Função política do Estado é a atividade que órgãos instituídos pela Constituição exercem no âmbito de sua competência, tendo por objetivo preservar a sociedade política e promover o bem comum, e que consiste em determinar, mediante a livre interpretação de normas constitucionais, o que é o interesse público e quais são os meios necessários à sua implementação. A função política é desempenhada por diversos órgãos e poderes, inclusive pelos tribunais constitucionais. Os tribunais constitucionais exercem função política, basicamente, em relação a quatro grandes temas: separação de poderes, federalismo, direitos fundamentais e funcionamento das instituições democráticas. O exercício da função política pelos tribunais constitucionais possui características específicas. Os tribunais constitucionais têm legitimidade para exercer função política, apesar de seus integrantes normalmente não serem escolhidos pelo voto popular. No desempenho de função política, os tribunais constitucionais devem observar limites. No Brasil, o órgão que exerce o papel de tribunal constitucional é o Supremo Tribunal Federal. O Supremo Tribunal Federal, ao longo de sua história, desde sua instalação, em 1891...
Precedentes são decisões anteriores utilizadas como guia para novas decisões. No âmbito jurídico, precedentes funcionam não só como elementos conferidores de segurança e previsibilidade, limitando o grau de discricionaridade dos juízes, mas seu uso também está relacionado à garantida de igualdade. Apesar de serem tradicionalmente colocados em segundo plano quando estudados em sistemas de civil law, os precedentes aparecem com grande frequência na fundamentação de decisões judiciais em muitos destes sistemas jurídicos, dentre eles o brasileiro. A fim de determinar qual é o papel desempenhado pelos precedentes na fundamentação das decisões do Supremo Tribunal Federal, a pesquisa voltou-se à análise do papel desempenhado pelos precedentes nas decisões do tribunal envolvendo o conflito, ou a restrição, de direitos fundamentais. A partir da diferenciação de duas funções exercidas hoje pelo Supremo Tribunal Federal, já que nele estão concentradas as funções de última instância do Poder Judiciário e de Corte Constitucional, foram estabelecidos comportamentos esperados do tribunal com relação ao uso de precedentes em cada uma dessas funções. A análise da jurisprudência do tribunal foi realizada em duas etapas. Num primeiro momento...
Court specialization is commonly
considered to be an important reform initiative to advance
the development of a successful judicial system. Court
specialization is thought useful even to address broader
development constraints, such as the need for more effective
access to contract enforcement, improvements in the
investment climate, or more adequate protection of the
environment. These studies have also pointed to some
drawbacks, however. For example, special attention to, and
the allocation of additional resources for, handling
business cases can lead to the perception that a court
provides preferential services to the business community but
not the average person. Judges may also develop too close a
relationship with a particular group of lawyers and interest
groups that are involved in special case types, especially
if those groups are relatively small and if judges serve in
this special capacity exclusively and for an extended
period. This report outlines the international experiences
and good practices related to establishing specialized
courts and creating the associated judicial expertise. It
specifically highlights the information that is needed to
determine if specialization is required in particular areas...
The design of Port Augusta Courts Complex is unique. The design aimed to meet the environmental needs of Aboriginal people in the court system and to support the process of Aboriginal Courts. The design process drew on extensive consultation with the local community resulting in a court complex inclusive of Aboriginal signs and symbols, way finding and legibility mechanisms, strong relationships between the internal and external environments and considerations to meet the socio-spatial needs of Aboriginal users. The design intended to support culturally sensitive court processes such as the Aboriginal Court while fulfilling the requirements of the Anglo-Australian Western judicial system. It is unknown how successful the court complex was at fulfilling these requirements. Post-occupancy evaluation is the term for a broad range of activities aimed at understanding how buildings perform once they are completed and how satisfied building users are with the environment that has been created. This paper discusses the results and issues involved in conducting a post-occupancy evaluation of the cultural responsiveness of Port Augusta Courts Complex to Aboriginal users’ needs. It analyses various spaces including a flexible courtroom space in the complex...
Die Arbeit ist eine Fallstudie zur Geschichte des neuzeitlichen Fürstenhofs und nimmt den Tatbestand zum Ausgangspunkt, daß der russische Zarenhof in der modernen Hof- und Absolutismusforschung kaum eine Rolle spielt. Gegenstand ist die Hofgesellschaft unter Katharina II. Anhand funktionaler und quantitativer Kriterien werden die Personenkreise, die sich für die Konstituierung der Hofgesellschaft als relevant erwiesen, sowohl differenziert als auch in ihren politischen wie sozialen Beziehungen hierarchisiert und analysiert: von eher repräsentativen Ämtern bis zu dem engen Kreis einflußreicher Administratoren um die Monarchin. Auf dieser Grundlage werden einzelne Themenfelder abgesteckt zur Untersuchung der herrschaftspolitischen Strukturen des Hofes und seiner Funktionen in einem gesamtgesellschaftlichen Kontext, insbesondere im Spannungsfeld von aufgeklärter Reformprogrammatik und autokratisch-absolutistischer Herrschaftsordnung. Dazu gehören die ökonomischen Voraussetzungen höfischer Existenz; die Traditionen politischer und kultureller Deutungsmuster in der Hofgesellschaft und die unter anderem daraus resultierenden Erwartungshaltungen; die zeremonialen und rituellen Strukturen des Hoflebens sowie die Wirkmächtigkeit der Repräsentationsstrategien und die Wahrnehmung durch die Betroffenen; das Bild des Höflings und die Hofkritik; das Verhältnis von Festkultur...
Trotz einiger grundlegender Arbeiten zur Harmoniemusik (Musik für Bläserensemble im 18. und 19. Jahrhundert) seit den 1970er Jahren fehlen für viele Orte bzw. Höfe Mitteleuropas, an denen Harmoniemusik gepflegt wurde, noch immer entsprechende Materialpublikationen und Untersuchungen.
Die vorliegende Dissertation will in diesem Sinne einen Beitrag dazu leisten, das Netz von Informationen zur Harmoniemusik in Mitteleuropa durch die Untersuchung der Verhältnisse am Donaueschinger Hof dichter zu knüpfen. Sie hat sich zur Aufgabe gestellt, den Bestand an Harmoniemusik als Ganzes in seiner repertoiregeschichtlichen Bedeutung ebenso zu untersuchen wie – hauptsächlich mit Hilfe der Archivalien im Donaueschinger Fürstenberg-Archiv – die musiksoziologischen Rahmenbedingungen, unter denen Harmoniemusik im 18. und 19. Jahrhundert in Donaueschingen als Teil der Hofmusik stattfand.
Das gesamte Repertoire wird durch Analyse nach Komponisten und Bearbeitern, Besetzungen, Gattungen u. a. analysiert, die erhaltenen Werke außerdem in einem Katalogteil erfasst.
Die Musikaliensammlung des Hauses Fürstenberg wurde im Jahre 1999 vom Land Baden-Württemberg erworben und wird seitdem in der Badischen Landesbibliothek in Karlsruhe aufbewahrt. Der in dieser herausragenden Notensammlung enthaltene Bestand an Harmoniemusik gehört zu den umfangreichsten und am besten erhaltenen überhaupt; gemessen an der Zahl der überlieferten Werke (ca. 230) übertrifft er zum Beispiel die entsprechenden Bestände der Bayerischen Staatsbibliothek München oder der Österreichischen Nationalbibliothek Wien.
Die erhaltenen Notenbestände an Harmoniemusik lenkten den Blick zunächst auf die letzten etwa zwei Jahrzehnte des 18. Jahrhunderts...
Differently from other international tribunals set up in the context of regional economic integrations, the existing relationship between the EFTA Court and the ECJ, having been “institutionalized” at a primary level by the EEA Agreement itself, is naturally apt to give rise to a structural, natural and original interdependence between the two phenomena of mirror jurisdiction and mirror legislation. The relevance of the ECJ case law for the EFTA case law is not limited to the references to the former court case law, which can be found in all the advisory opinions and in all the judgments given up to now by the latter. It also and above all reveals itself in the constant adoption both of the reasoning made by the ECJ and of the constitutional principles of EU law. By putting on the same level its jurisprudence and that of the ECJ, the EFTA Court attributes to both of them the same efficacy in terms of judicial precedent. This does not mean that the EFTA Court has restricted itself to passively adopt the ECJ case law. EFTA judges have had a relevant influence on the ECJ in the course of the years. In doing so the EFTA Court has built up a strong judicial dialogue with the ECJ, according to the EEA principle that the interpretation and application of EEA law and EU law must be carried out “in full deference to the independence of courts”. In some other cases the EFTA Court has even developed reasonings which seem to underline a detachment of the former from the criteria and principles adopted by the ECJ. In this context...
Defence date: 21 January 2013; Examining Board: Professor Ernst-Ulrich Petersmann, European University Institute (Supervisor); Professor M. Elvira Mendez-Pinedo, University of Iceland (external co-supervisor); Professor Miguel Poiares Maduro, European University Institute; Judge Páll Hreinsson, EFTA Court.; Doctrines developed by the EFTA Court have placed considerable demands on the various national courts in the EFTA States. The Court now considers the EEA Agreement to form an "international treaty sui generis which contains a distinct legal order of its own." This thesis will study the interaction between the EFTA Court and Icelandic courts. The basis of this research rests on two levels. At the EEA level, it is the ECJ and the EFTA Court that form the basis of the study. At the national level, the thesis studies Icelandic Supreme Court and district court decisions. I will approach the question of the impact of EEA law on Icelandic domestic law from two dimensions: substantive and procedural. In substantive terms, the study examines fundamental European judgemade principles, as well as the impact these doctrines have had on Icelandic law. This will indicate how Icelandic courts deal with potential conflicts of law between EEA and Icelandic law...
The authors analyze lawsuits involving
publicly-appointed lawyers in a labor court in Mexico to
study how a rigid law is enforced. They show that, even
after a judge has awarded something to a worker alleging
unjust dismissal, the award goes uncollected 56 percent of
the time. Workers who are dismissed after working more than
seven years, however, do not leave these awards uncollected
because their legally-mandated severance payments are
larger. A simple theoretical model is used to generate
predictions on how lawsuit outcomes should depend on the
information available to the worker and on the worker's
cost of collecting an award after trial, both of which are
determined in part by the worker's lawyer. Differences
in outcomes across lawyers are consistent with the
hypothesis that firms take advantage both of workers who are
poorly informed and of workers who find it more costly to
collect an award after winning at trial.
This study reviews the initial results
of efforts by the Federal Court of Malaysia to improve
judicial performance, especially in the areas of backlog and
delay reduction. It was written at the request of the Court
and was intended to evaluate progress to date, suggest how
the program might be improved, and provide recommendations
on further actions in a second phase reform. The work is
based on documents and statistics made available by the
Court, two weeks of fieldwork (January 2011) in Putrajaya
(the Federal Government Administrative Center and seat of
the Federal Court and Court of Appeal) and the High Courts
in the two largest court complexes, Kuala Lumpur and Shah
Alam, and a follow-up visit in May 2011 to discuss the
preliminary conclusions with the Judiciary and also to
update material on this rapidly moving program. While
intended as an external review of the Malaysian
Judiciary's recent reform efforts, the study describes
a model and lessons applicable to court systems elsewhere
that are facing similar problems or wishing to improve other
aspects of their performance.
An often-repeated remark about George
Kingsley Acquah, Ghana's chief justice from 2003 until
2007 and driver of his country's major judicial reforms
was that "it took a man like him for this to
happen". The author certainly subscribe to this view,
having observed his impact from position as director of the
judicial reform, project development and implementation unit
at the judicial service of Ghana. Doubtless, most prominent
reform is the establishment of the commercial division at
the High Court in Accra, the first commercial court in
Ghana, and possibly the most significant addition to the
judicial service since independence. After decades of
political turmoil that had left behind a disrupted court
system, the reform not only brought about shorter delays to
commercial dispute resolution. It also instilled new spirit
in Ghana's justice sector. In light of Ghana's
policy objective of becoming a middle income country by
2020, the state of legal affairs looked dire a mere 10 years
ago. Military rule had given way to an emerging democracy
only in the 1990s. In 1982...
This paper considers the historical
origins and efficacy of enforcement of civil court
judgments, with a special focus on court auctions. It
reviews the procedural and practical options available to
courts and associated agencies for the identification of
assets that may be used to satisfy a judgment debt and the
processes for court-supervised asset seizure and sale by
public auction. The efficiencies of public court auction
processes are considered, including the elements of
enforcement systems that can produce sub-optimal returns on
sold assets and higher incentives for corrupt practices.
Also considered is the trend in some systems for greater use
of private agents as a means by which the cost of court
enforcement processes can be reduced and for overcoming
sometimes lengthy delays in enforcement. The paper concludes
by identifying alternatives to public auction that in some
cases can offer better prospects of assuring full payment of
a judgment debt.
With the purpose of providing assistance
to government efforts in justice sector reform and
modernization, the World Bank conducted two surveys. The
first survey was conducted in 2010 in order to collect
baseline information on perceptions of the court and
prosecutorial performance and expectations from the reform
implemented in January 2010. The second, follow-up, survey
was conducted in 2013 in order to identify the impact of the
first four years (2010 - 2013) of reforms and the
expectations from the new national strategy of reform for
the period 2014-2018. The surveys aimed to measure
perceptions of judicial performance against five core values
(efficiency, quality, fairness, accessibility, and integrity
- independence and presence of corruption), and to compare
the views of multiple stakeholders (court services users -
general public and business sector, court services providers
-judges, prosecutors and providers of court administrative
services, and lawyers as intermediaries between users and
providers of court services). The survey also focused on
costs of judicial services...
The aim of this report is to illustrate the steps court users take in order to protect their
interests through procedures carried out by courts. The focus is on the difference
between the procedure in the law and actual practice. In outlining these differences, the
report shall identify procedural inefficiencies, bottlenecks and potential areas for
improvement of the procedure. It shall also estimate the approximate costs of these
procedures to the parties.
This thesis examines Kentucky’s tumultuous political history from 1824 to 1826. Prompted by power struggles between the legislature and judiciary, a court schism ensued. Dueling judicial bodies, the “Old Court” versus the “New Court,” each claimed to be the rightful Court of Appeals. In answering why a schism occurred and how it was resolved, I identify and analyze the underlying critical yet subtle constitutional issues.
When Kentucky’s debtor relief laws were ruled unconstitutional in 1823, the legislative majority and its constituents were outraged. Although statesmen initially appeared politically-motivated, the debate mushroomed into a critique of their democratic form of government and what powers the state constitution sanctioned to each branch.
Words led to action. In 1824, the legislature enacted a law to disband and replace the original court. However, the “former” judges refused to resign causing two tribunals to exist concurrently. A new constitutional question emerged: Did the legislature have the authority to dissolve the highest state court? Two political parties formed espousing opposite viewpoints and supporting the corresponding “legitimate” court.
Over the next two years, the parties addressed “the people...
In this project, I examine why the judicial authority of the United States Supreme Court has increased. I propose a theoretical explanation of endogenous institutional change at the Court whereby the actions of the Court---specifically its decisions and the opinions in which it announces those decisions---have, over the long-run, altered the structures of the American separation-of-powers system. The Court has built up public support for the institution of judicial review to such a degree that its rulings are respected even when opposed by strong political actors---including the public. I evaluate this theory by analyzing three important transitional periods of Supreme Court history. The first case study explores the Court under Chief Justice John Marshall, and examines how the Court established judicial review as the most important means of constitutional interpretation. The second case study explores the Court's first cases interpreting the three Reconstruction Amendments, and shows that through these decisions the Court established itself as the arbiter of the meaning of these new amendments. The third case study looks at the Court's decision to hear reapportionment cases and its articulation of the political question doctrine that provided a legalistic method of expanding the political power of the Court. I conclude from these case studies that my theory provides a useful explanation for the expansion of judicial authority.
Many law professors and scholars think of the Supreme Court as a black box--issues and arguments go in to the Court, and decisions come out. The almost mystical nature that these researchers impute to the Court seems to be a function of the lack of hard data and statistics about the Court's decisions. Without a robust dataset from which to draw proper conclusions, legal scholars are often left only with intuition and conjecture.
Explaining the inner workings of one of the most important institutions in the United States using such a subjective approach is obviously flawed. And, indeed, data is available that can provide researchers with a better understanding of the Court's actions, but scholars have been slow in adopting a methodology based on data and statistical analysis. The sheer quantity of available data is overwhelming and might provide one reason why such an analysis has not yet been undertaken.
Relevant data for these studies is available from a variety of sources, but two in particular are of note. First, legal database provider LexisNexis provides a huge amount of information about how the Court's opinions are treated by subsequent opinions; thus, if the Court later overrules one of its earlier opinions...
Decision rendered by the Supreme Court, ruling that isolated DNA is not patentable. The opinion of the court was delivered by Justice Clarence Thomas, with Justice Scalia concurring in part and concurring in the judgement.
The purpose of this article is to contribute data for the purposes of debates on how effectively the Constitutional Court performed its functions between 1995 and 2012. The cut-off date of 31 December 2012 has no other significance than that it was the last date before the beginning of the year in which this article was written. However, it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters. The figures contained in this article could at a later stage be used to determine what effect this amendment might have had on the functioning of the Court. it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters, will commence in the course of the second half of 2013. The figures contained in this article could at a later stage also be used to determine what effect this amendment might have had on the functioning of the Court. Between 1995 and the end of 2012, the Constitutional Court considered 464 applications for review. The ways in which these 464 applications reached the Court were as follows: • 35 referrals in terms of the interim Constitution; • 21 applications and referrals on matters within the exclusive jurisdiction of the Court; • 78 applications for confirmations of parliamentary or provincial laws and actions of the President; • 45 applications for direct access to the Constitutional Court; • 101 applications for leave to appeal against judgments of the Supreme Court of Appeal; • 150 applications for leave to appeal against judgments of other Courts; • 34 applications concerning previous judgments of the Court and other matters. The Constitutional Court refused to consider applications in 103 instances and considered the merits of applications in 361 instances. The number of refusals per category is as follows: • 7 refusals in respect of 35 referrals in terms of the interim Constitution; • no refusals in respect of 21 applications and referrals on matters within the exclusive jurisdiction of the Court; • 7 refusals in respect of 78 applications for confirmations of parliamentary of provincial laws and actions of the President; • 34 refusals in respect of 45 applications for direct access to the Constitutional Court; • 21 refusals in respect of 101 applications for leave to appeal against judgments of the Supreme Court of Appeal; • 34 refusals in respect of 150 applications for leave to appeal against judgments of other Courts; • 34 applications concerning previous judgments of the Court and other matters. The Constitutional Court invalidated in 192 instances legal rules and actions of organs of state and individuals. These invalidations were done in respect of 464 applications for review in all the categories and they were done in respect of 361 instances in which the Court reviewed the merits of applications. 41.39% of the 464 applications received were invalidated. 53.18% of the applications of the merits were considered...