Constitutionalism

Past, Present, and Future

Author: Dieter Grimm

Publisher: Oxford University Press

ISBN: 0191090964

Category: Law

Page: 320

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Constitutionalism: Past, Present, and Future will offer a definitive collection of Professor Dieter Grimm's most important scholarly writings on constitutional thought and interpretation. The essays included in this volume explore the conditions under which the modern constitution could emerge; they treat the characteristics that must be given if the constitution may be called an achievement, the appropriate way to understand and interpret constitutional law under current conditions, the function of judicial review, the remaining role of national constitutions in a changing world, as well as the possibility of supra-national constitutionalism. Many of these essays have influenced the German and European discussion on constitutionalism and for the first time, much of the work of one of German's leading scholars of public law will be available in the English language.

The Twilight of Constitutionalism?

Author: Petra Dobner,Martin Loughlin

Publisher: OUP Oxford

ISBN: 0191633666

Category: Law

Page: 368

View: 9146

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The concepts and values that underpin traditional constitutionalism are increasingly being challenged by political realities that place substantial power beyond the state. Among the few certainties of a global economy is the growing incongruity between the political (the world of things that need to be ordered collectively in order to sustain society) and the state (the major institution of authoritative political decision-making during modern times). The consequences, and possible remedies, of this double disjunction of politics and state and of state and constitution form the centre of an open debate about 'constitutionalism beyond the state'. The essays gathered in this collection explore the range of issues raised by this debate. The effects of recent changes on two of the main building blocks of constitutionalism - statehood and democracy - are examined in Parts I and II. Since the movement of overcoming statehood has, arguably, been advanced furthest in the European context, the question of the future of constitutionalist ideas in the framework of the EU provides the key theme of Part III. The remaining parts consider possible transformations or substitutes. The engagement of constitutions with international law offers one line of transmutation of constitutionalism (Part IV) and the diffusion of constitutionalism into separate social spheres provides an alternative way of pursuing constitutionalism in a new key (Part VI). Finally, the ability of the theory of global administrative law (examined in Part V) to offer an alternative account of the potential of jurisdictional control of global governing processes is examined. Through these explorations, the book offers cross-disciplinary insights into the impact of recent political and economic changes on modern constitutionalism and an assessment of the prospects for constitutionalism in a transnational environment.

Constituting Economic and Social Rights

Author: Katharine G. Young

Publisher: Oxford University Press on Demand

ISBN: 0199641935

Category: Law

Page: 355

View: 8244

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This book will appeal to are range of constitutional and public legal scholars and practitioners, and will appeal to both audiences of human rights practice, and those following legal theory. First, the book presents a breakthrough in constitutional argument about economic and social rights, long debated in constitutional rights scholarship and public law. It provides an important collection of comparative developments, new analytical constructs, and contemporarydevelopments in rights theory. Second, the book draws on comparative constitutional law to inform and develop debates in international human rights law. This audience will learn how new approaches to interpretation, enforcement, adjudication, justiciability, and deliberation, may advanceinternational and transnational human rights advocacy, argument and reasoning. Third, the book informs the interdisciplinary debates of food, health care, housing, education and water law.

Constitutionalism

Ancient and Modern

Author: Charles Howard McIlwain

Publisher: The Lawbook Exchange, Ltd.

ISBN: 1584775505

Category: Law

Page: 162

View: 7993

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McIlwain, Charles Howard. Constitutionalism: Ancient and Modern. Ithaca: Cornell University Press, 1940. ix, 162 pp. Reprint available June 2005 by The Lawbook Exchange, Ltd. ISBN 1-58477-550-5. Cloth. $75. * Upon publication The Law Quarterly Review praised this book, noting that "great learning is manifest in these pages" (cited in Marke). McIlwain [1871-1968] examines of the rise of constitutionalism from the "democratic strands" in the works of Aristotle and Cicero through the transitional moment between the medieval and the modern eras. He concludes with a discussion of the forces of despotism that were threatening constitutionally based individual freedom in the 1930s. One of the twentieth century's most distinguished scholars of Anglo-American constitutional history, McIlwain was Eaton Professor of the Science of Government in Harvard University and the author of The High Court of Parliament and Its Supremacy (1910) and The American Revolution: A Constitutional Interpretation (1924). Both of these are available as Lawbook Exchange reprints.

Constitutionalism

Philosophical Foundations

Author: Larry Alexander

Publisher: Cambridge University Press

ISBN: 9780521799997

Category: Law

Page: 319

View: 8451

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This specially commissioned volume examines the issue of constitutionalism.

The Principles of Constitutionalism

Author: N. W. Barber

Publisher: Oxford University Press

ISBN: 0192535684

Category: Law

Page: 340

View: 1674

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In this follow-up volume to the critically acclaimed The Constitutional State, N. W. Barber explores how the principles of constitutionalism structure and influence successful states. Constitutionalism is not exclusively a mechanism to limit state powers. An attractive and satisfying account of constitutionalism, and, by derivation, of the state, can only be reached if the principles of constitutionalism are seen as interlocking parts of a broader doctrine. This holistic study of the relationship between the constitutional state and its central principles - sovereignty; the separation of powers; the rule of law; subsidiarity; democracy; and civil society - casts light on long-standing debates over the meaning and implications of constitutionalism. The book provides a concise introduction to constitutionalism and a detailed account of the nature and implications of each of the principles in question. It concludes with an examination of the importance of constitutional principles to the work of judges, legislators, and others involved in the operation and creation of the constitution. The book is essential reading for those seeking a definitive account of constitutionalism and its benefits.

Constitutional and Political Theory

Selected Writings

Author: Ernst-Wolfgang Böckenförde

Publisher: Oxford University Press

ISBN: 0198714963

Category: Law

Page: 429

View: 9834

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Ernst-Wolfgang Bockenforde (b. 1930) is one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court (December 1983 - May 1996), Bockenforde has been a major contributor to contemporary debates in legaland political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the rights of the enemies of the state, the constitutional status of the state of emergency, citizenship rights, and challenges of European integration. Hiswritings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and thus holder of one the most important and most trusted public offices, Bockenforde has influenced the way inwhich academics and citizens think about law and politics. During his tenure as a member of the Second Senate of the Federal Constitutional Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions pertaining to the deployment of missiles, thelaw on political parties, the regulation of abortion, and the process of European integration. In the first representative edition in English of Bockenforde's writings, this volume brings together his essays on constitutional and political theory. The volume is organized in four sections, focusing respectively on (I) the political theory of the state; (II) constitutional theory; (III)constitutional norms and fundamental rights; and (IV) the relation between state, citizenship, and political autonomy. Each of these four cornerstones of Bockenforde's legal and political thinking features introductions to the articles as well as a running editorial commentary to the work. A secondvolume will follow this collection, focusing on the relation between religion, law, and democracy.

The Global Model of Constitutional Rights

Author: Kai Möller

Publisher: Oxford University Press

ISBN: 0199664609

Category: Law

Page: 222

View: 6977

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The book presents a theory of constitutional rights law. It shows that there is now a 'global' model of constitutional rights, which means that certain structural features of rights are accepted in most jurisdictions where rights are judicially enforced. Drawing on analyses of a broad range of cases from the U.K., the European Court of Human Rights, Germany, Canada, the U.S., and South Africa, the book provides the first substantive moral, reconstructive theory ofthe global model. It develops a philosophically coherent conception of rights and provides original and useful accounts of important doctrines and developments of human and constitutional rights law, including rights inflation, horizontal effect, positive obligations, socio-economic rights, themargin of appreciation, balancing, and proportionality.

Unconstitutional Constitutional Amendments

The Limits of Amendment Powers

Author: Yaniv Roznai

Publisher: Oxford University Press

ISBN: 0198768796

Category:

Page: 368

View: 8195

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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.

Post Sovereign Constitution Making

Learning and Legitimacy

Author: Andrew Arato

Publisher: Oxford University Press

ISBN: 0191074020

Category: Law

Page: 300

View: 1678

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Constitutional politics has become a major terrain of contemporary struggles. Contestation around designing, replacing, revising, and dramatically re-interpreting constitutions is proliferating worldwide. Starting with Southern Europe in post-Franco Spain, then in the ex-Communist countries in Central Europe, post-apartheid South Africa, and now in the Arab world, constitution making has become a project not only of radical political movements, but of liberals and conservatives as well. Wherever new states or new regimes will emerge in the future, whether through negotiations, revolutionary process, federation, secession, or partition, the making of new constitutions will be a key item on the political agenda. Combining historical comparison, constitutional theory, and political analysis, this volume links together theory and comparative analysis in order to orient actors engaged in constitution making processes all over the world. The book examines two core phenomena: the development of a new, democratic paradigm of constitution making, and the resulting change in the normative discussions of constitutions, their creation, and the source of their legitimacy. After setting out a theoretical framework for understanding these developments, Andrew Arato examines recent constitutional politics in South Africa, Hungary, Turkey, and Latin America and discusses the political stakes in constitution-making. The book concludes by offering a systematic critique of the alternative to the new paradigm, populism and populist constituent politics.

Philosophical Foundations of Constitutional Law

Author: University Professor of Law and Philosophy David Dyzenhaus,Malcolm Thorburn

Publisher: Oxford University Press

ISBN: 0198754523

Category:

Page: 350

View: 5509

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Constitutional law has been and remains an area of intense philosophical interest, and yet the debate has taken place in a variety of different fields with very little to connect them. In a collection of essays bringing together scholars from several constitutional systems and disciplines, Philosophical Foundations of Constitutional Law unites the debate in a study of the philosophical issues at the very foundations of the idea of a constitution: why one might be necessary; what problems it must address; what problems constitutions usually address; and some of the issues raised by the administration of a constitutional regime. Although these issues of institutional design are of abiding importance, many of them have taken on new significance in the last few years as law-makers have been forced to return to first principles in order to justify novel practices and arrangements in their constitutional orders. Thus, questions of constitutional 'revolutions,' challenges to the demands of the rule of law, and the separation of powers have taken on new and pressing importance. The essays in this volume address these questions, filling the gap in the philosophical analysis of constitutional law. The volume will provoke specialists in philosophy, politics, and law to develop new philosophically grounded analyses of constitutional law, and will be a valuable resource for graduate students in law, politics and philosophy.

The Constitution of European Democracy

Author: Dieter Grimm

Publisher: Oxford University Press

ISBN: 0198805128

Category: Law

Page: 252

View: 3691

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Europe is in crisis. With rising unrest among citizens of EU member states exemplified by the UK's decision to leave the EU, and the growing popularity of anti-EU political parties, Dieter Grimm presents the argument that Europe has to change its method of further integration or risks failure.This book, containing essays many of which have not been published in the English language to date, explores how the EU has become over-constitutionalized. Grimm argues that this has left the EU with a democratic deficit leading to the alienation of citizens. This book highlights Europe's democracy problem. The most prominent argument running throughout is that the EU and its decision-making processes have become over-constitutionalized. This is due to the constitutionalization ?of European treaties, which has occurred by raising them to the eminence ofa constitution as a result of the jurisprudence of the European Court of Justice. However, the treaties contain provisions that would be ordinary law in member states. The fact that they enjoy constitutional status in Europe detaches them from the democratic processes in the member states and the EUitself, and contributes to the growing independence of the EU's executive and judicial institutions. The book also asserts that currently the EU does not have enough sources of legitimation to uphold itself, surviving solely on the legitimation provided by member states. One popular remedy is the suggestion of "parliamentarization" of the EU, giving the European Parliament the powers typicallypossessed by national parliaments as a means of heightening its legitimation. This is criticized by Grimm as expanding the Parliament's powers would not change the effects of over-constiutionalization as the Parliament is inferior to the constitution. In order to reduce the EU's legitimacy deficit, Grimm makes several recommendations. The repoliticization of the decision-making processes, which can be achieved by reducing treaties to the capacity necessary for their constitutional function; the reinvigoration of European Parliament elections, byhaving "Europeanized" parties to increase engagement with European society and give voters the opportunity to more immediately influence European politics; and a new division of powers based on subject matter to restrain European expansionism, reserving particular areas of policy to theresponsibility of member states even if this affects the common market.

The Three Branches

A Comparative Model of Separation of Powers

Author: Christoph Möllers

Publisher: Oxford University Press

ISBN: 0199602115

Category: Law

Page: 263

View: 2963

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The idea of the separation of powers is still popular in much political and constitutional discourse, though its meaning for the modern state remains unclear and contested. This book develops a new, comprehensive, and systematic account of the principle. It then applies this new concept to legal problems of different national constitutional orders, the law of the European Union, and international institutional law. It connects an argument from normative political theory with phenomena taken from comparative constitutional law. The book argues that the conflict between individual liberty and democratic self-determination that is characteristic of modern constitutionalism is proceduralized through the establishment of different governmental branches. A close analysis of the relation between individual and collective autonomy on the one hand and the ways lawmaking through public institutions can be established on the other hand helps us identify criteria for determining how legislative, administrative, and judicial lawmaking can be distinguished and should be organized. These criteria define a common ground in the confusing variety of western constitutional traditions and their diverse use of the notion of separated powers. They also enable us to establish a normative framework that throws a fresh perspective on problems of constitutional law in different constitutional systems: constitutional judicial review of legislation, limits of legislative delegation, parliamentary control of the executive, and standing. Linking arguments from comparative constitutional law and international law, the book then uses this framework to offer a new perspective on the debate on constitutionalism beyond the state. The concept permits certain institutional insights of the constitutional experiences within states to be applied at the international level without falling into any form of methodological nationalism.

Proportionality and Constitutional Culture

Author: Moshe Cohen-Eliya,Iddo Porat

Publisher: Cambridge University Press

ISBN: 1107244757

Category: Law

Page: N.A

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Although the most important constitutional doctrine worldwide, a thorough cultural and historical examination of proportionality has not taken place until now. This comparison of proportionality with its counterpart in American constitutional law - balancing - shows how culture and history can create deep differences in seemingly similar doctrines. Owing to its historical origin in Germany, proportionality carries to this day a pro-rights association, while the opposite is the case for balancing. In addition, European legal and political culture has shaped proportionality as intrinsic to the state's role in realizing shared values, while in the United States a suspicion-based legal and political culture has shaped balancing in more pragmatic and instrumental terms. Although many argue that the USA should converge on proportionality, the book shows that a complex web of cultural associations make it an unlikely prospect.

Constitutional Courts and Deliberative Democracy

Author: Conrado Mendes

Publisher: Oxford University Press

ISBN: 0199670455

Category: Law

Page: 249

View: 6203

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It is often argued that courts are better suited for impartial deliberation than partisan legislatures, and that this capacity justifies handing them substantial powers of judicial review. This book provides a thorough analysis of those claims, introducing the theory of deliberative capacity and its implications for institutional design.

Handbook on Global Constitutionalism

Author: Anthony F. Lang, Jr.,Antje Wiener

Publisher: Edward Elgar Publishing

ISBN: 1783477350

Category:

Page: 480

View: 3910

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This Handbook introduces scholars and students to the history, philosophy, and evidence of global constitutionalism. Contributors provide their insights from law, politics, international relations, philosophy, and history, drawing on diverse frameworks and empirical data sets. Across them all, however, is a recognition that the international order cannot be understood without an understanding of constitutional theory. The Handbook will define this field of inquiry for the next generation by bringing together some of the leading contemporary scholars.

The Dual State

A Contribution to the Theory of Dictatorship

Author: Ernst Fraenkel,Edith Lowenstein

Publisher: The Lawbook Exchange, Ltd.

ISBN: 1584776714

Category: Law

Page: 248

View: 7536

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An Unsparing Analysis of the Legal Principles and Constitutional Developments of the Third Reich This classic study is widely considered one of the finest analyses of totalitarianism. It was written in Germany in the late 1930s and completed in the United States in 1940, where Fraenkel lived after fleeing the Nazis in 1938. The title derives from Fraenkel's thesis that National Socialism divided the law into two co-existing areas. The first of these, The Normative State, protects the legal order as expressed in statutes, decisions of courts and the activities of administrative agencies. Its counterpart is the Prerogative State, which is governed by the party. It exercised "unlimited arbitrariness and violence unchecked by any legal guarantees" (xiii). As a detailed record of what has happened to the Rechtstaat under totalitarian auspices, this book is without rival.--Fritz Morstein Marx, Harvard Law Review 54 (1940-1941), 1267 Several scholars have published authoritative descriptions of the German political and legal system. Fraenkel's book differs from its predecessors in so far as it represents, to the reviewer, the first attempt to provide a theoretical analysis of the German legal order. --Otto Kirchheimer, Political Science Quarterly, Vol. 56, No. 3 (Sep., 1941), 434-436 Ernst Fraenkel [1898-1975], the renowned political scientist, is widely considered the father of the theory of pluralism in Germany. He served in the German Army during the First World War from 1914 to 1918, worked as a labor lawyer with the left-wing political activist Franz Leopold Neumann, and as a Social Democrat and a Jew, fled Germany to the United Kingdom in 1938, and then to the United States in 1939. It is said that the manuscript of this book traveled ahead as contraband. He served as legal counsel to Korea before returning to Germany in 1951. In 1963 he founded The John F. Kennedy Institute in Berlin. CONTENTS Preface Introduction PART I THE LEGAL SYSTEM OF THE DUAL STATE CH. I. The Prerogative State CH. II. The Limits of the Prerogative State CH. III. The Normative State PART II THE LEGAL THEORY OF THE DUAL STATE CH. I. The Repudiation of Rational Natural Law by National-Socialism CH. II. The National-Socialist Campaign Against Natural Law CH. III. National-Socialism and Communal Natural Law PART III THE LEGAL REALITY OF THE DUAL STATE CH. I. The Legal History of the Dual State CH. II. The Economic Background of the Dual State CH. III. The Sociology of the Dual State Abbreviations Notes Appendix Table of Cases Index

Carl Schmitt's State and Constitutional Theory

A Critical Analysis

Author: Benjamin Schupmann

Publisher: Oxford University Press

ISBN: 0192509322

Category: Law

Page: 232

View: 8036

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Can a constitutional democracy commit suicide? Can an illiberal antidemocratic party legitimately obtain power through democratic elections and amend liberalism and democracy out of the constitution entirely? In Weimar Germany, these theoretical questions were both practically and existentially relevant. By 1932, the Nazi and Communist parties combined held a majority of seats in parliament. Neither accepted the legitimacy of liberal democracy. Their only reason for participating democratically was to amend the constitution out of existence. This book analyses Carl Schmitt's state and constitutional theory and shows how it was conceived in response to the Weimar crisis. Right-wing and left-wing political extremists recognized that a path to legal revolution lay in the Weimar constitution's combination of democratic procedures, total neutrality toward political goals, and positive law. Schmitt's writings sought to address the unique problems posed by mass democracy. Schmitt's thought anticipated 'constrained' or 'militant' democracy, a type of constitution that guards against subversive expressions of popular sovereignty and whose mechanisms include the entrenchment of basic constitutional commitments and party bans. Schmitt's state and constitutional theory remains important: the problems he identified continue to exist within liberal democratic states. Schmitt offers democrats today a novel way to understand the legitimacy of liberal democracy and the limits of constitutional change.

The Foundations and Traditions of Constitutional Amendment

Author: Richard Albert,Xenophon Contiades,Alkmene Fotiadou

Publisher: Bloomsbury Publishing

ISBN: 1509908277

Category: Law

Page: 416

View: 3377

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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.