Fundamental Rights and Judicial Power Review

Flashcards covering key legal concepts, judicial philosophies, proportionality analysis, and classification of rights from the lecture notes.

Judicial Review

A mechanism allowing courts to assess the constitutionality of legislation and executive action to keep government power in check and protect fundamental rights.

Judicial Restraint

A judicial philosophy asserting that unelected judges should not actively alter or heavily interpret laws, leaving major decision-making and policy changes strictly to the elected legislature.

Judicial Activism

A judicial philosophy asserting that judges should take a proactive role in interpreting and shaping laws to ensure outdated constitutional documents meet the modern standards and needs of society.

Defense of Marriage Act (1996)

A United States federal law that defined marriage for federal purposes as the union between a man and a woman, which was subsequently struck down through judicial intervention.

Suitability Test

The first step in proportionality analysis, which assesses whether a measure adopted by the legislature is suitable to achieve its intended objective.

Necessity Test

The step in proportionality analysis evaluating whether a restrictive measure is necessary because no alternative, less restrictive measure exists to achieve the same objective.

Proportionality in a Stringent Sense

The final stage of proportionality analysis where judges conduct a balancing test to decide whether the benefits of a state objective outweigh the harm done to an affected fundamental right.

Necessity Theory

Robert Alexy's theory holding that balancing and proportionality are an inherent and necessary part of fundamental rights adjudication whenever judges interpret the law in court.

Contingency Theory

A theory arguing that rights balancing and proportionality exercises are not inherent to all judicial processes, occurring only when explicitly intended by the constitutional framers.

Rule

A definitive legal norm that is either completely satisfied or not satisfied, such as a law requiring a person to be 18 years old to vote.

Principle

An abstract legal norm—such as freedom of speech or self-determination—that cannot enforce itself directly and requires judges to interpret and balance it against other rights.

Weight Formula

A formula created by Robert Alexy to standardize and introduce a quasi-scientific, objective structure into the judicial argumentation process during rights balancing.

Positive Law

Written law enacted by a legislature and recorded on paper, representing the real or factual side of constitutional rights.

Natural Law

Inherent rights possessed by human beings simply by virtue of being born, representing the ideal dimension of rights that pre-exists written constitutions and positive law.

Positive Right

A category of fundamental right that requires the state to take affirmative action or organize society to provide something for the citizen, such as the right to education.

Negative Right

A category of fundamental right that negates or restricts the ability of the state to interfere with individual liberties, such as freedom of movement or freedom of speech.