This book is the second in a series of volumes on the Sociology of Constitutions. This volume focuses on the rise of transnational constitutional laws, primarily created by the interaction between national and international courts and by the domestic transformation of international law. Through detailed analysis of patterns of institutional formation at key historical junctures in a number of national societies, it examines the social processes that have locked national states into an increasingly transnational constitutional order, and it explains how the growth of global constitutional norms has provided a stabilizing framework for the functions of state institutions. The book adopts a distinctive historical–sociological approach to these questions, examining the deep continuities between national constitutional law and contemporary models of global law. The volume makes an important contribution to the sociology of constitutional law, to the sociology of post-national legal processes and to the sociology of human rights law.

The Sociology of Transnational Constitutions

This article reviews several functional explanations that have been given to the dramatic spread of proportionality (early legal development, conflict management, lingua franca, and raw judicial power) and suggests an intrinsic one. Proportionality, we believe, is essentially a requirement for justification, which represents a profound shift in constitutional law on a global level. We characterize this, following South African scholar Etienne Mureinik, as a shift from a culture of authority to a culture of justification. At its core, a culture of justification requires that governments should provide substantive justification for all their actions, by which we mean justification in terms of the rationality and reasonableness of every action and the trade-offs that every action necessarily involves, i.e., in terms of proportionality. We identify several features of Western constitutional systems that have evolved after World War II, and that support the culture of justification. These include a broad conception of rights, a broad approach to constitutional interpretation with an emphasis on principles and values rather than on text, low barriers to substantive review, and no legal “black holes” (areas and actions with respect to which government needs to provide no justification). Most importantly in terms of our review, it involves a two-stage form of judicial review, identifying the infringement of the right, and justifying the infringement, with an emphasis on the second stage of justification. We also suggest two preliminary historical explanations for the rise of the culture of justification. One is its connection to the rise of the human rights ideology which developed after WWII, and which provided a response to the threats of nationalism and populism. The other is its roots in the optimistic belief in rationality and reason that can be traced to the nineteenth-century German legal science movement. We end our review by characterizing the gradual shift towards proportionality and the culture of justification as a shift towards an administrative model of constitutional law, which we term the “administrization” of constitutional law.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1623397_code369711.pdf?abstractid=1623397&rulid=64183&mirid=4

Proportionality and the Culture of Justification

Hardly known twenty years ago, exclusion from public space has today become a standard tool of state intervention. Every year, tens of thousands of homeless individuals, drug addicts, teenagers, protesters and others are banned from parts of public space. The rise of exclusion measures is characteristic of two broader developments that have profoundly transformed public space in recent years: the privatisation of public space, and its increased control in the 'security society'. Despite the fundamental problems it raises, exclusion from public space has received hardly any attention from legal scholars. This book addresses this gap and comprehensively explores the implications that this new form of intervention has for the constitutional essentials of liberal democracy: the rule of law, fundamental rights, and democracy. To do so, it analyses legal developments in three liberal democracies that have been at the forefront of promoting exclusion measures: the United Kingdom, the United States, and Switzerland.

Exclusion from Public Space: A Comparative Constitutional Analysis

This volume focuses on the rise of transnational constitutional laws, primarily created by the interaction between national and international courts, and by the domestic transformation of international law. Through detailed analysis of patterns of institutional formation at key historical junctures in a number of national societies, it examines the social processes that have locked national states into an increasingly transnational constitutional order, and it explains how the growth of global constitutional norms has provided a stabilizing framework for the functions of state institutions. The book adopts a distinctive historical-sociological approach to these questions, examining the deep continuities between national constitutional law and contemporary models of global law. The volume makes an important contribution to the sociology of constitutional law, to the sociology of post-national legal processes, and to the sociology of human rights law. This title is also available as Open Access.

/pdf/a-sociology-of-transnational-constitutions-social-1c286udwf1.pdf

A Sociology of Transnational Constitutions: Social Foundations of the Post-National Legal Structure

ARTICLES 29 and 30 of the Universal Declaration of Human Rights contain a series of limitations to human rights. Article 29(2) states:In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

AJ Rivers

Papers

Proportionality and Variable Intensity of Review