Showing papers on "Constitution published in 2019"

The Communicative Constitution of Organization, Organizing, and Organizationality:

Abstract: Although the lion’s share of scholarship in management and organization studies conceives of organizations as entities within which communication occurs, “Communication Constitutes Organization” (C...

The Reformation Suits: Litigation as Constitution-Making in a German Imperial Court, 1521-1555

Abstract: Author(s): Ludin, Sarah Monira | Advisor(s): Lieberman, David | Abstract: Martin Luther was declared a heretic and outlaw in 1521. In the years that followed, dozens of city councils and princely rulers nevertheless undertook changes in their domains to reform church and polity in the Lutheran manner. In practice, introducing reformation in a particular place involved violations of local customary law, canon law, civil law, or imperial law. Thus, reformation spawned litigation. Attempts throughout the first half of the sixteenth century to resolve disputes that had arisen out of local reformations through arbitration, imperial-level negotiations, religious colloquies, and a church council did little to stop “old-faith” (altglaubig) clergy and church authorities from suing proto-Protestant princes and cities. The most consequential litigation of this period took place in the Imperial Chamber Court, a Roman civil law court that had been established in 1495. With a stable location (that did not travel with the Emperor), and judges appointed by both Emperor and Estates, the Imperial Chamber Court was the first Empire-wide judicial forum that aspired to be independent of the personal justice of the Emperor. In this relatively new, and initially unstable, Roman law court, old-faith litigants sued princes and cities for violating the Land-Peace, confiscating church property, seizing jurisdiction, and other illegal acts. Because its first-instance litigants were primarily princes and cities directly subject to the Emperor, the litigation also had the character of public law.This dissertation is a socio-legal history of Reformation-related litigation that appeared in the Imperial Chamber Court prior to the 1555 Augsburg Religion-Peace. It offers a new kind of legal history of the Reformation. The legal history of the early German Reformation has primarily been the territory of intellectual historians, theologians, and scholars of public law. Their focus on political negotiations, watershed treaties, theological writings, and top-down legislative output, while invaluable, tell us only part of the story. My work, by contrast, elevates the importance of civil litigation as a distinctly important forum in which the Reformation unfolded. I show that legal praxis—the work of classification, of performative speech acts, and of experimentation in high-stakes contexts—are just as important, if not more important, than politics and doctrine for understanding the legal significance of the Reformation. The Reformation holds a particular potency in the historiography of the Christian West as an originary moment for forms of political arrangement and social life that would recognize and acknowledge internal Christian difference, and, eventually, an ever-expanding circle of worldviews. In particular, historians have tended to look to the Augsburg Religion-Peace of 1555 as the headwaters variously of modern secularism, religious freedom, the rule of law, and sovereignty. I argue that we need to look to the early decades of the Reformation to understand what precisely the Peace was aiming to settle and contain. A careful examination of civil litigation can help us account for the most consequential legal transformation of the early Reformation period: while in 1521 Lutheranism was outlawed as a heresy (in the Edict of Worms), in 1555 it was recognized as a legal confession (in the Augsburg Peace). Put another way, we cannot understand how the Holy Roman Empire got from Worms to Augsburg without understanding the Reformation cases. This dissertation also provides a new genealogy for “religion” as a secular legal category. While historians have tended to look to the Enlightenment for a point of origins of “religion” as an academic category, or to the Augsburg Peace as its origins as a political-legal category, in fact, the question of what counted as a “matter of religion” was a key issue as early as the 1520s in the context of Reformation litigation. My research shows how the deep ambiguity of the term “religion” in these cases was decisive in shaping the Augsburg Peace and imperial public law.Finally, my dissertation offers a new way of understanding the impact of Protestantism on modern law. Rather than examining how Protestant rulers reformed law in their domains, or the writings of theologians like Luther and Melanchthon on law, my dissertation analyzes the ways in which Protestant litigants experimented with imperial law in the context of high-stakes litigation. I identify certain patterns of usage that can help explain some of the features of the post-1555 imperial system—including its recognition of multiple “religious parties,” its increased investment in the consolidation of state institutions to manage agonistic difference, and the formation of two distinct legal interpretive universes along confessional lines which eventually destabilized the Augsburg system in the seventeenth century.For readers interested in law and legal history, they will find an exposition of fundamental questions of lawmaking in the Holy Roman Empire, and the way this legal culture shaped how the Reformation unfolded in the German lands. For readers interested in the Reformation, they will find a new approach to considering the role of law in this period, and its consequences on modern law. For readers interested in secularism, they will find a fresh scene in which the religion category gets re-invented, and a detailed examination of the role of the Reformation in producing the particular intractability of “religion” as we have inherited it in late modernity.

The gender turn in diplomacy: a new research agenda

Abstract: This article argues that the (re-)constitution of diplomacy is intimately linked to gender and the practices of exclusion and inclusion of women and men over time. While the big debates in both aca...

The Constitution of Markets: Essays in Political Economy

Abstract: 1: Constitutionally constrained and safeguarded competition in markets and politics 2: Markets and regulation: The contrast between free-market liberalism and constitutional liberalism 3: The Freiburg school of law and economics: Predecessor of constitutional economics 4: Hayek's legacy and the future of liberal thought: Rational liberalism vs. evolutionary agnosticism 5: Hayek's theory of rules and the modern state 6: John R. Commons: Institutional evolution through purposeful selection 7: The market as a creative process (with James R. Buchanan) 8: A constitutional economics perspective on international trade

Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism

Abstract: Since the 1980s, a ritualized opposition in legal thought between a conservative 'originalism' and a liberal 'living constitutionalism' has obscured the aggressively contested tradition committed to, and mobilization of arguments for, constitutional restoration and redemption within the broader postwar American conservative movement. Conservatives and the Constitution is the first history of the political and intellectual trajectory of this foundational tradition and mobilization. By looking at the deep stories told either by identity groups or about what conservatives took to be flashpoint topics in the postwar period, Ken I. Kersch seeks to capture the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition. Conservatives and the Constitution makes a unique contribution to our understanding of modern American conservatism, and to the constitutional thought that has, in critical ways, informed and defined it.

Kenya's 2017 elections : winner-takes-all politics as usual?

Abstract: This article asks what Kenya’s 2017 general elections tell us about the capacity of a new constitution to reduce the stakes of political competition and prospects of political instability. Three constitutional changes are particularly important: the adoption of a 50% + 1 threshold for the presidential election; the devolution of power to 47 county governments; and the introduction of a Supreme Court with the right to hear presidential electoral petitions. We find that the impact of the 2010 constitution has been mixed. The 50% plus 1 threshold encouraged coalition formation, but this dynamic has long been evident. Devolution has given a wider set of Kenyans a stake in the system, but has also created new structures that can be used to channel dissent against the state. The Supreme Court demonstrated its capacity to act as an independent institution, but did little to sustain electoral legitimacy. Indeed, while the 2010 constitution has clearly reshaped the political landscape, it was a personal deal that ended the post-election impasse. The elections therefore demonstrate how formal institutions alone cannot change political logics and reveal the continued significance of individual politicians and informal institutions that may compete with or complement their formal counterparts.

A constitutional moment?: The logics of ‘hitting the bottom’

Abstract: The article draws a bow from self-harming growth compulsions of social systems, over the moment of near-catastrophe, to new orientations, which cannot be effected from the outside but, rather, only through the transformation of their ‘inner constitution’. (1) In order to understand the recent global financial crisis, we should not rely on factor analysis alone. Instead, we should look for the underlying self-destructive growth compulsions of information flows - in other words, for phenomena of collective addiction. (2) ‘Hit the bottom’ refers to the constitutional moment when either a catastrophe begins, or societal forces for change are mobilised of such intensity that the ‘inner constitution’ of the economy transforms under their pressure. (3) Plain money reform is one of several examples that illustrate a capillary constitutionalisation of the global economy, the effects of which could not be achieved through either national or transnational interventions of the world of states. (4) The dichotomy constitutional/unconstitutional develops into a binary meta-code within the structural coupling between the economy and law, and is ordered above both the legal code and the economic code.

The synergy between employment policies and cooperatives with regard to new forms of work. An overview based on Spanish constitutional law

Abstract: This text explains how active employment policies and cooperatives are perfectly suited to fulfil the mandates outlined in the 1978 Spanish Constitution in relation to the promotion of cooperatives (Article 129.2), and to policies oriented towards full employment (Article 40.1), which fall under the overall protection of social rights. After analysing the provisions contained in these two articles, details are provided as to how the economic crisis and the strict balanced budget policies that ensued have also weakened the constitutional protection of social rights, with the adoption of regressive measures whose compatibility with the Constitution has been accepted by the Spanish Constitutional Court (despite divided opinions among the Court’s members). Finally, an analysis is conducted of the options available within the Spanish legal system to protect and encourage cooperative societies. It is then argued that cooperatives can be a very useful instrument to create employment, even within the most innovative and dynamic sectors of the economy. These sectors include, for example, the collaborative economy (which includes the digital economy), the ‘white economy’, the ‘green economy’ and the ‘circular economy’. Received : 01 October 2018 Accepted : 07 March 2019 Published online : 22 July 2019

Polycentric Sovereignty: The Medieval Constitution, Governance Quality, and the Wealth of Nations

Abstract: We extend the theory of market-preserving federalism by ascertaining under what conditions it is likely to prevail. We argue that political-economic systems characterized by polycentric sovereignty — a self-enforcing structure of political property rights that links governance rights with governance revenues, and affords holders of political property rights a check on potentially predatory behavior — will promote market-preserving federalism. We show how the estates system of Medieval Europe was an example of polycentric sovereignty. We also show how the 17th Amendment to the U.S. Constitution represented a degradation of polycentric sovereignty. We conclude by discussing the relationship between governance systems characterized by polycentric sovereignty and social wealth creation, arguing that the structure of political property rights in a governance system is an important characteristic that has hitherto been neglected.

Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler

Abstract: After the electoral victories of 2015, PiS transformed the CT from an effective, counter-majoritarian device to scrutinise laws for their unconstitutionality, into a powerless institution paralysed by consecutive bills rendering it unable to review new PiS laws, and then into a positive supporter of the enhanced majoritarian powers. In a fundamental reversal of the traditional role of a constitutional court, it is now being used to protect the government from laws enacted long before PiS rule. Whatever else constitutional courts around the world are expected to do, there is no doubt that their first and primary function is to ensure adherence to a constitution and its protection against legislative majorities. In Poland, the Tribunal became a defender and protector of the legislative majority. This changed role, combined with general distrust of the CT and concerns about legitimacy of its judgments, explains also the extraordinary drop in the number of its judgments. For all practical purposes, the CT as a mechanism of constitutional review has ceased to exist: a reliable aide of the government and parliamentary majority has been born.

From Alma-Ata to Astana. Primary health care and universal health systems: an inseparable commitment and a fundamental human right

Abstract: The Brazilian National Constitution of 1988 acknowledges the link between economic and social development and environmental conditions in the determination of the health-disease process and defines “health as the right of all and the state’s duty”. The 1988 Constitution creates a universal public health system, the Brazilian Unified National Health System (SUS), with a 30-year history in pursuit of the principles of universality, comprehensiveness, equity, and social participation.

Being There Is Half the Battle: Group Inclusion, Constitution-Writing, and Democracy:

Abstract: Using an original data set assessing the effect of the 195 new constitutions worldwide over the past 40 years on levels of democracy, this article argues that when popular participation and group i...

Introduction: The ethical constitution of energy dilemmas

Abstract: This project has received funding from the European Research Council (ERC) under the European Union's Horizon 2020 research and innovation programme under grant agreement No 715146. The authors also acknowledge the funding received to carry out the research from the Leverhulme Trust (ECF‐2013‐177), the British Academy (EN150010 and VF1101988), the National Endowment for the Humanities, and the National Science Foundation (1540298).

Creating Authoritarian Clientelism: Poland After 2015

Abstract: Since the 2015 elections, Poland has ‘enjoyed’ the attention of social sciences—political science in particular—to an extent greater than at any time since the period of “Solidarity” in the early 1980s. In contrast to that period, Poland’s idiosyncratic development over the last two and a half years can hardly be said to play the function of a normative role model. Political developments in Poland in recent times devolve into two stories: one of profound civilizational, economic and social development prior to the 2015 elections; the other of an unexpected and sudden shift toward the dismantling of the liberal democratic system after the Law and Justice (PiS) party came to power in late 2015. The first part of this article describes the most important features of pre-2015 political developments in Poland and identifies key determinants of vote choice in the 2015 parliamentary election in Poland. In brief, this analysis shows two things: that there was no ‘demand’ for systemic change at these elections, and that support for the winning party was mainly determined by socio-cultural factors rather than economic ones. The second part of the article aims to answer the question of why the PiS government has embarked on a course of political action that violates both the abstract principles of liberal democracy and concrete, binding provisions of Poland’s 1997 Constitution. Several theoretical and speculative ideas are offered in answer to this question.

Illiberal Constitutionalism: The Case of Hungary and Poland

Abstract: This Article argues that, as far as Hungary and Poland are concerned, the use of term “illiberal constitutionalism” is justified. It also claims that, without denying that other states could also be considered illiberal democracies, Hungary and Poland display unique and distinctive features. These features include populist politics, which lead to the relativization of the rule of law and democracy principles, and human rights protection, which captured the constitution and constitutionalism by constitutionalizing populist nationalism, constitutional identity, and created new patrionalism and clientelism. All these features are supported by the ideological indoctrination of political constitutionalism. In the course of this process, formal and informal constitutional amendments are used, and a formal sense of constitutional democracy is maintained. Overturning these illiberal democracies by constitutional and legal means, at this time, seems doubtful, if not impossible.

The idea of a national curriculum in Australia: What do Susan Ryan, John Dawkins and Julia Gillard have in common?

Abstract: What happens in classrooms may seem far away from the politics of Canberra, but since the early 1980s there have been concerted attempts on the part of successive Commonwealth governments to influence directly what happens in classrooms. The problem with this is that education in general was never intended to be a responsibility of Federal governments. In the division of roles and powers between different levels of government, the Australian constitution made it clear that education was reserved as a responsibility for State (and eventually Territory) governments. Thus what Commonwealth governments have tried to do over time is gradually shift this responsibility so at the very least it is regarded as shared. This shift has taken place gradually with Commonwealth governments inching their way forward making a little progress with each move. While the move has been supported by both major political parties, major strides were made by the Australian Labour Party with a succession of Minsters for whom “national” approaches to education had a particular attraction. Sometimes the motivation was equity, at other times it was about linking the curriculum to the economic needs of the nation, and for form; it was about efficiency in both the development and delivery of curriculum. These three motives have been present throughout the last four decades. This paper examines the evolution of what was initially conceived of as a “nationally consistent curriculum” then became a focus on “national curriculum” and eventually morphed into the Australian Curriculum. While this process is linked to three particular government Ministers – Susan Ryan, John Dawkins and Julia Gillard – it is a nation’s story about the importance of learning and attempts to transform “the lucky country” into “the clever country”.

The Transnational Constitution of Europe's Social Market Economies: A Question of Constitutional Imbalances?

Abstract: Throughout its history the European integration process has not undermined but rather strengthened the autonomy of member states vis‐a‐vis wider societal interests in relation to political economy, labour markets and social provisions. Both the ‘golden age nation state’ of the 1960s as well as the considerable transformations of member state political economies over the past decades, and especially after the euro‐crisis, was to a considerable degree orchestrated through transnational, most notably European, arrangements. In both cases the primary objective has been to strengthen state capacities of public power and law against the encroachment of private interests into the state. In spite of this continuity, considerable changes can be observed in the substantial economic policies advanced due to the switch from a Keynesian to a monetarist economic paradigm. It is suggested that the debate on constitutional imbalances between the EU's economic and social constitutions should be seen in this light.

Shared stories and creative dissonances: Transnational literary projects and European identity

Abstract: In publications addressing literary reflections on Europe, little attention has been paid to emerging cultural networks, the role of EU subsidies, or literary organisations engaging writers in initiatives aimed at contemplating the challenges that the European Union faces. This dissertation aims to explain the role of new initiatives by presenting four recent, transnational literary projects as case studies: the “Literatur Express Europa 2000”; “The European Constitution in Verse”; “Narratives for Europe”; and “The Return of Europe”. The projects were analysed through an examination of three fundamental aspects: the expectations held by the cultural organisations regarding their initiatives; the cultural artefacts resulting from the projects; and the effects of the projects in the public sphere. By selecting literary projects about Europe as case studies, rather than individual authors or texts, this research allows for an interdisciplinary approach that reveals the interaction between EU politics, civil society, cultural networks, and individual authors.

Commemorative Lawmaking: Memory Frames of the Democratic Backsliding in Poland After 2015

Abstract: The article discusses the part played by collective memory in the current threat to the rule of law in Poland. The starting point is the concept of commemorative lawmaking and a critical discussion of the use of the concept of memory laws in recent scholarship. An analysis of framing operations performed by PiS memory politics offers examples of how the notion of commemorative lawmaking can be deployed in order to explore techniques of legal governance of memory, including bricolage (illustrated by the case of Polish Constitution of 1997), retouch (exemplified by recent reform of Polish judiciary) and re-stylization (analysis based on the Act on National Institute of Remembrance of 2018). The article concludes with an exploration of the intrinsic connection between the threat to the rule of law in Poland and memory politics of the current Polish government, accompanied by a discussion of possible further developments in the field of law and memory studies.

Constitutional othering, ambiguity and subjective risks of mobilization in Hungary: examples from the migration crisis

Abstract: This article discusses how an illiberal regime within the European Union (EU) can hinder the mobilization of citizens and civil actors by creating an atmosphere of “ambiguity”. In our analysis, we first discuss the Hungarian constitution of 2011, which provides the driving force of the regime, and next using the example of the migration crisis show how this atmosphere of ambiguity is created. We argue that although there is no physical violence present, opponents of the regime are disheartened to act because of the general atmosphere relying on the logic of constitutional othering, dividing the world into its enemies and friends and shifting from the rule of law to ruling by law. While the regime’s gaudy campaigns against immigrants, non-governmental organizations (NGOs), the Central European University, the EU or George Soros are omnipresent, we aim to go deeper and highlight the mechanism through which the regime manages to discourage citizens from voicing their discontent.

Rationality of Reincorporating the Reserved Seat Provision in the Constitution of The People’s Republic of Bangladesh

Abstract: The Constitution (17th Amendment) Act 2018, passed on this 8th July 2018, provides for the tenure of the reserved seats for women in Parliament to be extended for a period of 25 years from the first day of the 11th parliament. In Bangladesh, there is a consensus in general that women’s political participation is necessary for both the democratic development of the country and women’s empowerment. Studies and research on the constitutionality of the Reserved Seat Provision for women in Parliament show that this Reserved Seat Provision does not actually help women impact in the political process in Parliament and/or in achieving the goals of women empowerment. Hence, this paper shall discuss how this Reserved Seat Provision is affecting the election system, leaving a scope for it to be less democratic, effective, and meaningful. This paper shall highlight that merely a sizable presence of women in Parliament for such a long period won’t aid in achieving the aims and objectives of women empowerment. This paper shall conclude with the recommendation that the Reserved Seat Provision may be integrated in the Constitution in a manner that provides for direct election of reserved seat nominations for women in Parliament and that too should not be in the Constitution for an indefinite period.

Japan Rearmed : The Politics of Military Power

Abstract: Japan's U.S.-imposed postwar constitution renounced the use of offensive military force, but, as Sheila Smith shows, a nuclear North Korea and an increasingly assertive China have the Japanese rethinking that commitment, and their reliance on United States security. Japan has one of Asia's most technologically advanced militaries and yet struggles to use its hard power as an instrument of national policy. The horrors of World War II continue to haunt policymakers in Tokyo, while China and South Korea remain wary of any military ambitions Japan may entertain. Yet a fundamental shift in East Asian geopolitics has forced Japan to rethink the commitment to pacifism it made during the U.S. occupation. It has increasingly flexed its muscles-deploying troops under UN auspices, participating in coercive sanctions, augmenting surveillance capabilities, and raising defense budgets. Article Nine of Japan's constitution, drafted by U.S. authorities in 1946, claims that the Japanese people "forever renounce the use of force as a means of settling international disputes." When Prime Minister Shinzo Abe broke this taboo by advocating revision of Article Nine, public outcry was surprisingly muted. The military, once feared as a security liability, now appears to be an indispensable asset, called upon with increasing frequency and given a seat at the policymaking table. In Japan Rearmed Sheila Smith argues that Japan is not only responding to increasing threats from North Korean missiles and Chinese maritime activities but also reevaluating its dependence on the United States. No longer convinced that they can rely on Americans to defend Japan, Tokyo's political leaders are now confronting the possibility that they may need to prepare the nation's military for war.

Left in the Dust: Employee Constructions of Mission and Vision Ownership:

Abstract: Research on organizational mission and vision primarily has approached the concepts from managerial perspectives. This study employed a communicative constitution of organizations perspective to pr...

From an unconstitutional constitutional amendment to an unconstitutional constitution? Lessons from Honduras

Abstract: The unconstitutional constitutional amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later amendment to the text. That is, beyond the unconstitutional constitutional amendment doctrine, can or should there be a doctrine of an unconstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unconstitutional. What is particularly striking about the case is that these provisions were not later amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unconstitutional constitution’, what we predict to be the next trend in global constitutionalism.

Constituent power beyond exceptionalism: Irregular migration, disobedience, and (re-)constitution:

Abstract: This article argues that, far from being a merely defensive act of individual protest, civil disobedience is a much more radical political practice. It is transformative in that it aims at the poli...