MVV377K Judicial Review, Fundamental Rights and Balancing

Faculty of Law
Autumn 2023
Extent and Intensity
0/1/0. 3 credit(s). Type of Completion: k (colloquium).
Teacher(s)
doc. JUDr. Martin Hapla, Ph.D. (seminar tutor)
Pedro Moniz Lopes (seminar tutor), doc. JUDr. Martin Hapla, Ph.D. (deputy)
Jorge Silva Sampaio (seminar tutor), doc. JUDr. Martin Hapla, Ph.D. (deputy)
Guaranteed by
doc. JUDr. Martin Hapla, Ph.D.
Faculty of Law
Contact Person: Mgr. Věra Redrupová, B.A.
Supplier department: Faculty of Law
Timetable of Seminar Groups
MVV377K/01: Mon 25. 9. 12:00–13:40 041, 14:00–15:40 041, Tue 26. 9. 10:00–11:40 041, Wed 27. 9. 12:00–13:40 041, 14:00–15:40 041
Course Enrolment Limitations
The course is only offered to the students of the study fields the course is directly associated with.

The capacity limit for the course is 30 student(s).
Current registration and enrolment status: enrolled: 28/30, only registered: 0/30
fields of study / plans the course is directly associated with
there are 80 fields of study the course is directly associated with, display
Course objectives
The aim of this intensive course is to analyse the topic of judicial control of institu-tional actions restricting fundamental rights from an analytical perspective. Starting from the analysis of the structure of legal norms and the distinction between rules and princi-ples, as well as the normative property of defeasibility, the concept of normative con-flict, and its distinction from the concept of legal interpretation, the possibility and con-ditions for restricting fundamental rights will be studied. Assuming that such authorities often have to restrict fundamental rights through balancing judgements in order to carry out other constitutional norms, the principles of proportionality and equality will also be analysed, as conditions for the validity of those restrictions.
Learning outcomes
At the end of the course students should be able to understand:
- The normative structure and structural differences between rules and principles;
- How the resolution of normative conflicts is different from the interpretation of legal formulations;
- What is a fundamental right and what is a restriction to fundamental rights;
- Under what conditions a fundamental right may be restricted and how this connects with balancing;
- What the principle of proportionality consists of and what its function is;
- What the principle of equality consists of and what its function is.
Syllabus
  • 0. Introduction
  • 1. The structure of legal norms and the distinction between rules and principles (JORGE SILVA SAMPAIO)
  • 2. Defeasibility, normative conflicts and interpretation (PEDRO MONIZ LOPES)
  • 3. Fundamental rights as legal positions (JORGE SILVA SAMPAIO)
  • 4. Judicial review, restrictions on fundamental rights and balancing (PEDRO MONIZ LOPES)
  • 5. The principle of proportionality (JORGE SILVA SAMPAIO)
  • 6. The principle of equality (PEDRO MONIZ LOPES)
Literature
  • See Teacher's Information for full details.
Teaching methods
Lectures, PowerPoint presentations, discussions
Assessment methods
Short exam consisting of a statement to comment
Language of instruction
English
Further comments (probably available only in Czech)
Study Materials
The course is taught only once.
Teacher's information
Bibliography

PEDRO MONIZ LOPES, “The Syntax of Principles: Genericity as a Logical Distinction between Rules and Principles”, in Ratio Juris, 30(4), 2017

- “Relevance and Equality: an Analytical Account”, in The Journal of Contemporary Legal Issues, University of San Diego, 2022

- “Interpretative norms and interpretative discretion: criteria for adjudicating meaning” (co-auth: David Duarte), in TOMASZ GIZBERT-STUDNICKI/ FRANCESCA POGGI/ IZABEL-LA SKOCZEŃ (eds.), Interpretivism and the Limits of Law, Cheltenham: Edward Elgar, 2022

JORGE SILVA SAMPAIO, “Brute balancing, proportionality and meta-weighing of rea-sons”, in JAN-R. SIECKMANN (ed.), Proportionality, Balancing, and Rights: Robert Alexy's Theory of Constitutional Rights, Dordrecht: Springer, 2021

- “Proportionality in Its Narrow Sense and Measuring the Intensity of Restrictions on Fundamental Rights”, in DAVID DUARTE/ JORGE SILVA SAMPAIO (eds.), Proportionality in Law ¬– An Analytical Perspective, Dordrecht: Springer, 2018

- “An Almost Pure Theory of Legal Interpretation within Legal Science”, in DAVID DU-ARTE/ PEDRO MONIZ LOPES/ JORGE SILVA SAMPAIO, Legal Interpretation and Scientific Knowledge, Dordrecht: Springer, 2019

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