Constitutional Culture Research Articles

The Authoritarian Nature of Common Good Constitutionalism

Abstract How are we to evaluate the project of common good constitutionalism? This new movement, which dismisses positivism and liberalism, progressivism and originalism, aims to overturn the entire canon of modern political and constitutional theory. In its place, it aims to restore a classical tradition of natural law jurisprudence, which is said to have been lost over the last century of constitutional law and practice. In so doing it uses one of liberalism’s own juristic heroes, Ronald Dworkin, in order to free conservatism from the tethers of fidelity to constitutional text and the principle of popular sovereignty underwriting it. Common good constitutionalism’s intervention in the constitutional culture wars of the present is authoritarian not because of its opposition to liberalism, but because of its steadfast refusal of any link between constitutional authority and democracy.

NZYQ and constitutional culture

The political and social reaction to the High Court's decision in NZYQ is evidence of a deficit of constitutional culture in Australia: there has been a race to the bottom in public debate. This is against the background of the failed Voice referendum. Possible ways forward are discussed, and France is mentioned as counterpoint on the issue of constitutional culture.

The teaching of professor V.T. Kabyshev on constitutionalism. To the 85th anniversary of Vladimir T. Kabyshev, doctor of law, professor, honored scientist of the Russian Federation, honorary worker of higher education of Russia

The article is devoted to the 85th anniversary of the famous Russian legal scientist, Doctor of Law, Professor, Honored Scientist of the Russian Federation, Honorary Worker of higher Education of Russia Vladimir T. Kabyshev. Speaking about the work of Professor V. T. Kabyshev, the author of the article notes that among the scientific topics (Russian constitutionalism, the foundations of the constitutional system, human rights and freedoms, democracy, the implementation of the Constitution, the constitutional mechanism of power, etc.) that have become the object of his research, the doctrine of constitutionalism occupies a central place. The teachings of V. T. Kabyshev’s work on constitutionalism is focused on the formation of an adequate understanding of the role of the Constitution in modern society and the state, the formation of a constitutional culture of citizens and officials, and the optimization of the management process, which are a condition for the progress of public relations.

Конституционная культура как объект научного анализа

The article analyzes various general theoretical approach to study of the phenomenon of constitutional culture. The author shows that the integrative approach to the analysis of constitutional culture is the only approach that gives an opportunity to reveal its actual essential and conceptual characteristics and determine its place in the constitutional law space of present-day Russia. In the author’s opinion, abandonment of narrow legalistic and normativistic approaches offers a contemporary researcher valuable methodological tools to study the phenomenon of constitutional culture, its axiological potential, and understand the idea of constitutional law identity as the basis for constitutional sovereignty.

A Constitutional Culture: New England and the Struggle against Arbitrary Rule in the Restoration Empire

A Constitutional Culture: New England and the Struggle against Arbitrary Rule in the Restoration Empire

From Liberal Democracy to Illiberal Populist Autocracy: Possible Reasons for Hungary’s Autocratization

The paper looks for the main reasons of how was the Hungarian government of the Fidesz Party lead by Prime Minister Viktor Orbán able to within 13 years undermine the independent checks on their power so that it could convert what had looked like a stable but imperfect democracy into an autocracy? After listing the most obvious reasons the paper looks particularly at, how much is the way of a mostly elite-driven democratic transition using the tools of ‚legal constitutionalism‘and ‚undemocratic liberalism‘without real historical traditions of a liberal democratic constitutional culture and with the regionally determined value system is to blame. This also leads to the question, how to allocate the responsibility for the backsliding between the elites and the citizens, influenced and often manipulated by the leaders.

КОНСТИТУЦИОННАЯ КУЛЬТУРА РОССИЯН НА ЭТАПЕ ПЕРЕХОДА ОТ ЛИБЕРАЛИЗАЦИИ КОНСТИТУЦИОННО-ПРАВОВОГО ПРОСТРАНСТВА К ЗАЩИТЕ ТРАДИЦИОННЫХ ЦЕННОСТЕЙ

The purpose of the study is to analyze the state of modern constitutional culture in the era of changing political and ideological guidelines, the transition from a liberal-universal model of constitutional development to a nationally oriented one.The objectives of the study are the following: to determine the main characteristics of the state of constitutional culture in the era of excessive enthusiasm for universal liberal values at the end of the last century; analyze the main trends in the processes of constitutional and legal reform in the light of the ideas of protecting constitutional identity, ensuring constitutional sovereignty and protecting traditional values; consider the impact of the constitutional reform of 2020 on the qualitative change in the constitutional culture of Russians, its significance for determining the future paths of constitutional and legal development of Russia, and identify the positive and most controversial aspects of the reform. The work used general scientific, special scientific and special research methods. Based on the results of the study, the author concludes that today a steady trend has formed towards reforming the constitutional and legal space - the ideas of liberal universalization are opposed to the ideas of constitutional identity and the protection of traditional values. At one time, the new Russian Constitution was designed to take into account all the shortcomings of decades of socialist construction and act not as a document of a political-declaratory nature, but as a basis for the creation of a state and society of a fundamentally new type. According to the author, excessive passion for borrowed values of a universal nature has had the most negative impact on the state of the constitutional culture of Russians. However, even today it is obvious that a well-developed theoretical structure that would relatively accurately and legally definitely outline the main directions of further constitutional development, in line with the development of the idea of protecting traditional values, does not exist today, which is especially noticeable in the example of documents of a programmatic and political nature . The constitutional reform of 2020, according to the author, reflected new trends and approaches to the idea of ensuring constitutional identity and symbolized significant changes in constitutional culture, including at the level of ordinary consciousness of ordinary Russians who were directly involved in the process of constitutional reform. However, the author concludes that the constitutional reform is incomplete, which generally characterizes the state of domestic constitutional culture.

A Constitutional Culture: New England and the Struggle against Arbitrary Rule in the Restoration Empire by Adrian Chastain Weimer (review)

A Constitutional Culture: New England and the Struggle against Arbitrary Rule in the Restoration Empire by Adrian Chastain Weimer (review)

Obstacles to tackling illegal religious schools in the constitutional culture of England

Obstacles to tackling illegal religious schools in the constitutional culture of England

A Constitutional Culture: New England and the Struggle against Arbitrary Rule in the Restoration Empire by Adrian Chastain Weimer (review)

A Constitutional Culture: New England and the Struggle against Arbitrary Rule in the Restoration Empire by Adrian Chastain Weimer (review)

Global Constitutionalism and the Rise of Authoritarianism: A New Era of “Sad Resignation”?

ABSTRACT Global constitutionalism is a multifaceted discourse with the objective of building up global law by reconstructing international law and constitutional law. It promises much to better comprehend the black holes of globalisation, including its relationship to the rule of law. This discourse’ expansive scope necessitates questioning its relationship to ongoing discourses on the recent global rise of authoritarianism. However, global constitutionalism discourse is heavily shaped by normative theories that reflect limited, discrete and subjective views on the global order that fail to mirror intersubjective meanings of the central subjects of the discourse. This article will examine the relationship between global constitutionalism and authoritarianism beyond this framework and will introduce “global constitutional culture” as the factual background of the global constitutionalism discourse. In doing so, this paper will seek reconceptualization of the global constitutionalism discourse in view of multidimensional aspects thereof, including liberal and emancipatory claims attributed to it.

Gemeinsames Erbe, getrennter Aufbruch. Verfassung, Demokratie und Verfassungsgerichtbarkeit nach 1918

In Central Europe, the new democratic era of 1918/1920 began as the ʺwinnersʺ of the world war for some and as the ʺlosersʺ for others. Czechoslovakia participated in the peace negotiations on the side of the Allies, while Austria and Germany had no comparable negotiating power. In the culture of democracy and constitution of the interwar period, however, it was not only this status that played a role. Often underestimated was the continuing tradition of the rule of law from the Habsburg period. This article takes a synthetic look at this interweaving history of constitutional cultures through the lens of the work of Hans Kelsen and his colleagues.

The Mob Lawyer’s Constitution

This article reconstructs the constitutional rhetoric of mob lawyers, as well as drug lawyers and other icons of the high-priced criminal defense bar, from the 1970s through the 1990s—the heyday of federal organized crime prosecutions and thus, of the lawyers who defended against them. Drawing upon pop-culture sources including archival television footage, magazine features, newspaper coverage, and ghost-written mass-market memoirs, the article pieces together the constel-lation of soundbites through which mob lawyers disseminated their views. As the subjects of frequent media coverage, these lawyers ad-vanced a coherent and distinctive (if crude) set of ideas about the proper relationship between individuals, the state, law, and wealth. In investigating constitutional history, legal scholars often focus on elite legal actors and Supreme Court doctrine, or, if they examine pop-ular constitutionalism, on organized litigation campaigns, rather than the more diffuse world of solo practitioners and small law firms. Bring-ing together legal and cultural history, this article contributes a new angle on these themes—looking for insights into Reagan-era constitu-tional culture not in the Department of Justice or the Supreme Court, but at Manhattan steakhouses and Miami nightclubs. The high-priced criminal defense bar advanced a highly individu-alist, libertarian, and consumer-oriented conception of constitutional rights, as well as a thoroughly suspicious orientation towards the gov-ernment generally, and towards its exercise of the prosecutorial power specifically. Against the backdrop of the post-Vietnam, post-Wa-tergate historical context, the mob lawyer fused the traditional rhetoric of constitutional rights and the time-honored rituals of courtroom ad-vocacy with late-twentieth-century cynicism about government cor-ruption and prosecutorial overreach.

PROBLEMS OF CONSTITUTIONAL LAW OF THE EUROPEAN UNION

PROBLEMS OF CONSTITUTIONAL LAW OF THE EUROPEAN UNION

Mixed Constitutions in East Asia: South Korea and Taiwan as Examples

Abstract The study of illiberal constitutions has recently generated enormous scholarly interests. Few, however, have focused on whether democracies may still embrace constitutionalism mixed with illiberal elements. This article explores mixed constitutions of South Korea and Taiwan, the two democracies with vibrant civil societies in East Asia. Three distinctive features in both constitutions have demonstrated illiberal elements, including duty clauses imposed upon citizens, directives requiring the State to enact laws to fulfill the goals of governance, and constitutional cultures that exhibit high deference to political elites based on the Confucian tradition. This article further examines the impacts of such mixed constitutions on three challenging issues: managing pandemic crisis, applying artificial intelligence, and combating fake news. This article finds mixed features of illiberal and democratic constitutions in the two countries by giving their governments more space in managing urgent crises, showing higher deference to experts who are generally trusted by the public, and making compromises to individual rights for greater public good. However, this does not imply that the government is not made democratically accountable, or rights and freedoms are not asserted or valued by individuals. To the contrary, nongovernmental organizations and courts in the two countries continue to act as a counterbalancing force, challenging the government’s policies and decisions if not reasonably balanced, weakening the tendency of power concentration that has been seen in other countries where democratic backsliding or authoritarian governance is gradually revived.

The Pandemic and Constitutionalism

The paper discusses the reactions of different political and constitutional systems reactions to the pandemic and also the impact of COVID to populism, constitutionalism, and autocracy. Beyond the choice between economic and health considerations also applied in liberal democratic countries, which have lead either to “under-” or “overreaction” to the pandemic, certain illiberal regimes used the crisis situation as a pretext to strengthen the autocratic character of their systems. In some cases, this needed an “underreach,” like in Poland to insist on the presidential election, which has been important to entrench the power of the governing party’s incumbent, elsewhere “overreach,” like in Hungary, where an unlimited emergency power of government has been introduced after the very first cases of contagion. These autocratic “overreactions” have breached the formerly used authoritarian legalistic approaches by openly violating their own illiberal constitutions. New “conservative” theories on “common good constitutionalism” emerged to legitimize the necessity of authoritative rule by the executive power. The paper concludes that one possibility to overcome authoritarian populism and restore constitutionalism in crisis situation such as the COVID-19 pandemic would be to rely on the involvement of the well informed public, one that is capable to understand and assess the advice of the meritocratic elite. This kind of participation would also help build up a constitutional culture necessary to preserve the values of constitutionalism.

A Constitutional Ethnography of Monarchy: Buddhist Kingship, “Granted Constitutionalism,” and Royal State Ceremonies in Thailand

AbstractThis paper defines constitutional ethnography as the cultural study of constitutionalism through its symbolic representations. By focusing on the materiality of constitutionalism as embodied in various state ceremonies such as ceremonies of “royal octroy” (constitution-granting ceremonies) as well as in state monuments honouring the Constitution, it strives to offer an ethnography of a polity’s constitutional identity. In this paper, I argue that in Thailand, Westernized Hindu-Buddhist state ceremonies and monuments using Westernized Hindu-Buddhist symbolism represent the Thai monarch as the ultimate law-giver holding permanent “constituent power” and therefore yielding extra-constitutional customary powers pre-existing the Constitution. This representation, in turn, informs Thai constitutional identity as defined incrementally by courts and jurists since the early twentieth century, which in turn informs present Thai constitutional interpretation. Therefore, this paper argues that the study of state ceremonies can be a useful entry point into the analysis of a “constitutional culture” shaping modes of constitutional interpretation.

KONSTITUTSIYAVIY MADANIYAT – QONUNCHILIK HUJJATLARI IJROSINI SAMARALI TA’MINLASH GAROVI

The article analyzes the role of the Constitution in the implementation of reforms provided for in the country’s development strategy, as well as the importance of constitutional culture in a clear and strict implementation of legislation, in strengthening executive discipline in government bodies, reveals the theoretical and practical aspects of its essence and content. The formation of a positive constitutional culture in our country is reflected, on the one hand, in the activities of law enforcement agencies, officials, and social structures, as well as in the mechanisms of protection of the Constitution and laws, the executive discipline of officials and individuals. It is important that each employee performs his or her duties conscientiously, qualitatively and responsibly. Therefore, strict requirements and evaluation criteria are being strengthened to implement modern management methods, improve the forms of control and increase the personal responsibility of heads of government agencies to ensure the implementation of the assigned tasks. Our large-scale reforms, carried out in strict accordance with the Constitution, will be an important basis for strengthening national statehood and sovereignty, ensuring an environment of stability and law and order, the rule of law, human rights and freedoms, interethnic harmony and religious tolerance.

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

Directive Principles, Political Constitutionalism, and Constitutional Culture: the Case of Ireland’s failed Directive Principles of Social Policy

Directive principles of social or state policy – use of constitutional provisions in parliamentary debates – economic, social and cultural rights – political constitutionalism – Article 45 of the Constitution of Ireland – constitutional culture – constitutional narrative – failure of constitutional culture to take hold – limits of constitutional text