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The chapter focuses on the processes of political differentiation as triggered by the refugee crisis of 2015. It maps them on an empirical level by studying the reactions of major political actors in the Czech Republic. Furthermore, the chapter abstracts a general theory of political differentiation, i.e. political 'othering'. It shows how the degree of differentiation can be approximated to a strong anti-liberal position mirroring the dichotomy between friend and foe. Outcomes of the differentiation processes are confronted with selected principles of modern constitutionalism, i.e. the principles of human dignity and democratic governance, that are endangered by the persistence of an extreme degree of hostile group differentiation.
The 1830s saw a reconsideration of the institution of slavery across the South, in which the sense of slavery as an anomalous institution within a republican society gave way to the articulation of more aggressive claim of slavery as a positive good. As southern intellectuals and polemists shifted from apology for slavery to celebration of it, the sanctity of property rights both in slaves and more generally came to be interpreted as a measure of the Southern States’ success in balancing freedom and order. Alongside that shift, the importance of constitutions within the Southern imaginary grew. This chapter traces the constitutionalization of slavery that these developments gave rise to. In the first instance, slavery as an issue was “constitutionalized” through an overt association of slavery with constitutional rights. At a second level, constitutionalization proceeded in a greater attachment to extant constitutions and a call for their preservation as central objects of political life. This chapter shows how these two developments, placed together, resulted in a conflux of slavery and constitution that made defense of each imperative to the other.
This final chapter raises a number of normative research questions for future discussion. How much financial power should be concentrated in representative assemblies? Does law govern the state if not enforced by the judiciary? Should an analytical wall be constructed between 'public' and 'private' finance in constitutional thinking? The promises and limitations of applying some analytical political theories to the design of constitutional institutions are observed, and importance of engaging with data concerning the deliberative capacities and resource constraints incumbent on politicians and public sector employees is emphasised. The conflict between Diceyan models of parliamentary control and modern welfare states is broached, as are the book's points of engagement with the work US constitutional theorists, particularly Scheuerman, Posner and Vermeule. Finally, the position of private financial markets vis-ˆ-vis the state is identified as an important topic in future examinations of finance and constitutionalism.
Owing to the vagaries of the ‘constitutionalization’ of the European Union, legal scholarship has disregarded the momentous constitutional transformation brought about by the European Convention System. This is regrettable, not least because the Convention has reconfigured national constitutional authority in a cosmopolitan context. The emerging cosmopolitan constitutionalism is based upon three ideas: first, the exercise of state authority must also be legitimate from the perspective of those who are not citizens; second, a constitution must embrace fundamental rights and the representation of insiders in order to facilitate the representation of all, including outsiders; third, the authority of the constitution doesn’t just depend on endorsement by an independent people but also on recognition by other peoples who pursue the same type of political project. At the same time, any cosmopolitan constitutional system needs to leave space for particularity. It is therefore not accidental that the idea of a ‘margin of appreciation’ is of pivotal significance.
The transition of Taiwan’s authoritarian legality transformed not only the authoritarian rulers’ strategic commitment to law, but also the authoritarian regime itself. The experience of this transition resonates with those in other parts of the world in that civic activism is necessary for the transformation of authoritarian legality. This chapter suggests that student activism is one crucial dimension for understanding the dynamics of the authoritarian legality transition in Taiwan. Student activism in Taiwan is higher law-centric, institutionalized, and dialectic, with collaborative efforts across generations within and outside the legal system and the state apparatus. It blurs the boundary between the state and society as well as the one between social and student movements. However, common to many young democracies, this transition mechanism appears to be a slippery slope to populism, and thereby paradoxically weakens the function of positive law and the legislative body, especially amid heavily polarized politics. The post-transition struggles in this young democracy are similar to the democratic crises nowadays in the USA and Europe, where populism, divided society, and a growing tide of discontent toward liberalism and democracy have significantly diminished the functions of liberal and democratic legal institutions.
Scholars studying Singapore have given it many labels ranging from a dictatorship and one-party state to an illiberal democracy. In 2015, Mark Tushnet, in a much-discussed article published in the Cornell Law Review, used Singapore as the quintessential prototype of what he calls “authoritarian constitutionalism.” This chapter critically examines and unpacks Tushnet’s model of “authoritarian constitutionalism” and argues that this categorization is neither accurate nor useful. The author argues that Tushnet’s construction of this model is based on flawed premises and variables and that from the perspective of comparative constitutional law, this kind of model-making is unhelpful for scholars seeking to understand the true nature of how constitutions work in different societies.
This chapter explores the shifting modes of authoritarian legality in postwar Japan. In spite of the sweeping democratization reforms implemented during the US Occupation, elements of bureaucratic authoritarian legality persisted in postwar Japan as many institutional and cultural legacies of the prewar state survived the change of constitutional regime. Their lasting influence finally came to be challenged when the neoliberal reform discourses impacted on the political, economic, and social life of the Japanese in the final phase of the Cold War. The neoliberal paradigm, at that time still couched in the larger liberal trends worldwide, looked set to liberate and empower the people. A priori bureaucratic control was to be replaced by a posteriori partisan checks and balances. The enhanced leadership of the prime minister that has thus resulted from the political and administrative reforms of the 1990s, however, transformed itself into a new mode of corporatist authoritarian legality when the party system collapsed in December 2012. The government of the day has since been left without any significant institutionalized check, critic, or opposition to speak of, and acts as if it can freely make and implement laws and interpret the constitution as it sees fit.
This chapter examines Hong Kong perspectives on the rule of law and argues that concern with maintaining the rule of law has been at the heart of the battle over political reform. In these political clashes a rather hardline Beijing approach to rule by law is juxtaposed against the very liberal Hong Kong perspective developed under British rule. As deLisle points out in and Cullen and Campbell elaborate on, there is a wide gap between Hong Kong and Beijing on the rule of law. With Beijing’s perceived lack of the rule of law, Hong Kongers have generally viewed the promised high degree of autonomy and noninterference by the central government as crucial to maintaining the rule of law and avoiding arbitrary rule in Hong Kong’s separate system. Such hands-off approach was clearly understood in formulating the “one country, two systems” model for Hong Kong under the Sino-British Joint Declaration and the Basic Law, though application has fallen short. Starting with the historical commitments, this chapter critically examines the series of official reports and decisions surrounding the 2014 clashes over political reform in Hong Kong and considers their relevance to the rule-of-law debate.
This Article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated, and b) the common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this Article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualized. It then examines the embryonic conceptualization of constitutional supremacy in the British legal culture by addressing the “constitutional statutes.” It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions that are affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, this Article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies.
European constitutional thinking is still alive and is being shaped by the European Court of Justice into a value constitutionalism. Not only the Treaties, but also constitutional principles derived from EU law, are the common standard of review. Autonomy and constitutionality merge. In the light of this situation the Federal Constitutional Court’s PPSP-judgment with its insistence on limitations of competences and on democratic self-determination appears outdated. However, for the time being, Member States agreed to cooperate in a treaty based political union and do not have a consensus on a “good order” in organized Europe. The Court should abstain from the temptation to operate with values because presumably it would not be able to achieve the substantiation and the creation of a value hierarchy with the necessary acceptance.
Mattias Kumm puts forward the basic structure of an argument for a normative theory of public reason–based constitutionalism to determine what it would require if the law has the authority it claims to have but only if it is justifiable in terms of public reason and if constitutions seek to constitutionalize as a condition for legal validity this standard. Kumm contrasts public reason–based understandings of constitutionalism with conventionalist and democratic voluntarist conceptions of constitutionalism. He then discusses what a public reason–based understanding of constitutionalism implies for the foundations, structure, and interpretation of constitutions. Kumm concludes that even though the demands for establishing legitimate authority within a public reason–based framework are ambitious, public reason–based constitutionalism is the heir of the American and French revolutions, and dominant structures of prevailing constitutional practice in liberal democracies can be best explained and justified within such a framework.
Chapter 3 presents a contextual analysis of how intellectuals engaged ever more intensely with liberal notions of a constitution, democracy, and a free press (among others), and witnessed the effects of their (flawed) implementation first-hand in the years around 1905. The chapter recasts the party politics and discussions of the period to show how Russia’s most prominent liberals systematically engaged with liberal ideas and practices of Western origin as they constantly redefined their attitudes to the important issues of the time – agrarian reform, civil liberties, political terror, and democratization – as new problems and obstacles arose. It argues that there was no easy solution that was both morally viable and tactically expedient to the Russian liberal dilemma. Primary sources demonstrate both the range of liberal views represented within the Kadet Party, and how moral, political, and legal questions concerning the defence of individual dignity during revolution were not easily resolved, particularly since they were posed during times of social confusion and political upheaval. The chapter attempts to show that Russian thinkers modified their views of liberal ideas such as freedom and progress in the light of circumstances which were changing all the time.
Constitutions traffic in magic and deceit, argues Günter Frankenberg, promising freedom and democracy even as they underwrite the exercise of coercive power on a massive scale. Scholars should approach constitutions with a healthy skepticism, but, Frankenberg contends, most mainstream scholars are too credulous, especially regarding the claims of liberal constitutionalism. Comparative Constitutional Studies serves as his corrective to the perceived blind spots and predilections of mainstream comparative constitutional scholarship, and it gives attention to little-known constitutions, forgotten histories, and alternatives to liberal constitutionalism. It’s a rich, challenging, and valuable book, one that takes the reader to some off-the-beaten-track places and offers some new perspectives on well-studied landmarks. It does not, however, represent such a radical break from mainstream scholarship as the author supposes, both because the book’s own analysis, in practice, is not deeply unconventional, and because mainstream scholarship is more diverse than Frankenberg gives it credit for.
This chapter deals with the concept of constitutional identity as it is understood in the Czech Republic. First, it defines the content of the ‘legal’ constitutional identity developed by the Czech Constitutional Court and the process of its formation in court case law. Subsequently, the chapter explores the normative effects of the judicially created Czech constitutional identity, especially in relation to the European Union (EU) and the principle of the primacy of EU law. Finally, it problematises the concept of Czech constitutional identity, introducing the ‘popular’ strand, which goes beyond the constitutional text and is built around formative historical events in Czech(oslovak) history. The authors argue that it is here where the gap between the ‘legal’ constitutional identity and the ‘popular’ constitutional identity is growing, with significant repercussions for the Czech constitutional order as well as for its relationship with EU law.
This book is a study of the political ideology of Christian Democracy, a set of principles and values that has, on the one hand, been extremely influential in the history of Western democratic regimes, but, on the other hand, remains severely understudied, especially when compared with its main ideological rivals: socialism, liberalism and conservatism. I begin by substantiating these two claims.
This chapter examines the specific conception of political subjectivity on which the Christian Democratic ideology is predicated and the vision of democracy that follows from it. As we will see, Christian Democracy is predicated on a particular interpretation of the category of the “people,” which is distinct at once from the liberal, the republican and the populist ones that dominate contemporary political discourse and theory. From it there follows a distinctive conception of democracy, which also diverges in several significant respects from those corresponding to such labels.
In this chapter, Section 1 discusses the increasing constitutionalization of human right law (HRL) and international economic law (IEL) at national and regional levels of governance and its implications for the settlement of disputes. Section 2 discusses constitutional justice principles as legal basis for impartial third-party adjudication requiring judicial administration of justice and treaty interpretations in conformity with the principles of justice and human rights. Section 3 elaborates in more detail problems of systemic integration and constitutionalist interpretation in IEL (e.g., resulting from fragmentation and forum shopping) and enhance the legitimacy of law and adjudication. Section 4 gives an overview of procedural human rights dimensions in IEL adjudication, like the human right of access to justice and the emerging common law of transnational adjudication. Section 5 discusses procedural and substantive human rights problems in WTO and investment adjudication. Section 6 criticizes trade and investment adjudication for neglecting human rights law and constitutional, distributive, corrective and commutative justice principles.
‘The king reigns but does not govern’. This formula, which according to Carl Schmitt was coined by Adolphe Thiers, a French liberal historian and politician, enemy of Bonapartism yet suppressor of the Paris Commune, has become today the most important formula in the study of liberalism. Michel Foucault and Giorgio Agamben both understand this formula as capturing something essential about liberalism as a form of governmentality that guides the conduct of individuals either in the absence, or beyond the reach, of the sovereign power and its legislation through normative and normalizing orders that escape democratic control. Although not discussed as such, this formula also underlies recent attempts by jurists and historians of political ideas such as Martin Loughlin and Richard Tuck to bolster the sovereignty of the state against new forms of governing without the state that emerge in neoliberalism. This chapter proposes a new reading of this formula by situating it on the terrain of constitutionalism, rather than on that of sovereignty. In so doing, it seeks to bring together in a meaningful exchange these two different critical approaches to neoliberalism, and the emerging debates they harbour. One debate is between those who advocate a Foucauldian and biopolitical and those who adopt an Agambenian and politico-theological analysis of neoliberal governmentality. The other is the one between advocates of a republican, constitutional approach to democracy and those who argue for the revival of popular sovereignty on the basis of new ‘democratic’ interpretations of Bodin and Hobbes.