Constitutional Scholars Research Articles

The Separation of Powers and Judicial Independence in South Africa: A Theoretical Critique

Section 165(2) of the South African Constitution of 1996 proclaims the independence of the courts. This principle is predicated on the philosophical notion of separation of powers prominently adopted in democratic countries like South Africa (SA). Separation of powers and the behavioural demands on judgeship have produced a general conception that the judiciary is independent; even of politics. This is not the case, politics and judiciary are inseparable since they both seek to achieve the same political objectives. This article adopts Critical Legal Theory (CLT) with historical and philosophical analysis to theoretically repudiate the generalisation. This is a qualitative study and has identified a gap in SA constitutional scholarship regarding interrogating the concept of judicial independence. Resolving this issue the article contends that politics are innate to the judiciary. This reasoning stems from the interrogation of the classical development of the “separation of powers”, and the principle of judicial independence. As a complex phenomenon, judicial independence here is not being explored institutionally and administratively. Rather, it is probed from its conceptual premises. Through court judgments, court activism, and South Africa’s history of constitutional development, the article determines that the judiciary and the law in SA are innate in politics. The intent is to disabuse scholarship from accepting the generalisation of the principle of judicial independence. This is not an anti-constitution critique, but a belief/notion that if adjudicators are not strangled with “judicial independence” general narrative, the courts will expedite the constitutions’ transformative objectives.

THE FAILURE OF EUROPEAN CONSTITUTION

The debate about the failure of the European Constitution has tended to polarize many scholars regarding the reasons why the European Constitution failed. However, having looked backwards into history in order to receive a more general overview a remaining puzzle is still there. In constitutional scholarship many efforts have been spent in trying to detach the concept of constitution from the nation-state framework and put it into a transnational concept even though in legal and political rhetoric the constitution appears to be linked with the nation-state only. The process in establishing a constitution for Europe encountered a debacle when the Netherlands and France refused the proposal. Scholars have debated this issue more than enough but still many questions remain unanswered regarding the failure of the European Constitution. From the documents and articles consulted no single narrative fully explains the failure of the constitutional project that’s why the paper is striving to bridge this gap and give another perspective in this direction, even though there is an arsenal of reasons that explains the failure.

Public opinion and expert critique: reconsidering the role of constitutional scholars in Japan’s security policy

Abstract Do experts’ opinions influence public opinion? Although experts with academic backgrounds are gaining a presence in policy debates, empirical studies deliver inconclusive results on whether experts have a cueing effect. Moreover, while most studies focus on cases where experts propose or recommend policies, the influence of their criticism on government policy has not received much research attention. To fill this gap, through an online survey in Japan, we test the effect of constitutional scholars’ criticism on people’s support for a dispatch of the Japan Self-Defense Forces (JSDF). Since constitutional academics, regarded as influential experts, have historically criticized the constitutional legitimacy of Japan’s security policy, they provide a suitable case to examine. The results show that such criticism has no causal effect on public attitudes even among the most liberal respondents or those with high confidence in constitutional scholars. Contrary opinions from retired general officers decreased support for the dispatch among individuals who were conservative or had high confidence in the JSDF. These findings imply that though people consciously sift through information from different sources, they mostly reject the opinions of academic experts.

Acts of Providence: The religious latency surrounding and shaping Marbury v. Madison and the Status-Denkschrift

Franklin D. Roosevelt recommended that “like the Bible, [the Constitution] ought to be read again and again.” Gustav Heinemann portrayed the Grundgesetz as a “great offering,” whose words must become flesh. Nevertheless, does this have any bearing on constitutional adjudication? Although presidents didn’t – and more and more don’t – shy about handling their respective constitutions as bibles, have justices and constitutional scholars proceeded otherwise? Common wisdom may answer yes, they did. The aim of my study is to show that this not quite the case. I pursue it in reference to two, leading liberal democratic constitutional courts, the US Supreme Court and the German Federal Constitutional Court. This happens in three parts: (1) I will engage with court architecture, understood as a testimony to each institution’s articulation for self-justification and self-empowerment; (2) the semantic consecration of constitutional adjudication especially vis-à-vis politics, as it took place in the struggles over what was implied by the innovations pushed forward in the contexts of Marbury v. Madison, on the one hand, and of the German Constitutional Court’s Status-Denkschrift, on the other; (3) and legal-methodological debates on the relationship between the Christian Bible and constitutional provisions that run in parallel and connection to these two landmark events. My findings point out that, in face of how disruptive the differentiation between law and politics was and is, constitutional actors in 19th century United States and 20th century Germany frequently, if not invariably, relied upon religious resources to embed their positions.

Which Constitutional Provisions Are Most Important?

National constitutions codify provisions on a wide range of topics, ranging from presidential term limits to the country’s flag. But are all constitutional provisions equally important? Some are likely to be particularly consequential for how governments function, while others are likely to be largely symbolic. To date, there has been little research on the relative importance of constitutional provisions. To explore current thinking on this subject, we assembled a group of twelve comparative constitutional scholars to rate the relative importance of 340 constitutional provisions to the functioning of a country’s government. These aggregate ratings make three contributions to constitutional studies: (1) provide evidence on the current state of academic thought on the comparative importance of constitutional provisions; (2) establish an index of constitutional importance to be used in future research projects; and (3) offer a roadmap that could help direct research to provisions that may be more likely to have significant impacts on governance-related outcomes.

Constitution and Jurisdiction in Neal Stephenson’s Speculative Fiction

A common feature of Neal Stephenson’s speculative fiction is the richly imagined political communities inhabited by his characters. Geographically defined constitutional states are reimagined, often with a focus on associations based on shared social identity or beliefs, as opposed to nation-state citizenship. Stephenson’s works offer an imaginative space for exploring possibilities of alternative political communities, and questions of constitution and jurisdiction. Modern territorially sovereign nation-states have presented constitutional scholars with a fixed framework. People sharing physical space constitute a political association stemming from a moment of legal constitution. Thus constituted, the nation-state authorises governmental entities to oversee the populace within the shared geographical space. Stephenson’s rich imagination offers constitutional scholarship an imaginary for exploring alternative conceptualisations of constitution and jurisdiction. This article proposes that recovery of medieval conceptualisations of overlapping networked jurisdictions might aid in sensemaking of models of political communities beyond the territorially sovereign nation-state.

The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States

Abstract In 1776, Pennsylvania established an institution called the Council of Censors, which would be elected every seven years and was tasked with ensuring that the legislative, executive, and judicial branches of government had remained faithful to the constitution. None of the other thirteen colonies would create a similar institution, although Vermont would in 1777. Nor has the Council of Censors enjoyed a positive reputation among historians or constitutional scholars: Gordon Wood, for example, has attacked the institution as ‘a monster [pulled] out of Roman history’. Contemporaries agreed, and the body was abolished in Pennsylvania in 1790 after years of vociferous opposition and was criticized extensively at the Federal Convention in 1787. But the Council of Censors was a remarkably innovative institution, the first designed to enforce a written constitution, created decades before the Supreme Court’s assumption of the power of constitutional judicial review in 1803. This article presents a new history of the origins of the Council of Censors and its reception both in Pennsylvania and across the United States. It challenges prevailing accounts of the origins and purpose of the Council of Censors and argues that it was a product of a new theory of constitutionalism as the codification of popular sovereignty which emerged in the United States in the 1770s in response to the colonists’ fears about legislative overreach. Prior to the nineteenth century, it was only in Pennsylvania that this resulted in the creation of institutions to secure the supremacy of constitutional law over ordinary legislative power. As the final section of this article demonstrates, the idea that the constitution could be enforced against the legislative branch by an independent constitutional guardian—including the Supreme Court—was rejected at the Federal Convention precisely because of its framers’ antipathy to Pennsylvania’s radically democratic constitution.

Procedural Norms and Institutions in the Structure of Constitutional Law of Russia

The article analyzes the opinions of scholars and concludes that the “broad” interpretation of the concept of procedural norms, which actually identifies them with procedural norms, is the most reasonable for constitutional law. On the basis of the studied opinions of constitutional scholars, the author’s definition of the concept of procedural norms of constitutional law is proposed. The idea that the procedural component of constitutional law is the result of legal differentiation, as the completeness of legal regulation of dynamic social relations requires the creation of norms that enshrine the mechanism of their realization. The specific features of procedural norms of constitutional law are identified and analyzed, which include: special purpose, features of the external form of expression, determining character for procedural norms of other branches, implementation by a variety of subjects of procedural relations, focus on ensuring the unity of the system of legal regulation. It is concluded that the institutes of constitutional law have substantive and procedural character.

Comparative political process theory II

Abstract This article aims to continue the recent neo-Elyean turn in comparative constitutional scholarship by further exploring the role of the courts in supporting and protecting democracy. In so doing, it refines and develops my previous work on the topic, and applies this fuller version to a highly visible current dispute. The article first examines the underlying conception of democracy that comparative political process theory is designed to protect; namely, constitutional democracy. It asks what this is and what role courts have in supporting it. The article then introduces the idea of ‘semi-substantive review’ as an integral and output-oriented part of a comprehensive comparative political process theory, alongside and in addition to the types of more purely procedural review I primarily emphasized in my previous work. Finally, the article employs the recent, highly controversial judicial reforms in Israel as a case study in applying the criteria for, and limits of, court intervention in my account. It analyses whether, why and how, in the event that the deeply contested bills become law (as so far one did), judges would be justified in acting to support and protect constitutional democracy.

History and current state of parliamentary oversight in Iraq

The phenomenon of Iraqi constitutionalism traditionally arouse skepticism among researchers. This is due not only to the historical difficulties faced by Iraqi constitutionalism, but also to the lack, according to researchers, of effective mechanisms for legal protection of the constitution. Among such mechanisms is the institution of parliamentary control in Iraq and its historical predecessors that has received virtually no coverage among Russian constitutional scholars, which determines the relevance of the study. The object of the study is the history and current state of parliamentary control in Iraq. Having proposed his own periodization of the history of Iraqi statehood, the author analyzes the main sources of legal regulation of parliamentary control in each of the identified historical periods, also referring to the assessments of applying constitutional provisions practice and assessments of contemporaries. The research method is the analysis of relevant normative regulation and practical implementation of constitutional norms on parliamentary control based on the assessments of constitutional scholars. The author concludes that the institution of parliamentary control in Iraq emerged in the late Ottoman era and strengthened in the first half of the XX century, after which it was dismantled for political, ideological and legal reasons. The author analyzes the current state of the institution of parliamentary control in Iraq, including atypical control powers of modern parliament. According to the author, their emergence is a reaction of the constitutional legislator to consistent oppression of mechanisms of popular representation, which, however, led to radicalization of the role of parliament in the system of separation of powers in Iraq.

Наука конституционного права о реформах государственного права

The author attracts attention to the difference between the constitutional law science, the pre-constitutional state law science and the state ideology. The attitude to state law reforms depends on the researcher’s position: the position of a specialist in state law or constitutional law. Constitutional scholars believe that reforms are actions aimed at movement of the country towards the constitutional structure. Reverse actions are called counter-reforms. The struggle for law stipulates resistance to counter-reforms of the state.

Addressing Economic Inequality in Constitutional Design: the Colombian Drafting Experience in 1991

Colombia’s Constitutional Assembly enacted a constitution in 1991 whose text and application are regarded around the world as among the best examples of socioeconomic constitutionalism in the last three decades. Despite rising interest in the structural causes of economic inequality at both global and domestic levels, Colombian constitutional scholarship has not yet offered an account of the role of the original constitutional design in addressing economic inequality. In this article, I show that the drafters of the Constitution of 1991 were deeply concerned with economic inequality and considered the problem from several angles. However, they did not agree on a structural plan with coherent tools to address it and prevent forces in the executive and legislative branches from undermining that purpose. Therefore, the Colombian constitution-making process has been overestimated because, after thirty years, the Assembly’s economic egalitarian aspirations are far from being achieved, and Colombia is still among the most unequal countries on earth. Thus, the Colombian constitution-making experience provides a warning about how unclear and weak agreements in constitutional design can become an additional obstacle to overcoming economic inequality.

Restriction of Passive Suffrage for a Citizen Having a Criminal Record under the Law of the Russian Federation

Introduction. At the present stage of the Russian national statehood development, strengthening the institutions of democracy and civil society remains an important task. One of the efficient ways to solve this problem is to create a highperformance mechanism, which would implement and ensure the fundamental rights and freedoms of a person. It is important for this mechanism to provide the legal stipulation in the current legislation of the Russian Federation and further implementation of the objective and justified restrictions of the rights and freedoms of a person. With regard to the passive suffrage, based on the analysis of the Constitution of the Russian Federation2, such a restriction is expressed in the exclusion of the persons having a criminal record from a number of citizens endowed with this right. The relevance of the paper lies in the need to legally regulate the features of suffrage restriction for the citizens having a criminal record. The work aims to study the eligibility of restricting the passive suffrage due to the candidate’s criminal record, and the limits of such restriction.Materials and Methods. The normative legal acts regulating the passive suffrage restriction due to the criminal record presence became the materials under the research. A set of methods of scientific cognition, including the dialectical and legalistic methods, as well as the methods of analysis, synthesis, induction and deduction, formed a methodological framework of the research.Results. The paper substantiates the legal essence of the human and civil rights and freedoms restriction through defining the limits of the person's freedom in society and in the state. In the paper the conclusion is made, that along with the great importance of the human rights and freedoms protection, there exists an urgent need to comply with the legal restriction of these rights to ensure safety of other people and society as a whole. The analysis of the normative legal acts allows us to conclude that the restrictions of passive suffrage are legally stipulated directly in the text of the Constitution of the Russian Federation (Part 3 of art. 32), as well as in the Federal Laws, as referred to in Part 3 of Article 55 of the Constitution of the Russian Federation. Moreover, with regard to the latter set of passive suffrage restrictions, the trend to expand the grounds for them is observed during the last twenty years. Thus, currently a rather wide range of citizens are forfeited the passive suffrage.Discussion and Conclusion. A specific feature of the Russian suffrage is its constant transformation caused by the changing political situation. The suffrage is actively developing and improving with rely on studying the scientific concepts of the constitutional scholars and proposals of the practitioners in organisation of the elections. However, there are still many issues that require scientific reflection and further legislative stipulation. It is proposed to focus on the problem of restricting the passive suffrage for a citizen for the reason of him having a criminal record

Illiberal Constitutionalization and Scholarly Resistance: The Cases of Israel and Hungary

This paper explores the role of constitutional scholars in resisting illiberal constitutionalization attempts or combating existing illiberal constitutional systems. I use Israel as a case study for the former and Hungary for the latter scenario. In Israel, following the initiation of a judicial reform by the new government of Benjamin Netanyahu in early 2023, supported by far-right nationalist and ultra-Orthodox parties with the aim of dismantling the separation of powers and establishing an unbound executive, constitutional scholars, alongside street protesters, voiced their opposition to illiberalism. Since the start of the war in Gaza, triggered by Hamas’ attack on Israel in October 2023, it became evident that the Palestinian issue also calls for a constitutional solution. In stark contrast, Hungary has seen minimal resistance after the enactment of the Fundamental Law in April 2011, Viktor Orbán’s new constitution for an illiberal regime. The paper investigates the role of constitutional scholars in both countries in seizing or missing the constitutional moment.

Some Reflections on Theunis Roux’s Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa

Theunis Roux’s “Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa” is an important piece of comparative constitutional scholarship that will be of interest not only to scholars of the Indian and South African constitutional experience, but to all who are interested in the global practice of constitutionalism. It displays Roux’s rare ability to traverse history, politics, social and political theory, and legal doctrine and to produce a thought-provoking argument that calls for engagement.

Historiography and comparative constitutional scholarship

History is central to comparative constitutional scholarship. But the methods and approaches of professional history (historiography) are not. This is a problem. Historiography – the critical study of how history is written and applied – provides important historical literacy for comparative constitutional researchers. This article will begin the process of unpacking its implications for CCS. First, historiography helps to counter the use of incorrect, incomplete, or simplified historical accounts. Second, it helps to show both the limitations and possibilities of applying history to contemporary constitutional questions. These historiographical methods can improve the use of history in comparative constitutional scholarship.

Southern turn, Northern implications: rethinking the meaning of colonial legacies for Comparative Constitutional Studies

Comparative constitutional studies has not digested globalization and the emergence of a multipolar world. To do so, I argue here, would require a far more serious engagement with Southern experiences of constitutionalism, including colonial legacies and a past that lingers on in legal doctrine, conceptual vocabulary, methodology and institutional structures. Such a Southern turn is not only about the South but equally about the North and the entanglement of North and South. In fact, colonial legacies are equally relevant but much less understood in the North. The Southern turn is hence a double turn: to the South and then to the North and the world. This article sketches how to rethink methodologies and approaches to comparative constitutional scholarship and discusses the notion of the Global South in that context. In doing so, it demonstrates how a Southern turn would both provide new insights into constitutionalism in the South as much as in the North and open up new avenues to rethink constitutional theory. Such rethinking enters tricky terrain as colonial legacies play out differently in different places and epistemic communities. This article is a call for a common conversation nonetheless. It is an intellectual provocation and invitation to develop an approach to comparative constitutional scholarship and ‘world comparative law’ that does not bow to any one centre and instead engages with the distinctive but entangled constitutional regimes all over the world.

The right to free development of your personality: concept and content

The right to free development of your personality: concept and content

A failed but useful constitution-making process: How Bachelet’s process contributed to constitution-making in Chile

AbstractThis article shows how failed constitutional proposals may contribute to future constitution-making processes by exploring the relationship between the recently failed Chilean constitution-making process (2019–22) and the previous unsuccessful one led by former President Michelle Bachelet (2015–17). Comparative constitutional scholars are yet to fully understand how constitutional failures of this kind can take place, and Bachelet’s process has not received the attention it should. This article fills that gap by showing how both processes were driven by shared principles initially set by Bachelet. It also shows how those principles may serve as a blueprint for future constitutional changes in Chile. Bachelet had campaigned on the basis that any constitutional replacement attempt should be participatory, institutional and democratic – all ideas that have remained popular in Chile’s political landscape. Those ideas have served the purpose of both reducing transaction costs among constitutional negotiators and securing large compromises in polarized political scenarios.

The Amendment to the Constitution of the Russian Federation concerning the Ideals of our Ancestors and Faith in God as the Basis for Sustainable Development of Russia

The paper, based on the analysis of research works of famous modern and pre-revolutionary constitutional scholars, philosophers, as well as the provisions of the Constitution of Russia, current legislation and law enforcement practice, shows the problems of sustainable development of Russia arising from the excessive reliance of mankind on environment and the global intensification of socio-economic development. The author determines new prospects for their resolution implementing the provisions of the Amendment included in the Constitution of the Russian Federation in 2020 and devoted to the ideals of our ancestors and faith in God as the basis of sustainable development, which are based on spiritual and moral values tested in practice by our ancestors during many centuries of the national statehood. Special attention is paid to the examination of the interaction and interrelation between the norms of religion, morality and law in creating a qualitative basis for sustainable development through the unity and social solidarity of the man, state institutions and civil society in ensuring the continuity of the statehood of Russia.