Journal articles on the topic 'Constitutionalism'
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1
Scholtes, Julian. "The complacency of legality: Constitutionalist vulnerabilities to populist constituent power." German Law Journal 20, no. 3 (April 2019): 351–61. http://dx.doi.org/10.1017/glj.2019.26.
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AbstractWhat role do public law and liberal constitutionalism play in an era of political populism? This article approaches this question by exploring the concept of constituent power in the light of recent constitutional developments in countries with populist governments. It attempts to outline and contrast conceptions of constituent power as inherent in liberal constitutionalist and populist thinking, respectively. While constitutionalists draw heavily upon Kelsenian normativism in framing the way political power is generated, populists juxtapose this with a concept of constituent power that is inspired by Carl Schmitt’s ‘decisionist’ view. The complacency of legality inherent in liberal constitutionalist thinking is susceptible to a populist challenge that draws attention to the necessity for the social embeddedness of any legal order. Populism, it is argued, exposes a core tension inherent in constitutionalism: How do constitutionalists reconcile their democratic aspirations with the simultaneous preclusion of certain political choices from the democratic realm? Populists can attack constitutionalism also because of the deficient conception of constituent power that underlies the latter. The article concludes that, where challenged by populists, public law can at some point no longer rely on its own force to defend itself. Its authority needs to be re-established from an extra-legal, pre-positive perspective. In an era of political populism, constitutionalist public law becomes a discourse that can challenge populism by means of the powerful reasons that inhere in the former.
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VAN MULLIGEN, JOHANNES GERALD. "Global Constitutionalism and the Objective Purport of the International Legal Order." Leiden Journal of International Law 24, no. 2 (May 6, 2011): 277–304. http://dx.doi.org/10.1017/s0922156511000021.
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AbstractGlobal constitutionalists argue that the international legal order can only be meaningfully construed as having an objective, value-based purport. There is, however, something hybrid about the constitutionalist argument, as constitutionalists espouse a normative agenda whilst at the same time setting out to ground their approach in positive international law. It is contended that to avoid both this foundational problem and the charge of utopianism, and as a rejoinder to positivistic arguments for the denial of objective purport, constitutionalists are forced to reason along indirect, transcendental lines. Thus, constitutionalists are to be construed as avouching global values as necessary conditions for making sense of existing international legal practice, rather than merely invoking direct, positivistic evidence and/or mere normative arguments to ground their position. Moreover, it is submitted, first, that global constitutionalists would do better by adopting a less objectivist stance as regards global values, as on the ideal-agent theory of value. Second, it is argued that even though there might be room for so-called constitutionalist ‘mindsets’, these fall short of establishing the objective purport of the international legal order. Third, d'Aspremont's positivistic argument contra objective purport is construed as (also) an argument to the effect that the rules and architecture of the international legal order only warrant the existence of Hobbesian interests as necessary conditions for making sense of it. The constitutionalist case for objective purport, then, hinges on the issue of whether constitutionalism is necessitated by considerations as regards the intelligibility of international legal argument, by explanatory desiderata regarding trends in international law-making, and as a viable response to the problems posed by fragmentation, deformalization, and international legal scepticism.
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Bateman, Thomas M. J. "Rights Application Doctrine and the Clash of Constitutionalisms in Canada." Canadian Journal of Political Science 31, no. 1 (March 1998): 3–29. http://dx.doi.org/10.1017/s0008423900008660.
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AbstractCanadian courts have been torn between two constitutionalisms in their interpretation of the application provisions of the Canadian Charter of Rights and Freedoms. The traditional, liberal constitutionalist approach establishes a distinction between public and private realms and between state action and inaction, limiting the Charter's application to the public, governmental sphere of positive legislation and executive conduct. However, the courts have oscillated between this and a postliberal constitutionalism according to which distinctions between public and private and state action and inaction are arbitrary and artificial. This article argues that this clash of constitutionalisms is responsible in large part for the courts' inconsistent and confusing record in interpreting sections 32 and 52 of the Constitution Act, 1982.
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Arjomand, Saïd Amir. "The 1906-07 Iranian Constitution and the Constitutional Debate on Islam." Journal of Persianate Studies 5, no. 2 (2012): 152–74. http://dx.doi.org/10.1163/18747167-12341242.
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Abstract After a brief sketch of the historical background, the mutual impact of Islam and constitutionalism is examined by looking closely at the process of constitution-making in the broad context of the constitutional politics of Iran between 1905 and 1911. The modification of modern constitutional concepts under the impact of Shiʿi Islam and through its custodians in the course of the reception of Western constitutionalism in this period is followed by an analysis of the impact of modern political ideas on Islam. The analysis is based on the texts of the Fundamental Law of 1906 and its 1907 Supplement, and on the contemporary tracts for and against constitutionalism from opposite Islamic viewpoints. Our detailed examination of these sources indicates no presumption that a constitution had to be based on Islam. Nor was there any notion of ‘the Islamic state,’ the slogan of the Islamic revolution of 1979. For the constitutionalists and anti-constitutionalist pamphleteers of the first decade of the twentieth century alike, the counterpart to the constitutional government was not the Islamic state but the autocratic monarchy of ‘the king of Islam.’
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SHINAR, ADAM. "The ideologies of global constitutionalism." Global Constitutionalism 8, no. 1 (March 2019): 12–28. http://dx.doi.org/10.1017/s204538171800031x.
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Abstract:This introduction sets the stage for the special issue on the ‘ideologies of global constitutionalism’. It describes the competing approaches for conceptualising and analysing global constitutionalism. It then turns to highlight the overlooked ideologies underlying global constitutionalism through a thematic exposition of the articles in the special issue. In particular, the introduction questions the conventional link between global constitutionalism and neo-liberalism, explores a materialist analysis of global constitutionalism, analyses the validity of the liberal global constitutionalist paradigm for non-liberal regimes, and discusses the potential for the abuse of that liberal paradigm through the migration of constitutional doctrine.
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BUI, SON NGOC. "Anticolonial Constitutionalism: The Case of Hồ Chi Minh." Japanese Journal of Political Science 19, no. 2 (May 22, 2018): 197–221. http://dx.doi.org/10.1017/s1468109918000051.
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AbstractHow is modern constitutionalism related to anticolonialism? This Article takes into account this question with a special reference to the case of Hồ Chi Minh. It argues that modern constitutionalism offers a powerful ideational and discursive weapon for the colonized people to struggle against colonialism. To understand this, the Article introduces the concept of ‘anticolonial constitutionalism’, defined as a form of political discourse in which anticolonialists employ the language and ideas of modern constitutionalism to combat the predatory colonial government and to express the aspirations to a constitutional government. Anticolonial constitutionalism emerges under three conditions, namely exploitatory and arbitrary colonialism, anticolonialism, and constitutional enlightenment. The case of Hồ Chí Minh illustrates this phenomenon well. When Vietnam was under French colonialism as a part of French Indochina during the first half of the twentieth century, Vietnamese anticolonialism was vehement, and different anticolonialists employed the language and ideas of constitutionalism to oppose the colonial government. One of them was Hồ Chí Minh, considered by many Vietnamese as the father and icon of the nation. A tremendously influential anticolonialist, he was enlightened with constitutionalist knowledge and employed key ideas of modern constitutionalism, namely a written constitution, the rule of law, popular sovereignty, and fundamental rights to struggle against French colonialism and to express such aspirations to a constitutional government in Vietnam. This study has implications for the trajectory of constitutionalism in contemporary Vietnam given the continuing influence of Hồ Chí Minh's constitutionalist discourse in the country nowadays. More generally, this study has implications for the relationship between constitutionalism and anticolonialism.
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Effendi, Syafnil. "Konstitusionalisme dan Konstitusi Ditinjau dari Perspektif Sejarah." Humanus 10, no. 1 (July 30, 2012): 73. http://dx.doi.org/10.24036/jh.v10i1.488.
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The primary mission of constitutionalist thought is the limitation of power of the government. This limitation means the guarantee and protection of rights of the society. The thought about the limitation of government power aims to avoid power abuse, authoritarian and irresponsible acts. In the constitutional democratic countries, constitutionalism is one of qualifications of democratic countries. However, the democracy is questioned when constitutionalism is included in the constitution and in the real implementation of the state. Key words: constitutionalism, constitution
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Basta Fleiner, Lidija R. "Kako predavati ustavno pravo u dvadeset prvom veku." Novi arhiv za pravne i društvene nauke Pravnog fakulteta Univerziteta u Beogradu, no. 1/2021 (May 11, 2021): 32–47. http://dx.doi.org/10.51204/novi_arhiv_pfub_21103a.
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Constitutionalist discourse has undergone a fundamental transformation at the beginning of the 21st century. New, major constitutional topics have been introduced, inspired by constitutional pluralism and constitutionalism beyond the nation-state. The systemic challenges to modern liberal constitutionalism have prompted a new understanding not only of the constitution, but also of constitutional law as a university subject. The crisis of key parameters of constitutional democracy commands a thorough re-examination of both the cognitive and performative dimensions of teaching constitutional law. For that reason, this paper seeks answers to the question what and how to teach in the epoch of postmodern constitutionalism. The paper advocates the viewpoint that the professor should not only describe phenomena, but also explain the essence of the problem: for example, the republican argument of classical constitutionalism’s irrelevance, or the difference between normality and pathology of constitutional systems in the context of democratic transition, or indeed the trans-nationalization of the constitution and the postmodern paradigm of constitution-building without constituent power. The need for interdisciplinary and multidisciplinary approach, including co-teaching is demonstrated through the topics of monistic and pluralistic federalism, and constitutional guaranties of individual and/or collective rights. The paper concludes that teaching of constitutional law should be guided by global doubt, as the hermeneutics of truth and ethico-political consideration.
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Vespaziani, Alberto. "Comparison, Translation and the Making of a Common European Constitutional Culture." German Law Journal 9, no. 5 (May 1, 2008): 547–74. http://dx.doi.org/10.1017/s207183220000002x.
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European integration has forced constitutional law scholars to abandon the perspective of methodological nationalism. Prior to the emergence of the interpretative problems raised by the intersection of domestic and European law, the dominant legal paradigm conceived of “constitution” and “state” as two inseparable terms. With the intensification of European integration and economic globalization, many different constitutionalist interpretations have emerged which all share a belief in the State's loss of centrality, such as post-, supra- and transnational constitutionalism, constitutionalism without the state and multilevel constitutionalism.
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Granat, Mirosław. "Pytania o przyszłość konstytucjonalizmu. Siła i słabość komparatystyki prawniczej." Przegląd Konstytucyjny, no. 3 (2022) (October 31, 2022): 35–43. http://dx.doi.org/10.4467/25442031pko.22.020.16385.
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Questions about the Future of Constitutionalism. The Strength and the Weakness of Comparative Law The future of constitutionalism revolves around two critical issues which we see against the backdrop of the crisis of liberal democracy. The first issue concerns the conflict between the “judicial” constitutionalism and “political” constitutionalism. The “judicial” constitutionalism assumes a strong role of courts in a democratic system. Only courts can decide on compatibility of law with the constitution. In turn, the “political” constitutionalism assumes that the parliament decides on constitutional law. The rivalry between these two constitutionalisms seems to be the matrix of contemporary political dilemmas. The result of this rivalry is important for the efforts to end Polish constitutional crisis, as we will have to decide on the constitutional benchmarks applicable after the crisis. The second issue concerns the limits of constitutionalism. The author argues that the current digital era created a new phenomenon of digital constitutionalism. It operates in the sphere of private law relationships, dominated by private entities (big corporations). The relevant provisions for the digital world are the private law provisions. Comparative law and comparativists are crucial for answering the questions on the future of constitutionalism. The conflict of the two visions of constitutionalism and the extension of its limits are a great “training ground” for the comparativists.
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Drake, Karen. "Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation." Federal Law Review 48, no. 4 (September 10, 2020): 570–85. http://dx.doi.org/10.1177/0067205x20955069.
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The Supreme Court of Canada’s jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facilitates dispute resolution between Canadian governments and Indigenous peoples grounded in Indigenous constitutionalism. To avoid a pan-Indigenous approach, this article focuses on Anishinaabe constitutionalism as one example of Indigenous constitutionalism. It highlights points of contrast between Anishinaabe constitutionalism’s and liberalism’s foundational norms and dispute resolution procedures. This article argues that a hybrid institution—combining features of both liberalism and Indigenous constitutionalism—would merely reproduce the constitutional capture of Aboriginal rights jurisprudence. It also illustrates how the procedures of talking circles—which are one means of giving effect to persuasive compliance—promote the voice of all involved. Finally, this article argues that from the perspective of Anishinaabe constitutionalism, the non-binding nature of the processes offered by the new institution would be a strength, not a drawback.
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KAMMERHOFER, JÖRG. "Constitutionalism and the Myth of Practical Reason: Kelsenian Responses to Methodological Problems." Leiden Journal of International Law 23, no. 4 (November 22, 2010): 723–40. http://dx.doi.org/10.1017/s0922156510000336.
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AbstractWhile today a significant stream of European scholarship of international law is concerned with the process and consequences of its constitutionalization, criticism of this trend has so far been muted. This article, using elements of the Pure Theory of Law, argues that constitutionalist writings confound methodologies, that scholarship claims competencies which it does not have, and that this confusion diminishes the benefits of the constitutionalist project for international law. The key problem is called a ‘methodological circle’: scholars call something a constitution and in effect claim that the law is changed by this classification. Thus constitutionalism relies on the natural law concept of practical reason; constitutionalism is, in turn, vulnerable to Kelsen's arguments against practical reason. Constitutionalism, like practical reason before it, contains an impossible admixture of the human faculties of will and cognition. The general critique is followed by a look at Article 2(6) of the UN Charter as a case in point. Here constitutionalism shows how law is purportedly changed by taxonomy. The article concludes by taking a look at an alternative vision of the constitution of international law: the rediscovery of a strictly legal – that is, structural – constitution as the highest echelon of legal regulation.
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Melo, Milena Petters, and Thiago Rafael Buckhart. "constitutionalism “of” the Global South? Epistemological reflections on emerging constitutional trends." Revista de Estudos Constitucionais, Hermenêutica e Teoria do Direito 14, no. 3 (August 14, 2023): 420–38. http://dx.doi.org/10.4013/rechtd.2022.143.08.
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Taking into consideration the recent studies on the “constitutionalism of the global south”, the aim of this article is to critically analyze the applicability of the mentioned concept, highlighting the potentialities and inadequacies of its theoretical construction. The hypothesis states that notwithstanding the relative frailties on the concept of “global south”, it is possible to conceive the emergency of a “constitutionalism of the global south”, grounded on singular innovative experiences of several “southern” countries, which are relevant contributions for the common heritage of democratic constitutionalism. The article, an outcome of researches carried out between Brazil and Italy, with the use of hypothetical-deductive method, is methodologically grounded in the field of constitutional theory, with some elements of comparative constitutional law, and is divided in three topics: I. Defining constitutionalism: concept and evolutions; II. Constitutionalism, the global north and the south; III. Constitutionalism of the global south: a critical analysis. As results, the hypothesis has been partially confirmed, as it has been evidenced the inadequacy of the concept “constitutionalism of the global south”, for its vagueness and ambiguous delimitation. Therefore, it would be more appropriate to comprehend the constitutionalism of the global south as a “constitutionalism from the global south”, as an attempt to emphasize the diversity on global south constitutionalisms and, through this, increase the analytical perspective of contemporary constitutionalism complexity. Thus, in a “multicentered approach”, constitutional theory fits a more adequate position to analyze constitutional innovations, considering that center and periphery are conditional concepts, especially when referring to contemporary constitutionalism.
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SCHWÖBEL, CHRISTINE E. J. "The Holy Trinity of International Legal Debate." Leiden Journal of International Law 24, no. 4 (November 3, 2011): 1035–56. http://dx.doi.org/10.1017/s0922156511000495.
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‘Fragmentation, verticalization, and constitutionalization form the holy trinity of international legal debate in the early 21st century’ – such is the opening phrase of Jan Klabbers's first chapter in his co-authored book, The Constitutionalization of International Law. Although Klabbers possibly did not intend it, by invoking the ‘holy trinity’, he is calling attention to an important aspect of the contemporary constitutionalist debate, namely what I would like to describe as the faith in constitutionalism as a secular religion. It is from this perspective – the complete and unquestioning belief in constitutionalism – that I will explore global constitutionalism and the three books that are the object of this review.
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Coddou Mc Manus, Alberto. "A critical account of Ius Constitutionale Commune in Latin America: An intellectual map of contemporary Latin American constitutionalism." Global Constitutionalism 11, no. 1 (October 4, 2021): 110–38. http://dx.doi.org/10.1017/s2045381721000125.
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AbstractIus Constitutionale Commune in Latin America (ICCAL) is an academic endeavour that attempts to provide an account of the original Latin American path of transformative constitutionalism, comprising elements from national, transnational and international legal orders, and where the law is placed at the service of the normative trinity of constitutionalism, namely the rule of law, democracy and human rights. In this regard, ICCAL speaks of an Inter-American law that represents a new legal phenomenon, in a region where constitutionalist ideas have allegedly claimed new traction. In this article, I develop two main critiques that can be deemed challenges for an academic project that is still ‘under construction’, and provide an intellectual map of Latin American constitutionalism that could address these critiques and serve as a roadmap for studying potential Latin American contributions to debates around global constitutionalism.
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Golia, Angelo Jr, and Gunther Teubner. "Societal Constitutionalism: Background, Theory, Debates." ICL Journal 15, no. 4 (November 10, 2021): 357–411. http://dx.doi.org/10.1515/icl-2021-0023.
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Abstract The article provides a systematic outline and refinement of societal constitutionalism (SC), one of the frameworks emerged in contemporary legal theory to analyse constitutional phenomena. After an introduction in Section 1, Section 2 summarises SC’s theoretical background, namely the debates on the Economic Constitution (2.1), legal pluralism (2.2), systems theory (2.3), and the work of David Sciulli (2.4). Section 3 explains SC’s analytical limb, which on the one hand criticises some tenets of state-centred constitutionalism (3.1); and on the other hand identifies functions, arenas, processes, and structures of a constitutionalised social system (3.2). Section 4 turns to SC’s normative limb, pointing to some constitutional strategies that increase social systems’ capacities of self-limitation (4.1); and develop a law of inter-constitutional collisions (4.2). Section 5 addresses the main competing approaches and criticisms, which are based on state-centred constitutionalism (5.1); on international/global constitutionalism (5.2); and on contestatory/material constitutionalism (5.3).
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Yanchuk, A. О., and N. V. Yefremova. "CONSTITUTIONALIZATION OF THE INSTITUTE OF THE PEOPLE`S RULE THROUGH THE PRISM OF THE RULE OF LAW IN THE CONDITIONS OF GLOBALIZATION." Соціальний Калейдоскоп 1, no. 3 (June 20, 2020): 75–93. http://dx.doi.org/10.47567/bomivit.1-3.2020.08.
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The modern researchers are increasingly beginning to address the issue of constitutionalization of public relations, noting that this process is inextricably linked with the activities of constitutional courts, which in one way or another affect the process of constitutionalization of public relations, legal family, national and other features is noted. The issue of constitutional modernization of the institution of democracy in the context of the national ground of awareness of the rule of law through the prism of domestic philosophy, literature, culture, highlights the decisions of the Constitutional Court of Ukraine as the main external form of interpretation of constitutional provisions democracy as a product of the system of state bodies, the actualization of attention to constitutionalism as the main mechanism of this institution. Constitutionalism is seen as a socio-political system that limits the arbitrariness of power and determines the guarantees of human rights and fundamental freedoms. In the narrow sense, constitutionalism is embodied in the activities of constitutional justice bodies to verify the legal acts of public authorities for their constitutionality. It is such properties of constitutionalism as the restriction of arbitrariness, the definition of guarantees of human rights and fundamental freedoms through the Constitutional Court of Ukraine's review of legal acts of the authorities for their constitutionality allows to include constitutionalism in the main mechanism of building democracy in Ukraine, ensuring its forms and mechanisms.
Proved matched constitutionalism as a phenomenon and as a process konstytutsionalizatsiya a priority mechanism construction in Ukraine democracy that is provided, including verification of the Constitutional Court of Ukraine acts of the authorities for their compliance with the general postulates of the rule of law.
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Patil, Subhash. "INDIAS CONSTITUTIONALISM: AN EXAMINATION OF ITS HISTORICAL DEVELOPMENT AND CURRENT ISSUES." International Journal of Advanced Research 11, no. 09 (September 30, 2023): 1434–39. http://dx.doi.org/10.21474/ijar01/17666.
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This paper explores the idea of constitutionalism in India, charting its development over time and evaluating current threats to the countrys constitutional system. The transition of India from colonial oppression to a democratic republic with a strong constitution is an impressive case study in the evolution of constitutions. The paper examines constitutionalisms tenets in the context of India, highlighting its importance in preserving the rule of law, democracy, and human rights. It also draws attention to some of the major issues that Indian constitutionalism is facing in the twenty-first century, including federalism, judicial activism, and minority rights protection. This essay sheds light on the distinct history of constitutionalism in India and its applicability in the modern world.
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Blokker, Paul. "Populism as a constitutional project." International Journal of Constitutional Law 17, no. 2 (April 2019): 536–53. http://dx.doi.org/10.1093/icon/moz028.
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Abstract The engagement of conservative, populist governments with constitutional reform and constitution-making is perceived as a significant threat to the rule of law and democracy within the European Union. Constitutionalists often assume a relation of mutual exclusion between populism and constitutionalism. In contrast, I argue that while populism ought to be understood as a rejection of liberal constitutionalism, it equally constitutes a competing political force regarding the definition of constitutional democracy. The article first discusses populist constitutionalism in the context of the two, main modern constitutional traditions: the modernist and the revolutionary ones. Second, I discuss the populist critique of liberal constitutionalism, with a central focus on the recent cases of right-wing populism in power in East-Central Europe. Four dimensions are prominent: (i) popular sovereignty as the key justificatory claim of populism; (ii) majority rule as the main populist mode of government; (iii) instrumentalism as the legal–practical approach of populists; and (iv) legal resentment as the populists’ main attitude toward public law. In conclusion, I argue that while the populist critique of liberal constitutionalism provides significant insights into structural problems of liberal democracy, populist constitutionalism ultimately fails to live up to its own democratic promise.
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Trajkovska-Hristovska, Jelena. "The Features of the Modern Concept of Separation of Powers as an Element of Constitutionalism - “The Garden of Eden” or “The Dark Side of the Moon ”?" Khazar Journal of Humanities and Social Sciences 21, no. 2 (July 2018): 104–18. http://dx.doi.org/10.5782/2223-2621.2018.21.2.104.
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The focus of the contemporary constitutional law and the constitutionalism is the limitation of the government by the means of legal instruments and mechanisms. Therefore, the analysis of the relation between the concept of constitutionalism and the principle of separation of powers has the central position of this paper. The paper elaborates the concept of constitutionalism as an idea and ideology of limited and controlled power. At the same time it has been emphasised that the development of the constitutionalism as a doctrine is possible only with previous analysis of its basic elements. The principle of "separation of powers" is one of these elements. The second point of this paper refers to the principle of “separation of powers” as one of the basic principles and concepts of the contemporary constitutions. The principle of separation of powers is a basic idea, general objective and a constant of the contemporary legal order. However, the paper will point out that the new situation in the relations between the branches of the government and the adaptation of the principle of separation of powers to the new circumstances, in the constitutional literature is known as contemporary constitutionalism. The paper elaborates the concepts of judicial supremacy and judicial paramontcy as elements of the contemporary American constitutionalism, as well as the manners and attempts for their theoretical justification. On the other hand, the paper will elaborate the phenomenon of judicial juristocracy in the European continental systems for control of constitutionality. The paper highlights the implementation of the doctrine of review of the constitutionality of the constitutional norms (verfassungswidrigen Verfassungsrechts) in the practice of the European constitutional courts. It elaborates the dilemma does the interpretation of the “mischievous phrases” of the constitution, by introducing concepts for ,,symbolic constitution” and ,,constitution behind a constitution” on one hand, and the introduction of the doctrine of review of the constitutionality of the constitutional norms on other, overhangs the concept of separation of powers, as The Sword of Leviathan. Finally the paper sets the dilemma whether the tectonic shift of the focus of decision making towards the legislative – executive – judicial power, and the unhidden and manifested will, ambition and activity of the courts to control the action of political authorities as a feature of the contemporary constitutionalism, is the so-called “the garden of Eden” or its opposite “the Dark Side of the Moon”.
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Esiobu, Dzhustin. "Constitutionalism within Times of Change: Authority, Society and Democracy." Kyiv-Mohyla Law and Politics Journal, no. 7 (December 29, 2021): 149–62. http://dx.doi.org/10.18523/kmlpj249917.2021-7.149-162.
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This article, following classical methodological patterns, as well as their evolution framework, identifies key features of the two most predominant constitutionalism traditions — political and legal, simultaneously drawing indispensable red lines with regard to correlation of the doctrine and a Fundamental Law itself. Respectively, the features have been rendered as the very elements of constitutionalism’s role within times of change — i. e., over the aforementioned time frames and transition states in between — whereas the doctrine’s capacity to answer so-called “questions of constitutionalism” constitutes its underlying response mechanism. The article addresses the phenomena of authority, society and democracy in their modern perception, and makes crucial points upon the constitutionalism’s effect on their sheer structures.
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Martín, Nuria Belloso. "EL NEOCONSTITUCIONALISMO A DEBATE: ENTRE LA PRINCIPIOLOGÍA Y LA ARBITRARIEDAD / DEBATING NEO-CONSTITUTIONALISM: BETWEEN PRINCIPLES AND ARBITRARINESS." Revista da Faculdade de Direito UFPR 59, no. 1 (April 29, 2014): 145. http://dx.doi.org/10.5380/rfdufpr.v59i1.36352.
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La evolución del Estado legalista a un modelo de Estado constitucional ha propiciado una relectura del texto constitucional en clave neoconstitucional. La teoría del neoconstitucionalismo abre algunos interrogantes que serán objeto de análisis tales como el enfoque del neoconstitucionalismo (enfoque estándar o principialista y enfoque positivista o garantista), el concepto y los argumentos a favor y en contra de esta corriente. La autora analizará los principales elementos de discusión en el neoconstitucionalismo, prestando especial atención a tres cuestiones controvertidas. En primer lugar, la conexión de la moral y el Derecho; en segundo lugar, el equilibrio de poderes entre legisladores y jueces y, por último, si la doctrina principiológica da lugar a una mayor grado de justicia o si, por el contrario, acaba desembocando en un sistema arbitrario. Por último, se advertirá el peligro de que un neoconstitucionalismo llevado al extremo puede acabar desembocando en un constitucionalismo ético. PALABRAS CLAVEArbitrariedad. Constitucionalismo ético. Neoconstitucionalismo. Poder judicial. Principiología. ABSTRACTThe evolution from a legalist State model to a constitutional one has led to a re-reading of the constitutional text in a neo-constitutional context. The neo-constitutionalist theory opens some questions that will be analyzed, such as the neo-constitutionalist approach (standard, with a principle-based focus, and guarantor, with a positivist bias), the concept and the arguments for and against such trend. The author will analyze the main elements of discussion on neo-constitutionalism, paying particular attention to three controversial issues. Firstly, the connection between moral and law; secondly, the power balance between legislators and judges, and thirdly, if the principle-based doctrine involves a greater degree of justice, or, quite the opposite, is just leading to an arbitrary system. Finally, the author makes a warning, pointing how the neo-constitutionalism, in its extreme, may turn into an ethical constitutionalism. KEYWORDSArbitrariness. Ethical constitutionalism. Judiciary. Neo-constitutionalism. Principle-based theory.
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de la Rasilla del Moral, Ignacio. "The Unsolved Riddle of International Constitutionalism." International Community Law Review 12, no. 1 (2010): 81–110. http://dx.doi.org/10.1163/187197410x12631788215873.
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AbstractThe extremely diverse contributions present in the volume edited by Nicholas Tsagourias, Transnational Constitutionalism: International Law and European Perspectives (Cambridge: Cambridge University Press, 2007, pp. 377) are contextualized through an exploration of some of the different strands of international legal doctrine that have been making use of the constitutionalist vernacular in recent years. These strands include among others, the growth in European Union-related constitutionalist discourse and the emergence of a transnational comparative legal realm at the cross-roads of the European and the international spheres; the historical lineage and the contemporary appeal of the constitutional vernacular in the field of international organizations; and the phenomenon of the fragmentation of international law along with the upholding, in reaction to that fragmentation, of a hierarchy of international legal norms. It also includes an examination of the emergence of alternative vocabularies that sustain a “fragmented/societal” model of constitutionalism on the basis of systems-theory as well as an examination of a constitutionalist value ridden perspective of the international legal order that, in mirroring recent developments, attempts to “restate” a classic teleologically conceived narrative of progress without yet leaving the realm of positivism. This article, which confronts “in fine” the “international community school” with its critics, does not aim to provide a complete deconstructed genealogy of each converging strand of doctrine that one might locate behind the current appeal of constitutionalist talk at the dawn of a post-hegemonic era. Yet it is hoped that it might serve as a reminder of the multifaceted factors that lie behind the contemporary renewal of the international constitutionalist arena and, thus, help to strengthen the latter’s potential as a benchmark for diagnosing the legitimacy deficit(s) of international law.
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Graber, Mark A. "Our (Im)Perfect Constitution." Review of Politics 51, no. 1 (1989): 86–106. http://dx.doi.org/10.1017/s0034670500015874.
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This article explores an attitude which I call perfect constitutionalism. Perfect constitutionalists believe that, properly interpreted, the Constitution requires that our society conform to the best principles of human governance. This belief that the Constitution is nearly flawless not only underlies the so-called fundamental values strand of constitutional thought but also those strands of constitutional argument based on conceptions of the democratic process or the original intentions of the framers. Unfortunately, empirical and theoretical problems result when constitutional theory is reduced to political philosophy. In order to overcome these problems we need to essay a different interpretive approach, one which I call imperfect constitutionalism. Imperfect constitutionalism emphasizes the value of constitutions, even ones that might be improved in many ways.
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HOUGHTON, RUTH, and AOIFE O’DONOGHUE. "‘Ourworld’: A feminist approach to global constitutionalism." Global Constitutionalism 9, no. 1 (October 16, 2019): 38–75. http://dx.doi.org/10.1017/s2045381719000273.
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Abstract:Global constitutionalism offers a utopian picture of the future of international law. Its advocates suggest a governance system is emergent that will fill the gaps in legitimacy, democracy and the rule of law present in international law. Speculation about the future of international law is shaped, partly at least, by global constitutionalism aspiring to create a better global legal order, by filling these legitimacy gaps with both normative and procedural constitutionalism. But this raises the question ‘better for whom’? Feminist theory has challenged the foundations of both international law and constitutionalism; demonstrating that the design of normative structures accommodates and sustains prevailing patriarchal forms that leave little room for alternative accounts or voices. Both international and constitutional law’s structures support the status quo and are resistant to critical and feminist voices. The question is whether it is possible for constitutionalism to change international law in ways that will open it up to alternate possibilities. Building on a seven-point manifesto of feminist constitutionalism, previously proffered by the authors, which inculcated feminist concerns into global constitutionalism, this article offers an alternative starting point: feminist science fiction. Feminist utopian tracts such as Charlotte Perkins Gilman’s Herland and Ursula K Le Guin’s The Left Hand of Darkness offer valuable lessons for global constitutionalist discourses. The article uses feminist utopias in science fiction to better understand how to dismantle hierarchical structures, how to build feminist societies, and how to find approaches to governance not predicated on patriarchy. It does so by focusing on feminist alternatives for constructing communities, for understanding constituent power and constituent moments, and dismantling manifestations of the public/private divide. This article demonstrates that reading feminist utopian science fiction facilitates the reimagining of global constitutionalism.
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PETERS, ANNE. "Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures." Leiden Journal of International Law 19, no. 3 (October 2006): 579–610. http://dx.doi.org/10.1017/s0922156506003487.
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The article conceives international (or global) constitutionalism as a legal argument which recommends and strengthens efforts (legal and political) to compensate for ongoing de-constitutionalization on the domestic level. Although the notions ‘international constitution’ and ‘international constitutionalism’ have in recent years served as buzzwords in various discourses, the many meanings of those concepts have not yet been fully explored and disentangled. This paper suggests a specific understanding of those concepts. It highlights various aspects and elements of micro- and macro-constitutionalization in international law, and identifies anti-constitutionalist trends. On this basis, the paper finds that, although no international constitution in a formal sense exists, fundamental norms in the international legal order do fulfil constitutional functions. Because those norms can reasonably be qualified as having a constitutional quality, they may not be summarily discarded in the event of a conflict with domestic constitutional law. Because the relevant norms form a transnational constitutional network, and cannot be aligned in an abstract hierarchy, conflict resolution requires a balancing of interests in concrete cases. Finally, because constitutionalism historically and prescriptively means asking for a legitimate constitution, a constitutionalist reading of the international legal order provokes the question of its legitimacy. This question is pressing, because state sovereignty and consent are – on good grounds – no longer accepted as the sole source of legitimacy of international law. International constitutionalism – as understood in this paper – does not ask for state-like forms of legitimacy of a world government, but stimulates the search for new mechanisms to strengthen the legitimacy of global governance.
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Klaaren, Jonathan. "A Comment from a South African Perspective on Directive and Transformative Constitutionalism in Comparative Constitutional Law." Verfassung in Recht und Übersee 56, no. 3 (2023): 602–10. http://dx.doi.org/10.5771/0506-7286-2023-3-602.
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This special issue demonstrates the importance of attending to the reception of constitutional concepts in overlapping transnational and local contexts and, for Africans including South Africans, the importance of attending to the economic structures embedded in constitutional political texts. The most significant difference between directive constitutionalism and transformative constitutionalism is the constitutional audience or actor the concepts are primarily addressing – the legislature or the judiciary. This significant distinction reveals a fault-line within the South African development of transformative constitutionalism. This comment begins to explore how the focus within transformative constitutionalism on the judiciary – judges as audience – came to be. During the negotiations/compromise to end apartheid and to establish a democratic constitution, the actors were at times various times speaking to a future audience of legislators and at other times were speaking to an audience of judges. One early 1990 South African constitutional analysis focused on the Constitution to be drafted as a document not only aimed at legislators but indeed embodying constitutional directives in directive constitutionalism’s sense of the term. Two years later, the most influential writing on directive principles primarily viewed the idea through the then-ongoing debate over the timing and content of the South African Bill of Rights to be enforced by the judiciary. Within the broad church of transformative constitutionalism in South Africa, a democratic tradition of constitutionalism has persisted since the years of the late 1980s and early 1990s but is probably best described as minority or contesting. South African constitutional theory could use a bit less transformative and a bit more directive constitutionalism.
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Byelov, D., and M. Martseliak. "Progressivist constitutionalism of Mykhailo Drahomanov." Uzhhorod National University Herald. Series: Law 1, no. 74 (January 31, 2023): 59–68. http://dx.doi.org/10.24144/2307-3322.2022.74.9.
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The authors point out that today it is necessary to reconsider the political, philosophical and legal opinion of the leading theorist of Ukrainian constitutionalism of the second half of the 19th century. Mykhailo Drahomanov and the current strengthening of the progressivism movement in the USA, Latin America and Europe, which, probably, can lead to similar trends in Ukraine and to the revival of the current of progressivism in Ukrainian constitutionalism in new circumstances. That is why the article is devoted to the study of the constitutionalist concept of Mykhailo Drahomanov. The paper analyzes the political and philosophical sources and characteristic features of the political and legal thought of an outstanding Ukrainian public and political figure of the second half of the 19th century. A conclusion is made about the evolutionary-socialist (progressive) nature of his constitutional thought.
The authors come to the conclusion that M. Drahomanov was indeed faithful to the liberal-democratic values of freedom of speech, thought, secularization, democracy, local self-government, but at the same time he did not share the value of freedom of entrepreneurship and private property, he did not understand the fundamental relationship between political freedom, according to which he supported, and the market economy, which he considered more of a disaster than a guarantee of constitutionalism. The dominance of the ideology of political freedom in the "Foundations Project" does not reflect the essence of the author's constitutionalism, it is a significant and integral part of it, which serves as a prologue to the implementation of other foundations of building the society dreamed by M. Drahomanov. His ideal of social organization was based on cosmopolitanism and democratic evolutionary socialism, which determines the specificity of this model of constitutionalism, its exclusivity, since in the future constitutionalist thought in Ukraine became more and more polarized - to the left, towards Marxism and populism, to the right - towards conservatism and nationalism. Therefore, M. Drahomanov became the founder of the left tradition in Ukrainian constitutionalism and the only representative of the progressivist trend in this tradition, that is, the trend that represented the evolutionary-democratic wing in the socialist movement and philosophy, which today is gaining strength in the person of such politicians as Bernie Sanders, Alexandria Ocasio- Cortes in the USA or Jean-Luc Mélenchon in France. Given the popularity of progressivism in the world and in Ukraine, Drahomanov's ideas can flourish, reborn in circumstances more favorable to this ideology.
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Leslie, Justin. "Vindicating common law constitutionalism." Legal Studies 30, no. 2 (June 2010): 301–23. http://dx.doi.org/10.1111/j.1748-121x.2010.00157.x.
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This paper questions Thomas Poole's assertion that judicial review is not ‘value orientated’ (see (2005) 25(1) Legal Studies 146). In doing so, the paper seeks to demonstrate that the account of judicial review given by common law constitutionalist writers provides an accurate description of the approach taken by the courts in the last 10 years. The paper first considers Poole's objections to common law constitutionalism. It then proceeds to assess the writings of those relied upon by Poole against the case-law of the last decade. This is done by reference to three ‘themes’– the basis of judicial review; a substantive rule of law; fundamental values and constitutional rights. The paper concludes by suggesting that when a thematic approach to the theory is adopted, the case-law of the last decade provides vindication for the main tenets of common law constitutionalism.
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Kim, Sungmoon. "Confucian Constitutionalism: Mencius and Xunzi on Virtue, Ritual, and Royal Transmission." Review of Politics 73, no. 3 (2011): 371–99. http://dx.doi.org/10.1017/s003467051100341x.
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AbstractBy examining Xunzi's and Mencius's contrary reactions toward royal transmission by individual merit or “abdication” (shanrang 禪讓), this article attempts to reveal the distinctive features of their respective political theories, which I reconstruct in terms of lizhi constitutionalism and dezhi constitutionalism. Resisting the conventional tendency to capture Mencius's and Xunzi's political theories in such dichotomous terms as idealism and realism, this paper draws attention to the complex mixture of idealism and realism found in both thinkers' constitutional political theories and identifies such common ground in terms of “Confucian constitutionalism.” This paper presents Mencius's idealistic defense of abdication and his realistic resolution of the constitutional crisis latent in it, then it examines Xunzi's refutation of the three conventional rationalizations of abdication, and it concludes by recapitulating the common Confucian constitutionalist ground that Mencius and Xunzi shared and discussing its implications for the study of constitutional theory.
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Barnard-Naudé, Jaco. "Decolonising the Real: Transformative Constitutionalism and the Unconscious." Afrika Focus 36, no. 1 (June 2023): 111–42. http://dx.doi.org/10.1163/2031-356x-20230107.
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Abstract “Transformative constitutionalism” has been suggested as a viable post-liberal alternative to juristic interpretation after apartheid. The article considers the role of transformative constitutionalism in the decolonisation of the Real. It suggests that colonialism denigrates the unconscious of the colonised through an instrumentalisation by way of which it is incorporated as a critical part of the system of colonialism. Transformative constitutionalism’s preoccupation with the “gaps, conflicts and ambiguities” of language positions it in a way conducive to the liberation of the colonised’s unconscious by way of what Jacques Lacan called “separation”. I argue that despite transformative constitutionalism’s aversion to violence, its acts of interpretation take place in a field of what Cover called “pain and death”. Such interpretations are thus necessarily acts of violence not within, but against, the colonial Symbolic, and so they can help to facilitate acts through which the Real can at last become decolonised.
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Jiménez Ramírez, Milton César. "Weak Procedural Constitutionalism. The Judicial Process as Legitimacy of Judicial Review." ICL Journal 18, no. 1 (March 1, 2024): 59–76. http://dx.doi.org/10.1515/icl-2023-0032.
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Abstract This paper proposes a synthesis that renders democratic principles compatible with the preservation of judicial control of constitutionality. This has been mediated by what I have called ‘weak procedural constitutionalism’, a methodology through which constitutional conflicts are debated in the legislature and among the citizenry as the real holders of the final say in society, with judicial activity focused on an intermediate say and the promotion of subsequent social deliberation. The judicial process thus becomes a public dialogical procedure susceptible to intervention by citizens and capable of generating public information processes facilitating accountability. The constant quest for instrumentalities that increase the democratic legitimacy of constitutional courts is an existential necessity. Only through real opportunities for dialogue and citizen participation in the decision-making process can judicial review be made democratically palatable. This requires that both judges and legislators play an intermediate rather than primary role, one in which democratically elected legislatures enjoy a high degree of legitimacy in adopting decisions, in juxtaposition with the derivative legitimacy appurtenant to constitutional courts. The premise for the exercise of what I denominate as weak constitutionality control, or the hypothesis for a weak procedural constitutionalism, is a possible synthesis of the tension between constitutionalism and democracy, with emphasis on the Colombian case.
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Martin, Vanessa. "Trends in the Shī'ī Response to Constitutionalist Ideology in Iran." Journal of the Royal Asiatic Society 2, no. 3 (November 1992): 347–61. http://dx.doi.org/10.1017/s1356186300002996.
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Since the Shī'ī response to constitutionalist notions of government is potentially a very large subject, for the purposes of this discussion Shī'ī will be taken to mean the members of the orthodox 'ulamā, those most committed to the sharī'a and learned in its precepts. Whilst even within this group there is a wide diversity of opinion, it is hoped that, by looking at works written over a longer period, the discussion will show that the response by a particular ‘ālim to constitutionalism is to some extent influenced by the political conditions prevailing at the time of writing. These form a factor together with the restrictions imposed by the sharī'a in shaping the views of particular writers. The ideology under consideration is constitutionalism, but it will be observed that for a large part the subject matter treated consists of ideas such as representation, consultation, legislation, freedom and equality, which are allied to the constitutionalist theory of government, rather than the complete theory itself.
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Kenny, David, and Conor Casey. "Shadow constitutional review: The dark side of pre-enactment political review in Ireland and Japan." International Journal of Constitutional Law 18, no. 1 (January 2020): 51–77. http://dx.doi.org/10.1093/icon/moaa006.
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Abstract Political constitutionalism is a major area of inquiry in contemporary constitutional discourse. A significant and increasingly central aspect of political constitutionalism is pre-enactment political review: laws being reviewed for constitutionality or rights compliance by parliament or the executive. This institution is said to be a good augmentation of, or even replacement for, the institution of judicial review, and it is said to bring with it a host of normative benefits. In this article, we wish to highlight an under-explored dark side to pre-enactment review. By undertaking a comparative analysis of functional pre-enactment review in several similar jurisdictions—Canada, New Zealand, and the UK—we contrast these systems, and the ordinary failings they display, with the much deeper problems of pre-enactment review in Ireland and Japan. These latter jurisdictions, we argue, not only fail to instantiate the benefits of pre-enactment review but in fact show that, in the right circumstances, pre-enactment review can have negative effects that are antithetical to the goals and values of political constitutionalism. We call this phenomenon “shadow constitutional review,” and suggest that it adds a layer of complexity and nuance to contemporary discussions of political constitutionalism.
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Zuckert, Michael, and Felix Valenzuela. "CONSTITUTIONALISM IN THE AGE OF TERROR." Social Philosophy and Policy 28, no. 1 (November 30, 2010): 72–114. http://dx.doi.org/10.1017/s0265052510000063.
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AbstractThe threat of terrorism once again raises some of the classic questions about constitutionalism: is it possible for constitutions to do what they aim to do—channel and control political power in such a way as to make it safe and beneficent for those under its rule but also competent to govern? Does not terrorism reraise the Schmittian problem of “the exception”, i.e., the situation of emergency that necessarily escapes all constitutional limitations? Although they did not face the problem of terrorism as we know it, the American founders developed three different models of constitutionalism, embodying three different ways of responding to emergent circumstances and yet remaining bound to the constitutionalist aspiration. We develop the main outlines of the three models both conceptually and historically and show how they continue to be relevant to current discussions of constitutionalism in the age of terror. Finally, we make a tentative effort to judge which of the three models is most able to do what constitutions should do in difficult times.
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HajianPour, Hamid, and Mehdi Khaksarkahangi. "The Role and Impact of the Bazaar of Tehran on the First Constitutional Parliament." Journal of Politics and Law 10, no. 4 (August 30, 2017): 239. http://dx.doi.org/10.5539/jpl.v10n4p239.
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According to the Iranian Constitutional Constitution, the parliament was considered as the foundation of Constitutionalism and was supposed to realize the most important goal of the Constitutionalists, namely controlling the absolute power of the Shah through defining a recognized law and supervising its enforcement. Such a process took place in Iran and Constitutional Revolution was a product of it. The present paper is trying to investigate the role and impacts of Tehran’s Bazaar (market) on the first Constitutionalist parliament. In doing so, after fully describing the context of the study, the required data is gathered through descriptive – analytical approach. The findings of this study show that members of the Tehran’s Bazaar is in line with the different social groups, by pressuring the Shah of Iran forced him to acknowledge their demands and played a considerable role in establishing the first Constitutional parliament of the country.
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Czarnota, Adam. "Populist constitutionalism or new constitutionalism?" Krytyka Prawa 11, no. 1 (March 15, 2019): 43–55. http://dx.doi.org/10.7206/kp.2080-1084.274.
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Crocker, Thomas P., and Michael P. Hodges. "CONSTITUTIONS, RULE FOLLOWING, AND THE CRISIS OF CONSTRAINT." Legal Theory 24, no. 1 (March 2018): 3–39. http://dx.doi.org/10.1017/s1352325218000046.
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ABSTRACTWe diagnose a paradox said to exist for liberal constitutionalism. Constitutional rules seemed to fail to constrain in times of expediency or under conditions of necessity, occasions when constraints might be most needed. From this failure, a form of rule skepticism seems to undermine liberal constitutionalism's claims to govern and constrain official behavior, especially during times of emergency. On closer inspection, we identify three different forms this purported rule skepticism might take: contestation over rule applications, skepticism about rule determinations, or rule cynicism. We resolve the apparent paradox by demonstrating how rule skepticism is either unwarranted or cynically deployed, but in neither case raises a legitimate challenge to liberal constitutionalism.
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Poole, Thomas. "Questioning common law constitutionalism." Legal Studies 25, no. 1 (March 2005): 142–63. http://dx.doi.org/10.1111/j.1748-121x.2005.tb00274.x.
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This article takes a critical look at common law constitutionalism, a theory which has received much support in public law circles of late. The first part of the article elaborates the common law constitutionalist position. The second part of the article assesses the cogency of the theory in terms of its ability to accommodate certain paradigmatic features of judicial review. The article concludes with the suggestion that public lawyers, in their forays into theory, might do better to look to the special role that judicial review plays in assessing the legitimacy of governmental action rather than its supposed connection with ‘fundamental principles of morality’.
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Belov, Martin. "The Functions of Constitutional Identity Performed in the Context of Constitutionalization of the EU Order and Europeanization of the Legal Orders of EU Member States." Perspectives on Federalism 9, no. 2 (November 1, 2017): E—72—E—97. http://dx.doi.org/10.1515/pof-2017-0010.
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Abstract This article provides an analysis of the functions performed by constitutional identity in constitutional discourses of both the EU and its Member States, in the context of emerging post-Westphalian and supranational constitutionalism. The analysis tries to demonstrate that constitutional identity may serve as one of the key normative ideologies, legitimation strategies and ordering schemes of EU constitutionalism. It reasserts through functional analysis the suitability of constitutional identity for organizing and explaining multiple constitutional orders in a non-hierarchical and inclusive way. The article is based on a socio-legal approach, deliberately avoiding the predominant legal realist and legal positivist discourses. This is due to the fact that a functional analysis presupposes admitting the existence of ideal, legal and socio-legal dimensions of constitutional concepts and institutions and the taking into account of social implications produced by their functioning. The article deliberately takes a constitutionalist stance on the EU and the EU integration. It is focused on the contribution of constitutional identity for the further constitutionalization of the EU from a socio-political and constitutionalist perspective.
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Campdelacreu, Marta. "Constitutionalism, Cheap Indeterminism and the Grounding Problem." Metaphysica 19, no. 1 (March 26, 2018): 19–37. http://dx.doi.org/10.1515/mp-2018-0001.
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Abstract Thomas Sattig has argued recently that constitutionalism renders determinism about the actual world false, just in virtue of ordinary facts about ordinary middle-sized material objects. However, it seems that, if determinism about the actual world is false, this should be so for reasons of physics rather than in virtue of ordinary facts about ordinary objects. This is the problem of cheap indeterminism. Sattig also claims, however, that constitutionalists can solve this problem if they abandon an attractive and promising solution to the classical grounding problem affecting their view. In this paper I argue that, against his claims, constitutionalists can solve the problem of cheap indeterminism and the grounding problem simultaneously.
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Hardin, Charles M. "Constitutionalism and Bureaucracy A Commentary on Herman Belz's Article." News for Teachers of Political Science 46 (1985): 16–19. http://dx.doi.org/10.1017/s0197901900001823.
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The spring 1984 issue of APSA's NEWS for Teachers of Political Science contains Herman Belz's provocative piece on “Constitutionalism and Bureaucracy in the 1980's.” His definitions of both terms are unsatisfactory. His concept of constitutionalism is anemic. It fails to recognize that governments must have some characteristics of Leviathan: they must be large and formidable. To constitutionalize such governments is proportionately difficult. In the United States the difficulty is greatly aggravated by the bureaucracies which the separation of powers fosters that tend to fragment government into quasi-independent power blocks. Nor are these bureaucracies mere aggregations of civil servants. They typically include political administrators, veteran legislators, and experienced group leaders. Let me turn first to Professor Belz's argument.
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Belz, Herman. "Abraham Lincoln and American Constitutionalism." Review of Politics 50, no. 2 (1988): 169–97. http://dx.doi.org/10.1017/s0034670500015631.
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As a contribution to scholarly discussion of Lincoln's place in the American political tradition, this article examines his conception of constitutionalism. Controversy has focused recently on whether Lincoln acted in accordance with the purposes and ideas of the framers, or whether as a wartime president he rejected the constitutionalism of the Founding in favor of a pragmatic, instrumentalist style of leadership that in effect created an organic and unwritten constitution. It has also been suggested that Lincoln's conception of fundamental law can be described as a theory of constitutional aspiration. The article rejects the latter two points of view and argues that Lincoln adhered to the written Constitution of the framers — its forms, procedures, principles, and spirit — and was guided by it in political action aimed at achieving the ideals asserted in the Declaration of Independence. Prudent and practical in his statesmanship, Lincoln possessed in himself and inculcated in the people, constitutionalist conviction that regarded the preservation of republican self-government as the nation's defining and paramount purpose.
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Goldoni, Marco, and Christopher McCorkindale. "A Note From the Editors: The State of the Political Constitution." German Law Journal 14, no. 12 (December 1, 2013): 2103–9. http://dx.doi.org/10.1017/s2071832200002686.
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The revival of the political constitution has come about in parallel with two developments, one in constitutional practice and the other in political theory. With regard to the former, the political constitution has been seen as something of a bulwark against the rise of legal (or judicial, or common law) constitutionalism. The seeming hegemony of this latter model of constitutionalism among contemporary lawyers and political scientists has produced from (so-called) political constitutionalists a reaction against the delegation of important decisions to non-political institutions and an obsessively court-centered scholarship. Perceiving this shift in focus from political to legal institutions to be the very antithesis of the traditional Commonwealth (more particularly, of the United Kingdom's parliamentary) model of constitutionalism, and, more broadly, to be an affront to democratic sensibilities, the notion of the political constitution was retrieved and defended in a seminal article in the 1979 edition of the Modern Law Review, written (though first delivered in his Chorley Lecture the previous year) by the late John Griffith. More recently, in the work of Adam Tomkins, Richard Bellamy, and Grégoire Webber and Graham Gee, a normative interpretation has been lent to Griffith's thesis so as to provide a full-fledged constitutionaltheorycapable of standing as an alternative to the liberal-legal paradigm—a turn, one might say, from the political constitution to political constitutionalism.
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Krivenko, Ekaterina Yahyaoui. "Feminism, Modern Philosophy and the Future of Legitimacy of International Constitutionalism." International Community Law Review 11, no. 2 (2009): 219–45. http://dx.doi.org/10.1163/187197309x433348.
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AbstractInternational constitutionalism relates to processes of limiting traditionally unrestricted powers of states as ultimate subjects, law-makers and law-enforcers of international law. Human rights occupy a central, but very confusing and confused role in the theorisation of international constitutionalism. If feminist scholars have criticised the inadequacies, shortcomings and gaps of international law of human rights at least since 1991, the doctrine of international law theorising constitutionalisation of international law until now has remained blind to these critiques idealising human rights and often using them as the ultimate legitimating factor. Thus, legitimacy and legality become confused and the distinction between them blurred in the doctrine of international constitutionalism. This in turn creates a danger of failure of the constitutionalists project itself, as it will serve to reinforce existing inadequacies and gaps in human rights protection. To illustrate this argument, I discuss some examples related to the protection of women's and migrants' rights. In order to avoid this dangerous development, I argue that international lawyers theorising international constitutionalism shall adopt an adequate, inclusive notion of legitimacy. In order to develop this adequate understanding of legitimacy, they should first take seriously feminist and other critiques of international human rights law and international law more generally. In the final parts of this article I develop my own more detailed proposals on the future of legitimacy and international constitutionalism. In doing so, I draw on the 'self-correcting learning process' developed in the writings of Jürgen Habermas, 'democracy to come' and more general views on the nature of sovereignty and human rights expressed by Jacques Derrida, as well as Levinasian 'responsibility-to-and-for-the-Other'.
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O’Donoghue, Aoife. "No tyranny for failing Donald Trump – sad! Law, constitutionalism and tyranny in the twenty-first century." Northern Ireland Legal Quarterly 72, no. 3 (December 17, 2021): 479–509. http://dx.doi.org/10.53386/nilq.v72i3.978.
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Donald Trump’s presidency resulted in several accusations of tyrannical intent. The end of his term of office, and particularly the rioting of 6 January 2021 and the denial of the presidential election results, did little to dispel those accusations. Tyranny, while perhaps not fashionable as a basis of analysis, has a long-intertwined relationship with law and constitutionalism. This article uses Donald Trump’s presidency to consider the relationships between tyranny, tyrannicide, law and constitutionalism. The article considers law and constitutionalism’s role in both preventing and advancing the advent of tyranny and examines their limitations in stopping tyrannical intent. Public contestation is put forward as an equally significant bulwark against the advent of tyranny, but also a space under tremendous pressure during Donald Trump’s presidency.
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O'Donoghue, Aoife. "No tyranny for failing Donald Trump – sad! Law, constitutionalism and tyranny in the twenty-first century." Northern Ireland Legal Quarterly 72, AD1 (July 29, 2021): 33–62. http://dx.doi.org/10.53386/nilq.v72iad1.935.
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Donald Trump’s presidency resulted in several accusations of tyrannical intent. The end of his term of office, and particularly the rioting of 6 January 2021 and the denial of the presidential election results, did little to dispel those accusations. Tyranny, while perhaps not fashionable as a basis of analysis, has a long-intertwined relationship with law and constitutionalism. This article uses Donald Trump’s presidency to consider the relationships between tyranny, tyrannicide, law and constitutionalism. The article considers law and constitutionalism’s role in both preventing and advancing the advent of tyranny and examines their limitations in stopping tyrannical intent. Public contestation is put forward as an equally significant bulwark against the advent of tyranny, but also a space under tremendous pressure during Donald Trump’s presidency.
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Medushevskii, Andrei N. "Global Constitutionalism: the Theory of the Global Legal Order or a New Political Ideology?" Historia provinciae – the journal of regional history 4, no. 3 (2020): 974–1019. http://dx.doi.org/10.23859/2587-8344-2020-4-3-8.
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The idea of the global legal order, accompanying humanity throughout the whole history of its existence, has acquired practical relevance in the recent period as a tool for resolving the contradictions of globalization: world integration and regional disintegration. The article analyses the results of the international discussion on global constitutionalism; summarizes the arguments for and against its implementation put forward by international lawyers, constitutionalists, and politicians; reconstructs the strategies of constitutionalization of the world order. Despite the prevailing descriptive legal trend, the author defends the understanding of global constitutionalism as an ethical minimum, ideology and law policy, designed to ensure the inviolability of the very core of transnational legal guarantees of society in the face of the challenges of its radical transformation.
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KUO, MING-SUNG. "Politics and constitutional jurisgenesis: A cautionary note on political constitutionalism." Global Constitutionalism 7, no. 1 (March 2018): 75–111. http://dx.doi.org/10.1017/s2045381718000047.
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Abstract:This article aims to provide an alternative account of political constitutionalism by situating it in a broader process of constitutional politics than the traditional court vs parliament debate has suggested. Drawing upon Robert Cover’s distinction between the jurispathic and the jurisgenerative constitution, I argue that parliamentary decision-making is not necessarily more congenial to a jurisgenerative constitutional order than judicial review as political constitutionalists contend. I trace the jurispathic character of current scholarship on political constitutionalism to the presupposition of institutional sovereignty in a narrow understanding of constitutional politics, which its defenders share in common with the supporters of judicial supremacy. To move towards a robust version of non-court-centred jurisgenerative constitutionalism, which I call constitutional jurisgenesis, we need to rethink the place of politics in a constitutional order. From Cover’s idea of constitutionalnomosI take two further lessons for this new understanding of constitutional politics. First, constitutional theory should reconsider the role of institutional sovereignty in the relationship between law and politics in constitutional orders. Second, to engage the people in constitutional politics, we need to shift attention from the popular sovereignty-centred debate to constitutional narratives, which are oriented towardsnomos-building.
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TUSHNET, MARK. "The globalisation of constitutional law as a weakly neo-liberal project." Global Constitutionalism 8, no. 1 (March 2019): 29–39. http://dx.doi.org/10.1017/s204538171800028x.
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Abstract:An international consensus on the content of domestic constitutional law has structural ‘rights’-related components. The former requires roughly democratic systems for choosing representatives/executives. The consensus favours some forms of judicialised constitutional review, though the precise form is open to choice. The rights component includes a standard list of ‘core’ civil rights, including in this category equality along a number of dimensions – though not class or income. The rights-component is fundamentally neo-liberal. This is clearest in connection with ‘second generation’ social and economic rights, which – the consensus holds – can be recognised in a constitution but should not be vigorously enforceable (in systems where there is judicial enforcement of constitutional rights). The rights of free expression and political association must be specified in ways that allow political challenges to be mounted against efforts – including legislative programmes of political parties that control governments – to resist the neo-liberal policy agenda. Departures from this consensus are described as departures, not from ‘neo-liberal’ or even ‘liberal’ constitutionalism, but as departures from constitutionalism as such. We could ‘thin down’ the idea of constitutionalism quite a bit without abandoning constitutionalism’s core commitment to avoiding arbitrary government action.