A presente dissertação examina o instituto jurídico da imunidade tributária. Para tanto, dedica-se na primeira parte à sua definição, razão pela qual analisa o uso da palavra imunidade, preparando o trabalho para investigar a espécie normativa na qual a imunidade tributária está inserida. A partir de então, analisa a forma de atuação da norma imunizante. Compreendidos o conteúdo, os fundamentos e as características das imunidades, realiza a definição conceitual de imunidade tributária, o que permite partir para segunda parte do trabalho: seu estudo classificatório. Nele, investiga-se a operatividade das imunidades tributárias da seguinte forma: primeiramente, é examinada a forma de direcionamento da norma; em segundo lugar, analisa-se como a norma imunizante se manifesta no texto constitucional; em terceiro lugar, reflete-se sobre a abrangência da norma quanto às espécies tributárias e às situações as quais a norma alcança; num quarto momento, investiga-se a força normativa das imunidades tributárias para, na quinta etapa, debruçar-se sobre a eficácia normativa da imunidade tributária; e, por fim, o trabalho analisa o seu modo de interpretação, examinando os critérios sistemáticos que controlam a interpretação da norma imunizante. / This paper examines the legal institute of tax immunity. In order to do such, it dedicates on the first step to define tax immunity, which reason is to analyse the use of the word immunity to investigate the type of standard which tax immunity is inserted. As a result, it analyses the acting form of the immunizing rule. After understanding the content, the aims and the characteristics of the immunities, this work defines the concept of the tax immunity which leads to its classificatory study, the second step of this paper. This study investigates the operativity of the immunities in this way: first, examines the direction’s form of the rule. Second, analyses the rule’s manifestation in constitutional terms. In a third moment, reflects about the rule’s coverage related to taxes sorts and the situations which the rule achieves. Moreover, investigates the rule’s strength of the tax immunity. Furthermore, examines the efficacy of the tax immunity. Finally, the analysis is focused on its interpretation type, that investigates the systematic criteria which controls the interpretation of the immunizing rule.

Inspired, perhaps, by the old adage that "people who like sausages and respect the law should never watch either being made," there is significant resistance among judges and scholars alike to the idea that courts should review the lawmaking process. This doctoral dissertation challenges this prevalent position, and establishes the case for judicial review of the legislative process. The dissertation develops the arguments for the authority of courts to review the legislative process; the legitimacy and theoretical justifications of such judicial review; and the practical and normative importance of such judicial involvement. It also challenges the resistance to judicial review of the legislative process by scrutinizing, and seeking to rebut, the major arguments underlying this resistance, and revealing this position's doctrinal and theoretical incoherence, and its negative consequences. In an effort to provide a multifaceted exploration of the issue, the dissertation combines multiple approaches of legal scholarship, including a legal-doctrinal approach, a comparative law approach, a jurisprudential and constitutional theory approach, and an interdisciplinary approach that draws upon political science research and several other disciplines.

This dissertation reconstructs a theoretical framework for the Indian Constitution. It does so immanently, by focusing on the making of the Indian Constitution, taking into account both the demands of its specific historical conditions, and the formal constraints of drafting a constitution. The dissertation shows that in its historical context the task of the Indian constitution makers should be understood as creating a constitutional system that can mediate a transformation of the social condition. Performing this task required reinterpreting the established tenets of constitutionalism. The reinterpretation produces a distinct variation of constitutionalism that is termed transformational constitutionalism. Part I of the dissertation focuses on some of the central tenets of constitutional theory by examining the writings in which they first assumed their paradigmatic form. The concepts are situated in the historical context in which they were formulated to highlight the specific challenges they were a response to, and hence distinguishing them from the conceptual terrain in which the Indian Constitution was formulated. Part I also shows the essentially preservative nature of the main tenets of constitutional thought, and that the fully developed versions of its central concepts seek to preclude any possibility for major changes in social conditions. Part II sets out the historical developments that led to the material and ideational terrain on which the Indian Constitution was conceived. It first outlines the institutional and discursive structures of colonial rule to tease out the development of concepts that would serve as the point of reference for the constitution-makers. Part II then turns to the resistance to colonial rule by focusing on the ideas and politics of M.K. Gandhi to delineate the strengths and weaknesses of Congress's claim to represent the Indian nation at the moment of independence, and outline the two different visions of what it meant to free oneself from colonial subjugation, and the different challenges for bringing those visions to fruition. Finally, Part II outlines the way in which the Indian constitutional vision was caught in an interdependent dynamic of break and continuity with its colonial past. After Part I and II have traced the conceptual coordinates of a modern constitution, and the specific historical condition in which the Indian constitution was conceived respectively, Part III focuses on the Indian Constituent Assembly Debates to show how the framers sought to respond to the concrete challenges facing them by creatively reinterpreting the precepts of modern constitutionalism itself. The dissertation shows that the Indian Constitution has to be understood as a totality containing three related strata - that of constitutional imagination, promises, and text - which exist in tension with each other. This tension constitutes the contradiction at the heart of the Indian Constitutional form. The dissertation concludes by following one such contradiction, between the strata of imagination and text as it developed during the most important constitutional conflict of the initial years on the question of compensation for acquisition of property. It also demonstrates how that conflict fundamentally shaped the nature of Indian constitutional practice.

L’autonomie de la justice pénale des mineurs est un principe essentiel du droit français, bénéficiant d’un large ancrage dans la législation et les concepts républicains. Ce principe repose sur une approche protectrice et humaniste de l’enfance délinquante. Cependant, il n’a pas fait l’objet d’une consolidation constitutionnelle suffisante jusqu’à aujourd’hui. Le mouvement amorcé en 2002 de déspécialisation de la justice pénale des mineurs et son rapprochement avec la justice pénale des adultes en témoigne. Il sera proposé des pistes pour opérer une véritable consolidation constitutionnelle du principe d’autonomie de la justice pénale des mineurs et pour améliorer la protection constitutionnelle spécifique des mineurs délinquants / The autonomy of the juvenile criminal justice is a fundamental rule of the French law rooted in the legislation and the republican principles. This rule is based on a protective and humanistic approach of the juvenile delinquency. However, it has not been sufficiently consolidated to date. This fact is evidenced by the process of “despecialisation” of the juvenile criminal justice and its rapprochement with the criminal justice system for adults, which started in 2002. Ways to realise a real constitutional consolidation of the principle of the autonomy of the juvenile criminal justice and to improve the specific constitutional protection of juvenile delinquents will be suggested.

The Human Rights Act 1998 (HRA) is seen as a landmark piece of constitutional legislation that brought about many legal and political changes in the United Kingdom's human rights architecture. Yet the HRA is vulnerable to repeal; successive governments have promised to repeal or otherwise alter the HRA. In this climate, the Supreme Court has instructed counsel to argue common law rights first, with the HRA there to supplement and fill the gap on the occasions where the common law does not go as far as the HRA. The logical conclusion of this is that the Supreme Court, or at least some Justices, think that the common law adequately protects rights to a level near, if not the same as, the HRA does; the results of arguing the common law will often be the same as those resulting from reliance on the HRA. The academic commentary regarding these judicial statements has been far from enthusiastic. The consensus is that common law rights do not go as far as the HRA in terms of their width, that the enforcement mechanisms lack rigour compared to s 3 HRA and the proportionality principle, and that they are vulnerable to legislative override. Therefore, a loss of the HRA would be a loss for the legal protection of rights. This thesis disputes the conclusion stated in the foregoing paragraph. It argues that one has to view the vectors against which one can measure the potency of common law rights through the lens of the rule of law. This principle, the controlling factor in the constitution, promises protection against arbitrary behaviour by state actors because it embodies the value of equality of concern. Once this is appreciated, an entirely new dimension of common law rights becomes apparent; the reach of rights, their rigour of protection, and their constitutional resilience are revealed to be much stronger than orthodoxy suggests.

The recent mass shooting on October 1, 2017 in Las Vegas, Nevada has been marked in history as the worst mass shooting in the United States to this point. The details of the shooting beg the question, is it coincidence that it happened in Nevada, a state with some of the least restrictive gun control laws? Mass shootings have become an unfortunate part of reality in the United States, but these are fairly uncommon occurrences. While they are horrific and deserve attention, daily gun violence cannot be forgotten. In the face of such a multitude of gun violence, what can be done to prevent future violence from occurring? This paper compares Nevada and California, two states that are geographically similar, but could not be more different when it comes to gun control. The paper draws connections between state gun control laws and gun violence trends in an attempt to determine what the best course of action is for addressing the problem.

Humanist legal scholarship was the catalyst to historical revolution that took place in sixteenth-century France. French philologists succeeded in demonstrating the cultural distinctiveness of France from a heretofore assumed classical heritage shared with ancient Rome. As a result, scholars sought to retrace the historical origins of France in the non-Roman Gauls and Franks. Their intensive study of the laws, customs and institutions that developed in France, as distinct from ancient Rome, transformed the understanding of the national past. Following the introduction of the principles of historical anachronism and cultural relativism, the sixteenth century witnessed a transformation of traditional perceptions of historical time. It was during this period when the historical myths, legends and traditions that comprised the cultural fabric of French society were called into question, were transformed, and emerged as new myths that spoke more directly to the crises of the French Religious Wars. The purpose of this study is to attach greater significance to the Tumult of Amboise of 1560 than has previously been afforded in the scholarship of this period. The Tumult of Amboise provide not only the impetus for the civil wars that were waged in France for nearly half a century, but also served as the catalyst for an first expression of Protestant resistance theory that was to change the face of political discourse in this period. The debate centered around the Tumult of Amboise set the stage for constitutional theories regarding the laws of succession and the role of the Estates-General that were dominate political discourse in the latter half of the sixteenth century. As political polemicists increasingly sought to reconstruct an image of the mythical French past, in order to demonstrate the ancientness of the French constitution, the historical fiction that developed around these efforts became a functioning political ideology that should be viewed as one of the first concerted expressions of French nationalism. In this regard, the recreation of the national past took on a patriotic dimension heretofore absent from traditional, chroniclesty led medieval histories and, in time, developed into a uniquely Gallican mythology that stood defiantly as a rival to the cultural heterodoxy of Rome. Further, the purpose of this study is to demonstrate the developmental nature of political discourse in this period. As the civil wars progressed, doctrines of constitutionalism and limited monarchy began to be laced with more abstract theories regarding the nature of political obligation and the responsibility of the ruler to his subjects. Employing a comparative analysis of discourse from the 1560's to the succession of Henri IV, it will be shown that the transformation of political propaganda was direct! y dependent on the historical memory of the participants, who engaged in an effort to frame the political and religious crises within the context of their perceptions of the past.

Thesis (LLM) --University of Limpopo, 2007 / Refer to document

The sweeping changes in the Middle East, so-called the “Arab Spring”, necessitate revisiting constitutionalism in the region. This task entails a fresh look at the idea of rule of law and constitutionalism amongst the people of the Middle East. One of the widely misconceived and yet understudied constitutional movements in the Middle East belongs to Iran. A new perspective on the trajectory of constitutionalism in Iran would better equip us to comprehend rule of law in the Middle East. From the 1905 Constitutional movement to the 1979 Revolution, Iran has undergone major changes. Each transformation created a rupture with the preceding order fostering a fresh look at rule of law in Iran. The current studies have mainly concentrated on the political and social aspects of these groundbreaking events. The legal aspect of each of event has remained largely unnoticed and under-researched. It is important to fill the gap by focusing on the role of constitutions, despite its shortcomings, and international commitments of states using Iran as an example. The objective is to bring to the fore the role constitutionalism plays in incentivizing states to enter into international commitments and to comply with their international commitments. More than before, the mutual relationship between constitutionalism and international relations is intertwined because of two main developments: a. for better or worse, international relations have become increasingly judicialized, meaning all aspects of inter-state interactions are now subject to some normative regimes; b. more than ever, states feel the need to structure their domestic and inter-state relationship by resorting to a normative structure which is best materialized in constitutions. Using Iran as an example, this dissertation aims to fulfill the following: First, it is critical to understand whether a state is a constitutional state and whether its domestic power relations are subject to any checks and balances (broadly speaking). By reviewing Iran’s recent history through this lens, the dissertation shows that Iranian’s legal culture presents (a version of) constitutionalism. Second, it is critical to understand whether constitutionalism leads to any differences in the international behavior of such a state. Based on its constitutionalism, Iran’s international behavior has been premised on legalistic and juridical grounds.

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