The Paradox of Constitutionalism

Constituent Power and Constitutional Form

Author: Martin Loughlin,Neil Walker

Publisher: Oxford University Press, USA

ISBN: 9780199204960

Category: Law

Page: 375

View: 1754

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In modern political communities ultimate authority is often thought to reside with 'the people'. This book examines how constitutions act as a delegation of power from 'the people' to representative and expert institutions, and looks at the attendant problems of maintaining the legitimacy of these constitutional arrangements.

The Paradox of Constitutionalism

Constituent Power and Constitutional Form

Author: Martin Loughlin,Neil Walker

Publisher: OUP Oxford

ISBN: 9780199552207

Category: Law

Page: 386

View: 1766

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In modern political communities ultimate authority is often thought to reside with 'the people'. This book examines how constitutions act as a delegation of power from 'the people' to representative and expert institutions, and looks at the attendant problems of maintaining the legitimacy of these constitutional arrangements.

Comparative Law

A Handbook

Author: Esin �rücü,David Nelken

Publisher: Bloomsbury Publishing

ISBN: 1847316980

Category: Law

Page: 480

View: 2132

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This innovative, refreshing, and reader-friendly book is aimed at enabling students to familiarise themselves with the challenges and controversies found in comparative law. At present there is no book which clearly explains the contemporary debates and methodological innovations found in modern comparative law. This book fills that gap in teaching at undergraduate level, and for postgraduates will be a starting point for further reading and discussion. Among the topics covered are: globalisation, legal culture, comparative law and diversity, economic approaches, competition between legal systems, legal families and mixed systems, comparative law beyond Europe, convergence and a new ius commune, comparative commercial law, comparative family law, the 'common core' and the 'better law' approaches, comparative administrative law, comparative studies in constitutional contexts, comparative law for international criminal justice, judicial comparativism in human rights, comparative law in law reform, comparative law in courts and a comparative law research project. The individual chapters can also be read as stand-alone contributions and are written by experts such as Masha Antokolskaia, John Bell, Roger Cotterell, Sjef van Erp, Nicholas Foster, Patrick Glenn, Andrew Harding, Peter Leyland, Christopher McCrudden, Werner Menski, David Nelken, Anthony Ogus, Esin �rücü, Paul Roberts, Jan Smits and William Twining. Each chapter begins with a description of key concepts and includes questions for discussion and reading lists to aid further study. Traditional topics of private law, such as contracts, obligations and unjustified enrichment are omitted as they are amply covered in other comparative law books, but developments in other areas of private law, such as family law, are included as being of current interest.

The Twilight of Constitutionalism?

Author: Petra Dobner,Martin Loughlin

Publisher: OUP Oxford

ISBN: 0191633666

Category: Law

Page: 368

View: 8756

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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.

Constituent Power and Constitutional Order

Above, Within and Beside the Constitution

Author: M. Spång

Publisher: Springer

ISBN: 1137383003

Category: History

Page: 202

View: 6286

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Constituent power of the people is a core concept of modern politics but what does this concept actually mean? This book addresses this question, sketching how constituent power of the people has been conceived since the early modern revolutions.

Public Participation in African Constitutionalism

Author: Tania Abbiate,Markus Böckenförde,Veronica Federico

Publisher: Routledge

ISBN: 1351719645

Category: Political Science

Page: 318

View: 9859

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During the last decade of the 20th century, Africa has been marked by a "constitutional wind" which has blown across the continent giving impetus to constitutional reforms designed to introduce constitutionalism and good governance. One of the main features of these processes has been the promotion of public participation, encouraged by both civil society and the international community. This book aims to provide a systematic overview of participation forms and mechanisms across Africa, and a critical understanding of the impact of public participation in constitution-making processes, digging beneath the rhetoric of public participation as being at the heart of any successful transition towards democracy and constitutionalism. Using case studies from Central African Republic, Egypt, Kenya, Libya, Malawi, Morocco, Senegal, Somalia, South Africa, South Sudan, Tanzania, Tunisia, Zambia and Zimbabwe, the book investigates various aspects of participatory constitution making: from conception, to processes, and specific contents that trigger ambivalent dynamics in such processes. The abstract glorification of public participation is questioned as theoretical and empirical perspectives are used to explain what public participation does in concrete terms and to identify what lessons might be drawn from those experiences. This is a valuable resource for academics, researchers and students with an interest in politics and constitution building in Africa, as well as experts working in national offices, international organizations or in national and international NGOs.

Beyond Constitutionalism

The Pluralist Structure of Postnational Law

Author: Nico Krisch

Publisher: Oxford University Press, USA

ISBN: 0199228310

Category: Law

Page: 358

View: 8264

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Globalisation has changed the law radically, but broader conceptualisations of law have been slow to respond. Where new paradigms have been developed, they have drawn on domestic models of order, such as constitutionalism. But usually these can neither account for developments in practice nor do they resonate well with the particular, diverse character of postnational society.This book proposes to conceive of the emerging new order as one of'postnational law' and to leave domestic paradigms behind in its theorisation. It argues that we should understand postnational law as 'pluralist', as made up of a multiplicity of sub-orders whose relationship is not settled by on overarching frame but remains legally underdetermined. And the book usestheoretical engagement as well as three case studies to suggest that such pluralism can be more than just an analytical prism - that it might indeed be a normatively appealing structural model.

Handbook on Global Constitutionalism

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

Publisher: Edward Elgar Publishing

ISBN: 1783477350

Category:

Page: 480

View: 6255

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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.

Transnational Constitutionalism

International and European Perspectives

Author: Nicholas Tsagourias

Publisher: Cambridge University Press

ISBN: 113946468X

Category: Law

Page: N.A

View: 1833

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An interdisciplinary perspective is adopted to examine international and European models of constitutionalism. In particular the book reflects critically on a number of constitutional themes, such as the nature of European and international constitutional models and their underlying principles; the telos behind international and European constitutionalism; the role of the state and of central courts; and the relationships between composite orders. Transnational Constitutionalism brings together a group of European and international law scholars, whose thought-provoking contributions provide the necessary intellectual insight that will assist the reader in understanding the political and legal phenomena that take place beyond the state. This edited collection represents an original and pioneering contribution to the international and European constitutional discourse.

Constitutional Fragments

Societal Constitutionalism and Globalization

Author: Gunther Teubner

Publisher: Oxford University Press

ISBN: 0199644675

Category: Law

Page: 213

View: 933

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The powerful private sectors of the world economy remain largely unconstrained by fundamental constitutional rules, leading to human rights abuses on a massive scale. This book examines how the values of constitutional governance can be applied to the private sphere in the modern world, through a network of constitutional fragments.

Unconstitutional Constitutional Amendments

The Limits of Amendment Powers

Author: Yaniv Roznai

Publisher: Oxford University Press

ISBN: 0198768796

Category:

Page: 368

View: 2634

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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.

Unstable Constitutionalism

Author: Mark Tushnet,Madhav Khosla

Publisher: Cambridge University Press

ISBN: 1107068959

Category: Law

Page: 414

View: 5782

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This book examines constitutional law and practice in five South Asian countries: India, Pakistan, Sri Lanka, Nepal, and Bangladesh.

Constitutionalism

Ancient and Modern

Author: Charles Howard McIlwain

Publisher: The Lawbook Exchange, Ltd.

ISBN: 1584775505

Category: Law

Page: 162

View: 3901

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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.

Britain in Revolution

1625-1660

Author: Austin Woolrych

Publisher: OUP Oxford

ISBN: 9780191542008

Category: History

Page: 842

View: 8327

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This is the definitive history of the English Civil War, set in its full historical context from the accession of Charles I to the Restoration of Charles II. These were the most turbulent years of British history and their reverberations have been felt down the centuries. Throughout the middle decades of the seventeenth century England, Scotland, and Ireland were convulsed by political upheaval and wracked by rebellion and civil war. The Stuart monarchy was in abeyance for twenty years in all three kingdoms, and Charles I famously met his death on the scaffold. Austin Woolrych breathes life back into the story of these years, the sweep of his prose buttressed by the authority of a lifetime's scholarship. He captures the drama and the passion, the momentum of events and the force of contingency. He brilliantly interweaves the history of the three kingdoms and their peoples, gripping the reader with the fast-paced yet always balanced story.

Deleuze and Law

Author: Laurent de Sutter

Publisher: Edinburgh University Press

ISBN: 0748655395

Category: Philosophy

Page: 224

View: 5347

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This collection of 13 essays offers insights into Gilles Deleuze's philosophy of law which experiments with new forms of politics, economics and society.

Latin American Constitutionalism,1810-2010

The Engine Room of the Constitution

Author: Roberto Gargarella

Publisher: Oxford University Press

ISBN: 0199937966

Category: History

Page: 283

View: 6180

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This study of 200 years of Latin American constitutionalism (1810-2010) both presents a description and a critical analysis of what Latin Americans did with their Constitutions during those years.

Constitutionalism, Human Rights, and Islam after the Arab Spring

Author: Rainer Grote,Tilmann J. R?der

Publisher: Oxford University Press

ISBN: 0190627662

Category: Political Science

Page: 1200

View: 5617

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Constitutionalism, Human Rights, and Islam after the Arab Spring offers a comprehensive analysis of the impact that new and draft constitutions and amendments - such as those in Jordan, Morocco, Syria, Egypt, and Tunisia - have had on the transformative processes that drive constitutionalism in Arab countries. This book aims to identify and analyze the key issues facing constitutional law and democratic development in Islamic states, and offers an in-depth examination of the relevance of the transformation processes for the development and future of constitutionalism in Arab countries. Using an encompassing and multi-faceted approach, this book explores underlying trends and currents that have been pivotal to the Arab Spring, while identifying and providing a forward looking view of constitution making in the Arab world.

Intimations of Global Law

Author: Neil Walker

Publisher: Cambridge University Press

ISBN: 1316195708

Category: Law

Page: N.A

View: 2810

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A strain of law reaching beyond any bounded international or transnational remit to assert a global jurisdiction has recently acquired a new prominence. Intimations of Global Law detects this strain in structures of international law claiming a planetary scope independent of state consent, in new threads of global constitutional law, administrative law and human rights, and in revived notions of ius gentium and the global rule of law. It is also visible in the legal pursuit of functionally differentiated global public goods, general conflict rules, norms of 'legal pluralism' and new legal hybrids such as the global law of peace and humanity law. The coming of global law affects how law manifests itself in a global age and alters the shape of our legal-ethical horizons. Global law presents a diverse, unsettled and sometimes conflicted legal category, and one which challenges our very understanding of the rudiments of legal authority.

Weak Constitutionalism

Democratic Legitimacy and the Question of Constituent Power

Author: Joel I. Colon-Rios

Publisher: Routledge

ISBN: 0415671906

Category: Political Science

Page: 210

View: 2991

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It has been frequently argued that democracy is protected and realized under constitutions that protect certain rights and establish the conditions for a functioning representative democracy. However, some democrats still find something profoundly unsettling about contemporary constitutional regimes. The participation of ordinary citizens in constitutional change in the world's most "advanced" democracies (such as the United States, Canada, and the United Kingdom) is weak at best: the power of constitutional reform usually lies in the exclusive hands of legislatures. How can constitutions that can only be altered by those occupying positions of power be considered democratically legitimate? This book argues that only a regime that provides an outlet for constituent power to manifest from time to time can ever come to enjoy democratic legitimacy. In so doing, it advances a democratic constitutional theory, one that combines a strong or participatory conception of democracy with a weak form of constitutionalism. The author engages with Anglo-American constitutional theory as well as examining the theory and practise of constituent power in different constitutional regimes (including Latin American countries) where constituent power has become an important part of the left's legal and political discourse. Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power will be of particular interest to legal/political theorists and comparative constitutional lawyers. It also provides an introduction to the theory of constituent power and its relationship to constitutionalism and democracy.