Constitutional Legitimacy Research Articles

Ernst-Wolfgang Böckenförde and the politics of constituent power

ABSTRACTIt is often held that the legitimacy of a democratic constitution depends on its production by constituent power. This paper argues that the notion of legitimation by constituent power faces a dilemma: if the authenticity of an exercise of constituent power depends on conformity to existing constitutional law or on requirements of justice that are antecedent to the actual process of constitution-making, the appeal to constituent power must lack the paramount normative significance that theorists of constituent power attribute to it. Defenders of constituent power typically respond to this problem by radicalising the notion of constituent power. But if exercises of constituent power are to be unbound from all antecedent normativity, it is argued here, they cannot legitimate the constitutional product. This case against excessively strong conceptions of popular sovereignty is developed through a critical discussion of Ernst-Wolfgang Böckenförde’s and Carl Schmitt’s theories of constituent power.

Sędziowie i granice władzy demokratycznej w świetle Konstytucji RP

Istotą władzy demokratycznej ustanowionej w Konstytucji RP jest ograniczenie tej władzy po to, by chronić prawa jednostki przed zagrożeniami, jakie może stworzyć panowanie większości, zwłaszcza wtedy, kiedy dąży ona do narzucenia innym swoich wartości i przekonań. Ograniczenie to wyraża zarówno zasada podziału i równoważenia władz, jak i zasada demokratycznego państwa prawnego, a przede wszystkim zasada przyrodzonej i niezbywalnej godności człowieka. W świetle postanowień Konstytucji zwierzchnictwo Narodu jako wartość konstytucyjna nie ma absolutnego charakteru, zwłaszcza wobec zakotwiczonego w pojęciu godności szczególnego statusu praw człowieka. Obowiązująca ustawa zasadnicza, przyznając zwierzchnią władzę Narodowi, wymaga uznania za ustrojową przesłanką owego zwierzchnictwa sprawowanie go na zasadach i w formach określonych w Konstytucji. Oznacza to w szczególności konstytucyjną legitymację władzy sądowniczej do ograniczania – ze względu na postanowienia Konstytucji jako najwyższego prawa – pozostałych władz, jak też suwerena sprawującego swą władzę bezpośrednio. Istnienie niezależnego i niezawisłego sądownictwa prowadzi z jednej strony do odrzucenia w koncepcji demokracji założenia o nieograniczonym zakresie woli suwerena jako podmiotu władztwa państwowego, z drugiej zaś – do uznania za wyznacznik demokracji tych tylko przejawów woli większości, które mają legitymację konstytucyjną, a zatem zgodne są z wersją kultury praw człowieka zapisaną w ustawie zasadniczej i w czasie orzekania znajdującą akceptację sędziów.

The Italian Interest Limitation Rule: Constitutional Issues

In this note, the author analyses the constitutional legitimacy of the Italian interest limitation rule in light of the decision of the German Federal Fiscal Court in I R 20/15 (14 October 2015) and the EU Anti-Tax Avoidance Directive (1164/2016), which is to be implemented by the end of 2018.

The Two Legends of American Poverty: Breaking Out of Poverty's Historic Snare

AbstractEfforts to reduce poverty in America have been hobbled by poverty's historic explanation accompanied by a political reticence to accept its contemporary manifestation. Public policy has directed resources toward modifying personal behavior rather than attending the role macroeconomic decisions contribute to poverty. Whereas poverty could be understood within an environment of economic individualism independent of political choices, the Employment Act of 1946 gave Congress the authority to shape the economy, putting economic choices in the center of the political process, and poverty has become a consequence. Congress holds the political power to shape the economy, and the scope of its constitutional obligation to provide for the General Welfare Clause as stated in the Preamble and in Article 1, Section 8, was clarified in 1936 and applied to the Social Security Act in 1937, giving Social Security and Unemployment Insurance constitutional legitimacy. Social Security has assumed the growing burdens of poverty as America's economic individualism world has waned. Expanded extraordinarily over the past 80 years to enlarge its income maintenance protection, Social Security's twentieth‐century economic structure endangers its twenty‐first‐century obligations while Unemployment Insurance's byzantine financing and its administrative structure have failed miserably to address the problems of contemporary poverty.

Reflections on the ‘Administrative, Not Constitutional’ Character of EU Law in Times of Crisis

Abstract As is broadly recognized, the realm of administrative power greatly expanded over the course the twentieth century (particularly after 1945). This essay argues that this expansion, along with differential conceptions of legitimacy deeply bound up with it, are crucial to understanding not just the modern administrative state but also the nature of EU governance and the law governing its operation. Despite a dominant paradigm that seeks to understand EU governance in autonomously democratic and constitutional terms, the legitimacy of integration as a whole has remained primarily ‘administrative, not constitutional’. The EU’s normative power, like all power of an ultimately administrative character, finds its legitimacy primarily in legal, technocratic and functional claims. This is not to deny that European integration involves ‘politics’ or has profound ‘constitutional’ implications for its member states or citizens. The ‘administrative, not constitutional’ paradigm is meant only to stress that the ultimate grounding of EU rulemaking, enforcement, and adjudication comes closer to the sort of administrative legitimacy that is mediated through national executives, national courts, and national parliaments to a much greater extent than the dominant paradigm supposes. This is the reality that the ‘administrative, not constitutional’ paradigm on EU law has always sought to emphasize, and it is one that is particularly pertinent to the integration process in times of crisis. It is unsurprising, in these circumstances, that the public law of European integration has continually resorted to mechanisms of nationally mediated legitimacy in order to ‘borrow’ legitimacy from the national level. Unless and until Europeans begin to experience democracy and constitutionalism in supranational terms, the ‘administrative, not constitutional’ paradigm suggests that the EU’s judicial doctrines must be adjusted. The purpose should be to address the persistent disconnect between supranational regulatory power and its robust sources of democratic and constitutional legitimacy on the national level.

EM DEFESA DA CIDADANIA: A DESOBEDIÊNCIA CIVIL COMO CAUSA SUPRALEGAL DE EXCLUSÃO DA CULPABILIDADE

O presente estudo tem por objetivo analisar a possibilidade de a desobediência civil, enquanto espécie do direito de resistência, atuar como causa de exclusão da culpabilidade na seara penal, em razão da inexigibilidade de conduta diversa por parte dos agentes desobedientes. Por meio do método dedutivo, a partir da análise de dados qualitativos, a pesquisa inicia investigando a teoria da desobediência civil, reconstruindo sua legitimidade histórica e constitucional, explorando também duas características que lhe são geralmente atribuídas: não violência e aceitação voluntária das sanções. Em seguida, analisam-se as nuances da culpabilidade na área criminal e a ação desobediente como uma dirimente supralegal, capaz de afastar a responsabilidade penal do agente desobediente. Conclui-se, ao final, que a desobediência civil pode ser considerada como causa de exclusão da culpabilidade, em determinados casos, pois não se pode exigir uma conduta diversa do agente desobediente que empenha esforços pela efetivação ou defesa de um direito, o que nada mais é que o exercício pleno da cidadania.

Book Review: Jamie Mayerfeld, The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law

Book Review: Jamie Mayerfeld, <i>The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law</i>

Republicanismo e Esfera Pública em Kant: uma reconstrução social da Justiça

Este artigo pretende fazer uma reconstrução social da justiça kantiana para além dos seus limites metafísicos e morais a partir da relação entre republicanismo e esfera pública. Para Kant o republicanismo é a única forma de governo capaz de equilibrar o vínculo entre liberdade, lei e poder. Na constituição republicana há o fortalecimento da cidadania e da esfera pública deliberativa. No que diz respeito à dimensão social da justiça, Kant defende que o Estado de direito tem a legitimidade constitucional para tributar os mais ricos com a finalidade de criar uma assistência social para os mais pobres.

Strong popular sovereignty and constitutional legitimacy

Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and central assumptions of liberal constitutionalism. Foremost among these assumptions are the need to reconcile disagreement regarding controversial matters of common concern and the value of the rule of law. The weakness of such critiques, however, is that they presuppose a commitment to liberal principles and values that an advocate of strong popular sovereignty need not share. In this paper, I argue that recourse to liberal assumptions is unnecessary in order to demonstrate the inability of a theory of strong popular sovereignty to issue in a viable account of constitutional legitimacy. Theories of constitutional legitimacy grounded in strong popular sovereignty and constituent power, I contend, simply lack the basic resources for an adequate theory of constitutional legitimacy because they do not offer normative grounds for an assessment of whether any particular constitution is or is not legitimate. The paper is structured in three sections. Section 1 demonstrates that Carl Schmitt’s theory of constitutional legitimacy – which remains the primary source of contemporary appeals to strong popular sovereignty and constituent power – sustains a normative interpretation. Section 2 then develops a minimal constraint on an adequate normative theory of constitutional legitimacy. Finally, in Section 3, I demonstrate why a normative account of constitutional legitimacy based on strong popular sovereignty and constituent power is, at least without supplementation from normative concepts derived from a weaker conception of popular sovereignty, unable to meet this constraint.

Law &amp; Economics in the Italian Constitutional Jurisprudence: The Case of the Windfall Profit Tax on Energy Companies

AbstractIn the judgment issued on 2 February 2015 the Italian Constitutional Court decided upon the constitutional legitimacy of the windfall profit tax imposed by the Italian government in 2008 on profitable energy companies. In his decision the Court disentangles the very economic foundations of such a tax and seeks to explain under its legal reasoning the market outcomes for the energy industry. The aim of this article is to assess the path-breaking law and economics methodology used, for the first time, by the Italian Court to scrutinize the very nature of the tax reform. In doing this, the authors discuss how the Court envisages both a micro and a macro-economic perspective in its analysis which, in turn, shall take into account the primary principles embedded in the Italian Constitution. The newly adopted methodology may entail a change of paradigm in the way the Constitutional Court carries out its own review of constitutionality with respect to domestic provisions with far-reaching economic and budgetary consequences.

The problem of constitutional legitimation: what the debate on electoral quotas tells us about the legitimacy of decision-making rules in constitutional choice

Proponents of electoral quotas have a ‘dependent interpretation’ of democracy, i.e. they have formed an opinion on which decision-making rules are fair on the basis of their prior approval of the outcomes these rules are likely to generate. The article argues that this position causes an irresolvable problem for constitutional processes that seek to legitimately enact institutional change. While constitutional revision governed by formal equality allows the introduction of electoral quotas, this avenue is normatively untenable for proponents of affirmative action if they are consistent with their claim that formal equality reproduces biases and power asymmetries at all levels of decision-making. Their critique raises a fundamental challenge to the constitutional revision rule itself as equally unfair. Without consensus on the decision-making process by which new post-constitutional rules can be legitimately enacted, procedural fairness becomes an issue impossible to resolve at the stage of constitutional choice. This problem of legitimation affects all instances of constitutional choice in which there are opposing views not only about the desired outcome of the process but also about the decision-making rules that govern constitutional choice.

Processo Legislativo para além do Parlamento em Estados Autoritários: uma análise comparada entre os Códigos Penais Italiano de 1930 e Brasileiro de 1940

http://dx.doi.org/10.5007/2177-7055.2016v37n74p153Neste trabalho será utilizada a experiência das reformas penais realizadas pelo fascismo e o “Estado Novo” para compreender a legitimação constitucional de afastar o parlamento e a colaboração de renomados penalistas para a confecção das codificações sem o controle da representação popular. Analisando documentos de época como os projetos de lei e a historiografia penal, concluiu-se que, na Itália, o parlamento abdicou da competência via delegação de poderes ao governo, e, no Brasil, o golpe de Estado outorgou nova constituição cuja competência foi destinada ao Poder Executivo. Além disso, ambos os regimes valeram-se da legitimação intelectual dos juristas.

The fourth face of legitimacy: Constituent power and the constitutional legitimacy of international institutions

AbstractScholars of international organisation commonly differentiate among three dimensions when studying the legitimacy of international institutions: input, throughput, and output legitimacy. I argue that the study of global governance needs to consider a fourth ‘face’ of legitimacy: constitutional legitimacy. This dimension addresses the normative and practical questions related to the constitutive justification for an institutional order – such as in whose name it is founded, whose interests it should serve, and how authority should be distributed within that institutional order. These questions are distinct from the procedural features of institutions emphasised by other dimensions and concern the constituent power that should ground the authority of governance institutions. In this article, I develop this fourth dimension of legitimacy, explore its varied expressions in world politics, and show how it has implications for the constitutional structure of global governance arrangements. I argue that different representations of constituent power shape the legitimacy of different authority relations within international institutions and illustrate these claims with an analysis of the politics of legitimacy in three cases: the ongoing effort to reform the UN Security Council, the negotiations over the founding of the International Criminal Court, and the debates over the Responsibility to Protect at the UN.

Global Constitutionalism without Global Democracy (?)

The contributions in this volume investigate interconnected aspects of the democratic deficit in global constitutionalism.The commonly shared question is the following: to what extent, if any, a global (or cosmopolitan) shift of international law can proceed absent a transnational democratic check? Some scholars are convinced that this is a real problem since that a ‘division of labour’ is to be recognized between national and regional/international legal levels, only the first needing a democratic legitimacy. The contributors to this volume, on the contrary tend to share the view that detaching the production of international law from constituent will, as well as from a democratic framework, can indeed undermine constitutional legitimacy. Furthermore, this may open the way to forms of domination that affect also state’s democratic institutions from within.What is the way out from this deadlock? How is it possible to tame global constitutionalism in order to avoid a global Leviathan? The collection of essays here presented attempts to conceptualize some of the central challenges affecting contemporary patterns of legal dispersion and fragmentation. They follow a conceptual-historical thread which starts with a modern Kantian understanding of the problem, and unfolds into the discussion of issues of constitutional pluralism, institutional legitimacy and the risk of tyranny. The volume includes analyses of the role of China and the EU, two of the most important actors, even though perhaps at the opposite pole of the global constitutional project.

«La hora de la monarquía ha llegado a su fin». El problema de la monarquía en los textos de Carl Schmitt

This article approaches the question of monarchy in Carl Schmitt’s thought. The topic is addressed from the point of view of political and constitutional legitimacy. Furthermore, some notions relevant to the issue under analysis, including the modern State, constituent power, identity and representation, are considered. Finally, the study focuses on its main subject, the monarchy, and Schmitt’s evaluation of this form of State at the turning point of the contemporary epoch.

The Legitimacy of Comparative Constitutional Law: A Modal Evaluation

In recent years, there has been intense debate — within the judiciary, academia, the press, even Congress — over the legitimacy of using foreign law in American courts. This question cannot be answered, however, unless one knows what the relevant criteria for constitutional legitimacy are. By what standards should we decide whether it is appropriate for American courts to cite foreign law in their decisions? Before we can figure out whether it is constitutionally proper for American courts to use foreign law, we need to first agree on what makes something constitutionally proper. In a pair of path-breaking books, Constitutional Fate: Theory of the Constitution and Constitutional Interpretation, Philip C. Bobbitt offers a modal approach to constitutional argument, presenting six different types, or modalities, through which constitutional discourse is channeled. This Article will attempt to evaluate the legitimacy of the practice of comparative constitutional law by American courts through modal lenses. It will ask one question — is it legitimate for our judges to cite foreign law? — six times, each time analyzing it within a particular modal framework; textual, historical, structural, doctrinal, prudential, and ethical. Using those methodological tools, it will provide one answer.

The Perils of ‘As If’ European Constitutionalism

AbstractThis review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.

Constitutional Legitimacy of the Maritime Cadet Training System

Constitutional Legitimacy of the Maritime Cadet Training System

Continuity, Discontinuity and Constitution-Making: A Comparative Account

This chapter presents a comparative overview of how the formal source of a constitution's authority is present, or misrepresented, in a constitution-making process, and it goes on to analyze the Hungarian case, the adoption of the 2011 Fundamental Law in this light. Questions of continuity and discontinuity at this unique moment in time reveal fundamental elements about the identity project of the constitution-makers who look almighty and fearful at the same time, unconstrained to the extent that this is possible, but at the mercy of social acceptance, the faith of the new system. The selected cases show how an earlier constitutional framework can play into the struggle for legitimacy of the new constitution, in the US, and more recently in Canada. Constitutional arguments seem to be misused more than they are used properly, and this is often to inflate the role of the people in the name of whom the constitution is speaking. This ultimately means that there is a mismatch between arguments and the underlying legal reality. The Hungarian developments will be considered against this background, highlighting the tension between the rhetoric of a revolutionary act, breaking with most of post-1944 Hungarian history (discontinuity) and the formal reliance on the validity of the 1949 Constitution (continuity). The reliance of established amending rules helped the governing majority avoid questions about the role of the people and the involvement of at least their representatives, considering that it is the people, after all, in the name of whom constitutional regimes are founded.

Against democratic intergovernmentalism: The case for a theory of constituent power in the global realm

The normative school of global constitutionalism lacks a convincing model of constitutional politics. As far as the democratic legitimacy of constitution making at the supra-state level is addressed at all, scholars usually resort to democratic intergovernmentalism. According to this normative model, processes in which constitutional norms in the global realm are made or amended are democratically legitimate if they are organized as treaty making among the executives of democratic states, followed by parliamentary ratification. In this article, I argue that this model should be rejected because it puts the democratic legal domestication of public authority at risk. Specifically, democratic intergovernmentalism is characterized by five shortcomings: (a) it does not distinguish between norms of contractual and constitutional quality; (b) it undermines the separation of powers; (c) it breaches the division and hierarchization of constituent and constituted powers; (d) it disregards the deliberative dimension of democratic control; and (e) it does neither provide the citizens nor their representatives with a capacity to begin. Ultimately, I suggest that a superior approach should build on the notion of constituent power.