V Franciji s v tem obdobju spremenili ustavo. Vanjo so bili vnešeni popolna prepoved smrtne kazni ter nekaj popravkov, ki jih je zahtevala ratifikacija Lizbonske pogodbe. Spremenjena je bila tudi ureditev odgovornosti predsednika republike. Poleg tega je francoski ustavni svet v postopku presoje ustavnosti zakonov podal nekaj opaznih odločitev. V njih je z uporabo tehnike ciljev ustavne veljave večinoma omogočil takšne razlage ustave in zakonov, ki... Preprečevanje kriminalitete. Varnostno pridržanje. Nadzor imigracije. Povratništvo. Mladoletniška kriminaliteta.

Este artículo presenta a Weber y Habermas como los umbrales o polos de una modernidad que tiene al progreso como horizonte teórico-práctico. El diagnóstico weberiano sobre la modernidad y su proceso de desencantamiento del mundo y la injustificada reducción de la actividad racional a una actividad utilitario-estratégica desprovista de su carácter veritativo y de su orientación valórica, Habermas la utiliza para justificar su propuesta teórico-crítica respecto a la modernidad y la "paradoja de la racionalización", distinguiendo "sistema" y "mundo vital". Aquí (...) "desencantamiento del mundo" y "consenso del proyecto de lamodernidad", se encuentranThis article presents Weber and Habermas like the thresholds or poles of a modernity that has to the progress as theoretical- practical horizon. The diagnosis weberiano on the modernity and his process of disenchantment of the world and the unjustified reduction of the rational activity to a utilitarian-strategic activity devoid of his character of truth, Habermas uses to justify his theoretical-critical offerwith regard to themodernity and the "paradox of the rationalization", distinguishing "system" and "vital world". Here "disenchantment of the world" and "consensus of the project of the modernity", they are. (shrink)

Societies function on the basis of rules. These rules, rather like the rules of the road, coordinate the activities of individuals who have a variety of goals and purposes. Whether the rules work well or ill, and how they can be made to work better, is a matter of major concern. Appropriately interpreted, the working of social rules is also the central subject matter of modern political economy. This book is about rules - what they are, how they work, and (...) how they can be properly analysed. The authors' objective is to understand the workings of alternative political institutions so that choices among such institutions can be more fully informed. Thus, broadly defined, the methodology of constitutional political economy is the subject matter of The Reason of Rules. The authors have examined how rules for political order work, how such rules might be chosen, and how normative criteria for such choices might be established. (shrink)

Recent work in democratic theory has seriously questioned the dominant pluralist model of self-government and recommended the adoption of a ‘deliberative’ conception of constitutional democracy. With this shift in basic political theory, the objection to judicial review, often voiced in jurisprudential theory, as an anti-democratic instance of paternalism merits another look. This paper argues that the significant differences between four recent theories of constitutional review—put forward by Ely, Perry, Dworkin, and Habermas—are best understood as arising from different positions (...) taken on two cross-cutting distinctions that have been inherited from Locke and Rousseau: democratic processes as aggregative versus deliberative, and democratic legitimacy as substantive versus procedural. A reconstruction and critical evaluation of the four theories of judicial review, with special emphasis on their underlying theories of constitutional democracy, yields a set of criteria for adequate accounts of democratic processes, democratic legitimacy, and their relation to judicial review. I argue that the best understanding of constitutional review is yielded by Habermas’s theory because it combines a conception of popular sovereignty in terms of the collective process of citizens’ deliberative attempt to institutionalize the general will through law, with a resolutely proceduralist conception of democratic legitimacy. However, I also argue that some of the specific proposals Habermas makes concerning the institutionalization of constitutional review in an independent, non-accountable judiciary and the scope of duties for such a body need to be modified in the light of his overriding commitments to participatory deliberative processes and procedural legitimacy. (shrink)

This chapter continues the institutional design process started in the previous, turning to four different types of modification in the system of constitutional review. I consider, in turn, the establishment of self-review panels in the legislative and executive branches of national governments (A), various mechanisms for inter-branch debate and decisional dispersal concerning constitutional elaboration (B), easing constitutional amendability requirements in overly obdurate systems (C), and finally establishing civic constitutional fora as replacements of traditional amendment procedures (D). (...) In each case the proposals are motivated by the problems of judicial review I identified in the previous chapter, and their design is oriented to the fullest realization of the six assessment values I specified there. I assume throughout that some form of judicial review is extant in the political system, and for the most part I assume the concentrated system with specialized constitutional courts that I argued for there. Where something important hangs on the difference between a concentrated and diffuse system of constitutional courts for the design of these other mechanisms for constitutional elaboration, I take that up in the discussion. (shrink)

Balancing implies a comparison among goods, values, principles and rights that cannot be ranked on a single scale of measurement, ie there is no unequivocal measuring unit applicable to all of them. In such situations, it is common to state that one has to compare incommensurable things. Indeed, this issue has been mentioned by several authors as a strong reason in favour of abandoning balancing (and proportionality) as a rational form of judicial argumentation and decision-making. My article aims at arguing (...) that this objection is based on fallacious assumptions concerning the relations among three concepts: incommensurability, incomparability and balancing. Initially, what is at stake is the analysis of the connection between comparing values (or principles) and commensurability. The results of this initial analysis were then used to provide greater analytical strength to the specific debate on balancing and comparing rights in order to show that incommensurability does not imply incomparability and that rational decisions are possible even when incommensurable values are at stake. Since balancing (and proportionality) implies comparisons, and since constitutional principles are doubtlessly incommensurable (for there is no common metric to measure them), arguing for the comparability of incommensurable principles is an unavoidable step if one aims at demonstrating that balancing may be a rational procedure after all. (shrink)

In the early 1990s Israel underwent a so-called constitutional revolution. According to the champions of this revolution, Israel has essentially become, as a result of this momentous event, a constitutional democracy, upholding individual freedom and liberties and allowing for judicial review of parliamentary legislation. Despite the congratulatory rhetoric, it is generally agreed upon that the constitution is still in need of some essential supplements before Israel can qualify as a fully constitutional democracy. The main question addressed in (...) this paper is the following: is it ‘reasonable’ that Israel take the further necessary steps that qualify it as a fully constitutional democracy? The doubts raised in this regard stem from the very concerns that lead political philosophers (mainly Rawls) to stress the unique value of liberal democracy. As they argue, liberal democracy provides deeply divided societies with the best means to secure their legitimacy and political stability. Israel's political realities, I argue, defy this claim. Moreover, Israel's political realities may also carry a valuable lesson to other states, even to seemingly robust liberal democracies. It is not the purpose of the paper, of course, to argue that Israel's existing rule of government should be embraced by other states – far from that. Israel should undergo some radical changes so that it can protect the rights and interests of all its citizens. Yet, to achieve this purpose, it should transcend, I will argue, liberal democracy. As matters stand, simply strengthening its liberal character, Israel's political system may be exposed to a growing challenge to its legitimacy and stability. It should, therefore, reject liberal democracy and especially the principle of neutrality that is intimately connected with a liberal rule of government and embrace, instead, the ideal of multicultural democracy. This ideal, I argue, is better equipped to answer the need of deeply divided societies to secure their legitimacy and stability. (shrink)

Even though he is mainly known for his concept of constituent power, Sieyès was one of the first constitutional theorists to ask for a guardian of the constitution which closely resembles contemporary constitutional courts. This article reconstructs the main tenets of his proposal, puts them in the larger context of his constitutional theory and then assesses the constitutional nature and functions of this institution. The judgment is mixed: as an organ, Sieyès’ constitutional jury is a (...) hybrid institution, neither a real third chamber nor a full-fledged constitutional court; however, its functions not only are a clear anticipation of the control of constitutionality, but are also intended to tame constituent power and to protect the rights of man in case of legal gaps. (shrink)

The II. constitutional period is a period of renewal in many areas. Political, social and educational changes also had influences in the field of religious education. One of the examples of these changes is the ʻAmelī I҆lmiḥal textbook written by Halim Sabit (DOD. 1946) in five volumes for both teachers and student. This study particularly aims to assess this textbook in terms of religious education. Accordingly, the following questions are addressed: “What are the topics covered in the ilmihal books (...) written for students and teachers? Is the content of the subjects taught appropriate for the religious education? Which methods, techniques, and essential matters are discussed in the ilmihal books for teachers? As having first grade elementary school textbooks for both teachers and students, the research is made just based on these books. Data were collected through the examination of the document, and the texts in Ottoman Turkish were transcribed into Turkish. Content analysis method was used in the analysis of the data. By examining both books, this study shows that belief, worship, and social issues were taught, and prayers and sūras were addressed as need to be memorized knowledge in the book. The books included inappropriate contents for first grade children regarding the belief issues such as fear of Allah, hell, and the hereafter. Summary: Education I҅lmiḥal, occupies an important place in the history of Islamic religious education. According to the religion of both adults and children to learn the principles of faith and worship, it is aimed to shape the daily life. In this context, for example, during the Ottoman period, In the period of II. Mahmut, boys were required to attend the primary school. Thus, it was ensured that children could learn I҅lmiḥal and Islamic sharia properly. Children are taught alif ba for Qurʾān readings in primary schools, as simple as required by religious duties, writing skills have been acquired and the four processing rules are memorized. The II. constitutional period is a period of renewal in many areas. Extreme innovative thinking is also reflected in education. Especially after the Balkan wars, the idea that the collapsing state would be saved through education was dominant. For the first time, a higher education institution for girls and a kindergarten for young children were opened. By recognizing the importance of pedagogy knowledge in teaching, the students have switched to a system where they can search for observation and experiment. Innovations in educational methods have started to be seen. It was seriously opposed to memorization, and the question and answer was seen as old methods. Instead, it was proposed to use sightseeing observation and discovery. Political, social and educational changes are also reflected in the field of religious education. As a reflection of the newly introduced methods, there have been changes in the ʻAmelī I҆lmiḥal books prepared for children. One of the examples of this is the ʻAmelī ʻIlmiḥal textbook, which was written by Halim Sabit in five volumes. This ʻAmelī I҆lmiḥal was prepared in 5 volumes for teachers and students.The main purpose of this study is to evaluate ʻAmelī I҆lmiḥal textbook in terms of religious education This study particularly aims to assess this textbook in terms of reigious education. Accordingly, the following questions are addressed: “What are the topics covered in the ilmihal books written for students and teachers? Is the content of the subjects taught appropriate for the religious education? Which methods, techniques, and essential matters are discussed in the ilmihal books for teachers? As having first grade elementary school textbooks for both teachers and students, the research is made just based on these books. Data were collected through the examination of the document, and the texts in Ottoman Turkish were transcribed into Turkish. The textbook prepared for the students of the first year consists of 21 boards/sheets. The sentences are quite self and short. The contents of the board/sheet are well suited to be discussed and explained. There are no headlines on the boards/sheets. The language of text is Ottoman. It is possible to express the topics covered in the book under the following themes:Prayer and Sūras: Basmala, Kalima Tawḥīd, Kalima Shahāda, Fātiḥa, Subḥana Rabbiyal Aʿala, Subhana rabbiyal ʿAẓim, As-salāmu ʿalaykum va Raḥmatullah, Taḥiyyat, Salawat Sharif, Iḥlas, Kawthar, Subḥanaka Prayer, Qunut Prayers.Faith Issues: Allāh, the fear of Allāh, thanks to Allāh, the Qurʾān, Prophets, Prophet Muḥammad, The Hereafter, Heaven Hell, Angels.ʿIbādat Issues: Zakāt, Ablution, Prayer, Adhān, worship in General (Salāt, Ṣawm, Zakāt, Ḥajj)Social Issues: Friendship, affection for minors, affection for parents, Muslims are Brother, human love, respect for the elderly, respect for scholars.The textbook prepared for the teachers of the first year; consists of 21 pages, 69 pages and Ottoman. As the students do not include the topics in the textbook, it is appropriate to mention the names of the subjects in the textbook of the teacher:1. Subject: Memorization of the Word of Tawḥīd and word of Shahāda; 2. Topic: Raising ideas about the nation in children; 3. Subject: The adjectives of Allāh Almighty; 4. Subject: Love of Allāh; 5. Subject: Angels; 6. Subject: The Divine Books; 7. Subject: Prophets 8. Subject: The Hereafter; 9. Subject: Thank Allāh; 10. Subject: Repentance; 11. Topic: Protecting the language from bad words and threats; 12. Subject: Zakāt and charity; 13. Subject: Riya҆ and his goodness engrave; 14. Subject: Love to the prophet Muḥammad; 15. Subject: Parental love; 16. Subject: The brotherhood of Islam; Subject: Human love; 18. Subject: Ablution; Subject: Prayer; 20. Subject: Respect for the elderly; 21. Subject: Love to ʿulamāʾ; 22. Subject: Fear of Allāh.Halim Sabit also gave information about the methods and techniques to be used in the course and emphasized that the teacher told his / her not by looking at the book. He thought it would be only influence the student in this way. It is recommended to use the appropriate language for the child, to make an introduction in the subjects that will be learned in the new subjects and to draw attention to the subject and to teach the subject gradually. An important advice is the knowledge that the teacher wants him / her to do in the long-term memory in the present sense. The teacher must repeat a subject several times while teaching a subject, and should not immediately remind a student of forgotten subjects, talk to a student and has finded to him. A subject should not be passed without being thoroughly understood, and the classroom needs to be opened by the teacher in order not to forget the learned subjects. The first fifteen minutes of each course should be reserved for the repetition of previously learned subjects. Content analysis method was used in the analysis of the data. By examining both books, this study shows that belief, worship, and social issues were taught, and prayers and sūras were addressed as need to be memorized knowledge in the book. The books included inappropriate contents for first grade children regarding the belief issues such as fear of Allah, hell, and the hereafter. (shrink)

In colonial states and settings, constitutional arrangements are often forged within contexts that serve to maintain structural racism against Indigenous people. In 2013 the New Zealand government initiated national conversations about the constitutional arrangements in Aotearoa. Māori leadership preceded this, initiating a comprehensive engagement process among Māori in 2010, which resulted in a report by Matike Mai Aotearoa which articulated a collective Māori vision of a written constitution congruent with te Tiriti o Waitangi by 2040.This conceptual article explores (...) the Matike Mai Aotearoa report on constitutional transformation as a novel means to address structural racism within the health system as a key domain within the constitutional sphere. Matike Mai suggests alternative conceptual structural formations through its focus on the kāwanatanga, the relational and the tino rangatiratanga sphere. This framework is informed by a range of Indigenous ethical values such as tikanga, belonging, and balance that can usefully inform the redesign of the health sector.We assert that constitutional transformation and decolonization are potentially powerful ethical sources of disruption to whiteness and structural racism. We argue that, to eliminate entrenched health disparities, change processes need to be informed by the Indigenous inspirations expressed in the Matike Mai report. (shrink)

This article calls for the construction of constitutional rights as principles, rather than as rules. The rule construction conceives subsumption or classification as the appropriate form for the application of constitutional rights. It attempts, in this way, to avoid the problems associated with balancing. By contrast, the principles construction argues that balancing is inevitable and unavoidable. Balancing is at the very core of the proportionality test. The debate over the construction of constitutional rights is, therefore, first and (...) foremost a debate over proportionality analysis. The central objection to the principles construction is that balancing and, with it, the proportionality test, is irrational. This irrationality objection is countered by analysis of the formal structure of balancing; the analysis shows that balancing is a case of rational legal argument that is explicated by means of an arithmetic formula: the Weight Formula. The Weight Formula provides a demonstration of how and why balancing is possible as a form of rational legal argument. It also makes it possible to show that proportionality analysis endangers neither the power nor the force of constitutional rights. (shrink)

In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity (...) remains an enigmatic idea. Some explicate its meaning in abstraction from constitutional practice, while others confine themselves to less exalted ideas. The result is a chasm that separates constitutional practice from a theory capable of justifying its innovations and guiding its operation. By expounding the connection between human dignity and the constitutional practices that justify themselves in its light, Jacob Weinrib brings the theory and practice of constitutional law back together. (shrink)

This article considers the relationship between moral philosophy and constitutional theory through a detailed examination of the work of Jeremy Waldron—an unavoidable voice in contemporary constitutionalist debate. Through a rigorous, original and holistic deconstruction of his work and its philosophical implications, I argue that Waldron’s engagement with core philosophy within his constitutional scholarship is wholly problematic, containing a number of ambiguities and apparent inconsistencies. These issues, I suggest, may stem from an at times rather casual treatment of the (...) realist/anti-realist issue of core philosophy, perhaps owing something to his view that it is in fact safely irrelevant to his constitutional pursuits. In any case, this view, I argue, is misguided, and the problems which result are real: they not only create issues of theoretical consistency and clarity; they put Waldron’s constitutional theory in danger. Like all good tales, I suggest there are lessons to be learned from this: one must think, and think carefully, about the philosophical background of one’s work, and take care in setting this out in a clear, thorough and coherent way—the stakes are too high not to. With this in mind, this article also lays some groundwork for a path into constitutional theory firmly grounded in my own anti-realist moral scepticism. (shrink)

In the 225 years since the United States Constitution was first drafted, no single book has addressed the key questions of what constitutions are designed to do, how they are structured, and why they matter. In From Words to Worlds, constitutional scholar Beau Breslin corrects this glaring oversight, singling out the essential functions that a modern, written constitution must incorporate in order to serve as a nation's fundamental law. Breslin lays out and explains the basic functions of a modern (...) constitution -- including creating a new citizenry, structuring the institutions of government, regulating conflict between layers and branches of government, and limiting the power of the sovereign. He also moves into the esoteric, discussing the theoretical concepts behind the fundamentals of written constitutions and examining in-depth some of the most important constitutional charters from around the world. In assaying how states put the structural ideas into practice, Breslin asks probing questions about why -- and if -- constitutions matter. His answer is a resounding yes. Solidly argued and engagingly written, this comparative study in constitutional thought demonstrates clearly the key components that a state's foundational document must address. In doing so, Breslin draws a critically important distinction between constitutional texts and constitutional practice. (shrink)

Analysis of case law from the US, Germany, South Africa, Canada, Israel, and the ECtHR forms the basis of Tripkovic's exploration of constitutional adjudication from an antirealist standpoint. This highly original work identifies the salient value-based arguments in constitutional practice and exposes the implicit assumptions that lie therein.

This article reinterprets the Kelsen-Schmitt debate in the context of social systems theory and rethinks its major concepts as part of legal and political self-reference and systemic differentiation. In Kelsen?s case, it is the exclusion of sovereignty from juridical logic that opens a way to the self-reference of positive law. Similarly, Schmitt constructed his concept of the political as a self-referential system of political operations protected from the social environment by the medium of power. The author argues that the process (...) of legal and political globalisation rules out the possibility of formulating substantive theories of the state associating this particular social organisation with metaphysical values and a self-validating collective identity. Kelsen and Schmitt continue to inspire current theories of non-metaphysical globalised law and politics. However, the constitutional state and sovereignty need to be reformulated as a meeting point of functionally differentiated and globalised legal and political communications and not as their ultimate end. (shrink)

This book analyzes the general structure of constitutional rights reasoning under the Geman Basic Law. It deals with a wide range of problems common to all systems of constitutional rights review. In an extended introduction the translator argues for its applicability to the British Constitution, with particular reference to the Human Rights Act 1998.

The European Stability Mechanism is the rescue fund that may grant loans to struggling euro zone governments by issuing bonds, collectively by the euro zone members. The implementation of the ESM spawned a lot of legal challenges brought to higher judicial authority in Ireland, Austria, Estonia, Germany and Poland. In the fall of 2012 the ESM was subject to legal analysis in the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Delivering much anticipated (...) rulings in legal challenges to the legal provisions establishing the ESM, courts avoided upsetting the complex arrangements in question by producing legal decision of direct political import and letting EU bailout measures go forward. In looking over different critical responses, we have seen an argument raised by media and legal scholars, according to which courts’ capitulation before the power of financial markets in the EMS rulings represents “a sign of judicial crisis” that marks the weakness of modern European jurisprudence. In light of their importance, we undertake a preliminary semiotic analysis of the ESM rulings of the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Our analysis aims at discerning the crucial aspects of those rulings is performed on the basis of different semiotic methodologies combined with the refined ideas of the Scandinavian analytical school of the doctrinal study of law. In traditional legal studies there seems to be a taken for granted assumption that there is one analytical way to dissect judicial reasoning of the supreme courts. This paper argues that the manner of analyzing the constitutional reasoning needs to be congruent with the particular research methodology. (shrink)

In this Article I argue that the emerging public/private nexus of surveillance involves the augmentation of state power and calls for new models of constitutional constraint. The key phenomenon is the role played by communications intermediaries in collecting the information that the state subsequently accesses. These intermediaries are not just powerful companies engaged in collecting and analyzing the information of users and the information they hold are not just business records. The key feature of these companies is that, through (...) their information practices and architecture, they mediate other relationships. I argue that this mediating function, and its underlying technological form, interacts with legal and social norms in ways that can lead to the erosion of constraints on state power. This Article maps two stories of erosion, rooted in two kinds of community displacement. The first involves the displacement of community participation in law enforcement and the emergence of “technological tattletales” where intermediaries cooperate with the state. Unlike citizen cooperation, this practice augments state power and undermines more traditional informal modes of constraint on state power. The second involves the displacement of national legal and political community. Communications intermediaries are often large multinational companies that operate in multiple jurisdictions and move their data to various datacenters across the world even as the individual data subject remains in one geographical location. Laws that treat nonresident aliens differently from residents and citizens can create “constitutional black holes” where the communications data of an individual is not protected by any constitutional constraints. (shrink)

The paper makes a twofold contribution. Firstly, it advances a preliminary account of the conditions that need to obtain for constitutional rights to be democratic. Secondly, in so doing, it defends precommitment-based theories from a criticism raised by Jeremy Waldron—namely, that constitutional rights do not become any more democratic when they are democratically adopted, for the people could adopt undemocratic policies without such policies becoming democratic as a result. The paper shows that the reductio applies to political rights, (...) yet not to non-political rights, such as reproductive, environmental, or privacy rights. The democratic status of the former is process-independent. The latter, by contrast, are democratic precisely when they are adopted by democratic means. (shrink)

How is constitutionalism possible, when people disagree on so many questions about what is good and what is right? The answer lies in two kinds of incompletely theorized agreement - both reached amidst the sharpest disagreements about the fundamental issues in social life. The first consist of agreements on abstract formulations ; these agreements are crucial to constitution-making as a social practice. The second consist of agreements on particular doctrines and practices; these agreements are crucial to life and law under (...) existing constitutions. Incompletely theorized agreements help illuminate an enduring constitutional puzzle: how members of diverse societies can work together on terms of mutual respect amidst intense disagreements about both the right and the good. Such agreements help make constitutions and constitutional law possible, even within nations whose citizens cannot concur on the most fundamental matters. (shrink)

How important is Jiang Qing, whose extraordinary proposals for political change make up the core of the new book A Confucian Constitutional Order: How China’s Ancient Past Can Shape Its Political Future? In his Introduction to the volume, co-editor Daniel Bell maintains that Jiang’s views are “intensely controversial” and that conversations about political reform in China rarely fail to turn to Jiang’s proposals. At least in my experience, this is something of an exaggeration. Chinese political thinking today is highly (...) pluralistic, and for many participants Jiang is simply a curiosity—if indeed they are aware of him. Still, for three reasons Jiang is very much worth our attention. First, there is a vibrant and .. (shrink)

The theory of rights is crucial as a means of relieving the tension between basic rights and democracy, and as a means of resolving the problem of allocating competence between the constitutional court and the legislature. To some theorists, no tension between basic rights and democracy exists, for the latter presupposes the former. To others, among whom I include myself, tension does exist, for basic rights, in lending protection to certain persons and groups, limit the possibilities of political decision. (...) In this connection it is important to take up the problem of the necessary conditions for realizing basic rights. One of these conditions concerns the delimiting of the scope of institutional action that is found, so to speak, in the space between the constitutional justices and the legislature, the latter as representative of the popular will. (shrink)

How is constitutionalism possible, when people disagree on so many questions about what is good and what is right? The answer lies in two kinds of incompletely theorized agreement - both reached amidst the sharpest disagreements about the fundamental issues in social life. The first consist of agreements on abstract formulations ; these agreements are crucial to constitution-making as a social practice. The second consist of agreements on particular doctrines and practices; these agreements are crucial to life and law under (...) existing constitutions. Incompletely theorized agreements help illuminate an enduring constitutional puzzle: how members of diverse societies can work together on terms of mutual respect amidst intense disagreements about both the right and the good. Such agreements help make constitutions and constitutional law possible, even within nations whose citizens cannot concur on the most fundamental matters. (shrink)

Governments in New Zealand have legislated a large number of settlements extinguishing many hundreds of claims taken by Māori against the Crown for breaches of the country’s founding document, Te Tiriti o Waitangi. They portray settlements as a great success for Māori and the Crown. Māori disagree. Settlements are government-determined and imposed on Māori using a smoke and mirrors approach that masks successive governments’ true intentions: to claw back Māori legal rights; to extinguish all claims; and to maintain White control (...) over Māori. In short, to uphold the Doctrine of Discovery in further breach of Te Tiriti o Waitangi. Māori claimants and negotiators report being enticed into the process by false promises only to become traumatised and disenchanted. Yet many take a pragmatic stance and sign settlements, making the best they can out of a bad deal that goes nowhere near compensating for their actual loss. They know that despite what legislation may say, the settlements are not full, not fair and not final and that, like all previous settlements, they will be revisited. They also know that unless fundamental changes are made to the constitutional makeup of the country, there is no prospect of justice and reconciliation for Māori. (shrink)

ExcerptIn the spring of 2021, the president of the European Council, Charles Michel, received a non-paper titled “West Balkans—A Way Forward.” The scandalous paper envisaged a redrawing of several national borders in the West Balkans. Among other changes, it proposed “the unification of Kosovo and Albania” and the “joining of larger parts of the Republika Srpska’s territory with Serbia.”1 However, this scandalous proposition, which the EU preferred to meet with silence, was not limited to a redrawing of the borders. What (...) was also scandalous was the ratio of the proposed territorial changes. The redrawing was proposed along the lines of ethnic majorities populating the regions in question (Albanians in Kosovo or Serbs in the Republika Srpska). While the state borders were drawn following a logic of ethnicity, the idea of a multiethnic nation seemed to exceed the imagination of the paper’s authors. For them, nations were to be ethnically homogeneous. (shrink)

The U.S. Supreme Court held, in American Manufacturers Mutual Insurance Co. v. Sullivan, 119 S. Ct. 988, that state workers’ compensation system insurers cannot be sued for withholding health care benefits for work-related injuries while they decide whether the treatment is “reasonable” and “necessary.” The respondents, ten employees and two organizations representing employees who received medical benefits under the Workers’ Compensation Act, brought a 42 U.S.C. § 1983 action against state officials, the Pennsylvania State Workers’ Insurance Fund, private insurers, and (...) the school district, alleging that their due process rights were violated by provisions of the Pennsylvania Workers’ Compensation Act, 77 Pa. Cons. Stat. Ann. § 1 et seq.. The Act permits suspension of benefits without notice or opportunity to be heard pursuant to a “utilization review” process.To control costs, Pennsylvania amended its workers’ compensation system in 1993. Under the Act, an employer or its insurer must pay for all reasonable and necessary medical treatment. (shrink)

Bastiat emphasized the institutional infrastructure of a market economy and the principle of spontaneous order. He began with first principles — the primacy of property and consent — and derived the legitimate functions of government. As a pioneer in constitutional political economy, he examined the relation between economics and politics, employed methodological individualism, and extended the exchange paradigm to collective choice. He showed that the attenuation of economic liberty in the pursuit of distributive justice under majoritarian government would lead (...) to rent-seeking, corruption, and politicization of economic life.Bastiat met l’accent sur l’aménagement institutionnel de l’économie de marché et sur le principe de l’ordre spontané. Son analyse débute avec les principes premiers — la primauté de la propriété et du consentement — et il infère de ces principes les fonctions légitimes du gouvernement. En tant que pionnier de l’économie politique constitutionnelle, il examine les liens entre la sphère économique et la sphère politique, a recours à l’individualisme méthodologique et étend le paradigme de l’échange aux choix collectifs. Il montre que l’érosion de la liberté économique qu’entraîne la recherche d’une justice distributive sous un gouvernement majoritaire mène à la recherche de rentes, à la corruption et à la politisation de la vie économique. (shrink)

We all live in the age of constitutional balancing.ing away differences of nuance and doctrinal detail, balancing is a common feature of the structure of rights analysis across contemporary constitutional systems. Indeed, abstracting just a little further still, balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can in principle be limited or overridden by certain non-constitutional rights premised on conflicting public policy objectives. (...) It is not surprising, then, that a significant literature about balancing has developed at both domestic and comparative levels. What is surprising is that so little of this literature has attempted to present the normative case for constitutional balancing or the general structure of rights analysis of which it is an inherent part. Rather, the existing scholarship has mostly focused on five other tasks: describing and comparing first-order practices of balancing; providing second-order conceptual analyses; explaining balancing's rise to dominance; advancing critiques of balancing; and rebutting these critiques. In this article, I attempt to present one particular normative justification of constitutional balancing; namely a democratic justification. I argue that balancing appropriately bolsters the role of majoritarian decision-making about rights within a system of constitutional democracy. It thereby renders entrenched rights enforced by the power of constitutional or judicial review more consistent with certain enduring democratic concerns. I also explain the implications of this justification for how courts should exercise their powers of review. (shrink)