Constitutional Research Articles

Neoliberalism and legal culture: The path of least resistance is what makes rivers run crooked

This article examines the relationship between neoliberalism and legal culture in South Africa, focusing on how the neoliberal paradigm influences legal interpretation and the adjudication of socio-economic rights. It explores how neoliberalism, defined as the dominance of capitalist forces over weaker oppositional interests, permeates judicial decision-making, shaping how courts address issues of inequality and social justice. The article argues that neoliberalism, in prioritizing market interests, has contributed to a conservative legal inertia that prevents transformative legal outcomes. This dynamic has entrenched existing socio-economic disparities, especially as state power continues to serve the interests of capital, reinforcing apartheid-era economic structures. Despite the transformative potential embedded in South Africa's constitutional framework, the legal system remains constrained by what Karl Klare terms as professional sensibilities, codes, and values, many of which are influenced by neoliberalism. Drawing on theoretical insights of Karl Klare, the article calls for a rethinking of legal culture and a shift towards more relational, metaphorical approaches that challenge hegemonic narratives. Only by resisting these metanarratives can meaningful transformation be achieved in the pursuit of equality and justice.

Judicial Activism and Governance: A Comprehensive Analysis of Constitutional Principles

The research examines the evolving role of the judiciary in shaping and influencing public policy, emphasizing the delicate balance required to maintain the separation of powers while ensuring effective governance. The study encompasses a broad spectrum of constitutional doctrines and judicial decisions to provide a comprehensive understanding of the dynamics between the judiciary and the other branches of government and it also acknowledges the potential benefits of judicial activism in addressing societal issues. It not only helps in protecting fundamental rights but it also scrutinizes the concerns surrounding overreach and the erosion of democratic principles. A central focus of the paper is the intricate relationship between judicial review and the separation of powers. The analysis evaluates how judicial activism can serve as a check on the legislative and executive branches, ensuring that constitutional rights are safeguarded. However, it also underscores the need for judicial restraint to prevent the judiciary from encroaching on the policymaking domain reserved for elected representatives. The paper discusses the evolving nature of constitutional interpretation and the potential impact on governance, with a specific emphasis on how judicial decisions can influence the legal landscape and societal norms. Furthermore, the analysis considers the role of judicial activism in addressing contemporary challenges such as social justice, environmental protection, and technological advancements. In conclusion, this comprehensive analysis provides a nuanced understanding of the relationship between judicial activism and governance, emphasizing the importance of striking a balance that upholds constitutional principles while respecting the roles of the other branches of government. The paper contributes to the ongoing discourse on the evolving nature of judicial power and its implications for effective and accountable governance within a constitutional framework.

Numerical modeling of hydro-mechanical processes during hydraulic testing of pre-existing fractures at the Grimsel Test Site, Switzerland

This study presents a fully coupled hydro-mechanical framework for modeling hydraulic shearing in a mesoscale reservoir located at the Grimsel Test Site, Switzerland. The experiment was conducted on a ductile–brittle fault embedded in low-permeable granite. We observe that normal fracture opening increases flow channel recoverably, while fracture sliding locks asperities leading to a non-recoverable increase in flow. To couple these processes, we use a poro-elasto-plastic constitutive framework and employ a permeability function that depends on several parameters, such as dilation angle, in-situ stresses, residual aperture and maximum aperture. Our results capture the recorded pressure responses well, and indicate that the permeability changes by one order of magnitude during the experiment.

Thrasymachus’ government: an analogy with Machiavelli’s <i>Prince</i>

In Book I of Plato's Republic, Thrasymachus' proposal opens an important field of analysis within political philosophy, as it is through his discourse that justice becomes associated with the existing government policy in cities, given that, regardless of the political constitution, force always belongs to the governments and it is these who make the laws that it is fair for the governed to obey. This work aims, first, to analyze Thrasymachus' proposal for the whole of political philosophy and, second, to relate this proposal with Machiavelli's The Prince.

Folk Constitutionalism, or Why it Matters How Ordinary People Think about the Constitution

ABSTRACT A truly inclusive democratic politics must be understandable, or cognitively tractable, for ordinary people busy with the rest of their lives. This extends not only to everyday politics and policy, but to constitutional politics as well—non-specialist democratic citizens should be able to grasp the fundamental law that governs them and imagine their own role in shaping it as political agents. Yet these requirements raise a difficulty: in many countries, including the United States, constitutions are treated as the exclusive domain of lawyers and judges. As a result, constitutional matters are typically discussed using legalistic jargon that is inscrutable even to non-specialist lawyers, let alone ordinary citizens. How then can constitutional politics be made legible to ordinary citizens? In this essay, I argue this challenge is partly one of political ideas—specifically, the ideas ordinary citizens use to think about their constitutions, or their folk constitutionalism. This may sound strange because insofar as constitutions are treated as lawyers’ exclusive turf, the problem may seem to be one of practice, not merely ideas. But popular practices of what scholars like John Finn and Elizabeth Beaumont call popular or civic constitutionalism involve citizens and social movements in transforming constitutions. These transformations often occur behind the backs of everyone involved, as new frames and understandings come to gradually transmute constitutional meaning, which in turn pervades the public political culture and reshapes the public’s constitutional imagination. I suggest we need ideas that more closely reflect what democratic citizens already do in democratic constitutional politics, so that they can do it more self-consciously and dispel the impression of an anti-democratic lack of control that recent constitutional innovations reveal to be illusory. I explore the utility of ideas of unwrittenness and functional multi-textuality to the end of a folk constitutionalism appropriate for democracy.

Reconceptualizing Constitutionalism in the AI Run Algorithmic Society

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

The Impact of Political Interference on the Judiciary: India Vs. Pakistan

This paper investigates the significant effects of political interference on the judiciary in India and Pakistan, two countries with a common colonial history but differing paths since gaining independence. The judiciary serves as a fundamental pillar of democratic governance, designed to function independently while protecting the rule of law and upholding constitutional rights. Nevertheless, in both nations, political influences have notably affected judicial operations, compromised judicial independence and eroding public confidence. Through a comparative examination, this study highlights important historical moments, landmark rulings, and constitutional frameworks that demonstrate the degree and nature of political interference within both judicial systems. In India, such interference has emerged through executive control over judicial appointments and crises, notably during the Emergency period from 1975 to 1977. In contrast, Pakistan's judiciary has experienced direct meddling from military governments and political authorities, frequently rationalized by the contentious Doctrine of Necessity. Additionally, the paper investigates how the judiciary has responded to these interferences, including instances of judicial activism and civil society initiatives that promote judicial independence, such as the Lawyers' Movement in Pakistan. Ultimately, this research emphasizes the urgent need for strong protections to ensure judicial independence, bolster public trust in the judiciary, and maintain democratic principles in both countries. By highlighting the comparative experiences of India and Pakistan, this study aims to enrich the broader discussion on judicial independence in South Asia.

Azərbaycan Respublikasının Prokurorluğunun hüquqi statusu, vəziyyəti və inkişaf perspektivləri (prosessual aspektdə)

The prosecutor's office in the Republic of Azerbaijan is the basis for ensuring the rule of law and protecting the rights and interests of citizens within the framework of the country's legislation. This article aims to examine the legal situation, current conditions and future prospects of the Azerbaijani prosecutor's office, paying special attention to its procedural functions. The legal authority of the prosecutor's office is determined by the national Constitution and relevant legislation. Currently, the current state of the prosecutor's office is characterized by a number of challenges and opportunities. It should be noted that the prosecutor's office in Azerbaijan plays an important role in the legal system of the country. The prosecutor's office contributes to the rule of law and the protection of the rights and interests of citizens by solving the problems encountered and using the opportunities that have arisen. Keywords: Republic of Azerbaijan, prosecution, procedural aspect, ınvestigation, court procedures, legal status, rule of law, ınternational standards.

India As a Democratic Nation- Concepts and Perceptive

India, as the world's largest democracy, presents a unique and diverse political landscape. Since gaining independence in 1947, it has upheld democratic ideals amidst challenges of diversity, inequality, and external threats. This paper explores the foundational concepts of Indian democracy, its key features, and its role as a beacon of democratic governance in the global arena. By examining India’s electoral system, constitutional framework, and challenges, we gain insights into how democracy functions in one of the most populous and complex nations in the world.

Gender Equality Through Abortion Rights: Exploring the Constitutional Framework and Social Justice

This paper examines the legal protection of the right to abortion under the U.S. constitutional framework and its impact on women's equality. The study traces the historical and jurisprudential development of the right to abortion and examines the impact of restricting this right on women's education, employment, and overall social justice. This is achieved through the analysis of relevant legal documents. The findings indicate that the protection of the right to abortion is crucial for the assurance of women's autonomy in matters of reproduction, and has a substantial influence on their educational and economic prospects. The paper concludes that the constitutional protection of abortion is a crucial step in achieving gender equality and social justice. It is incumbent upon governments and courts to promote gender equality and social justice by introducing legislation to protect the right to abortion and by creating social security systems. The following section will examine the aforementioned topic in greater detail.

A Promising Piece of the Puzzle: Human Dignity and the Role of Section 1 of the Charter

In this brief piece, I want to take up Major’s invitation to think about the “puzzle” and the “promise” of human dignity, but from a different perspective. In particular, I want to consider whether any negative implications of adopting a conception of human dignity that encompasses the elderly offender who is sentenced to die in prison can be rationalized within the broader constitutional framework. My suggestion is that the tension relating to the “young” and “elderly” offenders may be better addressed by focusing on the role of section 1 of the Charter. While that provision received negligible mention in Bissonnette, it may be used to justify sentencing elderly offenders to effectively die in prison for heinous crimes like murder because any other approach would fail to adequately deter others, who are similarly situated, from committing such crimes. As I explain, this framework falls back on early recognition by the Supreme Court that utilitarian arguments for increasing punishment are properly considered as justifications, under section 1, for imposing what are otherwise “cruel and unusual treatments or punishments.”

The right to food: A fundamental human right and its imperatives

In an age of unprecedented global wealth and technological advancement, the persistence of hunger and food insecurity remains one of the most glaring contradictions of our time. The right to food is a fundamental human right enshrined in various international treaties and national constitutions. Yet, despite this recognition, millions of people across the globe continue to suffer from malnutrition and starvation, highlighting a critical need for holistic action to uphold this fundamental right. Available statistics reveal that Africa bears a disproportionate burden of malnutrition and food insecurity accounting for 20 percent and 61 percent2 of the population respectively. There is a link between access to food in the right quantity and quality and the cognitive development of children which has a spillover effect on the productivity of nations [2, 3]. It is time to reaffirm our commitment to ensuring that this basic right is upheld for all. This right is essential not only for ensuring that individuals lead healthy and productive lives but also for promoting broader social and economic stability. This editorial explores the dimensions of the right to food, its implications, and the urgent need for a coordinated effort to address food insecurity.

Constitutional design preferences: An experimental approach

Abstract A rich literature links the survival of national constitutions to their legitimacy among citizens. However, most studies examine constitutions as a bundle of rights and institutions, and few test the micro-foundations of constitutional preferences explicitly. This article examines how individuals evaluate both the content and flexibility of discrete constitutional elements using a conjoint experiment in Japan. Respondents were asked to rate twenty-six hypothetical constitutions that varied randomly in their enumeration of twelve rights and institutions. We find that citizens generally prefer constitutions that enumerate more provisions, with greater weight placed on human rights than political institutions. This result largely confirms theoretical expectations from earlier work on comparative constitutional design. In addition, political factors, such as partisanship, moderate preferences on issues that have long divided progressives and conservatives in Japan, such as constraints on the military and establishing national emergency provisions. By contrast, socioeconomic characteristics such as income, age, and education do not, suggesting broad demographic consensus on the merits of distinct provisions. Importantly, we further demonstrate that citizens do not trade off constitutional detail and flexibility, as suggested by existing research. Respondents who prefer the enumeration of more provisions do not necessarily want a lower amendment hurdle to facilitate adaptation to new circumstances. Preferences about constitutional flexibility appear to be based on strategic imperatives, notably the desire to cement preferred provisions and prevent changes by future majorities.

From the economic to the pandemic crisis: The impact upon the EU constitutional architecture—Introduction to the Symposium

Abstract The European Union has evolved significantly, shaped by crises as foreseen by Jean Monnet, who predicted that Europe would be “forged in crises.” Over recent decades, it has faced challenges such as the euro crisis, the COVID-19 pandemic, Brexit, rule-of-law backsliding, and ongoing geopolitical conflicts. These crises have tested and transformed the European Union’s constitutional framework, prompting institutional reforms and innovations in governance without necessarily revising the Treaties. This Symposium explores the European Union’s constitutional evolution through the lens of crises. Key reforms include the reinforcement of budgetary discipline during the euro crisis and the shift toward a stimulus-based approach in response to the pandemic, culminating in the NextGenerationEU framework. Contributors analyze the model of economic governance that has evolved from the convergence of both the economic and pandemic crises, the changing role of regions, the judiciary’s evolving oversight functions and its limits, and rule of law conditionality as a distinctive form of governance. The Symposium will delve into the post-crisis governance landscape of the European Union from a constitutional perspective, focusing on the structural adjustments implemented and their enduring impact. Despite these changes, the European Union has demonstrated resilience and adaptability, forging new governance structures that reflect its deepening constitutional identity. In the end, the Symposium provides a comprehensive examination of these shifts, highlighting how the European Union continues to integrate and innovate in response to ongoing challenges.

Unshackling from Shadows of the Anisminic Orthodoxy: Reconceptualising Approaches to Ouster Clauses in Hong Kong

Abstract Ouster clauses have perennially borne the mantle of a ‘litigation minefield’, where clashes between legislative and judicial powers unfold in open fora. Recent jurisprudential advancements in the United Kingdom and Singapore demonstrate how judicial approaches to ouster clauses can evolve in the face of constitutional developments. Hong Kong has, however, remained muted while these jurisprudential advancements bear fruit in other parts of the common law world, notwithstanding the fact that its constitutional framework, umpired by the Basic Law, has been in existence for over twenty-five years. This article argues for the need to reconceptualise approaches to ouster clauses in Hong Kong, grounded firmly in its post-1997 constitutional framework. Drawing on comparative jurisprudence, it presents a spectrum of approaches, animated by the dynamic interplay between various ‘macrocontextual’ and ‘microcontextual’ factors, ranging from a localised version of Anisminic, remedial interpretation, and invalidation of ouster clauses on the grounds that they impermissibly affront the constitutional right of access to courts, allocation of judicial power, and constitutional supremacy.

The Role of Governance in Strengthening of the Constitutional Judiciary

This research article aims to identify the governance of the judiciary in various aspects (transparency, rule of law, participation, accountability, justice, and equality) and its impact on the development of constitutional judicial powers. To centralize the authority and achieve judicial goals within the state, reforms must be implemented. The concept of judicial governance was previously nonexistent, with some viewing judicial power as separate entities performing their duties independently. However, due to developments that the world has witnessed, the responsibilities of the constitutional judiciary have increased, leading to the adoption and application of governance principles. This can only be achieved through promoting the concept of governance and implementing its principles in all state institutions, particularly those of a constitutional nature. This includes reforming the institutional structure to recover the powers to the judiciary, which serves as the arbiter, separator, and balancer among all branches of government.

Can’t Contracting Be Relational?; Comment on "Alignment in the Hospital-Physician Relationship: A Qualitative Multiple Case Study of Medical Specialist Enterprises in the Netherlands"

Ubels and van Raaij provide a valuable account of the operation of novel hospital/medical specialist enterprise contracts in a Dutch healthcare system shaped by market reform. However, their analytical distinction between the separate domains of contractual and relational governance frames the contractual domain more narrowly than does the relational contract theory widely deployed in socio-legal studies. The authors’ conclusion that contract plays little or no part in governing relations between hospitals and MSEs leads them to underplay a wider realm of contractual practices that develop in the shadow of the written contract. Apparent non-use of contracts in favour of shared planning, compromise and extralegal solutions only takes the form it does because of the potential application of the available legal framework. Larger qualitative field studies involving a more extensive combination of interviews and observations may be needed to gain fuller insights into the relational dimensions of the contracting process.

‘Towards a modern democracy’? The constitutional politics of the 1990s British left

ABSTRACT This article argues that a ‘constitutional lens’ sheds light on British political contestation in the 1990s. It is commonly suggested that 1990s politicians merely consolidated the hegemony of ‘Thatcherism’. Yet, this struggles to encompass the decade’s political volatility, from the Conservatives’ descent into internecine warfare over the Maastricht Treaty to the fraught Irish peace process. Though varied, these developments shared a key theme: controversy over the constitution of the United Kingdom. To illustrate its case, this article applies the constitutional lens to the 1990s left. Existing accounts emphasise Labour’s concessions to Conservative opponents. By 2001, however, the first Blair government had enacted contentious constitutional changes: devolution, proportional voting systems, and a Human Rights Act. These policies reflected a dynamic, new, liberal-left politics of constitutional reform. From the 1980s, liberals, social democrats and Marxists forged a new constitutional agenda, responding to trends since the 1960s—growing ‘popular individualism’, agitation for ‘human rights’, European integration, and Scottish nationalism—and to the end of the Cold War. By the 1990s, campaigners had developed a bold programme for ‘modernising the constitution’, which influenced Labour’s programme. Through New Labour’s governments, this agenda profoundly reshaped the institutions of British politics in the twenty-first century.

Energy Diplomacy of Turkmenistan: Determining Factors and Legal Framework

Introduction. Energy diplomacy is an effective means of ensuring energy security (international and national) and, at the same time, an instrument for implementing the foreign energy policy of states. Since energy diplomacy is formed and implemented in the conditions of the state legal and international legal environment, the study of its legal component acquires not only theoretical, but also important practical significance. At the same time, the legal aspects of energy diplomacy (both in general and in relation to specific countries) have not yet been systematically developed in the legal literature, including in the science of international law. Based on the analysis of scientific and regulatory material, the article identifies the features of Turkmenistan's energy diplomacy and its legal support.Materials and methods. Within the framework of the study, the sources of international law related to the topic under consideration, political and legal policy documents and acts of national legislation of Turkmenistan are considered. The theoretical basis of the research was the scientific works of experts in the field of international law and energy law, as well as individual studies of the problem of energy diplomacy, including in relation to a chosen country. The methodological basis of the study was presented by general scientific and special legal methods.The results of the study. Factors of a resource-geographical nature, combined with factors of a political and legal nature (the status of Turkmenistan as a permanently neutral state) determine the originality of foreign energy policy and, significant from the point of view of international law, the features of Turkmenistan's energy diplomacy. The main strategic priority of Turkmenistan's energy diplomacy is to increase the export potential of oil and gas products and, in this regard, to create an extensive, modern and efficient infrastructure for transit and delivery of energy resources to foreign energy markets, comprehensive legal support for these processes. Reliance on the potential of multilateral diplomacy (primarily in the UN system) for the international legal legitimization of their national interests in the energy sector is combined with the development of bilateral international legal relations of energy cooperation on terms of mutual benefit, while respecting the basic principles of international law. The head of state plays a special role in the development and legal formalization of Turkmenistan's energy diplomacy. Embargoes, as well as unilateral restrictive measures, used in the practice of a number of States and individual integration associations, are not used as a means of economic pressure on other States. Special importance is attached to preventive diplomacy within the framework of the Central Asian region.Discussion and conclusion. Turkmenistan's energy diplomacy, being the main means of implementing its foreign energy policy, has an international and constitutional legal framework, in turn, including: the UN Charter and other fundamental international legal acts establishing the basic principles of international law and the provisions of the Constitution of Turkmenistan on adherence to these principles, taking into account its permanently neutral status; Resolutions The UN General Assembly and acts of the constitutional legislation of Turkmenistan relating to the legal formalization and implementation of its permanent neutral status; norms of international law and provisions of the constitutional legislation of Turkmenistan regulating the main forms of diplomatic activity; special principles of international energy law correlating with the norms of the constitutional law of Turkmenistan.

Цифровизация местного самоуправления — «новая» демократия?

The article presents the author’s opinions on the impact of digital transformation of public administration in general and local government in particular on citizen participation in local community affairs. It is proposed to distinguish between “electronic democracy” and “electronic participation”, and the position is expressed that traditional and digital democracy have a common constitutional and legal nature, characterized by target and functional unity, but differ in technological methods of expressing will and communication. One of the key factors influencing the conditions for using digital technologies in the process of formation and activities of local government bodies is trust. Based on sociological research data, it was revealed that at the local level, ensuring trust has certain specifics, which are proposed to be interpreted through territorial identity.