Journal articles on the topic 'Constitution'
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1
de Raadt, Jasper. "Contested Constitutions." East European Politics and Societies: and Cultures 23, no. 3 (May 5, 2009): 315–38. http://dx.doi.org/10.1177/0888325409333192.
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What were the effects of constitution-making procedures on the acceptance of the new “rules of the political game” in postcommunist Central Europe? This article sets out to scrutinise the increasingly popular claim among politicians and scholars of democratisation that inclusiveness and popular involvement in constitution-making processes enhance a constitution's legitimacy. The concept of constitutional conflict, referring to political contestation over the interpretation and application of constitutional relations among state institutions, is introduced as a way to assess constitutional acceptance among politicians. The investigation concentrates on constitutional conflict patterns during the five years following constitution-making in seven Central European countries: Bulgaria, the Czech Republic, Estonia, Hungary, Poland, Romania, and Slovakia. Constitution-making procedures varied substantially among the cases, as did the intensity and timing of constitutional conflict. The article finds that differences in constitution-making procedures do not necessarily determine the legitimacy of constitutions among political elites. Instead, ambiguity on the allocation of formal competencies among political actors and increasing political tensions between pro-reform and anti-reform parties during the early 1990s proved to be more important triggers of constitutional conflict. Accordingly, studies on constitution-making and democratisation should focus less on procedural aspects and take into account the fuzziness of important constitutional provisions and the extent to which constitutions can survive periods of intense political polarisation.
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Costa, Renato. "John Finnis and the central case constitution." Journal of Legal Philosophy 49, no. 1 (April 26, 2024): 25–49. http://dx.doi.org/10.4337/jlp.2024.01.02.
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This article formulates a novel conception of constitutions based on John Finnis’s jurisprudential work. The ‘central case constitution’ transcends the formal or functionalist analyses currently dominant in constitutional theory by considering a constitution as having a ‘double life’. Constitutions are necessarily and intrinsically normative and factual. The article explores Finnis’s natural law philosophy, emphasizing the central case constitution’s alignment with the practical reasonableness viewpoint and its role in directing a political community towards its common good. Focusing on key elements such as the rule of law and the context of a political community, the central case constitution emerges as a legal determination that structures society, frames political institutions and authoritatively directs communities towards justice. This ontological understanding has theoretical and practical implications, including identifying genuine constitutional purposes, safeguarding private associations from the overwhelming state presence, promoting community identity and accommodating diverse constitutional choices for self-determination.
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Kaczmarczyk-Kłak, Katarzyna. "The principle of property protection in the Constitutionof the Republic of Poland - past and present." Nieruchomości@ III (September 30, 2023): 121–46. http://dx.doi.org/10.5604/01.3001.0053.8970.
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The purpose of this article is to present ownership as defined in the Constitution. The authoranalyses the issue from its recognition in the Constitutions of the interwar period, the Constitutionof 1952, to the current understanding in the Constitution of 1997. The problem ofinterpretation of ownership in selected jurisprudence of the Constitutional Tribunal, commonand administrative courts, as well as the limits of its protection is presented
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Shinar, Adam. "Deconstructing Mixed Constitutions." Law & Ethics of Human Rights 16, no. 1 (May 1, 2022): 167–92. http://dx.doi.org/10.1515/lehr-2022-2005.
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Abstract A central task of comparative constitutional law scholarship is categorization and classification of constitutions. Recent scholarship, no doubt informed by the populist tide, has sought to develop the concept of a mixed constitution. Broadly speaking, a mixed constitution is a constitution that integrates liberal and illiberal elements, elements that are usually separate and not found under the same constitution. The study of “mixed constitutions” encompasses both descriptive and normative aspects. First, an attempt to ascertain what, exactly, makes a constitution “mixed.” Second, an attempt to analyze either the desirability of such a system or an attempt to figure out how to harness mixed constitutions in the service of particular normative goals, for example the protection of human rights. This article has two goals. First, an inquiry into the descriptive aspect of mixed constitutions. My aim is to show that given the seeming consensus of what constitutes a mixed constitution, the category itself might encompass many more constitutions than is often acknowledged, to the point that many constitutions are likely to be mixed to a certain extent. My second goal is to demonstrate that given this definitional consensus, what makes a constitution mixed is not necessarily because the constitution itself is mixed, but because sub-constitutional norms shape our constitutional understanding. Put differently, the meaning of a constitution is not determined exclusively through an analysis of the constitution, but also by shifts in sub-constitutional understandings. If this is correct, then it turns out that the universe of mixed constitutions is much larger than thought, which casts doubt on the utility of the category of mixed constitutions.
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Trifonov, S. G. "THE CONSTITUTION AS AN OBJECT OF LEGAL PROTECTION: THE HISTORICAL AND THEORETICAL ASPECT." Scientific Notes of V. I. Vernadsky Crimean Federal University. Juridical science 6(72), no. 3 (2021): 30–41. http://dx.doi.org/10.37279/2413-1733-2020-6-3-30-41.
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Ideas about the need for special means of protecting the Constitution arise and develop simultaneously with the appearance of the first written constitutions. The study of the protection of the Constitution reveals the legal tools that can be used to prevent attacks on constitutional principles and values. The article analyzes the meaning of the term Constitution in historical retrospect, highlights the organic connection between the terms Constitution and constitutionalism, and pays attention to the thoughts of scientists and educators about the Constitution and its legal protection. It also describes the techniques used to protect the first constitutions. Ideas for a certain protection or defense of the Constitution arose immediately with the appearance of the first constitutions. They were implemented gradually, either finding their expression in the constitutional text itself or following the development of judicial practice. Such means gradually became the institution of repeal of acts, the formation of the constitutional-legal Institute of the guarantor and guardian of the Constitution, the Institute of constitutional control, the procedure for changing the Constitution, and others.
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Palmer, Sir Geoffrey. "The Hazards of Making Constitutions: Some Reflections on Comparative Constitutional Law." Victoria University of Wellington Law Review 33, no. 3-4 (December 1, 2002): 631–60. http://dx.doi.org/10.26686/vuwlr.v33i3-4.5815.
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After teaching comparative constitutional law in the United States, Sir Geoffrey Palmer explores the nature of constitutional law in general terms and how New Zealand could learn from others. The author compares New Zealand's uncodified constitution to, for example, the United States who has a codified written constitution. The article then discusses the entrenched nature of some constitutions, compared to New Zealand's flexible and fluid constitution that exists largely in several ordinary statutes. Because of New Zealand's fragmented constitution, it is argued that its constitution has an unclear and indeterminate status; indeed, constitutional policy hardly makes an appearance in New Zealand politics. The author briefly looks at how constitutions protect fundamental rights and constitutional design in general terms, concluding that New Zealand's discussions on constitutional themes are too infused with analytical positivism, legalism, and traditionalism for policy issues. Finally, the author discusses the role of Fiji's constitution in light of its military coups. The author concludes that constitutional reform is needed in New Zealand in the form of a written and codified constitution.
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Fombad, Charles Manga. "Constitution-Building in Africa." African and Asian Studies 13, no. 4 (December 10, 2014): 429–51. http://dx.doi.org/10.1163/15692108-12341316.
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Constitution-building is a delicate and intricate process which requires ample reflection and careful choices. African constitution-builders and politicians have since the beginning of the 1990s embarked on a process of constitutional reforms. A careful examination of the developments of the last two decades shows that the process has almost provoked never-ending contagion of making, unmaking and remaking of constitutions. This paper attempts to provide an over-view of the changes that have been taking place. Some of the issues relating to the durability of national constitutions and theoretical foundations for constitutional change are discussed. The paper also considers some of the possible implications of the endless processes of making, unmaking and remaking constitutions. The critical question it tries to grapple with is how this unending process of constitution-building in Africa can be controlled in a manner that will ensure peace, political stability and provide a legitimate foundation for entrenching a firm culture of constitutionalism. In advocating for an entrenched permanent constitutional review commission to check against frequent and arbitrary constitutional changes, the paper argues that this is the best way for constitutional legitimacy to be sustained throughout the life of a constitution.
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Roznai, Yaniv. "What are We Talking About When We Talk About “Mixed Constitutions”? Towards a Typology of Constitutional Mixture." Law & Ethics of Human Rights 16, no. 2 (November 1, 2022): 193–215. http://dx.doi.org/10.1515/lehr-2022-2010.
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Abstract This article argues that constitutional mixture should be regarded as an inherent, inevitable feature of constitutions, and to some degree all constitutions are mixed. Thus, “mixed constitutions” should not be regarded as a distinct category of constitutions. Instead of asking whether a constitution is mixed, it might therefore be more useful to ask in which characteristics and to what extent a constitution is mixed. To demonstrate this, the article provides a preliminary typology of constitutional mixture considering the form or system of government; the nature or character of government; the religious or secular identity; the flexibility or rigidity of the constitution; and its model of judicial enforcement—judicial or parliamentary supremacy. Examining these constitutional features, allows to shed light on the three different dimensions of “constitutional mixture”: First, the various features of the constitutional order do not function in a binary yes-or-no manner but appear and move along a spectrum. Second, the various features of the constitution change with time. Third, the various features of the constitutional text may be in tension with the features of the society.
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JEONG, Kuk Won. "Comparison of preambles to constitutions around the world." European Constitutional Law Association 40 (December 30, 2022): 147–74. http://dx.doi.org/10.21592/eucj.2022.40.147.
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Preamble to the Constitution refers to a sentence or provision placed before the text of the Constitution, which consists of a part of the Constitutions. Preamble to the Constitution declares the historical origin and the basic principle of constitution, and also declares its constitutional commitment. The purpose of Preamble to the Constitution is to identify the subject and the procedure of Constitutions as well as the motive, purpose and ideology of Constitution showing the identify of Constitutions, but it is not included in the text along with appendix, and is not essential element of written constituions. However, the written constitutions around the world have the preamble. This study targets total 16 countries that have Preamble to the Constitution including our country. What we want to obtain through the comparison of Constitutions is the accurate understanding of practical application of Constitutions, which are the target of comparison, and its ultimate goal is to secure the optimized constitutional normative power by specify the similarity or difference of preamble shown from individual and concrete application of each country. The comparison method of preamble to achieve this goal can be classified into formal aspect and practical aspect. Preamble to the Constitution is positioned in the front of text, so the actual benefit of comparison is not that big. Therefore, the core contents should be identified through practical aspect comparison. In this case, it is important which factor should be based. This study compares and analyzes the contents of preamble to the Constitution based on, first subjects and procedures, second, history and future, third, justice, fourth, diversity, fifth, freedom and equality, sixth, peace and solidarity, and seventh, the Declaration of Federal Constitutions. In our country, whenever there is discussion on constitutional amendment, it is argued that the May 18 Democratization Movement and the June 1987 Struggle should be included in the Preamble to the Constitution. As the level of people’s awareness on Preamble to the Constitution gets higher, for example, there is an attempt to include the things which is difficult to add to the text of Constitution such as respectful treatment to civilian army activity. The comparison of Constitutions largely serves as a useful material for raising the awareness of Constitutions, contributing to the international reunification of Constitutions, and revising Constitutions. This study on the preamble to the Constitution around the world is thought to function as the criteria that can judge the effectiveness whether May 18 Democratization Movement and the June 1987 Struggle, which are being argued that it should be included in the Preamble to the Constitution, has such a value.
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Quentin-Baxter, Alison. "Making Constitutions, From the Perspective of a Constitutional Adviser." Victoria University of Wellington Law Review 33, no. 3-4 (December 1, 2002): 661–98. http://dx.doi.org/10.26686/vuwlr.v33i3-4.5813.
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This article summarises the author's experience of creating constitutions for the State of Niue, the Republic of the Marshall Islands, and the Republic of Fiji. She sets out eight general issues of discussion. First, when do countries make a new constitution? Secondly, how do constitutions act as the rules of the political game? Thirdly, how can a country make a constitution? Fourthly, how does the method of constitution-making affect the tasks of the constitutional adviser? Fifthly, should the public be involved in constitution-making, and how? Sixthly, what goes into a constitution? Seventhly, is the Westminster constitution a satisfactory export model? Finally, what are the responsibilities of a constitutional adviser? The author discusses all issues by providing her experiences in the above nations, setting the scene for a discussion of constitution-making in New Zealand.
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Darijus, Beinoravičius, Mesonis Gediminas, and Vainiutė Milda. "The Role and Place of the Preamble in Lithuanian Constitutional Regulation." Baltic Journal of Law & Politics 8, no. 2 (December 1, 2015): 136–58. http://dx.doi.org/10.1515/bjlp-2015-0022.
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Abstract While analysing constitutions of various countries in the legal literature, typically not only the form and the content but also the structure of the constitution is discussed. The structure of the constitution is an internal organisational order of the norms of the constitution. Although every state’s constitution has a unique structure, certain regularities can be discerned. The analysis of the structure of various constitutions leads to the conclusion that normally each constitution consists of the following standard structural parts: the preamble, the main part, the final, transitional or additional provisions, and in some constitutions there can also be annexes. The article confirms that most constitutions begin with an introductory part, the preamble. Only the constitutions of several countries (e.g. Norway, the Netherlands, Belgium, Italy, Greece) contain no preamble. The preamble reflects the historical context and the circumstances of the adoption of a constitution, names the goals of the constitutional regulation, fortifies the values to be attained, declares the key political principles or even the fundamental human rights and freedoms, etc. Often the preamble reveals the methods of adoption of a constitution. The preamble is an important structural part of the constitution that helps to understand the established constitutional regulation. The principles enshrined in it can be considered a significant argument for the constitutional justice institutions while solving the case of whether the law or any other legal act in question contradicts the constitution. The preamble is not only a political, ideological, and/or philosophical category; it undoubtedly also carries a legal burden, therefore it is considered to have legal validity. Preambles are characterized as having a so-called higher style; they are usually formulated not in compliance with the requirements of legal technique.
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Thi Hai Van, Nguyen, and Chu Van Ninh. "Perspectives on constitutional responsibility some countries in the world introduction and comparison with Vietnam." Jurnal Cita Hukum 11, no. 2 (August 31, 2023): 209–18. http://dx.doi.org/10.15408/jch.v11i2.30616.
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The Constitution is the document with the highest position in the legal hierarchy, acting as the original law, as a basis for other documents in the system of legal documents of each country. The contents are indispensable in most constitutions. With the highest legal position and effect, the constitution plays an important role in ensuring human rights and citizens' rights by recognizing these rights, binding the state's responsibility in realizing these rights. constitutional rights and the constitution is also a document restricting the power of the state. Constitutional liability is an important tool for strengthening and developing democracy, but in practice, not all countries are directly mandated by their constitutions or legal documents constitution as a special form of liability. This article gives a general review of constitutional liability in a few diffe ent nations to compare and offer ideas for considering the constitutional liability institution in Vietnam.
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Kaplan Arık, Aslıhan. "Anayasa Değiştirme İktidarının Kötüye Kullanılmasını Önlemeye Yönelik Anayasa Değişikliği Usulünün Farklılaştırılması." International Journal of Social Sciences 7, no. 28 (May 9, 2023): 280–92. http://dx.doi.org/10.52096/usbd.7.28.20.
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Constitution-making powers impose limitations on their power to amend the constitution in the constitutional texts they prepare. These limits are intended to prevent the differentiation or abolition of the basic philosophy of the constitution and the constitutional order established by the power to make the constitution. These limits, which are brought in order to prevent the constitutional amendment powers from making changes other than their purpose, are realized by further protecting the principles and values that are given special value in the constitutions of some countries and that constitute the basic philosophy of the constitution. In other words, some provisions that constitute the basic principles and values of the constitution are subject to a different amendment procedure compared to other provisions of the constitution. This differentiation procedure includes additional conditions such as a qualified majority, a referendum, or the passage of a certain period of time in the amendment process. In this study, the differentiated constitutional amendment procedure and whether these procedures have an effect on the abuse of constitutional amendment power have been examined. Keywords: Constitutional amendment power, constitutional amendment procedure, differentiated constitutional amendment procedure, abuse of constitutional amendment power.
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BELL, CHRISTINE. "Introduction: Bargaining on constitutions – Political settlements and constitutional state-building." Global Constitutionalism 6, no. 1 (March 2017): 13–32. http://dx.doi.org/10.1017/s2045381716000216.
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Abstract:This article considers the relationship between constitutions and political settlements and locates the special issue articles within this wider discussion. The article points to the apparently paradoxical connection between disillusionment with internationalised state-building techniques on one hand, and increased international faith in constitution-making as a state-building tool on the other. Using understandings of the relationship of the constitution to political settlement which draws on conventional constitutional theory, it argues that the current context of negotiated transitions requires constitution-making to be approached with an eye to the distinctive dilemmas of statecraft that pertain in contemporary transitions. The most central dilemma concerns how power-balances between political/military elites can be broadened to ensure the constitution’s capacity to fulfil its normative role in restraining power and delivering broader social inclusion. The pieces which make up this special issue draw together development and legal discourses. This article suggests how constitutional theory provides a resource for those seeking to promote constitutionalism as a tool for reaching political settlements capable of resolving conflict. It also argues that those who seek to rely on constitutions for conflict resolution need to understand this enterprise as just as political and fraught as all other institution-building efforts.
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Alexander, Larry. "WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?" Social Philosophy and Policy 28, no. 1 (November 30, 2010): 1–24. http://dx.doi.org/10.1017/s0265052510000038.
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AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.
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Fernando, Joseph M., and Ho Hui Ling. "British and Commonwealth legacies in the framing of the Malayan constitution, 1956–1957." Britain and the World 8, no. 2 (September 2015): 181–203. http://dx.doi.org/10.3366/brw.2015.0190.
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The drafting of a constitution is a complex consultative process. No country, including the United States and India, can claim that its constitution was entirely the original creation of its draftsmen. Framers of constitutions are inspired and influenced by a variety of sources from ancient and modern forms of government and laws. The 1957 Malayan federal constitution drafted by the Reid commission was no exception. While it is known that the drafting of the Malayan (now Malaysian) constitution was influenced by Commonwealth constitutions, the extent of this influence has remained unclear. This article reveals through a close scrutiny of the primary constitutional documents that the framing of the Malayan constitution was mainly influenced by three connected yet varied sources of constitutionalism. Their influences can be discerned at two inter-related levels. At the first level, it is clear that the underlying constitutional principles which formed the foundations of the Malayan constitution were largely based on English constitutionalism and principles of Common law. At the second and more visible level, this article reveals that the drafting of the Malayan constitution was largely influenced by two contemporary Commonwealth constitutions which served as the main reference templates for the framing of the articles.
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Lino, Dylan. "The Australian Constitution as Symbol." Federal Law Review 48, no. 4 (September 10, 2020): 543–55. http://dx.doi.org/10.1177/0067205x20955076.
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According to a conventional story told by scholars, the Australian Constitution is virtually invisible as a symbol within Australian political debate and culture. This article challenges that conventional story, arguing that the Constitution plays a more significant public role than is commonly assumed. Analysing the ongoing debate over the constitutional recognition of Aboriginal and Torres Strait Islander peoples, the article highlights four prominent symbolic Constitutions: the practical, the liberal, the outdated and the exclusionary. These constitutional symbols are mobilised by different political actors for a range of political purposes. Understanding constitutional symbolism helps in seeing the ideological work performed by the Constitution outside the courts and prompts constitutional scholars to be more conscious of how they contribute to that ideological work through their representations of the Constitution.
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Weiming, W., and N. Symaniuk. "The Changes of the Basic Rights in the Current Constitution of China." BRICS Law Journal 11, no. 2 (July 29, 2024): 91–112. http://dx.doi.org/10.21684/2412-2343-2024-11-2-91-112.
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The current Constitution of the People’s Republic of China is the 1982 Constitution, which is the fourth constitution after the founding of the People’s Republic of China. The provisions of the current Constitution on the fundamental rights of citizens are generally similar to those of the first Constitution of 1954, but are more specific, while the freedom of movement provided for in the 1954 Constitution is deleted. The 1975 Constitution and the 1978 Constitution are the second and third Constitutions, respectively. Because of their special historical period, the provisions on fundamental rights in these two constitutions are retrogressive and failing. The historical background of the revision of the Constitution, the possibility of realizing rights and the level of social development are the main reasons for determining the provisions of the basic rights of citizens in the 1982 Constitution. In 2004, the current Constitution was amended to include “the State respects and protects human rights,” which establishes the constitutional obligation of the State to guarantee human rights. In practice, there is still ongoing debate over how the State’s guarantee obligations are implemented and whether citizens can file lawsuits if they believe that their fundamental rights have been violated. In recent years, the recordation review has partially realized the supervision of legislation that may infringe on citizens’ basic rights by reviewing the constitutionality and legality of laws and regulations, but citizens have not been able to directly protect their rights through litigation. The changes in the basic rights of citizens in terms of constitutional provisions and legal guarantees over the past 40 years are the result of the development of the rule of law in China. In order to more effectively solve the problem of constitutional rights from text to reality, it is also necessary to further develop the constitutional review system.
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Kovtunyak, V. "Features of the relationship between the constitutional process and amendments to the constitution." Analytical and Comparative Jurisprudence, no. 2 (July 24, 2022): 70–73. http://dx.doi.org/10.24144/2788-6018.2022.02.12.
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The article examines the theoretical and practical issues of analysis and understanding of amendments to the constitution as an integral part of the constitutional process. The special properties of constitutions that affect the process of amending the basic law are identified. The understanding of the constitutional process in the modern period, its tasks and constituent elements are analyzed, its goals and purpose are investigated. The main stages of the procedure for making changes that are observed in practice and their features are identified. The process of amending the constitution as an element of the constitutional process in the formation and establishment of the principles of constitutionalism, creating conditions for the functioning of the constitution to ensure and protect the rights and freedoms of man and citizen. It is pointed out that it is impossible and not necessary to prohibit amendments to the constitution. That is why the constitutions establish a special procedure that regulates the process of making changes to it (formal aspect) and certain substantive criteria, ie provisions that, for example, cannot be changed (material aspect).
It has been established that the constitutional process is often seen as a process of adopting a constitution, but its understanding is broader today and can be seen as a process, a way to establish the real supremacy of the constitution, implement its principles, limit the power of the people and form constitutionalism. In most countries of the world the constitution has already been adopted, but all of them ensure its actual implementation both by the state and by society and man. Amendments to the constitution can be considered an integral part of the constitutional process aimed at forming a "living" and relevant constitution, when its functioning is aimed at real adoption of fundamental legal principles and ensuring and guaranteeing the protection of human and civil rights.
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Harvelian, Agnes, Muchamad Ali Safa'at, Aan Eko Widiarto, and Indah Dwi Qurbani. "CONSTITUTIONAL INTERPRETATION OF ORIGINAL INTENT ON FINDING THE MEANING OF SOCIAL JUSTICE IN THE CONSTITUTIONAL REVIEW." Yustisia Jurnal Hukum 9, no. 3 (December 31, 2020): 348. http://dx.doi.org/10.20961/yustisia.v9i3.42003.
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<p><em>This article will study whether original intent method able to find justice in constitution and formulate constitutional interpretation that will able to perform constitutional supremacy. This study uses a doctrinal approach or also referred to as the normative legal approach. The method taken in this writing is analysis descriptive which describes and analyses constitutional interpretation with original intent method. Formulating constitution interpretation which answers people dynamic but doesn’t lose its original constitutional intent. This research shows that Constitutional interpretation with original intent method can mean as an interpretation which assimilate the spirit of how the original written constitution was formulated when building UUD 1945, the opinion of constitution’s founders in their understanding on the purpose and the nation’s ground principals. Basically, All the rules must not contradict with constitution’s intention. The freedom of judges to decide is not freedom without limits. The limitations of judges' freedom of interpretation are Pancasila and the 1945 Constitution. Decisions made by judges must not conflict with Pancasila and the 1945 Constitution, constitutional judges have great power in interpreting the 1945 Constitution. This power is vulnerable to various interests which make the decisions of constitutional judges not objective. Accountability of decisions in public and academics should be a legal idea that can be realized, not to judge the verdict but to know the basis of interpretation and or legal discovery by constitutional judges</em></p>
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Beckman, Ludvig. "Democratic legitimacy does not require constitutional referendum. On ‘the constitution’ in theories of constituent power." European Constitutional Law Review 14, no. 3 (September 2018): 567–83. http://dx.doi.org/10.1017/s1574019618000287.
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Constitutional referendum – Popular sovereignty – Constituent power – Democratic legitimacy – Participation in referendum as exercise of constituent power – The legal status conception of the constitution – The legal functions conception of the constitution – Open question whether every provision in codified constitutions is essential to constituent power – Therefore, constitutional referendum not always mandated by democratic legitimacy
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Barseghyan, Sose. "Manifestation of Direct Application of Constitutional Norms in the Field of Law Enforcement." Bulletin of Yerevan University C: Jurisprudence 14, no. 2 (39) (December 14, 2023): 61–68. http://dx.doi.org/10.46991/bysu:c/2023.14.2.061.
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The article refers to the application of constitutional norms by the courts and the interpretation given in the practice of the Constitutionl Court. In particular, the right of a person to seek judicial linitgation to protect his/her constitutional rights, the jurisdiction of the courts to apply the Constitution, the relantionship between the principle of supremacy of Constitution and the concept of implementantion of Constitution, the duty of ordinary courts to appeal to the Constitutional court and simultaneously justify unconstitutionality of a legislative norm, have become the subject of discussion. The article proposes an effective application of the constitutional nroms, introduction of flexible and applicable mechanisms for constitutional justice.
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Fombad, Charles Manga. "Designing Institutions and Mechanisms for the Implementation and Enforcement of the Constitution: Changing Perspectives in Africa." African Journal of International and Comparative Law 25, no. 1 (February 2017): 66–90. http://dx.doi.org/10.3366/ajicl.2017.0182.
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Until fairly recently, the issue of constitutional implementation has surprisingly received little attention both in constitutional theory and practice. Yet it is a crucial aspect of constitutional effectiveness. Without a carefully thought-out strategy for implementing and enforcing a constitution, its practical effectiveness in promoting constitutionalism, respect for the rule of law, and good governance may be quite limited. The Kenyan 2010 Constitution provides a backdrop against which this article examines certain critical issues in designing institutions and mechanisms for ensuring that a constitution is properly implemented and enforced. The article starts by briefly considering the importance of and challenges in implementing and enforcing constitutions. It then uses the evidence from recent developments in constitution-making to identify some of the core constitutional implementation and enforcement institutions. The article then looks at the Kenyan example which, in Africa, presently provides the best example of a carefully thought-out and well-designed constitutional implementation strategy. Based on this, the article then considers some of the key elements in designing an effective constitutional implementation framework. In concluding, the article argues that incorporating and entrenching effective constitutional implementation mechanisms must be made one of the top priorities in designing constitutions. Furthermore, designing any constitutional institution to oversee, supervise, and monitor the implementation of the constitution must also now be recognised as one of the critical elements for entrenching constitutionalism and respect for the rule of law.
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Tafani, Ismail, and Renata Tokrri. "Some Reflections on the Constitutional Review in Albania in a Comparison Key." Mediterranean Journal of Social Sciences 12, no. 2 (March 7, 2021): 22. http://dx.doi.org/10.36941/mjss-2021-0009.
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In this study we will try to analyze the foundations of the Constitution as a pillar and as a guarantee for its solidity. The study will also address the need for revision of the constitution as a fundamental element of its existence and continuity. Particular emphasis will be given to the comparison of the constitutions of the most important countries in the world as regards the procedures and limits to the constitutional revision. In this sense, the constitutions of some Balkan Peninsula countries will be analyzed to draw a comparison and analyze the Albanian Constitution as regards the procedure for its revision. The study intends to analyze the procedures for the revision of the Constitution as well as the explicit and implicit limits to these revisions. In the Constitutional revision in Albania in 2016, the role of the Constitutional Court on the control of the constitutional legitimacy of constitutional revision laws was clarified. Formal constitutionality is usually emphasized since the Albanian constitutional reform underlined that the Constitutional Court in Albania could express itself on the constitutionality of the Constitutional revision law only from a formal point of view.
Received: 2 January 2021 / Accepted: 27 February 2021 / Published: 7 March 2021
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Yun, Jeong-In. "Political Party Clause of the Korean Constitution: De Constitutione Ferenda." Korean Association of International Association of Constitutional Law 29, no. 1 (April 30, 2023): 165–207. http://dx.doi.org/10.24324/kiacl.2023.29.1.165.
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The Korean Constitution’s political party clause(party clause) and party legislation which were designed during the authoritarian regime have since shaped the reality of party politics and the party system so far. Particularly, the theoretical background and legal argument that formed the basis for such party regulation still impact constitutional jurisprudence and judicial practice. This article thus explores a way forward to get out of the wrong path paved in the past that has led the Korean malfunctioning party politics. In scholarship and politics, the problem regarding the interpretation and reform of party law – ie. ‘Political Parties Act’ – that regulates the political parties has been actively discussed. Relatively, however, any intensive discussion on the party clause in the Constitution which justifies such party regulation was rare. So, in the first place, bringing a new perspective to the interpretation of the party clause would be necessary in terms of de constitutione lata. Nonetheless, a more fundamental solution would be revising the party clause, Article 8, of the current Constitution, which remains in its original form for the last sixty years and keeps justifying the anachronic party legislation. In this sense, this article argues it is now inevitable to engage in de constitutione ferenda due to the party clause’s problematic background and interpretative limitations, examines the various ideas presented to revise the party clause in the constitutional amendment discussions under the current Constitution, and finally suggest a desired direction for amending the party clause, Article 8, of the Korean Constitution.
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Suharno, Suharno, Amir Junaidi, and Muhammad Aziz Zaelani. "Embodying The Meaning Of The Guardian Of The Constitution In The Role Of The Constitutional Court Of Reducing Constitutions Indicated By Policy Corruption." International Journal of Educational Research & Social Sciences 2, no. 3 (June 29, 2021): 592–99. http://dx.doi.org/10.51601/ijersc.v2i3.88.
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Purpose of this study was to answer two problems: (i) how is the guardian of the constitution embodied through the function of the Constitutional Court; and (ii) how the Constitutional Court as the guardian of the constitution reduces constitutions that are indicated by the policy corruption. Policy corruption is an invisible and covert element that able to threaten the synergy of the legal system and the public interest. The form of policy corruption is realized in the form of a law. Efforts that can be made to reduce the policy corruption are to implement the tight control over the media, which in this case is relevant to the function of the Constitutional Court. This studywas classified as doctrinal research with primary and secondary legal materials. Comparative approach and case approach were used to answer the legal issues. The results showed that: First, the guardian of the constitution through the function of the Constitutional Court through the optimization of the Constitutional Court Judges as the agent of constitution, strengthening the execution of the Constitutional Court decisions and collaborative steps with other state institutions in enforcing the constitutional guardianship. Second, the Constitutional Court as the guardian of the constitution in reducing laws indicated by the policy corruption is manifested in the form of a Constitutional Court decision that can be retroactive to recover the impact of legal losses that are indicated by the policy corruption, the decision of Constitutional Courtis justified by ultra vires to anticipate the chain of constitutions that indications of policy corruption, the decision of Constitutional Courtis strengthened in terms of its execution and the Court can examine or test the Constitution Drafting (bill/ RUU) (a priori review) as a preventive measure to prevent the enactment of laws that indicate policy corruption.
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Lee, Hwanghee. "Stability and Changeability: Theoretical Considerations on the Process and the Way of Constitutional Amendment." Korean Constitutional Law Association 30, no. 1 (March 30, 2024): 41–78. http://dx.doi.org/10.35901/kjcl.2024.30.1.41.
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Societies are constantly changing, and legal systems are always organized in the context of those changes. Constitutions have a dual nature in the context of social change. On the one hand, it seeks to remain stable in the face of social change (stability). This helps maintain a normative and institutional core that should not be easily altered in response to social changes. On the other hand, it also aims to adapt to social changes (changeability). Constitutions themselves recognize the possibility of amendment and are open to various interpretations and applications. The two may seem contradictory, but both are essential to maintaining the normative power of a constitution.
In some cases, however, these attributes of a constitution may be unjustifiably or unnecessarily overemphasized. For example, an overemphasis on stability during a time when the constitution should be adapting to social change can cause it to fall behind. This can include legitimate amendments or laws that fail to meet the overly stringent requirements of the amendment process or are declared unconstitutional by the constitutional court. However, changeability can become problematic as well when it is unfairly exercised. This can occur when a constitution is misinterpreted or improperly amended.
This article examines these cases and proposes the dualization of the constitutional amendment process, eternal clauses, and the introduction of constitutional review on constitutional amendments as remedies for the problems. Although these measures are not perfect solutions, they will help preserve the rational core of constitutional stability and changeability while curbing the unwarranted exercise of each attribute.
Although there has been considerable debate about the current constitution, the issue of revising the constitutional amendment process has received less attention. However, to improve our constitution in the future, it is essential to pay attention to the amendment process. Revising the process for amending the constitution is a crucial task in constitutional revision.
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Ożóg, Michał. "Legal Protection of Life in the Constitutions of the Republic of Poland of March 17, 1921 and April 2, 1997." Miscellanea Historico-Iuridica 21, no. 2 (2022): 153–76. http://dx.doi.org/10.15290/mhi.2022.21.02.07.
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The issue of legal protection of life from Article 38 of the 1997 Constitution is one of the most important dilemmas of modern Polish law. This issue was already regulated in the March Constitution. The purpose of the article is to present the normative content of the legal protection of life on the basis of both constitutions. The research objective is to determine the importance of the two constitutions in providing legal protection of life in the context of the tasks of the ordinary legislature and the importance of judicial decisions. The text confronts the assumptions of the system legislator with lower–level regulations. Particular attention has been paid to the issue of assessing the compatibility of these solutions with the constitution’s design. Consideration was given to the influence of international organizations on the content and implementation of the protection of life in the Polish legal order. The study includes an analysis of the literature on the subject. The dogmatic and historical-legal method was used. The deliberations take into account the weaknesses and strengths of entrusting the judiciary with the constitutional task of defining the normative content of the protection of life. Contemporary public disputes in this matter should prompt greater efforts in clarifying constitutional solutions. It is worth bearing in mind the experience of the 1921 Constitution.
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Popadyuk, O. A. "17 amendments of the Pakistani constitution." MGIMO Review of International Relations, no. 6(9) (December 28, 2009): 175–79. http://dx.doi.org/10.24833/2071-8160-2009-6-9-175-179.
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Since its foundation Pakistan has passed a unique path of constitutional and legal development. Through this period 3 Constitutions were adopted, the latest, proclaimed in 1973, is still in force. It was amended for several times. These amendments changed the sense of Constitution drastically. The article analyzes 17 amendments of Pakistani constitution, legal consequences of their adoption, and patterns of constitutional and legal developments in Pakistan.
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Stefanovski, Mirjana. "Radivoje Milojkovic’s 1867 constitution draft." Zbornik Matice srpske za drustvene nauke, no. 138 (2012): 1–16. http://dx.doi.org/10.2298/zmsdn1238001s.
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As an authoritative work of an excellently educated writer well acquainted with constitutional theory and foreign constitutional solutions, Milojkovic?s draft constitution is also a product of a serious political reasoning. That draft deserves a particular and very important role in the nineteenth century constitutional history of Serbia. It is an evidence of the character of constitutional transformation prepared during the last years of Prince Mihailo?s reign. Taken for the specimen during the enacting of Regent Constitution of 1869, which followed it in its basic concept, composition of constitutional solutions and framing of more important institutions, that draft determined adoption of the model of constitutional monarchy in Serbia. By catching sight of the Saxony?s Constitution of 1831, it transfers basic German constitutional model, supplemented by taking into consideration other European constitutions. Its distinction is an attempt to adapt foreign model mostly to particular circumstances of the country and to implement harmoniously new institutions in accordance to the Serbian constitutional tradition.
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Price, Peter. "Provincializing Constitutions: History, Narrative, and the Disappearance of Canada’s Provincial Constitutions." Perspectives on Federalism 9, no. 3 (December 1, 2017): E—31—E—56. http://dx.doi.org/10.1515/pof-2017-0019.
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Abstract Constitutional scholarship in Canada since Confederation has been characterized by two primary narratives. The dualist narrative, which characterized constitutional scholarship between the late-nineteenth and mid-twentieth centuries, focussed on the parallel developments of provincial and federal constitutions. The monist narrative, which has become the dominant model of interpretation since the mid-twentieth century, focusses on the federal constitution as a singular foundation of constitutionalism in Canada. As a result of the shift from dualism to monism, provincial constitutions have become largely ignored in Canada and subsumed by the “mega-constitutional” politics of the federal constitution. This paper examines provincial constitutions to highlight the significant reorientation of constitutional scholarship in Canada over the past 150 years, which has become primarily focussed on post-Confederation constitutional history and written constitutionalism.
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Tarr, G. Alan. "Civil Liberties Under State Constitutions." Political Science Teacher 1, no. 4 (1988): 8–9. http://dx.doi.org/10.1017/s0896082800000362.
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Ask most political scientists about constitutional law, and they will tell you about the Federal Constitution and its interpretation by the U.S. Supreme Court. Examine a text on American constitutional law, and you will likely find the same tendency to equate constitutional law with the U.S. Constitution. Even the recent campaign for constitutional literacy during the Bicentennial of the Constitution altogether ignored the most obvious gap in Americans' constitutional knowledge—namely, the virtually total ignorance about state constitutions.This inattention to state constitutions and state constitutionalism is unfortunate, because state constitutions are assuming an increasing importance in American politics. They have served as the incubators for institutional innovations that are now receiving national attention. President Reagan's proposals for a balanced budget amendment and for an item veto both had their origins in state charters. Moreover, because most state constitutions can be amended relatively easily, they have provided an alternative avenue by which groups that are blocked in the legislative process can pursue political change. California's Proposition 13 is a case in point. Finally, state constitutions have furnished the basis for probably the most significant development in civil liberties law over the past two decades, namely, the rediscovery of state bills of rights as independent protections for civil liberties.
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Gautam, Dilli Raj. "An Assessment on the Constitution of Nepal 2015." Journal of Political Science 20 (October 4, 2020): 46–60. http://dx.doi.org/10.3126/jps.v20i0.31794.
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This paper aims to critically examine the major features, strengths and weaknesses of the present constitution of Nepal (2015) applying the fundamental instruments of constitutionalism as a measuring rod. The Constitutional discourse of Nepal moved through seven Constitutions so far. It can be better linked to a laboratory of constitutional experiments of the constitutions of 1948, 1951, 1959, 1962, 1990, 2007, and 2015. The present constitution of Nepal (2015) was promulgated with the motive of political and social transformation strengthening democracy, human rights, ensuring equality, liberties and social justice to the people. In order to explore the features, strengths and weaknesses of the constitutions available texts and other materials on the constitution were collected first and then the content analysis method was followed to explore the major features, strengths and weaknesses of the constitution. Based on the analysis, dynamism and flexibility, comprehensive catalogue of fundamental rights and inclusiveness and proportional representation were found as the major features. Incorporation of adequate economic, social and cultural rights including group rights empowerment of women and minorities inclusiveness and proportional representation are the major attributes of the present constitution. In spite of popular acceptance of the people's verdict and wider inclusion of progressive arrangement the constitution still conceives some weaknesses on vague and clumsiness of preamble, disparity on citizenship issues and constituency delineations, enlistment of ambitious and unenforceable rights and composition of politically shadowed judiciary.
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Moehler, Devra C. "Participation and support for the constitution in Uganda." Journal of Modern African Studies 44, no. 2 (June 2006): 275–308. http://dx.doi.org/10.1017/s0022278x06001637.
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A major challenge for transitioning states is to create a constituency of citizens to support and defend the new constitution. Participatory constitution-making is one of the most often recommended methods for enhancing constitutional legitimacy. This research tests the claim that public participation in the Ugandan constitution-making process built support for the 1995 constitution. Contrary to expectations, multivariate analysis of survey data demonstrates that citizens who were active in the process were no more supportive of the constitution than those who stayed at home. In-depth interviews reveal that local political leaders, not participation, caused citizens to view the constitution as legitimate or illegitimate. Constitutions are difficult for citizens to evaluate, so they rely on political elites for information and opinions. To predict whether participation will strengthen or weaken constitutional support, we must examine the messages that elites communicate to citizens about their participation, the process, and the resulting constitution.
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Reyntjens, Filip. "Recent Developments in the Public Law of Francophone African States." Journal of African Law 30, no. 2 (1986): 75–90. http://dx.doi.org/10.1017/s0021855300006501.
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The origin of the initial African constitutions is easy to establish. While the former British territories “received” their Westminster-type constitutions negotiated during the Lancaster House conferences, the former French territories, except Guinea, became independent under constitutions drawing heavily upon the constitution of the Fifth French Republic, of which they were virtual copies. Among the countries formerly under Belgian rule, the Congo (Zaïre) was the only one attaining independence with a constitution, theLoi fondamentaleof 1960 which was an Act of the Belgian Parliament.Therefore, initially the degree of homogeneity was fairly large; there were basically three types of constitutions and the deviation from these models was limited. Admittedly subject to adaptations all the Westminster constitutions were similar, and in fact to some extent they still are; thus in its essential features the 1980 constitution of Zimbabwe draws from the same stock as its predecessors of the early 1960s. The first constitutions of the former French territories were, likewise, very similar, inspired as they were by the French constitution of 1958. TheLoi fondamentaleof the Congo was strongly influenced by the Belgian constitution, and so was the autochthonous constitution of Burundi which was promulgated a few months after independence in 1962.Many constitutions have since succeeded these initial texts: between 1960 and 1985 there have been 43 constitutions in the 18 French-speaking countries under consideration, i.e. an average of 2·4 constitutions per country. This flow has led to a considerable diversification of constitutional types.
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Sampe, John, Rosa Ristawati, and Be Hakyou. "The Guardian of Constitution: A Comparative Perspective of Indonesia and Cambodia." Hasanuddin Law Review 9, no. 2 (September 11, 2023): 211. http://dx.doi.org/10.20956/halrev.v9i2.4627.
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A democratic state may be indicated by the existence of a constitutional institution that has the competence to uphold constitutionalism and defend the constitution. As the guardian of the constitution, the Constitutional Council of the Kingdom of Cambodia (Constitutional Council) and the Constitutional Court of the Republic of Indonesia (Constitutional Court) have the same purpose, namely to uphold constitutionalism and protect the constitution. However, in terms of structure, procedures, and competencies, the Constitutional Council and the Constitutional Court have individual mechanisms. Institutionally, the two judicial bodies occupy different characteristics, but they share the common goal of safeguarding the constitution’s core values. This paper aims to analyze and scrutinize different features of the Constitutional Council and the Constitutional Court by showing the same purpose as the guardian of the constitution. Within this paper, the legal outcomes which is decisions are discussed, particularly the effect of the decisions. In addition, this paper looks into who can be the applicant or can file a complaint and clarifies the qualifications and resignations of judges. This paper concludes on whether the Constitutional Court and the Constitutional Council have different paths in upholding constitutionalism and protecting the constitution.
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Pernice, Ingolf. "European v. National Constitutions." European Constitutional Law Review 1, no. 1 (October 12, 2004): 99–103. http://dx.doi.org/10.1017/s1574019605000994.
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In federal systems public authority is established by the people and exercised for the people at two levels. The treaties establishing the European Union may be conceptualised as the constitution of a supranational public authority, part of a federal system. And what the European Convention has submitted to the European Council to agree upon is an attempt to give this constitution a more coherent, more complete and more appealing form. The new ‘Constitution for Europe’ will be concluded, formally, by an international treaty. But governments and national parliaments will do this on behalf of the citizens of the Union, and insofar as national Constitutions provide for a referendum, the citizens will directly be involved. This Constitution will, therefore, like national constitutions, draw its legitimacy from the people, citizens of the polity, through their constitutional representatives. Legitimacy obtained is similar to that sought for a regular treaty but specific due to the contents and the explicit constitutional claim of the instrument.
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Yu, Wenjun, Mingyue Ma, Xuemei Chen, Jiayu Min, Lingru Li, Yanfei Zheng, Yingshuai Li, Ji Wang, and Qi Wang. "Traditional Chinese Medicine and Constitutional Medicine in China, Japan and Korea: A Comparative Study." American Journal of Chinese Medicine 45, no. 01 (January 2017): 1–12. http://dx.doi.org/10.1142/s0192415x1750001x.
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Traditional Chinese medicine (TCM), Japanese–Chinese medicine, and Korean Sasang constitutional medicine have common origins. However, the constitutional medicines of China, Japan, and Korea differ because of the influence of geographical culture, social environment, national practices, and other factors. This paper aimed to compare the constitutional medicines of China, Japan, and Korea in terms of theoretical origin, constitutional classification, constitution and pathogenesis, clinical applications and basic studies that were conducted. The constitutional theories of the three countries are all derived from the Canon of Internal Medicine or Treatise on Febrile and Miscellaneous Diseases of Ancient China. However, the three countries have different constitutional classifications and criteria. Medical sciences in the three countries focus on the clinical applications of constitutional theory. They all agree that different pathogenic laws that guide the treatment of diseases govern different constitutions; thus, patients with different constitutions are treated differently. The three countries also differ in terms of drug formulations and medication. Japanese medicine is prescribed only based on constitution. Korean medicine is based on treatment, in which drugs cannot be mixed. TCM synthesize the treatment model of constitution differentiation, disease differentiation and syndrome differentiation with the treatment thought of treating disease according to three categories of etiologic factors, which reflect the constitution as the characteristic of individual precision treatment. In conclusion, constitutional medicines of China, Japan, and Korea have the same theoretical origin, but differ in constitutional classification, clinical application of constitutional theory on the treatment of diseases, drug formulations and medication.
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Hessebon, Gedion T. "The Precarious Future of the Ethiopian Constitution." Journal of African Law 57, no. 2 (July 18, 2013): 215–33. http://dx.doi.org/10.1017/s0021855313000090.
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AbstractThe current Ethiopian Constitution suffers from a severe lack of legitimacy. It lacks legitimacy as a result of a constitution-making process that was not inclusive, as well as the subsequent serious lack of integrity and vitality in the constitutional system. Therefore, if the ruling party, which is also the “author” of the constitution, were to lose its hegemonic position, which is predicated on its control of the security and military apparatus, there is a strong likelihood that there would be calls from significant political forces for a new constitution to be adopted. Such calls should not be heeded. Instead of adopting a new constitution, the current constitution's lack of legitimacy should be remedied by comprehensive constitutional reforms that would still maintain the basic architecture and cornerstones of the current constitution.
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Kazankov, Sergey P. "Constitutional amendments and revision of the Constitution of the Russian Federation: features of the 2020 procedure." Vestnik Yaroslavskogo gosudarstvennogo universiteta im. P. G. Demidova. Seriya gumanitarnye nauki 15, no. 2 (June 11, 2021): 232. http://dx.doi.org/10.18255/1996-5648-2021-2-232-241.
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The article discusses the issue of the procedure for changing the Constitution of the Russian Federation. Examples of norms of foreign constitutions are given, which constitutionalists recognize as rigid constitutions in the order of their amendment. The ways of changing the Constitution of the Russian Federation are considered: revision, adoption of amendments, amendment of Art. 65Identified problems such as the form of the amendment to the Constitution, the moment of entry into force of the amendment, the introduction by the Law of the Russian Federation on the amendment to the Constitution of the Russian Federation of 2020 a nationwide vote as an additional condition for the entry into force of the amendment, as well as additional powers of the Constitutional Court of the Russian Federation to verify compliance with Chapters 1, 2 and 9 of the Constitution of the Russian Federation of the provisions of the Law of the Russian Federation on the amendment to the Constitution of the Russian Federation that have not entered into force, as well as the procedure for the entry into force of Art. 1 of the Amendment Act. The critical notes are offered. In particular, the author comes to the conclusion that the approval of the constitutional amendment by the parliaments of the constituent entities of the Russian Federation is not a moment, but a condition for its entry into force, therefore, the law on the amendment cannot introduce additional conditions for the entry into force of constitutional amendments, since this leads to a violation requirements of Art. 136 of the Constitution, which cannot be amended by the federal parliament in the manner prescribed by chapter 9 of the Constitution.
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Graber, Mark A. "Why Interpret? Political Justification and American Constitutionalism." Review of Politics 56, no. 3 (1994): 415–40. http://dx.doi.org/10.1017/s0034670500018908.
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This article offers a new understanding of political justification and American constitutionalism. Previous scholarship relies on philosophical justifications of constitutionalism which regard the American Constitution as the blueprint of the good society. Such claims fail to explain why persons should interpret a constitution that does not conform to their conception of political justice. Scholars could offer better reasons for interpreting an imperfect constitution if they placed greater emphasis on two other models of political justification. Institutional justifications of constitutionalism regard Constitutions as standard operating procedures for allocating the resources available for achieving the good society. Social justifications of constitutionalism regard constitutions as compromises among people of fundamentally different views. By combining philosophical, institutional and social perspectives, scholars might strengthen the case for constitutional obedience and provide better foundations for a theory of constitutional interpretation.
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Tuma, Gwendoline, and Nikolai G. Wenzel. ""People, Your Government Has Returned to You!" The Czech Constitution of 1992 as Return to Constitutional Tradition." New Perspectives on Political Economy 9, no. 1-2 (December 30, 2013): 38–52. http://dx.doi.org/10.62374/qnptwq91.
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Unlike many of its Eastern European neighbors, the Czech Republic originates from a healthy constitutional tradition. Upon the creation of Czechoslovakia and through the modern day, the Czech Republic has had four constitutions, with major amendments to the documents of the Communist era. Three constitutions, from 1920, 1948, and 1960, served as guidelines for the creation of the 1992 constitution. Because the Czech Republic had not foreseen the Velvet Divorce from Slovakia, government officials found themselves in a rush to create a constitution for the new Czech state. The new document responded to the many injustices of the Communist era and adopted most of the precedents set in the 1920 constitution. The Czech Republic’s democratic and constitutional past sets it apart from other Eastern European countries, especially in terms of contemporary political and economic liberty.
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Saunders, Cheryl. "Constitution transformation." Global Constitutionalism 10, no. 2 (July 2021): 237–55. http://dx.doi.org/10.1017/s2045381720000246.
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AbstractThis article explores the extent to which (if at all) the concept of a constitution is undergoing change in the conditions of globalization that characterize the early decades of the twenty-first century, to an extent that might be described as transformation. The question is prompted both by familiar manifestations of the interdependence of domestic constitutional and international law and practice, and by the interpretation placed on them by some of the literature on global constitutionalism. Some – although by no means all – of the literature and the experience on which it draws relate to the extent of transnational influence on the way in which constitutions now are made or changed: constitution transformation in the narrow, or more particular, sense. The article seeks to answer this question with reference to global constitutional experience, including – critically – experience in Asia, as one of the largest and most diverse regions of the world, too often omitted from studies of this kind. To this end, the article considers whether the concept of a constitution can be regarded as having been globally shared in any event; examines the phenomena associated with globalization that might suggest a paradigm change; and considers the arguments that mitigate against change, at least on a global scale. In exploring these factors, it necessarily considers the extent to which states in different regions of the world diverge in their experiences of the internationalization of constitutional law. The article concludes that, on balance, it is not plausible to argue that the generic concept of a constitution has changed, with global effect. It does, however, acknowledge that current conditions of globalization present a series of challenges for national constitutions. Responding to them might itself be regarded as an exercise in global constitutionalism.
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Bercovici, Gilberto. "REVOLUTION TROUGH CONSTITUTION: THE BRAZILIAN'S DIRECTIVE CONSTITUTION DEBATE." Revista de Investigações Constitucionais 1, no. 1 (April 30, 2014): 7. http://dx.doi.org/10.5380/rinc.v1i1.40249.
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The article discusses the phenomenon known as Directive Constitution and points out that several constitutions enacted in the 20th and 21st centuries in peripheral countries seek to bind the legislature to a constitutional project, thus establishing a political line of action that ensures the progressive construction – through the law – of a new social and economic reality, therefore overcoming underdevelopment.
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Graber, Mark A. "Our (Im)Perfect Constitution." Review of Politics 51, no. 1 (1989): 86–106. http://dx.doi.org/10.1017/s0034670500015874.
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This article explores an attitude which I call perfect constitutionalism. Perfect constitutionalists believe that, properly interpreted, the Constitution requires that our society conform to the best principles of human governance. This belief that the Constitution is nearly flawless not only underlies the so-called fundamental values strand of constitutional thought but also those strands of constitutional argument based on conceptions of the democratic process or the original intentions of the framers. Unfortunately, empirical and theoretical problems result when constitutional theory is reduced to political philosophy. In order to overcome these problems we need to essay a different interpretive approach, one which I call imperfect constitutionalism. Imperfect constitutionalism emphasizes the value of constitutions, even ones that might be improved in many ways.
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Jastrzębski, Robert. "Sądownictwo konstytucyjne w państwie polskim w XX wieku." Zeszyty Prawnicze Biura Analiz Sejmowych 2, no. 70 (2021): 50–81. http://dx.doi.org/10.31268/zpbas.2021.22.
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The article concerns the constitutional judiciary in the Polish state in relation to the formation of the rule of law in Europe. The author describes the history of systemic postulates regarding examining the compliance of laws with the constitution, shows the provisions of successive constitutions of the interwar period and after 1945, and indicates that the economic, social and political crisis in the late 1980s and early 90s forced changes in the system. The result was the amendment of the 1952 Constitution in 1982, the Constitutional Tribunal having been established as late as 1985. Nowadays the activities of the Constitutional Tribunal are regulated by the Constitution of 1997 and its rulings are final.
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van Caenegem, R. C. "Constitutional History: Chance or Grand Design?" European Constitutional Law Review 5, no. 3 (October 2009): 447–63. http://dx.doi.org/10.1017/s1574019609004477.
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Two interpretations of constitutional history: product of chance or of design – Written v. unwritten constitutions – Political and historical backdrop of constitutional development – Evolution of interpretation of specific constitutional texts – Chances of a global constitution
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VAN BEKHOVEN, Jeroen. "Reforming the Constitution; Reforming the Postcolonial State? Indigenous Peoples and Constitutional Reforms in Taiwan." Asian Journal of Comparative Law 14, no. 2 (November 7, 2019): 245–78. http://dx.doi.org/10.1017/asjcl.2019.28.
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AbstractWhen an authoritarian state starts democratic transition reforms, the constitution can facilitate such reforms. However, a little-studied role of the constitution during democratic transition is that it can back indigenous peoples’ demands. Constitutional reform during democratic transition enables indigenous peoples to challenge the state's ‘internal colonialism’. The democratic institutions and democratic rights established and guaranteed by the constitution open possibilities for indigenous peoples to push for constitutional reforms that promote ‘internal decolonization’. This means that indigenous peoples are empowered and that their interests are protected. For indigenous peoples, a ‘double transition’ can thus take place: from authoritarianism to democracy, and from internal colonialism to internal decolonization. A case study of the constitutional reforms in Taiwan confirms that the constitution can guarantee indigenous peoples’ participation in constitutional reform. But in Taiwan, this involvement has not led to meaningful incorporation of indigenous peoples in the constitution, and it has not fully promoted double transition. The case study highlights serious problems for indigenous peoples to realize strong constitutional reforms. This article provides a foundation for additional research on constitutional change and indigenous peoples. This is critical to advance constitutional theory and to ascertain whether and how constitutions can give indigenous peoples a voice.
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Silveira e Silva, Rafael. "Network analysis as an alternative way to interpret constitutions." PLOS ONE 16, no. 11 (November 1, 2021): e0259461. http://dx.doi.org/10.1371/journal.pone.0259461.
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This article aims to identify networks of constitutional text structured in an imperceptible way. Constitutions has the power to reveal how its devices “dialogue” with each other, forming their own communicative communities. With the help from the network analysis methodology, an interpretative model of textual mapping is proposed based on internal references between the provisions of one Constitution. We use the Brazilian Constitution, whose text is very detailed, analytical and deals with various issues. As a result, a network was identified that included 174 connections between 95 articles of the Constitution and the existence of normative communities that share codes or communicative standards. The study demonstrates the strong possibility to found structuring axis of this communities and relates to the other issues that have reached constitutional stature, showing that the complexity of some Constitutions can be observed beyond its logical sequential structure.
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Balaj, Luz. "The Procedure of Constitutional Amendment – Comparative Reviews of European Practices." International Journal of Social Science Studies 6, no. 7 (July 2, 2018): 57. http://dx.doi.org/10.11114/ijsss.v6i7.3402.
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Constitutional changes in a state with written constitution are carried out on the basis of a rule that has been set out by the constitution itself. In practice, many authors refers to articles that define the way of changing the constitution as "rules that define rules" (See for more Tracy Di Fillippo, How to Make Objections to Discovery under the Amended Rules, 25 Pretrial Prac. & Discovery 1, 2016.) Depending on the content of these rules, two sets of constitutions are generally formulated in the theory of constitutional right. The first are the flexible constitutions, which are amended in a simpler procedure, with a simple majority and in a shorter period of time. While in the second category there are the so-called rigid constitutions. Rigid are called the constitutions that have established a more extended or complicated procedure of amendment, with a qualified majority (more than just a simple majority) and a longer period of time.However, the procedure and the number of members of parliament differ. The main goal of this paper is to analyze those differencies, in oredr to find that how the procedure can affect on the constitutionality of the constittuion amendments. Is the rigid procedure a key for constitutional amendments or not? This is another question that is going to be analyzed by comparing different procedures of constitutional amendments in different countries.