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1
Fofana, Ibrahim. "PROSPECTS FOR ISLAMIC MICROFINANCE UNDER THE EXISTING LEGAL AND REGULATORY FRAMEWORK IN LIBERIA." IIUM Law Journal 28, no. 2 (January 22, 2021): 597–620. http://dx.doi.org/10.31436/iiumlj.v28i2.448.
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There is no specific regulation or legislative framework for Islamic microfinance operations in Liberia. This is largely due to the non-application of Islamic laws in the country, despite the increasing economic strength of Muslims in the country. This article aims to examine whether the existing laws in Liberia permit the establishment and operation of Islamic microfinance. The research employed a qualitative analytical approach, which examines legal and regulatory framework for the microfinance sector in Liberia. The materials and data which include related laws were collected, and analysed inductively to suit the needs of the research. This article argues that, the existing laws including the Liberian constitution and other relevant financial regulations such as, the Central Bank of Liberia Act of 1999, the New Financial Institutions Act of 1999 and the Microfinance Policy and Regulatory & Supervisory Framework for Liberia (MPRSFL) have no objection to the introduction of Islamic microfinance in the country. This research is a first to appraise critically some relevant laws on the legal framework of microfinance in Liberia and its relevance to Islamic microfinance. The Financial Institutions Act of 1999 confers on the Central Bank of Liberia the powers to regulate and supervise all financial institutions in the country, including the microfinance providers. The article concludes that the stakeholders need to continue supporting the microfinance sector, including Islamic microfinance in Liberia by building an appropriate legal ecosystem that providing for a smooth running of microfinance programmes in the country.
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Svärd, Proscovia. "Has the Freedom of Information Act enhanced transparency and the free flow of information in Liberia?" Information Development 34, no. 1 (October 3, 2016): 20–30. http://dx.doi.org/10.1177/0266666916672717.
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This article investigates if the adoption of the Liberian Freedom of Information (FOI) law 2010 has led to a transparent government and increased the free flow of government information. Freeing government information is expected to create transparent and accountable governments. It brings forth democratic and inclusive government institutions that work for the people. Inclusivity, transparency and accountability are expected to address sustainable development challenges and democracy deficits. Transparency and accountability can only be achieved through access to government information. The right to access government information is also included in the national constitution of Liberia. The citizens of Liberia in West Africa suffered from a protracted civil war between 1989–1996 and 1999–2003 respectively. These wars were partly caused by non-accountability of the governments, endemic corruption and the mismanagement of the countries’ resources. Efforts are being made by the government with the help of the international community to embrace a new democratic dispensation. Liberia was also one of the first African countries to enact a Freedom of Information (FOI) Law that would enable Liberians to access government information.
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Cottrell, Jill. "The Constitution of Namibia: an Overview." Journal of African Law 35, no. 1-2 (1991): 56–78. http://dx.doi.org/10.1017/s0021855300008366.
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Namibia finally achieved independence on 21 March, 1990, after a long struggle and many false hopes and setbacks. In a nutshell: the territory was colonized by Germany. It was seized by South African forces during the First World War, and then made the subject of a League of Nations Mandate, administered by South Africa, after the war. Following the Second World War, South Africa tried to incorporate the territory, a move resisted by the United Nations. In 1966 the International Court of Justice denied standing to Ethiopia and Liberia to allege breaches of the mandate. However, shortly thereafter the UN voted to terminate the mandate. At about the same time the South West African People's Organization (SWAPO) launched its armed struggle. South Africa's response to these developments was to implement plans for the closer integration of the territory into the South African state, and into the system of apartheid. As a result, a system of native authorities, based on ethnicity, was introduced.In 1975 the “Turnhalle” talks were started which, although rejected by most of the black groups, led to the establishment of a constituent Assembly. During the same period, a “Contract Group” of Western Nations began to negotiate with South Africa over a settlement for Namibia. The ultimate proposals were accepted by the UN, SWAPO and South Africa, and the plans were recognized by UN Resolution 435. But immediately thereafter problems began to arise, and talks about implementation stopped and started for a number of years.
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Schupmann, Benjamin A. "Constraining political extremism and legal revolution." Philosophy & Social Criticism 46, no. 3 (June 20, 2019): 249–73. http://dx.doi.org/10.1177/0191453719856652.
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Recently, extremist ‘populist’ parties have succeeded in obtaining large enough democratic electoral mandates both to legally make substantive changes to the law and constitution and to legally eliminate avenues to challenge their control over the government. Extremists place committed liberal democrats in an awkward position as they work to legally revolutionize their constitutions and turn them into ‘illiberal democracies’. This article analyses political responses to this problem. It argues that the twin phenomena of legal revolution and illiberal democracy reveal a latent tension between the constitutional commitments to democracy and liberalism, that is, the equal chance to have one’s political goals enacted into law and individual basic rights. Political extremists make the latent tension real when they use the procedures of democratic legal change to abrogate constitutional commitments to liberalism, among other things. Although the two commitments normally coexist side by side, exceptional times raise an existential dilemma for liberal democracies: is it constitutional to democratically amend liberalism out of the constitution? After analysing the moral legitimacy of both the democratic and liberal arguments, this article concludes that liberal constitutionalism is constitutive of genuine democracy. In other words, it is unconstitutional to abrogate basic liberal commitments and it is legitimate to adopt constitutional mechanisms to guarantee liberalism – even if it means constraining democracy to do so. This article then situates ‘constrained democracy’ within the liberal current as a way to conceive of and respond to this pressing problem. It concludes by discussing four constitutional mechanisms – inspired by the German Grundgesetz – to guarantee liberalism: unambiguous lexically prior commitment to liberalism, limits on negative majorities, the eternity clause and party bans. It concludes that constrained democracy is an important constitutional guarantee of liberal democracy and that the four mechanisms, among others, are essential to enact constrained democracy.
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Tesón, Fernando R. "THE LIBERAL CONSTITUTION AND FOREIGN AFFAIRS." Social Philosophy and Policy 28, no. 1 (November 30, 2010): 115–49. http://dx.doi.org/10.1017/s0265052510000075.
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AbstractScholars have debated the meaning of the foreign-relations clauses in the U.S. Constitution. This essay attempts to outline the foreign-relations clauses that an ideal constitution should have. A liberal constitution must enable the government to implement a morally defensible foreign policy. The first priority is the defense of liberty. The constitution must allow the government to effectively defend persons, territory, and liberal institutions themselves. The liberal government should also contribute to the advancement of global freedom, subject to a number of conditions, especially cost. The essay recommends improved methods to incorporate treaties and customary international law into the constitutional structure. Treaties should be approved by the whole legislature and should generally be self-executing. Customary law should be genuine, not fake, and consistent with liberal principles. Finally, based on economic theory and evidence, the essay recommends that liberal constitutions prohibit the government from erecting trade barriers. It concludes by tentatively proposing concrete constitutional language to implement these recommendations.
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Lino, Dylan. "The Australian Constitution as Symbol." Federal Law Review 48, no. 4 (September 10, 2020): 543–55. http://dx.doi.org/10.1177/0067205x20955076.
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According to a conventional story told by scholars, the Australian Constitution is virtually invisible as a symbol within Australian political debate and culture. This article challenges that conventional story, arguing that the Constitution plays a more significant public role than is commonly assumed. Analysing the ongoing debate over the constitutional recognition of Aboriginal and Torres Strait Islander peoples, the article highlights four prominent symbolic Constitutions: the practical, the liberal, the outdated and the exclusionary. These constitutional symbols are mobilised by different political actors for a range of political purposes. Understanding constitutional symbolism helps in seeing the ideological work performed by the Constitution outside the courts and prompts constitutional scholars to be more conscious of how they contribute to that ideological work through their representations of the Constitution.
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Venter, Francois. "South Africa: A Diceyan Rechtsstaat?" Symposium: Mixed Jurisdictions 57, no. 4 (November 8, 2012): 721–47. http://dx.doi.org/10.7202/1013029ar.
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South Africa’s transformation to constitutionalism in 1994 saw the addition to a mixed legal system of a supreme constitution that requires all law to conform to its provisions, principles, and values. This new constitutional design was developed for the circumstances and modeled on existing liberal democratic constitutions, the most influential of which were Canadian and German. Adopted in 1993, the first constitution introduced the notion of the “constitutional state” but being only a transitional document, it provided for the creation of a “final” constitution crafted in conformity with prescribed principles. The final constitution, adopted in 1996, made no mention of the “constitutional state”, including instead the expression “rule of law”. Since the constitutional principles laid down in 1993 referred to neither the German “Rechtsstaat”, nor Diceyan “rule of law”, the replacement of the former term by the latter was permissible. The two constitutional texts did not, however, elaborate on these two terms. It was left to constitutional interpreters, especially the judiciary, to give meaning to these historically disconnected but conceptually related ideas. The result was a completely novel and pervasive constitutional doctrine. The judicial process of merging these notions may be described as “comparison by global assimilation”.
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Tehrani, Alireza Asadpour, and Masoud Raie Dahaghi. "The Influence of Liberty Concepts on the Legal Classification of Constitutions and Constitutional Governments." Journal of Politics and Law 10, no. 4 (August 30, 2017): 139. http://dx.doi.org/10.5539/jpl.v10n4p139.
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Due to global developments in constitutional law and especially the importance of principles of republicanism, the sovereignty of the people and the protection of individual rights and public liberties as the foundations of constitutionalism and constitutional government, it seems that a new category of constitution that is consistent with the principles and foundations of constitutionalism and the constitution should be provided. Therefore, the classical categories of constitutions are briefly introduced and then their unlawful aspects will be criticized and then, new categories of constitutions are introduced and described. This classification is based on the assumption that republic governments can be constitutionality and with a focus on the protection of liberty can use its power without being required to comply with liberty in its liberal concept. So as constitutions can be divided into two types of liberalism and republicanism, governments can be classified into two types of Republicanism and liberalism too. Since the classic categories have acted based on inductive method, therefore, this method has been used to criticize and propose alternatives.
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Frowein, JA. "Constitutional law and international law at the turn of the century." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 1, no. 1 (July 10, 2017): 1. http://dx.doi.org/10.17159/1727-3781/1998/v1i1a2898.
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Constitutional law and international law operate in simultaneous conjunction and reciprocal tension. Both fields seem to have overcome the great challenges of destruction and neglect in the course of the 20th century. Both after World War I and World War II the world experienced new waves of constitution making. In both cases the current German constitutions (the Weimar Constitution of 1919 and the Grundgesetz of 1949) were influential. Characteristic of constitution-making in this century, is the final victory of liberal constitutions based on the rule of law, the Rechtsstaat, fundamental rights, meaningful control of public powers and the establishment of constitutional courts. Following the destruction of World War II, the notion of the Sozialstaat emerged strongly in Germany. In contrast to the Constitution of the United States of America, the principle of the responsibility of the state for social justice has emerged in almost all new constitutions, including Russia, Poland, South Africa, Spain, Italy and Portugal. Where courts are given the mandate to interpret bills of rights, fundamental rights have been developed into foundation stones of the legal system. The presence in a Bill of Rights of restrictive clauses, is important for its analysis. Generally restrictive clauses in new constitutions try to limit the possibilities of restriction. The importance of constitutional rules establishing and legitimizing the political organs, must not be overlooked. Of particular importance is the degree of control over the head of state, a positive attitude among political actors towards the constitution and the protection of the interests of minorities in a democratic system. In the field of Public International Law much of Kant's ideal of an international confederation of peace has been realized. Since 1990 the United Nation's Security Council has shown the potential of becoming a directorate for the community ofnations. International law has also been instrumental in the worldwide recognition of human rights. Especially in Europe, Convention Law has had a strong impact. Furthermore, global and regional systems of regulation have tended to alter the legal attitude towards state sovereignty. It may be that the South African constitutional approach in terms of which international law is subject to constitutional and other national law, is not in line with international tendencies.
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Negretto, Gabriel. "Constitution-making and liberal democracy: The role of citizens and representative elites." International Journal of Constitutional Law 18, no. 1 (January 2020): 206–32. http://dx.doi.org/10.1093/icon/moaa003.
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Abstract This article discusses the impact of citizen participation and elite cooperation in constitution-making on the deepening of an already existing electoral democracy. It argues that while direct citizen involvement in the drafting of constitutions may be desirable on normative grounds or necessary for pragmatic reasons, only cooperation among a plurality of elected political representatives at the constitution-making stage is likely to improve the liberal dimension of democracy after the enactment of the new constitution. Inclusive constitutional agreements at the level of representative elites not only establish legal limits on state action but may also provide opposition parties and citizens alike with the means to make institutional constraints on executive power and civil liberties effective. This effect is usually observed during the early years of life of the new constitution, when the balance of power among the political forces that created the constitution tends to remain stable. I find preliminary support for this argument analyzing aggregate data and selected case studies from all episodes of democratic constitution-making in the world between 1900 and 2015.
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NEGRETTO, GABRIEL L., and MARIANO SÁNCHEZ-TALANQUER. "Constitutional Origins and Liberal Democracy: A Global Analysis, 1900–2015." American Political Science Review 115, no. 2 (January 19, 2021): 522–36. http://dx.doi.org/10.1017/s0003055420001069.
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A strong tradition in democratic theory claims that only constitutions made with direct popular involvement can establish or deepen democracy. Against this view, we argue that new constitutions are likely to enhance liberal democracy when they emerge through a plural agreement among political elites with distinct bases of social support. Power dispersion during constitution writing induces the adoption of institutions that protect opposition forces from the arbitrary use of executive power without unduly impairing majority rule. However, since incumbents may renege on the bargain, the democratizing effect of politically plural constitutional agreements is likely to be larger in the short term, when the identity of negotiating political forces and the balance of power between them tend to remain stable. We find support for these arguments using an original global dataset on the origins of constitutions between 1900 and 2015 and a difference-in-differences design.
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George, Alexander E., Joseph N. Somwarbi, David Sumo, Guillermo Martínez Pérez, and Alfredo Mayor. "PO 8475 ENHANCING THE CAPACITY OF THE LIBERIA MEDICINES AND HEALTH PRODUCTS REGULATORY AUTHORITY IN POST-MARKETING SURVEILLANCE OF IN VITRO DIAGNOSTICS." BMJ Global Health 4, Suppl 3 (April 2019): A43.1—A43. http://dx.doi.org/10.1136/bmjgh-2019-edc.112.
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BackgroundThe Quality Control Laboratory (QCL) of the Liberia Medicines and Health Products Regulatory Authority (LMHRA) lacks capacity to assess the quality of in vitro diagnostics (IVDs). The LMHRA needs be strengthened to develop post-market surveillance (PostMS) regulations in order to fulfil its supervisory role for IVDs used in research and healthcare settings. IGORCADIA, an EDCTP-funded project of LMHRA and the Barcelona Institute for Global Health (ISGlobal) started in December 2017 with the aim of building LMHRA diagnostics assessment capacity.MethodsProject activities targeting the QCL include: the constitution of an in-house Technical Working Group and a Diagnostic Steering Committee involving national stakeholders to develop PostMS regulation; a Training Programme in Diagnostics Research (TPDxR) including a malaria diagnostics performance study as its post-TPDxR exercise.ResultsThe QCL is developing with its new knowledge and networks improved mechanisms to enact its supervisory mandate. QCL staff contributed to the development of guidance for Post-MS. Private sector and government stakeholders helped the LMHRA identify unlicensed premises where IVDs of presumably poor accuracy are available over the counter. Following the TPDxR, the QCL planned quality assurance to oversee the quality assessments on suspected substandard IVDs. Quality control tools, staff training requirements, standard inspection procedures, and PostMS registers and reports were re-designed in accordance with Good Laboratory Practice and guidance from the TPDxR.ConclusionThe LMHRA is strengthening its regulatory, inspection and PostMS capacities thanks to a partnership with a European research institution with expertise in malaria diagnostics development. To ensure that the Liberian population has access to safe quality diagnostics in routine healthcare provision and in future infectious diseases outbreaks, it is of utmost importance that the LMHRA has capacity to assess the accuracy of the non-WHO prequalified IVDs that are currently available outside the healthcare system, and is well-equipped to recall those IVDs identified as substandard.
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Batakovic, Dusan. "The road to democracy: The development of constitutionalism in Serbia 1869-1903." Balcanica, no. 38 (2007): 133–72. http://dx.doi.org/10.2298/balc0738133b.
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After the swiftly abolished liberal Constitution of 1835 and the imposed 'Turkish' one of 1838 (imposed by the Russians and Ottomans, guarantors of Serbia's autonomy granted in 1830, to limit the princely power), the development of constitutionalism in modern Serbia went through several phases. As elsewhere in the Balkans, constitutions usually resulted from a compromise between the ruler and the elites rather than from the will of the people. The 1868 Constitution drew to an extent upon the early nineteenth-century German constitutional monarchies, but, under pressure from the politically mobilized population, the 1888 Constitution, proposed by the Radical Party in response to the egalitarian aspirations of the nation's agrarian majority, adopted a French constitutional model - with a unicameral system and frequent coalition governments. Shaped on the model of the Belgian Constitution of 1831, which in its turn was a modified version of the French Charte of 1830, it restored a French influence, expressed for the first time in the 1835 Constitution. The 1888 Constitution was passed by the Grand National Assembly with its five-sixth majority of Radicals, representatives of the agrarian majority. It was soon annulled by the coup d'?tat of 1894 and the Court-imposed Constitution of 1869 was reinstituted. The Constitution of 1901 was an attempt to introduce a bicameral system as a means of upholding the influential role of the ruler, while limiting that of the Radical Party, which had enjoyed an ample electoral support since the 1888 Constitution. After the assassination in 1903 of the last Obrenovic ruler king Alexander, and his wife, queen Draga, the liberal Constitution of 1888 with minor modifications was reinstituted. Under this Constitution - which is commonly known as the 1903 Constitution and which, during the democratic reign of king Peter I Kardjordjevic, was no longer challenged - Serbian democracy remained fragile, because there was no upper house to counteract as it did in the French Third Republic, the predominantly party-biased way of running the affairs of state.
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Lerner, Hanna. "Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey." World Politics 65, no. 4 (October 2013): 609–55. http://dx.doi.org/10.1017/s0043887113000208.
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The article addresses the question of what role formal constitutions play in mitigating intense conflicts over the religious character of the state. In contrast to common views in constitutional and political scholarship, it demonstrates that the ideal of liberal constitutionalism is not compatible with the political reality and types of conflicts that characterize religiously divided societies. Analyzing four processes of constitution drafting in which issues of religious law and religious identity were at the heart of the debate—India, Indonesia, Israel, and Turkey—it argues that under deep disagreement over the state's religious character, the drafters adopt either a permissive or a restrictive constitutional approach. While the former implies strategies of constitutional ambiguity, ambivalence, and avoidance in order to allow the political system greater flexibility in future decision making on religion-state relations, the latter approach uses repressive constitutional constraints designed to limit the range of possibilities available to future decision makers. The article further explores the long-term consequences of the two approaches and argues that (1) permissive constitutional arrangements, more than restrictive arrangements, are likely to promote the democratic functioning of future governments; and that (2) permissive constitutional arrangements may facilitate greater freedom of religion, but they are also likely to lead to greater restrictions on freedom from religion, compared with restrictive constitutions.
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Pomeranz, William E. "Putin’s 2020 Constitutional Amendments: What Changed? What Remained the Same?" Russian Politics 6, no. 1 (March 30, 2021): 6–26. http://dx.doi.org/10.30965/24518921-00601002.
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Abstract Constitutional reform dominated Russia’s legal and political agenda in 2020. Starting with Putin’s January 15, 2020 state-of-the-nation address, the 1993 Yeltsin constitution was amended and substantially transformed to meet Putin’s immediate and more long-term political objectives. In the process a flawed but forward-looking document has been stripped of much of its liberal potential and instead been converted into a more traditional top-down system of governance. Putin did not just overturn the term limits on his presidency. He created a new power vertical (the unified system of public power), a stronger presidency, and a more subservient judiciary. Moreover, Putin’s amendments undermine the constitution’s internal consistency by introducing numerous contradictions into Russia’s founding law. In particular, while technically observing the constitution’s procedural requirements, he managed to downgrade Russia’s civil liberties—the highest value under the 1993 constitution—while elevating and expanding Russia’s social rights.
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Deets, Stephen. "Constitutionalism and Identity in Eastern Europe: Uncovering Philosophical Fragments." Nationalities Papers 33, no. 4 (December 2005): 489–516. http://dx.doi.org/10.1080/00905990500353956.
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Despite the euphoria surrounding the 1989 revolutions, over the past 15 years voices have warned that resurgent nationalism may bring “democracy in dark times” (Isaacs, 1998; Tismaneanu, 1998; Ramet, 1997). Reflecting this fear, a stream of articles has asserted that nationalism in the East is different from the more civic nationalism of the West (Vujacic, 1996; Bunce, 2001; Schöpflin, 2003). If true, these sentiments should be reflected in the constitutions, documents that define the polity and the foundational values of the state in addition to creating the basic institutional order. Debates over religious references in the European Union constitution and the focus on constitutional change by Albanian forces in Macedonia in 2000 serve as reminders of the centrality of constitutions in contention over identity. However, as all constitutions in East Central Europe and the Balkans set out a democratic structure informed by a tangle of national and liberal ideas, they cannot be neatly divided between those which are nationalist and those which are civic, between those which respect minority rights and those which do not. In fact, what is striking about the constitutions is how they combine ideas of liberal individualism, strong democracy, and pluralism.
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Patlachuk, Vasyl. "Comparative analysis of quantitative indicators of Polish Constitutions." Legal Ukraine, no. 10 (November 27, 2020): 34–41. http://dx.doi.org/10.37749/2308-9636-2020-10(214)-6.
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The process of development of Polish constitutionalism is considered in the work. The first legal act, which had the features of the Constitution were the Articles of King Henry of Valois. The reason for preparing this document was the need to conclude an agreement between the heir to the French throne and the Polish nobility, who wanted to preserve their rights and freedoms. The content of this document was influenced by the Great Charter of Freedoms «Magna Garta» of 1215, which reflected the mechanism of limiting state power through the establishment of material and procedural requirements for its implementation. In order to conduct a comparative analysis of the Constitutions adopted in Poland, the method of quantitative indicators proposed by O. L. Kopylenko and B. V. Kindyuk was used, which calculated the number of signs in different articles, chapters, sections, parts of regulations. According to this methodology, the Articles focused on the work of the Seimas – 17%, military issues – 6.7%, the judiciary – 5.6%. In jurisprudence, it is common to distinguish four main stages of the formation of constitutionalism: I generation – the end of the XVIII century. — the beginning of the XIX century; II generation — the period after the First World War; III generation — the stage after the end of the Second World War; Generation IV – the time after the collapse of the USSR. Based on this classification, the Polish Constitutions belong to the first generation: the Constitution of May 3, 1791; Constitution of the Duchy of Warsaw of 1807; Constitution of the Kingdom of Poland in 1815. The Constitutions of the first generation include: the Constitution of May 3, 1791; Constitution of 1807; Constitution of the Kingdom of Poland in 1815. The constitutions of the second generation were adopted in the period after the end of the First World War, they reflected the processes of democratization of social and democratic life of countries and enshrined a significant amount of socio-economic human rights. Based on this classification, this group includes: the Constitution of the Polish People’s Republic of 1919; Constitution of the Republic of Poland of 1921; Constitution of the Republic of Poland of 1935. The constitutions of the third generation were adopted in the period after the end of the Second World War, and their content reflected the doctrine of the liberal model. Formally, this group included the Constitution of the Polish People’s Republic of 1952, but it was adopted during the Soviet occupation and introduced the Stalinist model of constitutional relations in the country. Generations of the IV generation were adopted after the collapse of the Soviet empire and reflected a new stage of state formation. In Poland, such a constitutional act was the 1997 Constitution of the Republic of Poland, which was to ensure the transition from a socialist model to a market democratic state governed by the rule of law, the stabilization of national statehood and the proclamation of accession to the European Union. The next stage of the study is a comparative analysis of the quantitative indicators of the Polish Constitutions, which showed that the total number of signs during this historical period varied from the minimum in the Articles of Heinrich Valois — 14 640 zn. to the maximum — 89 524 zn. in the Constitution of the Republic of Poland in 1997. An important indicator of the structure of constitutional acts is the number of articles (articles), which varied in a fairly wide range from 12 in the Constitution of 1791 to 243 in the Constitution of the Republic of Poland in 1997. Key words: Polish constitutionalism, quantitative indicators, comparative analysis, Articles by Heinrich Valois, total number of characters.
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Hall, M., and T. Young. "Recent Constitutional Developments in Mozambique." Journal of African Law 35, no. 1-2 (1991): 102–15. http://dx.doi.org/10.1017/s002185530000838x.
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Constitutions remain a puzzle. They are not conscious falsehoods, yet they are clearly not in any simple sense “true”. Nor are they a matter of self-deception on the part of their drafters, being as much intentionally aspirational or programmatic as regulatory. There is some virtue in Finer's characterization of them as “autobiographical” but even this becomes problematic when we speak of constitutions in the ex-colonial world which are often documents more easily made sense of in the context of other constitutional documents than the realities of the polities they supposedly regulate. All these issues are brought into very sharp focus by the experience of a country such as Mozambique, which in its short history since independence in 1975 has adopted two quite different societal projects in the form (amongst other things) of constitutional documents. The differences between these two projects are obvious and are commented on extensively in what follows. The categories utilized in both, it may be noted, are rooted entirely in European political and intellectual experience and, arguably, what is striking about the liberal and socialist options that they embody is not so much their (highly advertized) differences but what they have in common, including a profound intolerance and a determination to remake the world in their own image. Seen in this way the study of constitutions and constitution-making have interesting things to tell us about the processes of Westernization of our world.Mozambique's new constitution came into force on 30 November, 1990, replacing the Independence Constitution of 25 June, 1975. It eliminated the leading role of the Frelimo party, introduced multi-party politics, and changed the official name of the country from the People's Republic of Mozambique to the Republic of Mozambique.
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Raley, J. "Colonizationism versus Abolitionism in the Antebellum North: The Anti-Slavery Society of Hanover College and Indiana Theological Seminary (1836) versus the Hanover College Officers, Board of Trustees, and Faculty." Midwest Social Sciences Journal 23 (November 1, 2020): 80–118. http://dx.doi.org/10.22543/0796.231.1030.
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In March 1836, nine Hanover College and Indiana Theological Seminary students, almost certainly including Benjamin Franklin Templeton, a former slave enrolled in the seminary, formed an antislavery society. The society’s Preamble and Constitution set forth abolitionist ideals demanding an immediate emancipation of Southern slaves with rights of citizenship and “without expatriation.” Thus they encountered the ire of Hanover’s Presbyterian trustees—colonizationists who believed instead that free blacks and educated slaves, gradually and voluntarily emancipated by their owners, should leave the United States and relocate to Liberia, where they would experience greater opportunity, equality, and justice than was possible here in the United States and simultaneously exercise a civilizing and Christianizing influence on indigenous West Africans. By separating the races on two different continents with an ocean between them, America’s race problem would be solved. The efforts of the colonizationists failed, in part because of a lack of sufficient resources to transport and resettle three million African Americans. Then, too, few Southern slaveholders were willing to emancipate their slaves and finance those former slaves’ voyages, and most free blacks refused to leave the country of their birth. In Liberia, left largely to their own resources, colonists encountered disease, the enmity of local tribes, the threat of slavers, and difficulties in farming that left these former slaves struggling for existence, even if free blacks who engaged in mercantile trade there fared well. In the United States, the trustees’ conviction that American society was racist beyond reform, together with their refusal to confront the system of slavery in the South in hope of preserving the Union and their refusal to allow even discussion of the subject of slavery on the Hanover campus, left their central question unanswered: Would it ever be possible for people of color and whites to reside together in the United States peaceably and equitably? The trustees’ decision exerted another long-term impact as well. Although today the campus is integrated, Hanover College would not admit an African American student until 1948.
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Chopra, Surabhi. "The Constitution of the Philippines and transformative constitutionalism." Global Constitutionalism 10, no. 2 (July 2021): 307–30. http://dx.doi.org/10.1017/s2045381721000174.
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AbstractThis article examines the 1987 Constitution of the Philippines’ provisions on social and economic rights and welfare. It considers how the 1987 Constitution fits within the post-liberal paradigm of ‘transformative’ constitutional texts that emerged during democratic transitions in the 1980s and 1990s. It then analyses how the Supreme Court of the Philippines responded to the constitutional call for egalitarian socio-economic reform in the first fifteen years after the People Power revolution. The article highlights how the 1987 Constitution envisions far-reaching, progressive socio-economic change, and incorporates both social and economic rights as well as open-ended policy goals in this regard. The article argues that this hybrid approach to distributive justice creates a distinctive set of interpretive challenges for the judiciary. It then argues that the Philippine Supreme Court’s approach to these provisions in the years following the transition to democracy was perfunctory and somewhat inchoate. The court affirmed its jurisdiction over these provisions, but did not develop meaningful standards or principles in relation to them. The article points out that transformative constitutional texts place difficult demands on the judiciary in relation to social and economic rights. They prompt the judiciary into unfamiliar domains. At the same time, institutional legitimacy – including legitimacy on questions of distributive justice – requires judges to sustain the sense of a cogent boundary between constitutional law and politics. The article argues that these challenges were heightened in the Philippines by the textual ambiguity of the 1987 Constitution as well as the relative dearth of jurisprudential resources at the time. It concludes by considering the implications of the Philippines experience for the design of transformative constitutions.
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Zuckert, Michael P. "ON CONSTITUTIONAL WELFARE LIBERALISM: AN OLD-LIBERAL PERSPECTIVE." Social Philosophy and Policy 24, no. 1 (December 18, 2006): 266–88. http://dx.doi.org/10.1017/s0265052507070112.
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One new form of liberalism is a doctrine that might be called Constitutional Welfare Liberalism. It stands in some continuity with the varieties of welfare and equality oriented liberalism that emerged in the Nineteenth Century and which found expression in the U.S. in political movements like the New Deal of F.D.R. and the Great Society of L.B.J. Constitutional Welfare Liberalism differs somewhat from earlier versions of Welfare Liberalism in that it claims to be solidly grounded in the fundamentals of the liberal tradition and of the American Constitution. Advocates of Constitutional Welfare Liberalism would replace what they call the “negative-liberties model” of the Constitutional order with a “benefits model.” They rest their case on an analysis of rights that denies the meaningfulness of the common distinction between negative and positive rights. Some advocates of Constitutional Welfare Liberalism also base their claims on the positive empowerments and ends of government as expressed in the Preamble to the Constitution. It is shown here via an analysis of the negative/positive rights distinction that the distinction is indeed meaningful when understood more accurately than Constitutional Welfare Liberalism theorists do. Likewise it is shown that neither the general character of the Constitution as an empowerment of government, nor the particular goals stated in the Preamble imply the benefits model.
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SCHONTHAL, BENJAMIN. "Securing the Sasana through Law: Buddhist constitutionalism and Buddhist-interest litigation in Sri Lanka." Modern Asian Studies 50, no. 6 (March 1, 2016): 1966–2008. http://dx.doi.org/10.1017/s0026749x15000426.
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AbstractThis article examines the history and effects of Buddhist constitutionalism in Sri Lanka, by which is meant the inclusion of special protections and status for Buddhism in the island's 1972 and 1978 constitutions, alongside guarantees of general religious rights and other features of liberal constitutionalism. By analysing Sri Lankan constitutional disputes that have occurred since the 1970s, this article demonstrates how the ‘Buddhism Chapter’ of Sri Lanka's constitution has given citizens potent opportunities and incentives for transforming specific disagreements and political concerns into abstract contests over the nature of Buddhism and the state's obligations to protect it. Through this process, a culture of Buddhist legal activism and Buddhist-interest litigation has taken shape. This article also augments important theories about the work of ‘theocratic’ or religiously preferential constitutions and argues for an alternative, litigant-focused method of investigating them.
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Ivkina, Liudmila. "The birth of constitutional thinking in Cuba. The first constitutional projects." Latin-American Historical Almanac 30, no. 1 (June 28, 2021): 92–120. http://dx.doi.org/10.32608/2305-8773-2021-30-1-92-120.
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The emergence of Cuban constitutional thinking as a political culture is directly related to the events in Spain of the early decades of the 19th century, in particular, with the abdication of the Spanish King of Charles IV and the captivity of the legitimate Spanish King Ferdinand VII, the ascension to the Spanish throne of a new dynasty, the libera-tion war of the Spanish people against the French occupation (1808-1814), preparations for the convening of the General Courtes (1808–1810), the drafting and adoption of the 1812 Cadiz Constitution. The participation and legislative activities of Cuban deputies in the discus-sion of the articles of the Cadiz Constitution have become a kind of school and an important experience of constitutional creation. The first constitutional drafts that had emerged on the island at the time showed that Cuba, despite its colonial status, had embraced new liberal politi-cal and philosophical ideas brought from the European centre to the Latin American periphery. The authors of the first constitutional pro-jects were prominent public and political figures of Cuba, philosophers and economists, representatives of the "Creole" Enlightenment - Francisco Arango y Parrenio (1765–1837), Jose Agustin Caballero (1762–1835) and lawyer Joaquin Infante (1775–1827?). The article introduces the reader to the first projects of autonomy for Cuba and the first project of independence.
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Levy, Jacob T. "FEDERALISM AND THE OLD AND NEW LIBERALISMS." Social Philosophy and Policy 24, no. 1 (December 18, 2006): 306–26. http://dx.doi.org/10.1017/s0265052507070136.
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The transition from a relatively federal to a relatively centralized constitutional structure in the United States has often been identified with the shift from classical to welfare liberalism as a matter of public philosophy. This article argues against that distinction. The liberal argument for federalism is a contingent one, built on approximations, counterbalancing, and political power. A more federalist constitution is not automatically a freer one on classical liberal understandings of freedom. Neither is a more centralized constitution automatically a better match with the ideals of welfare liberalism. The article sketches a constitutional history of federalism from the founding, through an era in which centralization was aligned with skepticism about liberal constitutionalism (for both meanings of liberal), to an era in which centralization was aligned with increases in liberal freedom (for both meanings of liberal).
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Barber, Sotirios A. "LIBERALISM AND THE CONSTITUTION." Social Philosophy and Policy 24, no. 1 (December 18, 2006): 234–65. http://dx.doi.org/10.1017/s0265052507070100.
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If the U.S. Constitution is a liberal Constitution, liberal governments can have a constitutional obligation to secure positive benefits or welfare rights. The original constitutional text describes a government instrumental to the Preamble's abstract ends or goods. Constitutional rights can be reconciled to the text's instrumentalist logic by viewing them as functional to better conceptions of abstract ends among actors who would compensate for their fallibility. The Federalist confirms the instrumentalism of the constitutional text. Conservative writers who treat negative liberties as constitutional ends err in several ways. They assume rational actors would establish a government for the sake of limiting it, and they ignore the positive nature of goods (life, liberty, property) that are the objects of negative liberties. They also fail to see that tax-supported protections for all positive goods, including the objects of negative liberties, must be justified by public purposes.
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Crombois, Jean F. "How well do constitutions travel across time and space?" Tijdschrift voor rechtsgeschiedenis 84, no. 3-4 (December 9, 2016): 502–25. http://dx.doi.org/10.1163/15718190-08434p06.
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This article discusses the question of possible constitutional models in constitutional history. More precisely, it deals with the influence of the Belgian Constitution of 1831 on the Bulgarian Constitution of 1879 which is also known as the Turnovo Constitution. In doing so, this article highlights the fact that one cannot speak of a Belgian model for the Bulgarian constitution. In other words, it seems that, in this case, the Belgian constitution did not travel so well in time and space. Nevertheless, this article also argues that such a discussion should also be included in the grand narrative of constitutional history in Europe in the 19th century. Finally, the claims and counter claims of a possible Belgian model became central during the inter-War period in the discussion about the desirability or not of the establishment of a liberal parliamentary regime in Bulgaria.
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Triviño Anzola, Consuelo. "JOSÉ MARÍA VARGAS VILA, DEFENSOR DE LA CONSTITUCIÓN DE RIONEGRO." Anuari de Filologia. Literatures Contemporànies, no. 9 (December 18, 2019): 15–27. http://dx.doi.org/10.1344/aflc2019.9.3.
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After the independence and the creation of the New Granada in 1819, the young Latin American republics continued faced disputing power. The caudillos spent their energies in partisan struggles because personal, group, class and ethnic interests overlapped, often under romantic formulations. Between chaos and order, 14 constitutions were drafted in Colombia until reaching the Rionegro Constitution of 1863. Promulgated by the leaders of Radical Liberalism, it went too far in its pursuit of utopia. Federalism, defense of individual freedoms, abolition of the death penalty, freedom of press and separation of the Church and the State are some of its most important conquests, but the consequences of its extremes triggered bloody civil wars. In the heat of these disputes arises José María Vargas Vila (1860-1933), the famous pamphleteer, who enlisted in the ranks of Radical Liberalism defending constitutional rights. This article exposes the position of a Colombian liberal intellectual in face of period called Regeneration that seeks to impose peace and order in Colombia restricting the freedoms and rights granted by the Rionegro Constitution.
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Poole, Thomas. "Rights and Opinion: Or, The Progress of Sentiments." Law & Ethics of Human Rights 10, no. 2 (November 1, 2016): 453–78. http://dx.doi.org/10.1515/lehr-2016-0010.
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Abstract What is the relationship between minorities and majorities within the liberal constitutional order, and what role ought courts play in defining that relationship? This paper approaches the question first by establishing a framework of analysis which, drawing on work of David Hume, isolates three often undervalued features of constitutional order: the idea of the constitution as a going concern; the idea of the constitution as a complex whole; and the idea of the constitution as a framework of moral sentiment. These themes are explored in a study of contemporary British constitutional politics, an example of a stable constitution in flux. Britain continues to struggle with the Human Rights Act and the new prominence it accords to rights in constitutional debate. Reflecting on this case study, the paper argues that, when it comes to thinking about constitutional change, we should pay more attention to the imaginations of our fellow citizens, and their limits, aiming to enlarge our moral horizons in a way that aligns them with what is best within existing practices.
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Protosavitska, L. S. "Liberal-democratic values of the Polish Сonstitution of 1921." Uzhhorod National University Herald. Series: Law, no. 64 (August 14, 2021): 46–50. http://dx.doi.org/10.24144/2307-3322.2021.64.8.
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Examining the liberal-democratic values of the Polish Сonstitution of 1921, the author clarified the conditions under which the Polish state was formed in 1918. In general, the paper examines all sections of the constitution of March 17, 1921, carried out an article-by-article analysis of the basic law of the Polish state.
Polish statehood was restored as a result of geopolitical changes following the First World War, including the victory of the Entente. Based on the guarantees contained in Woodrow Wilson's program, the Poles restored the Polish state.
The Polish state in the postwar period faced a large number of political, social, economic and psychological problems that stood in the way of land integration and overcoming the gap with Western European states.
It was found that the Constitution of March 17, 1921, in contrast to previous constitutional acts, established a clear division of power into legislative, executive and judicial, proclaimed the rights and freedoms of citizens. The Constitution stated that the supreme power in the republic belongs to the people. Both houses of parliament - the Seimas and the Senate - were not equal under the 1921 Constitution. Constitutional powers enabled parliament to revise and amend the constitution.
It is noted that the executive power belonged to the President together with the relevant ministers. As for the judiciary, it belonged to independent courts. The constitution guaranteed broad rights to its citizens, as well as clearly defining the range of responsibilities that everyone had to perform properly.
Thus, on the basis of the analysis conducted by the author, it was found that the Polish state adopted the model of the democratic system of France, and in terms of legislative activity also Weimar Germany. The Constitution of Poland incorporates such values as citizenship and responsibility of the citizen, constitutionalism, freedom of speech, human dignity, honor and tolerance, freedom of conscience and justice, social order and equality.
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Corbett, Ross J. "The Extraconstitutionality of Lockean Prerogative." Review of Politics 68, no. 3 (June 2006): 428–48. http://dx.doi.org/10.1017/s0034670506000209.
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This article examines the relation between John Locke's doctrine of prerogative and constitutional government. Scholars have shown increased interest in Locke's doctrine in recent years, yet there is disagreement about its precise character. The Two Treatises of Government can be read such that this power is the result of the social compact and, thus, is a constitutional means of addressing emergencies. This paper instead argues that prerogative as it appears in the Two Treatises must be understood to be a natural power and, consequently, beyond constitutional control. It stands outside of the constitution because its logic denies that a good constitution is sufficient for liberal government.
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McBride, Stephen. "Quiet Constitutionalism in Canada: The International Political Economy of Domestic Institutional Change." Canadian Journal of Political Science 36, no. 2 (June 2003): 251–73. http://dx.doi.org/10.1017/s0008423903778603.
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The idea that Canada is experiencing a "post-constitutional" era is misleading because it is based only on lack of changes to the formal codified constitution. Through an examination of international economic agreements, considered as untraditional mechanisms having a constitutional effect, a case is made that Canada's constitution has undergone significant, but little noticed, change over the last decade. Using Stephen Krasner's typology of sovereignty, it is shown that several aspects of Canada's sovereignty have been diminished. The effect is that the balance between liberalism and democracy in Canada's liberal democratic polity has been altered, to the detriment of the democratic component.
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Sulikowski, Adam. "Konstytucja — system — hegemonia. „Antypolityczna” funkcja argumentów systemowych w orzecznictwie konstytucyjnym." Przegląd Prawa i Administracji 104 (October 19, 2016): 251–63. http://dx.doi.org/10.19195/0137-1134.104.15.
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CONSTITUTION — SYSTEM — HEGEMONY. ON THE ‟ANTI-POLITICAL” FUNCTION OF SYSTEMIC ARGUMENTS IN CONSTITUTIONAL JURISPRUDENCEThe main purpose of this paper is to examine the function of arguments based on so called systemic interpretation of law in constitutional jurisprudence, using methods and tools offered by the post-analytical, critical philosophy in the field of legal theory. The author notes that constitutional courts apply the systemic argumentation to hide real, political motives of their decisions. The author tries to diagnose the potential impact of this phenomenon on the functioning of liberal democracy, refering to theories developed by C. Lefort, Ch. Mouffe, E. Laclau and J. Habermas. In the Author’s opinion the constitutional activism, which has been masked by the systemic interpretation, is based on the liberal utopia of creation of law without ‟the political”. The rise of populist political forces in Europe can be considered as reaction to the constitutional activism and the crisis of the ‟liberal dream”.
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von Gall, Caroline. "Präsident, Regierung und Staatsrat – Die einfachgesetzliche Umsetzung der russischen Verfassungsreform." osteuropa recht 67, no. 1 (2021): 41–57. http://dx.doi.org/10.5771/0030-6444-2021-1-41.
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The article discusses the 2020 Russian constitutional reform and its implementation by legal amendments to many laws of the Russian Federation. The article focuses on the amendments to the new Law on the State Council and on the changes to the Law on the Government and the relationships of these institutions to the Russian President. The 1993 Russian constitution already gave extensive powers to the Federal President and a strong position within the power structure. The federal laws and jurisprudence of the Constitutional Court in force until 2020 further strengthened the powers of the president. That stood in contrast to a liberal interpretation of the constitution in the light of its basic principles laid down in the first section, in particular the principles of democracy and separation of powers. By the 2020 constitutional amendments, the discrepancy between the norms of the constitution on the president and the federal organs and the constitutional reality in form of federal laws with respect to the relationship between the President and the government is getting smaller. However, the constitutional reform also left open questions. The amendments to the laws partially answer these questions and again strengthen the powers of the president.
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STOPLER, GILA. "Semi-liberal constitutionalism." Global Constitutionalism 8, no. 1 (March 2019): 94–122. http://dx.doi.org/10.1017/s2045381718000370.
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Abstract:The article examines the conceptual category of semi-liberal constitutionalism and offers some thoughts on the unique normative challenges that arise in the resolution of human rights conflicts in semi-liberal constitutional systems. Under the definition offered a semi-liberal constitutional system is a system that meets two conditions: first, it exhibits a simultaneous dual normative commitment to liberal rights and principles and to other values or interests that result in enduring and significant restrictions on some of these rights; second, this dual normative commitment is constitutive and is expressed in the basic elements of the system. Describing the problem of shaping and interpreting normative commitments in a semi-liberal constitutional regime, the article argues that an insufficient understanding of semi-liberal normativity may result in skewed reasoning by both courts and policymakers trying to resolve human rights conflicts in semi-liberal constitutional regimes, because the application of liberal rights reasoning in semi-liberal settings neglects the power differentials inherent in such systems and tends to overprotect the rights of some at the expense of the rights of others. Offering Israel as an example of a semi-liberal constitutional system and using one aspect of its semi-liberal nature – the structure of its religion–state relations and specifically of its religious personal laws – the article analyses three decisions of the Israeli Supreme Court, pointing to the special difficulties arising in such settings and offering critiques and corrections to the Court’s rulings where applicable.
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Riwanto, Agus, and Seno Wibowo Gumbira. "POLITIK HUKUM PENGUATAN FUNGSI NEGARA UNTUK KESEJAHTERAAN RAKYAT (Studi Tentang Konsep Dan Praktik Negara Kesejahteraan Menurut UUD 1945)." Jurnal Hukum dan Peradilan 6, no. 3 (November 30, 2017): 337. http://dx.doi.org/10.25216/jhp.6.3.2017.337-360.
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According to the constitution, the state concept in constitutional practice can be divided into two opposite poles, namely welfare and liberal state. They have different characteristics in which the first concept (welfare state) requires a strong and extensive state functions to regulate an economic justice, on the contrary the second concept (liberal state) relies on the free market economy which state’s role should be marginalized. Sosio-legal research is used in this article. Based on the Article 33 of Indonesian post constitutional amendment of 1945, Indonesia embraced the concept of welfare state. Yet, the practice sociologically tends to embrace a liberal state that is not suitable with the welfare of the people. There are challenges, in the context of liberal state, faced by Indonesia, such as applying the capitalist economic system. We may fight the capitalist economic system by two legal policy, namely: first one, we may re-create the role of state functions as a controller and regulator of the economy. The second one, we may increase the state income through taxes along with the higher social spending to achieve the social welfare and economic justice.Keywords: welfare state, the constitution of 1945, legal policy
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Basta Fleiner, Lidija R. "Kako predavati ustavno pravo u dvadeset prvom veku." Novi arhiv za pravne i društvene nauke Pravnog fakulteta Univerziteta u Beogradu, no. 1/2021 (May 11, 2021): 32–47. http://dx.doi.org/10.51204/novi_arhiv_pfub_21103a.
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Constitutionalist discourse has undergone a fundamental transformation at the beginning of the 21st century. New, major constitutional topics have been introduced, inspired by constitutional pluralism and constitutionalism beyond the nation-state. The systemic challenges to modern liberal constitutionalism have prompted a new understanding not only of the constitution, but also of constitutional law as a university subject. The crisis of key parameters of constitutional democracy commands a thorough re-examination of both the cognitive and performative dimensions of teaching constitutional law. For that reason, this paper seeks answers to the question what and how to teach in the epoch of postmodern constitutionalism. The paper advocates the viewpoint that the professor should not only describe phenomena, but also explain the essence of the problem: for example, the republican argument of classical constitutionalism’s irrelevance, or the difference between normality and pathology of constitutional systems in the context of democratic transition, or indeed the trans-nationalization of the constitution and the postmodern paradigm of constitution-building without constituent power. The need for interdisciplinary and multidisciplinary approach, including co-teaching is demonstrated through the topics of monistic and pluralistic federalism, and constitutional guaranties of individual and/or collective rights. The paper concludes that teaching of constitutional law should be guided by global doubt, as the hermeneutics of truth and ethico-political consideration.
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Vorster, Nico. "A Theological Evaluation of the South African Constitutional Value of Human Dignity." Journal of Reformed Theology 1, no. 3 (2007): 320–39. http://dx.doi.org/10.1163/156973107x251003.
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AbstractOne of the key objectives of the South African constitution is to create a sovereign democratic state founded upon human dignity. The South African Constitutional Court relies mainly on the classical, liberal view of human dignity to give judicial content to the constitutional value of human dignity. This article compares the South African constitutional concept of human dignity with a Reformed-Christian perspective. It identifies shortcomings in the South African constitutional understanding of human dignity, and indicates how a Christian perspective on human dignity offers a more philosophical and judical substance to human dignity.
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Newman, Dwight, and Lorelle Binnion. "The Exclusion of Property Rights from the Charter: Correcting the Historical Record." Alberta Law Review 52, no. 3 (June 12, 2015): 543. http://dx.doi.org/10.29173/alr23.
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Canada’s Constitution has been described as an outlier among the liberal constitutions of the world because it lacks a property rights provision. The history of how property rights came to be excluded has received relatively limited consideration. This article seeks to correct the historical record by utilizing forms of analysis within legal scholarship.
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Swanepoel, Jan. "Die dialektiek in die waardes van die 1996 Grondwet." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 1, no. 1 (July 10, 2017): 110. http://dx.doi.org/10.17159/1727-3781/1998/v1i1a2900.
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In his paper The Dialectics in the Values of the 1996 Constitution Jan Swanepoel discusses various value statements in the 1996 Constitution of the Republic of South Africa and focuses the attention on indications of a lack of coherence as far as these value statements are concerned. He does this against the background of some introductory perspectives on the 1996 Constitution. In this regard he points out that the 1996 Constitution, as successor to the 1993 Constitution with its set of thirty four constitutional principles, can be regarded as a document of political and ideological compromise. He points out that constitutions (and in particular the value statements in Bills of Rights) generally tend to be formulated rather broadly in order to promote flexibility and adaptability. He also focuses the attention on the fact that such a dialectic of values point to the variety of interests that has to be harmonized in a modern state, something which is unmistakably the case in South Africa with its heterogeneous society. The 1996 Constitution contains a variety of "value terms". A closer study of these terms does, however, indicate that these terms (value, principle, foundation, and the like) are not used in a very systematic or technical fashion. The problems regarding the value statements are, however, not only of a terminological nature. There are also some substantive problems, as becomes clear from a discussion of value terms in the Preamble and in Sections 1 and 7 of the 1996 Constitution. Swanepoel indicates that a tension exists between what can be called the "process" formulation in section 1(a) and the "state of affairs" formulation of the values in section 7(1). . While section 1(a) speaks of "the achievement of equality" and "the advancement of human rights and freedoms", section 7(1) simply makes mention of "equality" and "freedom". The dialectic between these twoformulations is discussed with reference to other relevant sections of the 1996 Constitution. The discussion is placed against the background of a so-called blank space in the1996 Constitution. While the 1993 Constitution characterized South Africa as a "constitutional state", the 1996 does not contain such a characterization. It is argued in this paper that the process phrasing in section 1 (a) ties in with a social democratic view of the state as an institution bringing about social change. The "state of affairs" phrasing of section 7(1) is, on the other hand, more in line with a liberal notion of a Rechtsstaat. The issue concerning what type of state South Africa is under the 1996 Constitution, will depend on which of the two poles in the above-mentioned dialectic the primary emphasis will be placed. Since the 1996 Constitution has been ratified by the Constitutional Court, it is regarded as extremely unlikely that the above-mentioned terminological problem will be rectified in future. Swanepoel provides a diagrammatic representation of the principle, values and objectives mentioned in the 1996 Constitution. Further research is envisaged concerning the possibility of developing a juridical model of reconciling the social-democratic and Rechtsstaat tendencies in the 1996 Constitution within the framework of a broader vision on the state’s task in bringing about justice.
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Aronov, D. V., and S. K. Zhilyaeva. "Was A. I. Guchkov’s Constitution a Right-Liberal Draft of the Basic Law of Russian Empire or a Party Program?" Bulletin of Kemerovo State University 21, no. 4 (December 31, 2019): 890–97. http://dx.doi.org/10.21603/2078-8975-2019-21-4-890-897.
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The article analyzes the political and legal nature of "The Draft Constitution of the Russian Empire" stored in A. I. Guchkov’s personal archive. A. I. Guchkov was the founder and leader of "The Union of October 17", a political party formed in the early twentieth century Russia. Russian historical and legal science considers these materials as a draft Constitution drawn by the representatives of the right wing of Russian liberalism. We conducted a comparative analysis of Guchkov’s Constitution and the versions of "The Union of October 17" political party programs. The Constitution proved almost identical with the texts of two versions of the party program. The draft could fill the intermediate place in a series of different versions of the party program. The party programs were successively adopted by the first and second party Congresses and the Moscow Central Committee. Therefore, it is necessary to refer the document not to the constitutional projects, but to the legal and political materials of "The Union of October 17". Thus, the right wing of the liberal forces had no independent constitutional project.
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Kidd, Colin. "THE GRAIL OF ORIGINAL MEANING: USES OF THE PAST IN AMERICAN CONSTITUTIONAL THEORYProthero Lecture." Transactions of the Royal Historical Society 26 (September 29, 2016): 175–96. http://dx.doi.org/10.1017/s0080440116000104.
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ABSTRACTOriginalist jurisprudence, which enjoins a faithful adherence to the values enshrined in the late eighteenth-century Constitution, has become a prominent feature of contemporary American conservatism. Recovering the original meaning of the Constitution is far from straightforward, and raises major issues of historical interpretation. How far do the assumed historical underpinnings of originalist interpretation mesh with the findings of academic historians? To what extent has the conservative invocation of the Founding Fathers obscured a lost American Enlightenment? Nor is ‘tradition’ in American Constitutional law an unproblematic matter. How far does a desire to restore the original meaning of the Constitution ignore the role of ‘stare decisis’ (precedent) in America's common law heritage? It transpires, moreover, that the various schemes of historical interpretation in American Constitutional jurisprudence do not map easily onto a simple liberal–conservative divide.
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Doyle, Oran. "Populist constitutionalism and constituent power." German Law Journal 20, no. 2 (April 2019): 161–80. http://dx.doi.org/10.1017/glj.2019.11.
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AbstractConstituent power is a helpful component of constitutional theory because it provides a conceptual and potentially normative explanation of how a new constitution can be made without any existing legal authority to do so. Contemporary theories of constituent power, however, unhelpfully treat constituent power as a fictive entity, typically the people, that subsists through time. This predominant account of constituent power fails adequately to explain examples of constitution-making and also lends support to the populist claim that a unitary and unchanging people has an immanent but continuing role as a constitutional actor superior to the constitution itself. This enables populist leaders to rely on prevalent understandings of constitutionalism to support the sidestepping and/or removal of constraints on their power. In this Article, I trace the connections between mainstream theories of constituent power and the academically peripheral claims of populist constitutionalism. I argue for a different understanding of constituent power as a capacity that, in principle, may momentarily be exercised by any entity. This explains how a new constitution can unlawfully replace a pre-existing constitution yet come to have lawful authority itself, without implying the diachronic existence of the constituent power as an entity. I illustrate this understanding of constituent power with reference to the constitutional development of Taiwan and Ireland. These examples show—contrary to the predominant account of constituent power—that constitutional systems may be created without the exercise of constituent power and that constitutional law can play an important role in constructing an entity capable of exercising constituent power. Seen in this way, popular references in preambles are important not for their account of how a constitution was made but rather for their account of whom a constitution is for. This account of constituent power undermines core claims of populist constitutionalism. But it also provides a salutary lesson for liberal constitutionalists: a constitution adopted for a people must broadly serve the interests of that people.
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Partlett, William. "The Legality of Liberal Revolution." Review of Central and East European Law 38, no. 3-4 (2013): 217–37. http://dx.doi.org/10.1163/15730352-00000002.
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Since the fall of communism, liberals have sought to reclaim the mantle of revolution. This new age of liberal revolution, they argue, culminates in a transformative ‘moment’ when the people unite to throw off their shackles and establish a democratic constitution. These founding moments are therefore extraordinary periods of unconstrained politics, where the sovereign people transcend the formal borders of institutionalized politics and legality to draft the constitutional boundaries of their new liberal order. Russian President Boris El’tsin placed his violent and illegal dissolution of the Russian Parliament and period of authoritarian dictatorship within this tradition of liberal revolution. Throughout 1993, El’tsin justified his decision to disband Parliament as the necessary action of an agent of the people in a period of extraordinary (and extralegal) politics. Western commentators have generally placed Russia’s constitutional foundation within this revolutionary paradigm of extraordinary politics. In Russia, however, both El’tsin’s methods and this revolutionary tradition are increasingly viewed with suspicion. This viewpoint is best expressed in the writing of the Chairman of the Russian Constitutional Court, Valerii Zor’kin. Steeped in the anti-revolutionary ideology of the late tsarist Russian constitutionalists, Chairman Zor’kin argues that El’tsin’s actions at the Russian founding helped spawn a culture of lawlessness that has undermined Russian democracy. Although Zor’kin’s approach is flawed, it is an important reminder for liberal constitutional thinkers to reexamine the concrete effects of a desire for a democratically pure founding moment.
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Mazayev, V. D. "The Search for New Meanings Continues (Concerning the Amendments to the Constitution of the Russian Federation)." Lex Russica, no. 7 (July 19, 2021): 15–31. http://dx.doi.org/10.17803/1729-5920.2021.176.7.015-031.
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Amendments to the Constitution of the Russian Federation in 2020 introduced many new meanings and concepts into the constitutional matter. Most of them have great ideological potential. The paper analyzes the worldview aspect of the amendments to the Constitution of the Russian Federation, the political message of their adoption, methodological approaches to identifying their content.The paper highlights amendments with the greatest spiritual and moral content, such as succession, historical truth, patriotism. The author elucidates the prerequisites for their adoption, including the historical inevitability of changing the Constitution of the Russian Federation in 1993 and the defeat of imitative constitutionalism in the majority of post-socialist countries. It is shown that the ideological content of the amendments was used to adjust the liberal-democratic model from the standpoint of strengthening the state sovereignty. Particular attention is paid to the expansion of national identity in constitutional norms as a natural process of protection from global constitutionalism, universal democratic values, including the case study of Eastern European states. There is a worldwide crisis tendency for the market-type democracy, the search for more modern approaches to its renewal.As a conclusion, it is noted that the worldview turn towards a reassessment of the liberal democratic doctrine is contradictory and not completely clear. It can be assumed that the amendments to the Constitution of the Russian Federation are the first step not only towards the modification of constitutional institutions, but also towards a qualitative renewal of the philosophical and legal meanings of the Russian constitutional identity.As methodological tools of scientific research, it is proposed to use the potential of the integrative function of philosophy of law and the concept of system-wide contradictions of the society. This concept allows us to critically assess the universality of the traditional values of democracy, to form their own competitive models of the constitutional structure. It aims at finding a balance between the opposites in the society, the state, at the mechanism of dialogue and proportionality in decision-making.
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Richards, David AJ. "Liberal Democracy and the Problem of Patriarchy." Israel Law Review 46, no. 2 (June 14, 2013): 169–91. http://dx.doi.org/10.1017/s0021223713000058.
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This article addresses how and why liberal democratic constitutions, such as the United States, have come to recognise the tension between liberal values of equal liberty and patriarchy in three areas – contraception, abortion, and gay/lesbian sex acts – and to resolve them in the way in which they have: by extending constitutional protection to these activities on the basis of a constitutional right to privacy. The article begins with some historical understanding of the background of the rise of patriarchy, and why the control of sexuality in general, and women's sexuality in particular, was so central to its aims. It then turns to how and why liberal constitutionalism has found these aims to be so problematic as a basis for law.
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Ding, Xiaodong. "Reimagining Law and the Constitution: Carl Schmitt and American Constitutional Scholarship." ICL Journal 13, no. 4 (March 26, 2020): 403–27. http://dx.doi.org/10.1515/icl-2019-0023.
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AbstractThis article studies the debate between Schmitt’s theory and legal positivism, which Schmitt identifies as a typical liberal theory of law. Schmitt’s theory, I argue, provides a powerful critique of legal positivism, while offering a meaningful, alternative understanding of law that begins not with norms, but with the will of a legitimate decider. To demonstrate the continuing relevance of the debate Schmitt had with legal positivism, I turn to what I describe as a similar legal positivism/Schmitt debate in American constitutional scholarship. Ultimately, I take a side in this debate, arguing for a fully Schmittian understanding of the Constitution as the will or continuous decision of the people, rather than as positive constitutional norms existing independently of politics.
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López Bofill, Hèctor. "Hubris, constitutionalism, and “the indissoluble unity of the Spanish nation”: The repression of Catalan secessionist referenda in Spanish constitutional law." International Journal of Constitutional Law 17, no. 3 (July 2019): 943–69. http://dx.doi.org/10.1093/icon/moz064.
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Abstract This article analyzes the struggles of the Catalan government to organize a referendum on secession and the constitutional framework invoked by the Spanish central authorities to prohibit it. The repression of secessionist referenda within the Spanish constitutional framework triggers several problematic questions concerning the role of constitutional supremacy in handling subnational secessionist challenges developed under a pacific and democratic framework. The article offers a comparison between the Spanish-Catalan case and other examples of secessionist referenda within liberal democracies, underscoring that the Spanish solution of repressing such referenda through criminal law is unique in the liberal democratic context. The article also offers a description of the political, historical, and legal circumstances surrounding the Spanish central authorities’ actions that explains the Spanish constitutional response to both the Catalan Consultation held on November 9, 2014, and the referendum on Catalan independence held on October 1, 2017. The article concludes by arguing that the prohibition of the Catalan referendum initiatives on independence and their subsequent prosecution through criminal law may cripple the basic pillars of the Spanish liberal democracy designed under the 1978 Spanish Constitution.
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Dorn, J. "The Rule of Law and Freedom in Emerging Democracies: A Madisonian Perspective." Voprosy Ekonomiki, no. 6 (June 20, 2003): 22–37. http://dx.doi.org/10.32609/0042-8736-2003-6-22-37.
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The basic principles of liberal constitutional order proposed by James Madison - the "chief architect" of the U.S. Constitution - are considered in the article. It is stressed that Madison rejected the idea of redistributive state (welfare state) and focused on the limits of government. The overriding principle of liberal order is freedom under the rule of law. The lesson for newly independent states is that spontaneous market-liberal order is needed to coordinate economic activity and the government must minimize its role in the economy. Freedom of choice lets people rise the wealth of nation.
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CONGLETON, ROGER D., and DONGWOO YOO. "Constitutional bargaining and the quality of contemporary African institutions: a test of the incremental reform hypothesis." Journal of Institutional Economics 14, no. 2 (June 7, 2017): 233–58. http://dx.doi.org/10.1017/s1744137417000224.
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AbstractThe incremental reform hypothesis implies that constitutions are rarely adopted whole cloth but instead emerge gradually from a series of reforms. The starting point, scope for bargaining, and number of reforms thus jointly determine the trajectory of constitutional history. We test the relevance of this theory for Africa by analysing the formation and reform of the independence constitutions negotiated and adopted during the 1950s and early 1960s. We provide historical evidence that independence occurred in a manner consistent with the incremental reform hypothesis. After independence, constitutional bargaining continued, although the alignment of interests inside and outside government initially favoured illiberal reforms. Liberal trends re-emerged a few decades later. We provide statistical evidence of incremental reform during both post-independence sub-periods. In general, the African countries that experienced the fewest constitutional moments and the narrowest domain of bargaining in the first decades of independence tend to have better contemporary institutions than states that began with less restrictive constitutional rules and experienced more constitutional moments.
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DELGADO, Mauricio Godinho, José Roberto Freire PIMENTA, and Ivana NUNES. "O PARADIGMA DO ESTADO DEMOCRÁTICO DE DIREITO: ESTRUTURA CONCEITUAL E DESAFIOS CONTEMPORÂNEOS." Revista Juridica 2, no. 55 (April 11, 2019): 485. http://dx.doi.org/10.21902/revistajur.2316-753x.v2i55.3405.
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RESUMOO constitucionalismo ocidental caracteriza-se pela presença de três paradigmas mais destacados. O mais antigo, denominado de Estado Liberal de Direito, originário dos documentos constitucionais do século XVIII dos EUA e da França, foi antecedido pelo pioneirismo constitucional britânico, de origem costumeira, jurisprudencial e parlamentar, desde o século XVII. No Brasil, teve influência na Constituição de 1891. O paradigma do Estado Social de Direito, oriundo dos documentos constitucionais da segunda década do século XX, como a Constituição do México, de 1917, e a Constituição da Alemanha, de 1919. No Brasil, despontou na Constituição de 1934, desenvolvendo-se também na Constituição de 1946. Por fim, o paradigma do Estado Democrático de Direito, também chamado de Constitucionalismo Humanista e Social, foi arquitetado em países da Europa Ocidental a partir de 1945/46, logo depois do término da Segunda Grande Guerra. Esses três paradigmas são estudados neste texto, com o objetivo de melhor compreender as características inerentes ao paradigma do Estado Democrático de Direito. Tal paradigma, a propósito, chegou ao Brasil apenas por intermédio da Constituição da República de 1988. O presente estudo também analisa as adversidades e os desafios que tem sido antepostos ao novo paradigma constitucional nas últimas décadas no Ocidente. PALAVRAS-CHAVE: Paradigmas Constitucionais; O Estado Democrático de Direito como Novo Paradigma Constitucional; Desafios ao Constitucionalismo Humanista e Social. ABSTRACT Western constitutionalism is characterized by the presence of three main paradigms. The oldest, known as the Liberal State, arising from the constitutional documents of the eighteenth century in the United States and France, was preceded by the pioneering British constitutionalism, of customary, case law, parliamentary origins, since the seventeenth century. In Brazil, it influenced the Constitution of 1891. The Social State paradigm originated in the constitutional documents of the second decade of the twentieth century, such as the Mexican Constitution of 1917 and the German Constitution of 1919. In Brazil, this paradigm emerged in the Constitution of 1934 as well as in the Constitution of 1946. Finally, the Democratic State paradigm, also called Humanist and Social Constitutionalism, was designed in Western Europe from 1945/46 onwards, shortly after the end of the Second World War. These three paradigms are studied in this text in order to better understand the inherent characteristics of the Democratic State paradigm. This paradigm, incidentally, only reached Brazil through the Constitution of the Republic of 1988. The present study also analyzes the adversities and challenges faced by the new constitutional paradigm over the past decades in the West. KEYWORDS: Constitutional Paradigms; The Democratic State as a New Constitutional Paradigm; Challenges to Humanist and Social Constitutionalism.