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UK law on assisted suicide is stuck in a cycle: courts uphold its illegality and defer to parliaments to enact change, but parliaments are reluctant to cross that threshold. This chapter deconstructs the case law on maintaining the status quo and constitutionally deferring to the legislature. It also considers reasons why legislators have declined to enact legal reform – autonomy issues, safeguards, palliative alternatives and the slippery slope. It looks at three jurisdictions in which this matter is overtly constitutional, and finds similarities among the criminal provisions that litigants sought to overturn and the rights on the basis of which they were overturned, leading to legislative change. The contested criminal provisions reflect the Suicide Act 1961 and the constitutional provisions against which they were considered to mirror the Human Rights Act. Currently, the only evidence of escape from liminality is a de facto policy of non-prosecution. With the UK Supreme Court poised to declare incompatibility with the European Convention on Human Rights, the ground has been laid for a constitutional answer that forces the legislature’s hand and enables a move beyond liminality.
I reply to William Hasker's ‘The Trinity as Social and Constitutional’, continuing our debate over the use of the metaphysical concept of constitution to explicate the Christian doctrine of the Trinity.
This chapter revisits the Universal Declaration of Human Rights (UDHR) and some thinkers who addressed social rights in its time, arguing that it is best understood historically as a charter for social citizenship. There is little evidence that the UDHR was intended – let alone noticed – as a call for supranational protection or a lodestar for non-governmental pressure. Rather, the UDHR was a template for a new kind of state, thus both national and governmental in its implications. This unprecedented new kind of state, birthed by the Second World War and ultimately consecrated around the world, afforded social protections and perhaps even egalitarian distribution. The restoration of the UDHR to its time poses new questions about how it was that human rights could indeed become at a later date so strongly associated with the supranational and non-governmental even as any commitment to distributive equality evaporated. Put in terms of a formula, the UDHR is an artefact of a pre-neo-liberal age that found itself celebrated in a neo-liberal one – but only once it was reinvented first.
During a negotiation, there is seldom the time or capacity for parties to reach a full and complete agreement on a comprehensive legal framework for postconflict governance. Instead, the parties often agree to a preliminary set of principles coupled with a general governing framework. They then set forth an agreed process for negotiating, designing, and implementing a national dialogue, the drafting or amending of a constitution, and elections. This chapter explores the puzzle of whether and how to address constitutional modification during peace negotiations in a manner that promotes a durable peace. It reviews the peace processes related to conflicts in Bosnia and Herzegovina, Colombia, East Timor, Guatemala, Iraq, Kosovo, Macedonia, Nepal, Northern Ireland, Somalia, South Africa, Syria, and Yemen to explore whether and how to address constitutional modification during the peace process; the timing of determining and executing a postconflict constitution-drafting process; whether to draft an interim constitution; whether to accomplish constitutional reform through amendments or by drafting a full constitution; how to approve and finalize constitutional modifications; and whether and how to incorporate issues of human rights.
Chapter 3 addresses Edmund Burke’s role in the eighteenth-century reception of classical eloquence, investigating his provocative claim that disruptive, injudicious speech can act as a spur to sound political judgment and institutional health. While Cicero’s rhetoric and his model of public life celebrated risky spontaneity and was only loosely rule-governed, a range of Burke’s contemporaries argued that the rule-bound governance of the modern era demanded a complementary style of rule-bound speech: a discourse that was factual, restrained, dispassionate, and even happily mediocre. Burke’s Philosophical Enquiry Into the Origin of Our Ideas of the Sublime and Beautiful made an important break with this line of thought, celebrating the sublime’s power to disrupt custom and ordinary time. His speeches and political writings built on this conceptual foundation, developing an account of the pain of judging and the allegedly defective deliberation that often serves to evade that pain, substituting rules and maxims for engagement with circumstantial complexities. Burke consistently argued that such deliberation is ultimately self-defeating and marked by a fatal lack of what I call “imaginative judgment.” Yet he also suggested that the rhetorical sublime – which might be excessive and even uncanny – was necessary to provoke the exercise of such judgment.
In 2018, the nature of Israel as a state received further elaboration in law adopted by Israel’s Knesset titled Israel –The Nation State of the Jewish People. This law declared Israel to be “the nation state of the Jewish People.” The law was designated as a “basic law,” meaning that it held constitutional rank. The law declared “the development of Jewish settlement as a national value.” The law was criticized for excluding Israel’s Arab population from the country’s political constituency by declaring that Israel was the nation state of the Jewish people only. The law was also criticized for declaring settlement as a “national value,” since settlement in occupied territory is prohibited by international humanitarian law.
This article begins the task of outlining the impacts of the COVID-19 pandemic in relation to matters of citizenship, using what is termed a “syndemic analysis.” This type of analysis places both the pandemic and citizenship in their wider contexts. The synergistic or intersectional thinking encouraged by the characterization of the pandemic as a syndemic, which links together health, socio-economic issues, and political questions, is useful for highlighting how much more vulnerable to many of the negative impacts of the pandemic in the sphere of citizenship are those who are also more vulnerable both to catching and suffering more seriously from the virus and to experiencing negatively the externalities of the measures taken to restrict social contact by shutting down economies. While the scope of the review is relatively broad and encompasses many different domains of “pandemic life,” what emerges from the analysis are important insights into how many of the impacts of the pandemic in fact operate at the intersection of citizenship and constitutional law and thus play out in the form of changes in relation to constitutional citizenship, both as ideal and as practice. The article takes an important step towards developing the use of constitutional citizenship as a framing device for understanding citizenship as putative full membership in a given society.
Chapter 1 introduces the concept of the censor’s dilemma: the notion that censors in America may wield significant power for a limited time, but ultimately are undone by the principles of free expression embodied in the First Amendment. Because of this, reformers seek to avoid the label of “censor,” even when their goal is to suppress speech. The urge to censor comes from both the political left and the right, yet both sides claim that only their antagonists engage in censorship. Paradoxically, censors exude sanctimony and a sense of certainty, but cannot shake off the taint of illegitimacy in societies devoted to freedom of expression.
This article will place the 2020 amendments to the Russian Constitution in comparative perspective. Although these amendments were officially justified as strengthening the Russian state in order to tackle emerging new problems, they constitutionalise already-existing legislative trends from the last twenty years. They therefore do little to overcome existing problems of Russian state building. What was the reform process about then? It was intended to project the image of reform by involving the people in a staged process of constitutional change while further entrenching the power of the current political elite. The constitutional reforms therefore demonstrate the symbolic role that constitutional law can play in seeking to ensure the survival of mature or later-stage forms of authoritarian populism. This kind of ‘theatrical constitution-making’ is a broader reminder of how the expressive aspects of constitutional change can be (ab)used by established authoritarian regimes.
The Chinese Communist Party (CCP) is a closely constituted party. Recent studies of the CCP describe and evaluate its formal rules, but to understand the Party as an institution we also need to understand its informal rules. The literature on “party norms”, “institutionalization” and the “unwritten constitution” often fails to distinguish rules from other political phenomena. It confuses informal rules with political practices, constitutional conventions, behavioural equilibria and doctrinal discourse. It is prone to overlook important rules, and to see rules where there are none. Hence, it potentially overstates how institutionalized the CCP is, and therefore how resilient it is. The article provides a clearer account of informal rules and suggests a different explanation for the resilience of the CCP.
This chapter presents Grotius’ ars politica that deals with what is useful in practice, different from the ars iuris that deals with issues of justice. Philosophically eclectic, descriptive and non-perfectionist, Grotius’ ars politica is directed at understanding and guiding the organisation of power (potestas) and interest (utile) in human live, on two levels: a. the metalevel of theoretical discussion comparing and integrating different approaches to the topic, and b. the practical level of providing answers to political challenges. As agency is central, so is autonomy, and sovereignty.
This article explores the impact of the COVID-19 pandemic on vulnerable people in South Africa in the specific context of poverty and inequality. It does so by first looking at the conceptual context and then highlighting the extent of the impact both from a constitutional and human rights context and from a legislative context. It uses the poor and vulnerable as a proxy to explore the impact of the pandemic (and the measures put in place to contain it) on the specific constitutional rights of vulnerable people, before suggesting a human rights-based approach to managing the pandemic. It concludes that, despite the South African government having undertaken some of the actions recommended, there remains room for improvement and scope for further research, as the pandemic is expected to continue for some time.
This chapter provides a reassessment of competence allocation and exercise under the UK constitution. It shows how the existing allocation needs to be understood through the prism of EU membership, and supports previously provided by the EU’s governance system. In particular, the EU’s commitment to subsidiarity, under which decisions should be taken at the lowest effective level, and its openness to regional concerns, carved out space for the exercise of devolved competence within a system of cooperative multilevel governance. This is in stark contrast to the near autonomous coexistence of the different governments within the UK nation state. As the UK embarks on the process of leaving the EU, its internal distribution of power is subjected to a recentralisation of competence. Informed by the literature on comparative federalism, it argues that there is a need for an effective domestic replacement for the shared competence space previously provided by the EU’s cooperative federalist system of governance. Powerful challenges have come from an attachment to the model of autonomous coexistence of central and devolved levels of government, reinforced by a resurgent principle of Westminster parliamentary sovereignty. Without an effective commitment to shared governance however, the Union’s future is in serious doubt.
Two conflicting views of the UK constitution exist: a Whitehall view, which treats ministers as the centre of the system and a Westminster view in which the House of Commons is central. In the former, British democracy is defined by elections to choose a Prime Minister. In the latter, elections choose a Parliament to which governments are accountable. Under united majority governments, the conflict remains hidden, but it emerges under minority or divided governments. The Brexit crisis was such a period. Its defining constitutional disputes – how far governments can act without Parliamentary approval, whether governments could close Parliament or veto bills, whether the Commons was justified in seizing control of its agenda, whether governments should continue after losing control of the House and whether the Fixed-term Parliaments Act changed conventions about confidence – all reflected aspects of the conflict between the two views. The Westminster theory gathered support in the Supreme Court and Commons, but the ultimate dénouement, a general election bringing to power a majority government, vindicated the Whitehall view. The crisis casts doubt on the Whitehall view’s viability in periods of political change, but also on whether Westminster politicians can make the Westminster view work.
The introduction outlines the book’s argument that biblical and constitutional debates over slavery introduced a sense of historical distance from the founding era and the biblical past. It also defines key terms, including historical distance, sacred texts, and favored pasts, and outlines developments by which the Bible maintained its status as a sacred text, while the Constitution achieved a similar kind of status in antebellum America. These developments set the stage for the process by which debates over slavery began to historicize the biblical and constitutional pasts. This process corresponded with the broader emergence of a modern historical consciousness. And yet, the nature of American religious and legal culture, and the presence of slavery, gave unique shape to American historical awareness. The book makes its most innovative move in showing how slavery encouraged interpretive shifts to read both the Bible and the Constitution as historical texts. I focus on a range of thinkers and interpreters and read their writings with an eye toward measuring historical consciouness. This approach demonstrates that the crisis over slavery in America became a crisis of historicity.
The prologue spotlights twenty-first-century uses of both the founding era and the biblical past to introduce the book’s central contention that biblical and constitutional debates over slavery cultivated a sense of historical distance in antebellum America. The prologue points to examples of how contemporary Americans both ignore and highlight historical distance in making political use of the founding era and the biblical past. It suggests that in both the antebellum era and in the twenty-first century, politics has shaped American approaches to these pasts and their corrsponding texts – the Bible and the Constitution. At the same time, the prologue maintains that the idea of the past as distant, which has become a common assumption in our period, only began to emerge in the antebellum era. To highlight the continuities and differences between antebellum and twenty-first century thought, the prologue references phrases such as “black lives matter” and “make America great again,” even as it points towards its central focus on the antebellum developments that shed light on the meanings of such phrases.
The epilogue indicates continuities and changes in American historical thought, highlighting the persistence of the ways in which politics inform historical awareness, and also showing that Americans continue to read the Constitution and the Bible in spite of – or in light of – historical awareness. While drawing attention to these continuities, the epilogue emphasizes differences in thought as well, particularly the fact that Americans today are more likely than their antebellum predecessors to engage in or to be confronted by conversations revolving around ahistorical and historical thinking. Twenty-first-century historical consciousness can be seen in aspirationalist readings of the Constitution and approaches to the Bible that deliberately account for historical distance. In attending to both continuities and changes, the epilogue underscores Americans’ continued efforts to bridge the meaning of founding documents to our new times, while also emphasizing the limitations of these approaches. A focus on the founders has allowed white Americans to avoid fully confronting the facts of slavery and racial prejudice in our past and, as a result, in our present.
In the decades before the Civil War, Americans appealed to the nation's sacred religious and legal texts - the Bible and the Constitution - to address the slavery crisis. The ensuing political debates over slavery deepened interpreters' emphasis on historical readings of the sacred texts, and in turn, these readings began to highlight the unbridgeable historical distances that separated nineteenth-century Americans from biblical and founding pasts. While many Americans continued to adhere to a belief in the Bible's timeless teachings and the Constitution's enduring principles, some antislavery readers, including Theodore Parker, Frederick Douglass, and Abraham Lincoln, used historical distance to reinterpret and use the sacred texts as antislavery documents. By using the debate over American slavery as a case study, Jordan T. Watkins traces the development of American historical consciousness in antebellum America, showing how a growing emphasis on historical readings of the Bible and the Constitution gave rise to a sense of historical distance.
The ‘directive principles of state policy’ under the Indian Constitution of 1950 and common law both sit at the core of India’s legal commitments to the international community. Article 51 of the Indian Constitution contains non-justiciable ‘principles’ and ‘state policy’ that speak of India’s commitment to ‘treaties’, ‘international law’, and ‘international arbitration’. While ‘foreign relations’ is certainly within the executive’s competence, the Indian Supreme Court settles all ‘law’ in India. In this chapter I attempt to find a Foreign Relations Law (FRL), if any, by looking into the Indian Constitution’s reading by the Indian Supreme Court on two counts: (a) How the Supreme Court finds, as in Campbell McLachlan’s FRL, ‘jurisdiction and applicable law’, and (b) how nations interact with the rest of the world in law, or the interaction of nation and the citizens or aliens as well as with international regimes, the core of Curtis Bradley’s FRL.