Constitutionalism

Author: Dieter Grimm
Publisher: Oxford University Press
ISBN: 9780191090967
Release Date: 2016-09-08
Genre: Law

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.

Carl Schmitt s State and Constitutional Theory

Author: Benjamin Schupmann
Publisher: Oxford University Press
ISBN: 9780192509314
Release Date: 2017-11-16
Genre: Law

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

Law and Revolution

Author: Nimer Sultany
Publisher: Oxford University Press
ISBN: 9780198768890
Release Date: 2017-11-23
Genre:

What is the effect of revolutions on legal systems? What role do constitutions play in legitimating regimes? How do constitutions and revolutions converge or clash? Taking the Arab Spring as its case study, this book explores the role of law and constitutions during societal upheavals, and critically evaluates the different trajectories they could follow in a revolutionary setting. The book urges a rethinking of major categories in political, legal, and constitutional theory in light of the Arab Spring. The book is a novel and comprehensive examination of the constitutional order that preceded and followed the Arab Spring in Egypt, Tunisia, Libya, Morocco, Jordan, Algeria, Oman, and Bahrain. It also provides the first thorough discussion of the trials of former regime officials in Egypt and Tunisia. Drawing on a wide range of primary sources, including an in-depth analysis of recent court rulings in several Arab countries, the book illustrates the contradictory roles of law and constitutions. The book also contrasts the Arab Spring with other revolutionary situations and demonstrates how the Arab Spring provides a laboratory for examining scholarly ideas about revolutions, legitimacy, legality, continuity, popular sovereignty, and constituent power.

Unconstitutional Constitutional Amendments

Author: Yaniv Roznai
Publisher: Oxford University Press
ISBN: 9780191081446
Release Date: 2017-02-16
Genre: Law

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 to substantively 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.

The Constitution of European Democracy

Author: Dieter Grimm
Publisher: Oxford University Press
ISBN: 9780192527431
Release Date: 2017-06-29
Genre:

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

The Dynamics of Exclusionary Constitutionalism

Author: Mazen Masri
Publisher: Bloomsbury Publishing
ISBN: 9781509902545
Release Date: 2017-02-09
Genre: Law

What does Israel's definition as a 'Jewish and democratic' state mean? How does it affect constitutional law? How does it play out in the daily life of the people living in Israel? This book provides a unique and detailed examination of the consequences of the 'Jewish and democratic' definition. It explores how the definition affects the internal ordering of the state, the operation of the law, and the ways it is used to justify, protect and regenerate certain features of Israeli constitutional law. It also considers the relationship between law and settler-colonialism, and how this relationship manifests itself in the constitutional order. The Dynamics of Exclusionary Constitutionalism offers a novel perspective on the Jewish and democratic definition rooted in constitutional theory and informed by a socio-legal approach. Relying on a wide range of court cases and statutes as well as secondary sources, the book shows how the definition is deeply embedded in the constitutional structure, and operates, as a matter of law, in a manner that concentrates political power in the hands of the Jewish citizens and excludes the Palestinian Arab citizens in Israel from the political process. Mazen Masri's study is a timely intervention in an increasingly important question, and is essential reading for those who want to understand Israel's character, its relationship with the constitutional order, and its impact on society.

Political Jurisprudence

Author: Martin Loughlin
Publisher: Oxford University Press
ISBN: 9780192538383
Release Date: 2017-12-14
Genre: Law

Political jurisprudence is the branch of jurisprudence that treats law as an aspect of human experience called 'the political'. This is an approach that many contemporary jurists, those whose work presupposes the autonomy of legal order, tend to suppress. In this book, Martin Loughlin assesses the contribution made by political jurists and explains its contemporary significance. Political jurists maintain that the essential characteristics of modern legal order can only be revealed by considering how political authority is constituted. The political is orientated to the fact that people are organized into territorially-bounded units within which authoritative governing arrangements have been established, but the authority of this way of viewing the world is strengthened only through institution-building. Law may be an aspect of the political, but to perform its authority-generating functions effectively it must operate relatively autonomously. The political and the legal operate relationally, without one being reduced to the other. Loughlin introduces the rich literature of political jurisprudence through essays on innovative political jurists such as Hobbes, Burke, Constant, Romano, and Schmitt, and on such central themes as political right, institutionalism, constitutional legality, and reason of state. Building on his earlier books, The Idea of Public Law (OUP 2003) and Foundations of Public Law (OUP 2010), this collection extends his account of this influential strand of European legal thought.

Europe s Functional Constitution

Author: Turkuler Isiksel
Publisher: Oxford University Press
ISBN: 9780191076879
Release Date: 2016-05-26
Genre: Law

Constitutionalism has become a byword for legitimate government, but is it fated to lose its relevance as constitutional states relinquish power to international institutions? This book evaluates the extent to which constitutionalism, as an empirical idea and normative ideal, can be adapted to institutions beyond the state by surveying the sophisticated legal and political system of the European Union. Having originated in a series of agreements between states, the EU has acquired important constitutional features like judicial review, protections for individual rights, and a hierarchy of norms. Nonetheless, it confounds traditional models of constitutional rule to the extent that its claim to authority rests on the promise of economic prosperity and technocratic competence rather than on the democratic will of citizens. Critically appraising the European Union and its legal system, this book proposes the idea of 'functional constitutionalism' to describe this distinctive configuration of public power. Although the EU is the most advanced instance of functional constitutionalism to date, understanding this pragmatic mode of constitutional authority is essential for assessing contemporary international economic governance.

Constitutionalism beyond Liberalism

Author: Michael W. Dowdle
Publisher: Cambridge University Press
ISBN: 9781316943083
Release Date: 2017-01-26
Genre: Law

Constitutionalism Beyond Liberalism bridges the gap between comparative constitutional law and constitutional theory. The volume uses the constitutional experience of countries in the global South - China, India, South Africa, Pakistan, Indonesia, and Malaysia - to transcend the liberal conceptions of constitutionalism that currently dominate contemporary comparative constitutional discourse. The alternative conceptions examined include political constitutionalism, societal constitutionalism, state-based (Rousseau-ian) conceptions of constitutionalism, and geopolitical conceptions of constitutionalism. Through these examinations, the volume seeks to expand our appreciation of the human possibilities of constitutionalism, exploring constitutionalism not merely as a restriction on the powers of government, but also as a creating collective political and social possibilities in diverse geographical and historical settings.

Europas symbolische Verfassung

Author: Bruno Scholl
Publisher: Springer-Verlag
ISBN: 9783531904344
Release Date: 2007-10-24
Genre: Political Science

Ziel der Arbeit ist es, aus einer konstruktivistischen Perspektive die Frage nach dem Einfluss nationaler Verfassungstraditionen auf die Konstitutionalisierungsdiskurse des Konvents mit Hilfe theoretisch abgeleiteter Modelle über die Bildung und Aushandlung von Präferenzen zu beantworten.

Corporate Governance and the Global Financial Crisis

Author: William Sun
Publisher: Cambridge University Press
ISBN: 9781139497237
Release Date: 2011-07-21
Genre: Business & Economics

Over the last two decades there has been a notable increase in the number of corporate governance codes and principles, as well as a range of improvements in structures and mechanisms. Despite this, corporate governance failed to prevent a widespread default of fiduciary duties of corporate boards and managerial responsibilities in the finance industry, which contributed to the 2007–10 global financial crisis. This book brings together leading scholars from North America, Europe, Asia-Pacific and the Middle East to provide fresh and critical analytical insights on the systemic failures of corporate governance linked to the global financial crisis. Contributors draw from a range of disciplines to demonstrate the severe limitations of the dominant corporate governance framework and its associated market-oriented approach. They provide suggestions on how the governance problems could be tackled to prevent or mitigate any future financial crisis and explore new directions for post-crisis corporate governance research and reforms.

Critical Theory in Critical Times

Author: Penelope Deutscher
Publisher: Columbia University Press
ISBN: 9780231543620
Release Date: 2017-03-14
Genre: Philosophy

We live in critical times. We face a global crisis in economics and finance, a global ecological crisis, and a constant barrage of international disputes. Perhaps most dishearteningly, there seems to be little faith in our ability to address such difficult problems. However, there is also a more positive sense in which these are critical times. The world’s current state of flux gives us a unique window of opportunity for shaping a new international order that will allow us to cope with current and future global crises. In Critical Theory in Critical Times, eleven of the most distinguished critical theorists offer new perspectives on recent crises and transformations of the global political and economic order. Essays from Jürgen Habermas, Seyla Benhabib, Cristina Lafont, Rainer Forst, Wendy Brown, Christoph Menke, Nancy Fraser, Rahel Jaeggi, Amy Allen, Penelope Deutscher, and Charles Mills address some of the most urgent and important challenges of our times, including international human rights and democratic sovereignty, global neoliberalism, new approaches to the critique of capitalism, critical theory’s Eurocentric heritage, and new directions offered by critical race theory and postcolonial studies. Sharpening the conceptual tools of critical theory, the contributors to Critical Theory in Critical Times reveal new ways of expanding the diverse traditions of the Frankfurt School in response to some of the most urgent and important challenges of our times.

Israeli Constitutional Law in the Making

Author: Gideon Sapir
Publisher: A&C Black
ISBN: 9781782251859
Release Date: 2014-07-18
Genre: Law

In the domain of comparative constitutionalism, Israeli constitutional law is a fascinating case study constituted of many dilemmas. It is moving from the old British tradition of an unwritten constitution and no judicial review of legislation to fully-fledged constitutionalism endorsing judicial review and based on the text of a series of basic laws. At the same time, it is struggling with major questions of identity, in the context of Israel's constitutional vision of 'a Jewish and Democratic' state. Israeli Constitutional Law in the Making offers a comprehensive study of Israeli constitutional law in a systematic manner that moves from constitution-making to specific areas of contestation including state/religion relations, national security, social rights, as well as structural questions of judicial review. It features contributions by leading scholars of Israeli constitutional law, with comparative comments by leading scholars of constitutional law from Europe and the United States.

Reconceptualizing Sovereignty in the Post National State Statehood Attributes in the International Order

Author: Flavio G. I. Inocencio
Publisher: AuthorHouse
ISBN: 9781496978189
Release Date: 2014-08-18
Genre: Law

• This book offers a multidisciplinary approach to the study of the concept of sovereignty. • This book outlines the origins, context and evolution of the concept of sovereignty as an essential attribute of the modern territorial State since the Peace of Westphalia in 1648. • The book identifies two competing traditions of the concept of sovereignty; the tradition inaugurated by Jean Bodin in 1576 in his work “The Six Books of the Commonwealth” and another that started with Johannes Althusius in 1603, considered the ‘father’ of federal theory, in his less known work “Politica”. • In order to understand the concept of sovereignty, it is necessary to understand the ‘constitutional rules’ of each international system and the fact that the States are the primary polities in the international arena. • The rise of International Organizations and the increasing ‘institutionalization’ of the international system challenges this state-centric world, considering their exercise of sovereign powers. • Following authors such as Daniel Elazar, the book discusses the importance of federalism as political theory, which offers a different understanding of the concept of sovereignty. • The book discusses the European Union as a paradigmatic case of a ‘postmodern confederation’, which challenges the notion of sovereignty as an absolute and exclusive statehood attribute. • Furthermore, the reconceptualization of sovereignty in International Law should consider the rise of regional and functional legal orders, the different understandings of sovereignty offered by the federalist tradition and the processes of ‘deterritorialization’ and disaggregation of authority. • The book concludes with the idea that concept of sovereignty in International Law should be seen as a flexible concept which is not an exclusive attribute of the modern territorial state. This book is required reading for all interested in the history and the evolution of the concept of sovereignty.

The Constitutional Dimension of Contract Law

Author: Luca Siliquini-Cinelli
Publisher: Springer
ISBN: 9783319498430
Release Date: 2017-03-13
Genre: Law

One of the hallmarks of the present era is the discourse surrounding Human Rights and the need for the law to recognise them. Various national and supranational human rights instruments have been developed and implemented in order to transition society away from atrocity and callousness toward a more just and inclusive future. In some countries this is done by means of an overarching constitution, while in others international conventions or ordinary legislation hold sway. Contract law plays a pivotal role in this context. According to many, this is done through the much-debated ‘civilising mission’ of the contract, a notion which itself constitutes the canon of the Western liberal principle of ‘civilised economy’. The movement away from the belief in the absolute freedom of contract, which reached its zenith in the nineteenth century, to the principles of fairness and justice that underpin contract law today, is often deemed to be a testament to this civilising influence. Delving into the interplay between human rights policies, constitutional law, and contract law from both theoretical and practical perspectives, this first volume of a two-book collection offers a totally new reappraisal of the subject by gathering a collection of essays written by contract law scholars from Europe, South Africa, Canada, and Australia. Instead of providing the reader with a sterile compilation of positivistic norms and policies on the impact of fundamental rights and constitutional law issues on contract law’s development, the authors build on their personal experience to analyse specific topics related to contracting that include a constitutional dimension. The book fills an important void in comparative law scholarship and in so doing represents the starting point for further debate on the subject.