Law and human rights are increasingly estranged from their factual dimension. Self-understanding/definition along with personal feelings/inner statuses are acquiring relevance, especially in the interpretation of domestic/HR courts. The shift “from facts to feelings“ is visible in the area of LGBT rights, through which new paradigms of legal protection are emerging. The paper firstly focuses on...
Fundamental Rights as “Legal Rights and Interests“ in Chinese Administrative Litigation
Since the Qi Yuling case, the main focus of Chinese constitutional law has turned to the protection of fundamental rights. Doctrinal legal studies do not only cover abstract questions such as the third party effect of fundamental rights or the state‘s duty to protect, but also the analysis of specific fundamental rights. In addition, there...
Genetic Identity: A Mereological Fallacy in the Law?
Genetic identity often differs from the established forms of cultural identity (ethnicity, gender, class, citizenship) or family law status. Over the past two decades, however, we can observe that genetic features have become more and more important elements of personal identity. Genetic testing and genetic screening, paternity testing and forensic identification have emerged as powerful...
Governmental xenophobia targeting the internal “Others“ in Europe
The instruments of enforcing the strategy of “governmental xenophobia“, even though being used mostly against foreigners – the migrants, ale also implemented towards another category of minorities, who have been part of European societies for many centuries, living here legally and peacefully: the Roma people. The type of hostility and demonization of that group is...
Hart, Bentham, and Constitutionalism
Hart claims that Bentham‘s theory of law is a command theory; and that Bentham‘s theory cannot explain ‘legally limited supreme legislature‘ [LLSL]. His claim assumes that judicial review is the archetype of LLSL. I attempt a threefold task. First, I will present Bentham‘s explanation of judicial review, and argue that for Bentham, judicial review is...
Holocaust survivors and their Polish passports – a saga of refusals
Professor Aaron Seidenberg was born in 1943, in the Warsaw Ghetto, as a citizen of Poland, even though his Polish homeland was in ruins, under German occupation. Saved by a Polish family and miraculously reunited with his mother, an Auschwitz Death March survivor, he emigrated to Israel. For more than 15 years, Professor Seidenberg has...
How do judges manage risks for life?
Authorities have to be on the alert regarding potential causes of human rights violation. Human rights instruments require from them to take action in order to secure the rights of those within their jurisdictions. The extent of these positive obligations is not unlimited and depends on many factors, among which a risk assessment can play...
Hungarian Regulation from the View of Strasbourg
The Hungarian regulation on secret information gathering was subject of the ECtHR (Szabó and Vissy v. Hungary, no. 37138/14., 12/01/16) in which two activists of an NGO complained that they might have been subjects of secret information gathering. The decision that stipulated the infringement of Article 8 of the Convention settled essential criteria both concerning...
Impeachment by Judicial Review: Israel‘s Odd System of Checks and Balances
One of the most intriguing questions in contemporary constitutional theory is why are political power-holders willing to bestow power on courts and to acknowledge their autonomy. In the current paper, I seek to offer an explanation. It focuses on a doctrine developed by the Israeli Supreme Court (ISC) since the early 1990s under which the...
Impeachment, public budget and accountability
The presidential appropriation is an ordinary instrument in the government’s activity to allow the Executive Branch to spend money without the participation of the Congress. The research analyses the presidential appropriation of the presidents of Brazil since 90’s. The central question studied is: Will the government, the parliament, the Union Audit Court accept a new...