Suchergebnisse

ResumenEl concepto de "positivismo" puede encontrarse en una gran variedad de materias tal como la sociología, el derecho o la filosofía. Así, no existiría un positivismo, sino positivismos. Sin embargo, fue un hombre sólo quien precisó esta innovación terminológica y conceptual: el francés Auguste Comte. Sus aspiraciones a una reorganización social duradera y radical hicieron evolucionar su "espíritu positivo" y su "filosofía positiva" en busca de lo que se llama positivismo. Pero, ¿qué significa exactamente esa palabra? Más aún, ¿existiría un positivismo jurídico comtiano? Para responder a esas preguntas, haré un análisis comparativo del derecho constitucional francés y de la cultura jurídica brasileña.AbstractBehind the term "positivism" lies a multitude of currents of thought in fields as varied as sociology, law or philosophy: therefore, there would not be one but positivisms. Yet it is one man who is at the origin of this terminological and conceptual innovation that upset the nineteenth century: the French Auguste Comte. The influence of his philosophy on the construction of Brazilian thought, both political and social, is certain. But what about Brazilian law? Would legal positivism be of "comtian" essence? To answer these questions, it will be proceeded to a comparative method between French constitutional law and the Brazilian legal culture.

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme will result in a tidal wave of religious claimants striking down government action. Our Article presents an observation that undermines these central criticisms. Far from being "anomalous" or "out of step" with our constitutional traditions, religious exemptions are just a form of "as-applied" challenges offered as a default remedy elsewhere in constitutional adjudication. Courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror the exemptions critics fear in the context of religious exercise. The Article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.

This book offers one of the rare empirical studies on the different meanings of proportionality as part of a global constitutional discourse. It develops and applies a theoretically informed comparative methodology for the study of differences in the use of legal transfers. Beyond the transplant versus culture controversy, it enriches our understanding of the relationship between law and its social context. Beyond the common law and civil law cleavage, it provides an in-depth comparison of French, English and Greek judicial review, rendering some core features of these systems accessible to non-initiated readers. The last part of the book provides insights as to the different visions of Europe underlying different phases of European integration and thus enriches our understanding of the process of integration through law

This book offers one of the rare empirical studies on the different meanings of proportionality as part of a global constitutional discourse. It develops and applies a theoretically informed comparative methodology for the study of differences in the use of legal transfers. Beyond the transplant versus culture controversy, it enriches our understanding of the relationship between law and its social context. Beyond the common law and civil law cleavage, it provides an in-depth comparison of French, English and Greek judicial review, rendering some core features of these systems accessible to non-initiated readers. The last part of the book provides insights as to the different visions of Europe underlying different phases of European integration and thus enriches our understanding of the process of integration through law.