Home  About us  Contact
 

Constitutional Arrangements (constitutional + arrangement)

Distribution by Scientific Domains
Law and Criminology66%
Humanities and Social Sciences33%

Selected Abstracts

Civil Society and the Re-imagination of European Constitutionalism

EUROPEAN LAW JOURNAL, Issue 4 2003
Michael A. Wilkinson
Recognising this necessarily dynamic relationship, an essentialist reading of a constitutionalisation of the demos is abandoned, and an examination of the extent to which the dialectic can credibly or legitimately be played out in a supranational ,community' and in the context of an emerging transnational civil society can be undertaken. Rather than seeking credibility or legitimacy through the rationalisation of a community by an ethical consensus as in some forms of republicanism and communitarianism, the dialectic opens up the norms and boundaries of the polity and leads to an understanding of the ,community' in less rigid and more diffuse, even plural, terms. Once understood in this way the possibility emerges for legitimacy to be pursued through a public sphere enlarged by a context-transcending constitutional discourse mediated by transnational civil society. Alternatively the normative ,openness' of the polity might be prioritised and with it the uncertainty/fluidity of the constitutional arrangement itself; in this way the legitimate pursuit of constitutionalism is understood in terms of a never-ending agonistic struggle or experimental practice. [source]

Delegation of Regulatory Powers in a Mixed Polity

EUROPEAN LAW JOURNAL, Issue 3 2002
Giandomenico Majone
It is a common place of academic and political discourse that the EC/EU, being neither a parliamentary democracy nor a separation-of-powers system, must be a sui generis polity. Tocqueville reminds us that the pool of original and historically tested constitutional models is fairly limited. But however limited, it contains more than the two systems of rule found among today's democratic nation states. During the three centuries preceding the rise of monarchical absolutism in Europe, the prevalent constitutional arrangement was ,mixed government',a system characterised by the presence in the legislature of the territorial rulers and of the ,estates' representing the main social and political interests in the polity. This paper argues that this model is applicable to the EC, as shown by the isomorphism of the central tenets of the mixed polity and the three basic Community principles: institutional balance, institutional autonomy and loyal cooperation among European institutions and Member States. The model is then applied to gain a better understanding of the delegation problem. As is well known, a crucial normative obstacle to the delegation of regulatory powers to independent European agencies is the principle of institutional balance. By way of contrast, separation-of-powers has not prevented the US Congress from delegating extensive rule-making powers to independent commissions and agencies. Comparison with the philosophy of mixed government explains this difference. The same philosophy suggests the direction of regulatory reform. The growing complexity of EC policy making should be matched by greater functional differentiation, and in particular by the explicit acknowledgement of an autonomous ,regulatory estate'. At a time when the Commission aspires to become the sole European executive, as in a parliamentary system, it is particularly important to stress the importance of separating the regulatory function from general executive power. The notion of a regulatory estate is meant to emphasise this need. [source]

Investment Rules and the New Constitutionalism

LAW & SOCIAL INQUIRY, Issue 3 2000
David Schneiderman
The new model for economic and political renovation mandates the entrenchment, beyond the reach of majoritarian control, of rules for the free movement of transnational capital. This "new constitutionalism" removes key aspects of economic life from the influence of domestic politics within nation states. A manifestation of this new orthodoxy is the network of bilateral investment treaties designed to ensure foreign investors security from "discrimination" and "expropriation," and conferring standing on investors to sue in the event that their investment interests are impaired. This paper examines the agency of the state in promoting this self-binding regime of investment rules and its potential impact on domestic constitutional regimes. Of particular concern here are constitutional arrangements that protect property, such as that recently enacted in the Republic of South Africa, that deviate from the norms expressed in the transnational investment-rules regime. [source]

The institutionalisation of public opinion: Bentham's proposed constitutional role for jury and judges

LEGAL STUDIES, Issue 2 2007
Oren Ben-Dor
Jeremy Bentham's constitutional writings are innovative and radical. Unlike constitutional arrangements that sought to attain virtue though the institutional complexity entailed by the doctrine of Separation of Powers, Bentham's constitution was socially dynamic and designed to facilitate constant and efficient interaction between amorphous public opinion and officials. Furthermore, it was in constant and free interaction between public opinion and officials that Bentham envisioned the determination and effectuation of constitutional limits, namely both the justification and limitation of coercion. The paper begins by outlining Bentham's principles for a good constitution. It then discusses in detail Bentham's proposals for incorporating public opinion into legal proceedings through radical reform to the jury. Such incorporation, he believed, would intensify and help to focus public gaze by which officials' aptitude, and as a result a good government, would be attained with the minimal expense. The proposed institutionalisation of public opinion enabled Bentham to entrust the judiciary with a constitutional role. Judges were conceived as the interface between officialdom and focused manifestations of popular sovereignty. So entrusted, judges could determine constitutional limits, thus protecting against abuse of power. The reforms discussed in this paper are a testimony of the extent to which Bentham saw virtue both in the people and in free public debate. [source]

Fixed-Term Parliaments: Electing the Opposition

POLITICS, Issue 1 2010
Alan Hamlin
Constitutional reform requires a cautious approach that draws heavily on the theory of institutions. Too often arguments for particular constitutional arrangements are one-dimensional and limited in scope and imagination. This article illustrates this theme by discussing the debate over fixed- and variable-term parliaments, and by offering a somewhat novel argument that focuses on the role of the opposition within a parliamentary system. [source]

Commonwealthmen and Republicans: Dr. H.V. Evatt, the Monarchy and India

AUSTRALIAN JOURNAL OF POLITICS AND HISTORY, Issue 1 2000
Frank Bongiorno
H.V. Evatt's foreign policy has attracted considerable historical attention, but his response as Australian External Affairs Minister to Commonwealth constitutional issues remains neglected. Evatt sought to retain India in the Commonwealth in 1948,49, but he insisted that India ought to recognise the king's prerogatives in its constitutional arrangements. He had developed his defence of the monarchy and its place in the empire in his writings of the inter-war years, and sought to apply these ideas in his Commonwealth diplomacy of the late 1940s. Evatt's failure to have these ideas accepted resulted from his attempt to impose an ideal of the relationship between the monarchy and the Commonwealth, derived from his understanding of the evolution of constitutional relations between the United Kingdom and the old dominions, to the very different context of Asian postwar decolonisation. [source]