Weak Constitutionalism

Author: Joel I. Colon-Rios
Publisher: Routledge
ISBN: 0415671906
Size: 47.42 MB
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It has been frequently argued that democracy is protected and realized under constitutions that protect certain rights and establish the conditions for a functioning representative democracy. However, some democrats still find something profoundly unsettling about contemporary constitutional regimes. The participation of ordinary citizens in constitutional change in the world's most "advanced" democracies (such as the United States, Canada, and the United Kingdom) is weak at best: the power of constitutional reform usually lies in the exclusive hands of legislatures. How can constitutions that can only be altered by those occupying positions of power be considered democratically legitimate? This book argues that only a regime that provides an outlet for constituent power to manifest from time to time can ever come to enjoy democratic legitimacy. In so doing, it advances a democratic constitutional theory, one that combines a strong or participatory conception of democracy with a weak form of constitutionalism. The author engages with Anglo-American constitutional theory as well as examining the theory and practise of constituent power in different constitutional regimes (including Latin American countries) where constituent power has become an important part of the left's legal and political discourse. Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power will be of particular interest to legal/political theorists and comparative constitutional lawyers. It also provides an introduction to the theory of constituent power and its relationship to constitutionalism and democracy.

Beyond Origins

Author: Angélica Maria Bernal
Publisher: Oxford University Press
ISBN: 0190685638
Size: 54.49 MB
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The foundings of constitutional democracies are commonly traced to singular moments. In turn, these moments of national origin are characterized as radical political innovations, notable for their civic unity, perfect legitimacy and binding authority. This common view is attractive as it suggests original founding events, actors, and ideals that can be evoked to legitimize state authority and unify citizens. Angélica Maria Bernal challenges this view of foundings, however, explaining that it is ultimately dangerous, misguided, and unsustainable. Beyond Origins argues that the ascription of a universal authority to original founding events is problematic because it limits our understanding of subsequent foundational changes, political transformation and innovation. This singular view also confounds our ability to account for all of the actors and venues through which foundation-building and constitutional transformation occurs. Because such understandings of national foundings obscure the many power struggles at work in them, these origin stories are troubling and unhelpful. In the wake of these limited views of founding, Bernal develops an alternate approach: "founding beyond origins." Rather than asserting that founding events are authoritatively settled and relegated to history, this framework redefines foundings as contentious, uncertain, and incomplete. Indeed, the book looks at a wide variety of contexts-early imperial Rome; revolutionary Haiti and France; the mid-20th century, racially-segregated United States; and contemporary Latin America-to reconsider political foundings as a contestatory and ongoing dimension of political life. Bridging classic and contemporary political and constitutional theory with historical readings, Bernal reorients approaches to foundings, arguing that it is only through context-specific and pragmatist understandings of political origins that we can realize the potential for radical democratic change.

The Foundations And Traditions Of Constitutional Amendment

Author: Richard Albert
Publisher: Bloomsbury Publishing
ISBN: 1509908277
Size: 13.94 MB
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There is growing interest in constitutional amendment from a comparative perspective. Comparative constitutional amendment is the study of how constitutions change through formal and informal means, including alteration, revision, evolution, interpretation, replacement and revolution. The field invites scholars to draw insights about constitutional change across borders and cultures, to uncover the motivations behind constitutional change, to theorise best practices, and to identify the theoretical underpinnings of constitutional change. This volume is designed to guide the emergence of comparative constitutional amendment as a distinct field of study in public law. Much of the recent scholarship in the field has been written by the scholars assembled in this volume. This book, like the field it hopes to shape, is not comparative alone; it is also doctrinal, historical and theoretical, and therefore offers a multiplicity of perspectives on a subject about which much remains to be written. This book aspires to be the first to address comprehensively the new dimensions of the study of constitutional amendment, and will become a reference point for all scholars working on the subject. The volume covers all of the topics where innovative work is being done, such as the notion of the people, the trend of empirical quantitative approaches to constitutional change, unamendability, sunrise clauses, constitutional referenda, the conventional divide between constituent and constituted powers, among other important subjects. It creates a dialogue that cuts through these innovative conceptualisations and highlights scholarly disagreement and, in so doing, puts ideas to the test. The volume therefore captures the fierce ongoing debates on the relevant topics, it reveals the current trends and contested issues, and it offers a variety of arguments elaborated by prominent experts in the field. It will open the way for further dialogue.

Agonistic Democracy

Author: Mark Wenman
Publisher: Cambridge University Press
ISBN: 1107469791
Size: 11.53 MB
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This pioneering book delivers a systematic account of agonistic democracy, and a much-needed analysis of the core components of agonism: pluralism, tragedy, and the value of conflict. It also traces the history of these ideas, identifying the connections with republicanism and with Greek antiquity. Mark Wenman presents a critical appraisal of the leading contemporary proponents of agonism and, in a series of well-crafted and comprehensive discussions, brings these thinkers into debate with one another, as well as with the post-structuralist and continental theorists who influence them. Wenman draws extensively on Hannah Arendt, and stresses the creative power of human action as augmentation and revolution. He also reworks Arendt's discussion of reflective judgement to present an alternative style of agonism, one where the democratic contest is linked to the emergence of a militant form of cosmopolitanism, and to prospects for historical change in the context of neoliberal globalisation.

Constitutionalism In The Global Realm

Author: Poul F. Kjaer
Publisher: Routledge
ISBN: 1317804805
Size: 15.13 MB
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This book develops a sociologically informed theory of constitutionalism in the global realm, addressing both national and transnational forms of constitutional ordering. The book begins with the argument that current approaches to constitutionalism remain tied to a state-based conception of constitutions, and overlooks underlying structural transformations that trigger the emergence of constitutional forms of ordering. Poul F. Kjaer aims to address this shortcoming by offering a sociological and historically informed analysis of the evolution of constitutionalism in the face of globalisation. The analysis contextualises on-going constitutional developments through the use of a long-term historical perspective, which is capable of highlighting the impact of deeper structural transformations unfolding within society. The book looks at the ways in which national and transnational legal forms have evolved alongside one another. It demonstrates that the formation of global constitutions has not resulted in a corresponding decrease in the power of nation states, but instead, legal and political aspects of both the nation state and the transnational have been reconfigured and intensified in a mutually supportive manner. In combining insights from a range of fields, this interdisciplinary book will be of great interest to students and scholars of constitutional law, sociology, global governance studies, and legal, social and political theory.

Constitutionalism In Global Constitutionalisation

Author: Aoife O'Donoghue
Publisher: Cambridge University Press
ISBN: 1107050251
Size: 25.40 MB
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Aoife O'Donoghue explains why normative constitutionalism must underpin the global constitutionalisation debate if it is to realise its critical potential.

Constitutionalism And Democracy

Author: Richard Bellamy
Publisher: Routledge
ISBN: 1351571141
Size: 57.85 MB
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Constitutionalism and democracy have been interpreted as both intimately related and intrinsically opposed. On the one hand constitutions are said to set out the rules of the democratic game, on the other as constraining the power of the demos and their representatives to rule themselves - including by reforming the very processes of democracy itself. Meanwhile, constitutionalists themselves differ on how far any constitution derives its authority from, and should itself be subject to democratic endorsement and interpretation. They also dispute whether constitutions should refer solely to democratic processes, or also define and limit democratic goals. Each of these positions produces a different view of judicial review, the content and advisability of a Bill of Rights and the nature of constitutional politics. These differences are not simply academic positions, but are reflected in the different types of constitutional democracy found in the United States, continental Europe, Britain and many commonwealth countries. The selected essays explore these issues from the perspectives of law, philosophy and political science. A detailed and informative introduction sets them in the context of contemporary debates about constitutionalism.

Constitutionalism And Democratic Transitions

Author: Veronica Federico
Publisher: Firenze University Press
ISBN: 8884534011
Size: 37.33 MB
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"The book - as the outcome of a research performed by the University of Florence and the United States Institute of Peace of Washington - explores the role of law in the process of democratic transition in South Africa. More specifically it emphasize how constitutional law may contribute to "civilize" apparently reconcilable conflicts, a part from laying down the foundations of the new legal order and institutions. The book - as the outcome of a research performed by the University of Florence and the United States Institute of Peace of Washington - explores the role of law in the process of democratic transition in South Africa. More specifically it emphasize how constitutional law may contribute to "civilize" apparently reconcilable conflicts, a part from laying down the foundations of the new legal order and institutions"--Publisher's description.

The Two Faces Of American Freedom

Author: Aziz Rana
Publisher: Harvard University Press
ISBN: 0674058968
Size: 48.20 MB
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This is a sweeping new interpretation of the national experience, reconceiving key political events from the Revolution to the New Deal. Rana begins by emphasizing that the national founding was first and foremost an experiment in settler colonization. For American settlers, internal self-government involved a unique vision of freedom, which combined direct political participation with economic independence. However, this independence was based on ideas of extensive land ownership which helped to sustain both territorial conquest and the subordination of slaves and native peoples. At the close of the nineteenth century, emerging social movements struggled to liberate the potential of self-rule from these oppressive and exclusionary features. These efforts ultimately collapsed, in large part because white settlers failed to conceive of liberty as a truly universal aspiration. The consequence was the rise of new modes of political authority that presented national and economic security as society’s guiding commitments. Rana contends that the challenge for today’s reformers is to recover a robust notion of independence and participation from the settler experience while finally making it universal.

The Internet And Constitutional Law

Author: Oreste Pollicino
Publisher: Routledge
ISBN: 1317407997
Size: 69.41 MB
Format: PDF, Kindle
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This book analyses emerging constitutional principles addressing the regulation of the internet at both the national and the supranational level. These principles have arisen from cases involving the protection of fundamental rights. This is the reason why the book explores the topic thorough the lens of constitutional adjudication, developing an analysis of Courts’ argumentation. The volume examines the gradual consolidation of a "constitutional core" of internet law at the supranational level. It addresses the European Court of Human Rights and the Court of Justice of the European Union case law, before going on to explore Constitutional or Supreme Courts’ decisions in individual jurisdictions in Europe and the US. The contributions to the volume discuss the possibility of the "constitutionalization" of internet law, calling into question the thesis of the so-called anarchic nature of the internet.