Global constitutionalism : positivism and international law -- International trade law : theories and practices in negotiations -- Making rules in the WTO : negotiations from Doha to Bali -- North-South controversy : developed and developing countries in the WTO -- Self-determination and minority rights under international law -- Human right : the interlocutor of global constitutionalism -- Asian approaches to international law -- The future of international law.

Investigates, by way of Derrida's engagements with Kant, how the foundations of modern constitutionalism can be differently conceived to address some of the challenges of the twenty-first century.

The threat of terrorism once again raises some of the classic questions about constitutionalism: is it possible for constitutions to do what they aim to do—channel and control political power in such a way as to make it safe and beneficent for those under its rule but also competent to govern? Does not terrorism reraise the Schmittian problem of “the exception”, i.e., the situation of emergency that necessarily escapes all constitutional limitations? Although they did not face the problem of (...) terrorism as we know it, the American founders developed three different models of constitutionalism, embodying three different ways of responding to emergent circumstances and yet remaining bound to the constitutionalist aspiration. We develop the main outlines of the three models both conceptually and historically and show how they continue to be relevant to current discussions of constitutionalism in the age of terror. Finally, we make a tentative effort to judge which of the three models is most able to do what constitutions should do in difficult times. (shrink)

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. (shrink)

Rule of law and constitutionalist ideals are understood by many, if not most, as necessary to create a just political order. Defying the traditional division between normative and positive theoretical approaches, this book explores how political reality on the one hand, and constitutional ideals on the other, mutually inform and influence each other. Seventeen chapters from leading international scholars cover a diverse range of topics and case studies to test the hypothesis that the best normative theories, including those regarding the (...) role of constitutions, constitutionalism and the rule of law, conceive of the ideal and the real as mutually regulating. (shrink)

The central argument of this book is that liberalism, constitutionalism, and democracy, as well as, specifically, liberal constitutional democracy all work, when they do, because they serve the mutual advantage of the politically effective groups in the society through coordination of those groups on a political and, perhaps, economic order. These arguments are applied both to the early history of constitutional developments in the United States and to contemporary transitions from autocratic regimes to market democracies. A subsidiary claim is (...) that constitutional political institutions and democratic procedures generally require not so much active support as merely acquiescence in order to survive and work. These are explanatory theses, not normative claims, but they have relevance for normative claims if one takes seriously some relative of Kant's dictum that ought implies can. If we are to insist that some form of government is normatively right for a particular society, we must be able to say that it would or could work for that society. It is commonly argued that what makes democracy right is that it works by consent. If so, it is such a distressingly minimal form of consent—acquiescence—as to be normatively disqualified. If we rule out mere acquiescence as adequate for consent, it seems likely that no credible argument can be adduced to defend liberal constitutional democracy in any detail on grounds of consent or contractarianism. Hence, concern for workability, which should be central to any moral assessment of principles of social order, undercuts the entire consent school of political theory. (shrink)

This essay explores the ways in which a broadly pluralist outlook can help illuminate longstanding issues of constitutional theory and practice. It begins with a common-sense understanding of pluralism as the diversity of observed practices within a general category (section 2). It turns out that many assumptions Americans and others often make about constitutional essentials are valid only locally but not generically. The essay then turns to pluralism in a more technical and philosophical sense—specifically, the account of value pluralism adumbrated (...) by Isaiah Berlin and developed by his followers. Section 3 sketches this version of pluralism, and section 4 brings it to bear on a range of familiar constitutional issues. In the process, a distinction emerges between, on the one hand, areas of variation among constitutions and, on the other, some general truths about political life that define core constitutional functions. The essay concludes (section 5) with some brief reflections on the normative thrust of pluralist constitutional theory—in particular, a presumption in favor of the maximum accommodation of individual and group differences consistent with the maintenance of constitutional unity and civic order. (shrink)

As a metaphysic of human persons, constitutionalism in its most general form is the view that human persons are constituted by their bodies, but are not strictly identical to them. The relation between human persons and their bodies is that of constitution, a type of unity relation whose relata are strictly nonidentical; “constitution is not identity”, as the phrase goes. As the literature on constitutionalism is plentiful the proponents and critics of the view are many the author will (...) interact principally (though not exclusively) with the brand of constitutionalism defended by Lynne Rudder Baker. Constitutionalism runs afoul of an independently plausible principle regarding the relationship between persons and their mental lives, what Andrew Bailey has called the priority principle. The principal motivating factor behind the priority principle is that human persons are the ultimate source or originator of their mental lives. (shrink)

This chapter contains sections titled: Introduction The Weakest Meaning of “Constitutionalism” Constitutionalism as a Theory Particular and General Constitutionalism Explicit and Implicit Constitutions Constitutionalism and Written Constitutions Constitutionalism and Constraint Empowerment and Authority Democracy: Constraint or Empowerment? Constitutionalism versus Democracy Popular Sovereignty Judicial Review of Legislation Concluding Remark Notes.

This illuminating book is a republican critique of the current system of global governance and its failure to address key global problems. With a republican account of international political theory which transcends prevailing forms of global governance, it develops republican forms of leadership and citizenship to inform the creation of a stronger system of formal international organisations. Republican Global Constitutionalism focuses on the current challenges facing formal international organisations such as the UN, the growing reliance on opaque informal international (...) organisations like the G20, and the inconsistent nature of transnational civil society. As a unique contribution to the field of global constitutionalism, the book provides an account of republican international political theory that emphasises the importance of extending the activity of citizens and constitutionalism beyond the state, in order to support the operation of transnational civil society and create a formal system of international organisations. Providing a concise intervention into the field of global governance, this book will appeal to scholars and students in the disciplines of international relations, political theory, transnational activism studies, international law, and public policy. It will also benefit policymakers and activists looking for alternative forms of global cooperation. (shrink)

Thomas Sattig has argued recently that constitutionalism renders determinism about the actual world false, just in virtue of ordinary facts about ordinary middle-sized material objects. However, it seems that, if determinism about the actual world is false, this should be so for reasons of physics rather than in virtue of ordinary facts about ordinary objects. This is the problem of cheap indeterminism. Sattig also claims, however, that constitutionalists can solve this problem if they abandon an attractive and promising solution (...) to the classical grounding problem affecting their view. In this paper I argue that, against his claims, constitutionalists can solve the problem of cheap indeterminism and the grounding problem simultaneously. (shrink)

Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat (...) the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny. (shrink)

The historical roots of despotism in Russia are long, the tradition of arbitrariness seems to be unbreakable. But this status quo can't persist endless: Growing mass protests indicate that the time nears when Russia will unhorse the self-constituted disposers and will demonstrate again its re-invention potential. -/- This expected and hoped egression from despotism into a new phase of Russian history needs to be carefully elaborated and arranged. Starting with the writing and publishing of my essays following mass political protests (...) in the former Soviet Union, namely, in the Russian Federation in fall and winter of the year 2012, I work permanently on redesigning political system. One year later, i.e. 2013, I released a book dedicated those events, and in the same year I wrote the draft of a new constitution, now revised and adopted by the community Rus’ whose member I am since 12.12.2018. -/- 2017 I registered an internet domain reserved for the Foundation intended to promote the constitutional order in Russia. Since that time, I designed the site of the Foundation, fashioned the identity card, and published several documents related to promotion and establishing of the constitutional order (CO). -/- All skilled designers and creative thinkers are invited to take part in this process as co-workers and creators of a new political system. (shrink)

The eleven essays in this volume, supplemented by an editorial introduction, centre around three overlapping problems. First, why would a society want to limit its own sovereign power by imposing constitutional constraints on democratic decision-making? Second, what are the contributions of democracy and constitutions to efficient government? Third, what are the relations among democracy, constitutionalism, and private property? This comprehensive discussion of the problems inherent in constitutional democracy will be of interest to students in a variety of social sciences. (...) It illuminates particularly the current efforts of many countries, especially in Latin America, to establish stable democratic regimes. (shrink)

This essay analyzes neo-liberal economic agreements and legal and political frameworks or what has been called the “new constitutionalism,” a governance framework that empowers market forces to reshape economic and social development worldwide. The article highlights some consequences of new constitutionalism for caring institutions specifically, and for what feminists call social reproduction more generally: the biological reproduction of the species; the reproduction of labor power; and the reproduction of social institutions and processes associated with the creation and maintenance (...) of communities. New constitutional governance frameworks fundamentally reshape conditions under which the care of human beings takes place. Caring institutions once governed by enabling professions geared to universal care are now determined increasingly by market values and private forces, and driven directly by the profit motive. This is one of the reasons why neo-liberalism is increasingly contested in both the North and the global South. (shrink)

The theory and practice of constitutionalism is tightly interwoven with references and appeals to values. However, these references and appeals frequently remain undertheorized and are seldom connected directly to philosophical theories of value. This chapter outlines some ways in which such connections might be established.

The article presents a plebeian strand of republican constitutional thought that recognises the influence of inequality on political power, embraces conflict as the effective cause of free government, and channels its anti-oligarchic energy through the constitutional structure. First it engages with two modern plebeian thinkers – Niccolò Machiavelli and Nicolas de Condorcet - focusing on the institutional role of the common people to resist oppression through ordinary and extraordinary political action. Then it discusses the work of two contemporary republican thinkers (...) – Philip Pettit and John McCormick – and contrasts their models of ‘contestatory’ and ‘tribunician’ democracy. Finally, I incorporate a political economy lens and propose as part of republican constitutionalism not only contestatory and tribunician institutions but also anti-oligarchic basic rules to keep inequality and corruption under control. (shrink)

This is the second volume in a sub-series of specially commissioned collaborative volumes on key topics at the heart of contemporary philosophy of law that will be appearing regularly within Cambridge Studies in Philosophy and Law. A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as: why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? Why should one generation (...) feel bound by the constitution of an earlier one? The volume will be of particular importance to those in philosophy, law, political science and international relations interested in what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation. (shrink)

Constitutionalism offers a governance order a set of normative values including, amongst others, the rule of law, divisions of power and democratic legitimacy. These normative values regulate the relationship between constituent and constituted power holders. Such normative constitutional legal orders are commonplace in domestic systems but the global constitutionalisation debate seeks to identify a constitutional narrative beyond the state. This book considers the manner in which the global constitutionalisation debate has neglected constitutionalism within its proposals. It examines the (...) role normative constitutionalism plays within a constitutionalisation process, and considers the use of community at both the domestic and global governance levels to identify the holders of constituent and constituted power within a constitutional order. In doing so this analysis offers an alternative narrative for global constitutionalisation based within normative constitutionalism. (shrink)

This paper has several aims. Its main interpretive task is to argue that the democratic aspirations of contemporary critical theory are informed and haunted by an essentially Hegelian conception of constitutional order that I describe in part 1, according to which the modern state represents an institutional structure that integrates society through rational activity by mediating between the different interests of various social strata, connecting them in a common enterprise—haunted, because this Hegelian vision of making individuals free and “at home” (...) in the modern world, reconciled to it by virtue of being able to comprehend their social order as the work of their own shared reasons, remains a griping one, but one that critical theorists starting with the Left Hegelians view as increasingly implausible under modern social conditions. In section 2, I trace the decline of confidence in the prospects for the rational/mediational integration of society Hegel envisioned through Horkheimer and Adorno, and discuss some relevant aspects of Habermas’s initial reception of their views. Section 3 argues that the conceptions of democratic constitutional politics offered by Habermas and Benhabib should be read as attempts to recover, in a critical manner and under changed conditions, Hegel’s idea of social order as the product of rational activity. Along the way, I will make three interpretive and critical points: first, the existence of this link to Hegelian conceptions of constitutionalism demonstrates that interpretations of Habermas’s later work that read him as having broken with the tradition of Left Hegelianism are overstated—my reading of Habermas highlights his essentially Hegelian proceduralism and the social theoretic dimension of his work, and should challenge people who think of him as a neo-Kantian moralist. Second, this Left Hegelian social theoretic backdrop provides a stronger normative justification for the practice of democratically rearticulating constitutional norms—along with its apparent demotion of the stabilizing virtues of the rule of law—than the contextual one that some legal theorists have so far offered. Thirdly, I will comment on the shortcomings of Habermas’s conception of democratic constitutionalism, as well as Benhabib’s modified concept of “democratic iterations,” along with some brief suggestions on how this set of ideas should be developed. (shrink)

Drawing upon Hannah Arendt's and Carl Schmitt's theories on the relationship between nomos and boundary, this paper revisits how constitutionalism and political power are reconciled as constitutional ordering. It first analyzes constitutionalism in the light of political modernity. Indicating that political power grounded by constitutions is omnipotent, complementing and completing constitutionalism, the paper contends that an omnipotent constitutional ordering is anything but an unleashed Leviathan. It is argued that constitutional omnipotence is framed and thus constrained by a (...) constitutional nomos, the matrix of which is a dual delimitation of boundaries, generational, and jurisdictional. (shrink)

Constitutionalism in an Age of Diversity James Tully. these ambassadors from Haida Gwaii conciliate the goods which appear irreconcilable to us? To discover the answer, and learn our way around on this strange common ground, we need to ...

Globalization is a topic of some anxiety among international lawyers. On the one hand, its fluid dynamics — fragmentation, deformalization and empire — undermine traditional diplomatic rules and institutions. On the other hand, the effort to reimagine international law in purely managerial terms appears intellectually shallow and politically objectionable. To avoid marginalization and instrumentalization, many lawyers have begun to think about international problems through a constitutional vocabulary and have often cited Kant in that connection. This Article argues that, while it (...) is always possible to grasp the world through a constitutional vocabulary, this does not provide determinate answers to international problems. Instead of an institutional architecture or a set of legal rules, constitutionalism is best seen as a mindset — a tradition and a sensibility about how to act in a political world. Contrary to a widespread assumption, Kant’s political writings may also be read in this fashion and, if so, a meaningful international transformation might necessitate not only legislative or institutional intervention but a professional and perhaps spiritual regeneration. (shrink)

The very idea of the draft European Union (EU) Constitutional Treaty was reexamined after the failed French and Dutch referendums and the Treaty of Lisbon (also known as the Reform Treaty) was drafted and entered into force on 1 December 2009 after it’s ratification by all 27 member states. The traditional notion of a Constitution as a national legal document establishing the social contract and a moral minimum for a particular socially unified group still prevails in legal and political thinking. (...) Indeed, the European Union has some constitutional elements, but absence of the so called ‘European demos’ prevents us from recognizing the founding treaties as a real ‘European constitution’ in the proper sense of the word. The author agrees with the decision to exclude the term ‘Constitution’ from the title and contents of the new Reform Treaty. The author also suggests that softer terms, like ‘European constitutional order’ and ‘European Constitutionalism’ might better reflect the scope of contemporary European integration than the term of ‘a Constitution for Europe’. A rethinking of the ‘constitutional core’ of the Lisbon Treaty was inspired following the so-called Lisbon judgments of Czech, Latvian and German constitutional courts. (shrink)

This chapter contains section titled: What Constitutions Are What Constitutions Do Are Constitutions Desirable? References.

This chapter contains sections titled: What Are Constitutions? What Functions Do Constitutions Perform? Are Constitutions Desirable? References.

Constitutionalism and the Rule of Law are related ideas about how the powers of government and of state officials are to be limited. The two ideas are sometimes equated. But constitutionalism, generally understood, usually refers to various constitutional devices and procedures, such as the separation of powers between the legislature, the executive and the judiciary, the independence of the judiciary, due process or fair hearings for those charged with criminal offences, and respect for individual rights, which are partly (...) constitutive of a liberal democratic system of government. The Rule of Law, on the other hand, embodies certain standards that define the characteristic virtues of a legal system as such. (shrink)

This chapter deals with a brief word about the Christian doctrine of Incarnation. The doctrine of the Incarnation, which takes Jesus Christ to be a person fully human and fully divine, requires a slight modification of constitutionalism. Constitutionalism seems to have an advantage over mind‐body dualism about Christ's nature: his human nature is wholly material and his divine nature is wholly immaterial. The chapter also focuses on Christian doctrines of resurrection of the dead. Next, it discusses St Thomas (...) Aquinas's views in particular, and points to a few difficulties it has. It shows how constitutionalism can avoid Thomas's difficulties and provides an understanding of the doctrine of resurrection without immaterial souls. Aquinas gives a way to distinguish between Smith's and Brown's souls between death and the general resurrection. Separated souls are individuated by the bodies that they long for. Each separated soul has an affinity for the body with which it was united during earthlylife. (shrink)

The debate on political constitutionalism has entirely neglected the constitution-making dimension. This is probably due to the fact that constitution-making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution-making. Either they are overlooking certain problems (...) inherent to the electoral process that is supposed to tackle disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims undermine the political dimension of constitutionalism. (shrink)

The article examines the compatibility of agonistic democracy and populism as well as their relationship to the idea of constitutionalism. The first part shows that Chantal Mouffe’s recent attempts to reconcile her normative approach of an agonistic pluralism with a populist style of politics are not fully convincing. Although there are undeniable commonalities between an agonistic and a populist understanding of politics – the appreciation of conflict, the rejection of moralistic and juridical modes of conflict resolution etc. – the (...) populist mode of the construction of the people (and the denunciation of political opponents as enemies of the people) risks impeding the transformation of antagonistic into agonistic modes of political contest. The tensions between agonism and populism are especially evident in matters of constitutionalism. This topic is examined in the second part of the article, which provides some ideas for reducing the normative and institutional blind spots of contemporary theories of agonistic democracy. It focuses on elementary principles for an agonistic concept of democratic constitutionalism that differs from the populist view of the relationship between politics and law, especially in respect of its interpretation of the concept of ‘resistibility’ of legal norms. (shrink)

This essay introduces a collection of articles gathered under the theme of “law, science, and constitutions of life.” Together, they explore how revolutions in notions of what biological life is are eliciting correspondingly revolutionary imaginations of how life should be governed. The central theoretical contribution of the collection is to further elaborate the concept of bioconstitutionalism, which draws attention to especially consequential forms of coproduction at the law–life nexus. This introduction offers a theoretical discussion of bioconstitutionalism. It explores the constitutional (...) significance of interplay between scientific and technological power over life and a given political community’s shared imaginary of what modes of reasoning, judgment, and rule are proper and legitimate in a well-ordered state. It argues that knowing what life is for purposes of governance does not follow from scientific knowledge alone. Rather, such knowledge is refracted through culturally distinctive imaginaries that commit societies to particular understandings of what life means and what should be done to encourage its flourishing. (shrink)

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just (...) Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism. (shrink)

How is legitimacy to be secured for constitution-like legal orders operating beyond the state? Some scholars recommend connecting aspects of global law to human rights adjudication and enforcement by adopting their preferred method for resolving conflicts, namely, proportionality analysis. Adopting a frame of analysis widely embraced by apex courts might generate the requisite regime legitimacy, it is argued. This turns out to be a strategy that is difficult to pursue in the realm of international investment law, a global legal order (...) made up of over 3,300 investment and regional treaties, enforced by private systems of dispute resolution, that incorporates standards of treatment familiar to national constitutional law. By undertaking an analysis of statements made by relevant actors in the field, principally investment lawyers and arbitrators, we learn that there is not that much interest in taking up proportionality analysis, despite the legitimacy problems that continue to dog the system. Whatever the purported advantages of turning to proportionality, it turns out that investment lawyers and arbitrators are not so interested in embracing logics other than one preoccupied with owing solicitude to foreign investors. This reluctance renders investment law a less legitimate, and therefore less sustainable, form of constitution-like global law. (shrink)

This book provides insights into the viability of the idea of global constitution. Global constitutionalism has emerged as an alternative paradigm for international law. However, in view of the complex and varied structure of contemporary constitutionalism, in reality it is extremely difficult to use constitutional law to provide a new paradigm for international law. The book argues that the cultural paradigm can offer functional tools for the global constitutionalism discourse. In other words, global constitutionalism could be (...) handled in the context of a global "constitutional culture" instead of a global constitution. This would provide a more realistic basis for discussing global constitutionalization of a society as diverse as the international community, where a globalized polity and a globalized legal system have not yet been achieved. (shrink)

This paper looks to Hannah Arendt's thinking about freedom and revolution to shed light on the "revolutionary jurisprudence" of South African Constitutional Court Justice Laurie Ackermann. As Arendt understands it, revolution is the coincidence of the idea of freedom and the experience of a new beginning. Arendt insists that only a government that harbors the revolutionary spirit can secure a stable space for freedom in the modern world. In asking what institutional spaces of exist that might preserve a space of (...) freedom in modern society, Arendt settles upon the Constitution and its institutional Praetorian guard, the Supreme Court. And yet, Arendt argues that the democratic and scientific trends have eroded the Supreme Court's freedom have threatened to eradicate freedom from the American public sphere. The paper looks to Justice Ackermann's jurisprudence as a way to reinvigorate Constitutional jurisprudence as a space for freedom. (shrink)

SummaryThe Admonition Controversy, largely between Thomas Cartwright and John Whitgift has proven fecund ground for intellectual historians analysing the religious dimension to early-modern political ideas. This paper argues that the religious dimension of Cartwright's mixed constitutionalism needs better explanation, rather than just noting that his ecclesiastical mixed constitutionalism mirrors his political mixed constitutionalism. This paper tracks Cartwright's progressive, dialogical unfolding of his mixed constitutionalism in response to Whitgift's attempt to derive episcopacy from the fact of English (...) monarchy, effectively discrediting the Admonition to Parliament. Furthermore, the essay outlines how the Cartwright–Whitgift debate led Cartwright to emphasise a parliamentarist mixed constitution when most of his contemporaries, especially the more famous mixed constitutionalist, Thomas Smith, portrayed the English parliament leaning noticeably towards the monarch. This analysis accepts that religious polemic was a major driving force in the normalisation of parliamentarism, yet seeks to show exactly how this worked out in one of the most important church–state disputes in Elizabethan England. (shrink)

The purpose of this paper is to propose and consider a new constitutional provision that can contribute to the protection of the vital needs of future generations. The proposal I wish to elaborate can be termed the posterity provision, and it has both substantive and procedural elements. The aim of this constitutional provision is twofold. The first is to encourage state authorities to make more future‐oriented deliberations and decisions. The second is to create more public awareness and improve the process (...) of public deliberation about issues affecting near and remote future generations. It is argued that a good case can be made for the proposed reforms compared with alternative substantive constitutional environmental provisions found in existing constitutions and in the literature on legal and political theory. The main reason for this is that the proposed law constitutes a better and more adequate basis for judicial enforcement than the alternatives, which tend to be very vague or unclear. In this connection, I contend that there are both epistemological and moral reasons for introducing constitutional provisions that focus on the protection of critical natural resources essential for meeting the basic physiological needs of future people. It is also argued that the posterity provision can be defended on the basis of central ideas and ideals in recent theory of deliberative democracy. (shrink)

Is there evidence of constitutionalism in classical Confucian political thought? In Sungmoon Kim's book on Confucian virtue politics, he argues that that Mencius (Mengzi, fourth century BCE) and Xunzi (third century BCE) are constitutionalists in the following sense: they expressed a commitment to creating durable institutions, one of whose primary aims is to constrain the exercise of legitimate political authority and facilitate good and proper uses of political authority. But for many political thinkers, the sort of constitutionalism that (...) really matters is the sort that entails a commitment to "constitutional remedies." Roughly, a constitutional remedy is some sanctioned means of enforcing the constraints or correcting political authorities who fail to abide by them. Moreover, it is often thought that the remedies should be entrenched – that is, widely recognized and regarded as beyond the legitimate power of the political authorities to change easily. Most decent political thinkers are constitutionalists in the the weak sense that they think there should be durable institutions that constrain abuses of power and facilitate good uses of power. Fewer go so far as to say that there should be entrenched checks and balances on that power, so that people's well-founded objections have something more than just rhetorical force against abuses of power. -/- In this paper, I examine whether Mencius and Xunzi would qualify as constitutionalists in the robust sense that presupposes entrenched remedies. I find that Mencius has some political commitments that might make him friendlier to aristocratic remedies than to democratic ones, but that his reluctance to divide political authority among non-ideal agents makes it difficult to know whether he would accept constitutional remedies of any sort. And my findings with respect to Xunzi are similar, but a modicum more hopeful: at best, Xunzi could be stretched to underwrite some aristocratic constitutional remedies, and he seems somewhat more open to dividing power among non-ideal agents. Neither Mencius nor Xunzi were robust constitutionalists, but it is historically and philosophically informative to ask how near they came to robust constitutionalism, and in which respects they fell short of it. -/- In the course of developing and justifying my interpretation, I call attention to two considerations in assessing an historical thinker's commitment to robust constitutionalism: first, whether the thinker invokes the threat of rebellion as a way of countenancing it or merely as a descriptive claim about likely consequences of bad governance; second, whether non-ideal political agents are empowered to check abuses of power. Only when the thinker actually countenances rebellion and allows that non-ideal political agents can check abuses can the thinker be plausibly described as a robust constitutionalist. (shrink)

Drawing upon Hannah Arendt's and Carl Schmitt's theories on the relationship between nomos and boundary, this paper revisits how constitutionalism and political power are reconciled as constitutional ordering. It first analyzes constitutionalism in the light of political modernity. Indicating that political power grounded by constitutions is omnipotent, complementing and completing constitutionalism, the paper contends that an omnipotent constitutional ordering is anything but an unleashed Leviathan. It is argued that constitutional omnipotence is framed and thus constrained by a (...) constitutional nomos, the matrix of which is a dual delimitation of boundaries, generational, and jurisdictional. (shrink)

The contributions in this volume cover five main themes centring on constitutionalism and democracy: substantive views, procedural views, reconciling substance procedures, populist constitutionalism, and constitutional democracy beyond the nation state.