O presente estudo analisa a apropriação da história do constitucionalismo atlântico às vésperas da Independência do reino do Brasil. Para isso, a pesquisa examina fontes de duas naturezas: os discursos dos deputados portugueses reunidos nas Cortes Gerais Extraordinárias e Constituintes da Nação Portuguesa, realizadas em Lisboa, durante os anos de 1821 e 1822, e os periódicos fluminenses, publicados no mesmo período. Nesta pesquisa, procura-se explorar a convicção que parecia generalizada entre esses liberais portugueses de que a experiência constitucional portuguesa, por ser a última de uma série de tentativas de reorganizar os Impérios e solucionar a crise do Antigo Sistema Colonial, era capaz de usufruir do exame das experiências constituintes pretéritas e estabeleceria a monarquia constitucional mais liberal do Atlântico, conservando a unidade dos domínios do Império. Nesse sentido, apesar das diversas maneiras de diagnosticar os erros e acertos dos representantes britânicos, franceses e espanhóis, a pluralidade dos deputados e redatores fluminenses concordava a respeito da definição de três pilares fundamentais da monarquia constitucional em que deviam concentrar seus esforços: a regulamentação da Liberdade de Imprensa, a existência do processo eleitoral e a defesa da soberania da nação. Com esta análise, pretende-se contribuir para a compreensão da construção da monarquia constitucional portuguesa nos anos de 1821 e 1822 e do processo de independência do reino do Brasil. Para isso, esta pesquisa explora a apropriação da história dos constitucionalismos atlânticos em torno daqueles três pilares do governo constitucional português e mostra a crescente radicalização dos posicionamentos políticos desses liberais até a independência política do reino do Brasil e, então, o fracasso da convicção inicial dos liberais portugueses. / This study analyses the historic review of the Atlantic constitutionalism right before the Brazils kingdom independence. In pursuit of this, the research looks into two types of documents: the speeches that occurred during the meeting of the Extraordinary General and Constitutional Courts of the Portuguese Nation, performed in Lisbon between 1821 and 1822 and the periodical from Rio de Janeiro which were published at the same period. It intends to explore the conviction, which seems to be generalized between these representatives, that the Portuguese constitutional experience, for being the last of a series of actions which aimed to reorganize the empires and to solve the crisis of the Old Colonial System, would be capable to use ancient constitutional experiences and establish the most liberal constitutional monarchy of the Atlantic, conserving its unit in both sides of the ocean. In this sense, besides the many different ways of diagnosing the mistakes and right actions of those who have represented Britain, Spain and France, the plurality of the representatives and journalists from Rio de Janeiro agreed about the definition of the three fundamental bases in which they should concentrate their efforts: the regulation of press freedom, the existence of an electoral process and the conception of nations sovereignty. With this analysis, this study intends to contribute to the comprehension of the Portuguese constitutional monarchys construction between 1821 and 1822 and to the process of Brazilian Kingdom independence. For this, it explores the historical appropriation of the Atlantic constitutionalisms around those three bases and the increasing radicalization of the political positioning of these liberal men until the political independence of Brazils Kingdom and, the flop of their initial conviction which aimed to keep both empires as one

A tradição histórica da doutrina e prática constitucionais elegeu o Poder Legislativo como o centro por excelência de manifestação das aspirações de autogoverno. A revisão judicial, nesse cenário, costuma suscitar críticas e defesas das mais variadas, que contrapõem seu exercício à consolidação de direitos engendrada, por sua vez, no âmbito das legislaturas. Para uma compreensão geral do debate travado, é necessário compreender as raízes históricas norte-americanas do instituto da revisão judicial, assim como as teorias construídas para analisar o comportamento daqueles responsáveis por praticá-la os juízes. À luz de um renovado modelo comportamental fundado em aspectos institucionais, está-se diante de mudança de perspectiva quanto à análise da realização de direitos por diferentes atores políticos. Nesse sentido, não há que se falar na autoridade sobre última palavra decisória, mas na melhor solução por meio da interação entre instituições, no contexto das teorias do diálogo. / Traditional doctrine and constitutional practice have elected Parliament as the ultimate center for aspirations of self-government. Judicial Review, on that perspective, usually brings about all sorts of critics and defenses, in comparing its practice with the realization of rights entailed by legislative action and with regard to its legitimacy. For a general comprehension of the matter, one must first understand the historical roots of Judicial Reviews American origins, as well as the theories constructed in order to analyze the behavior of those responsible for practicing it the judges. In light of a renewed model for behavioral analysis that enhances the focus on institutional features, there is a change in perspective when it comes to the implementation of rights. No theories of last word on decisional authority can account for the new objectives in mind, since the best solution should be found through the interaction between institutions, an ideal prescribed by dialogue theories.

Depuis les indépendances, les régimes politiques africains sont demeurés très instables, du fait de la militarisation de ces régimes et des accessions illégales et illégitimes au pouvoir politique. Mais les transitions démocratiques de 1990 ont amorcé un constitutionnalisme nouveau marqué par l’adhésion à la démocratie pluraliste et à l’État de droit. Cependant le coup d'État persiste à être un procédé privilégié d'accession au pouvoir. Cette situation ne saurait laisser indifférent le chercheur. On peut s’interroger sur l’approche que le droit public réserve à la notion de coup d’État. / Since independence, African political regimes have remained very volatile, because of militarization of these political regimes, and also illegal and illegitimate accession to political power. But the democratic transitions of 1990 introduced a new constitutionalism with democracy and rule of law. However, the coup d'etat persists in being a privileged way of accession to political power. This situation should interest searchers. We might ask how public law pprehends the concept of a coup d'état.

<p>The history of prison reform after 1994 was shaped by the relationship between governance and human rights standards / the requirements for both are set out in the Constitution and elaborated on in the Correctional Services Act. Good governance and human rights converge in five dimensions of a constitutional democracy: legitimacy, transparency, accountability, the rule&nbsp / of law / and resource utilisation. The new constitutional order established a set of governance and rights requirements for the prison system demanding fundamental reform. It de-legitimised the existing prison system and thus placed it in a crisis. This required its reinvention to establish a system compatible with constitutional demands. The thesis investigates whether&nbsp / constitutionalism provided the necessary transformative basis for prison reform in South Africa after 1994. The Department of Correctional Services (DCS) senior management failed to&nbsp / anticipate this in the period 1990 to 1994. In the five years after 1994 senior management equally failed to initiate a fundamental reform process. This lack of vision, as well as a number of external factors relating to the state of the public service in the period 1994 to 2000, gave rise to a second crisis: the collapse of order and discipline in the DCS. By the late 1990s the state had lost control of the DCS and its internal workings can be described as a mess &ndash / a highly interactive set of problems in causal relationships. In many regards the problems beleaguering the prison system were created in the period 1994 &ndash / 1999. The leadership at the time did not recognize that the prison system was in crisis or that the crisis presented an opportunity for&nbsp / fundamental reform. The new democratic order demanded constitutional and political imagination, but this failed to materialise. Consequently, the role and function of imprisonment within the&nbsp / criminal justice system has remained fundamentally unchanged and there has not been a critical re-examination of its purpose, save that the criminal justice system has become more punitive. Several investigations (1998-2006) into the DCS found widespread corruption and rights violations. Organised labour understood transformation primarily as the racial transformation of the staff corps and embarked on an organised campaign to seize control of management and key positions. This introduced a culture of lawlessness, enabling widespread corruption. w leadership by 2001 and facing pressure from the national government, the DCS responded to the situation by focusing on corruption and on regaining control of the Department. A number of&nbsp / gains have been made since then, especially after 2004. Regaining control of the Department focused on addressing systemic weaknesses, enforcing the disciplinary code and defining a&nbsp / new employer-employee relationship. This has been a slow process with notable setbacks, but it continues to form part of the Department&rsquo / s strategic direction. It is concluded that the DCS&nbsp / has engaged with and developed a deeper understanding of its constitutional obligations insofar as they pertain to governance requirements in the Constitution. However, compliance with&nbsp / human rights standards had not received the same attention and areas of substantial non-compliance remain in violation of the Constitution and subordinate legislation. Overcrowding,&nbsp / violations of personal safety, poor services and/or lack of access to services persist. Despite the detailed rights standards set out in the Correctional Services Act, there is little to indicate that&nbsp / legislative compliance is an overt focus for the DCS. While meeting the minimum standards of humane detention, as required by the Constitution, should have been the strategic focus of the&nbsp / DCS in relation to the prison population, the 2004 White&nbsp / Paper defines &ldquo / offender rehabilitation&rdquo / as the core business of the DCS. In many regards the DCS has assigned more prominence&nbsp / and weight to the White Paper than to its obligations under the Correctional Services Act. In an attempt to legitimise the prison system, the DCS defined for itself a goal that is required neither&nbsp / by the Constitution nor the Correctional&nbsp / Services Act. Compliance with the minimum standards of humane detention must be regarded as a prerequisite for successful interventions to reduce&nbsp / future criminality. After&nbsp / seven years, delivery results on the rehabilitation objective have been minimal and not objectively measurable. The noble and over-ambitious focus on rehabilitation at&nbsp / policy level distracted the DCS from its primary constitutional obligation, namely to ensure safe and humane custody under conditions of human dignity Throughout the period (1994 to 2012)&nbsp / the DCS has been suspicious if not dismissive of advice, guidance and at times orders (including court orders) offered or given by external&nbsp / stakeholders. Its relationship with civil society&nbsp / &nbsp / &nbsp / &nbsp / organisations remain strained and there is no formal structure for interaction. Since 2004 Parliament has reasserted its authority over the DCS, not hesitating to criticise poor decisions and&nbsp / sub-standard performance. Civil society organisations have increasingly used Parliament as a platform for raising concerns about prison reform. Litigation by civil society and prisoners has&nbsp / also been used on a growing scale&nbsp / to ensure legislative compliance. It is concluded that prison reform efforts needs to refocus on he rights requirements set out in the Correctional Services&nbsp / Act and approach this task in an inclusive, transparent and accountable manner.&nbsp / &nbsp / </p>

In this work , I analyze the emergence of a series of Supreme Court cases in the Rehnquist and Roberts era which frame race-conscious legislation as discriminatory against whites; and which are responded to by the conservative justices as though anticlassification and reverse-discrimination are indeed rights claims. I analyze the response of the conservative justices to such claims, and posit that response of the conservative Justices to such cases constitutes activism. Further, the emergence of these cases can be attributed to the entrenchment of a colorblind narrative that is by its very nature not grounded in social reality, or historical context; and which aims to elevate the privileges of whiteness into rights. The implications of these narratives and conservative judicial activism will have monumental consequences for minority populations of color in the country.

<p>Within the context of South Africa&lsquo / s diverging religious, cultural and social backgrounds, new questions on the nature of a multicultural society are raised from the perspective of human rights.&nbsp / The universality and indivisibility of human rights are challenged by this diversity and consequently implies that standards, concepts and structures for implementation have to be reconsidered.&nbsp / International and national standards are being (re)interpreted and attention is not only focused on the contents of the norms but on the limitations imposed thereupon. The debate on whether limits should be set in permitting or accommodating cultural or religious pluralism is becoming extremely relevant. The manner in which these questions are responded to&nbsp / is even more prominent in the light of our history of apartheid which has disregarded respect for religious and cultural diversity. In the scope of this research emphasis will be placed on the&nbsp / right to freedom of religion and in particular the limitation of the right to religion in an attempt to balance conflicting rights and accommodates religious diversity. The right to freedom of religion&nbsp / albeit constitutionally entrenched is subject to reasonable and justifiable limitations. However, no clear guidelines have been formulated on the criteria for limiting the right to freedom of&nbsp / religion. The main aim of this research is to find guiding criteria to facilitate the imposition of limitations on the right to freedom of religion. The limitations of the right to freedom of religion are&nbsp / interrelated with the following research questions: Firstly, the definition afforded to the right to freedom of religion in accordance with national and international standards / secondly, the relationship between culture and religion and any interconnection that exists between these rights. This is followed by the influence of the particular value framework or normative commitments&nbsp / f the judiciary on the interpretation of the right to religion, as well as the relationship between the state and religion. The above issues will be researched both on a national and&nbsp / an international level. The aim is to conduct research that will build on an appreciation of the guidelines that should be employed in ensuring the protection of the right to freedom of religion. To this end comparisons will be drawn with other legal&nbsp / systems, which on the one hand acknowledge the protection of the right to freedom of religion and on the other hand have to find ways in which the right can be balanced in the event of conflict. It is envisaged that the research of the criteria imposed on the limitation of the right to religion both on a national and an international level will assist in suggesting criteria that will influence&nbsp / scholarly debate on the topic. In addition that this debate will allow for the formulation of a transformative approach within the South African context that sanctions the celebration of diversity in all&nbsp / its aspects and in particular the right to freedom of religion.<br /> &nbsp / </p>

Deliberative democrats have argued that democracy requires citizens to seek consensus, using a familiar style of principle-based moral argument. However, critics like Iris Young object that deliberative democracy’s favoured model of reasoning is inadequate for resolving deep value conflicts. She and others have suggested that the aim of improving understanding across political differences could be achieved if our conception of legitimate democratic discourse were broadened to include a significant role for narrative. The question is whether such a revision would amount to abandoning the deliberative democratic goal of seeking reasonable resolutions of value conflict. This thesis argues that a narrative approach to deliberative democracy can realize its commitment to reasoned justification, while preserving the significance of differing perspectives and promoting mutual understanding. The narrative-contextualist approach is developed and illustrated with reference to public debate over issues such as cultural accommodation and historical justice.

Deliberative democrats have argued that democracy requires citizens to seek consensus, using a familiar style of principle-based moral argument. However, critics like Iris Young object that deliberative democracy’s favoured model of reasoning is inadequate for resolving deep value conflicts. She and others have suggested that the aim of improving understanding across political differences could be achieved if our conception of legitimate democratic discourse were broadened to include a significant role for narrative. The question is whether such a revision would amount to abandoning the deliberative democratic goal of seeking reasonable resolutions of value conflict. This thesis argues that a narrative approach to deliberative democracy can realize its commitment to reasoned justification, while preserving the significance of differing perspectives and promoting mutual understanding. The narrative-contextualist approach is developed and illustrated with reference to public debate over issues such as cultural accommodation and historical justice.

The dissertation analyzes the scope and limits of democracy both historically and normatively. It has two main goals. First, it historically explains how a number of institutional devices that had been traditionally seen as limits on the scope of democracy turned out to be seen not only as consistent with democracy but actually as necessary for any good-working democratic system. Second, it normatively analyzes two outstanding cases in which the scope of democracy is heavily limited—constitutional constraints on legislatures and decision-making within the firm, a domain that is usually taken to be beyond the scope of democracy. Part I historically analyzes a two-fold shift in the concept of democracy in the Early American Republic. First, the increasing acceptance of the idea of democracy— along with the institutional devices traditionally attached to it—due to the acceptance of disagreement as a legitimate feature of the American society and the subsequent crisis of the theory of virtual representation, according to which the society is an organic entity with a shared set of interests that ought to be insulated from democratic struggle and partisanship. Second, the shift in the very concept of democracy, by which many of the institutional devices that had been traditionally seen as constraints on democracy turned out to be seen not only as consistent with democracy but also as necessary for any good-working democratic system. In a nutshell, democracy gained acceptability as long as the scope of democratic decision-making was downsized. The remainder of the dissertation normatively analyzes two outstanding cases in which the scope of democracy is clearly constrained—namely, constitutionalism and decision-making within firms. Part II addresses several normative theories of constitutionalism—and, notably, of constitutional rigidity and judicial review—and shows that they all fail to justify constitutional constraints from a democratic standpoint. Three prominent types of theories are analyzed— pure instrumentalist, precommitment-based, and proceduralist. Even though a number of problems are identified, a common and central problem is that they all fail to address adequately the fact of disagreement and thus fall into new forms of organicism. Finally, Part III analyzes another sphere that is usually taken to be beyond the scope of democracy—namely, the workplace. It addresses the core arguments for and against extending democratic decision-making to the workplace and develops a novel, republican case for workplace democracy based on incomplete (labour) contract theory. Finally, bargaining power asymmetries and moral hazard problems arising from the formal separation of ownership and control rights in democratic firms are analyzed. / La tesis analiza el alcance y los límites de la democracia de forma histórica y normativa. Tiene dos objetivos principales. Primero, explicar históricamente cómo una serie de instituciones que habían sido tradicionalmente consideradas como límites a la democracia fueron incorporadas al concepto de democracia, hasta el punto de ser consideradas necesarias para su correcto funcionamiento. Segundo, analizar dos casos especialmente relevantes en los que el alcance de la democracia está fuertemente limitado: el constitucionalismo y la toma de decisiones en las empresas. La Primera Parte analiza históricamente el concepto de democracia, y su alcance, en los Estados Unidos de América en el periodo revolucionario y postrevolucionario. Se halla un doble desplazamiento. Primero, un incremento en la aceptación de la idea de democracia debido a la aceptación del desacuerdo político como un fenómeno legítimo y la consiguiente crisis de la teoría de la representación virtual, según la cual la sociedad es una entidad orgánica con un conjunto de intereses compartidos que deben ser aislados de la política democrática y el partidismo. Segundo, un desplazamiento del concepto de democracia, según el cual muchos de los mecanismos institucionales que habían sido tradicionalmente vistos como límites al alcance de la democracia pasaron a ser considerados no sólo consistentes con la democracia sino de hecho necesarios para su correcto funcionamiento. En resumen, la democracia ganó aceptación en la medida en que su alcance quedó reducido. El resto de la tesis analiza normativamente los límites al alcance de la democracia en relación a dos casos especialmente relevantes: el constitucionalismo y la toma de decisiones en la empresa. La Segunda Parte analiza las principales teorías normativas del constitucionalismo —y, concretamente, de la rigidez constitucional y la revisión judicial de las leyes— y muestra que todas ellas resultan insuficientes para justificar los límites constitucionales desde un punto de vista democrático. Se analizan tres tipos de teorías: instrumentalistas, basadas en precompromisos y procedimentales. Aunque se identifica toda una serie de problemas, es común a todas ellas su incapacidad para acomodar adecuadamente el desacuerdo político en materia constitucional, incurriendo así en diversas formas de organicismo. Finalmente, la Tercera Parte analiza la toma de decisiones en las empresas, un ámbito que es generalmente considerado ajeno al alcance de la democracia. Se analizan los principales modelos de democracia en la empresa —cooperativismo y codeterminación—, así como los principales argumentos a favor y en contra de la extensión de la toma de decisiones democrática a las empresas. Por último, se presenta un argumento original, de raíz republicana y apoyado en la teoría de los contratos (laborales) incompletos, a favor de la democracia en las empresas. Así mismo, se analizan las asimetrías negociadoras y los problemas de riesgo moral derivados de la separación formal entre control y propiedad en las empresas democráticas.

The thesis examines the political development in Southern Rhodesia 1960-1962 when two processes, the 1961 Constitutional process and the 1962 General Election, had far-reaching consequences for the coming twenty years. It builds on a hypothesis that the Constitutional process led to a radicalisation of all groups, the white minority, the African majority and the colonial power. The main research question is why the ruling party, United Federal Party (UFP) after winning the referendum on a new Constitution with a wide margin could lose the ensuing election one year later to the party, Rhodesian Front (RF) opposing the constitution. The examination is based on material from debates in the Legal Assembly and House of Commons (UK), minutes of meetings, newspaper articles, election material etc. The hypothesis that the Constitutional process led to a radicalization of the main actors was partly confirmed. The process led to a focus on racial issues in the ensuing election. Among the white minority UFP attempted to develop a policy of continued white domination while making constitutional concessions to Africans in order to attract the African middle class. When UFP pressed on with multiracial structural reforms the electorate switched to the racist RF which was considered bearer of the dominant settler ideology. Among the African majority the well educated African middleclass who led the Nationalist movement, changed from multiracial reformists in late 1950‟s to majority rule advocates. After rejecting the 1961 Constitution they anew changed from constitutional reformists to supporter of an armed struggle. Britain‘s role was ambivalent trying to please all actors, the Southern Rhodesian whites and Africans but also the international opinion. However, it seems to have been its own neo colonial interests that finally determined their position and its fault in the move towards Unilateral Declaration of Independence and the civil war was huge. On the main research question the analysis points to two reasons. Firstly, the decision by the Nationalists to boycott the election and the heavy-handed actions they took to achieve this goal created a white back-lash against the ruling party and the loss of the second vote advantage. Secondly, when the ruling party decided to make the repeal of the Land Apportionment Act a key election issue they lost not only indifferent voters but also a major part of its normal electorate. They threatened the Settler State‟s way of life for the white minority.