamental principles, focusing on the dignity of the human person, in contravention of the principle of legality, also contained in constitutional norms, especially regarding transgendering / objective requirements for entering the public service, more specifically, in the Armed Forces. Thus, it will be investigated the contemporary problematic affects post-positivism, that is, judicial discretion based on an open, flexible system, so that individual guarantees are in harmony with the legal effects produced, through hermeneutics, so that respect for the right of the personality, can confer dignity, freedom of the use of one’s own body and equality to defend minorities, legitimizing the right to obtain judicially the change of gender in the civil registry, with repercussion in the most diverse spheres of law, without prejudice to institutional legality.
Through principle of precedent and influence of obiters, Supreme Court decisions on reservation have become alienated from historical struggles of depressed classes. The original intent of building inclusive society through reservation is making way for populist demand for reservation on economic basis.
Two new developments on this issue have taken place since 2018. Firstly, the Supreme Court decided in Jarnail Singh (2018) that ‘creamy layer’ applies to Scheduled Castes and Scheduled Tribes as well. Secondly, a constitution amendment in January 2019 inserted reservation for economically weaker sections other than SCs, STs and OBCs, on the basis of family income. These are instances where depressed classes are identified primarily on economic basis both by the judiciary and legislature.
The research intends to explore whether the judiciary with support from the legislators, is re-writing jurisprudence of Articles 15 and 16 contrary to original intent, in the name of interpretation?
Can I host an all-female dinner in my flat? Can I make a room in my flat available to female tenants only? Can I pay female workers less than male workers? This paper aims to identify to what extent constitutional law should be concerned with such questions, as well as if it should supply the relevant method for resolving them. There is a terse relationship between the idea of horizontality (the application of constitutional rights to disputes between private parties) and the identity of constitutional rights as public law claims regulating the process of governing (Loughlin 2003). Horizontal extensions of rights are normally justified by reference to dignity or globalization (Clapham 2006; Teubner 2012). This paper advances an alternative approach. It argues that an internally coherent theory of horizontality for democratic constitutions can be based on a single jurisdictional test of equal access to the public sphere, understood not through a spatial but through a communicative lens.