Weak Constitutionalism

Author: Joel I. Colon-Rios
Publisher: Routledge
ISBN: 0415671906
Format: PDF, ePub, Docs
Download Now
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
Format: PDF, ePub
Download Now
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
Format: PDF, Docs
Download Now
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
Format: PDF, ePub, Mobi
Download Now
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
Format: PDF, Docs
Download Now
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
Format: PDF, Docs
Download Now
Aoife O'Donoghue explains why normative constitutionalism must underpin the global constitutionalisation debate if it is to realise its critical potential.

Reframing Rights

Author: Sheila Jasanoff
Publisher: MIT Press
ISBN: 0262297787
Format: PDF, Mobi
Download Now
Legal texts have been with us since the dawn of human history. Beginning in 1953, life too became textual. The discovery of the structure of DNA made it possible to represent the basic matter of life with permutations and combinations of four letters of the alphabet, A, T, C, and G. Since then, the biological and legal conceptions of life have been in constant, mutually constitutive interplay -- the former focusing on life's definition, the latter on life's entitlements. Reframing Rights argues that this period of transformative change in law and the life sciences should be considered "bioconstitutional."Reframing Rights explores the evolving relationship of biology, biotechnology, and law through a series of national and cross-national case studies. Sheila Jasanoff maps out the conceptual territory in a substantive editorial introduction, after which the contributors offer "snapshots" of developments at the frontiers of biotechnology and the law. Chapters examine such topics as national cloning and xenotransplant policies; the politics of stem cell research in Britain, Germany, and Italy; DNA profiling and DNA databases in criminal law; clinical trials in India and the United States; the GM crop controversy in Britain; and precautionary policymaking in the European Union. These cases demonstrate changes of constitutional significance in the relations among human bodies, selves, science, and the state.

Constitutional Fragments

Author: Gunther Teubner
Publisher: Oxford University Press
ISBN: 0199644675
Format: PDF, Docs
Download Now
The powerful private sectors of the world economy remain largely unconstrained by fundamental constitutional rules, leading to human rights abuses on a massive scale. This book examines how the values of constitutional governance can be applied to the private sphere in the modern world, through a network of constitutional fragments.

Unconstitutional Constitutional Amendments

Author: Yaniv Roznai
Publisher: Oxford University Press
ISBN: 0198768796
Format: PDF, ePub, Mobi
Download Now
Can constitutional amendments be unconstitutional? The problem of 'unconstitutional constitutional amendments' has become one of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. This book describes and analyses the increasing tendency in global constitutionalism substantively to limit formal changes to constitutions. The challenges of constitutional unamendability to constitutional theory become even more complex when constitutional courts enforce such limitations through substantive judicial review of amendments, often resulting in the declaration that these constitutional amendments are 'unconstitutional'. Combining historical comparisons, constitutional theory, and a wide comparative study, Yaniv Roznai sets out to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments.

The Two Faces of American Freedom

Author: Aziz Rana
Publisher: Harvard University Press
ISBN: 0674058968
Format: PDF, ePub
Download Now
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.