Resumo O autor defende uma descrição normativa fraca do constitucionalismo internacional à luz de dois factos: a contínua relevância da soberania do Estado face à hegemonia de superpotências e a necessidade imperiosa de um regime supranacional eficaz de direitos humanos. Ao defender uma institucionalização constitucional de direitos humanos, que inclui aspectos de justiça processual e material, mostra-se que, como nos casos domésticos, tal institucionalização pode e, talvez deva, incorporar um procedimento de controlo judicial que ascende ao nível de controlo constitucional. (...) De facto, o parecer do Tribunal Europeu de Justiça no caso Kadi estabeleceu um possível precedente para o controlo do Conselho de Segurança no sentido do cumprimento dos direitos humanos e outras normas peremptórias. Dada a necessidade de perícia técnico legal para a elaboração de tal controlo, um caso prima facie pode ser feito para o estabelecimento de um Tribunal Constitucional especializado ao nível internacional. Contudo, dado o impacto desempenhado pelo poder político na resolução técnica da adjudicação de casos específicos e concretos, dentro de um sistema jurídico altamente fragmentado, e dado o facto de que o controlo constitucional também toca questões mais abstractas e menos técnicos de justiça social, o autor recomenda, que a função de controlo constitucional seja disseminada por várias instituições globais, incluindo a actual Assembleia Geral das Nações Unidas e na esfera pública global. O controlo constitucional pluricêntrico, bem como a institucionalização dos direitos humanos decorre do desacordo multicultural existente acerca do significado desses direitos e da ameaça da hegemonia de superpotências sobre as instituições globais. Assim antecipa-se também a realização de uma constitucionalização mais monista no Direito Internacional com o crescimento da solidariedade global entre os povos. Palavras-chave : Constitucionalização, Controlo Constitucional, Direitos Humanos, Habermas, Nações Unidades, Pluralismo LegalI defend a weakly normative description of international constitutionalism in light of two facts: the continued salience of state sovereignty in the face of superpower hegemony and the overriding need for an effective supranational human rights regime. In arguing for a constitutional institutionalization of human rights that includes aspects of procedural and substantive justice, I show that, as in the domestic case, such an institutionalization could and perhaps should incorporate a procedure for judicial review ascending to the level of constitutional review. In fact, the European Court of Justice’s review of the Kadi case establishes a possible precedent for reviewing Security Council compliance with human rights and other peremptory norms. Given the need for technical legal expertise in elaborating such review, a prima facie case can be made for establishing a specialized constitutional court at the international level. However, given the impact that political power plays in the technical resolution of concrete, case-specific adjudication within a highly fragmented legal system, and given the fact that constitutional review also touches on more abstract and less technical issues of social justice, I recommend that the function of constitutional review be dispersed in several global institutions, including the current United Nations General Assembly and a global public sphere. The pluralization of constitutional review and the accompanying interpretation and institutionalization of human rights recognizes existing multicultural disagreement on the meaning of human rights and the threat of superpower hegemony over global institutions while anticipating the realization of a more monistic constitutionalization of international law with the growth of global solidarity between peoples. Keywords : Constitutional Review, Constitutionalization, Habermas, Human Rights, Legal Pluralism, United Nations. (shrink)

An excellent sampling of current thinking in the theory and practice of constitutionalism. Each essay was written specifically for this volume by well-known legal and political philosophers. . . . All in all, a first-rate and provocative example of contemporary philosophical concerns. Choice In our constitutional democracy, the dissent and conflict that are the inevitable consequence of free political dialogue point to the importance of reexamining the philosophical premises on which our conceptions of society and government are based. (...) This volume of original essays reviews the foundations of constitutionalism in classical liberal thought and looks at contemporary philosophical perspectives on a wide range of constitutional issues. Written by a distinguished group of philosophers and constitutional scholars, it provides a deeper understanding of the U.S. Constitution as a political instrument and examines the idea of constitutionalism as it functions in our modern world. (shrink)

This paper argues that the approach to questions of authority, legitimacy, and personal identity characteristic of contemporary European law presents a paradox. The power of the legal project that emerged after the French Revolution lay in its deployment of the notion of abstract legal subjectivity to challenge claimed authority. Much is made of the public law dimensions of this revolutionary moment—the creation of political constitutions establishing national citizenship and human rights standards. But the transposition of abstract legal subjectivity into the (...) private law through national social constitutions like Civil Codes has been far less successful.legal subjectivity in public law regimes necessarily privileges some personal identities over others in its construction of citizenship. These privileged identities of public law citizenship limit how legal subjects can express their identities in the private law. The paper proposes an alternative, pluralist, theorization of the diverse, iterative character of everyday human interaction that gives content to the idea of legal subjectivity in the private law. It seeks to reconcile a public law of abstract, unitary citizenship with a private law of plural legal subjectivities in a manner that advances the project of democratic constitutionalism. (shrink)

In this article, I consider a curious blind spot in constitutional scholarship concerning the resurging rural/urban divide—a readily evident phenomenon closely associated with political resentment and anti-establishment sentiments—and how we may begin to address that challenge through creative constitutional designs. Specifically, I draw upon insights from comparative constitutionalism to discuss four main areas of constitutional law and theory that appear to hold some intellectual promise in this context: formal constitutional commitment at the national level to recognizing (...) the urban/rural divide and commitment to addressing it; creative electoral system designs that take into account the spatial dimension of politics; spatial pluralization based on concepts such as “mixed constitutions,” “community standards,” and “margin of appreciation”; and rethinking elements of equalization and fiscal federalism more generally. Taken together, the four directions I discuss here offer a repertoire of constitutional design possibilities that hold promise in mitigating the resurging rural/urban gulf. More generally, they serve as an invitation to constitutional thinkers to shake up the rather stagnant constitutional thought of spatial governance, and to think creatively about the ever-expanding urban/rural divide and its consequences for the theory and practice of 21st century constitutional democracy. (shrink)

This volume critically discusses the relationship between democracy and constitutionalism. It does so with a view to respond to objections raised by legal and political philosophers who are sceptical of judicial review based on the assumption that judicial review is an undemocratic institution. The book builds on earlier literature on the moral justification of the authority of constitutional courts, and on the current attempts to develop a system on "weak judicial review". Although different in their approach, the chapters all (...) focus on devising institutions, procedures and, in a more abstract way, normative conceptions to democratize constitutional law. These democratizing strategies may vary from a radical objection to the institution of judicial review, to a more modest proposal to justify the authority of constitutional courts in their "deliberative performance" or to create constitutional juries that may be more aware of a community's constitutional morality than constitutional courts are. The book connects abstract theoretical discussions about the moral justification of constitutionalism with concrete problems, such as the relation between constitutional adjudication and deliberative democracy, the legitimacy of judicial review in international institutions, the need to create new institutions to democratize constitutionalism, the connections between philosophical conceptions and constitutional practices, the judicial review of constitutional amendments, and the criticism on strong judicial review. (shrink)

Do our present circumstances allow us to defend a specific connection (that specific connection) between «legal rules», «moral claims» and «democratic principles» which we may say is granted by an unproblematic presupposition of universality or by an «acultural» experience of modernity? In order to discuss this question, this paper invokes the challenge-visée of a plausible reinvention of Law’s autonomous project (a reinvention which may be capable of critically re-thinking and re-experiencing Law’s constitutive cultural-civilizational originarium in a «limit-situation» such as our (...) own). The discussion is developed by recognising that the claim to universality is not only incompatible with a substantive conception of juridicalness as validity but also sustained with difficulty by a procedural representation of discourse and rationality (a representation which, against its own conclusion-claims, could also be said to be culturally and civilizationally bounded). Not forgetting some specific features of contemporary juridical pluralism—namely that which emerges from the counterpoint between semiotic groups or interpretative communities (and their differently assumed claims of intersemioticity concerning the signifier law)—this train of reflection diagnoses briefly a sequence of complementary main difficulties (as «obstacles» to recognising Law’s demand as an unmistakable cultural project), namely those arising from the formalistic normativistic inheritance (confounding legal autonomy with isolationism), from the challenges and seductions of practical holism (justifying a continuum in which Law’s project loses its sense and autonomy), and also from the familiar debate between exclusive and inclusive versions of positivism and non-positivism (a debate which establishes-consecrates an equivocal counterpoint between Law and Morality). (shrink)

With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality extend their prior work and engage in an important dialogue on the topic. Some offer substantial (...) critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds. (shrink)

Across a number of countries including Venezuela, Colombia, Bolivia, Ecuador, Honduras, Costa Rica, and Nicaragua, incumbent presidents in Latin America have recently sought to amend their constitutions to eliminate or weaken presidential term limits. In some cases, these efforts to extend terms have been part of broader projects to consolidate power, weaken other state institutions, and tilt the electoral playing field in favor of incumbents. From a legal perspective, these cases are interesting because they highlight the limits of tools limiting (...) constitutional change, such as eternity clauses and the unconstitutional constitutional amendment doctrine, to constrain potentially anti-democratic or anti-liberal forms of constitutional change. Although constitutional texts in most of these cases gave courts ample ammunition to reject attempts to eliminate term limits or at least to force those changes down more demanding paths, courts did not stand in the way of most of these efforts and in some cases even used the doctrines to eliminate rather than protect term limits. The case studies highlight the extent to which the “superficial” spread of doctrines controlling constitutional change may fail to block, and indeed may promote, forms of constitutional change that threaten liberal democratic constitutionalism. It also suggests possibilities for deepening the effectiveness of transnational dialogue on these issues. (shrink)

Rule of law and constitutionalist ideals are understood by many, if not most, as necessary to create a just political order. Defying the traditional division between normative and positive theoretical approaches, this book explores how political reality on the one hand, and constitutional ideals on the other, mutually inform and influence each other. Seventeen chapters from leading international scholars cover a diverse range of topics and case studies to test the hypothesis that the best normative theories, including those regarding (...) the role of constitutions, constitutionalism and the rule of law, conceive of the ideal and the real as mutually regulating. (shrink)

From a legal-philosophical point of view, The Redress of Law presents a critical analysis of a number of related doctrinal fields: constitutional, labour and EU Law. Focusing on the organisation and protection of work, this book asks what it means to protect work as an essential aspect of human flourishing. This is an ambitious and highly sophisticated intervention in contemporary academic and political debates around a set of critically important questions connected to processes of globalisation and market integration. The (...) author redefines the nature of legal and political thought in an age in which market rationality has exceeded its classic domain and has come to pervade the organization of social and political life. This restatement of critical legal theory is intended to defend the concept of constitutionalism and suggest new ways to deploy the law strategically. (shrink)

The first segment starts with a definition of two dimensions of the concept of rule of law; related to the notion of sovereignty and as a concept to control arbitrariness on the part of the ruler. The segment proceeds to give a historical account of the notion and the different stages of its epistemological configuration, from the ancient Greek notion of Eunomia and its incompatibility with the popular rule to the current notion, where the rule of law has become fused (...) with democracy and human rights. The first segment also focuses on the relation between the concept of the rule of law and other principles, such as proportionality, neutrality, and effectiveness. The second segment of the paper analyses the phenomenon of juridification of the rule of law in international treaties and domestic constitutions. It pays particular attention to the role that constitutional accommodation plays in the process of rationalization of the rule of law as a prerequisite to its idealization and mystification. It analyses the reason why this principle is an essential feature of the constitutionalism despite the inner plurality of legal systems. The next aspect, analysed in the third segment of this paper, is the messianic use of the concept of the rule of law. The paper performs a critical definition of messianic, covering a theological perspective and the different theories and concepts that go hand in hand with the idea of the Messiah, such as the “coming”, prophetical and apocalyptical messianism, the phenomena of eschatology, expiation and redemption pictured in Judaism. The segment also covers the secular transplantation of the messianic thought. The last segment is a conclusion returning to the themes identified in the paper and summarises how the messianic thought is applied in the realm of the rule of law. (shrink)

This article closely examines the way in which Thomas Aquinas understood the relationship between the various forms of human community. The article focuses on Aquinas's theory of law and politics and, in particular, on his use of political categories, such as city, province and empire, together with the associated concepts of kingdom and nation, as well as various social groupings, such as household, clan and village, alongside of the distinctly ecclesiastical categories of parish, diocese and universal church. The analysis of (...) these categories is used in the article to help explain Aquinas's role in the development of theories about subsidiarity, federalism and mixed constitutionalism. In the first place, it is argued that a close inquiry into Aquinas's discussion of the many and various forms of human community sheds light on the origins and development of the idea of subsidiarity within Catholic social teaching. Second, while Aquinas certainly did not advance a theory of federalism as that idea is presently understood, it is argued that recovering what Aquinas had to say about the categories of human community helps us to understand the origin and later development of federal ideas. Finally, it is argued that far from endorsing a system of absolute monarchy as is sometimes alleged, when understood in this way, Aquinas supported a particular kind of mixed constitution in which monarchy is tempered by a variety of constitutional constraints founded upon a conception of the body politic as itself constructed out of a plurality of smaller, intermediate corporations and communities of a political, ecclesiastical and social character. Keywords: Thomas Aquinas, political theory, subsidiarity, federalism, mixed constitution, absolute monarchy, civitas, provincia, imperium, regnum, gens, natural law . (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 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)

This paper is a historical, legal and philosophical analysis of the concept of human dignity in German and Kenyan constitutional law. We base our analysis on decisions of the Federal Constitutional Court of Germany, in particular its take on life imprisonment and its 2006 decision concerning the shooting of hijacked airplanes, and on a close reading of the Constitution of Kenya. We also present a dialogue between us in which we offer some critical remarks on the concept (...) of human dignity in the two constitutions, each one of us from his own philosophical perspective. (shrink)

James Tully: To Think and Act Differently collects classic, contemporary, and previously unpublished examples of public philosophy in action from across James Tully's four decades of scholarship. The book provides readers with a perspicuous representation of public philosophy as an ongoing experiment with reconstructing the practice of political theory as a democratizing and diversifying dialogue between scholars and citizens. This volume offers an overview of this participatory mode of political philosophy and political change by reconstructing the arc of Tully's (...) intellectual trajectory in contexts, illuminating moments of clarification and transformation, and the ways it continues to shed new insights into the challenges of citizenship in the present. Topics discussed include approaches to the history of political though, constitutionalism, democratic theory, comparative political theory, intercultural dialogue and translation; Indigenous political thought; settler colonialism and empire; climate change and sustainability; modernity; nonviolence; and mutual aid. It will be of interest to scholars of political philosophy, political theory, constitutional law, Indigenous studies, intellectual history, and ecological humanities. It will be of interest to scholars of political philosophy, political theory, constitutional law, Indigenous studies, intellectual history, and ecological humanities. (shrink)

The doctrine of proportionality has received sustained attention from comparative constitutional scholars. Yet it is an area where courts, and scholars, have made limited use of empirical or inter-disciplinary approaches to constitutional comparison. The article calls for a change in this practice as part of a broader call for greater dialogue between scholars and practitioners of conceptual and more empirical forms of constitutional comparison.

This two-volume book, published open access, brings together leading scholars of constitutional law from twenty-nine European countries to revisit the role of national constitutions at a time when decision-making has increasingly shifted to the European and transnational level. It offers important insights into three areas. First, it explores how constitutions reflect the transfer of powers from domestic to European and global institutions. Secondly, it revisits substantive constitutional values, such as the protection of constitutional rights, the rule of (...) law, democratic participation and constitutional review, along with constitutional court judgments that tackle the protection of these rights and values in the transnational context, e.g. with regard to the Data Retention Directive, the European Arrest Warrant, the ESM Treaty, and EU and IMF austerity measures. The responsiveness of the ECJ regarding the above rights and values, along with the standard of protection, is also assessed. Thirdly, challenges in the context of global governance in relation to judicial review, democratic control and accountability are examined. On a broader level, the contributors were also invited to reflect on what has increasingly been described as the erosion or 'twilight' of constitutionalism, or a shift to a thin version of the rule of law, democracy and judicial review in the context of Europeanisation and globalisation processes. The national reports are complemented by a separately published comparative study, which identifies a number of broader trends and challenges that are shared across several Member States and warrant wider discussion. The research for this publication and the comparative study were carried out within the framework of the ERC-funded project 'The Role and Future of National Constitutions in European and Global Governance'. The book is aimed at scholars, researchers, judges and legal advisors working on the interface between national constitutional law and EU and transnational law. The extradition cases are also of interest to scholars and practitioners in the field of criminal law. Anneli Albi is Professor of European Law at the University of Kent, United Kingdom. Samo Bardutzky is Assistant Professor of Constitutional Law at the University of Ljubljana, Slovenia. (shrink)

How is legitimacy to be secured for constitution-like legal orders operating beyond the state? Some scholars recommend connecting aspects of global law to human rights adjudication and enforcement by adopting their preferred method for resolving conflicts, namely, proportionality analysis. Adopting a frame of analysis widely embraced by apex courts might generate the requisite regime legitimacy, it is argued. This turns out to be a strategy that is difficult to pursue in the realm of international investment law, a global legal order (...) made up of over 3,300 investment and regional treaties, enforced by private systems of dispute resolution, that incorporates standards of treatment familiar to national constitutional law. By undertaking an analysis of statements made by relevant actors in the field, principally investment lawyers and arbitrators, we learn that there is not that much interest in taking up proportionality analysis, despite the legitimacy problems that continue to dog the system. Whatever the purported advantages of turning to proportionality, it turns out that investment lawyers and arbitrators are not so interested in embracing logics other than one preoccupied with owing solicitude to foreign investors. This reluctance renders investment law a less legitimate, and therefore less sustainable, form of constitution-like global law. (shrink)

The last decade or so has seen an explosion of scholarship by American law professors on what has become known as administrative constitutionalism. Administrative constitutionalism is a catchphrase for the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and governing based on those rules and norms. Though courts traditionally get far more attention in the scholarly literature and the popular imagination, administrative constitutionalism scholars show that administrative agencies have been extremely important participants in American (...) constitutional development. Section I of this essay identifies three different versions of administrative constitutionalism—(1) Engagement with Existing Constitutional Doctrine; (2) Resolving Questions of Statutory Meaning that Implicate Constitutional Questions; and (3) Shadow Administrative Constitutionalism—and provides examples from the scholarly literature to illustrate these distinct manifestations of administrative constitutionalism. Section II of this essay discusses the normative turn in administrative constitutionalism scholarship. Much of this normative literature is implicitly or explicitly premised on the notion that agencies are more likely to pursue progressive goals than are other government actors. Section III of this essay disputes the notion that agency constitutional decision-making is “democratic” and that agencies are naturally inclined to serve progressive goals. Finally, Section IV of this essay notes that scholars who support broad agency autonomy to work out and enforce their own constitutional visions have failed to consider how their work fits in with the economic and political science literature on agency behavior. One can predict, based on that literature, that agencies given broad autonomy under the guise of administrative constitutionalism will primarily be inclined to expand their scope and authority at the expense of countervailing considerations. (shrink)

Global constitutionalism : positivism and international law -- International trade law : theories and practices in negotiations -- Making rules in the WTO : negotiations from Doha to Bali -- North-South controversy : developed and developing countries in the WTO -- Self-determination and minority rights under international law -- Human right : the interlocutor of global constitutionalism -- Asian approaches to international law -- The future of international law.

This contribution aims at discussing constitutional democracy in the age of populisms, by explaining how populist movements oppose liberal-democratic constitutionalism and by presenting the thesis of a so-called ‘populist constitutionalism’, as proposed by Mark Tushnet. In the first section, a general and analytic exploration of populist phenomena will be drawn, by focusing on the so-called thesis of a ‘populist’ constitutionalism. In the second part, Tushnet’s arguments for a populist constitutionalism will be presented, through the analysis of his two main (...) contributions: Taking the Constitution Away from the Courts, in which Tushnet develops his critique of legal constitutionalism and judicial review as an undemocratic power by unelected justices, and Authoritarian Constitutionalism, a recent article in which Tushnet distinguishes between ‘authoritarian’ and ‘populist’ definitions of constitutionalism. In conclusion, such arguments will be discussed, by proposing a critical response to Tushnet’s position and presenting some risks of a majoritarian and populist constitutional democracy. (shrink)

This volume in the Clarendon Edition of the Works of Thomas Hobbes contains A dialogue between a philosopher and a student, of the common laws of England, edited by Alan Cromartie, supplemented by the important fragment 'Questions relative to Hereditary Right', discovered and edited by Quentin Skinner. As a critique of common law by a great philosopher, the Dialogue should be essential reading for anybody interested in English political thought or legal theory. Cromartie has established when and why (...) the work was written and has supplied extensive annotation to make the work accessible to the non-specialist reader. The additional piece sees Hobbes mounting a robust defence of hereditary right, in the course of which he also makes some important general observations about the concept of a right. It is also of special interest as it constitutes Hobbes's last word on politics. (shrink)

Globalization is a topic of some anxiety among international lawyers. On the one hand, its fluid dynamics — fragmentation, deformalization and empire — undermine traditional diplomatic rules and institutions. On the other hand, the effort to reimagine international law in purely managerial terms appears intellectually shallow and politically objectionable. To avoid marginalization and instrumentalization, many lawyers have begun to think about international problems through a constitutional vocabulary and have often cited Kant in that connection. This Article argues that, while (...) it is always possible to grasp the world through a constitutional vocabulary, this does not provide determinate answers to international problems. Instead of an institutional architecture or a set of legal rules, constitutionalism is best seen as a mindset — a tradition and a sensibility about how to act in a political world. Contrary to a widespread assumption, Kant’s political writings may also be read in this fashion and, if so, a meaningful international transformation might necessitate not only legislative or institutional intervention but a professional and perhaps spiritual regeneration. (shrink)

This book provides insights into the viability of the idea of global constitution. Global constitutionalism has emerged as an alternative paradigm for international law. However, in view of the complex and varied structure of contemporary constitutionalism, in reality it is extremely difficult to use constitutional law to provide a new paradigm for international law. The book argues that the cultural paradigm can offer functional tools for the global constitutionalism discourse. In other words, global constitutionalism could be handled in the (...) context of a global "constitutional culture" instead of a global constitution. This would provide a more realistic basis for discussing global constitutionalization of a society as diverse as the international community, where a globalized polity and a globalized legal system have not yet been achieved. (shrink)

‘We must newly conceive the time of law. To do so, the book calls for a more temporally attuned constitutional theory that places a principle of anti-reification at the centre of its jurisprudentia...

This essay introduces a collection of articles gathered under the theme of “law, science, and constitutions of life.” Together, they explore how revolutions in notions of what biological life is are eliciting correspondingly revolutionary imaginations of how life should be governed. The central theoretical contribution of the collection is to further elaborate the concept of bioconstitutionalism, which draws attention to especially consequential forms of coproduction at the law–life nexus. This introduction offers a theoretical discussion of bioconstitutionalism. It explores the (...) class='Hi'>constitutional significance of interplay between scientific and technological power over life and a given political community’s shared imaginary of what modes of reasoning, judgment, and rule are proper and legitimate in a well-ordered state. It argues that knowing what life is for purposes of governance does not follow from scientific knowledge alone. Rather, such knowledge is refracted through culturally distinctive imaginaries that commit societies to particular understandings of what life means and what should be done to encourage its flourishing. (shrink)

Constitutionalism and the Rule of Law are related ideas about how the powers of government and of state officials are to be limited. The two ideas are sometimes equated. But constitutionalism, generally understood, usually refers to various constitutional devices and procedures, such as the separation of powers between the legislature, the executive and the judiciary, the independence of the judiciary, due process or fair hearings for those charged with criminal offences, and respect for individual rights, which are partly constitutive (...) of a liberal democratic system of government. The Rule of Law, on the other hand, embodies certain standards that define the characteristic virtues of a legal system as such. (shrink)

The metaphor of 'dialogue' has been put to different descriptive and evaluative uses by constitutional and political theorists studying interactions between institutions concerning rights. It has also featured prominently in the opinions of courts and the rhetoric and deliberations of legislators. This volume brings together many of the world's leading constitutional and political theorists to debate the nature and merits of constitutional dialogues between the judicial, legislative, and executive branches. Constitutional Dialogue explores dialogue's (...) democratic significance, examines its relevance to the functioning and design of constitutional institutions, and explores constitutional dialogues from an international and transnational perspective. (shrink)

This contribution aims at discussing constitutional democracy in the age of populisms, by explaining how populist movements oppose liberal-democratic constitutionalism and by presenting the thesis of a so-called ‘populist constitutionalism’, as proposed by Mark Tushnet. In the first section, a general and analytic exploration of populist phenomena will be drawn, by focusing on the so-called thesis of a ‘populist’ constitutionalism. In the second part, Tushnet’s arguments for a populist constitutionalism will be presented, through the analysis of his two main (...) contributions: Taking the Constitution Away from the Courts, in which Tushnet develops his critique of legal constitutionalism and judicial review as an undemocratic power by unelected justices, and Authoritarian Constitutionalism, a recent article in which Tushnet distinguishes between ‘authoritarian’ and ‘populist’ definitions of constitutionalism. In conclusion, such arguments will be discussed, by proposing a critical response to Tushnet’s position and presenting some risks of a majoritarian and populist constitutional democracy. (shrink)

The Iraqi constitution of 2005 grants freedom of religious thought, belief and practice for all religions. This study was also based on the premise that the constitutional rights are not adhered to in Iraq, even by government officials, which could be due to the absence of suitable legislations subsequent to the framing of the constitutional provisions. An analytical and descriptive research design was adopted for this study. Data was collected from primary and secondary sources through documentation research and (...) evaluation of historical sources. The primary data comprised Articles of the Iraqi constitution, and a few national and international legal instruments related to religious freedom. Secondary data included empirical research studies, books, articles and other published sources. This study therefore took the form of an empirical legal research as it involved the issues of constitutional reforms in the field of religious freedom. A comparative approach was adopted in analyzing the documents about religion and politics related to both the Arab region and the West. The focus was on the measures that should be adopted to advance the dialogues of religious freedom and maintain religious neutrality in all government policies. The study found out that there were apparent contradictions between the constitutional provisions and the State Laws. Similarly, the Iraqi civil and penal codes remain silent regarding legal remedies for the violation of constitutional provisions. (shrink)

The purpose of this paper is to propose and consider a new constitutional provision that can contribute to the protection of the vital needs of future generations. The proposal I wish to elaborate can be termed the posterity provision, and it has both substantive and procedural elements. The aim of this constitutional provision is twofold. The first is to encourage state authorities to make more future‐oriented deliberations and decisions. The second is to create more public awareness and improve (...) the process of public deliberation about issues affecting near and remote future generations. It is argued that a good case can be made for the proposed reforms compared with alternative substantive constitutional environmental provisions found in existing constitutions and in the literature on legal and political theory. The main reason for this is that the proposed law constitutes a better and more adequate basis for judicial enforcement than the alternatives, which tend to be very vague or unclear. In this connection, I contend that there are both epistemological and moral reasons for introducing constitutional provisions that focus on the protection of critical natural resources essential for meeting the basic physiological needs of future people. It is also argued that the posterity provision can be defended on the basis of central ideas and ideals in recent theory of deliberative democracy. (shrink)

This volume in the Clarendon Edition of the Works of Thomas Hobbes contains A dialogue between a philosopher and a student, of the common laws of England, edited by Alan Cromartie, supplemented by the important fragment "Questions relative to Hereditary Right," discovered and edited by Quentin Skinner. As a critique of common law by a great philosopher, the Dialogue should be essential reading for anybody interested in English political thought or legal theory. Cromartie has established when and why (...) the work was written and has supplied extensive annotation (along with a substantial introduction) to make the work accessible to the non-specialist reader. The additional piece sees Hobbes mounting a robust defense of hereditary right, in the course of which he also makes some important general observations about the concept of a right. It is also of special interest as it constitutes Hobbes's last word on politics. (shrink)

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just (...) Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism. (shrink)

This is the second volume in a sub-series of specially commissioned collaborative volumes on key topics at the heart of contemporary philosophy of law that will be appearing regularly within Cambridge Studies in Philosophy and Law. A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as: why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? Why should one generation feel (...) bound by the constitution of an earlier one? The volume will be of particular importance to those in philosophy, law, political science and international relations interested in what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation. (shrink)

Much has been written about the global convergence on constitutional supremacy. Yet, a closer look suggests that while constitutional convergence trends are undoubtedly extensive and readily visible, expressions of constitutional resistance or defiance may in fact be regaining ground worldwide. This may point to a paradox embedded in global constitutionalism: the more expansive constitutional convergence trends are, the greater the likelihood of dissent and resistance are. In this article, I chart the contours of three aversive responses (...) to constitutional convergence: neo-secessionism, nullification, and deference to local authority, and draw on an array of comparative examples to illustrate the distinct logic and characteristics of each of these responses. Taken together, these increasingly common expressions of defiance provide ample evidence that global constitutionalism is not the only game in town. Neo-secessionism, nullification, and other forms of constitutional dissent and “opting out” may thus be viewed as a reaction against the centralization of authority and the decline of the local in an increasingly—constitutionally and otherwise—universalized reality. (shrink)

In this article I show how the concept of intertextuality as developed by Mikhail Bakhtin, Julia Kristeva and Jacques Derrida can be applied to the political theory of constitutionalism. Such an approach carries with it the valuable democratic idea that all texts in society, including the political constitution, are in a dynamic relationship and reflect social pluralism. By analyzing and comparing intertextual theories, I develop the idea of the constitution as an open and emancipatory interpretative and textual category. I show (...) how intertextual theorizing contributes significantly to the democratization of a modern liberal constitutional order, offering distinct strategies for progressive political and social transformation. (shrink)

Constitutionalism: Past, Present, and Future will offer a definitive collection of Professor Dieter Grimm's most important scholarly writings on constitutional thought and interpretation. The essays included in this volume explore the conditions under which the modern constitution could emerge; they treat the characteristics that must be given if the constitution may be called an achievement, the appropriate way to understand and interpret constitutional law under current conditions, the function of judicial review, the remaining role of national constitutions in (...) a changing world, as well as the possibility of supra-national constitutionalism.Many of these essays have influenced the German and European discussion on constitutionalism and for the first time, much of the work of one of German's leading scholars of public law will be available in the English language. (shrink)

The purpose of this article is to outline a Kantian form of cosmopolitan law and the jurisprudence involved in the creation of a cosmopolitan constitution. This article explores and discusses Kantian cosmopolitan law, the idea of cosmopolitan right, the laws of hospitality and a Kantian approach to constitutional cosmopolitanism. In doing so, the article argues beyond Kant's discussion of constitutionalism, suggesting that a written constitution not only articulates many of Kant's cosmopolitan concerns, but also provides a reasonable ethical foundation (...) for an international society. Throughout this discussion, more particular aspects of Kant's legal conception of cosmopolitanism are examined, focusing on the possibility of an ethical cosmopolitan order based on jurisprudence, the necessity of a minimal consensus bound by constitutional provisions, and the corresponding legal obligations maintained by cosmopolitan law. (shrink)

This article explores the role of constitutional thought in Latour’s work on cosmopolitics. It will study his non-modern proposal in the Politics of Nature (2004) and argue for a constitutional rather than political understanding. To address criticisms of being too metaphysical or unpractical, we will work out the notion of a “constitutional ecology of practices” to highlight how different practices such as politics, science, organization, but also law, all contribute to the design of the stage and processes (...) for composing a common world. Special focus will here be placed on the role of “epigrams”: practical models for ordering contributions of different practices or modes in hierarchical relationships. This renders them identifiable, mobilizable, and contestable as cross-cutting models for shaping mutual relations in concrete collaborative settings. The case of the legal regulation of robots will be presented as an example of a cosmopolitical attempt to introduce non-human entities in the common collective. We will here observe the role that epigrams play in framing, ordering and contesting the epistemic contributions of the various practices involved in this innovation ecology. This case will be used to discuss Latour’s proposals and to study non-modern constitutionalism in action. (shrink)

At first sight constitutionalism appears to be a key concept in public law discourse in the United Kingdom. It appears in all the major academic discussions from the rule of law and judicial review to the ‘new constitutional settlement’ and in relation to constitutional culture. And yet attempts to define the scope, meaning and role of constitutionalism remain vague. This article discusses the different fields in which constitutionalism is discussed and the different meanings that are attributed to the (...) concept. It shows that constitutionalism is routinely conflated by public law scholars with other constitutional values and principles, like the rule of law or separation of powers. This article argues that constitutionalism should either be conceived as distinct from those concepts or, failing that, can safely be eliminated from public law discourse. The article concludes by asking whether a nuanced and normative discussion of constitutionalism could have any meaningful application in the United Kingdom constitution. (shrink)

'The many virtues of Constitutional Justice are evident throughout the piece. The author should be congratulated for even attempting to construct a normative theory of liberal constitutionalism... Constitutional Justice is a work that faithfully carries on the grand tradition of normative legal thought. No small task, and Allan succeeds admirably.' -Law and Politics Book ReviewThis book offers a systematic interpretation of the ideal of the rule of law, arguing that the principles it identifies provide the foundations of a (...) liberal democratic legal order. It explains the essential connections between a range of matters fundamental to the relationship between citizen and state, including freedoms of speech and conscience, civil disobedience, procedural fairness, administrative justice, the right of silence, and equal protection or equality before the law. The principles of public law are interpreted in the light of liberal legal and political philosophy.Readership: Scholars and students of law, philosophy, and politics. (shrink)

The contributions in this volume cover five main themes centring on constitutionalism and democracy: substantive views, procedural views, reconciling substance procedures, populist constitutionalism, and constitutional democracy beyond the nation state.