Constitutional Discourse Research Articles

Moyens modernes, buts traditionnels: le discours constitutionnel de l’Église de Grèce

SOMMAIRE: 1 - Introduction - 2. L’Etat et l’Eglise en Grece. Le cadre constitutionnel - 3 - L’Eglise de Grece comme institution de l’Etat grec - 4. Le discours constitutionnel de l’Eglise. Des elements de constitutionnalisme populiste - Pluralisme constitutionnel et droits de la majorite - 6. Les droits en tant qu’identite - 7. Conclusion - Bibliographie.ABSTRACT: The invocation of the people, the constitution and the rights occupies an important place in the public discourse of the Church of Greece. Its constitutional discourse exhibits two main characteristics. Firstly, it is a populist discourse. The church talks in the name of “its” people, which it identifies with the Greek nation, and as the voice of the people’s will against its rulers. Moreover, it is a rights-laden discourse. The church talks as the protector of the rights of the majority, which it identifies with the rights of its believers. Its constitutional discourse and practice shows that the church manages to exploit the institutions, achievements and discourses of modernity, if only for the promotion of apparently pre-modern ends: the preservation of its privileges against the other religions; the prolongation of its role in the public sphere; its reproduction as an ideological mechanism of the nation-state.

Socio-logical analysis of the constitutional discourse of Ecuador: as a comparison with the Mexican and Brazilian discourse

La propuesta es hacer un análisis crítico del discurso del derecho constitucional de Ecuador después de la Constitución del 2008 y, haciendo la comparación con el mismo discurso en Mexico y Brasil, verificar cómo los procesos políticos recientes en Ecuador han influenciado el nuevo discurso constitucional. El objetivo es buscar las diferencias y similitudes con lo que es el discurso constitucional tradicional latinoamericano, en especial en países como Brasil y México que, en nuestra hipótesis, revelan la ideología capitalista. Considerando los procesos políticos del empiezo del siglo XXI en Ecuador y su resultado, cabe entonces hacer un análisis más apurado, en ese caso, un análisis sociosemiológico del discurso constitucional, que lleve a pensar en el grado de hegemonía del grupo en el poder.

Power & Surveillant Gaze in Howard Barker’s The Gaoler’s Ache

One of the goals of Howard Barker’s Theatre of Catastrophe is to challenge conventional view of historical events and writing of history. Barker’s historical approach is to first identify the repressive power institutions and their destructive effects on the lives of characters, then take up an uncompromising stance against the discourse of authority that tries to construct history according to its ends and attitudes. The Gaoler’s Ache (1998) is a play by which Barker represents the post-Revolutionary France and the exercise of disciplinary mechanism of power in a society that by means of surveillance and domination over the body, the revolutionaries cast off the monarchy and make the imprisoned queen an abject, an object of gaze and disgrace. Yet the abject queen by expressing her sexuality openly attempts to subvert the patriarchal and authoritarian society of the revolutionary State. In this respect the researchers, by using Foucauldian analysis and close reading, explore the way in which Barker makes use of the two notions of surveillance and abjection coined by the French thinkers Foucault and Kristeva respectively to stage how under the pressure of history and its constitutive discourses modes of resistance such as sexual self-making are anticipated.

Unveiling the Meaning of Social Justice in Colombia

Through the presentation of the history of social justice in global constitutional discourse, this article aims to demonstrate that, although in Colombia there is not a constitutionalized purpose or principle of social justice, as in other countries, the modern notion of distributive justice, also called social justice today, is implicit in the Constitution of 1991 because it enshrined as mandatory rules the three main elements of its meaning at the time of its promulgation: the principle of social rule of law, the principle of human dignity and the right to a material equality. Thus, in Colombia social justice must not be understood in the Aristotelian sense of distributive justice but in accordance with these three elements, and can only be achieved if they are fulfilled.

Telecollaboration: foreign language teachers (re)defining their role

This study uses mixed methodology adapted from Nexus Analysis (Scollon & Wong Scollon, 2004) to analyse the development of in-service and pre-service foreign language teacher identity and their perception of their roles with a potential normalisation of personal digital devices (Bax, 2003) and telecollaboration (O'Dowd, 2009) in the classroom. Diverse institutional, personal, professional and informal discourses were traced to determine a nexus of practice with its constitutive discourses in place, interaction orders and historical bodies. Transgressive, conservative or transformative uses of technology or practices were noted. In an attempt to challenge current visions of possible selves (Kubanyiova, 2009), the teachers were asked to imagine alternative scenarios of technology integration and telecollaboration. Findings suggest that teacher identity results from a complex interplay of institutional, professional, and informal discourses which may be both obstacles and bridges to pedagogical transformation. Confronted by a globally connected classroom, these teachers experience difficulties to redefine their roles and to envisage a foreign language curriculum which integrates new unfamiliar literacies and skills. Telecollaboration, we suggest, should be considered in the context of a digitally mediated networked cultural revolution and may be used as a means to leverage a profound transformation of education.

European perspectives on constitutional pluralism(s): an ontological roadmap

ABSTRACTConstitutional pluralism has become a pivotal heuristic in framing and evaluating the interaction between different modes of legal authority within and beyond the state. This paper explores the legal ontologies and normative aspirations from which these transnational constitutional imaginaries emerge. An inquiry into the constitutional paradigms of MacCormick, Maduro and Kumm reveals three distinct ontologies: law, respectively, as (i) an institutional; (ii) a relational; and (iii) a meta-normative phenomenon. This ontological perspective elucidates a shift in transnational constitutional discourse: from its focus on pluralism and heterarchy (the ‘pluralization of constitutionalism’), the paradigm gave rise to a rationalist renaissance of monism under meta-constitutional principles (the ‘constitutionalization of pluralism’). These different templates translate the jurisprudential dichotomy between positivism and normative legal theory to a transnational language, and articulate opposing visions of global governance. The transnational constitutional imaginary, I conclude, fails to accommodate visions of law as a space for democratic contestation or heterodox politics.

Konstytucjonalizm wobec „zemsty postmodernizmu”

CONSTITUTIONALISM AND THE „REVENGE OF POSTMODERNISM”The main purpose of this article is to discuss the current situation of constitutional discourse as aresult of „Revenge of postmodernism”. This „Revenge” shows itself in taking over the methods of the leftist critique of democratic institutions by the radical right. This „Barbarization” of subtle methods of left-wing criticism leads to far-reaching consequences unforeseen by its founding fathers — Michel Foucault, Jacques Derrida or Judith Butler. The author, using various theories formulated by Chantal Mouffe, Ernesto Laclau and Artur Kozak, seeks to explain this phenomenon and to show its implications for the future evolution of the constitutional discourse.

The History of the Integration Through Law Project: Creating the Academic Expression of a Constitutional Legal Vision for Europe

The history of the “Integration through Law” (ITL) project, conducted by Mauro Cappelletti at the European University Institute in the late 1970s and 1980s, unfolded in this Article, provides clarity on the nature of the power-knowledge nexus in European law, as it pulls the curtain on the close collaboration between academia and the Community institutions in the ITL project. It demonstrates that the ITL was an academic expression of a constitutional vision, which had flourished in the Commission and the European Court of Justice (ECJ) for decades, but had never truly been adopted in the emerging academic discipline of European law. Alongside the studies of Eric Stein, the ITL project was the impetus behind the constitutional discourse in academia turning into a paradigm in the 1980s, but the ITL project had an unparalleled impact. Firstly, because of the scholarly environment at the European University Institute (EUI), and secondly, because of the notion of “Integration through Law,” which has proved to be an extremely powerful concept, providing a field of scholars, law professors, civil servants from the Community institutions, and ECJ judges with a flattering self-image and a raison d'être expressed in three little words.

The Functions of Constitutional Identity Performed in the Context of Constitutionalization of the EU Order and Europeanization of the Legal Orders of EU Member States

Abstract This article provides an analysis of the functions performed by constitutional identity in constitutional discourses of both the EU and its Member States, in the context of emerging post-Westphalian and supranational constitutionalism. The analysis tries to demonstrate that constitutional identity may serve as one of the key normative ideologies, legitimation strategies and ordering schemes of EU constitutionalism. It reasserts through functional analysis the suitability of constitutional identity for organizing and explaining multiple constitutional orders in a non-hierarchical and inclusive way. The article is based on a socio-legal approach, deliberately avoiding the predominant legal realist and legal positivist discourses. This is due to the fact that a functional analysis presupposes admitting the existence of ideal, legal and socio-legal dimensions of constitutional concepts and institutions and the taking into account of social implications produced by their functioning. The article deliberately takes a constitutionalist stance on the EU and the EU integration. It is focused on the contribution of constitutional identity for the further constitutionalization of the EU from a socio-political and constitutionalist perspective.

The Multinational State That Wasn’t: The Constitutional Definition of Romania as a National State

Abstract This article looks at the constitutional label of Romania as a ‘national state’ and the constitutional discourse surrounding it. It argues that this label is unavoidably linked to a project of constitutional nationalism. The article examines the origins of the provision enshrining this state characteristic, as well as the eternity clause declaring it unamendable, so as to reconstruct the genealogy of the idea of the national state in Romania. The article traces the origins of the concept to early-twentieth century nation-building discourse but links its current incarnation to the distinctive type of nationalism promoted in late communist and early post-communist Romania and its fear of the Hungarian ‘other’. This fear seeped into debates in the 1990–1991 constituent assembly debating the new constitution, which proceeded to disregard calls for a more pluralist definition of the state and clearer constitutional protection for national minorities. While some of these choices were revisited during the 2003 revision of the constitution, the fundamental law retains its emphasis on the national state. To this day, Article 1 (1) continues to be contested, especially by representatives of the Hungarian community. At the same time, it is invoked and creates confusion every time administrative territorial reorganisation is entertained. The article argues that greater clarity is required in understanding the concept and operation of the national state provision, as well as openness to an inclusive national dialogue surrounding this constitutional unsettlement. Only by moving the constitutional discourse beyond the highly politicised debates of years past, and the ‘us versus them’ mentality informing them, can Romanian constitutionalism show a maturity in keeping with its recent 25-year anniversary.

Writing Women in Northeast China: Melancholic Narrative in Mei Niang’s Novellas

Mei Niang (1920–2013), the pen name of Sun Jiarui, is a female fiction writer, translator, and editor of Funu zazhi (Ladies’ journal). In the semi-colonial Northeast China, Mei Niang’s exploration of melancholic narratives shore up manifold levels of socio-historical discourses that are constructive of women’s subjectivity. Melancholic narrative functions as an inverted mirror of both the author’s cultural displacement from her diasporic experience, and her portrayal of colonial domination of local elites by the Japanese in Northeast China. Also, the author’s depiction of feminine melancholia revokes the modernist ideology of love and its constitutive male-centered discourses, dismantles the social disenfranchisement of women by feudal authority, social prejudices, and the eroding urban materialism. Stylistically, Mei Niang’s second-person texts reinforce the feminine authority in enunciation, and by articulating women’s emotions and afflictions, transmogrify the melancholic narrative into a mode of self-narration and self-empowerment.

But is it speech? Making critical sense of the dominant constitutional discourse on pornography, morality and harm under the pervasive influence of United States first amendment jurisprudence

Under the pervasive influence of United States First Amendment jurisprudence, adult gender-specific sexually explicit (or “pornographic”) material is conceptualized, and thus protected in the “marketplace of ideas”, as a particular mode of expression; to be viewed as part of the fabric of an open, free and democratic society. The values which free expression are seen to promote centre upon the advancement of political debate and promotion of personal self-fulfilment and autonomy.
 
 Attempts to conceptualise sexually explicit material within a gender-specific human rights framework present distinct challenges which, in a patriarchal legal and political design, appear to be near insurmountable. These challenges seem to be related to the enduring impact of the common law conception of obscenity (with its strong moralistic overtones) on the jurisprudence of the United States Supreme Court, coupled with a subjective libertarian-inspired test, and the Supreme Court’s general reluctance (also echoed by the South African Constitutional Court) to consider a gender-specific conception of harm emanating from feminist arguments premised upon women’s constitutional interests in human dignity, equality and bodily integrity. 
 
 The social revolution of the 1960s, coupled with the women’s liberation movement, called for a distinct departure from the traditional conception of sexually explicit material as a mode of constitutionally defendable free speech and expression, a conception which unavoidably calls for a moralistic approach, separating acceptable forms of expression from those not deemed worthy of (constitutional) protection (termed “obscenity”, specifically created to satisfy the “prurient interest”). 
 
 The Supreme Court’s obscenity jurisprudence is characterised by two key features. First, the court subscribes to an abstract concept of free speech, which proceeds from the assumption that all speech is of equal value, and thereby surmises that “non-obscene” sexually explicit material has social value, as do esteemed works of literature and art. Secondly, the court assumes that all individuals have equal access to the means of expression and dissemination of ideas and thus fails to acknowledge substantive (and gendered) structural inequalities.
 
 A closer inspection reveals that the Supreme Court’s justification of why freedom of expression is such a fundamental freedom in a constitutional democracy (and the reason that “non-obscene” sexually explicit material consequently enjoys constitutional protection) is highly suspect, both intellectually and philosophically. And yet the South African Constitutional Court has explicitly recognised the same philosophical justification as the basis for free speech and expression. The Constitutional Court has, in fact, both supported and emphasised the idea that freedom of expression stands central to the concepts of democracy and political transformation through participation, and has expressly confirmed the association between freedom of expression and the political rights safeguarded under the Bill of Rights. Moreover, the Constitutional Court has also endorsed the conception of adult gender-specific sexually explicit material as a form of free expression.
 
 And yet by embracing a moralistic, libertarian model of free expression, the very ideal of a free, democratic and equal society, one in which women can live secure from the threat of harm, is put at risk. A moralistic, libertarian model is simply not capable of conceptualising sexually explicit material as a possible violation of women’s fundamental interests in equality, dignity and physical integrity.
 
 This article has a two-fold objective. The first is to critically examine the dominant discourse on adult gender-specific sexually explicit material emanating from United States jurisprudence (and its resonance in South African constitutional thought), and secondly, to assess whether this particular conception is sensitive to the possible constitutional harm which may result from an abstract liberal-inspired accommodation of sexually explicit material in an imagined free and open democratic society, such as the one presented by the South African legal and constitutional contexts.

Politics of Contradictory Constitutional Discourse During the Year of 1898

한국의 근대 전환기는 전통과 외래문명이 충돌하고 지식과 문화를 상호 전파하는 접촉의 시대였다. 문명개화론의 세례를 받은 독립협회 지식인들은 이른바 문명국의 정치체제를 기획·구축하기 위해 서양의 정치체제를 수용하였다. 그리고 그 작업은 ‘입헌’과 ‘민권’에 강조점이 두어졌다. 본 연구에서는 ‘문명담론’과 ‘절대군주론’이라는 키워드로 1898년도 독립협회운동과 ‘제국의 개혁’에 대해 살펴보았다. 필자는 ‘문명담론’이라는 시각으로 120여년 독립협회의 정치담론과 입헌정체, 그리고 그에 대한 대항담론으로 절대군주제론을 분석하였다. 독립협회 지식인들은 서양인들이 지적한 조선정치의 여러 문제점들에 대해 공감하였고, 그들과 동일한 문명담론에 의거하여 정치현실을 분석하였다. 그 결과 서양인들이 조선을 표상하는 다양한 언표들, ‘무능과 부패의 정부’, ‘전제왕권’, ‘수탈을 일삼는 지배층’, ‘절대 빈곤에 처해 있는 백성들’ 등이 그대로 개화파지식인들에게 전이되어 재생산되었다. 이제 조선을 구하는 길은 ‘입헌’과 ‘민권’으로 정리되었다. 서울을 뜨겁게 달구었던 1898년도 ‘제국의 개혁’은 바로 이 두 가지 가치를 실현하고자 하는 독립협회와 군주권을 옹호하고자 한 집권층 간의 대결이었다. 물론 양자 모두 ‘부국강병한 독립국가’를 목표로 하고 있었지만, 그것을 실현할 수 있는 정치체제와 담론, 실현 주체와 역량, 속도에서 차이가 있었다. 고종의 궁내부고문 러젠드르(C.R. LeGendre)는 과거 일본에서 체험했던 자유민권운동의 현실과 파장을 잘 알고 있었다. 그는 윤치호 등 독립협회 회원들을 급진적으로 나가지 못하게 설득하거나 ‘자문기구’로서의 중추원 개편안 등을 만들어 타협을 유도하였다. 또한 서구 절대군주제의 장점 등을 논리정연에게 주장하여 고종의 황제권을 수호하는데 일조하고 있었다. 1898년도 독립협회와 정부 간의 대결은 ‘상원’ 대 ‘자문기구’로 정리할 수 있으며, 협상이 실패하고, 군주권이 훼손당할 처지에 놓이자 고종은 무력 탄압이라는 강수를 두었다. 고종이 입헌과 민권을 주장하는 독립협회를 탄압할 수 있었던 것은 절대군주제가 ‘야만’과 ‘후진’의 상징이 아니라 오히려 문명개화와 발전을 추동할 수 있는 효율적인 정치체제이자 우리 정치문화에 적합한 것, 민의 재산과 자유가 더 잘 보장된다는 것이라는 논리를 러젠드르가 제공했기 때문이었다. 1898년 ‘제국의 개혁’은 그렇게 끝이 났다. 이후 중추원은 황제와 의정부의 지휘명령을 받는 자문기구로 격하되었다. 정부 측의 제안인 ‘자문기구’안이 결국 승리한 것이었다.

Good administration “around the track” of the Portuguese and the EU constitutional discourses – “Winds, to entertain our minds”…?

To mark 40 years of the Portuguese constitutional project and the 30 years of its interaction with the European (also constitutional) project, the text seeks, through the theme of good administration, to give practicality to the theory of inter-constitutionality – as it is a proposal construed by Portuguese doctrine, which seeks to explain the relationship between the EU legal order and the constitutional legal orders of the Member States. The hermeneutic exercise undertaken aims to extract from the Portuguese constitutional text, through the cross-interpretation of Article 268 CRP with Article 41 CFREU, elements for the construction of a concept of good administration relevant in the Portuguese constitutional legal order that, without prejudice to other dimensions/ projections, is also open to the subjective/protective dimension of good administration highlighted in the EU constitutional legal order. Assuming the European integration process is a dynamic factor of constitutional development, the present analysis regards the systemic differences in the field of good administration as inviting discursive conciliation with an aim to articulate a unity of meaning in the matter of good administration.

Dislocations on understanding the rule of law

This paper analyses the problems of the rule of law in today’s legal and constitutional discourse. The criticisms the rule of law principle is subjected to, which contribute to its downgrading and to changes in the legal standards that had been progressively achieved, are especially examined, namely, the so-called hyper-protection of fundamental rights and the difficult harmonization with the idea of efficiency. Furthermore, the author identifies the de facto conditions that accentuate the identified problems, such as the systemic deficit of the European Union and the jurisdictional deficit that has become evident since the economic crisis.

The Constitution as an Objective Order of Values

This article examines the interpretation of constitutions in terms of underlying values, focusing on the theory of the German Federal Constitutional Court that the German Basic Law incorporates an ‘objective order of values’. The article describes the Court’s theory as well as its reception by constitutional scholarship. It also provides a critical evaluation. The article argues that the theory – although understandable in light of Germany’s particular historical and political circumstances – is both unnecessary and undesirable. The theory is unnecessary because the most salient implications of the Court’s assumption of the existence of an objective value order – positive state obligations, third party effect of basic rights and entrenchment of the core of the constitution – can also be based on provisions of the written constitution. The theory is undesirable because it has the potential to undermine the democratic nature of the constitution and could lead to the moralisation of constitutional law and constitutional discourse. It is not advisable, therefore, to transplant the Court’s theory to other jurisdictions.

A construção do discurso argumentativo em perspectiva foucaultiana

Este artigo recupera o esquema argumentativo descrito pela Nova Retórica para discutir como a organização dos raciocínios por ligação e por dissociação podem ser analisados sob os estudos de Foucault (2008 [1969], 2004 [1971]) acerca da constituição do discurso na sociedade, com o intuito de promover uma reflexão acerca das possibilidades de análise de produções discentes no ensino médio e de organização do ensino da argumentação na educação básica. Por meio de uma metodologia interpretativista (ERICKSON, 1986), pretendemos compreender os movimentos discursivos depreendidos de produções realizadas durante o Exame Nacional do Ensino Médio, em 2004, e indicar alternativas para desenvolver práticas pedagógicas comprometidas com a formação de um sujeito crítico. As análises ilustrativas apontam que os estudantes elaboram reflexões autorizadas por certa formação discursiva, o que exige a delimitação de uma identidade e a elaboração de argumentos alinhados às escolhas políticas assumidas no discurso. Assim, evidencia-se a necessidade de diversificar os processos de ensino e aprendizagem quando se quer ampliar as possibilidades de o sujeito assumir posicionamentos relativamente a outras posições.

Gender in Constitutional Discourses on Abortion

In as far as the regulation of abortion deals with issues like how and to what extent can women’s capacity to gestate and give birth be controlled, and by whom, any discourse on abortion necessarily reflects a construction of women’s citizenship, hence of gender. The question is, which is the ruling construction? Behind non-legal discourses that focus on human life and public power’s duty to protect it, there lies the modern construction of gender that articulates women’s passive citizenship within the state. This is also true of confrontational discourses that construct women and the foetus as potential adversaries. Both discourses are traditional in continental Europe. Yet, they are being superseded by an understanding of abortion from the perspective of women’s active citizenship. Spanish Organic Act 2/2010 stands as part of this trend. Not surprisingly, governmental attempts to reinstate women’s passive citizenship in this matter have met stark resistance.

From Marx to Market: The Debates on the Economic System in Vietnam’s Revised Constitution

AbstractThis article analyzes the socio-economic and political contexts behind the2013 Constitution of the Socialist Republic of Vietnam(2013 Constitution), in which demands for deeper institutional reform emerged in Vietnam, and explains the constitutional discourse within Vietnam as to its economic order. Diverse forces and platforms within Vietnam’s party-state and beyond have contributed to the exchange of ideas and values on the economic order. As a result of this public discourse, the provisions on the economic order of the 2013 Constitution are ideological compromises, reflecting the contradicting views within the party-state and society in Vietnam on the role of the market, private property, and the freedom to conduct business. The 2013 Constitution has taken a step towards a free market economy by recognizing the decisive role of the market in the national economy. It emphasizes the importance of the private sector and promises that it will be treated fairly among all other economic sectors. From this perspective, the 2013 Constitution contains the seeds of future political and legal guarantees which could protect individual liberties. However, in line with the socialist ideology adopted by its predecessors, the 2013 Constitution reaffirms the dominance of the public sector and the leading role of state-owned enterprises, and preserves the ambiguous “ownership of the entire Vietnamese people of land and natural resources”. Due to this ambiguity, the 2013 Constitution fails to lay down the foundations for far-reaching comprehensive institutional reforms that Vietnam urgently requires.

Breaking the Isolation? Italian Perspectives on the Dialogue Between the European Court of Justice and Constitutional Courts

This article focuses on the relationships between the Italian Constitutional Court (ICC) and the Court of Justice of the European Union (ECJ) when the necessity of managing policies affecting delicate constitutional issues is at stake. The mechanisms which govern the use by national courts and particularly constitutional courts of the preliminary reference are put under scrutiny. The author claims that for the dialogue between the two courts to work is important to review the legal premises on which the involvement of a constitutional court in matters of European Union (EU) law is based. In Italy in principle only when EU law lacks direct effect would there be room for the ICC to intervene in the process of adaptation of the domestic legal system to the European, irrespective of the matter at stake. In this way the role of a constitutional court is barely distinguishable from regular courts. The article purports that this situation is unsatisfactory from a normative point of view according to which constitutional courts should take part – using preliminary reference to the ECJ – in a broader European constitutional discourse and that a concept of ‘sensitive constitutional issues’ should instead inspire the mechanism by which constitutional courts deal with the area covered by Article 267 TFEU.