Judicial Creativity in Constitutional Interpretation

The focus of study in this thesis is on the necessity and extent of judicial creativity in interpreting provisions in certain crucial areas in the Constitution of India. Judicial innovation was essential to adapt the constitutional provisions to modern changed context. Creativity of the Court has been mainly in the creation and introduction of certain new concepts not found in any specific provision of the Constitution which, but were essential for its meaningful interpretation.Independence of the judiciary, basic structure and certain elements of social justice cherished as ideal by the makers of the Constitution are some such concepts infused into the Constitution by the judiciary. The second aspect of creativity lies in the attempt of the Court to construe provisions in the Constitution with a view to upholding and maintaining the concepts so infused into the Constitution. Introduction of those concepts into the Constitution was necessary and is justified. all important features of the Constitution like democratic form of government, federal structure, judicial review, independence of judiciary and rule of law were thus included in the doctrine to prevent their alteration by amendments.As a result of such a construction, the nature of those directive principles itself has changed. They ceased to be mere directives for state action but became mandate for it. If left to legislative or executive will for their implementation, the directives would have remained enforceable as ordinary right.To conclude, notwithstanding the errors committed by the Supreme Court in construing the provisions in the above areas, they stand testimony to its creative and innovative response in interpreting the Constitution. If this trend is continued, it will be possible to achieve through the judicial process, maintenance of independence of the judiciary, avoidance of destruction of the Constitution through the process of amendment and realisation of social justice envisaged in the directive principles. It can be hoped that the Court would maintain its energetic and vibrant mind and rise up to the occasions and extend the same to other areas in future.

O desenvolvimento judicial do direito: construções, criatividade interpretativa e técnicas manipulativas

Busca-se demonstrar que a criatividade é um aspecto inerente e inafastável da atividade jurisdicional. Neste sentido, o primeiro objetivo perseguido é o de analisar os conceitos relacionados à criatividade judicial, que são os de interpretação, construção e manipulação. São, também, analisadas e refutadas teorias atuais que negam a criação judicial do direito. Argumenta-se que a admissão, pelo poder judiciário, do caráter criativo de suas decisões é exigência do dever de sinceridade judicial. O segundo objetivo é o de investigar a tese de Hans Kelsen, que descreve Cortes que realizem o controle de constitucionalidade como legislador negativo. São apreciadas as incongruências dessa tese com o constitucionalismo contemporâneo, bem como o caráter falho de sua aplicação na jurisprudência do Supremo Tribunal Federal. O terceiro objetivo é o de investigar os aspectos descritivos e normativos das sentenças manipulativas. São formuladas propostas de fundamentação normativa e de limites de aplicação dessa técnica. Defende-se a admissibilidade das sentenças aditivas, redutivas e aditivas de princípio, mas se rejeita a das sentenças substitutivas, sendo defendido o emprego, em seu lugar, das medidas de necessidade.

The relevance of context in property law: a case for judicial restraint?

A distinction between the domestic and commercial context is commonly drawn in property law discourse and has been brought into focus by three recent House of Lords' decisions. The thesis of this paper is that while the distinction is a useful explanatory tool, it runs into difficulties when given legal effect by the courts. There is a definitional problem in understanding what is included within each context. Indeed, the distinction assumes the existence of a dichotomy when, in fact, the domestic and commercial spheres are better seen as a continuum. In Stack v Dowden, the majority of the House of Lords gave legal effect to context and considered that different rules should apply to determine ownership of the home. This paper locates its decision in the broader debate on judicial restraint and creativity. By analogy with current discussion of due deference in public law, it is suggested that, in light of the policy issues involved and the broader ramifications of the decision, insufficient justification was given for the approach adopted by the majority.

Contemporary issues in Australian family law: Do we need a more unified and interventionist judicial model

Recent decisions of the Family Court of Australian reflect concerns over the adversarial nature of the legal process. The processes and procedures of the judicial system militate against a detailed examination of the issues and rights of the parties in dispute. The limitations of the family law framework are particularly demonstrated in disputes over the custody of children where the Court has tended to neglect the rights and interests of the primary carer. An alternative "unified family court" framework will be examined in which the Court pursues a more active and interventionist approach in the determination of family law disputes.

Elementary students, creativity, and technology

This article reports on the impact on student personal creativity of a longitudinal study that had as its major goal the creation of a unique intervention program for elementary students. The intervention was based on the National Profile and Statement (Curriculum Corporation, 1994a, 1994b) for the curriculum area of technology. The intervention program comprised thematically based units of work that integrated all eight Australian Key Learning Areas (KLA). A pretest/posttest control group design investigation (Campbell & Stanley, 1963) was undertaken with 580 students from 7 schools and 24 class groups that were randomly divided into 3 treatment groups. One group (10 classes) formed the control group. Another 7 classes received the year-long intervention program, while the remaining 7 classes received the intervention, but with the added seamless integration of their available classroom computer technologies. The effect of the intervention on the personal creativity characteristics of the students involved in the study was assessed using the Creativity Checklist, an instrument that was developed during the study. The results suggest that the purposeful integration of computer technology with the intervention program positively affects the personal creativity characteristics of students.

The knowledge advantage (K-Adv): unleashing creativity and innovation

The K-Adv has been developed around the concept that it comprises an ICT enabling infrastructure that encompasses ICT hardware and software infrastructure facilities together with an enabling ICT support system; a leadership infrastructure support system that provides the vision for its implementation and the realisation capacity for the vision to be realised; and the necessary people infrastructure that includes the people capabilities and capacities supported by organisational processes that facilitates this resource to be mobilised.

Long term sustainability in exporting creativity

This project aims to assess the extent of economic sustainability of working in international markets by Australian construction design-related firms. This investigation also identified barriers and success factors firms experience, which ultimately increases or reduces their exposure to financial risk. This study explored new research territory by developing a detailed understanding of the way three successful firms have maintained their longevity in various international markets. The firms are not considered to be large firms by international standards. The manner in which the firms achieve long term sustainability, deal with problems and barriers in international markets and develop successful strategies rely upon being adaptable to different markets and changes within markets. A model was developed based upon a critical analysis of the literature. An adaptive performance framework for sustainability was developed which had three key areas; internationalisation process, market knowledge and design management. The sustainable business model is underpinned by the management of non-economic factors, which include social, cultural and intellectual capital. The ultimate aim of any firm and the ultimate indicator of success is financial capital. Firms typically develop their own highly sophisticated financial measures themselves however have only an implicit understanding of other softer and less tangible factors that impact upon sustainability. Adaptive performance is the firm’s continual adaptivity of business practices to respond to and thereby achieve client satisfaction by a combination of self, market and project needs assessment.

Characterising creativity : a holistic methodology for the assessment of creative works

This paper reports on the early stages of a design experiment in educational assessment that challenges the dichotomous legacy evident in many assessment activities. Combining social networking technologies with the sociology of education the paper proposes that assessment activities are best understood as a negotiable field of exchange. In this design experiment students, peers and experts engage in explicit, "front-end" assessment (Wyatt-Smith, 2008) to translate holistic judgments into institutional, and potentiality economic capital without adhering to long lists of pre-set criteria. This approach invites participants to use social networking technologies to judge creative works using scatter graphs, keywords and tag clouds. In doing so assessors will refine their evaluative expertise and negotiate the characteristics of creative works from which criteria will emerge (Sadler, 2008). The real-time advantages of web-based technologies will aggregate, externalise and democratise this transparent method of assessment for most, if not all, creative works that can be represented in a digital format.

Creativity, design and entrepreneurship : management education and development for innovation

Creativity, design and entrepreneurship, have been recognized as important contributors to a firm’s innovation and to the nation’s economic growth. Creativity and design play important roles in the fuzzy front end of a firm’s innovation process and also in corporate venturing processes, but the relationship between creativity, design and entrepreneurship to a large extent has not explicitly been examined. This exploratory conceptual paper briefly reviews the separate bodies of research on creativity, design and entrepreneurship, identifying similarities and differences in constructs and applications and identifying implications for business and for management education.

What are the lessons for entrepreneurship from creativity and design?

Entrepreneurship and innovation make significant contributions to the success of firms and both notions are often linked directly or indirectly to notions of creativity and more recently design (Drucker, 1985; Kelley, 2001; Nystrom, 1993). This theoretical paper investigates the processes involved in entrepreneurship, creativity and design and identifies key processes relevant to entrepreneurial practice.