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Tag: constitutional theory

A structure for comparative analysis of Freedom of Expression

27 July, 201027 July, 2010
| 2 Comments
| Freedom of Expression, Legal Theory

Prof Adrienne Stone, CCCS, via their websiteProf Adrienne Stone (pictured left), Director of Centre for Comparative Constitutional Studies in the Melbourne Law School has just made a very interesting article available on SSRN. It is The Comparative Constitutional Law of Freedom of Expression, forthcming as a chapter is in Rosalind Dixon and Tom Ginsburg (eds) Research Handbook in Comparative Constitutional Law (Edward Elgar, forthcoming, 2011). Stone argues:

Freedom of expression is among the most widely protected of constitutional rights. Rights of freedom of expression can be found in constitutions drawn from all continents. … Even in those few democracies without comprehensive constitutional protection of rights, freedom of expression finds constitutional protection in other ways. It can plausibly be argued that parliamentary systems … – even in the era before the adoption of charters of rights – recognized a constitutional principle of freedom of expression that, though not enforceable by judicial review, was understood as a fundamental value that informed the reading of statutes and the common law. In addition, there are some legal systems that recognize a judicially enforceable principle of freedom of expression despite the absence of a written constitutional right.

… some scholars … question whether … the comparing free speech principles across constitutional systems is practical or useful for courts interpreting or applying constitutional principles of freedom of expression … The complexity of (and disagreement about) underlying philosophical commitments, the opacity of judicial decision making, and cultural specificity of any particular body of law, … [are] formidable problems for the comparativists, … and the] case for comparativism may be weaker in relation to constitutional principles have developed their own rich set of resources and a distinctive conception of freedom of expression.

…

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Televising the Supreme Court

1 October, 200910 July, 2013
| 4 Comments
| Court dress, judges, Law, Open Justice, UK Supreme Court

Image of UK Supreme Court building, via Alex Faundez on flickrNo, not the Irish Supreme Court, but the new UK Supreme Court. There’s quite a lot of coverage in the UK media and blawgopshere today about the new Court at the apex of UK’s judicial system, which opens for business today, on time and on budget, in a refurbished former criminal court, after a difficult gestation. David Pannick argues in the Times today that, however unhappy its origins, the opening of a new Supreme Court is an important commitment to the rule of law. Much of the media interest turns on the fact that the Court will be televised. For example, one of the pieces in the Times is headlined that TV coverage means justice really will be seen to be done:

The reform has taken a number of steps over 20 years: a Bar Council report chaired by Jonathan Caplan, QC, in 1989, the filming of parts of the Shipman inquiry and the Hutton inquiry and the 2004 pilot project in the Court of Appeal all moved the issue of cameras in court forward. … The footage will be filmed and recorded by the court and made available by a feed to broadcasters, … [and] can be used only for news, current affairs and educational and legal training programmes.

…

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Another twist in the tale of the Defamation Bill

17 July, 200925 July, 2013
| 13 Comments
| Blasphemy, criminal libel, Defamation, Defamation Bill 2006, Freedom of Expression, Human Rights, judges

Áras an Uachtaráin = Residence of the President of Ireland, via the President's siteThe saga of the Defamation Bill, 2006 is not over yet. Article 26 of Bunreacht na hÉireann (the Irish Constitution) allows the President, after consultation with Council of State, to refer a Bill to the Supreme Court for a determination of its constitutionality. President McAleese has chosen to convene the Council of State to advise her on the qustion of whether to refer not only the (controversial) Criminal Justice (Amendment) Bill, 2009 (an unsurprising move) but also the (equally controversial) blasphemy elements of the Defamation Bill, 2006 (which has come as a great surprise). (See Belfast Telegraph | BreakingNews.ie | Bock the Robber | ICCL | Irish Emigrant | Irish Independent | RTÉ news | Irish Times | PA | Slugger O’Toole. Update (18 July 2009): see also Irish Examiner | Irish Times here and here | Irish Independent | MediaWatchWatch).

There have been 15 such references to date. If the Court holds that a Bill is unconstitutional, the President must decline to sign it; whilst if the Court decides a Bill is constitutional, the President must sign it into law, and the resulting Act is immune from constitutional challenge in the future.…

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Why protect free speech?

11 May, 200919 May, 2009
| 6 Comments
| Censorship, Freedom of Expression

Index on Censorship has published a short edited extract from Ideas That Matter: Key Concepts for the 21st Century (Weidenfeld & Nicolson, 2009) by AC Grayling, Professor of philosophy at Birkbeck College, University of London, in which he provides a compelling and pithy case in favour of free speech and against censorship:

It’s a surprise to learn how universal censorship is

Cover of Grayling's While even the most tyrannical regime will pay lip service to free speech, it is a right that is constantly denied.

There are two bedrock civil liberties without which the very idea of civil liberty is empty. They are freedom of speech and due process of law. … The fundamental justifications for freedom of expression are as follows. First, it is an intrinsic right of every individual not to be forced to think, speak and believe at the dictate of others, but to do these things of their own free accord. Secondly, it is of the essence to the possession and protection of other liberties that individuals have this right. Thirdly, in the absence of the first two considerations, the full development of the human individual is vastly more difficult and in most cases not even possible, Fourthly, freedom of expression is essential to the interchange of ideas and views, and discussion of them, without which society cannot be healthy or mature.

…

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Justice in Measure For Measure

21 February, 200922 February, 2009
| 1 Comment
| Cinema, television and theatre
Shakespeare, via Wikipedia
Image via Wikipedia

I have already glanced at the legal issues in The Merchant of Venice on this blog; but Shakespeare dealt with issues of justice and mercy in many other plays as well. Consider for example Measure for Measure (wikipedia | full text | Project Gutenberg), which juxtaposes imperfect justice on earth with merciful justice in heaven. Christine Corcos on the Law and Humanities Blog writes about a fascinating analysis of the play from a legal perspective (with added links):

Justice in “Measure For Measure”

John V. Orth, University of North Carolina, Chapel Hill, School of Law, has published “‘The Golden Metwand’: The Measure of Justice in Shakespeare’s Measure for Measure,” in the Adelaide Law Review. Here is the abstract.

Measure for Measure, one of Shakespeare’s problem plays, is a dark comedy depicting Duke Vincentio’s effort to restore respect for the law after a period of lax enforcement. Peopled with a wide variety of law-enforcers and law-breakers, the play implicates numerous legal issues and has consequently attracted the attention of lawyers and judges. In the eighteenth century Sir William Blackstone contributed notes on the play, while in the twentieth century judges have quoted from it in their judicial opinions.

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Joseph Raz on ‘Innovative Interpretation’

13 February, 200922 February, 2009
| No Comments
| Conferences, Lectures, Papers and Workshops

Long Room Hub logoThe Irish Jurisprudence Society, with funding from TCD’s Long Room Hub Initiative, will host a public lecture by Professor Joseph Raz (Oxford and Columbia) at 7pm on Wednesday 25 February 2009 in the Lloyd Institute Building (pdf map here; dynamic map here). The evening will be chaired by Professor Desmond M Clarke, University College Cork; and Prof Raz will speak on the topic

Innovative Interpretation

The event is free, and all are welcome to attend, but numbers are limited so booking by email is essential.…

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Sedition and Lèse-majesté

26 January, 200927 January, 2009
| 3 Comments
| Censorship, Defamation Bill 2006, Freedom of Expression, Sedition

Emblem of Thailand, via widipedia.Two Australian stories recently caught my eye; and, although at first blush the only link is Australia, there is in fact a deeper connection. The first is from the BBC news Website:

Writer jailed for Thai ‘insult’

Australian writer Harry Nicolaides has been sentenced to three years in a Thai jail for insulting the monarchy. Nicolaides wrote a novel four years ago, which contained a brief passage referring to an unnamed crown prince. It sold just seven copies.

He admitted the charge of insulting the royal family, but said he was unaware he was committing an offence. Thailand’s monarchy is sheltered from public debate by some of the world’s most stringent “lèse-majesté” laws.

…

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Shylock’s appeal: illegal contracts, specific performance and damages

21 December, 200810 February, 2016
| 3 Comments
| Cinema, television and theatre, Contract

Cover of New Yorker magazine, Dec 22 & 29, 2008.I learn from this week’s New Yorker (cover, left) that the Cardozo School of Law of New York’s Yeshiva University that Shylock was finally able to appeal the judgment rendered against him in Shakespeare’s The Merchant of Venice (advance notice | poster (pdf) | YU news story | photos).

A Jewish moneylender in Renaissance Venice, Shylock had made a loan to Antonio, in default of which he would be entitled to a pound of Antonio’s flesh. Antonio defaulted, and Shylock sought specific performance. But, after Portia’s advocacy on behalf of Antonio, the Duke of Venice ruled that Shylock was entitled to a pound of flesh but not a drop of blood, and refused both specific performance and damages in lieu. More than that, for seeking to take Antonio’s life, Shylock was disgraced and forced to convert to Christianity, and his property was forfeit (though half was ultimately settled upon his daughter Jessica, who had converted to Christianity and eloped with her suitor, Lorenzo). …

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Hi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.


“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.


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