Dissertations / Theses on the topic 'Constitutionalism'
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Hernando, Nieto Eduardo. "Constitutionalize the law or politicize the Constitution? Threats, risks and dangers in contemporary constitutionalism." Pontificia Universidad Católica del Perú, 2013. http://repositorio.pucp.edu.pe/index/handle/123456789/116349.
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Since the beginning of modernity, the use of rhetoric have prevailed; that is, the technique of perverting the language giving concepts different meanings presuming nothing have changed when in fact, it has occurred. The same thing happens with the concept of Constitution, it has been completelymodified its sense from the progress of individual rights moral. In this article the intention is to demonstrate the nature of this change and at the same time claim on the «old constitutionalism» validity and also the rule of law and political will beginning on a critical reading of contemporary constitutionalism and considering its tendency to constitutionalize or materialize the law, ironically risking the same values intended to defend.Desde inicios de la modernidad se ha venido imponiendo el empleo de la retórica, es decir, la técnica de pervertir el lenguaje dotando a los conceptos de distintos significados para presumir que nada ha cambiado cuando en realidad sí se ha dado el cambio. Esto mismo acontece con el concepto de Constitución, que ha modificado completamente su sentido apartir del avance de la moral de los derechos individuales. Este texto pretende mostrar la naturaleza de este cambio y reivindicar a su vez la vigencia del «viejo constitucionalismo» y el imperio de la ley y la decisión política a partir de una lectura crítica del constitucionalismo contemporáneo y su tendencia a constitucionalizar o materializar el derecho, contribuyendo paradójicamente a poner en riesgo los valores que pretende defender.
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Kyriakou, Tania. "EU constitutionalism : the great simulator?" Thesis, University of Edinburgh, 2004. http://hdl.handle.net/1842/24799.
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This thesis is a normative critique of EU constitutionalism. Its aim is not to expose the flaws of EU constitutionalism by reference to the templates of the nation state and our inherited constitutional vocabularies, but to articulate an internal, immanent critique, which brings to the fore the internal contradictions of the EU constitutional order. The argument put forward in this thesis shows that the initial solely economic focus of the Community has influenced its gradual evolution into a political entity and has kept its current political character subordinated to economic definitions. Due to the specific conditions of its historical development (the process through which the EC Treaty was constitutionalised was to a large extent judicially driven), EU constitutionalism has been marked by a substitution of jurisdiction for politicisation. Furthermore, the legal outcome of this juridification has enshrined the exigencies of the market within its deepest structures (this will be shown through an analysis of the concept of EU fundamental rights). This double substitution of the legal for the political and the economic for the legal amounts to a simulation of the political; political power is in essence no longer present except to conceal that there are no effective mechanisms for the exercise of political power in the EU. At the same time, this simulation of the political functions in a deeply ideological way, because it renders invisible the existing structures of political economy and the asymmetrical relations of domination which have been established through them.
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Reilly, Jonathan. "Human rights and global constitutionalism." Thesis, University of St Andrews, 2015. http://hdl.handle.net/10023/9474.
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This thesis examines the contributions to the global constitutional process made by the human rights machinery of the United Nations. To do this, it considers the philosophical and theoretical positions related to understanding constitutionalism either as government or as governance. This contrast is then used to help develop the idea of the constitutional process, which is followed by a translation of these ideas into the international realm. Subsequently, it examines the United Nations Human Rights Council from the perspective of a polycentric international society. This is then followed by an examination of the Office of the United Nations High Commissioner for Human Rights from a cosmopolitan perspective. Ultimately, it is concluded that, whilst the existing contributions made by these organs are seemingly negligible, the particular theoretical approach undertaken is successful in highlighting certain opportunities for reforms that have hitherto been unexamined.
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Bui, Ngoc Son. "Confucianism and constitutionalism in Vietnam." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2013. http://hdl.handle.net/10722/197124.
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Early twenty first century Vietnam has witnessed the emergence of constitutional discourse in line with some ideas and institutions of western liberal constitutionalism. This movement has unfortunately led the constitutional discourse to underestimation of the relevance of the local culture.
In Vietnam, Confucianism is an integral component of the national culture. It has a long tradition and has continued to influence on different aspects of the modern society in the nation. As constitutionalism must be ultimately underpinned by culture values and political tradition, the relations of Confucianism to the promotion of constitutionalism in Vietnam should be taken into account.
This account adopts a balanced approach to the relationship between Confucianism and constitutionalism. It supports the integrationist approach, which attempts to marry the best elements of Confucianism with the best elements of western constitutionalism to produce a distinctive form of constitutionalism suitable to the local context. However, to carry out the integrationist project, it is important to determine what can be integrated, and to do this, the integrationist approach must be combined and balanced with the indigenist and critical approaches. On the side of Confucianism, it is necessary to identify constitutionalist elements, and this requires us to, from an indigenist perspective, discover constitutionalist values in the Confucian tradition. On the side of western constitutionalism, it is necessary to, from a critical view, identify its disadvantages and advantages so as to select the most suitable elements for the integrationist project.
General speaking, this study defends the thesis of the positive relationship of Confucianism to constitutionalism with particular reference to the case of Vietnam. The study firstly systematically discovers classical philosophical foundations of Confucian constitutionalism. It then examines the practice of Confucian constitutionalism in imperial Vietnam. Subsequently, it demonstrates the antecedent projects of integration of Confucianism with Western constitutionalism in the modern history of Vietnam. Finally, the study contemplates the possibility of further integration of Confucianism and western constitutionalism in contemporary Vietnam by proposing the Constitutional Academy as a mixed model of constitutional enforcement.
This inquiry is significant in several ways. Firstly, it contributes to our better understanding of the history and development of Confucianism, constitutionalism, and their relationship in Vietnam. Secondly, it can further enhance the scholarship of the intellectual foundations and experimentations of constitutionalism in pre-modern East Asia. Finally, the findings in this study can have implications for further reflection on the global expansion of western liberal constitutionalism in non-western contexts, and the prospects of constitutionalism in an East Asian Confucian context.published_or_final_version
Law
Doctoral
Doctor of Philosophy
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García, Figueroa Alfonso. "Neo-Constitutionalism and Legal Reasoning." Pontificia Universidad Católica del Perú, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/115635.
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This paper aims to explore the functions of the theory of legal argumentation (TLA) on Constitutional States and will especially focus on the political and self-reflective functions of the TLA within the framework of a neo-constitutionalistic legal theory. The first part of the paper includes a definition of the TAL and an analysis of its main functions. At the end of the paper the author provides the bases for the development of a neoconstitutionalistic legal theory.Este trabajo pretende explorar las funciones de la teoría de la argumentación jurídica (TAJ) en los Estados constitucionales y se concentrará en subrayar las funciones políticas y autorreflexivas de la TAJ en el marco de una teoría del Derecho neoconstitucionalista. La primera parte incluye una definición de la TAJ y un examen de sus funciones generales. En la parte final, el autor ofrece un programa para el desarrollo de una teoría neoconstitucionalista.
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Round, Thomas. "Representation-Reinforcement and Australian Constitutionalism." Thesis, Griffith University, 2002. http://hdl.handle.net/10072/367951.
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Constitutional theory in Australia, as in the USA and other liberal democracies, is contested by rival views of the proper roles of courts and legislatures. Simple adherence to the literal text of the Constitution or the original intentions of its framers is inadequate to protect against unjust actions by legislative and executive officials (the raison d'étre of an entrenched Constitution) when these appear in novel guises. But empowering judges to strike down laws they consider 'unjust' risks sacrificing democratic self-government, and the process can undercut the very goal (equal respect for all citizens) that it is supposed to ensure as an outcome. American theorists of 'representation-reinforcing' or 'process-policing' judicial review - outlined by Justice Harlan Stone in US v Carolene Products (1938), then elaborated by Professor John Hart Ely in Democracy and Distrust (1980) - offer a solution. Representation-reinforcement opposes judicial activism except on two grounds. The first is protecting majority rule, invalidating laws that entrench those in power against opposition or removal. The second is protecting minority rights, by invalidating laws motivated by prejudice that discriminate against unpopular groups. Constitutional courts should avoid dictating substantive policy outcomes, lest this undermine democracy. Instead, judges should concentrate on 'reinforcing representation' - on ensuring that political processes function properly, producing decisions that have maximum popular support.
Many US constitutional scholars have criticised Ely's theory. But even so, representation-reinforcement remains a promising doctrine for Australia to adopt. Ely's American critics disagree even more with each other than with Ely, and most of their criticisms carry weight only in the USA's rights-based, individualistic context. Australia's Benthamite culture of majoritarian constitutionalism is more receptive to representation-reinforcement. And most other criticisms of Ely can be answered by revising, instead of abandoning, the concept of process-policing judicial review.Thesis (PhD Doctorate)
Doctor of Philosophy (PhD)
School of Politics and Public Policy
Arts, Education and Law
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Comazzetto, Giovanni. "Multilevel Constitutionalism e diritti fondamentali." Doctoral thesis, Università degli studi di Padova, 2018. http://hdl.handle.net/11577/3425880.
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The aim of this thesis is to analyze, from a constitutional point of view, some features of the multilevel system of fundamental rights protection which has recently developed in the composite ‘European constitutional space’. To do this, after considering the constitutionalizing process in the EU, in light of the polysemous concept of ‘Constitution’, the debate about the European Constitution will be extensively investigated. Then the work focuses on the abundance of catalogues of rights in order to study if the multiplication of this latter might strengthen their legal protection. Finally, critical considerations about the resolution of conflicts between the national Courts and the European Court of Justice will be provided.Obiettivo di questo lavoro è analizzare, dal punto di vista del diritto costituzionale, alcuni profili del sistema di tutela multilivello dei diritti fondamentali che si è consolidato nello scenario giuridico europeo negli ultimi decenni. La ricerca muove dall’analisi di alcuni aspetti del processo di «costituzionalizzazione» dell’ordinamento dell’Unione europea alla luce dell’intensa polisemia del concetto di costituzione e del dibattito sorto negli anni Novanta in merito alla possibilità di concepire una Costituzione europea. Successivamente si procede a descrivere ed indagare la moltiplicazione delle sedi di tutela dei diritti fondamentali, concentrando l’attenzione sull’effettivo «livello di protezione» che tale struttura reticolare può garantire. L’ultima parte è infine dedicata allo studio di alcuni conflitti costituzionali che hanno visto contrapporsi negli ultimi anni, sul punto della ricostruzione delle relazioni intersistemiche ovvero sullo standard di protezione dei diritti fondamentali, la Corte di giustizia dell’Unione e le Corti costituzionali nazionali.
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Brzezinski, Mark Francis. "The development of constitutionalism in Poland." Thesis, University of Oxford, 1996. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.319059.
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Bian, Su. "Contested constitutionalism : constitutionalization in contemporary China." Thesis, University of Glasgow, 2015. http://theses.gla.ac.uk/6589/.
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This thesis was written on the constitutional changes of contemporary China, with the 1982 Constitution as the object of researches. This constitution is the currently valid constitution in China, and is expected by constitutional scholars to be put in “juridification”. However, for thirty years since its birth, this task is yet to be realized. What is more, the claim of “judicialization of the constitution” as Chinese legal constitutionalists held especially during the 1990s, is now contested by emergent constitutional schools as one of many constitutions in China. They are arguing that China’s constitutional reality should not be colonized by the Western-originated constitutional science –classical constitutionalism. Having perceived the critical merits of China’s new constitutional schools, this thesis is wary of confirming unconditionally the other end of arguments, namely, applying critical theories to condense into “constitutionalism with Chinese characteristics”. The use of “constitutionalism” to describe the Chinese model, however, should be examined against whether it has indeed resolved the material problems in China’s constitutionalization, or is merely an inflationary application of the terminology. If China’s legal constitutionalism is seen as implanting formalism of Hayekian theory in service of global capitalism, in the second-generation constitutional discourse, have we opted out of this mentality and re-constituted ourselves? Constitutionalization in contemporary China hence is a complex issue covering the grounds of institutional, political as well as conceptual controversies, more than a practical issue of applicable mechanisms. The conceptual arguments on “what is constitutional” are especially challenging to classical constitutionalism, when combined with “identity politics” and “constitutional pluralism”. Between the material and conceptual level, I am insisting that the ‘democratic deficit’ caused by China’s 1990s economic reforms and the market mentality still needs a redress, before we could render its hybrid outcomes as “constitutionalism with Chinese characteristics”.
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Barbirotto, Patricio Ignacio <1984>. "Bosnia and Herzegovina: Nationality and Constitutionalism." Master's Degree Thesis, Università Ca' Foscari Venezia, 2013. http://hdl.handle.net/10579/2581.
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Il lavoro verte sulla questione dello sviluppo dell'idea di nazionalità in Bosnia ed Erzegovina e su come questa sia stata trattata (o non trattata) in sede costituzionale, creando i presupposti per la guerra di Bosnia e per la successiva di fatto ingovernabilità dello stato sorto dalla guerra stessa.
Partendo dai primi stati medievali, il lavoro esamina la storia della regione concentrandosi sul XIX e il XX secolo quando il concetto moderno di nazione ed il nazionalismo si sono sviluppati ed affermati.
Nello specifico, si osserva come le carte costituzionali alla base dell'organizzazione dello stato abbiano favorito la divisione dei bosniaci in tre nazionalità, due delle quali sono legate a stati esteri (nella fattispecie Croazia e Serbia) con i soli bosgnacchi (evoluzione della comunità bosniaca di religione musulmana)legati unicamente al suolo bosniaco-erzegovese o comunque a nessuna entità statale esterna.
In conclusione si evidenzia come la ripartizione del paese in tre nazionalità, riconosciute dall'attuale carta costituzionale come le tre nazioni costituenti, abbia reso lo stato di fatto ingovernabile dal 1995 ad oggi.
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Dyer, Cruzado Edward, Raúl Feijóo, and Ximena del Rosario Gamero. "Interview with Luigi Ferrajoli: Considerations on Constitutionalism." IUS ET VERITAS, 2014. http://repositorio.pucp.edu.pe/index/handle/123456789/122922.
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In this inter view, Ferrajoli explains the positivization of constitutionalism and its relationship to the concept of morality and the role of contemporary democracies. He also discusses the issue of freedom of information relating to property rights, to economic initiative and freedom of expression. Finally, the author refers to the insufficiency of the proportionality test as a tool to resolve conflicts between fundamental rights with constitutional recognition.En la presente entrevista, el autor explica la positivización del constitucionalismo y su relación con el concepto de moral y el rol de las democracias contemporáneas. Asimismo, discute la problemática de la libertad de información en relación a los derechos de propiedad, a la iniciativa económica y a la libertad de expresión. Finalmente, el autor se refiere a la insuficiencia de la ponderación como herramienta para resolver conflictos entre derechos fundamentales con reconocimiento constitucional.
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Häberle, Peter. "Keywords for nowadays constitutionalism - a German perspective." THĒMIS-Revista de Derecho, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/108042.
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After what happened in 1989, the doctrine states that we are now in the “World Time of the Constitutional State”. But what are the implicationsof this? How has this impacted on the dispute of the German doctrine about the right comprehensionof the nature of the Constitution? Which shouldbe the labor of a Public Law and International Law professor in this context?In the present article, the author comments the indicated phenomenon, and, in order to do this, he uses figures such as the Cooperative Constitutional State, or the living constitutions. Constitutions, he states, aren’t just a product of constitutionalism, but many other factor must be taken into account.Tras lo sucedido el año 1989, la doctrina señala que nos encontramos en “la Hora Mundial del Estado Constitucional”. Pero ¿cuáles son las implicanciasde ello? ¿Cómo ha impactado ello en la disputa dela doctrina alemana por la correcta comprensiónde la naturaleza de la Constitución? ¿Cuál debe serla labor del profesor de Derecho Público y Derecho Internacional en este contexto?En el presente texto, el autor comenta el fenómeno señalado y, para ello, recurre a figuras como la del Estado Constitucional Cooperativo, o la de las constituciones vivas. Las constituciones, afirma, no son solo producto del constitucionalismo, sino que múltiples otros factores deben ser tomados en cuenta.
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Nkhata, Mwiza Jo. "Rethinking governance and constitutionalism in Africa : the relevance and viability of social trust-based governance and constitutionalism in Malawi." Thesis, University of Pretoria, 2010. http://hdl.handle.net/2263/25693.
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The failures of constitutionalism and good governance in Africa are well documented. Importantly, these failures have also highlighted the importance of constitutionalism and good governance in Africa. This study centrally explores the relevance and viability of social trust-based governance and constitutionalism in Malawi, specifically, and Africa, generally. Social trust-based governance and constitutionalism is an approach to governance and constitutionalism that is informed by the trust concept and is also fully mindful of local conditionalities in its operationalisation. By referring to the Constitution of Malawi and other pieces of legislation in Malawi, this study demonstrates that there is a legal basis for articulating and practising social trust-based governance and constitutionalism in Malawi. This legal basis stems primarily from sections 12 and 13 of the Constitution but is also supported by legislation like the Corrupt Practices Act, Public Finance Management Act, Public Procurement Act and the Public Audit Act. In spite of the fact that there is a basis for social trust-based governance and constitutionalism in Malawi it is evident that governance and constitutionalism in Malawi have not, so far, been practised in line with the stipulations of the social trust-based approach. The current approach to governance and constitutionalism in Malawi is heavily steeped in the liberal democratic tradition. In this connection, this study demonstrates the limitations of the liberal democratic approach to governance and constitutionalism in Malawi principal among which is the lack of autochthony. Since the apparatus of liberal democracy has subsequently become quite entrenched in Malawi and most African countries, it is argued that the way forward involves creating a synthesis out of liberal democracy and the norms, traditions and values indigenous to Africa. This study identifies the philosophy of ubuntu as being an important source of values and principles that can be utilised to confer some autochthony to governance and constitutionalism in Malawi, specifically and Africa, generally. The approach adopted in this study concedes that neither a rigid insistence on liberal democratic constitutionalism nor a strict adherence to ubuntu-based governance and constitutionalism can succeed in Malawi. The solution is to utilise values from both traditions in order to generate a viable approach to governance and constitutionalism. In this study, the viability and relevance of social trust-based governance and constitutionalism is demonstrated by reference to the relationship between the branches of government, public resource management and the accountability of public functionaries and citizenry empowerment in Malawi. This study argues that a social trust-based approach to governance and constitutionalism can improve the relations between the branches of government, reinvigorate public resource management and also enhance accountability of public functionaries and empower the populace in line with the Constitution’s vision. The Constitution, as the supreme law of the land, thus remains integral to governance and constitutionalism in Malawi.Thesis (LLD)--University of Pretoria, 2010.
Centre for Human Rights
unrestricted
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González, Ricoy Iñigo. "Constitutionalism, the Workplace, and the Scope of Democracy." Doctoral thesis, Universitat de Barcelona, 2012. http://hdl.handle.net/10803/80537.
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The dissertation analyzes the scope and limits of democracy both historically and normatively. It has two main goals. First, it historically explains how a number of institutional devices that had been traditionally seen as limits on the scope of democracy turned out to be seen not only as consistent with democracy but actually as necessary for any good-working democratic system. Second, it normatively analyzes two outstanding cases in which the scope of democracy is heavily limited—constitutional constraints on legislatures and decision-making within the firm, a domain that is usually taken to be beyond the scope of democracy.
Part I historically analyzes a two-fold shift in the concept of democracy in the Early American Republic. First, the increasing acceptance of the idea of democracy— along with the institutional devices traditionally attached to it—due to the acceptance of disagreement as a legitimate feature of the American society and the subsequent crisis of the theory of virtual representation, according to which the society is an organic entity with a shared set of interests that ought to be insulated from democratic struggle and partisanship. Second, the shift in the very concept of democracy, by which many of the institutional devices that had been traditionally seen as constraints on democracy turned out to be seen not only as consistent with democracy but also as necessary for any good-working democratic system. In a nutshell, democracy gained acceptability as long as the scope of democratic decision-making was downsized.
The remainder of the dissertation normatively analyzes two outstanding cases in which the scope of democracy is clearly constrained—namely, constitutionalism and decision-making within firms. Part II addresses several normative theories of constitutionalism—and, notably, of constitutional rigidity and judicial review—and shows that they all fail to justify constitutional constraints from a democratic standpoint. Three prominent types of theories are analyzed— pure instrumentalist, precommitment-based, and proceduralist. Even though a number of problems are identified, a common and central problem is that they all fail to address adequately the fact of disagreement and thus fall into new forms of organicism.
Finally, Part III analyzes another sphere that is usually taken to be beyond the scope of democracy—namely, the workplace. It addresses the core arguments for and against extending democratic decision-making to the workplace and develops a novel, republican case for workplace democracy based on incomplete (labour) contract theory. Finally, bargaining power asymmetries and moral hazard problems arising from the formal separation of ownership and control rights in democratic firms are analyzed.La tesis analiza el alcance y los límites de la democracia de forma histórica y normativa. Tiene dos objetivos principales. Primero, explicar históricamente cómo una serie de instituciones que habían sido tradicionalmente consideradas como límites a la democracia fueron incorporadas al concepto de democracia, hasta el punto de ser consideradas necesarias para su correcto funcionamiento. Segundo, analizar dos casos especialmente relevantes en los que el alcance de la democracia está fuertemente limitado: el constitucionalismo y la toma de decisiones en las empresas. La Primera Parte analiza históricamente el concepto de democracia, y su alcance, en los Estados Unidos de América en el periodo revolucionario y postrevolucionario. Se halla un doble desplazamiento. Primero, un incremento en la aceptación de la idea de democracia debido a la aceptación del desacuerdo político como un fenómeno legítimo y la consiguiente crisis de la teoría de la representación virtual, según la cual la sociedad es una entidad orgánica con un conjunto de intereses compartidos que deben ser aislados de la política democrática y el partidismo. Segundo, un desplazamiento del concepto de democracia, según el cual muchos de los mecanismos institucionales que habían sido tradicionalmente vistos como límites al alcance de la democracia pasaron a ser considerados no sólo consistentes con la democracia sino de hecho necesarios para su correcto funcionamiento. En resumen, la democracia ganó aceptación en la medida en que su alcance quedó reducido. El resto de la tesis analiza normativamente los límites al alcance de la democracia en relación a dos casos especialmente relevantes: el constitucionalismo y la toma de decisiones en la empresa. La Segunda Parte analiza las principales teorías normativas del constitucionalismo —y, concretamente, de la rigidez constitucional y la revisión judicial de las leyes— y muestra que todas ellas resultan insuficientes para justificar los límites constitucionales desde un punto de vista democrático. Se analizan tres tipos de teorías: instrumentalistas, basadas en precompromisos y procedimentales. Aunque se identifica toda una serie de problemas, es común a todas ellas su incapacidad para acomodar adecuadamente el desacuerdo político en materia constitucional, incurriendo así en diversas formas de organicismo. Finalmente, la Tercera Parte analiza la toma de decisiones en las empresas, un ámbito que es generalmente considerado ajeno al alcance de la democracia. Se analizan los principales modelos de democracia en la empresa —cooperativismo y codeterminación—, así como los principales argumentos a favor y en contra de la extensión de la toma de decisiones democrática a las empresas. Por último, se presenta un argumento original, de raíz republicana y apoyado en la teoría de los contratos (laborales) incompletos, a favor de la democracia en las empresas. Así mismo, se analizan las asimetrías negociadoras y los problemas de riesgo moral derivados de la separación formal entre control y propiedad en las empresas democráticas.
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Popovski, Vesselin. "International constitutionalism : responses to threats to the peace." Thesis, King's College London (University of London), 2002. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.418252.
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Bagu, Kajit J. "Cognitive justice, plurinational constitutionalism and post-colonial peacebuilding." Thesis, University of Edinburgh, 2014. http://hdl.handle.net/1842/15817.
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Several problems disquieting the developing world render the post-colonial state unstable, with recurrent, often violent conflict. The seeming incurable vulnerability of the nation-state construct reflects inherent problems in its basic constitutional philosophy for managing diverse identities in the global South. It suggests an incapacity for equality and justice, undermining the moral legitimacy of the colonial-state model. This is illustrated using Central Nigeria or Nigeria’s ‘Middle- Belt’ through numerous identities, largely veiled in non-recognition and misrecognition by the colonial and post-colonial state and its conflicts. The baggage of colonialism stalks the developing world through unjust socio-political orders. Therefore, the post-colonial liberal constitution (using Nigeria’s 1999 Federal Constitution) and mechanisms it imbibes for managing diversity (Consociationalism, Federalism/Federal Character, Human Rights, Citizenship), is exposed to be seriously misconceived epistemically and cartographically. I argue that effective peacebuilding in the global South is impossible without Cognitive Justice, which is 'the equal treatment of different forms of knowledge and knowers, of identities’. I articulate a political constitutional philosophy grounded upon Cognitive Justice as a conception of justice, advancing normative and conceptual frameworks for just post-colonial orders. This provides foundations for a proposed reconceptualisation and restructuring of the institutional and structural make-up of the post-colonial state through a ground-up constitution remaking process, for new orders beyond colonially stipulated delimitations. In search of appropriate constitutional designs, I engage Multiculturalism, National Pluralism and Plurinational State scholarship by Western Political Philosophers and Constitutional Theorists (Kymlicka, Taylor, Tully, Keating, Tierney, Norman, Anderson, and Requejo etc), as they address particularly the UK, Canadian and Spanish cases, as well as Awolowo’s philosophies. I also engage recent plurinational constitutional designs operational in Ecuador and Bolivia, and propose that the latter hold more appropriate conceptual and structural pointers for effective peacebuilding in the troubled, pluralist global South.
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Hakansson, Nieto Carlos Guillermo. "The characteristics and perspectives of Ibero-American Constitutionalism." Derecho & Sociedad, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/119071.
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The Ibero-American constitutions over the years have had multiple purposes from a formalistic conception to a materialistic conception. In these circumstances, it is vital to determine the new conception of these constitutions, due to the subsequent influence that could lead to the constitutions of countries of civil law tradition, such as Latin America.Las Constituciones Iberoamericanas a lo largo de los años han tenido múltiples finalidades, desde una concepción formalista hasta una concepción materialista. En estas circunstancias, es de vital importancia determinar la nueva concepción de estas constituciones, debido a la influencia posterior que podría generar a las constituciones de países de tradición civil law, como el latinoamericano.
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Nguyen, Thi Hong. "Changing Constitutionalism in Vietnam: Examining the Factors that Support or Hinder the Transition of the Vietnamese Constitution to liberal Democratic Constitutionalism." Thesis, Griffith University, 2017. http://hdl.handle.net/10072/370645.
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This thesis examines in detail the three major Vietnamese constitutional reforms of 1992, 2001, and 2013. In doing so, it examines the core purposes of constitutional changes related to the political legitimacy of the Party-State and investigates the factors that support or hinder the transition of the Vietnamese socialist constitution to liberal democratic constitutionalism. It does so by looking at Vietnamese history, culture, the circumstances of the emergence of each constitutional reform in the larger context of the crisis of the political legitimacy of the Party-State, the changes in the Vietnamese Communist Party’s policies, the procedure of drafting each constitution, and the aims and the substance of these changes. This study contributes to the ongoing discussion on constitutional transition in socialist regimes in two important ways. First, is represents the first comprehensive examination of all the major Vietnamese constitutional reforms. Second, it draws on not only international academic scholarship but importantly original Vietnamese sources, ranging from secondary literature of Vietnamese scholars, to original Party and State documents, particularly National Assembly deputies’ speeches, and Vietnamese media and blogs. The finding of the thesis is that there were three major factors that had a significant influence in the Vietnamese constitutional reforms of 1992, 2001 and 2013, namely, the Vietnamese Communist Party; state agencies and officials; and political and legal culture, such as village culture, Confucianism, colonialism, and socialism. The Party, state agencies and officials were the main factors that hindered these constitutional reforms, mainly because the Party-State introduced these reforms as a part of the ongoing negotiation with the people to retain the Party hegemony.Thesis (PhD Doctorate)
Doctor of Philosophy (PhD)
School of Govt & Int Relations
Griffith Business School
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Sabaruddin, Johan Shamsuddin. "Constitutionalism and state government in the Ferderation of Malaysia." Thesis, SOAS, University of London, 2008. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.498220.
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Xu, Yan, and 許炎. "Taxation and constitutionalism in the People's Republic of China." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2008. http://hub.hku.hk/bib/B41758080.
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Borgmann-Prebil, Yuri. "A rights approach to European constitutionalism and European citizenship." Thesis, University of Sussex, 2006. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.439172.
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Cassagne, Juan Carlos. "New constitutionalism and the foundations of the legal system." THĒMIS-Revista de Derecho, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/107730.
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Inside the field of Law, the usual question about the meaning of a determined concept or the question towards what it makes reference to has alwaysbeen complicated. In the last years, different events have produced that philosophical trends reconsider the understanding of the legal system.In the present article, the author does a presentation of what new constitutionalism means and its opinion towards it. The author also makes a critical analysis of the positivist and jusnaturalist visions, connecting them with the understandingof Law and the legal system, making an emphasis on Administrative Law.En el campo del Derecho, la pregunta sobre qué significa o a qué hace referencia determinado concepto siempre ha sido complicada. En los últimos años diversos acontecimientos han ocasionado que corrientes filosóficas replanteen la forma de entender el orden jurídico.En el presente artículo, el autor hace una presentación de qué se entiende por nuevo constitucionalismo y su opinión sobre el mismo. Asimismo, realiza un análisis crítico de los planteamientos positivistas e iusnaturalistas, conectando los mismos con el entendimiento del Derecho y del orden jurídico, poniendo énfasis en la rama del Derecho Administrativo.
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Rafferty, Daniel John. "Constitutionalism in international law : the limits of Jus Cogens." Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/27395.
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This dissertation explores the place that jus cogens occupies in contemporary international legal thought and practice. More specifically it looks at the place that the concept occupies within the discourse surrounding constitutionalism in international law. The question is asked whether it is viable to posit a specific constitutional structure for international law and whether such structure can be legitimized by the existence of certain values that are held in common by the international community. Both structural and value-based approaches posit a place for norms of jus cogens as possibly being seen as constitutional norms to some extent. Jus cogens as a now widely accepted concept in international law, continues to be the subject of much contemporary debate. The nature and function of the concept as proposed by various authors is looked at and the problematic aspects set out. Although there is a large amount of literature acknowledging the existence and importance of jus cogens, this has not been supported by international judicial practice. It seems that it is the practical difficulties surrounding the functioning of normative hierarchy that is the main reason for this. Chapter 1 introduces the approaches to the constitutionalism debate that have posited a legitimate place for norms of jus cogens. It also provides an introduction to the concept of jus cogens within contemporary international law. Chapter 2 starts out by defining certain concepts involved in the discourse surrounding constitutionalism. The strands of thought involved in the constitutionalism debate are then set out in order to provide the context for the placements of jus cogens posited by various authors. Chapter 3 looks at the evolution of the concept of jus cogens and the limited practical effect that has been given to the concept in international judicial practice. The main consideration here is the perceived inapplicability of jus cogens within cases concerning jurisdictional immunity. It therefore seems that jus cogens is, in general, limited to application against rules directly contradicting the substance of the jus cogens norm. Chapter 4 provides a critique of normative hierarchy theory, which is a main aspect dealt with in much constitutionalist thought. The chapter shows how the proposed functionality of normative hierarchy theory is unconvincing as only negative prohibitions can function as jus cogens under this construction. This further limits the instances where jus cogens can be seen as effective under constitutional thought. Chapter 5 concludes that under a strict conception of normative hierarchy, jus cogens is unlikely to receive much practical legal effect. This is due to the inapplicability of jus cogens in procedural matters and the limited number of norms that can function as jus cogens under normative hierarchy.Dissertation (LLM)--University of Pretoria, 2012.
Public Law
unrestricted
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Frerichs, Sabine. "The Rule of the Market: Economic Constitutionalism Understood Sociologically." Cambridge University Press, 2017. http://epub.wu.ac.at/5711/1/Frerichs_2017_Rule%2Dof%2Dthe%2Dmarket_submitted%2Dversion.pdf.
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Setting out from the works of Max Weber and Karl Polanyi, this chapter outlines a sociology of economic constitutionalism. The starting point is a functional definition of economic constitution as the law constituting the market order, no matter if it is public or private, national or international, official or informal law. Economic constitutionalism is understood as a system of thought, which emphasises the role of a liberal economic constitution in integrating the global economy. Adapting Weber's ideal-typical method, the economic constitution is conceived as a constitutional ideal type, next to juridical constitution, political constitution, social constitution, and security constitution. Sociologically speaking, these ideal types capture different constitutional rationalities, which are all culturally significant but not equally successful in the global age. Drawing on Polanyi's work, which exposes the self-regulating market as an artefact of economic thinking, the argument proceeds by highlighting the constitutive role of economics in constructing the law of the globalised market society. After economic law came to be embedded in national welfare states in the twentieth century, economic constitutionalism furthers the opening up of national laws and economies. In contrast to the rule of law, the rule of the market is inherently transnational in character.
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Xu, Yan. "Taxation and constitutionalism in the People's Republic of China." Click to view the E-thesis via HKUTO, 2008. http://sunzi.lib.hku.hk/hkuto/record/B41758080.
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Guruswamy, Menaka. "Designing enduring constitutionalism : constitution-making in India, Pakistan and Nepal." Thesis, University of Oxford, 2014. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.669800.
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Kleidosty, Jeremy Scott. "A comparative assessment of constitutionalism in Western and Islamic thought." Thesis, University of St Andrews, 2013. http://hdl.handle.net/10023/3621.
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In the spirit of comparative political theory, this thesis analyzes the ideas that have shaped Western and Islamic constitutional discourse and assesses the extent to which they intersect at key historical and philosophical points. This goal is placed within a larger debate of whether Islam and constitutionalism are mutually exclusive. The thesis begins by positioning itself against Samuel Huntington and Elie Kedourie, who argues that Islam is inherently incompatible with constitutional governance. It then addresses the idea of constitutionalism as described by Western thinkers on three constitutional concepts: the rule of law, reflection of national character, and placing boundaries on government power. These are examined through the lens of a particular canonical text or thinker, Cicero, Montesquieu, and The Federalist Papers, respectively. This is followed by an examination of Muhammad's "The Constitution of Medina." Islamic corollaries to the constitutional ideas discussed earlier are then examined. Al-Farabi's On the Perfect State, ibn Khaldun's asabiyya (group feeling) in the Muqaddimah, and the redefinition of the state in the 19th century Ottoman Tanzimat reforms are discussed. Following this, the thesis looks at a moment in history where these two traditions intersected in 19th century Tunisia in the work of Khayr al-Din al-Tunisi, undertaking a detailed analysis of the introductory section of his book The Surest Path to Knowledge Concerning the Conditions of Countries.The abstract philosophical questions that motivated this inquiry suddenly have unquestioned practical implications. In recognition of this, the conclusion of the thesis summarizes the findings of this work to look at how theorists might address the pressing constitutional concerns of various states and peoples.
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Douglas, Stacy. "Curating community : museums, constitutionalism, and the taming of the political." Thesis, University of Kent, 2012. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.595657.
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Just as museums tell stories about political community, so too do constitutions. Indeed, both function as sites from which imaginations of political community are launched. While the practice of curating is commonly associated with the practice of assembling and organising museums' collections, in this thesis I focus on the practice of curating community. Specifically, both the museum and the constitution set the production of community as their task. In so doing, they participate in the denial of what Jean-Lue Nancy terms 'being-in-common' (Nancy 1991a). Building on existing museological theory, I argue that museums encourage compulsive identity formation by inviting visitors to identify with a prescribed set of political constituencies that they have on offer (Maleuvre 1999: Preziosi 2003). My research adds to this literature by focusing on adult interactive educational programming at three museums - the British Museum in London (UK), Constitution Hill in Johannesburg (South Africa), and the District Six Museum in Cape Town (South Africa). Moreover, while the term 'curating' is most commonly associated with museums and art galleries, it is also relevant to constitutionalism. Indeed, constitutions produce an idea of community - 'the people' - that they represent (Loughlin and Walker 2007). Like the curatorial practices of the museum, these conceptions of community rely on neat and stable categories that attempt to gloss over the messiness of the world. However, museums are also not like constitutions. Although both the museum and the constitution are charged with the task of delimiting community, the constitution, if it is to retain its juridical function, cannot escape the necessity of maintaining these boundaries. In contrast, the museum is not tied to this task. This combination of similarities and differences between the museum and the constitution make them productive sites to be brought together. In fact, it is as a result of these similarities and differences that the museum, when paired with the constitution, can serve as a crucial resource in the production of alternative imaginations of political community. I use this pairing of the museum and the constitution to articulate a theory of counter-monumental constitutionalism that is comprised of two components. The first element of a counter-monumental constitutionalism is that it does not exalt the constitution as the central tool in the production of political community. The museum plays a crucial role in this aspect because it demonstrates that the constitution is not the only place from which imaginations of political community are launched. Considering the museum as a constitution works against the inclination to fetishise the constitutional arrangement as the primary instrument in the production of political community. The second component of a counter-monumental constitutionalism is the necessary interruption of community. The museum is also key in this regard as it, unlike the constitution, has the capacity to facilitate this interruption. I develop this possibility by drawing on research from the District Six Museum. A counter-monumental constitutionalism, in its combination of the constitution with the museum, offers critical insights for the production of post-colonial and post-apartheid theories of law. As such, this thesis makes a unique and interdisciplinary contribution to the fie ld of constitutional theory, post-colonial legal theory, critical legal studies, and critical museum studies.
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Zhao, Hui. "Rethinking Constitutionalism in Late 19th and Early 20th Century China." Thesis, Harvard University, 2012. http://dissertations.umi.com/gsas.harvard:10631.
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In the tenets of Western political science, “limited government” is usually seen as the touchstone of modern constitutionalism. Yet significant issues can arise when one applies this framework to East Asia. By studying the origin of constitutionalism in China and Japan, my dissertation reexamines the idea that “limited government” is the core of modern constitutionalism. I argue that constitutionalism, as it was introduced in Meiji Japan and late Qing China, focused on strengthening the government rather than limiting it. Many might feel this affirms the popular belief in an inherent affinity for authoritarianism in the Chinese mind, but this dissertation disagrees, finding such a conclusion to be unfairly reductive, and dangerous to achieving a true cross-cultural understanding. It argues instead that Chinese constitutionalism’s desire to strengthen the state was not the manifestation of a cultural predisposition toward authoritarianism, but was instead consciously adopted and constructed in response to the chaotic realities of late 19th and early 20th century China. By studying the constitutional thought of Aristotle, Cicero, Machiavelli, Hobbes, the early English constitutionalists, Locke, Montesquieu, the American founding fathers, and others, I shine light on a dilemma that was as critical to late Qing China constitutionalism as it was to Aristotle’s ancient Greece, Machiavelli’s Renaissance Florence, and Lincoln’s splitting 19th century America: to achieve the delicate balance between a strong state and the limiting principles of a Republic. My argument calls for a reevaluation not only of Chinese constitutional thought, but also of current liberal constitutional theory, which tends to define the goal of constitutionalism simply as the limiting of governmental power. My research shows that the essential goal of constitutionalism, whether it takes place in the East or the West, in the present or the past, is not to move closer to one pole of authoritarianism or the other of limited government, but to strike an ideal balance between the two, depending on the specific context of a state’s time and place in history.East Asian Languages and Civilizations
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Tzanakopoulou, M. "In defence of constitutionalism : democracy, power and the nation state." Thesis, University College London (University of London), 2016. http://discovery.ucl.ac.uk/1476846/.
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Constitutionalism is a theory of liberal democracy based in law which restricts state power and establishes the rule of law. But seen more broadly constitutionalism underpins the field of social conflict, understood abstractly as the often unexpressed tension produced out of power asymmetries. It accommodates conflict in an effort to preserve the established state apparatus. While constitutionalism pacifies social conflict, it can also provide the spark igniting the legitimate expression of such conflict. Social struggles often unfold in the name of the constitution and are legitimately backed by it even when their demands directly challenge the established liberal legal and political paradigm. Seen in this light, constitutionalism is a democratic project carrying with it the potential for emancipation of vulnerable and oppressed parts of society through agonistic citizenship and politics of contestation. Drawing on this understanding it is appropriate to examine where social conflict is located and where citizenship, understood as collective political disagreement, is viable. Based on the theory of ‘global governance’ which recognises that power and authority are diffused globally, a line of constitutional argument holds that the constitutional project should exceed state boundaries. By contrast, this thesis insists that constitutionalism should remain focused on the nation state understood as the principal locus of social conflict. The nation state framework supports the political and ideological conditions needed for the (re-)production of the fundamental asymmetry dividing societies into opposing forces: the capitalist mode of production. Therefore the nation state is also the site where collective struggle against power asymmetries is most needed. The qualities and characteristics of the nation state are not replicable at global level. They could potentially apply at European level. However, the Union blocks collective political disagreement while it promotes a logic which hinders the development of democratic practices of dissensus and therefore of constitutionalism.
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Ally, D., and F. Viljoen. "Homicide in defence of property in an age of constitutionalism." South African Crminal Justice, 2003. http://encore.tut.ac.za/iii/cpro/DigitalItemViewPage.external?sp=1001861.
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Summary
This article examines the constitutionality of the common-law rule that one person
may kill another in defence of property. This rule is mostly associated with Ex parte
Minister van Justisie: In re: S v Van Wyk. The authors draw a clear distinction between
the use of violence (including homicide) in defence of life and limb, on the one hand,
and in defence of property, on the other. Most decided cases illustrate the close link
between the private defence of defending life and of protecting property. The
Constitutional Court recently declared unconstitutional s 49(2) of the Criminal
Procedure Act (allowing blameless killing to effect arrest). No court has yet
pronounced on the Van Wyk rule. Authors differ about its constitutionality. In this
article, following the two-phased approach to constitutional interpretation, the
authors conclude that the rule is unconstitutional: The serious limitation of rights
which the rule causes is not justifiable in terms of s 36 of the Constitution.
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McCullock, Matthew R. J. "A discourse on Althusius : an investigation into Sui Generic constitutionalism." Thesis, Loughborough University, 2005. https://dspace.lboro.ac.uk/2134/20834.
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This thesis aims at furthering our understanding of the constitutional structures and processes of sui generic associations such as the European Union. The thesis argues that the problematical constitutionalisation of the European Union has highlighted the limitations of the political thought that has served as the basis of political associationalism since the Treaty ofWestphalia (1648) and the publication of Thomas Hobbes' Leviathan (1651). These limitations have resulted in the European Union being described, for want of a better expression, as sui generis. The thesis advances the argument that in order to be in a position to understand constitutional relations in a 'non-statal' setting, what is needed is an alternative variant of political thought that is not based in or dependent on the societas canon that originates with Hobbes. One source of such political thought can be located in the work of Johannes Althusius (1557-1638) who, writing in the city of Emden in the Holy Roman Empire in the early 17th Century, described a constitutional structure of a political association that differs in significant features to the centralised state theories of the societas canon. The thesis also argues that the traditional concepts of constitutionalism and political association applied to sui generic constitutionalism are hampered by the inherent weaknesses of modem political and legal vocabulary. Despite being used ad infinitum in the constitutional discussions on the European Union, there is not a precise definition of either the term 'constitution' or treaty' in political or legal theory. Althusius' work avoids this weakness, due to the fact that the centralised state does not enjoy the same position it does in the societas canon, and so the need to classify 'intra' or 'inter' state relationships does not exist to the same degree. While taking the European Union as a workable model of a sui generic association, this thesis does not aim at solving the European Union's constitutional problems or offering a more suitable term to describe its nature. Rather, based on an analysis of Althusius' work, the thesis aims to offer an alternative understanding of the problems that result from the constitutionalisation of sui generic associations.
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ButleRitchie, David T. "Shifting foundations and historical contingencies : a critique of modern constitutionalism /." view abstract or download file of text, 2004. http://wwwlib.umi.com/cr/uoregon/fullcit?p3147815.
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Thesis (Ph. D.)--University of Oregon, 2004.Typescript. Includes vita and abstract. Includes bibliographical references (leaves - ). Also available for download via the World Wide Web; free to University of Oregon users.
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Borgebund, Harald. "Liberal Constitutionalism : re-thinking the relationship between justice and democracy." Thesis, University of York, 2010. http://etheses.whiterose.ac.uk/851/.
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Rizzi, Brignoli Francesco <1993>. "Rebooting the constitutional debate: deliberative constitutionalism in the European Union." Doctoral thesis, Alma Mater Studiorum - Università di Bologna, 2022. http://amsdottorato.unibo.it/10381/1/TESI%20rizzi%20brignoli.pdf.
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The aim of my thesis is to investigate the possibility and necessity to rethink a constitutional framework and debate in a transnational polity such as the European Union. My effort focuses on a promising theory called deliberative constitutionalism, which carries on new insights on how democracy and constitutions relate each other. The EU is a unique political entity which poses unanswered questions about its political legitimacy and constitutional foundation, if a Constitution will ever be possible. Going beyond the classical conception of the national and sovereign ‘people’, we keep wondering how citizens may deliberate and discuss about their rights and political communities across borders, in what could be defined as a transnational civic society. The development of the latter brings with it necessary constitutional changes, if not an evolution of constitutionalism itself. Chapter 1 deals with defining the theoretical framework, which develops the distinctiveness of the deliberative constitutional paradigm not only with respect to other more 'classical' models of democracy, but also with respect to other deliberative models that have marked the constructivist debate. Chapter 2 presents a conceptual history of constituent power, mainly studying the evolution of the constitution-sovereignty-constituent power dialectic, up to contemporary theories that explain the negation, separation, union or plurality of a transnational constituent with respect to its national counterparts. Chapter 3 develops the discourse of constitutional pluralism, through its main claims and strands that especially pertain to Neil Walker's (2002, 2016) institutional and epistemic claims. Chapter 4 applies a deliberative constitutionalist framework to the case of the European Union. Through the exposition of DC normative tenets, a form of self-learning process is proposed that can reconcile the heterarchical arrangement of constitutional claims and the new demand for legitimacy, as well as the relationship between European peoples and European citizens.
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Mochelle, Richard, and mochelle@acenet net au. "Towards a New Constitutionalism: Developing Global Civic Responsibility through Participation in World Constitutional Deliberation." RMIT University. ot supplied, 2001. http://adt.lib.rmit.edu.au/adt/public/adt-VIT20080902.091320.
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Confronted by major global problems, our 'foremost challenge', according to the 1995 report of the Commission on Global Governance, is to develop the vision of a better world - one more democratic, secure and sustainable. The report concludes with a call for 'a global civic ethic' - for commitment by all to a set of globally protective responsibilities. The thesis asks, what does this challenge imply? How to achieve an effective response? What provisions, in principle, ought to be instituted to meet the Commission's call? The call is a tall order: for a quantum leap from passive, rights-oriented, civic culture to one based on global responsibility. The thesis is not concerned with the probability of such shift occurring. The premise is that if we believe that the call ought to be met, that it commands an ethical response from all, we ought first to comprehend the ethical and practical complications, and second, seek to comply with them. The thesis is concerned with the first obligation. It requires an inquiry disciplined by moral reasoning and persistent focus on the long range, world future. It has led the thesis into somewhat underdeveloped terrains. The call to enact global civic responsibilities implicitly entreats us to recognise the validity and gentle power of Kant's categorical imperative, to unleash it from its remote, theoretical mountaintop and allow it to reign supreme as the preeminent, constitutional principle for personal and global governance. The thesis argues that this recognition will require, and result in , a new, education-led constitutionalism centred on civic integrity development. Logically derived from the Golden Rule, the categorical imperative and its universality and moral autonomy constraints are adopted by the inquiry, somewhat experimentally, as a methodological discipline. For it is argued that such discipline should be cultivated by the new, education-based constitutionalism. This requires persistent, uncompromising focus on the universal ought. Where ought leads, the inquiry follows, even when it invokes an apparently 'unrealistic' future beyond the margins of current educational and constitutional practice. The new constitutionalism appears vaguely outlined on the horizon, largely beyond political and educational experience. The thesis moves towards this horizon to consider grounding assumptions and transit impediments, with the goal, above all, to determine the more prominent, 'in principle' landmarks toward which the world's educational resources could be steered. The term constitution is min imally defined as a paramount, overarching strategy of mutual protection, not bound to current national constitutions, territories, and identities, nor to familiar constitution-making processes. Invoked by growing recognition of global interdependence and mutual risk, it stands for inclusive protection, ideally of, by and for 'We the People of the World'. The Commission's recommendation that people should deliberate on 'the vision of a better world' has been pursued by futurists since the 1960s. Their pioneering ventures are examined in chapter 2 and found contributive yet insufficient to meet the constitutional requirements implied by the Commission's challenge. Various conceptual and practical obstacles impede effective response to the challenge. These preoccupy much of chapter 2 and indeed the whole thesis. The new constitutionalism presupposes, as does prevailing national constitutionalism, that despite cultural differences, there are certain universal interests that all want protected. Most would want r eliable protection against preventable mayhem, slaughter and environmental destruction. It is argued in chapter 3 that while the universalist assumption can reasonably withstand relativist scepticism, universal interests remain to be identified. Upon examination of notable identification procedures it is asked 'should this be left to social researchers'? Arguments are raised to suggest that, as a civic harm preventative measure, all people should be constitutionally required to identify these interests. Universal interests cannot be protected while people take no responsibility for their protection. Were the Commission's call for globally responsible civic culture taken seriously, what would this imply for world political economy? Chapter 4 undertakes an exercise in future-oriented normative inquiry to explore world constitutional implications in outline. Revealed on the horizon is a new economic game with new words: the priactive constitution. The exercise demonstrates the challenging nature of the substant ive ethical agenda confronting deliberants of the new constitutionalism. What right does one have to participate in world constitutional deliberations and consider such agendas? Chapter 5 argues that one has a right, and a responsibility to do so. The arguments appeal to the democratic ideal, political legitimacy, the Golden Rule, the defence role of citizenship and the fact that each imposes the world constitutional order on all. But the participatory right and responsibility cannot be exercised without universally accessible constitutional fora, procedures and education. The theoretical ideals of deliberative democracy are summoned. The current technical feasibility of creating an Internet-based system of democratic deliberative provisions is illustrated in the Appendix. Even were such provisions made available, a key impediment to effective response to the Commission's call is that most work-committed adults are unlikely to volunteer substantial time for the learning engagement. Given the unacceptability of political coercion, chapter 6 considers the moral proposition that youngsters worldwide be submitted to the learning challenge in their years of compulsory education. The literature on moral justifications for compulsory education reveals considerable disagreement. These justifications seem anyhow unrelated to curriculum priorities that are actually imposed on captive audiences. As highlighted by the World Trade Centre attack, the world's people have little constitutional protection against deceptive doctrines conveyed in distant classrooms. A key problem for global governance is whether the world's teachers should not be constitutionally obligated to promote and exemplify globally protective responsibilities. Chapter 6 argues that universal compulsory education can be ethically justified for the protection of universal interests only when civic integrity development is maintained as the curriculum priority. This would develop global civic responsibilities in teachers and students through exercising their participation in world constitutional deliberation under the counterindoctrination constraints of the categorical imperative. It would entail deliberation on universal interests in view of global threats, alternative normative strategies to protect those interests, and public disclosure of normative commitments. Moreover, by tapping the real interests of students, adult literacy expectations, linguistic, moral, ecological and political, could be more readily met. But such educational strategy might not suffice to assure reliable enactment of civic responsibilities. It is argued that 'school' might need replacing or augmenting with environmentally rich learning settings that could enable chosen norms to be experienced and demonstrated. The thesis concludes that implementation of the new, education-centred constitutionalism implied by the Commission's call will first require an engaged response from educators. It is recommended that a global network be established linking key persons in schools and university faculties who will take responsibility for activating curriculum and community response to the Commission's call and, in the first instance, engage themselves in civic integrity development to acquire facilitator competencies.
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Roussin, Juliette. "Fonder la légitimité démocratique : conceptions majoritaires, constitutionnelles et épistémiques de la démocratie." Thesis, Paris 1, 2016. http://www.theses.fr/2016PA01H224.
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La thèse examine les fondements de la légitimité des décisions démocratiques et interroge la nature de la démocratie comme régime politique. Elle prend son point de départ dans deux questions : 1° qu'est-ce qui confère à la décision démocratique sa légitimité ? 2° une décision doit-elle être démocratique pour être légitime ? Il s'agit de dégager les différentes manières de penser la légitimité des décisions politiques à l'intérieur du régime démocratique et, à partir de l'analyse de leurs limites respectives, de suggérer une conception duale de la légitimité qui vise à concilier les éléments entrant en tension dans les autres conceptions. Les conceptions procédurales sont incapables de faire droit à la possibilité que l'injustice de décisions populaires sape leur légitimité. À partir des figures de l'expert et du juge, on suggère que les approches substantielles risquent pour leur part d'imposer à la pratique démocratique des exigences extérieures à elle et qu'elle n'a pas les moyens de produire. Il s'agit alors de penser les conditions d'un constitutionnalisme démocratique, opérant une conciliation entre les exigences procédurales et substantielles de la légitimité. Envisager la démocratie dans sa durée permet de concevoir qu'elle se découvre à elle-même ses propres normes, en un exercice continu d'approximation et de perfectionnement. Cette hypothèse rattache le constitutionnalisme démocratique à une conception épistémique de la démocratie selon laquelle, sous certaines conditions contraignantes, les procédures d'autodétermination inclusive et égale tendent, plus sûrement que d'autres méthodes de gouvernement, à produire des choix collectifs substantiellement justesThis thesis aims at examining the foundations of legitimacy for democratic decisions and hence at elucidating the nature of democracy as a political regime. Two questions are at its core. First, what makes a democratic decision legitimate? Second, must a decision be democratic to claim legitimacy? This work presents different accounts of legitimate decisions within the democratic regime. In light of their respective limits, it defends a dual conception of legitimacy that aims at reconciling, under specific conditions, the components that are in tension with one another in competing conceptions. I show that procedural conceptions are unable to account for the idea that the injustice or inanity of popular decisions might undermine their legitimacy, and that they result in a logical deadlock. Focusing on experts and constitutional judges, I suggest that substantive accounts tend to impose extrnal standards on the democratic process that it cannot generate on its own. I then introduce the idea of democratic constitutionalism and argue that procedural and substantive requirements for legitimacy may be reconciled within it. Democratic constitutionalism allows one to view democracy as discovering its own norms over a long-tem process of approximation and development. As such, it can be linked to an epistemic approach to democracy, according to which, under some restrictive conditions, the participative, inclusive and egalitarian procedures that democracy distinctively relies on tend to result in collective choices that are substantively more just than in other regimes
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Watt, Steven. "Authoritarianism, constitutionalism and the Special Council of Lower Canada, 1838-1841." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1997. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp01/MQ37243.pdf.
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Fagelson, David. "Constitutional interpretation and liberal rights theory : contested foundations of American constitutionalism." Thesis, University of Oxford, 1991. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.333310.
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Baugh, D. Matthew. "The League's long shadow : American constitutionalism and the international delegation dilemma." Thesis, University of Oxford, 2012. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.568086.
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The United States' record of participation in international institutions is paradoxical. No country has done more to promote the creation of new institutions. Yet the US has also failed to join some of the very institutions it has proposed, or has joined them only after making changes that leave the institutions substantially weaker. The ultimate rejection of the League of Nations, which America's own president had conceived and championed, is the classic example of this phenomenon; and nearly a century later, it remains one of the great puzzles of American foreign relations. This thesis proposes a novel explanation of the League defeat, showing the decisive influence of an idea from the country's constitutional tradition: the doctrine of checks and balances. According to this idea, power must be distributed across separate institutions in such a way as to give them overlapping jurisdictions and thus the capacity to restrain one another from going beyond their assigned limits. While President Woodrow Wilson, a proponent of British constitutionalism, considered the safeguards in the League plan sufficient, senators schooled in the American tradition of checks and balances objected to the plan's consolidation of power, arguing that it would inevitably lead to abuses of discretion. The difficulty of reconciling checks and balances with the inherent limitations of international delegation represents an enduring dilemma for American foreign policy-a dilemma made all the more poignant by the strategic value of international institutions. As the analysis of key cases reveals, the concern of US officials to avoid concentrations of power explains the country's rejection of the International Criminal Court, its scaling back of plans for the United Nations, and its second thoughts about joining the World Trade Organization. An ideational commitment has thus made it difficult for the US to convert its superpower status into lasting institutional form.
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Fulcher, Jonathan C. S. J. "Contests over constitutionalism : the faltering of reform in England, 1816-1824." Thesis, University of Cambridge, 1993. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.359430.
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Deva, Sagar. "Searching for order in chaos : a pluralist critique of global constitutionalism." Thesis, University of Sheffield, 2018. http://etheses.whiterose.ac.uk/21284/.
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It is clear today that the problems faced by the international community are truly ‘global’ in scale and require collective action well beyond the level of the nation-state. As a result of this, many contemporary scholars have turned to the idea of global constitutionalism as a potential panacea to these global issues, seeking to extrapolate the benefits of the constitution into the international system in order to harness globalisations more beneficial qualities while ameliorating its more dangerous traits. This thesis will address these ‘global constitutionalist’ arguments with a particular focus on global pluralism. It will suggest that the ‘mainstream’ global constitutionalist arguments are likely to fail in their mission of attaining the benefits of constitutionalism at the international level for two key reasons. Firstly, the visions of global constitutionalism offered by these global constitutionalists tend to be ‘partial’ in nature and underplay the importance of constitutionalism as a holistic phenomenon comprised of a symbiosis of normative and empirical characteristics, which, if unbound, fail to legitimate and control government in the desired fashion. Secondly, such visions fail to sufficiently account for the specific nature of global legal pluralism, which is driven in part by processes of fragmentation, undermining the potentiality for any form of coherent global constitutionalism which could span the entirety of the international system. Nonetheless, in the face of these hurdles, it will be argued that the international system might still possess certain structural elements that can render a modest form of ‘constitutional pluralism’. Consequently, although critical of more utopian notions of global constitutionalism because of insufficient engagement with the full spectrum nature of ‘constitutionalism’ as well as insufficient engagement with global pluralism, this thesis will suggest that constitutionalism might still have value as a useful tool for evaluating and improving governance in the global sphere.
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Christodoulidis, Emilios A. "Law and reflexive politics : a systems-theoretical critique of republican constitutionalism." Thesis, University of Edinburgh, 1995. http://hdl.handle.net/1842/21144.
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I begin by exploring the foundational notion of popular sovereignty as guiding ideal - or at least key precondition - of constitutionalism. By sanctioning the public political sphere, constitutional law maps out a universe of politics. I will approach the intersection of law and politics from the republican perspective, where the role of law is seen as substantiating the ideal of popular sovereignty and as empowering politics. Constitutionalism, here, is above all about self-determination and sovereignty and sanctions the processes where the sovereign will is formed. I review the theories of some key advocates of "civic" republicanism and describe their institutional suggestion for the "containment" of the politics of civil society. I employ systems theory in order to confront the republican claim that the politics of civil society can be contained (and empowered) by the law; with the help of the theory I explore the relationship between conflict and law and suggest that law allows for conflict only selectively, by setting the thresholds of valid dissensus, the when and how of possible conflict. In the process not only is much repressed but much is appropriated as well, as political conflicts to be represented are forced to meet criteria of legal relevance. I argue this via 11 inter-related theses against republicanism. In each of these theses I discuss one aspect of this silencing or depletion of political conflict to suggest that at crucial junctions where constitutive political connections are articulated, republicans advocate a containment that is either arbitrary, question-begging or self-defeating.
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Dobrowolsky, Alexandra Zorianna Carleton University Dissertation Political Science. "The Politics of pragmatism; women, strategic representation and constitutionalism in Canada." Ottawa, 1996.
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Wanki, Justin Ngambu. "When the rule of law and constitutionalism become a mirage : an analysis of constitutionalism and the rule of law in post-independent Cameroon against post-apartheid South Africa." Thesis, University of Pretoria, 2015. http://hdl.handle.net/2263/53476.
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The thesis examines the colonial era in Cameroon with the view to determining whether or not there has been a shift from colonial ideologies or jurisprudential transformation in the new democratic dispensation. Constitutional transformation in South Africa is used as a desirable transformative paradigm against which constitutional transformation is measured in post-independence Cameroon. I contend that participation and empowerment of the South African citizenry through the constitution-making process which endowed the citizenry with the power to constrain and restrain government action through the constitution provides a desirable paradigm for constitutional transformation. Cameroon s constitution-making process was elite-driven, participation reduced to the colonial government and Cameroonian citizenry side-lined, thereby facilitating the continuity of the colonial ideology to be captured in the independence and post-independence Cameroonian constitutions. Since independence there has been no substantive change in the content of the constitution of 1960 which was then replicated in the 1961, and 1972 constitutions. Conclusively, the legacy of colonialism is still apparent in the present 1996 constitution. This colonial ideology continuity into the current democratic dispensation has inspired disregard for the rule of law and constitutionalism.
The thesis concedes that South Africa has not been transformed fully as yet. Violations such as those in Marikana, Nkandlagate and refusal by President Zuma s lawyers to hand over the ?spy tapes to the court can only suggest that South Africa is still undergoing transformation. However, I have pointed out that in just twenty one years SA has made significant constitutional transformation Cameroon has not made despite its fifty five years as a democracy.
The thesis ends by making recommendations for constitutional transformation in post-independence Cameroon relying on the SA model to provide for the entrenchment of a bill of rights in the Cameroonian constitution, the Constitutional Council be empowered with the power of judicial review and constitutionalization of specialised institutions amongst others.Thesis (LLD)--University of Pretoria, 2015.
Jurisprudence
LLD
Unrestricted
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com, stephen robson@bigpond, and Stephen Robson. "Rethinking Mabo as a clash of constitutional languages." Murdoch University, 2006. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20070207.131859.
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The 1992 decision of the High Court of Australia to uphold the claim of the Meriam people was welcomed as beginning a new era where the unique status of Aboriginal and Torres Strait Islander peoples would gain recognition. Intense debate and activity ensued with federal parliament adopting a legislative framework to recognise native title and the Council for Aboriginal Reconciliation considering its broader constitutional implications. Fourteen years on though much of the promise of Mabo lies unfulfilled.
This thesis draws upon the work of Canadian philosopher James Tully. He writes of contemporary constitutionalism in Western society and its inability to give more than superficial recognition to cultural difference. He locates the problem as lying with the dominant language of modern constitutionalism. This language provides for two main forms of recognition: the equality of self-governing nation states and the equality of individual citizens. Tully locates a way forward through the presence of another constitutional language. Common constitutionalism has enabled an accommodation of cultural differences guided by its three conventions of mutual recognition, continuity, and consent. Moreover, it is beneficial to analysing other studies about the ability of common law to recognise the claims of Indigenous people.
Tullys contribution is applied to an examination of the Mabo events in a way that takes account of Australias constitutional traditions. The aim is to clarify the languages employed by the representatives of Australias institutions of governance and whether this places obstacles in the way of recognising Aboriginal and Torres Strait Islander peoples. The inquiry considers the events prior to the High Courts decision, the Keating governments response, and the Howard Governments native title changes. Other chapters examine the constitutional language used by Aboriginal and Torres Strait Islander peoples and the significance of the Council of Aboriginal Reconciliation.
The central argument of this study is that once it is accepted that the claims of Indigenous people in Australia are constitutional, it becomes possible to appreciate that these were largely voiced through the language of human rights and common constitutionalism. In contrast, when the claims were considered by the High Court and federal parliament significant aspects were articulated through the modern constitutional language. Another thread running through the events was a desire to confront and overcome the influence of the language of White Australia. The thesis concludes by considering the significance of the findings for a settlement between Aboriginal and Torres Strait Islander peoples and other Australians.
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Sapir, Leor. "Regulate Now, Explain Later: Understanding the Civil Rights State's Redefinition of "Sex"." Thesis, Boston College, 2020. http://hdl.handle.net/2345/bc-ir:108948.
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Thesis advisor: R. Shep MelnickIn what seems like the blink of an eye, transgender rights has catapulted from a nonissue in American politics to the peak of the culture wars. Scholarship on the transgender rights movement has proliferated rapidly in recent years, most of it sympathetic to the cause but some of it critical. Missing from this literature, however, is a serious examination of how courts and agencies have justified their efforts to advance what Vice President Joe Biden in 2012 called “the civil rights issue of our time.” This dissertation tries to fill that gap. Through an in-depth analysis of court precedents and agency pronouncements, and an examination of the assumptions behind regulators’ redefinition of male and female, it suggests that noble intentions have led civil rights institutions into a thicket of interpretive difficulties and regulatory dilemmas. First, judges and administrators have declared biological sex a “stereotype,” but have offered virtually no explanation for why this is so. This has resulted in regulatory peculiarities, including: courts relying on “stereotypes” when invalidating policies that they deem stereotypical; agencies instructing schools to adopt conflicting definitions of male and female; and government officials unable or unwilling to explain why separating restrooms and athletic teams by a non-physical understanding of sex is necessary in the first place. The deeper reason for these peculiarities, I argue, is a failure to articulate a coherent account of what makes us sexed beings. Second, civil rights officials have argued that their interpretation of federal law finds unambiguous support in a body of court rulings that condemn stereotyping. The problem with this argument, I suggest, is that the precedents that are cited actually say the opposite of what they are made out to say. They say that sex is biological, and that transgender women are biological men who fail to live up to social expectations about maleness. By invoking the abstract notion “stereotype,” regulators hide their break with precedent from citizens and perhaps also from themselves. Transgender regulation thus raises important questions about legal interpretation in relation to constitutional government, and about the role of the legal profession within liberal democracy. This dissertation challenges two dominant narratives about transgender rights. According to one, transgender rights is part and parcel of a broader postmodernism that is tearing through American institutions and weakening the foundations of Western societies. According to the other, transgender rights is a logical extension of the original civil rights revolution and a fulfillment of liberalism’s deeper humanitarian impulses. I argue that transgender regulations are more “conservative” than those who decry (or hope for) postmodernism believe, but more postmodern than those who appeal to liberal equality seem willing to acknowledge
Thesis (PhD) — Boston College, 2020
Submitted to: Boston College. Graduate School of Arts and Sciences
Discipline: Political Science
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Luo, Jiajun. "China toward Constitutionalism? Institutional development under the Socialist Rule of Law system." Thesis, University of British Columbia, 2015. http://hdl.handle.net/2429/52862.
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Building Constitutionalism in China is seemingly a constant topic worth exploring. However, attempts to adopt the current Western Mature Constitutional System, as a static standard for assessing constitutional development in China’s Context is quite prevalent. By reference to three respective institutions in China’s Socialist Rule of Law system: the Communist Party of China (CPC), National People’s Congress (NPC) and the People’s Courts (Courts), this thesis seeks to examine constitutional development in People’s Republic of China (PRC). This thesis also argues the Mature Constitutional model is unable to engage with the orthodoxy of China’s approach to constitutional development.
This thesis first demonstrates why applying the standard of mature constitutionalism to assess constitutional development in China is problematic and renders inaccurate results. Thus a more suitable institutional approach has been raised to examine constitutional development in China. It subsequently discuss the evolution of CPC (ideologies, structure, operation) in post 1978 China in order to examine the Party’s role as both the determinant and product of China’s constitutional development. Then the thesis will discuss how the NPC, a traditional “rubberstamp”, has developed as the highest national legislature and constitutional supervisory organ. The courts in China, in particular, have taken the incremental approach to expand institutional authority by interacting with this highest political power holder and supporting the current constitutional order.
This thesis makes an original contribution to both the discourse of China’s constitutional law and the studies on authoritarian constitutional development. The thesis has confirmed that institutional development in China’s particular authoritarian context (the socialist rule of law system) is possible. Development of this nature would be difficult to be appreciated by the Mature Constitutional Standard. Thus, an institutional approach based on a contextual analysis is more suitable for examining how the authoritarian system responds to the challenge of constitutionalism. However, the thesis has found that the future of applying the Mature Constitutional Model to China’s Socialist Rule of Law system is tentative and has predicted that China’s system would confront potential tension between democracy and constitutional development in future.Law, Faculty of
Graduate
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Das, Cyrus Vimalakumar. "Emergency powers and parliamentary government in Malaysia : constitutionalism in a new democracy." Thesis, Brunel University, 1994. http://bura.brunel.ac.uk/handle/2438/5240.
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This thesis is a situational study of the use and exercise of emergency powers in Malaysia, undertaken from the perspective of the principles underlying the Malaysian Constitution. The primary focus and perspective are Malaysian, and I use comparative materials where I consider they may help to Illuminate that perspective and the way in which emergency powers have been used. A unique situation has been created whereby the Malaysian Government has the option of taking measures under one or other of two legal regimes. The thesis, therefore, examines the development of this parallel government system. it includes discussion of the considerations that animated writing reserve powers into the Malaysian Constitution and the near Institutionalisation of the state of emergency In Malaysia, using this historical background to focus on the role of the judiciary In crisis situations, the incorporation of certain traditional elements of Malay society into the Constitution, and the existence of racial 'bargaining' in developing the Constitution. The thesis then examines the distinct legal order created by a state of emergency, within the context of the reality of the Malaysian polity. Hence, there is an examination of the four actual instances when an emergency was proclaimed in the country. An examination is also undertaken of the various amendments made to Article 150 over the years which has reduced much of the safeguards originally built into the provision. This examination suggests that Article 150 in Its present form, is debilitative of parliamentary government largely because of the dual system of law-making created by a state of emergency. The thesis therefore provides an insight into the working of a major constitutional democracy seeking to reconcile the need to maintain emergency powers and realise the objective of a parliamentary system envisaged by its Federal Constitution.
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Al, Harbi Bandar Eid. "Constitutionalism, constitutionalisation and legitimacy : reforming Al-Shura Council law in Saudi Arabia." Thesis, Brunel University, 2014. http://bura.brunel.ac.uk/handle/2438/10606.
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Saudi Arabia is being challenged by increasing demands for democratic reform. Although many Saudi citizens desire such change, in order to maintain stability, dramatic and rapid reform is not considered prudent. Nor is the adoption of a Western model of democracy seen as a way forward. Indeed, such a shift would be counterproductive for most Islamic nations. A more measured approach, introducing reforms that build on traditional Islamic democratic ideals, would help to maintain stability and legitimacy for the various stakeholders involved. Consequently, attention has been turned to the ‘Majlis Al Shura’ or the Al-Shura Council, an Islamic Advisory Council that ensures policies and laws follow the principles of Islam. Shura, developed from the Holy Quran, is an ancient practice that has profound significance in Arab culture and history. It provides a framework which ensures scholars and experts from a variety of backgrounds are consulted on issues related to governance. Currently, the role the members play in governance of the Saudi State is decided by the King, who appoints individuals to the Council according to their perceived suitability. However, the Saudi Arabian Al-Shura Council is a highly respected institution. Allowing citizens to elect members, rather than having the King holding the authority to appoint them, would not only be well received, but would create a more effective check on governmental power, help satisfy the demand for more citizen input into public affairs, and pave the way for future, more substantial reform, if desired by Saudi society.