Modern Constitutionalism Research Articles

The Legal Politics of Formality and Substance of the Medina Constitution

The Medina Charter is considered the first constitution in the world because it has almost the same content as the modern constitution. So the study of the discussion of the history of the establishment of the Medina Charter, the politics of law, and the content of the material content is very necessary to be examined to be a material renewal of the modern constitution today. This research aims to be a comparative material with modern constitutions and as a material for constitutional reform in any country. This research is normative research with historical and comparative approaches. The data source of this research uses a literature study by tracing books and journals. While the data analysis method uses content analysis. The Medina Charter was formed by the Prophet Muhammad SAW. when he came to Medina to create peace and form a force to protect the city of Medina from outside attacks. The Medina Charter in the concept of Philippe Nonet and Philip Selznick's legal criteria includes responsive law because it contains characteristics, namely democratic making, equality in law, no partiality, made for public needs, and shared morality realized for the common good. The Medina Charter is said to be the first modern constitution in the world because its content is in line with modern constitutions, namely the protection of human rights, duties and obligations of citizens, politics of peace and unity, material provisions of the law, and state institutions.

Constitutionalization in the context of modern constitutionalism: theoretical and methodological analysis

The article examines constitutionalization as an important category of constitutional law. The author explores various approaches to understanding this concept, its historical development, and modern interpretations. The views of domestic and foreign scholars on the essence, characteristics, and forms of manifestation of constitutionalization are analyzed. Special attention is paid to the relationship between the concepts of “constitutional order”, “constitutionalism”, and “constitutionalization”. The author emphasizes that constitutionalization is a dynamic process that reflects the practical aspect of constitutionalism and has a global character. The article examines various aspects of constitutionalization, including its impact on the legal system, the expansion of constitutional regulation, and the subordination of government activities to constitutional principles. The author analyzes the role of constitutionalization in ensuring the unity of the legal system and guaranteeing constitutional rights and freedoms. Special attention is paid to the process of constitutionalization in the context of developing a democratic state governed by the rule of law. Based on the analysis of scientific sources, the author formulates their own definition of constitutionalization as a multifaceted process that includes the formal establishment of rights in the constitution, subordination of government activities to constitutional principles, expansion of constitutional regulation of various spheres of public life, and the influence of constitutional norms on the development of the legal system. The conclusions emphasize the importance of further research on constitutionalization for improving constitutional and legal regulation and ensuring the effective operation of constitutional norms in modern society.

Reconceptualizing Constitutionalism in the AI Run Algorithmic Society

Abstract This Article is dedicated to what is arguably one of the most significant tests to which constitutionalism has been subject to in recent times. It examines the theoretical and practical challenges to constitutionalism arising from the profound technological changes under the influence of artificial intelligence (AI) in our emerging algorithmic society. The unprecedented rapid development of AI technology has not only rendered conventional theories of modern constitutionalism obsolete, but it has also created an epistemic gap in constitutional theory. As a result, there is a clear need for a new, compelling constitutional theory that adequately accounts for the scale of technological change by accurately capturing it, engaging with it, and ultimately, responding to it in a conceptually and normatively convincing way.

Digital sovereignty: conceptual challenges and constitutional implications

This article examines how national states and integrative unions such as the European Union employ the concept of digital sovereignty in their policy discourse. It begins with the premise that contemporary digital policy of these entities is intricately linked to the idea of digital sovereignty. The study analyzes the factors that have led national states and the European Union to enter a new phase of modern constitutionalism - digital constitutionalism. Modern European constitutionalism has accumulated experience in various social spheres, as evidenced by developments such as economic constitutionalism. In the digital era, it raises and attempts to answer questions about how digital constitutionalism can overcome the limitations of traditional constitutional thinking, particularly its focus on state-legal and political phenomena. The article explores the extent to which the generalization of purely state constitutional principles can advance in the digital age. The paper emphasizes that digital constitutionalism is a convenient concept for explaining the phenomenon of constitutional resistance to challenges created by digital technologies. It notes that existing foreign, and especially Ukrainian, legal scholarship has not yet formed a clear and unified vision of this concept. This article provides a literature review on digital constitutionalism and offers an analysis of the theoretical frameworks surrounding the concept. It posits that digital constitutionalism is an ideology that adapts the values of modern constitutionalism to the demands of the digital age. Currently, digital constitutionalism does not provide normative answers to the challenges of digital technologies, but rather presents a set of principles and values that inform and guide them. The article argues that Internet governance is evolving towards fragmentation, polarization, and hybridization, which contribute to the development of an architecture of freedom and power in the digital environment. The study aims to identify constitutionally significant threats associated with digitalization and allows for the development of constitutional counterstrategies.

The Land of the Moderns: The Sense of Latour’s Pragmatism

In his major work, An Inquiry into the Modes of Existence, Bruno Latour sets out to establish an anthropology of the Moderns based on the plurality of the modes of existence that make up their world. What about the beings of science, politics, art, religion, economics and so on? How do these beings relate to one another, and how do they constitute the specific forms of thought of the Moderns? Taking as its starting point one of the central notions of modern thought, namely the notion of matter, this article seeks to identify the way in which Latour shows its importance in the constitution of modern thought. It examines its topicality through the double prism of an ecological and decolonial approach that animates Latour’s work, and which this article proposes to revisit.

Memoria poietica. Gnoseologia e paragone delle arti tra retorica e musica

The article intends to explore the hypothesis that there is not only a reproductive dimension to memory but also concerns the terrain of poiesis. Between memory and creativity, there seems to be a point at which the crossing of the perception in the immanent time changes direction and becomes a creative attitude. In this regard, we investigate a particularly significant period in the history of Western thought, and in the constitution of modernity, namely the passage from the Middle Ages to the Renaissance. In our path, we intend to emphasise, on the one hand, the permanence of the problem of a memory that opens up to poiesis; on the other, how in this epochal passage significant variations are made in the way of understanding poietic memory and in the way in which the criterion that organises pre-existing data functions for the construction of the work. A path through the reflections of Augustine, Bonaventure, Leon Battista Alberti, and Leonardo da Vinci is proposed to address this theme.

The role of the principle of proportionality in the development of modern constitutionalism

The article examines the formal and substantive interrelationship between the principle of proportionality and modern constitutionalism, elucidating the essence of the phenomenon of constitutionalism through its characteristics and the role of the principle of proportionality in its establishment and development. Based on the works of domestic and foreign researchers on constitutionalism, it has been assumed that the key value and feature of modern constitutionalism is the limitation of state arbitrariness, the inadmissibility of unjustified interference (restriction) of human rights and freedoms, and the partnership relations between the individual and the state. This, in turn, must be guaranteed, ensured, measured, and evaluated by specific legal instruments, one of the most important and applicable of which is the principle of proportionality. The impact of the principle of proportionality on the development of constitutionalism is analyzed through its function and purpose, demonstrating the direct dependence of the exercise of state power based on the constitution and in accordance with the principle of the rule of law on the adherence to the principle of proportionality by public administration. The provision that real constitutionalism can only be discussed when all its values are considered and protected in the process of law-making and law enforcement, not at an abstract-formal level, but in each specific case of interference (restriction) of human rights, subjected to a consistent and structured proportionality test, has received further development. It is concluded that the principle of proportionality plays a key role in the development of modern constitutionalism. Considering the contemporary challenges faced by human rights and freedoms, it has been concluded that the principle of proportionality is the safeguard intended to protect human rights and freedoms by addressing questions regarding the legitimate aim of certain state actions, the necessity of such actions, the adequacy and relevance of the means chosen by the state to achieve such an aim, the balance between the potential benefit for public interests and the extent of the restriction of rights, etc., which is a crucial factor not only in ensuring but also in developing modern constitutionalism.

Ideological Constitutionalism

A renewed interest in the concept of ideology is evident in recent constitutional theory. Ideology has featured prominently not only in restatements of traditional Marxist positions and attempted retrievals of the material conception of the constitution, but also in democratic critiques of liberal constitutionalism and theories of constitutional identity. The intention of this article is twofold. Firstly, the article defends the explanatory power of a conception of constitutional ideology that is centred on political domination and the ‘universalisation’ of contingent power relations, rather than more diffuse notions like the symbolic construction of reality or worldviews. Secondly, the article considers distinctive ideological dimensions of modern constitutionalism. An analysis of these dimensions, I contend, confirms modern constitutionalism's strong ideological ‘potential’.

Democratic Revisability and the Legitimacy of Constitutional Entrenchments: A Content-Specific Approach

AbstractAs modern constitutions bind democratic legislation to entrenched norms, they are in tension with the democratic idea that laws should be open to revision by new majorities. Against a widespread view, constitutional norms cannot be considered to be “more democratic” than ordinary laws due to specific qualities of the constitution-making process. Rather, the higher-level law of constitutions can fulfil a specific function as it may provide standards that ensure that laws made by the majority can be justified to everyone. On that basis, I evaluate for different types of constitutional norms whether there are good reasons for constraining legislation. In particular, entrenching cultural traditions and economic policy is more problematic than guarantees of the democratic process and rights ensuring respect for individuals. In sum, a two-tiered law-making system has important values, but people engaging in constitution-making and constitutional interpretation should be wary that the constitutional form is not abused.

PROBLEMS OF REALIZING THE RIGHTS AND FREEDOMS OF CERTAIN CATEGORIES OF CITIZENS

It is indicated that the realization of rights and freedoms is the practical implementation by citizens and other participants of social life of the demands provided for by the constitutional norms to satisfy requests and needs or obtain the necessary material and spiritual benefits in the manner established by law. Therefore, the mechanism for the realization of rights and freedoms is, first of all, a complex procedural and legal order for the realization of rights, freedoms and obligations, in which the law establishes a certain algorithmic nature of the order of implementation, its procedure: the sequence of actions of the bearer of rights and freedoms and the obliged subjects rights, as well as the content of these actions, the implementation of which is aimed at the most complete and accurate use of the right or freedom. In the opinion of the authors, since the factors influencing the consolidation of the value guidelines of the constitutional system are usually found at each specific stage of the development of the state, and which certainly affect the content of the principles in general, and the principles of the constitutional system in particular, the above list should be supplemented, at least one is the level of ensuring national security of the state. Considering the above, according to the authors, it would be quite logical to take advantage of the situation of potential reform of the fundamental principles of the constitutional system. Within the scope of the research, taking into account the issue of violation of the state sovereignty of our country, the modernized Constitution of Ukraine is intended to become a nationwide political and legal treaty and a fundamental law of national law. At the same time, the amended Constitution of Ukraine must ensure the proper implementation of all value guidelines of the constitutional system: people’s sovereignty, human rights, the rule of law in relation to the universal principles of modern constitutionalism - legality, proportionality, legal certainty, responsibility and subsidiarity in the legal provision of rights and freedoms person and citizen, the independence and impartiality of the court, the prohibition of the retroactive effect of the law, etc. (which are now doctrinally considered as components of the principle of the rule of law).

A tensão entre constitucionalismo e democracia: o desafio da estabilidade constitucional no pluralismo democrático

This article analyzes, from a hypothetical-deductive methodology, through the qualitative approach method, the tension between constitutionalism and democracy based on the search for stability throughout the history of constitutionalism, from the ancients (Greeks and Romans), in which consensus meant the search for the uniqueness of the social body and the detachment of individual interests, then in modern constitutionalism through the search for the rational consensus of citizens. And finally, in today’s plural democratic societies, the paradox between the logic of consensus, of identity brought by democracy and the logic of difference, of dissent between antagonistic, contradictory and yet reasonable conceptions brought by pluralism, makes the search for stability even more challenging. How to reconcile this permanent tension between these two logics and still be able to order, in an integral way, ideals and values in a democratic regime that can advance from generation to generation? What can be concluded is the real consensus that implies a truly democratic and fair system and that does not extinguish the democratic engine represented by dissent makes stability a still utopian ideal, especially if we understand constitutionalism as a project and democracy as an open and unfinished process.

The principle of the rule of law in the system of constitutional principles for the implementation of the right to a safe environment

The scientific article examines the importance of the principle of the rule of law in the system of constitutional principles for the implementation of the right to a safe environment. It was found that constitutional principles are a type of legal principles and there is also no unity among scientists to understand them, which cannot contribute to the unequivocal application of law. The innovative approach and proposed concepts of «ecological constitutionalism» are analyzed, which at the same time shows the complexity of the issue of environmental protection, the combination of the principles of constitutional, environmental and international law. It further developed the proposition that every modern constitution should be based on a fundamental environmental commitment to present and future generations and thereby protect key societal values from certain political turbulence, government policy change that favors short-term economic or political advantages over long-term environmental or economic sustainability. It is the constitutional norms that must guarantee the sustainability of development, as well as stability from political changes in the course regarding the protection of basic human rights and the protection of a safe environment, without which it is not possible to create the proper conditions for a decent human life and social development. The concepts of «constitutional principles», «principles of environmental law» and «rule of law» were studied. Various approaches among scientists to understanding the principle of the rule of law have been clarified. Those decisions of the Constitutional Court of Ukraine that allow personifying and objectifying the principle of the rule of law, as well as developing the content of this principle, are analyzed. It was established that the Constitutional Court of Ukraine in its decisions meaningfully filled the principle of the rule of law, emphasized the non-identity of law and law, remarked on justice as a key element of law, which in combination with equality, legal certainty fills this concept. Our own approach to understanding the principle of the rule of law as the basis of the system of constitutional foundations for the realization of the right to a safe environment is substantiated.

Forgiveness and the Modern Constitution: Derrida’s Perjury & Pardon

Abstract The recently published two volumes of Derrida’s Perjury & Pardon seminars are interesting from a legal perspective, among others, because of Derrida’s comments there on the preamble and certain sections of the South African Constitution. The present article enquires specifically into the implications of Derrida’s analysis in the Perjury & Pardon seminars for constitutional interpretation, more specifically, by seeking answers to the question what it means to confess or to seek forgiveness for past crimes, as well as to refer to God in a constitution. With reference to Derrida’s seminars, it is contended that such a confession or request for forgiveness should be read as not only relating to determined crimes, but also to the unforgiveable crime of being-there, for existence. It is further contended that the reference to God in a constitution is to be read as pointing to what Derrida refers to as ‘the impossible’, that is, to impossible grace, unconditional forgiveness. In conclusion, it is contended that the modern constitution per definition includes such a confession or request for forgiveness, as well as a trace of the impossible, the latter which provides an indication of the scope of state responsibility.

Right to Privacy and Constitution: An In-Depth Analysis

This paper presents a detailed analysis of the relationship between the right to privacy and the Constitution, examining the theoretical foundations, contemporary challenges, and legal implications of this crucial union in the context of fundamental rights. Privacy, understood as the right to be left alone and to control personal information, has evolved as a cornerstone of democratic and progressive societies. We begin by exploring the roots of the right to privacy in legal and philosophical theories, highlighting how this concept has gained importance in safeguarding human dignity and individual freedom. It also discusses historical and social influences that have shaped the perception of privacy in the context of the formation of modern Constitutions. Subsequently, emerging challenges related to privacy in the digital age are examined. The increasing interconnectivity through information technologies and the proliferation of personal data have posed new challenges to privacy protection, necessitating a critical reevaluation of existing constitutional laws and guarantees. Tensions between the right to privacy and other societal needs, such as national security and crime prevention, are also explored in an attempt to identify a balance that can safeguard both interests. Furthermore, the paper addresses recent legislative and jurisprudential developments regarding the right to privacy, both at the national and international levels. The analysis focuses on crucial court decisions, privacy laws, and legislative debates that have shaped the current legal framework. Finally, potential future developments in the context of the right to privacy and the Constitution are explored, taking into account technological advances, ethical challenges, and emerging societal needs. The aim is to provide a comprehensive and in-depth understanding of how the right to privacy integrates and evolves within the constitutional framework, contributing to a critical understanding of an increasingly relevant topic in contemporary society. Received: 25 December 2023 / Accepted: 25 February 2024 / Published: 23 April 2024

The Slave Narrative and the Modern Constitution: Latourian Agency in The Interesting Narrative of the Life of Olaudah Equiano

This essay demonstrates that Bruno Latour’s work can shed light on an important genre of social and literary history: the slave narrative. Reading The Interesting Narrative of the Life of Olaudah Equiano, or Gustavus Vassa, the African. Written by Himself (1789) alongside Latour’s texts including We Have Never Been Modern (1991) and Reassembling the Social (2005), I argue that Equiano’s Interesting Narrative can be interpreted as a rejection of and corrective to what Latour calls the “modern constitution,” the idea of a divide between the human and the nonhuman, that served to justify European oppression of nonhumans both literal and merely legal and figurative. By demonstrating how Equiano, like Latour, highlights the agency of not only enslaved humans but also nonhuman entities, this reading suggests that the slave narrative is not only a political form but also potentially an ecological form.

“This Automaton of Flesh”: Mary Shelley’s The Last Man , the Paradox of the Moderns, and Romantic Ecohorror

This essay reads Mary Shelley’s The Last Man alongside Bruno Latour’s We Have Never Been Modern and his later work addressing the climate crisis, exploring how the novel instantiates and critiques the complex relationship between nature, culture, science, and politics that Latour refers to as the “modern Constitution.” As it dramatizes the tensions within Romantic-era sciences and the wider discourse of philosophical vitalism in Romanticism, The Last Man performs an extended meditation on materiality that prefigures Latour’s insistence that facing the future in a time of climate crisis depends upon letting go of the conception of nature inherited by the Moderns as an organizing cultural concept. I situate this reading within critical conversations about contemporary apocalyptic fiction and ecohorror in order to argue that the The Last Man —and by extension, Romanticism—offers opportunities to imagine how human and nonhuman forms of agency could work together to compose different stories about life in the Anthropocene.

South Sudan’s Transitional Constitution: the Making, Failure and Lessons

Abstract The period 2005 to 2011 has a special significance for the people of Sudan. It not only saw the emergence of South Sudan as an independent country, but it also marked the beginning of formal constitution-making in South Sudan’s tumultuous political history. Two important documents – the Interim Constitution 2005 and the Transitional Constitution 2011 – were enacted during this period. I discuss both documents in this paper. I find that the Transitional Constitution unnecessarily concentrates power in the president. I argue that in failing to constrain the president, the Transitional Constitution has failed the task of a modern constitution.

The Right to Education in the Modern Constitution: A Comparative Aspect

The Right to Education in the Modern Constitution: A Comparative Aspect

The Right to Education in the Modern Constitution: A Comparative Aspect

The Right to Education in the Modern Constitution: A Comparative Aspect

Javni poredak i nužni deo

Testamentary freedom is one of the basic pillars of inheritance law in any legal system. In Eurocontinental law, it is limited, inter alia, by the right of the heir to a statutory portion (forced heirship). On the other hand, Anglo-Saxon law does not recognize the forced heirship. In Europe, there is a tendency to narrow the circle of mandatory heirs. Testamentary freedom is guaranteed in modern Constitutions, while, on the other hand, it is disputed whether the right to inheritance, guaranteed by the Constitutions, also includes the right of heirs to a mandatory portion. In German law, which is based on the decision of the Federal Constitutional Court from 2005 the right to a forced heirship is considered as a part of public order, even as a part of international public order. On the contrary, in France and Hungary, in situations of crossborder inheritance, the right to a forced heirship does not belong to the domain of international public order. Considering the language and aim of Articles 58, 59 and 66 of the Constitution of the Republic of Serbia, it is difficult to argue that the heir’s right to a mandatory share is covered by the constitutional guarantees enshrined in Articles 59 and 66. On the contrary, Article 58, which guarantees peaceful enjoyment of property rights, and Article 23 (2), guarantee freedom of testamentary disposition. The same is the case with the European Convention on Human Rights, which guarantees freedom of testamentary disposition, but not the right to inherit. A foreign law that does not recognize the right to a forced heirship is not contrary to domestic public order. It is possible that the foreign law contains some kind of functional equivalent that aims to financially secure the mandatory heirs which is the case in Anglo-Saxon legal systems. The application of the lex fori fori allong with the application of the lex successionis is contrary to the principle of fairness in Private International Law. Also, it results in dépécage which is undesirable in PIL and runs counter to the principle of the unity of inheritance property. The application of foreign law governing the inheritance in the Serbian PIL could be limited only in exceptional cases. For example, when the foreign applicable law does not recognize any functional equivalent to a mandatory portion or when the foreign applicable law does not recognize the decedent’s minor children any claim to the inheritance property, so that they remain deprived of means necessary for life and, therefore, fall under the burden of state social assistance. Also, for the application of the part of lex fori, it would be necessary that the case of crossborder inheritance is closely related to domestic legal order. For example, that the mandatory heirs are citizens of Serbia with domicile in Serbia.