Constitutional Culture Research Articles

FREEDOM OF PRESS AND JUDICIARY CENSORSHIP IN BRAZIL

This paper intends to provide an overview on freedom of press under the 1988 Brazilian constitution. Despite living the longest democratic term of Brazilian history – twenty seven years so far, the constitutional and democratic project are under a clear and present threat, this time coming from an unsuspicious player in the democratic game: the judiciary branch of the state. The 2009 Estado de São Paulo case reflects how such threat has been identified by some justices belonging to the Brazilian supreme court – the S.T.F. - committed with a democratic and constitutional culture. The threat is scattered all over the land, coming from individual members and sometimes from several states´ appeal courts of both state or federal degrees. Either we enjoy plainfully the fundamental rights or we do not live in an actual democracy, in the western liberal and bourgeois concept of it. Becoming aware of it, rising up legal resistance against such threat and spreading the news for the whole citizenship is a necessary step to consolidate democracy in Brazil and to push away authoritarian political regimes.

FREEDOM OF PRESS AND JUDICIARY CENSORSHIP IN BRAZIL

This paper intends to provide an overview on freedom of press under the 1988 Brazilian constitution. Despite living the longest democratic term of Brazilian history – twenty seven years so far, the constitutional and democratic project are under a clear and present threat, this time coming from an unsuspicious player in the democratic game: the judiciary branch of the state. The 2009 Estado de São Paulo case reflects how such threat has been identified by some justices belonging to the Brazilian supreme court – the S.T.F. - committed with a democratic and constitutional culture. The threat is scattered all over the land, coming from individual members and sometimes from several states´ appeal courts of both state or federal degrees. Either we enjoy plainfully the fundamental rights or we do not live in an actual democracy, in the western liberal and bourgeois concept of it. Becoming aware of it, rising up legal resistance against such threat and spreading the news for the whole citizenship is a necessary step to consolidate democracy in Brazil and to push away authoritarian political regimes.

Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture, by David Schneiderman

Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture, by David Schneiderman

Religion and State: Revisions Needed in Sri Lankan Constitutional Implications

The paper compares infl uence of religion in the Constitutional culture of Sri Lanka and India. The secular nature of both constitutions, the historic relationship between the State and religion, and religious rights is analyzed in detail. Sri Lankan Constitution has provisions of giving special recognition to the Buddhist religion while, the Indian Constitution declares itself as a secular state. However, both nations have similar societies with a lesser degree of secular political culture. An entrenched provision of the Sri Lankan Constitution stands against the good principles of constitutionalism, instrumental in transforming the constitutional culture. The benefi ts of the maintenance of public order and the wellbeing of all parts of the society for the nation by, allowing real freedom of religion and maintaining no partiality, secular government is yet to be recognized in the Constitutional making history of Sri Lanka and in India as well.

The People and Populism

Abstract“What is and what is defined as populism?” In response to this question the best political theories and philosophies have put forward many different answers, that are taken into account in this article. The article affirms the constitutive ambiguity of the concept of “populism” and its ability to unify very different issues. After analyzing some of the implications that populism entails in practice (in particular the political use of fear and the emphasis on the role of the citizens' anxieties because of migratory flows, the spiral of fear and insecurity triggered by terrorism, the role of religions as symbolic repertoires), the article stresses the link between populism and the end of the logic of the principle of representation, specific of the liberal and democratic theories. The emphasis on the role of the “people” in opposition to the political elites is also a feature of populism, analyzed by the author in this article. In conclusion, the author focuses on the legal field: some of the contemporary constitutional theories, in particular the so‐called “popular constitutionalism”, are discussed. These theories, while polemicizing with those authors who overestimate the role of the Supreme Court, reassess the function of the average citizen in the life of constitutional culture, with the intent of favouring greater political participation and strengthening democratic life.

Is There Such Thing as ‘Populist Constitutionalism’? The Case of Hungary

The paper deals with recent deviations from the shared values of constitutionalism towards a kind of ‘populist, illiberal constitutionalism’ introduced by Hungary’s new constitution in 2011. The populism of FIDESZ was directed against all elites, including the ones that designed the 1989 constitutional system (in which FIDESZ also participated), claiming that it was time for a new revolution. This is why PM Viktor Orban characterized the results of the 2010 elections as a ‘revolution of the ballot boxes’. His intention with this revolution was to eliminate all checks and balances, and even the parliamentary rotation of governing parties. His vision for a new constitutional order—one in which his political party occupies the centre stage of Hungarian political life and puts an end to debates over values—has now been entrenched in the new constitution. The paper argues that this current Hungarian constitutional system was made possible by FIDESZ’ anti-pluralist nationalist populism, but is not necessarily based on a true commitment to expressing the will of the people via ‘illiberal constitutionalism’. The populist government rather misuses the country’s lack of constitutional culture. Adherence to constitutional patriotism would mean that FIDESZ would have to endorse what John Rawls once called ‘constitutional essentials’. The core of this kind of constitutional patriotism is a constitutional culture centred on universalist liberal democratic norms and values. Instead, the current Hungarian constitutional system is confronted with unconstitutional patriotism, a kind of nationalism that violates constitutional essentials in the name of ‘national constitutional identity’.

‘Long Live Ratthathammanūn!’: Constitution worship in revolutionary Siam

AbstractSiam managed to replace royal absolutism with limited monarchy in June 1932 without any chaos or bloodshed. But the transition quickly proved to be far from complete. The country was to undergo a major upheaval before suffering a semi-civil war only about a year after the princely rule was toppled. The new regime, accordingly, began to consider its constitution as a symbol behind which the people could be mobilized. A massive campaign for the document was then launched in late 1933 and it soon culminated in what can be regarded as the practice of constitution worship. This article will look at the campaign in detail, especially with respect to its underlying logics; the aim is to reveal and analyse the attempt by the revolutionary regime to transform the first permanent constitution into a sacred entity. Meanwhile, in pursuing such an aim, this article will shed light on the formation of a constitutional culture in Siam. Given that a basic law had never existed in the country, the article will discuss not only how the state promoted the permanent constitution, but also how the Siamese society encountered and experienced constitutional rule for the first time.

Thomas Jefferson, Legal History, and the Art of Recollection by Matthew Crow

Reviewed by: Thomas Jefferson, Legal History, and the Art of Recollection by Matthew Crow Mark G. Spencer Thomas Jefferson, Legal History, and the Art of Recollection. By Matthew Crow. Cambridge Historical Studies in American Law and Society. ( New York and other cities: Cambridge University Press, 2017. Pp. xii, 282. $49.99, ISBN 978-1-107-16193-1.) Thomas Jefferson is often cast as an ahistorical thinker who championed natural rights. "'Our Revolution,'" he wrote, unlike the English Glorious Revolution of 1688, "'presented us an album on which we were free to write [End Page 142] what we pleased. We had no occasion to search into any musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts'" (p. 3). However, Matthew Crow claims in his engaging book, "Jefferson's forthright declaration was complete nonsense" (p. 4). "Jefferson was more attuned than most to the fact that Americans found themselves in a heated political contest over history, and … historiography" (p. 25). That realization played out in various ways over the course of Jefferson's life. Two opening chapters set the contexts "out of which Jefferson's concerns for collecting and reading legal history emerged" (p. 39). Chapter 1 explores "debates over the historical and textual authority of written law in seventeenth-century England" in works by Edward Coke, Francis Bacon, Thomas Hobbes, and others (p. 11). In chapter 2 we see how Virginians such as William Byrd II and Robert Beverley "configured law as a fragile assemblage" that would be molded in the process of "forging historical identity" (pp. 42, 43). Law and history were "inseparable," and the Scottish Enlightenment taught Jefferson similar lessons (p. 45). His legal commonplace books were dominated by extracts from works by Henry Home, Lord Kames, especially Principles of Equity (1760). Kames's sense "that one could not study the law without studying it historically, without comparing it to other systems of jurisprudence, and without understanding the social and governmental contexts in which law had developed, was perhaps the single most important idea shaping Jefferson's approach to learning in the area of the law" (p. 80). The remaining chapters trace the ebbs and flows of the impact of equity jurisdiction on Jefferson. As a revolutionary, "[c]odification, and the sealing off of particular aspects of the life of the law from potential revision and contestation, was the chief target of Jefferson's constitutional criticism" (p. 83). For Jefferson, the imperial crisis was "a kind of jurisprudential problem" about who should judge (p. 99). Later settings provided different problems. Chapters 4 and 5 largely center on Jefferson's confrontation with race: first, as author of Notes on the State of Virginia (1785), and second, as a president who pursued an empire but "refused to see and take into account the complex histories" of North America's inhabitants (p. 232). A concluding chapter follows Jefferson in retirement. Jefferson had "another turn in thinking," and he now embraced the idea of a participatory government "'where every man is a sharer in the direction of his ward republic'" (p. 235). For all its novel ideas and solid scholarship, this book is not without its shortcomings. Its argument would be clearer with fewer references to Ludwig Wittgenstein, Stanley Cavell, and others, which do not much help us understand Jefferson. There are minor inconsistencies, including slips in book titles, repeated passages, and occasionally contradictory interpretations. And some avenues might have been more fully explored. For instance, Crow emphasizes Jefferson's engagement with David Hume's History of England (6 vols.; London, 1754–1762) without referencing its celebrated first American edition in 1795, which could have helped explain the urgency of Jefferson's critique. This is especially so given Crow's contention that "Jefferson was preoccupied in later years with designing a constitutional culture and a corresponding textual environment that could nurture a people in their capacity to judge in common [End Page 143] affairs" (p. 250). Hume's History would not be part of Jefferson's mix, as he banned it from the University of Virginia. Clearly, Jefferson appreciated all...

Constituição, constitucionalismo e efetividade na China: ilações entre cultura tradicional, práxis política e discurso constitucionalista no contexto chinês

O presente artigo constrói uma comparação entre o discurso nomológico oficial da Constituição chinesa vigente e as diferentes abordagens sobre o papel da Constituição e dos direitos humano-fundamentais desenvolvidas pelos constitucionalistas chineses. Parte, como principal estratégia metodológica, da configuração de uma amostragem de obras construídas na literatura jurídica chinesa sobre a Constituição e os direitos humano-fundamentais naquele país. Ademais, incrementa-se a análise a partir da reflexão sobre a influência das diferentes tradições políticas e culturais chinesas nas igualmente diferentes perspectivas do constitucionalismo chinês contemporâneo. Como principais resultados verifica-se não só a existência de posições conflitantes na cultura constitucional chinesa como a presença majoritária de uma abordagem pragmática e utilitarista do discurso dos direitos humano-fundamentais e de uma primazia tanto das dinâmicas políticas, como econômicas, sobre as balizas constitucionais, que ainda possuem na China pouca capacidade vinculativa ou dirigente.

O AMBIENTE DO CONSTITUCIONALISMO SOCIAL

Este trabalho trata da relevância do processo político e constitucional do México, bem como da estruturação de um novo modelo constitucional, o Constitucionalismo Social. Essa aproximação do político com o jurídico no âmbito de um novo modelo que recepciona a economia em seu texto, traz inovação profunda a Teoria da Constituição. Esta passa a ser (re)dimensionada, uma vez que, com a complexidade da sociedade nacional, evidenciou-se a concepção estatista/estatal da Constituição. Uma concepção social instiga um (re)alinhamento do Direito Constitucional a partir de uma nova cultura Constitucional, que funda nossa tradição moderna onde a organização fundamental do Estado e os direitos e garantias fundamentais acabam sendo prioridade dentro de uma visão estadista/estatal da Constituição em detrimento de outras. A Constituição deve ter um caráter material/substancial, porque é constituidora da própria sociedade.

Remedial Innovation, Constitutional Culture, and the Supreme Court at a Crossroads

This paper, presented at the Constitution at 80 Conference at the University of Limerick in November 2017, discusses recent remedial innovations in the cases of NHV, Persona, and PC, and its implications for Irish constitutional law. It also discusses the meaning of these developments for Ireland's constitutional culture, and explores the unusual position we find ourselves in as we reach the Constitution's 80th anniversary.

A Cross-Cultural Perspective on the Charter of Fundamental Rights of the European Union: Influences and (Possible) Contaminations from American Legal Culture

Comparative law studies between the European Union and the United States of America generally take as their object of inquiry the overall structure of the two legal systems, starting from the common fact that both of them are characterised by federalising process and by a progressive constitutionalization of the legal order. In contrast to the views prevailing within the literature dealing with US-EU comparison, this study will leave such structural issues in the background and will rather carry out a comparative analysis of the two legal systems focusing on the issue of the bill of rights, whilst not losing sight of the consequences which the fundamental structure of a legal system has in terms of the specific protection of rights. The paper’s central claim is that political integration, through bill of rights, does not imply the systemic effect of centralising the guarantee of rights within a single judicial body at the pinnacle of the system. This is to say that it does not bring about a reduction in debate between the variety of voices and constitutional cultures within a complex legal order.

Circulación internacional de modelos políticos en la era postnapoleónica: cultura, debate y emulación constitucionales

In the years immediately following the end of the Napoleonic Empire (1814-1823), constitutionalism, one of the main legacies of the Age of Revolution, did not disappear as many of the reactionaries of the Restoration wanted. Rather, it became for many Europeans of diverse political tendencies – including liberals of various persuasions, but also royalists and conservatives – the necessary instrument for the organization of new states. This article analyzes the evolution of constitutional government in Restoration Europe, emphasizing the international context in which the debate about its various forms developed, using as analytic tools the concepts of constitutional culture and emulation.

SOCIAL MOVEMENT AND CONSTITUTIONAL CHANGE: THE CASE OF THE UNITED STATES

The major challenge that the theory of constitutional change in contemporary United States faced is social movement, and its core concern is to balance and maintain legal and political authorities of the Constitution through interpretation. At the descriptive level, the thoughts of liberal scholars of constitutional law who criticized the theory of originalism restored the true colors of social movement in acting on judicial interpretation of the Constitution in individual cases, thus summarized the rules of occurrence of such action, and put forward the theory of constitutional culture of the mechanism of action and that of the three-stages of action. At the prescriptive level, social movement is burdened with the “original sin” of political factions, and contrasted with the principle of republicanism in the constitutional era. During the Cold War period, pluralist theory linked social movement with the value of democracy, and began to accept its constitutional status. Moreover, given that the influence of social movement on judicial interpretation must be restricted in order to harmonize the conflict between political and legal authorities of the Constitution, both the pluralists and republicans put forward different schemes in response.

Same-Sex Marriage and Backlash: Consensus, Conflict, and Constitutional Culture

Did backlash to judicial decisions play a destructive role in debates over same-sex marriage, as is so often claimed? This article questions assumptions about consensus and constitutionalism that undergird claims about judicial backlash, and explores some constructive functions of conflict in our constitutional order. The debate over same-sex marriage illustrates that conflict, constrained by constitutional culture, can forge meanings and bonds that strengthen the constitutional order. Constitutional culture, on this account, includes the understandings about role that guide interactions among citizens and officials who disagree about the Constitution’s meaning. Analyzing the long-running conflict over same-sex marriage with attention to these role-based understandings leads us differently to evaluate the power and limits of judicial review. In this article I argue that the backlash narrative and the consensus model of constitutionalism on which it rests simultaneously underestimate and overestimate the power of judicial review. The Court’s decision in Obergefell was possible not simply because public opinion changed, but also because struggle over the courts helped change public opinion and forge new constitutional understandings. Even so, Obergefell has not ended debate over marriage, but instead has channeled it into new forms. Conflict of this kind is enabled, and constrained, by the role-based understandings of constitutional culture. A conclusion invokes anxieties attending the election of Donald Trump to illustrate how critical the perpetually contested role constraints of constitutional culture are in sustaining our constitutional order.

Strengthening Constitutional Identity Where There Is None: The Case of the Netherlands

Recently, many European countries have moved towards codification of international human rights law. Aiming for a deeper socio-legal understanding of the rationale behind these processes, this article discusses one country – the Netherlands. It looks at the rationale behind, and the outcomes of the 2009-2010 Constitutional Review Commission, mandated to advise on the relationship between the national and the international legal orders and the inclusion of certain human rights into the Constitution. Both rationale and outcome, it is argued, can be understood by focusing on Rosenfeld’s three aspects of constitutional identity: the actual text of the constitution, constitutional culture and the interplay between the constitution and national identity. The Dutch constitution is layered, sober, incomplete and relatively unimportant, with internationalism as its main distinguishing feature. The political rationale for Dutch constitutional revision was, contrary to common understanding, to use the constitution as a bulwark rather than a bridge vis-a-vis the international legal order thus foreseeing a new, more symbolic role for the Constitution. The fact that such strengthening of constitutional identity did not materialise is explained by the culture of pragmatic relativising of the Constitution and, paradoxically, the fact that commitment to internationalism is the only pronounced element of Dutch constitutional identity.

COMPARAZIONE E TRADUZIONE: DALLA LETTERATURA AL DIRITTO

Il contributo discute l'ascesa degli studi sulla traduzione nel diritto comparato. La prima parte riassume i testi letterari classici che costituiscono le fonti di ispirazione per l'analisi giuridica contemporanea sulla traduzione, la seconda parte analizza i principali argomenti addotti da Ost nel suo libro Traduire, la terza parte avanza alcune proposte di ricerca per le future conessioni tra comparazione e traduzione nell’analisi giuridica europea. Il contributo sostiene che la svolta verso la traduzione dovrebbe essere accolto dai giuristi come una sfida per il perseguimento di una cultura costituzionale comune.

Descartes, Rousseau, de Gaulle: France’s Constitutional Waltz of Plebiscitarian Caesarism

Abstract Since 1789, France has had 21 constitutional regimes. This paper explains French constitutional instability through the optic of “constitutional culture” – the norms, attitudes, and beliefs, conscious and unconscious, held by a dominant portion of the French people about the nature, scope and function of constitutional constraints. French constitutional culture has historically been torn between a desire for a strong and effective state, and an obsessive veneration of democracy. This paper argues that France’s constitutional instability between 1789 and the constitution of 1958 was a series of swings between plebiscitarianism and caesarism, caused by the influences of Rousseau and Descartes. Problems remain, especially the risks of an unconstrained “hyperpresidentialism” and undue power to the street’s ability to bully the rule of law into continued rents. But the Fifth Republic has been successful because it balanced the tensions through a semi-presidential system: the plebiscitarianism of parliamentary democracy, along with the caesarism of a strong presidency.

TTIP, CETA, TiSA Behind Closed Doors: Transparency in the EU Trade Policy

Transparency in diplomatic negotiations and political discussions is an oxymoron. Rather, secrecy and informality traditionally reign negotiations at the bilateral, regional and multilateral level. Yet transparency ranks among the most basic desiderata in the grammar of global governance and has been regarded as positively related to legitimacy. To date, transparency is not a universal principle: it matters for certain countries more than for others, depending on each country’s constitutional tradition and legal culture. In the case of the EU, transparent trade diplomacy is quintessential for constitutional reasons but also for broader political reasons: in the first case, even if trade matters fall within the exclusive competence of the EU, the EU executive is bound by the Treaty on the Functioning of the European Union (TFEU) to inform the European Parliament, the EU co-legislator, in regular intervals. The underlying rationale is that the Parliament must early on know what the EU negotiator (typically in trade matters, the European Commission) offers and receives in exchange at the negotiating table, as the final deal will be subject to the positive vote of the European Parliament. In the second case, transparency at an early stage is important in order to address public reluctance, suspicion or even opposition regarding a particular trade deal. The present chapter chronicles the quest for and turning moments relating to transparency during the EU trade negotiations with Canada for a Comprehensive Economic Trade Agreement (CETA); with the US for a Transatlantic Trade and Investment Partnership (TTIP); and with a group of WTO Members for a the Trade in Services Agreement (TiSA) at the plurilateral/WTO level. The chapter reviews the existing EU case-law on access to documents and discusses the transition towards an unprecedented level of transparency in the EU trade-related dealings. It concludes with some suggestions to streamline transparency-related efforts.

Конституционная идентичность и конституционное развитие в XXI веке

The constitutionalism in XXI century will be determined by the following factors: 1) the information society building and forming of e-government; 2) the development of crowd economy based on direct communication between the manufacturer and its ultimate customers; 3) the growing trend of regional political and economic integration of states. These factors will affect not only the essence of certain human rights and freedoms, but also will modify the mechanisms of their legal protection. The regional integration will become irreversible, if a viable mechanism is created as part thereof with a view to balance the supranational and national interests. The concept of constitutional identity is the center piece of such mechanism. Constitutional identity determined in terms of political and legal nature of the State should take into account special aspects of the mechanism of constitutional legal regulation and may be defined in the context of constitutional sense of justice and constitutional culture. The author draws the conclusion about the necessity to speed up the formation of the Eurasian identity, especially as there are objective prerequisites arising from the common grounds of the post-soviet peoples in respect to their traditions, culture, lifestyles and mentality. The development of the Eurasian Identity Declaration will contribute to the said process.