Showing papers on "Constitution published in 2021"

Property Rights and Social Justice: Progressive Property in Action

Abstract: Property Rights and Social Justice analyses 'progressive property' in action by examining the role of constitutional property rights guarantees in mediating private ownership and social justice. It combines insights from property theory with enlightening doctrinal analysis of the interaction between property rights and social justice in the constitutional and broader legal context. It does so through the prism of the Irish Constitution's property guarantees, which uniquely in the English-speaking, common law world both protect property rights and requires their regulation by the State to secure social justice. Through this analysis, the book grounds key debates in contemporary property theory in fresh, illuminating doctrinal examples, and enhances global debates about the constitutional protection of property rights. It argues that primacy is perhaps inevitably afforded to political determinations about the appropriate mediation of property rights and social justice, meaning that the political impact of constitutionalisation needs to be disentangled from its strict legal effects.

The racial constitution of neoliberalism

Abstract: Prevailing scholarship on neoliberalism fails to recognise that it generates its own distinctive forms of racial domination. Influential analysts such as Wolfgang Streeck, David Harvey and Wendy Br...

Beyond the Mutual Constitution of States and Markets: On the Governance of Alienation

Abstract: International Political Economy (IPE) textbooks tend to present the concept of a clear state-market dichotomy as the disciplinary mainstream. Yet we argue that a critical consensus has emerged arou...

The Co-Constitution of Order

Abstract: The idea of liberal international order as a world order is understood to be constituted as a result of disproportionate Anglo-American influences. This is in line with much of international relations (IR) theory, which typically characterizes the emergence of order as resulting from the diffusion or imposition of norms and institutions from the world's centers of power. This article argues otherwise, its premise being that the international order founded on sovereign equal nation-states was co-constituted as well by the influence of relatively weak actors through decentralized processes of contestation over core international norms. Drawing on international relations, history, and law, this article outlines a framework to interpret the actions and mechanisms by which supposedly weak actors shaped international order. It concisely traces the constitution of order as based on its fundamental norms and assesses the implications of the argument for the current crisis of liberal order, as well as IR theory more broadly, laying out a research agenda for the future.

Beyond Uberization: The co-constitution of technology and organizing:

Abstract: Uberization has emerged as a platform-based form of organizing that is reshaping work and labour markets and that is fundamentally challenging existing thinking on organizing. We suggest that organ...

The Constitution of Canada: A Contextual Analysis

Abstract: C1 INTRODUCTION C2 THE MAKING OF THE CANADIAN CONSTITUTION I. Pre-confederation Canada A. Founding of British North America B. Conflict, Rebellion and Responsible Government II. Post-confederation Canada A. Territorial Extension B. From Colony to Nation C. Canada's Economic Evolution D. Provincialism, Regionalism and Canadian Nationhood E. Federalism and the French Canadians F. Multicultural Canada G. Aboriginal Rights III. The Contemporary Canadian Constitution: Patriation and its Aftermath A. Constitution Act 1982 B. Negotiations after Patriation C. 1995 Referendum on Quebec Sovereignty and the Secession Reference D. 'Administrative Measures' E. Economic Integration with the United States IV. Conclusion Selected Reading C3 THE LEGISLATIVE POWER I. Parliamentary Sovereignty A. Principle B. Internal Limitations on Parliamentary Sovereignty C. Limitation (or Abandonment?) of Parliamentary Sovereignty II. Canadian Parliaments A. Parliament of Canada B. Provincial Legislatures C. Other Legislative Bodies III. The Legislative Process IV. Parliamentary Officers V. Parliamentary Privileges and Immunities VI. Public Participation in the Legislative Process VII. Elections VIII. Reform of the Legislative Process IX. Conclusion Selected Reading C4 THE EXECUTIVE POWER I. Responsible Government A. Principle B. Formation of Governments C. Responsible Government as a Constitutional Convention II. Structure of the Executive A. The Monarchy and Its Representatives B. Prime Minister and Cabinet C. Ministers and their Departments D. Government Agencies, Crown Corporations and Administrative Tribunals III. The Rule of Law A. Legal Foundations of Executive Authority B. Executive Privileges and Immunities C. Institutionalization of the Rule of Law IV. Conclusion Selected Reading C5 THE JUDICIARY I. Court Structure A. Superior Courts B. Federal Court C. Provincial Courts D. Administrative Tribunals E. Supreme Court of Canada II. Judicial Independence A. Constitution Act 1867, Sections 99 and 100 B. Constitution Act 1982, Section 11(d) C. Implied Principle of Judicial Independence III. Supreme Court of Canada as a Constitutional Court A. References and Justiciability B. Parties, Intervenors, Representation and Evidence C. Constitutional Remedies IV. Conclusion Selected Reading C6 FEDERALISM I. Visions of the Canadian Federation A. Canada as a Quasi-Federation B. Compact versus Statute? C. Quebec's Distinct Society versus the Equality of the Provinces D. Comparisons to the European Union E. Conclusion II. Principles of Interpretation of the Division of Powers III. Federal and Provincial Powers A. Peace, Order and Good Government B. 'Property and Civil Rights' and 'Matters of a Merely Local or Private Nature' C. Federal Economic Powers D. Criminal Law Power E. Social Legislation F. Citizenship, International Affairs and Defence G. Provincial Authority over Public Lands H. Fiscal Relations, Taxation, Equalization and the Spending Power IV. Cooperative Federalism V. Conclusion Selected Reading C7 RIGHTS AND FREEDOMS I. The Universe of Rights Protections in Canada A. Legislative Support of Rights B. Courts and Rights Before the Charter C. Executive Enforcement of Rights II. Canadian Charter of Rights and Freedoms A. Application and Structure B. Substance of Rights and Freedoms under the Charter III. Conclusion Selected Reading C8 ABORIGINAL PEOPLES I. Constitution Act 1982, Section 35 A. Adoption of Section 35 B. Aboriginal Rights to Land and Resources C. Effect of Section 35 D. Haida and the Turn towards Interim Measures II. Federal/Provincial Authority, Fiduciary Obligations and the Honour of the Crown A. Constitutional Authority with respect to Aboriginal Peoples B. Fiduciary Duty and the Honour of the Crown III. Treaties IV. Self-government V. Resurgence of Aboriginal Jurisdictions VI. Conclusion ... 255 Selected Reading ... 258 C9 CONCLUSION ... 259 Selected Reading ... 266

Iraq’s Constitution of 2005: The Case Against Consociationalism ‘Light’

Abstract: Scholars and practitioners tend to favor transitory power-sharing arrangements and liberal forms of consociationalism. Iraq’s constitution of 2005 has both, but the country has been in turmoil ever...

Speaking about vision, talking in the name of so much more: A methodological framework for ventriloquial analyses in organization studies

Abstract: Organizations have long been treated as stable and fixed entities, defined by concrete buildings, catchy names, and strategic goals neatly written on paper. The Communicative Constitution of Organi...

Not merely the absence of disease: A genealogy of the WHO’s positive health definition:

Abstract: The 1948 constitution of the World Health Organization (WHO) defines health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’. It wa...

Brexit, the press and the territorial constitution

Abstract: Brexit has unveiled previously hidden aspects of UK society, law and politics. It provides a valuable opportunity to investigate the social reception of law, and in particular the mediation of the law and constitution in the press. The distinctive constitutional arrangements and histories of Wales, Scotland, Northern Ireland and England have given rise to different territorial interpretations of the UK state. These asymmetries have parallels in the UK’s territorial media landscape, yet we have little understanding of how this landscape contributes to constitutional discourses. This paper offers quantitative content and thematic analysis of UK-wide media coverage of major court judgments which have served as critical junctures in the Brexit process. The analysis reveals striking territorial variation in the volume and substance of coverage. Here, the media appears to reinforce divergent understandings of the constitution: while English reporting chimed with a more unitary account of the constitution, reporting elsewhere was more consistent with a vision of the UK as union-state. In light of these findings, we argue that media analysis can make a valuable contribution to our understanding of the law and the constitution.

Ethnicity in Electoral Politics in Ghana: Colonial Legacies and the Constitution as Determinants:

Abstract: This paper assesses political allegiances in Ghana, positioning its ethno-political divide into the historical contexts of institutional design and colonialism in Africa. It argues that whilst the ...

Derechos, democracia y constitución

Abstract: It is often taken for granted that whoever endorses the thesis of the "coto vedado" is committed to that specific institutional structure that is constitutionalism in the "strong" form that results from the combination of two main pieces: the primacy of a constitution that includes a catalog of basic rights and the existence of a judicial control mechanism of the constitutionality of ordinary legislation. In any case, constitutionalism has a thorny unfinished business in relation to what is usually called a "counter majority objection." If, as moral ideals, one starts not only from rights but also from the value of democracy, then the road to constitutionalism is perhaps less smooth than it seems. I will try to show that, if, as supporters of the moral ideal of the forbidden preserve, we understand that one of our rights is to participate on equal terms in collective decision-making, then an adequate balance between procedural and substantive values ​​recommends, in my opinion, the adoption of the kind of institutional design that we can call "weak constitutionalism."

Poland’s Rule of Law Breakdown: A Five-Year Assessment of EU’s (In)Action

Abstract: To reinstate what amounts to a “Soviet-style justice system”, Polish authorities have repeatedly and deliberately violated the Polish Constitution and EU law. Rather than comprehensively detailing these repeated violations, this article focuses on the EU dimension of Poland’s rule of law breakdown. Using the activation of the Rule of Law Framework by the European Commission on 13 January 2016 as a starting point, this article offers a critical five-year assessment of EU’s (in)action starting with an overview of the extent to which virtually all of the multiple problematical issues identified early on by the Commission have yet to be addressed by Polish authorities by January 2021. Regarding the Commission and the Council’s (in)action, this article argues that the Commission has systematically acted in a too little too late fashion while the Council has systematically failed to meaningfully act, with the inaction of these two EU institutions amounting, at times, to dereliction of duties. By contrast, the Court of Justice has forcefully defended judicial independence whenever an infringement case was lodged with it by the Commission. The Court of Justice’s record in preliminary ruling cases is more mixed due, in part, to the Court’s apprehension to undermine the principle of mutual trust. The article ends with a list of key lessons and recommendations which reflect the EU’s few successes and many failures highlighted in this article. It is submitted inter alia that more statements, dialogue and reports are not going to help contain, let alone solve Poland’s rule of law crisis. It is indeed no longer a crisis the EU is facing but a total breakdown in the rule of law in Poland which, in turn, represents a threat to the interconnected legal order that underpins the EU.

Islamic constitutions and religious minorities

Abstract: This study examines the effects of formal institutions, specifically constitutions that prescribe Sharia law as a source of legislation, on discrimination against religious minorities. We hypothesize that countries in which the supreme values of Islam are entrenched in the constitution exhibit more discrimination against religious minorities than otherwise comparable countries. In our empirical analysis, we find that religious minorities are indeed likely to face more religious discrimination under Islamic constitutions, even if the relevance of Islam in society is separately taken into account, for example, in terms of the Muslim population share. Instrumental variable regressions support our hypothesis of a causal effect of constitutional rules on de facto social outcomes. However, we find no evidence that Islam encourages discrimination against minorities when it is not entrenched in the constitution. Our results support the grave dangers inherent in the constitutionalization of supreme values.

The revitalization of the indonesian legal system in the order of realizing the ideal state law

Abstract: It can be called that the dynamics of national and state life in Indonesia are increasingly being tested by the same problem. For example, an outbreak of judicial corruption from the time to time, which was never ending. Law enforcers who are echoed as honorable professions, but on the other hand, these are exacerbated by the corrupt behavior of those professions. The sale and purchase of a case is no longer viewed as taboo, indeed it just looks like proper. Which means, it is a kind of a sign that the various legal regulations that normatively regulate the entire judicial process are ultimately unable to overcome the judicial corruption. The main objective of this research focuses on analysis related to efforts to revitalize the legal system in order to create an ideal rule of law as stated by Lawrance Friedman in his book namely "The Legal System: A Social Science Perspective". In this research, the method used is normative juridical using statutory, conceptual and historical approaches. The results of the research present an idea which is divided into three according to the three elements in the formation of a rule of law according to Lawrance Friedman, namely legal substance, legal structure, and legal culture. With regard to legal substance, the author provides the idea of a judicial preview as a method of validating the constitutionality of laws. Then related to the legal structure, the author provides ideas related to efforts to build morality and professionalism of law enforcement officials. Meanwhile, in terms of legal culture, the author provides ideas related to efforts to build a legal culture in society that is aware of the law and the constitution.

Language Rights in a Changing China: A National Overview and Zhuang Case Study

Abstract: China has had constitutional minority language rights for decades, but what do they mean today? Answering with nuance and empirical detail, this book examines the rights through a sociolinguistic study of Zhuang, the language of China's largest minority group. The analysis traces language policy from the Constitution to local government practices, investigating how Zhuang language rights are experienced as opening or restricting socioeconomic opportunity. The study finds that language rights do not challenge ascendant marketised and mobility-focused language ideologies which ascribe low value to Zhuang. However, people still value a Zhuang identity validated by government policy and practice. Rooted in a Bourdieusian approach to language, power and legal discourse, this is the first major publication to integrate contemporary debates in linguistics about mobility, capitalism and globalization into a study of China's language policy. The book refines Grey's award-winning doctoral dissertation, which received the Joshua A. Fishman Award in 2018. The judges said the study "decenter[s] all types of sociolinguistic assumptions." It is a thought-provoking work on minority rights and language politics, relevant beyond China.

The Anglo-British imaginary and the rebuilding of the UK’s Territorial Constitution after Brexit - Unitary State or Union State?

Abstract: Brexit has foregrounded radical divergences between the accounts of the United Kingdom’s (UK) constitutional order advanced by the UK Government and the devolved governments, with the distinctions coming into sharp relief in debates over legislation to sustain the UK’s internal market. This article examines the limits to the roots of the UK Government’s insistence that the UK is a unitary state, and not a union-state, in the textbook tradition of constitutional scholarship. Writers from A.V. Dicey to S.A. de Smith asserted that the UK was a unitary state largely as an adjunct to their accounts of parliamentary sovereignty. We also examine how the received orthodoxy of unitary accounts of the UK’s constitution came under increasing pressure after the advent of devolution, but that the UK’s membership of the European Union (EU), and the operation of the principle of subsidiarity within European law, forestalled a considerable amount of constitutional contestation. The need to replace European law as a foundation of the UK internal market, and the UK Government’s attempts to exert control over this transition, has produced a sustained debate about what the union means after Brexit.

Nathaniel Bacon, John Milton, and the idea of an English climate and “constitution”

Abstract: This paper seeks, firstly, to reinstate the Suffolk lawyer and MP Nathaniel Bacon (1593-1660) whose ideological as well as political importance has been neglected, and, secondly, to propose that hi...

Mind the Gap – Analyzing the Divergence between Constitutional Text and Constitutional Reality

Abstract: Constitutional Economics - the analysis of constitutions drawing on the economic approach - has made important progress over the last two decades. The factors determining whether a constitution is complied with, however, have received only little attention. This is surprising, as a huge gap between constitutional text and constitutional reality seems to exist in many countries. In this paper, this gap is referred as the de jure/de facto gap. The paper discusses ways in which the gap can be researched systematically and surveys the scant available literature that has tried to do so thus far.

The PSPP Judgment of the Bundesverfassungsgericht and the Slovenian Constitutional System

Abstract: The BVerfG’s judgment on the PSPP marks another important part of the EU constitutional mosaic. It was the first time that the court declared an EU act ultra vires. Intense academic commentary ensued, mostly adopting a critical attitude towards the judgment. However, a summary rejection of the underlying idea of an exceptional national constitutional review of EU acts does not seem warranted. Unconditional primacy has been disputed by different national courts for some time now, and on two occasions, national apex courts already declared EU acts ultra vires. Considering its inherent diversity, the EU should be able to accommodate legitimate national constitutional concerns. A common frame of reference, possibly provided by Art. 4(2) TEU, could facilitate such accommodation if very high standards of violation were adopted by national courts, which would also respect the principle of loyal cooperation. In this regard, EU law also marks red lines when it comes to its fundamental principles, limiting the possibility of abuse. The Slovenian Constitution introduces EU law through Art. 3a, adopted for the purpose of accession to the EU. The Slovenian Constitutional Court's case law is generally very EU-friendly, and it could be marked by cooperative vagueness, echoing the doctrines of the CJEU. A clear answer regarding the relationship between national (constitutional) law and EU law is lacking in its jurisprudence. The court explicitly left the question of absolute primacy open. The substantive preconditions for the transfer of sovereign rights in Art. 3a, namely, respect for human rights and fundamental freedoms, democracy, and the principles of the rule of law, have been interpreted in different ways in academia. However, considering the inalienable right to self-determination, in exceptional cases of serious encroachment on fundamental constitutional values, the SCC would probably adopt its version of the BVerfG’s doctrines.

Women’s voices in a deliberative assembly: An analysis of gender rates of participation in Ireland’s Convention on the Constitution 2012–2014:

Abstract: Ireland’s Convention on the Constitution (2012–2014) was a world-first process in mixing randomly selected private citizens and political representatives in a deliberative mini-public that made rec...

Politics and Regionality: Does Region of Residence Affect the State’s Legitimacy?:

Abstract: Even though the Spanish Constitution establishes that Spain is structured into Autonomous Communities and that the principles of solidarity and subsidiarity govern the relationship between the diff...

The Contemporary Issues and Supreme Court

Abstract: Once again the decision and court opinion are an element within the general understanding of law at least in the common law countries. A lawyerly way has implications in shaping the pattern of public administration, but in differing extent of public attraction or normative impact.First, while the Constitution of United States had brought a popular democracy and Constitution-based structure of government, the Ancient Regime had been overhauled in new land. The “nobility” as a basis of government was dispelled, and people arose as a main class or pillar of nation. As we take a precept of chaotic years from the Articles of Confederation thorough the Constitution, the earlier ambition was mixed between the diplomatic unity and one strong national government. This context implicates much over the centuries and can also be illustrated with a residue of classic and present practice of international politics. The characteristics as temporal for the years would more properly be sensible with the kinds of description, for example, “atmosphere of war, interstate comity or discredit, chaos from the heterogeneous regional power and social incongruence nationally.” A threat from the mainland Europe had been constant at considerable period of time upon the independence. For the nation, it is more urgent to make it clear who will decide the will of nation, how to effectively consolidate the function of government, or how to manage the least of nation with the subjects than active interaction with the people, although the people are one distinct element of new Constitution and ideologically pronounced in the preamble of Constitution. This generally led to recognition that the role of Constitution and Supreme Court were minimal in terms of public policy making and that their policy contained in the opinion often is sheer of internal issues among the public power other than those of people. The kind of Kantian ambition for the universal justice on liberty and equality, hence, should wait for more prosperous time afterwards that people tend to be conscious of their basic rights or public good from the arbitrary rule of majority, given our concocted recognition from the kind of public policy ideals from Bentham, “the greatest happiness of greatest number,” and “revolutionary spirit on people.” It perhaps would not be irrelevant, in understanding of the impact of judicial rulings on public policy, that the US is other than unitary system of government. Oftentimes the kind of rulings on criminalization of adultery or right to privacy would surprise the people, but the kind of oxymoron or public debate, as likely persistent over the decades and diverse reaction, would normally not be present in the jurisdictions of unitary system. The people of such jurisdictions would be more than receptive, and be readily marshaled to adapt with the public guidelines elucidated by the court ruling. We also chat on the multiculturalism in the society and workplace. Given the judicial activism, the Supreme Court justices might be clairvoyant, who would be equipped with goodwill, wisdom and almighty intelligence to assuage an untreatable scope of interests and state specificities. Foreign lawyers would find such ample source of laws in surprise, who might envy a wide coverage of judicial interests. They perhaps would take the US context as the kind of insightful classroom and learn the lessons from their case laws.

The People Cannot Choose a Constitution: Constituent Power’s Inability to Justify Ratification Referendums

Abstract: The ratification referendum is the most common and recommended means of concluding a constitution-making process. This paper questions its desirability by undercutting the procedure’s most popular ...

The Veil of Participation: Citizens and Political Parties in Constitution-Making Processes

Abstract: Public participation is a vital part of constitution-making processes around the world, but we know very little about the extent to which participation affects constitutional texts. In this book, Alexander Hudson offers a systematic measurement of the impact of public participation in three much-cited cases - Brazil, South Africa, and Iceland - and introduces a theory of party-mediated public participation. He argues that public participation has limited potential to affect the constitutional text but that the effectiveness of participation varies with the political context. Party strength is the key factor, as strong political parties are unlikely to incorporate public input, while weaker parties are comparatively more responsive to public input. This party-mediation thesis fundamentally challenges the contemporary consensus on the design of constitution-making processes and places new emphasis on the role of political parties.

Legal justice in presidential impeachment practice between indonesia and the united states of america

Abstract: The constitution is approved as a law capable of guaranteeing human rights and protection of the constitution and past coordination, as well as being the corpus of the administration of the rule of law entity itself. Regarding the state of Indonesia and the United States, if examined by these two countries, they have similarities in the form of republican government or presidential system of government. However, on the contrary, in the impeachment transition, the two countries appear to be dichotomous both formally and materially. Therefore, this scientific article discusses reviewing the impeachment provisions of the Presidents of the two countries who agree to develop agreements and principles in checks and balances in trying to actualize the value of the country's legal justice. Therefore, in approving the discourse of research methods, descriptive-comparative methods are used with normative-philosophical and comparative-critical discussions. On that basis, this study discusses the practice of presidential impeachment in Indonesia to consider more legal justice, because it is through a legal process involving the Constitutional Court which implements practices in the United States that only involve the Senate and the House of Representatives which incidentally is a political institution. It considers the constitution in the basic law of the country.

Water ‘Apartheid’ and the Significance of Human Rights Principles of Affirmative Action in South Africa

Abstract: Water is an essential necessity for human beings; however, South Africa has a long history of inequalities dating back to apartheid politics and legislation which denied access to water to disadvantaged black populations mostly residing in rural areas. Although apartheid has officially ended, whether the lack of access to water by such populations who still cannot afford it exists and aligns with international human rights principles of equality and non-discrimination merits an examination. To redress the injustices of the apartheid regime, the right to have access to sufficient water is entrenched in section 27(1)(b) of the 1996 South African Constitution. In addition to embracing equality and non-discrimination, the Constitution informs other instruments and measures such as free basic water policy and pre-paid meters meant to ensure access to water. However, the plight of these populations persists in post-apartheid South Africa, but it is rarely a subject of academic scrutiny how the notion of affirmative action as grounded in the principles of equality and non-discrimination under human rights law can be deployed as a response. Using a doctrinal research approach, this article argues that the continuing struggle of disadvantaged communities with access to water does not only constitute water apartheid, it negates the human rights principles of equality and non-discrimination. The principle of affirmative action is useful in responding to inadequate access to sufficient water by disadvantaged populations in post-apartheid South Africa.

Post‐socialist constitutions: The de jure–de facto gap, its effects and determinantsa

Abstract: The aim of this paper is to contribute to the debate on constitutional rules and their economic effects by extending focus to the de jure–de facto constitutional gap. First, evidence is provided that size of this gap matters as higher gaps lower the effectiveness of the constitutional commitment mechanism. Second, several explanations of this gap are identified, in particular relating to the democratization process, political conflict, age and comprehensiveness of the constitution. The conclusions are based on an empirical study for the unique setting of the post‐socialist countries of Europe and Asia, which all enacted new constitutional frameworks after 1989 and it is shown that in some of these countries constitutions acted as blueprints.