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Some constitutional scholars suggest that the US Constitution stands as one of the oldest yet least changed national constitutions in part because Americans’ tendency to “revere” the Constitution has left them unwilling to consider significant changes to the document. Several recent studies support aspects of this claim, but no study establishes a direct link between individuals’ respect for the Constitution and their reluctance to amend it. To address this, we replicate and extend the research design of Zink and Dawes (2016) across two survey experiments. The key difference in our experiments is we include measures of respondents’ propensity to revere the Constitution, which in turn allows us to more directly test whether constitutional veneration translates into resistance to amendment. Our results build on Zink and Dawes’s findings and show that, in addition to institutional factors, citizens’ veneration of the Constitution can act as a psychological obstacle to constitutional amendment.
This article explores the making of the State of Syria after the dissolution of the Ottoman Empire. I argue that an event-based approach in global legal history offers a useful perspective for studying the transition from imperial to international and national systems. Drawing on new archival research in France and Saudi Arabia, I focus upon the creation of the 1928 Syrian constitution in the League’s mandate to show the administrative framework of political orders. First, I describe the French administrative logic through the story of the international ‘organic law’. Second, I describe the way the organic law necessitated the Syrian political constitution. The constrained constitutional process resulted in a clash and a compromise about a Muslim president between secularist republicans and exiled, Saudi-related Muslim monarchists. Global history can profit from this approach by rethinking decolonization as administrative reorganization and by focusing on dissenting, non-state actors in state-making.
Which elements of tyranny are paramount wax and wane across eras, but tyranny itself remains a consistent concern. In Western political thought, defining tyranny in one or two sentences is rare, and when undertaken, it is often embedded in a specific political context. Defining tyranny may appear straightforward; nonetheless, diagnosing and remedying it, enabling recovery and inoculation, requires more than a rigid definition. All governance orders display a range of features. For instance, no two democracies are alike, and the political, economic and social realities they serve must always be considered; the same is true of tyrannies.
This Article explores both theoretically and historically the core features of authoritarian adjudication. It attempts to offer an ideal type of what could mean a full assertion of authoritarianism in the context of adjudication. It aims to do so by first highlighting the value of insights that critical legal history can bring to the current discussion of populism. Second, it explores the paradigm of the exception that it aims to revise and ground in a historical analysis of the interwar period. Third, it considers the intellectual and practical lines of continuity between current reactions to the pandemic and the historical role of the military in modernity by drawing on the example of Romania. In a final part, it provides a reflection on the confusion between law, politics, and military concerns as a specific feature of modern authoritarianism.
Democratic centralism, a hallmark of Leninist party organizations, has played a formative role in the history of the Chinese Communist Party (CCP). Yet despite being hailed as an “inviolable” and “unchanging” Party principle, understandings of democratic centralism have shifted dramatically over the century of its existence. This study traces the long arc of the concept's evolution across successive Party Constitutions, focusing on three critical historical junctures: the Sixth Party Congress, which formally adopted democratic centralism into its Constitution as an organizational principle; the Seventh Party Congress, which adopted rectification as the Party's practice of democratic centralism; and the 19th Party Congress, which set a new milestone in codifying the system as a disciplinary tool. I argue that while democratic centralism exemplifies the CCP's institutional plasticity and adaptive governance and is critical to understanding Party-driven constitutionalism in contemporary China, it also highlights an irresolvable paradox inherent in Party rule. Adaptability does not necessarily impart resilience. I conclude that the CCP's normatively unconstrained extra-constitutional leadership under Xi Jinping highlights the essentially and increasingly irrationalist aspects of its illiberal governance project.
Since classical antiquity debates about tyranny, tyrannicide and preventing tyranny's re-emergence have permeated governance discourse. Yet within the literature on the global legal order, tyranny is missing. This book creates a taxonomy of tyranny and poses the question: could the global legal order be tyrannical? This taxonomy examines the benefits attached to tyrannical governance for the tyrant, considers how illegitimacy and fear establish tyranny, asks how rule by law, silence and beneficence aid in governing a tyranny. It outlines the modalities of tyranny: scale, imperialism, gender, and bureaucracy. Where it is determined that a tyranny exists, the book examines the extent of the right and duty to effect tyrannicide. As the global legal order gathers ever more power to itself, it becomes imperative to ask whether tyranny lurks at the global scale.
In this chapter five main themes emerge with respect to the historiographical side of Grotius' works: (1) the polarity between constitutionalism and patriotism on the one hand, and reason of state and Scepticism on the other; (2) Grotius’ ‘secularising’ reading of history; (3) the close correlation between scholarship and politics; (4) Grotius’ use of sources and his relation to contemporary developments in Antiquarianism; and (5) the important role of historical perspectives in his other works such as De Jure Belli and the Annotationes on the New Testament.
Today’s central banks wield extraordinary powers, both monetary and regulatory, and with a capacity to substitute for elected governments tempted to pass the buck. Debates about central banking’s powers and legitimacy barely touch, however, on whether and how monetary independence fits with the values that drive constitutionalism. It turns out that, for modern economies using fiat money, independence is a corollary of the higher level separation of (fiscal) powers between the legislative and executive branches. Even though independence is necessary, it needs to be carefully constrained by a “money-credit constitution.” Those general arguments, applicable in liberal democracies, do not carry across cleanly to the euro area. A principled case can be made for the ECB’s mandate being specially tight, but that is in tension with its de facto role as the emergency economic actor for the euro area. Facing up to that will be necessary sooner or later.
Coup leaders often purport to restore constitutional order. During Burkina Faso's 2014 ‘insurrection', however, Blaise Compaoré's opponents advanced detailed (international) legal arguments that significantly constrained their subsequent conduct. Theirs was to be a legal revolution. This article situates this stance within Burkina Faso's distinctive history of urban protest, whilst emphasising under-analysed international sources for the insurrection. ‘Insurgent’ lawyers, it argues, used international instruments to reinvigorate longstanding activist attempts to reconcile constitutional rights with a language of popular justice promoted by the revolutionary regime of Thomas Sankara (1983–7). After the insurrection, however, their emphasis on legality was used by Compaoré's supporters to expose the transitional authorities’ double-standards. Meanwhile, insurgent lawyers working for the transition had to work hard to reconcile (international) legal justifications for the insurrection with the expedient politics needed to defend the new dispensation.
The paper is an attempt to examine how Carl Schmitt's constitutional theory can be useful to analyse the Constitution of the State of Israel designed in the late 1940s – the impact of which Jacob Taubes once certified. The author analyses three projects created then by Leo Kohn through the prism of Schmitt's concept of Verfassung and Verfassungsgesetz. He also reads in the context of Schmitt's philosophy (from Constitutional Theory and The Nomos of the Earth) the constitutional situation of Israel as a country where, first, the Constitution has not been passed and the basic matter of its legal system is regulated by the Basic Laws; second, citizens of Arab origin are excluded from the national community; and third, the borders of the state remain fluid and change due to the constant partition of the land.
The argument set out in this chapter is that personalisation technologies are fundamentally inimical to the way we have built our legal and political traditions: the building blocks, or the raw materials if you will, that make up the sources of the ‘self’. The advances in the use personalisation technologies and the implications for how we understand our political and social lives through law (constitutionalism) hinge on the importance of language and the risks posed by personalisation technologies to the building of personality and forms of social solidarities. This chapter explores the centrality of language to agency – how this relationship builds our legal and political traditions and the risks posed by personalisation technologies.
This article examines the 1987 Constitution of the Philippines’ provisions on social and economic rights and welfare. It considers how the 1987 Constitution fits within the post-liberal paradigm of ‘transformative’ constitutional texts that emerged during democratic transitions in the 1980s and 1990s. It then analyses how the Supreme Court of the Philippines responded to the constitutional call for egalitarian socio-economic reform in the first fifteen years after the People Power revolution. The article highlights how the 1987 Constitution envisions far-reaching, progressive socio-economic change, and incorporates both social and economic rights as well as open-ended policy goals in this regard. The article argues that this hybrid approach to distributive justice creates a distinctive set of interpretive challenges for the judiciary. It then argues that the Philippine Supreme Court’s approach to these provisions in the years following the transition to democracy was perfunctory and somewhat inchoate. The court affirmed its jurisdiction over these provisions, but did not develop meaningful standards or principles in relation to them. The article points out that transformative constitutional texts place difficult demands on the judiciary in relation to social and economic rights. They prompt the judiciary into unfamiliar domains. At the same time, institutional legitimacy – including legitimacy on questions of distributive justice – requires judges to sustain the sense of a cogent boundary between constitutional law and politics. The article argues that these challenges were heightened in the Philippines by the textual ambiguity of the 1987 Constitution as well as the relative dearth of jurisprudential resources at the time. It concludes by considering the implications of the Philippines experience for the design of transformative constitutions.
Three periods of constitutionalism can be identified: long-nineteenth-century reformist constitutionalism; independence-consolidating constitutionalism; and post-1990s liberalizing constitutionalism. All three periods correspond to dynamics that unfolded all over the world, but they also manifest specific characteristics that cannot be explained without paying close attention to events in, and the peculiarities of, Moroccan political, social, and economic life. Moroccan constitutionalism can thus be properly described in terms of a combination of global determinism and local contingencies. To make such a description, we mainly concentrate on the ways in which the drafters identify the different powers, their separation, and their balance. Only in this framework of constitutional checks and balances can we eventually address the place of Islam in these different texts. Indeed, it is our contention that the issue of Islam in constitutions cannot be dissociated from the general concept and organization of the state, from close attention to the state’s constitutive powers and their position in relation to each other or from the degree of religious legitimacy of the head of state.
In its post-1932 legal history, the constitutional stability, Thailand has been seeking for, has been harshly convulsed by the conflict between the traditional concept of authority and political stability which underpins the so-called ‘Thai-style democracy’ (‘TSD’) and increasingly sturdy demands for liberal democracy and constitutionalism, culminating in ‘colour-coded politics’ which started in 2006. The conflict between the ‘Yellow’ and the ‘Red’ ideologies resulted in a number of military coups, installing the TSD and the abolition of electoral politics. Thailand’s constitutional graveyard can then be seen as constitutional saṃsāra—the cycle of repeated birth and death. Based on this saṃsāra metaphor, I ask: To what extent do the irresistible and continuous rise of liberal demands and the trends of constitutionalism, modernisation, and democratisation in contemporary Thai legal history challenge the TSD? In other words, I examine how ‘modern innovations’ challenge Thailand’s constitutional saṃsāra and the attempt to halt it, that is, the imposition of constitutional nirvana. I answer this question by assessing the competing theories of law and politics (normativism vs anti-liberal realism), the concepts of ‘institution’, and the concept of the state of exception. I also use Hans Kelsen’s and Carl Schmitt’s theories/approaches to law and politics which have been transplanted into the Thai soil to theorise my answers.
Before neoliberalism became global, it was an intellectual project that had a particular view of the power of constitutions to limit sovereign states, anchor economic freedoms and protect markets from democratic pressures for greater equality. In Latin America and the developing world, neoliberalism has long been identified with the political economy of the Washington Consensus. However, the comprehensive study of its legal foundations and institutional arrangements is still an area of limited scholarly attention. This article attempts to advance in that direction. By examining the work of Friedrich A. Hayek, Milton Friedman and James M. Buchanan, it explores a theory of neoliberal constitutionalism within Chile, the so-called first neoliberal laboratory. These authors visited the country during the Pinochet dictatorship (1973–90), and were connected with top Chilean authorities as part of their global ambitions to implement their theoretical agendas in real-world scenarios. The article argues that Chile’s constitution-making process between 1973 and 1980 offered an on-site experiment in introducing neoliberal’s radical economic transformation. It addresses how the dictatorship’s natural law-based rule of law principles were compatible with the neoliberal constitutional ideology by supporting a distinctive view of the state’s role and designing the innovative institutional arrangements necessary to guarantee the market’s priority in the structural and rights dimension of the 1980 Constitution. In the wake of Chile’s recent constitutional change agenda, this article not only contributes to the existing debate by reflecting on the ideological origins of the still-persistent constitutional neoliberal features, but also works as a case study for evaluating new global turns towards authoritarian neoliberal politics.
The European Court of Human Rights (ECtHR) is an international court operating in the international legal order. Its judgments are not given direct effect in national law. In this sense we have a system of legal pluralism between international and national law. But the ECtHR has constitutional effects in national law through the weight placed on the Court’s practice by national courts. Therefore, constitutional principles are applicable in the interaction between the ECtHR and national courts. This article discusses the transnational constitutional aspects of the Court, and how this should guide the roles of, respectively, the ECtHR and national courts.
It discusses legal methodology problems of multilevel trade and investment regulation and explores related problems of adjudication involving investment projects in the context of BRI involving more than sixty-five countries. The very limited number of investor–state arbitration proceedings initiated so far by foreign companies against China – or by Chinese companies against foreign host states – suggests that alternative dispute resolution may become one of the important ‘legal innovations’ of BRI. Yet also involvement of third parties as ‘mediators’ or ‘conciliators’ in dispute settlement proceedings raises questions of ‘justice’ and of legal methodology that are easier to resolve by embedding BRI regulations into multilateral trade, investment and UN law.
Although democratisation can be a vital component of peace settlements, formulaic applications of supposed international norms of democratic governance are potentially counterproductive. Each conflict situation is different; many situations do not admit of prefabricated solutions that one can justly expect all reasonable contestants to accept, either at the outset or as events develop. Procedural standards associated with the ‘democratic entitlement’ obscure the underlying purposes that democratic forms, to be meaningful, need to fulfil. Post-conflict conditions, typically marked by sharp social divisions and a lack of agreement on the political community’s basic premises, are precisely the conditions in which it cannot be taken for granted that standard procedural norms will work to produce democratic social realities. Improvisation is thus essential. Peace and democracy may both be better served if the international lawyers stand aside.
Political parties are taken for granted today, but how was the idea of party viewed in the eighteenth century, when core components of modern, representative politics were trialled? From Bolingbroke to Burke, political thinkers regarded party as a fundamental concept of politics, especially in the parliamentary system of Great Britain. The paradox of party was best formulated by David Hume: while parties often threatened the total dissolution of the government, they were also the source of life and vigour in modern politics. In the eighteenth century, party was usually understood as a set of flexible and evolving principles, associated with names and traditions, which categorised and managed political actors, voters, and commentators. Max Skjönsberg thus demonstrates that the idea of party as ideological unity is not purely a nineteenth- or twentieth-century phenomenon but can be traced to the eighteenth century.