Proportionality (1) Schlink, Bernhard
The Oxford Handbook of Comparative Constitutional Law,
05/2012
Book Chapter
This article presents a conception of the proper role of the proportionality standard. It begins by discussing proportionality and justice, the elements of proportionality, and approaches to ...proportionality analysis. It then discusses steps of proportionality analysis; the structure of proportionality analysis; evolution, constitutional foundation, and distribution of the principle of proportionality; the strength of rights and freedoms in proportionality analysis; and the future of proportionality analysis.
Hercules in Germany? Schlink, Bernhard
International journal of constitutional law,
10/2003, Letnik:
1, Številka:
4
Journal Article
Recenzirano
This contribution to "Roundtable: An Exchange with Ronald Dworkin" argues that the dichotomies in Dworkin's theories of constitutional law concerning judicial decision making are too narrow. The ...author, as a German scholar of constitutional law, discusses semantic intentions; rights, principles, & interpretation; the questionable existence of one right answer, & the exaggerated expectations of the ideal, or Herculean, judge. A Herculean judge is not desirable because a judge relies on the work of the legislature rather than his own convictions. A judge's narrower decision on a controversial matter would permit the problem to ripen through social & political debate until laws are developed. A judge must cooperate with other judges, the system of courts & authorities, the legislature, & the executive branch so as to give judicial decisions an institutional significance. L. A. Hoffman
Why Carl Schmitt? Schlink, Bernhard
Constellations (Oxford, England),
October 1996, Letnik:
2, Številka:
3
Journal Article
Recenzirano
Explores the reasons for Carl Schmitt's importance in the legal culture of the Federal Republic of Germany. His significance is not simply a product of his important contributions to constitutional ...law, nor from the analytical & systematic power of his theoretical work, but is found in the development of legal culture in the postwar period. Rejecting positivism & decisionism in the 1950s & 1960s, the 1970s witnessed a recurrence of strife that rekindled Schmitt's friend-enemy decisionism. Moreover, the emphasis on his development as a person rather than his thought suggests a fascination with the Third Reich & an attempt to integrate it into Germany history. By recognizing the banality of evil & its intellectual products instead of the personal, however, fascism will be more effectively incorporated into German history. J. Cowie
En la Cultura Jurídica Alemana, Carl Schmitt llegó a tener un prestigio más notable que otros teóricos del derecho alemanes contemporáneos suyos. Aquí se examina a qué se debe eso. ¿A la contribución ...del pensamiento de Schmitt para interpretar y aplicar la Ley Fundamental? ¿A las contribuciones de su teoría política? La respuesta a las dos preguntas es negativa. Su fama se debe al lugar que le otorga el mito sobre el positivismo y el decisionismo del derecho en el régimen nazi. Se debe a la dificultad de integrar el pensamiento jurídico del Tercer Reich en la historia de la cultura legal alemana. Un intento de conseguirlo fue recurrir a una equívoca interpretación ad hoc de la persona de Schmitt.
Hate Speech and Self-Restraint Jacobson, Arthur; Schlink, Bernhard
The Content and Context of Hate Speech,
04/2012
Book Chapter
It is a truism of comparative constitutional law that the United States takes an absolutist position against the criminalization of hate speech, and that it is alone among the constitutional ...democracies in taking this position. The First Amendment, as interpreted by the courts, bars states and the federal government from banning hate speech just because it is hate speech and for no other reason. Other constitutional democracies do ban hate speech just as hate speech, and for that reason alone. They may justify the ban differently; they may differ on its extent and consequence. But one way or the other, to one degree or another, they ban hate speech and the United States does not.The truism recognizes, of course, that the United States, in fact, does ban hate speech. What the United States does not do – and constitutionally cannot do – is ban hate speech as such. However, if hate speech falls within one of the well-known exceptions to protected speech, then the First Amendment does not stop the government from banning it. Possibly relevant exceptions include “fighting words” and words that create a “clear and present danger” of imminent lawlessness. Yet the exceptions are limited. They permit little more than the criminalization of words that are tantamount to an incipient assault, and neither of them permits the naked and unadorned criminalization of hate speech.
Interest in constitutionalism and in the relationship among constitutions, national identity, and ethnic, religious, and cultural diversity has soared since the collapse of socialist regimes in ...Eastern Europe and the former Soviet Union. Since World War II there has also been a proliferation of new constitutions that differ in several essential respects from the American constitution. These two developments raise many important questions concerning the nature and scope of constitutionalism. The essays in this volume—written by an international group of prominent legal scholars, philosophers, political scientists, and social theorists—investigate the theoretical implications of recent constitutional developments and bring useful new perspectives to bear on some of the longest enduring questions confronting constitutionalism and constitutional theory. Sharing a common focus on the interplay between constitutional identity and individual or group diversity, these essays offer challenging new insights on subjects ranging from universal constitutional norms and whether constitutional norms can be successfully transplanted between cultures to a consideration of whether constitutionalism affords the means to reconcile a diverse society's quest for identity with its need to properly account for its differences; from the relation between constitution-making and revolution to that between collective interests and constitutional liberty and equality. This collection's broad scope and nontechnical style will engage scholars from the fields of political theory, social theory, international studies, and law. Contributors. Andrew Arato, Aharon Barak, Jon Elster, George P. Fletcher, Louis Henkin, Arthur J. Jacobson, Carlos Santiago Nino, Ulrich K. Preuss, David A. J. Richards, Michel Rosenfeld, Dominique Rousseau, András Sajó, Frederick Schauer, Bernhard Schlink, M. M. Slaughter, Cass R. Sunstein, Ruti G. Teitel, Robin West
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