Unpacking Living Originalism and Living Constitutionalism in the Constitutional Contexts of India and Pakistan

Quality and Quantity in Constitutional Interpretation: The Quest for Analytic Essentials in Law

Henry Manne wrote about many topics central to the law-and-economics canon but also over a period of more than a decade later in life worked on a theory of constitutional interpretation, producing a paper and lectures on this subject. His goal was to use insights from economics to improve constitutional analysis, in particular seeking to ground constitutional interpretation in quantitative assessments he hoped would be both true to the primary goal of constitution-makers and capable of providing guidance to judges in ways less subject to the pull of political preferences. Despite his concerns with controlling constitutional interpretation in practice, the instincts Manne brought to this endeavor ran more to matters of theory than to its implementation by judges, identifying important propositions for interpretation but failing (by his own admission) to produce a test that fulfilled his aspirations. The strengths and weaknesses of this work provide an intriguing contrast with writings from Antonin Scalia, the American jurist and scholar whose approaches to both constitutional and statutory interpretation had a profound impact on jurisprudence over the past three decades. Like Manne, Scalia highly valued more determinate methods of analysis and was deeply concerned with the architecture of constitutional creation and effectuation. His focus, however, was more on the practical question of what happens when a particular sort of official has the power to implement a highly indeterminate test and what test best constrains interpretation in ways faithful to the interpretive task. Those goals undergird Scalia’s commitments to textualism and originalism. Manne’s and Scalia’s approaches to constitutional interpretation are instructive on the purposes served by analytical tools in disparate settings. In particular, they offer contrasting and complementary visions, providing insights about the domains of law-and-economics, legal analysis, practical judgment, and perspective.

Iraq's Constitution: A Drafting History

The Influence of Preparatory Constitutional Commissions on Constitutional Reform Projects

The Banking Sector in Pakistan is in its developing state of employing Internet Technology for conducting transactions, interactivity and customer relationship management. Government of Pakistan has brought in efforts to improve the situation. In this regard many of the Public sector banks have been privatized in the last decade. The State Bank of Pakistan (Central Bank in Pakistan) has adopted effective measures and introduced reforms for application of Information Technology for using Internet Banking services. This chapter identifies the implementation of the Internet Technology in Pakistan in particular and in South Asian countries in general. The chapter replicates the Diniz (1998) model using the case of Pakistan and other South Asian countries as an example of an emerging banking sector using Internet.

Purpose- Pakistan is a lower-middle-income country and financial inclusion rate is comparatively lower than other South Asian countries. In this circumstance, Government of Pakistan has implemented various financial inclusion policies and strategies to enhance the rate of financial inclusion in the country. However, a cursory attention has been paid to Government policies by the previous studies. Therefore, the aim of this study is to provide an insight into the current government policies and strategies for fintech adoption and financial inclusion in Pakistan. Design/ methodology/ approach- This study collected and reviewed previous literature that focused on various fintech adoption and financial inclusion policies and strategies by the Government of Pakistan. Literature has been selected from various secondary sources such as journal articles, conference proceedings, annual reports of SBP (State Bank of Pakistan), Global findex report by World Bank and so on. Findings- The study found that Government of Pakistan has successfully implemented a number of financial inclusion policies and strategies during the last decade. A noteworthy innovation approach (i.e. fintech) was applied as a catalyst in order to extend the scope of financial services in Pakistan. The Government also implemented Financial Literacy Programs specifically for youth to create awareness about financial resource management in the country. Very recently, Government of Pakistan launched banking on equality program to enhance gender equality in financial inclusion. Originality/value- The findings of this study might be useful for the decision makers and practitioners to implement the policies and strategies more effectively and efficiently to enhance the rate of financial inclusion in country.

Objective: The objective of the instant paper is to examine and potentially support the claim that fundamental rights guaranteed by the Indian Constitution, such as freedom of religion, despite reservations from cultural relativists, can be seen as emerging elements of constitutional morality. This examination will be based on a comprehensive analysis of judicial decisions, scholarly publications, and juristic opinions. Methodology of the Study: The study will analyse relevant judicial decisions, including landmark cases related to fundamental rights, especially freedom of religion, to understand how the Indian judiciary has interpreted and applied these rights. This will involve examining how the courts have balanced cultural relativism concerns with the principles of constitutional morality. Conclusion: The paper emphasizes the importance of universal human rights and argues against dismissing them due to their Western origin. It advocates for the acceptance of human rights across all cultures. The text acknowledges the complex interaction between law and religious culture, with an emphasis on individual morality. It highlights the value of human dignity within the Indian Constitution, aiming to balance individual rights with the state's duty to ensure equality. The paper also prioritizes women's rights and opposes customs that infringe upon them. It mentions Article 25 of the Indian Constitution, which secures freedom of religion with some limitations. In summary, the passage supports universal human rights, addresses the challenges at the intersection of law and religious culture, and stresses the importance of individual rights and dignity within constitutional morality. Result: The findings of this paper will aim to provide a nuanced understanding of the relationship between fundamental rights, cultural relativism, and constitutional morality in the Indian context. It will shed light on whether fundamental rights, especially freedom of religion, can be considered as emerging elements of constitutional morality despite reservations from cultural relativists. The study will present an analysis of judicial dicta, scholarly publications, and juristic opinions to support its conclusions and contribute to the ongoing discourse on these complex and significant issues within Indian constitutional law.

The Constitutional text in itself is not living law, but the text, along with its interpretation by the courts, covers the changing societal needs and aspirations. The Constitution of India is a unique document that encompasses philosophy, politics, society, and law, requiring an interpretative model distinct from ordinary legal interpretation. There are various methods to interpret the Constitution, such as Textualism, Originalism, Structuralism, Doctrinalism, Pragmatism, and Purposivism. The Indian Supreme Court initially preferred a textualist approach to interpret the constitutional text and later shifted to a structuralist and purposive approach to give expansive meaning and enlarge the scope of various fundamental rights. These approaches are mainly dominated by Western legal philosophy. There is a need to Indianize the interpretative paradigm, and the Bhagavat Gita can be an inspiring instrument in this regard. This paper explores whether principles of Buddhi Yog, Dharma, Karm Yog, and Karm Sanyās Yog in the Bhagavat Gita can be utilised for understanding various constitutional provisions dealing with fundamental rights, fundamental duties and Directive Principles for the State Policy. Drawing parallels between the Gita’s philosophy and various key constitutional concepts like equality, freedom and liberty, this paper presents an Indian philosophical approach to interpret key constitutional principles. There has been a common concern in the interpretative exercise that which meaning would be appropriate and how to reach a particular conclusion in a case where a word or phrase has multiple meanings. It is also seen that the justices, in the name of interpretation, disregard the constitutional text and employ their morals, political, or social preferences. In that case, the Gita’s key principles can be a fruitful instrument to guide and give meaning to the constitutional provisions and provide a moral and ethical framework of constitutional interpretation resonant with the civilizational ethos of India. This paper doctrinally analyses the key Gita’s principles through textual analysis of selected Gita passages and maps their normative principles to Constitutional interpretation. This Indian philosophical approach promotes a balanced constitutional jurisprudence and harmonises rights and duties, and the role of the judiciary. KEYWORDS: Constitutional Interpretation; Bhagavat Gita; Supreme Court: Indian Philosophy; Dharma

Dr. B. R. Ambedkar’s views on Democracy and Indian Constitution: an Analytical Appraisal

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.

The Big Question: What Is the Biggest Threat to Democracy?

The inclusiveness of the new originalism—and its concessions regarding construction and multiple modalities requiring judgments not determined by original public meaning—has provoked discontent within originalism, for example, the emergence of “original methods originalism.” Proponents of this view make a normative argument for originalism: that supermajoritarianism promotes the good constitution, and that the only way to preserve its goodness is to interpret it according to original methods originalism. This chapter rejects original methods originalism and considers reasons commonly given for the appeal of originalism in our constitutional culture. These reasons are better understood as reasons for the aspiration to fidelity. Furthermore, these reasons in fact show the need for a moral reading or philosophic approach that conceives fidelity as honoring our commitments to abstract aspirational principles, not an authoritarian originalist conception of fidelity as following the relatively specific original meaning (or original expected applications) of the Constitution.

In thinking about fidelity and change in constitutional interpretation, many have framed the basic choice as being between originalism and living constitutionalism. Consider, for example, Jack M. Balkin’s Living Originalism, Robert W. Bennett and Lawrence B. Solum’s Constitutional Originalism: A Debate, and John O. McGinnis and Michael B. Rappaport’s Originalism and the Good Constitution. I shall argue for the superiority of what Ronald Dworkin called “moral readings of the Constitution” and what what Sotirios A. Barber and I have called a “philosophic approach” to constitutional interpretation. By “moral reading” and “philosophic approach,” I refer to conceptions of the Constitution as embodying abstract moral and political principles – not codifying concrete historical rules or practices – and of interpretation of those principles as requiring normative judgments about how they are best understood – not merely historical research to discover relatively specific original meanings.I shall argue that Dworkin’s and my conceptions of fidelity and change are superior to those of originalism in its many varieties. For our moral readings enable us to see what originalisms (besides Balkin’s) obscure or deny: that one of the main purposes of the Constitution is to exhort us to change in order to honor our aspirational principles and affirmatively to pursue good things like the ends proclaimed in the Preamble. Thus, the aspiration to fidelity requires rather than forbids change. But it does so in the name of honoring our commitments and building out our framework of constitutional self-government with coherence, integrity, and responsibility, rather than in the name of “updating” a “living” constitution. It aims for something better than preventing “rot,” as Scalia famously put it. I shall attempt to make good on these claims by arguing that moral readings help us better understand the Constitution as both a framework for change and a charter of aspirations to which we owe fidelity. They enable us to see how the multiple modalities of argument in constitutional interpretation (including original public meaning and precedent), rather than preventing change, are sites in which we argue about, and sources through which we justify, change: in particular, how best to realize and thus to be faithful to our constitutional aspirations. Or, as Dworkin put it, how to interpret the Constitution so as to make it the best it can be.In sum, my topic is fidelity without originalism and change without living constitutionalism. I also ponder the reasons for the grip of originalism in our constitutional culture as contrasted with its rejection elsewhere. I shall suggest that the reasons commonly offered in fact demonstrate the grip of the aspiration to fidelity, not the grip of originalism itself. And I shall contend that those reasons in fact show the need for a moral reading or philosophic approach that conceives fidelity as redeeming the promise of our constitutional commitments, not an authoritarian originalist conception of fidelity as following the relatively specific original meaning (or original expected applications) of the Constitution.

Debates over the proper theory of, or approach to, constitutional interpretation rage through many Western constitutional democracies. Although the number of distinct theories, if finely individuated, might match the number of theorists who have entered the fray, it has become customary to group the competing accounts into two broad camps, commonly labeled ‘originalism’ and ‘non‐originalism’. This article presents an overview of non‐originalist approaches to constitutional interpretation. However, because non‐originalism is defined as the negation of originalism – that is, diverse theories are grouped together as ‘non‐originalist,’ not so much by what they commonly affirm, as by what they commonly deny – the project naturally focuses as well on originalist theories of interpretation. After specifying what originalism maintains, and what objections it encounters, the essay sketches some of the more prominent non‐originalist approaches to constitutional interpretation and identifies some of the criticisms they face and worries they provoke. Preliminarily, it explains why ‘theories of constitutional interpretation’ constitute only a subset of ‘theories of judicial review.’

Why Would Anyone Care About Original Intent?