Showing papers on "Constitution published in 2018"

Contestation and Constitution of Norms in Global International Relations

Abstract: Antje Wiener examines the involvement of local actors in conflicts over global norms such as fundamental rights and the prohibition of torture and sexual violence. Providing accounts of local interventions made on behalf of those affected by breaches of norms, she identifies the constraints and opportunities for stakeholder participation in a fragmented global society. The book also considers cultural and institutional diversity with regard to the co-constitution of norm change. Proposing a clear framework to operationalize research on contested norms, and illustrating it through three recent cases, this book contributes to the project of global international relations by offering an agency-centred approach. It will interest scholars and advanced students of international relations, international political theory, and international law seeking a principled approach to practice that overcomes the practice-norm gap.

How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding

Abstract: A dramatic change occurred in Polish constitutional politics in 2015: a combined presidential and parliamentary victory of the populist Law and Justice party [PiS] began a series of deep political and legal changes which turned the constitutional order on its head in many respects. In this paper, I provide a detailed account (in Part 3) of how comprehensive and momentous the legal changes are, in particular going so far as to dismantle institutional checks on the government (including paralysis the Constitutional Tribunal, and then conversion of it into an active supporter of the government) and to erode a number of individual and political rights, such as the right to assembly and privacy. This account is preceded by first outlining the general characteristics of Polish transformation since 2015 (in Part 1), and then explaining why the concept of “anti-constitutional populist backsliding” is the most appropriate way of characterising it (Part 2): it is “anti-constitutional” because it proceeds through statutory “amendments” and outright breaches of the Constitution; it is “populist” because the ruling elite is actively concerned to foment societal support and mobilisation, and it is “backsliding” because it should be seen against the baseline of high democratic standards already achieved in the recent past. After providing this account, I offer tentative explanations of the sources of PiS electoral success and then of its strong popularity in the society (Part 4), and in the Conclusions, I take a step back from the detailed account to offer more general observations about what the Polish case can teach us about the vexed question hotly debated in political sciences and constitutional theory these days, namely whether a “populist democracy” or “illiberal democracy” is still a democracy tout court.

The material constitution

Abstract: What is the material context of constitutional order? The purpose of this paper is to offer an answer to that question by sketching a theory of the material constitution. After examining the historical origins of the material turn in the interwar constitutional theories of Heller and Mortati, the paper outlines the basic elements of the material constitution, specifying its four ordering forces. These are political unity, the dominant form of which remains the modern nation-state; a set of institutions, including but not limited to formal governmental branches such as courts, parliaments, executives, administrations; a network of social relations, including class interests and social movements, and a set of fundamental political objectives (or teloi). These forces constitute the material substance and dynamic process of constitutional ordering. They are not external to the formal constitution but are in internal relation with it. Because these ordering forces are multiple, and in tension with one another, there is no single determining factor of constitutional development. Neither is order as such guaranteed. The conflict that characterizes the modern human condition might but need not be internalised by the process of constitutional ordering. The theory of the material constitution offers an account of the basic elements of this process as well as its internal dynamic.

Praxis: On Acting and Knowing

Abstract: Praxis investigates both the existing practices of international politics and relations during and after the Cold War, and the issue of whether problems of praxis (individual and collective choices) can be subjected to a 'theoretical treatment'. The book comes in two parts: the first deals with the constitution of international relations and the role of theoretical norms in guiding decisions, in areas such as sanctions, the punishment of international crimes, governance and 'constitutional' concern, the second is devoted to 'theory building'. While a 'theorization' of praxis has often been attempted, Kratochwil argues that such endeavours do not attend to certain important elements characteristic of practical choices. Praxis presents a shift from the accepted international relations standard of theorizing, by arguing for the analysis of policy decisions made in non-ideal conditions within a broader framework of practical choices, emphasizing both historicity and contingency.

The Politico-Legal Dynamics of Judicial Review: A Comparative Analysis

Abstract: Comparative scholarship on judicial review has paid a lot of attention to the causal impact of politics on judicial decision-making However, the slower-moving, macro-social process through which judicial review influences societal conceptions of the law/politics relation is less well understood Drawing on the political science literature on institutional change, The Politico-Legal Dynamics of Judicial Review tests a typological theory of the evolution of judicial review regimes - complexes of legitimating ideas about the law/politics relation The theory posits that such regimes tend to conform to one of four main types - democratic or authoritarian legalism, or democratic or authoritarian instrumentalism Through case studies of Australia, India, and Zimbabwe, and a comparative chapter analyzing ten additional societies, the book then explores how actually-existing judicial review regimes transition between these types This process of ideational development, Roux concludes, is distinct both from the everyday business of constitutional politics and from changes to the formal constitution

Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire

Abstract: Almost Citizens lays out the tragic story of how the United States denied Puerto Ricans full citizenship following annexation of the island in 1898. As America became an overseas empire, a handful of remarkable Puerto Ricans debated with US legislators, presidents, judges, and others over who was a citizen and what citizenship meant. This struggle caused a fundamental shift in constitution law: away from the post-Civil War regime of citizenship, rights, and statehood, and toward doctrines that accommodated racist imperial governance. Erman's gripping account shows how, in the wake of the Spanish-American War, administrators, lawmakers, and presidents together with judges deployed creativity and ambiguity to transform constitutional meaning for a quarter of a century. The result is a history in which the United States and Latin America, Reconstruction and empire, and law and bureaucracy intertwine.

The Communicative Constitution of Hate Organizations Online: A Semantic Network Analysis of “Make America Great Again”:

Abstract: In the context of the 2016 U.S. Presidential Election, President Donald Trump’s use of Twitter to connect with followers and supporters created unprecedented access to Trump’s online political camp...

‘Behead, burn, crucify, crush’: Theorizing the Islamic State’s public displays of violence:

Abstract: The militant group known as the Islamic State has become notorious for its public displays of violence. Through slick high-definition videos showing beheadings, immolations and other forms of choreographed executions, the Islamic State has repeatedly captured the imagination of a global public and provoked vehement reactions. This article examines the Islamic State’s public displays of violence. Contrary to the public constitution of the Islamic State’s violence as an exceptional evil, the article argues that the group’s staging of killings and mutilations is not an unprecedented phenomenon, but a contemporary version of a distinct type of political violence that has been mobilized by various political agents throughout centuries. However, what is new and significant about the Islamic State’s choreographed executions is the public visibility of the acts and the global spectacle that the group has created. Thus, if the Islamic State is introducing a new dynamic in global politics, it is not a new form of v...

Unravelling semi-presidentialism: democracy and government performance in four distinct regime types

Abstract: Do semi-presidential regimes perform worse than other regime types? Semi-presidentialism has become a preferred choice among constitution makers worldwide. The semi-presidential category contains a ...

Australia's Constitution after Whitlam

Abstract: Australia's constitutional crisis of 1975 was not simply about the precise powers of the Senate or the Governor-General. It was about competing accounts of how to legitimate informal constitutional change. For Prime Minister Gough Whitlam, and the parliamentary tradition that he invoked, national elections sufficiently legitimated even the most constitutionally transformative of his goals. For his opponents, and a more complex tradition of popular sovereignty, more decisive evidence was required of the consent of the people themselves. This book traces the emergence of this fundamental constitutional debate and chronicles its subsequent iterations in sometimes surprising institutional configurations: the politics of judicial appointment in the Murphy Affair; the evolution of judicial review in the Mason Court; and the difficulties Australian republicanism faced in the Howard Referendum. Though the patterns of institutional engagement have varied, the persistent question of how to legitimate informal constitutional change continues to shape Australia's constitution after Whitlam.

The Adventures of the Constituent Power: Beyond Revolutions?

Abstract: Constitutions are made in almost all transformation of regimes. What are the dangers and the hopes associated with such a process? What can make constitution-making legitimate? The Adventures of the Constituent Power explores the democratic methods by which political communities make their basic law, arguing that the most advanced method developed from Spain and South Africa. The first part of this book focuses on history of the idea of constitution-making, before and during the democratic revolutions of the eighteenth century. The second part traces the notion of the constituent power in recent regime transitions that were consciously post-revolutionary, from Spain to South Africa. With the return of revolutions or revolutionary patterns of constitution-making, the book examines the use and potential failure of the new ideas available. The third part then proceeds to consider the type of constitution that is likely to emerge from the post-sovereign process.

Asymmetric Constitutional Hardball

Abstract: Many have argued that the United States' two major political parties have experienced "asymmetric polarization" in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar—and causally related—trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal scholars, they have not done so with the same frequency or intensity. After defining constitutional hardball and defending this descriptive claim, this Essay offers several overlapping explanations. Asymmetric constitutional hardball grows out of historically conditioned differences between the parties' electoral coalitions, mediating institutions, views of government, and views of the Constitution itself. The "restorationist" constitutional narratives and interpretive theories promoted by Republican politicians and lawyers, the Essay suggests, serve to legitimate the party's use of constitutional hardball. Finally, and more tentatively, this Essay looks to the future. In reaction to President Trump, congressional Democrats have begun to play constitutional hardball more aggressively. Will they close the gap? Absent a fundamental political realignment, we submit that there are good structural and ideological reasons to expect the two parties to revert to the asymmetric pattern of the past twenty-five years. If this prediction is correct, it will have profound long-term implications both for liberal constitutional politics and for the integrity and capacity of the American constitutional system.

A Comparative Study on the Constitutional Right to Health in the Western Pacific Region Countries

Abstract: We examined the constitutional provisions on the right to health in the Western Pacific region countries and compared universal health coverage (UHC) achievement. In 9 of the 11 countries, the constitution had provisions related to health rights, of which 7 countries also included details related to the health care system. Additionally, 5 countries also had provisions for the vulnerable. The countries with weak state obligation and no clear provisions on health rights (China and Laos) all recorded low UHC achievement scores. Australia and Malaysia, which do not have constitutional provisions regarding health, have achieved high UHC achievement scores. Constitution is the supreme law of a country and the basis for developing and implementing health and medical laws and policies. In addition, laws or constitutions that regulate the rights to health can help gain access to health care. Follow-up research related to the constitutional right to health will be needed.

Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws

Abstract: The first year of law school makes an enormous impact upon the mind. Many students remark upon the phenomenon. They exp~rience a sort of intellectual rebirth, the acquisition of a whole new mode of perceiving and thinking. Thereafter, even if they do not yet know much law, they do-as the expression goe~"think like a lawyer." The overwhelming majority of the courses taught in that first year, and surely the ones that have the most profound effect, teach the substance, and the methodology, of the common law-torts, for example; contracts; property; criminal law.

The architecture of emergency constitutions

Abstract: Nine of ten countries currently have emergency provisions written into their constitutions, here simply referred to as emergency constitutions. The nature of these provisions remains poorly understood. We therefore aim at providing answers to two questions: (i) how much additional discretionary power do emergency constitutions allow and which political actors are given the additional power; and (ii) is there a limited number of “typical” emergency constitutions that combine various aspects in similar or even identical fashion? To answer the first question we construct an Indicator of Emergency Powers (INEP) which takes six central elements of emergency provisions explicitly into account. To answer the second question, we draw on cluster analysis and identify six well-defined clusters. Both the INEP as well as the six clusters allow us to answer important follow-up questions such as what the factors are that determine a country’s choice of emergency constitution but also under what conditions governments are likely to declare a state of emergency given the prevalent emergency constitution.

From the 2005 Constitution’s ‘Permissive Consensus’ To TTIP’s ‘Empowering Dissensus’: The EU as a Playing Field for Spanish Civil Society

Abstract: Luis Bouza is grateful for the co-funding of Jean Monnet action 587167- EPP-1-2017-1-ES-EPPJMO ‘EU Communication Policy in times of Crisis: Challenge or Miracle?’ as well as the Erasmus+ Programme of the European Union

The Constitution and Nature of Money

Abstract: I take the opportunity to elaborate and clarify the positioning theory of money in response to the critique of it provided by Geoffrey Ingham.

In Defense of Progressive Legal Historiography

Abstract: This article surveys the debate between “progressives” and “revisionists” about the Constitution and constitutional interpretation during the late nineteenth and early twentieth centuries. Contemporary revisionist scholarship assumes that its victory over progressive scholarship is complete. The article suggests otherwise. First, it summarizes the revisionists’ achievements. Second, in an attempt to improve the quality of the debate, it maintains that “revisionist” and “progressive” legal historians undermine their cases by using words like “progressive,” “Gilded Age,” and “Jacksonian,” and that “revisionist” is not an enlightening term, either. Third, it contends that revisionists have made straw men out of the progressives, whose diversity and contributions they ignore, and that they have shown a lack of empathy for the circumstances facing the progressives. At considerable risk, progressives called attention to the relevance of political calculation, economic self-interest, and biography to understanding the Constitution, constitutional interpretation, and judicial power. The article also observes that revisionists have not yet won the day and that there are still “progressive” holdouts in the legal academy and history departments. Finally, it argues that like the work of “revisionists,” the scholarship of the “progressives”—particularly if we rechristen both—still has something to teach us and that it is time to abandon the familiar dialectic of thesis and antithesis and turn to synthesis.

Written Differently: A Survey of Commonwealth Constitutional History in the Age of Decolonisation

Abstract: This article provides a survey and definition of the field of Commonwealth constitutional history since 1918, especially during and after global decolonisation. It asks what is Commonwealth...

Utilitarianism in the Age of Enlightenment : The Moral and Political Thought of William Paley

Abstract: This is the first book-length study of one of the most influential traditions in eighteenth-century Anglophone moral and political thought, 'theological utilitarianism'. Niall O'Flaherty charts its development from its formulation by Anglican disciples of Locke in the 1730s to its culmination in William Paley's work. Few works of moral and political thought had such a profound impact on political discourse as Paley's Principles of Moral and Political Philosophy (1785). His arguments were at the forefront of debates about the constitution, the judicial system, slavery and poverty. By placing Paley's moral thought in the context of theological debate, this book establishes his genuine commitment to a worldly theology and to a programme of human advancement. It thus raises serious doubts about histories which treat the Enlightenment as an entirely secular enterprise, as well as those which see English thought as being markedly out of step with wider European intellectual developments.

The Supreme Court of India on euthanasia: Too little, too late.

Abstract: On Friday, March 9, 2018 the five-judge Constitution Bench (CB) of the Supreme Court of India (SCI) chaired by Dipak Misra, the Chief Justice of India, pronounced its judgment (1) (henceforth CC judgment) granting, for the first time in India, legal recognition to "advanced medical directives" or "living wills", ie, a person's decision communicated in advance on withdrawal of life-saving treatment under certain conditions, which should be respected by the treating doctor/s and the hospital. It also reiterates the legal recognition of the right to "passive euthanasia"; and draws upon Article 21 - the right to life - of the Constitution of India (henceforth Constitution) (2) interpreting robustly that the "right to life" includes the "right to die with dignity". Justices Misra and Khanwilkar disposed of the writ petition filed in 2005 by Common Cause (3) (henceforth CC petition) saying, "The directive and guidelines shall remain in force till the Parliament brings a legislation in the field" (1:p 192).

A People's Constitution: The Everyday Life of Law in the Indian Republic

Abstract: “What difference did the enactment of the the Indian constitution make on everyday lives of its citizens? It has long been contended that the Indian Constitution of 1950, a document in English created by elite consensus, has had little influence on India’s greater population. Drawing upon the previously unexplored records of the Supreme Court of India, A People’s Constitution upends this narrative and shows how the Constitution actually transformed the daily lives of citizens in profound and lasting ways. This remarkable legal process was led by individuals on the margins of society, and Rohit De looks at how drinkers, smugglers, petty vendors, butchers, and prostitutes—all despised minorities—shaped the constitutional culture.

The Constitution of Ireland : a contextual analysis

Abstract: 1. Beginnings, Influences and Evolution 2. Constitutional Foundations 3. Government and Oireachtas 4. The President 5. Legislative Power and Interpretation 6. Governance and Public Administration 7. Political Constraints on the Government 8. Courts and the Legal Constraint of the Government 9. Fundamental Rights and Judicial Power 10. Constitutional Change 11. Conclusion

Conventionality control and Amendment 95/2016: a Brazilian case of unconstitutional constitutional amendment

Abstract: This article presents reflections on Brazilian Constitutional Amendment 95/2016, which established the New Tax Regime and consequently the ceiling of public spending in Brazil for a period of twenty years, which has serious consequences for Brazilian public services. The hypothesis defended in the study is that Amendment 95/2016 is an unconstitutional constitutional amendment, since it violates the essence of the Social State present in the original text of the 1988 Constitution and has direct influences on the guarantee of fundamental rights, which constitute stone clauses (clausulas petreas). Thus, the study starts with the technical analysis of the Amendment. Next, the concept and content of the stone clauses in the Brazilian constitution are analyzed to propose the possibility of conventionality control as an alternative, focusing on the Intermerican Convention on Human Rights, UN Convention on the Rights of Persons with Disabilities and International Covenant on Economic, Social and Cultural Rights. It is concluded that conventionality control of the Amendment is imperative. The methodology used is the bibliographic analysis on the themes, as well as the projection of data on the economic and social effects of Amendment 95/2016.

The constitutional crisis in Poland, Schmittian questions and Kaczyński’s political and legal philosophy

Abstract: Between 2007 and 2015, the ruling party of Poland was the pro-European, liberal-conservative and strict fiscal policy-oriented Civic Platform. In 2015, Civic Platform lost in both the presidential ...

Plunging into the Sea: Ideological Change, Institutional Environments and Private Entrepreneurship in China.

Abstract: This paper examines the integration of Chinese Communist Party membership and private entrepreneurship in China after 2002, when the Party revised its constitution and officially removed ideological discrimination against private entrepreneurs. Using six waves of a nationwide survey of privately owned enterprises in China from 1997 to 2008, we find that the constitutional change led to an exodus of Party members, and particularly senior officials, into the private sector. On the contrary, very few private entrepreneurs were admitted to the Party. The exodus of Party members was more prominent in regions with weaker market-supporting institutions. After the reform, Party affiliation is also shown to provide considerable private benefits to entrepreneurs, in the form of easier access to loans from state owned banks, reduced government expropriation, improved firms’ performance. These political rents were larger in regions with weaker market-supporting institutions.

Implementing Islamic Constitutionalism: How Islamic Is Indonesia Constitution?

Abstract: Religious constitutionalism has recently become a global discussion. Such a trend arises as a result of several countries that have a majority of religious adherents declare their constitution based on certain religions. Thailand, for example, provides special norms about Buddhism (Buddhist constitutionalism), the Vatican has special norms about Catholicism (Catholic constitutionalism), India has special norms about Hinduism (Hindu constitutionalism), Saudi Arabia has norms specifically about Islam (Islamic constitutionalism), and so on. This article analyzes whether or not the Islamic principles have been adopted in the Indonesian Constitution. These principles consist of protecting religion, soul, mind, offsprings, and property. The author uses the five principles as a standard in measuring the entire Indonesian Constitution which constitutes to the teachings of Islam (Islamic constitutionalism). The implementation of Islamic constitutionalism can be identified through articles in the constitution. This study concluded that, in general, the Indonesian constitution could be considered to have agreed to Islamic constitutionalism, although in some cases it still needs to be actualized more.

Allegories of America : narratives, metaphysics, politics

Abstract: Allegories of America offers a bold idea of what, in terms of political theory, it means to be American. Beginning with the question What do we want from a theory of politics? Dolan explores the metaphysics of American-ness and stops along the way to reflect on John Winthrop, the Constitution, 1950s behavioralist social science, James Merrill, and William Burroughs. The pressing problem, in Dolan's view, is how to find a vocabulary for politics in the absence of European metaphysics. American political thinkers, he suggests, might respond by approaching their own theories as allegories. The postmodern dilemma of the loss of traditional absolutes would thus assume the status of a national mythology-America's perennial identity crisis in the absence of a tradition establishing the legitimacy of its founding. After examining the mid-Atlantic sermons of John Winthrop, the spiritual founding father, Dolan reflects on the authority of the Constitution and the Federalist. He then takes on questions of representation in Cold War ideology, focusing on the language of David Easton and other liberal political "behaviorists," as well as on cold War cinema and the coverage of international affairs by American journalists. Additional discussions are inspired by Hannah Arendt's recasting of political theory in a narrative framework. here Dolan considers two starkly contrasting postwar literary figures-William S. Burroughs and James Merrill-both of whom have a troubled relationship to politics but nonetheless register an urgent need to articulate its dangers and opportunities. Alongside Merrill's unraveling of the distinction between the serious and the fictive, Dolan assesses the attempt in Arendt's On Revolution to reclaim fictional devices for political reflection.