Academic literature on the topic 'Jurisgenerative'

Abstract:This article aims to provide an alternative account of political constitutionalism by situating it in a broader process of constitutional politics than the traditional court vs parliament debate has suggested. Drawing upon Robert Cover’s distinction between the jurispathic and the jurisgenerative constitution, I argue that parliamentary decision-making is not necessarily more congenial to a jurisgenerative constitutional order than judicial review as political constitutionalists contend. I trace the jurispathic character of current scholarship on political constitutionalism to the presupposition of institutional sovereignty in a narrow understanding of constitutional politics, which its defenders share in common with the supporters of judicial supremacy. To move towards a robust version of non-court-centred jurisgenerative constitutionalism, which I call constitutional jurisgenesis, we need to rethink the place of politics in a constitutional order. From Cover’s idea of constitutionalnomosI take two further lessons for this new understanding of constitutional politics. First, constitutional theory should reconsider the role of institutional sovereignty in the relationship between law and politics in constitutional orders. Second, to engage the people in constitutional politics, we need to shift attention from the popular sovereignty-centred debate to constitutional narratives, which are oriented towardsnomos-building.

Cities claim an ever-larger role in migration governance, often by means of progressive policies that “decouple” the local from the national. The literature on this “local turn” has generally failed to recognize how this decoupling increasingly takes place within the context of Transnational Municipal Networks (TMNs). On the basis of a database of the 20 most important TMNs in refugee and migrant welcome and integration in Europe and additional empirical research, this article identifies and analyzes their main characteristics, composition, and activities in a multiscalar context, thus contributing to a better understanding of migration governance. It argues that these networks, by means of a wide variety of activities, serve a practical but also a symbolic and jurisgenerative purpose. These implicit and explicit objectives of city networking also account for the proliferation of TMNs witnessed across Europe since 2015. In “teaming up,” European cities not only share practical experiences but also develop narratives about migration that counter national, more restrictive discourses and contribute to the global legal framework, as was the case with the Global Compact on Refugees and Migrants. It is this practical, symbolic, and jurisgenerative role of TMNs, in times of increasingly restrictive national policies, that makes these networks key actors in contesting but also improving global migration governance.

This essay puts in conversation some of Seyla Benhabib’s insights about exiled, stateless and migrant populations with ongoing discussions in critical race theory about the racial exclusions of indigenous populations and populations of colour not only in the foundations of Western modern states but also in their contemporary functioning today. The essay locates these exclusions not only in the failures of states but also in their proper functioning, that is, in their very design and constitutive structures, focusing for this purpose on what is described as constitutive exclusions. The essay argues that the relationship between legal agency and social and political agency needs further articulation within Benhabib’s jurisgenerative politics in order to properly address constitutive exclusions.

Business as usual is widely acknowledged as the main driver of ecological collapse and climate breakdown, but less attention is paid to the role of law as usual as an impediment to climate justice. This article analyses how domestic and international environmental law facilitate injustices against living entities and nature. It calls for a paradigm shift in legal theory, practice and teaching to reflect the scale and urgency of the unfolding ecological catastrophe. Section 2 outlines the links between climatic harms and climate injustices. This is followed by discussions of unsustainable law and economic development in sections 3 and 4. Section 5 examines the potential contribution of new materialist legal theory in bringing about a legal paradigm shift that reflects the jurisgenerative role of nature in promoting climate justice.

This essay examines Anishinaabe pictography in contemporary legal contexts, challenging the notion that the law must necessarily inhere in alphabetic isomorphism, let alone in the colonialist inscriptive norms of the nation. Explaining how pictography elicits a loosened relation between sign and signified, this essay develops a semiotic theory of nonisomorphy to analyze uses of pictography in the work of several Anishinaabe scholars and writers: in John Borrows's advocacy of “jurisgenerative multiperspectivalism,” in Gerald Vizenor's conception of social irony and ironic constitutionalism, and in Louise Erdrich's figuration of ecological literacy and reciprocity. Focusing in particular on the trope of metonymy in pictographic writing, this essay elucidates the perspectival shifts and contextual metamorphoses of metonymy in the native poetics of the Americas, forming and transforming historical experience while offering colonial situations ample room to trip themselves up on their own contradictions.

AbstractTasked with the mandate to “set the record straight” about the beginning of the liquid blackness research group and journal and to explicate the theoretical and conceptual parameters of the idea of black liquidity, this introduction negotiates the irreconcilable tension between keeping record and record keeping as a way to maintain the anaoriginarity of black study as an ensemblic and jurisgenerative practice. To do so, it draws inspiration from one of its objects of study, Larry Clark's 1977 cult film Passing Through, and specifically from the way the film's formal structure and historical existence as a withdrawing object mirror the elusiveness of the album that the musicians it depicts were never able to record. This introduction is divided into “tracks” to reproduce the same withdrawing effect, trigger a similar ensemblic gathering, and in the process, honor the object-oriented and immanent methodology developed by the liquid blackness project.

Since the euro crisis, protest movements present the European Union as a neoliberal hegemony that undermines democracy and prevents progressive reforms. They call for acts of resistance and partial disintegration to force a renegotiation of the treaties. In this article, I ask whether these ‘disruptive’ political strategies can be defended as a democratic practice of constitutional politics. To that end, I turn to the notion of destituent power, according to which opposition to or withdrawal from public authority can function as a legitimate trigger for constitutional change. I systematise the emerging debate on destituent power and discuss the plausibility of competing approaches. I argue that destituent power is best understood as grounded in popular sovereignty. It denotes the right to dismantle constitutional orders without the intention to construct new ones. While this idea supports some of the acts of contestation proposed by European protest movements, it faces a lure towards the jurisgenerative dimension of constituent power. Ultimately, the potential of a purely negativistic logic of constitutional politics is limited.

This thesis contends certain contentious court cases can be traced beyond their legal roots to deep, sometimes incommensurable philosophical disagreements. However, the unitary nature of the judicial system effectively forces the court to take sides, putting its institutional weight and moral authority behind one set of principles and not another. Following Cover, I contend that this encourages future litigants to rephrase their claims in the court’s preferred normative language, thus influencing our normative environment. The theories which guide judicial decisions, however, are generally insufficiently attentive to the court’s normative influence. In response, I attempt adapting Dworkin’s Law as Integrity around Cover’s more sociological view. Chapter 1 examines Cover’s view, Chapter 2 explores Syndicat Northcrest v. Amselem and Delmaagukw v. B.C. as case studies, and Chapter 3 adapts Dworkin around Covers view. My conclusions argue that further inspiration can be drawn from EU Coordinate Constitutionalism and Sui Generis aboriginal rights.

Dissertação de Mestrado em Direito apresentada à Faculdade de Direito
As part of the main legacy of the American and the French revolutionary period, modern constitutionalism and its written constitution have faced, since the end of the last century, several challenges. If it is true that the aftermath of the Second World War and the fall of totalitarian regimes marked the success of the constitutional state, it is also undeniable that, at the same time, globalization has gradually eroded the structural base of a model aiming for comprehensively regulating public power within well-defined territorial borders. Both the multiplication of international actors which feature powers previously limited to states and the emergence of a subject oriented approach in international law have lifted the pressure on the endurance of constitutionalism, leading scholarship to question the very future of the constitution. In what has been called the post-national constellation, constitutional discourse breaks the bonds that once limited it to the state atmosphere, as demonstrated by the development of a European constitutional law. The investigation explores the concept of constitutional pluralism, from which it seeks to examine the existence of a jurisgenerative potential (the creation of legal meaning of constitutional rights deriving out of the impact, within the adopted methodological framework, of the European and American regional human rights protection systems). The present work then checks not only the process of emergence and consolidation of modern constitutionalism, the factors that imposed its transformation and the development of new constitutional discourses, but also the role played by the Constitution in a pluriversum in which it cohabits, with emphasis on the theoretical propositions on interconstitutional relations. It becomes therefore possible to fathom the jurisgenerative capacity of interactions happening under the premises of constitutional pluralism. After two decades into the new century, does the present of the Constitution correspond to past attempts to foresee its future? If an absolute answer might still be risky, it seems reasonable to claim that constitutional pluralism is not only reality, but shall be a lasting one, as is its jurisgenerative potential.
Umas das principais heranças do período revolucionário americano e francês, o constitucionalismo moderno e sua materialização em Constituição escrita enfrentam, desde o fim do século passado, diversas contestações. Se é verdade que o período subsequente à Segunda Grande Guerra e à derrocada dos regimes totalitários transpareceu o sucesso do Estado constitucional, é inegável que, de modo concomitante e gradativo, as forças da globalização corroeram as bases estruturantes de um modelo de regulação compreensiva do poder público circunscrito em limites territoriais bem definidos. A multiplicação dos atores internacionais dotados de competências antes restritas aos Estados e a emergência de um direito internacional funcionalmente dirigido eleveram a pressão acerca da (sobre)vivência do constitucionalismo, levando diversas vozes doutrinárias a questionar o futuro da Constituição. Percebe-se o alinhamento de uma constelação pós-nacional, na qual o discurso constitucional rompe as amarras que outrora o atrelavam ao contexto estatal, como se vê na densificação, entre outros, de um direito constitucional europeu. Explora-se, então, a concepção de pluralismo constitucional, a partir da qual, nesta investigação, se busca observar a existência de um potencial jurisgenerativo, consistente na tradução de significado a direitos constitucionais a partir do impacto exercido, no recorte metodológico adotado, pelos sistemas regionais europeu e americano de proteção dos direitos humanos. O presente trabalho observa, então, não apenas o processo de formação e consolidação do constitucionalismo moderno, os fatores que demandaram sua transmutação e a eclosão dos novos discursos constitucionais, mas também o papel exercido pela Constituição no pluriversum em que (con)vive, com especial destaque para os avanços teoréticos das relações interconstitucionais. A partir de tais observações, pois, é que se apreende a capacidade jurisgenerativa das interações conduzidas sob as premissas de um pluralismo constitucional. Após duas décadas no novo século, corresponderá o presente da Constituição às tentativas pretéritas de antever seu futuro? Se uma resposta peremptória pode ser ainda arriscada, menos incauta parece a afirmação, após o que se observou, de que o pluralismo constitucional é uma realidade perene com autêntico potencial jurisgenerativo.

“Jurisgenerative Grammar” is concerned with the interplay of legality and criminality in the generation of language and music. It examines how a kind of fugitive poetics is enacted in the fall into what Martin Heidegger refers to as thecommercium, a social space marked by the propensity for song, chatter, and idle talk. This essay argues that thecommerciumis, in fact, a place for thought and thoughtful creation. Its aesthetic sociality animates the compositional and improvisational practices in which Anthony Braxton is engaged in the making of his “language musics,” even when such music is given in solo performance.

The present chapter introduces the book’s subject of analysis: subnational authorities (SNAs). It will illustrate the highly variegated nature of local and regional authorities in the various Member States, the status and competences of which vary significantly depending on the context at stake. Notwithstanding this diversity, virtually all SNAs share one characteristic: their jurisgenerative capacity. SNAs produce norms that coexist with norms at other levels, including EU law. The chapter subsequently investigates various modes of interaction between SNAs and the European Union, such as SNAs’ participation in the Committee of the Regions. A key mechanism allowing SNAs to exert influence in international relations is their participation in transnational networks.

This chapter maintains that as both municipal and international law use legal norms to regulate social relationships, a space for inter-systemic interaction between both legal spheres emerges. Municipal legal practice can have an ‘upstream’ impact on the formation of the content of the sources of international law, where these require proof of State practice and/or opinio juris for valid norms to be generated. Particularly, domestic court decisions can have a jurisgenerative effect on customary international law, where they become part of a transnational dialogue between domestic and international courts on questions of international law determination. Admittedly, this dialogical process is hamstrung by the particularities of domestic law and the hard-to-eradicate selection bias of international law-appliers. However, a more objective comparative international law process can be grounded, geared to effective problem-solving guided by the persuasiveness and quality of reasoning of municipal court decisions relevant to international law.

This chapter discusses the deontology of peacemakers and mediators. It outlines the notion of epistemic communities and the reproduction of value systems, asking whether any form of emulation influences the evolution of international law in relation to transitional governance (‘TG’). The re-occurrence of TG can be attributed phenomena such as the ‘migration of constitutional ideas’, ‘constitutional borrowing’, ‘transnational information networks’, acculturation in contact groups, and the use of templates for peace building. The community of practitioners engaged in post-war countries and constitution building is relatively small. As a result, the epistemic community dealing with these issues creates a habitat favourable to the reproduction of professional practices by emulation. The question then becomes whether such reproduction is jurisgenerative, namely whether it expresses emerging law through custom creation or otherwise.

By looking both at the European and contemporary US constitutional theory debates, this chapter proposes an analytic taxonomy of contemporary non-court centric approaches to constitutional interpretation: those that have concluded that the most promising response to persistent concerns about a democratic deficit is to shift the focus from courts as a forum of principle to the dialogue between courts and other actors, ranging from (other) courts to legislatures, administrative agencies, private actors, civil society stakeholders, and the wider public, in the jurisgenerative process. The goal is, by following the emergent literature on ‘weak’, proceduralist, and democratic-experimentalist forms of judicial review, to argue the virtues of the latter. Democratic experimentalism denotes a modality of judicial review that allows judges to enforce avowedly open-ended, fundamental, constitutional commitments in a way that institutionalizes—rather than excludes—continuing, social, and democratic determination and the progressive clarification of what constitutional commitments can and should come to mean in practice. Judicial review may deepen democracy rather than limit it by providing a focus and reason for public deliberation. The hope is to provide, by setting out contrasting positions, a foil for discussion and to show that the desirability of judicial review is not merely complacent assumption in contemporary constitutional and political thought, but can be supported on democratic grounds as deliberation-enhancing.