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Constitutionalism

Distribution by Scientific Domains

Law and Criminology	55%
Humanities and Social Sciences	38%
Business, Economics, Finance and Accounting	5%

Kinds of Constitutionalism

new constitutionalism

Selected Abstracts

CONSTITUTIONALISM, FEDERALISM AND THE EUROPEAN UNION

ECONOMIC AFFAIRS, Issue 1 2004
Norman Barry
The purpose of a constitution should be to restrain governments. The proposed EU constitution does not do that - it provides agendas for government action. There is also no mechanism to facilitate jurisdictional competition. As such, if adopted, it will lead to further centralisation and abuse of statutory powers. [source]

Comparative Constitutionalism and the Making of A New World Order

CONSTELLATIONS: AN INTERNATIONAL JOURNAL OF CRITICAL AND DEMOCRATIC THEORY, Issue 4 2005
Vlad F. Perju
First page of article [source]

Globalization, Sovereignty, and the Rule of Law: From Political to Economic Constitutionalism?

CONSTELLATIONS: AN INTERNATIONAL JOURNAL OF CRITICAL AND DEMOCRATIC THEORY, Issue 4 2001
Kanishka Jayasuriya
First page of article [source]

Constitutionalism and Dissonances: Has Europe Paid Off Its Debt to Functionalism?

EUROPEAN LAW JOURNAL, Issue 3 2009
Marco Dani
This impression seems confirmed by the recent Presidency Conclusions of the European Council which, although salvaging many important solutions contained in the Constitutional Treaty, explicitly sanction that ,the constitutional concept . . . is abandoned'. In the light of this context, what role could the constitutional scholarship play? How to make sense of a polity in which the claims of constitutionalism as a form of power are politically unappealing though legally plausible? This article tries to respond to these questions by reaffirming functionalism as a valid analytical and normative perspective in facing the current constitutional reality of European integration. The analytical value associated with functionalism is evidenced by testing against the current context of the EU legal framework the accounts for EU constitutionalism which postulate functional equivalence between the EU and the Member States. The normative potential of functionalism, then, is discussed by arguing that there may be a value worth preserving in a degree of functional discrepancy between the EU and state constitutionalism and, notably, that the transformative and civilising dividend inherent in functionalism could still be exploited, at least in certain areas of EU policy making. Finally, the article suggests that the difficulties in accounting for EU constitutionalism in the light of state-centred constitutional theory could be regarded as symptoms of European integration marking a moment in the theoretical evolution of constitutionalism. [source]

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]

Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination

EUROPEAN LAW JOURNAL, Issue 1 2003
Ulrich Haltern
Legal studies react to the Union's social legitimacy deficit either by funnelling the problem to empirical sociology (accompanied by the familiar call for more transparency and democracy), or by ignoring it altogether. This article argues that the crisis in social acceptance can be traced back to the texture of EU law. Law is more than a body of rules: it is a social practice, a structure of meaning, and a system of beliefs. In this light, national law has a richly textured fabric of cultural resources to rely on, which makes it ,ours'. In contrast, EU law embodies the fluid surface of consumer identity and appears less ,ours'. The Union's counter,measures,adding pathos and patina to neutralise our distrust,have proven unsuccessful. Neither will a new written Constitution be particularly helpful. The way out, rather, is coming to terms with the market citizen, rather than believing in, and forcing upon the consumer, stories of shared values and historically situated commonality. [source]

Process, Responsibility and Inclusion in EU Constitutionalism

EUROPEAN LAW JOURNAL, Issue 1 2003
Jo Shaw
This paper it looks at some of the normative questions which frame debates about the EU constitutional architecture. Its main objective is to identify the core facets of a ,responsible and inclusive EU constitutionalism', and to argue for a focus on process, freedom, fairness and democracy as well as formal constitution,building within the debates inside and outside the Convention running up to the Intergovernmental Conference anticipated for 2003/2004. A model using the work of Canadian political theorist James Tully is constructed. The paper applies this framework in order to analyse some aspects of the work of the Convention on the Future of the Union, looking especially at questions of autonomy, representativity, internal dynamics, deliberation, receptiveness, and decision,making. The interim conclusion is drawn that the Convention method contains within itself the seeds of a critical and reflexive approach to EU constitutionalism. [source]

Constitutions, Constitutionalism, and the European Union

EUROPEAN LAW JOURNAL, Issue 2 2001
Paul Craig
The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties. [source]

Beyond Constitutionalism: The Search for a European Political Imagination

EUROPEAN LAW JOURNAL, Issue 1 2001
Ian Ward
Two recent books, Joseph Weiler's The Constitution of Europe and Larry Siedentop's Democracy in Europe, seek to address one of the defining issues in contemporary European legal studies; the search for a European public philosophy. Both site their critiques within a particular jurisprudential tradition, the modernist; one that is bound up with anxieties about legitimacy and constitutionalism. This review article suggests that the ,new' Europe has been too easily distracted by the lures of constitutionalism, and more particularly by the temptations of Treaties. Public philosophies are not found in Treaty articles. Rather, a public philosophy is a state of mind, a product of the political imagination. And it is the absence of such an imagination which lies at the root of contemporary concerns regarding constitutionalism and legitimacy; the concerns which underpin Weiler's and Siedentop's books. A discussion of these books, in the first two parts of this article, is followed by a discussion of Godfried Wilhelm Leibniz's ,universal' jurisprudence. It is suggested that such a jurisprudence is better able to furnish a public philosophy for the ,new' Europe; just as, indeed, it was for the ,old' Europe. Moreover, such a jurisprudence is far more than a mere theory of laws and constitutions. Leibniz's jurisprudence requires that we think, not merely ,beyond' sovereignty, or even beyond democracy, but beyond constitutionalism. [source]

The Return of the Contract: Problems and Pitfalls of European Constitutionalism

EUROPEAN LAW JOURNAL, Issue 3 2000
Gu¨nter Frankenberg
First page of article [source]

Studying Contemporary Constitutionalism: Memory, Myth and Horizon

JCMS: JOURNAL OF COMMON MARKET STUDIES, Issue 1 2010
HANNES HANSEN-MAGNUSSON
This article proposes to apply a praxeological approach to study contemporary constitutionalism. The approach is conceptualized following critical constructivist research on constitutionalism that focuses on experience and expectation when studying the contested meaning of norms in international relations. It argues that the concept of memory offers an important view on the language-based concept of experience which extends beyond the confines of behavioural approaches that study habitual change with regard to norms. The article offers a conceptual discussion of approaches to constitutionalism, emphasizing the distinction between modern and contemporary constitutionalism and their respective foci on regulatory versus cultural practices, introduces a praxeological dimension of horizons and elaborates on political memory and myth as concepts of functional memory. [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]

Taking Constitutionalism Beyond the State

POLITICAL STUDIES, Issue 3 2008
Neil Walker
In recent years, the idea that constitutional modes of government are exclusive to states has become the subject both of sustained challenge and of strong defence. This is due to the development at new regional and global sites of decision-making capacities of a scale and intensity often associated with the demand for constitutional governance at state level, to the supply at these same new sites of certain regulatory institutions and practices of a type capable of being viewed as meeting the demand for constitutional governance, as well as to a growing debate over whether and in what ways these developments in decision-making capacity and regulatory control should be coded and can be constructively engaged with in explicitly constitutional terms. The aim of the article is threefold. It asks why taking the idea and associated ethos and methods of constitutionalism ,beyond the state' might be viewed as a significant and controversial innovation, and so in need of explanation and justification , a question that requires us to engage with the definition of constitutionalism and with the contestation surrounding that definition. Secondly, taking account of the various arguments that lie behind these definitional concerns, it attempts to develop a scheme for understanding certain key features of constitutionalism and of its post-state development that is able to command broad agreement. Thirdly, and joining the concerns of the first two sections, it seeks to identify the key current tensions , or antinomies , surrounding the growth of post-state constitutionalism with a view to indicating what is at stake in the future career of that concept. [source]

Green Constitutionalism: The Constitutional Protection of Future Generations

RATIO JURIS, Issue 3 2007
KRISTIAN SKAGEN EKELI
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. [source]

Democratic Deficits of a Dualist Deliberative Constitutionalism: Bruce Ackerman and Jürgen Habermas

RATIO JURIS, Issue 3 2005
MARIELA VARGOVA
It argues that Ackerman's version of democratic dualism sets strict normative distinctions between constitutional and ordinary political deliberations. As a result, it ignores everyday political processes and citizens' ordinary public deliberations and is unresponsive to ongoing social changes in a liberal pluralist society. On the other hand, Habermas's discursive constitution defends a dynamic relationship between constitutional and ordinary politics. It provides a better model of a continuous constitutional development that is more open to new social and historical circumstances. [source]

Supremacy of the Constitution, Separation of Powers, and Judicial Review in Nineteenth-Century German Constitutionalism

RATIO JURIS, Issue 2 2003
Werner Heun
The conditions for such a hierarchical supremacy of the constitution were only partly fulfilled in nineteenth-century Germany. In addition, the concept of the separation of powers was rejected and the judiciary was in a weak position. Therefore the judicial review of ordinances was slow to develop. The judicial review of statutes began only at the end of the nineteenth century and was restricted to formal review as opposed to a review of the content of statutes. [source]

Denationalization and the Very Idea of Democratic Constitutionalism: The Case of the European Community

RATIO JURIS, Issue 3 2001
Oliver Gerstenberg
Within the current debates about Euro-constitutionalism, the conventional options are either to defend a vision of the European Union (EU) which separates global economic law from national sovereignty, and thus relies on the legitimizing powers of free markets, or to regard the legitimation problem (at least under current conditions) as beyond solution: This view argues that any further progress towards an ever closer Union would inevitably increase the legitimation deficit and that therefore the capacity for political action of the nation state should be protected or restored. This paper seeks to break the stranglehold of the, as is argued, false dichotomy (global markets vs. national democracy), and it argues that an extension of democracy beyond the nation state is possible. [source]

Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives

AMERICAN JOURNAL OF POLITICAL SCIENCE, Issue 3 2004
Clement Fatovic
Scholars, the courts, and the public have been ambivalent about prerogative, the power of presidents to take extraordinary actions without explicit legal authorization in emergencies, because it seems to defy core principles of liberal constitutionalism. This article examines the relation between prerogative and liberal constitutionalism by comparing the approaches of two Founders with different conceptions of executive power, Jefferson and Hamilton. Although they both endorsed a Lockean conception of prerogative that makes it possible to secure vital substantive ends that might be imperiled by strict adherence to ordinary legal forms in an emergency, they disagreed over the constitutionality of prerogative. Whereas Hamilton located the authority for prerogative within the implied powers of the Constitution, Jefferson expected presidents to admit wrongdoing and seek post-hoc approval from the public, a difference with important implications for both democracy and constitutional practice that can be traced back to ambiguities in Locke's theory of prerogative. [source]

Constitutionalism and credibility in reforming economies1

THE ECONOMICS OF TRANSITION, Issue 3 2006
Raj M. Desai
D72; D73; P20; P26 Abstract There has been relatively little investigation of the effect of constitutional transformations on the economic transition in post-communist countries. We develop a simple signalling model in which constitutionalism , a commitment to limit political power and provide judicial defence of basic rights , reinforces the credibility of pro-market candidates' electoral promises and boosts public support for economic reforms. These findings are tested using opinion poll data on public support for reform in Central and Eastern Europe, and in the former Soviet Union, in the 1990s. In a two-stage procedure we show that public support for market reforms is higher in countries where incumbents have taken deliberate steps to increase political accountability and judicial independence. Public support also spurs actual economic reform. [source]

Republican Constitutionalism: A Roman Ideal

THE JOURNAL OF POLITICAL PHILOSOPHY, Issue 3 2001
Nicholas Buttle
First page of article [source]

,Cultural Defence' of Nations: Cultural Citizenship in France, Germany and the Netherlands

EUROPEAN LAW JOURNAL, Issue 6 2009
Liav Orgad
This article presents a new development in European immigration policy. Focusing on France, Germany and the Netherlands, I describe a process of ,culturalisation' of admission and citizenship rules in Europe intended to reinforce liberal values and national identity. I then suggest a two-stage set of immigration-regulation principles: in the first stage, immigrants would have to accept some structural liberal-democratic principles as a prerequisite for admission. While Europe has criteria for state admission, anchored by the Copenhagen Criteria, Europe has not yet formalised definite criteria for immigrants' admission. In the second stage, as part of the naturalisation process, immigrants would be expected to recognise and respect constitutional principles essential for obtaining citizenship of a specific state. I call this concept ,National Constitutionalism'. [source]

Courts, the new constitutionalism and immigrant rights: The case of the French Conseil Constitutionnel

EUROPEAN JOURNAL OF POLITICAL RESEARCH, Issue 6 2004
Christian Joppke
Immigrant rights are located within a broader ,new constitutionalism' (especially in postwar Europe), in which courts have abandoned their traditional passiveness toward the political process and taken on the role of de facto legislator. Analyzing the immigration jurisprudence of the French Conseil Constitutionnel, we argue that courts are torn between two opposite imperatives: to protect an especially vulnerable category of people from the enormous police powers of the modern administrative state; and to respect an elementary exigency of sovereign stateness , that is, the capacity to draw a distinction between ,citizens' and ,aliens' as differently situated persons without a right of entry and permanence. [source]

Transatlantic constitutionalism: Comparing the United States and the European Union

EUROPEAN JOURNAL OF POLITICAL RESEARCH, Issue 4 2004
SERGIO FABBRINI
The European Union has more to learn from the American experience of constitutionalism than from any of its own Member States. Like the United States, the European Union will have a frame of government constitution that will try to order a system of multiple and concurrent communities of interests, as happened in America, and designed by an indirectly elected assembly. The European Union and the United States will continue to manifest many differences in other crucial aspects of their institutional and cultural development. However, although constrained by their respective historical and institutional paths, their constitutional evolution is making the Atlantic Ocean less wide than it used to be. [source]

Constitutionalism and Dissonances: Has Europe Paid Off Its Debt to Functionalism?

The ,Checks and Balances' Doctrine in Member States as a Rule of EC Law: The Cases of France and Germany

EUROPEAN LAW JOURNAL, Issue 5 2003
Theodore Georgopoulos
The paper argues that the mutation of the Judiciary and the Executive role vis-à-vis the Legislature appears to be an application of an emerging doctrine in EC public law that conspicuously resembles the ,Checks and Balances' theory of American constitutionalism. The action of one public authority is,or must be,countered by the reaction of another for the benefit of EC law. Apart from identifying the features of this ,principle' in comparison to its equivalent American doctrine, the paper deals with the question of a possible coexistence of this new model of governance with the traditional one. The comparative perspective is necessary here. Whereas in Germany the constitutional model appears to cope with European demands, in France it seems largely opposed to such a dynamic conception of the separation of powers. [source]

Constitutional Irresolution: Law and the Framing of Civil Society

EUROPEAN LAW JOURNAL, Issue 4 2003
Emilios Christodoulidis
I will explore some of the more adventurous and persuasive such attempts to argue for an inclusive constitutionalism, one that supposedly reaches out to civil society and in order to do so relaxes the rigidity of its own terms, to harbour and host the diversity it aspires to represent. I will argue that these attempts at inclusion create constitutional irresolutions either forcing impossible demands on constitutionalism or dispelling the disorganisation it is meant to give expression to. I will then argue that in spite of the inability to capture them as constitutional moments, politics of ,pure presence' and real self-determination are possible, and against constitutional mystifications, resistance might find its opportunity in praxis, understood in the language of praxis philosophy (more specifically the work of Antonio Negri). [source]