Balancing Principles in Judicial Adjudication: The Gaps of Rationality in the Conviction of Illegal Immigrants
26 Pages Posted: 9 Jun 2020 Last revised: 29 Oct 2020
Date Written: May 9, 2020
Weighing principles and considering rules in the context of judicial adjudication to create a general theory of State and law is a challenge of hermeneutics that the Author makes. To meet this challenge the Author uses a decision of an administrative court in Portugal – the Tribunal Administrativo Central Norte. The fact-pattern of that decision involved a foreign citizen living illegally in the country. While illegally residing in the country, that citizen was a victim of a crime of bodily harm. She complained to the police. The police asked her for her passport to proceed with the claim. They realized she was Brazilian and that she was residing illegally in the country. Consequently, rather than proceeding with the complaint, the police activated the process of expulsion of the foreign citizen from the country for she was an illegal resident. A judge confirmed the order of expulsion. That foreign citizen filed an action for an injunction to stop the order of expulsion from being enforced. In this context, must or must not a judge within the trial of an action for an injunction confirm the decision of expulsion of a foreign citizen who is illegally in the country, but who was a victim of a crime of bodily harm? This case resonates with many other reported cases all over the world involving illegal immigrants, their children, and their families who face harsh judgments. For the judge, the challenge inherent in these cases is to balance fundamental rights in light of constitutional principles to avoid disproportionate solutions. Principles are measured up and scaled-down; but ultimately, every citizen, illegally staying in a country or not, is lifted by their human dignity and that cannot be disregarded.
Keywords: Balancing, principles, hermeneutics, immigration, gender
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