3189
This article build on the premise that the interpretation and application of constitutional rights in private law, in a pluralistic Rule of Law system, are developed through their recognition according to equally plural forms of exercise. It also shows how, under a methodological perspective, the st...
Guardado en:
| Autor principal: | |
|---|---|
| Otros Autores: | |
| Formato: | Artículo publishedVersion |
| Lenguaje: | Español |
| Publicado: |
Universidad de Buenos Aires. Facultad de Derecho. Departamento de Publicaciones
2020
|
| Materias: | |
| Acceso en línea: | http://www.derecho.uba.ar/publicaciones/pensar-en-derecho/revistas/15/la-interpretacion-de-la-exencion-religiosa-en-la-perspectiva-de-la-situacion-subjetiva-de-derecho-privado.pdf http://repositoriouba.sisbi.uba.ar/gsdl/cgi-bin/library.cgi?a=d&c=pensar&cl=CL1&d=HWA_3189 https://repositoriouba.sisbi.uba.ar/gsdl/collect/pensar/index/assoc/HWA_3189.dir/3189.PDF |
| Aporte de: |
| Sumario: | This article build on the premise that the interpretation and application of constitutional rights in private law, in a pluralistic Rule of Law system, are developed through their recognition according to equally plural forms of exercise. It also shows how, under a methodological perspective, the structuring of the rules depends on the building processes of jurisprudence and how, from a systematic perspective, equality in the application - equal treatment of what is equal - assumes a constitutive task. The theoretical, normative and material elements are subject to a co-essentiality regime for the formation and concretization of concepts and constant redefinition of their constituent elements. This work shows how application has an autonomous logical nature with respect to interpretation itself and implies a simultaneous double function: the culmination of the norms and the coherence control of the decision adopted with normative system. Symmetrically, from the private law perspective, subjective situations exist only when concretized in tokens are recognized according to a regime of existence, precise conceptual configuration and correlated efficacy. By this theoretical framework, the objective of this article is to examine the institution of religious exemption in United States from the perspective of subjective private law and to address how, both in doctrine and jurisprudence, areas of contrast between such an institution and the Rule of Law are identifiable in a distinctive way. These lines address the lack of a recognized concept of religion as a result of judicial self-restraint, mainly by the Supreme Court, and the consequent taxonomic indeterminacy in the application of rules. In this sense, the possibility of its doctrinal foundation is refuted through the analogical method or, as a hypothesis, based on thinking-by-type. Likewise, if focused the sequence of effects that leads to the conceptual displacement of freedom of conscience by freedom of religion in the interpretation of the First Amendment. |
|---|