Contemporary Constitutional Democracies Research Articles

A DEMOCRACIA CONSTITUCIONAL CONTEMPORÂNEA: ESTUDOS PRELIMINARES SOBRE A PROCEDURALIZAÇÃO

This article intends to present the procedural system as a coordination mechanism of State action, which fits within the separation of powers, and it is a response to the paradoxical cases arising from post-modern society. In this way, the limits of constitutional law resulting from post-modern complexity will be presented, along with the problem of paradoxical cases, which are not those called "hard cases", and the paradigm of proceduralization as a measure of contemporary constitutional democracy. In addition, the stages and aspects of social structural construction that have built post-modern society will be presented, and that have raised the social problems of litigious cases, whose Judiciary has full capacity to decide them, to undecidable cases, especially with the process of extinction of metanarratives and the transition from the society of organizations to the society of platforms.

Harnessing Distrust and the Power of Intercession for the Separation of Powers

In what follows, I reflect on themes arising from my reading of Jacob Levy’s The Separation of Powers and the Challenge to Constitutional Democracy. According to Levy, the separation of powers in contemporary constitutional democracies is failing, thus endangering the rule of law. Briefly, this is because political parties have bridged the gap between the legislature and the executive: by giving rise to partisan politics that cross the institutional divide, political parties have dampened, if not disabled, the institutional incentive and motivation of the legislature to keep the executive in check. Furthermore, when this is combined with the myth of the united and undifferentiated people, which the executive, populistically, can easily claim to embody, the simple act of opposing the executive may be framed as seditious. In the end, the power of the executive is set free by the partisan loyalty of fellow party members and by the framing of opposition as disloyal and deleterious to the polity.

Constitutional Identity in Europe: The Identity of the Constitution. A Regional Approach

AbstractThe issue of “constitutional identity” is a topic the relevance of which emerges in contemporary constitutional democracies in the context of constitutional changes. It has already attracted multilayered approaches, but its legal conceptualization is still underexposed. Based on regional European jurisprudence and doctrinal works, “constitutional identity” in a legal context is suggested to be viewed as the “identity of the constitution.” The identity of the constitution is found among provisions of constitutional texts and related jurisprudence that specifically and exclusively feature a status that was constituted during the constitution-making process and shaped by either formal or informal constitutional amendments. The legally applicable “identity of the constitution” comprises those articles that can be employed vis-à-vis EU law and unconstitutional amendments, and which are arguably intended to be applied in the face of international human rights obligations. It is posited that Germany and Hungary exemplify the “confrontational with EU law model,” while the model that emerged in the jurisprudence of the Italian Constitutional Court should be called the “cooperative model with embedded identity.” Today, it seems that the very content of the identity of the constitution of a particular Member State may be shaped and preserved through an active and cooperative dialogue between the supranational and national courts, if there is an inclination to find uniqueness in a community based on common legal traditions and values—Germany and Italy. Another way of determining the content of “constitutional identity” is to fiercely try to demonstrate that uniqueness. This is what Hungary seems to be engaged in, and that is why it may be proposed to call the Hungarian model a model of confrontational individualistic detachment.

Reimagining direct democracy as an intersection of different forms of representation

As an exceptional device in the life of contemporary constitutional democracies, direct democracy is normally considered to be separate from representation. In this paper, I explore this well-established divide, asking how it interacts with our understanding of the central subject of direct democracy, the people. I show how theorizing that takes its cue from the dichotomy between "absence" and "presence", ascribed to the separation of representation and forms of direct democracy, is tied with identifying the active electorate and the people. On the other hand, this approach is inept for comprehending the ways representations of the people are produced and instrumentalized in the wake of direct democracy. In this paper, I suggest that this phenomenon may be approached by examining how direct democracy is entangled with representing "the people" through arguments, processes and constructs.

The constitutional paradox of complex diversity: A systemic path towards political integration through deliberation

Identity and democracy and, more particularly, national identity and deliberative democracy account for a controversial relationship. However, from a classical deliberative democratic point of view, the controversy over who is the ‘we’ that needs to stand together in contemporary complex societies settled with the constitution of modern states. In this sense, the main contribution of this paper is twofold. On the one hand, I rebut the analytical appropriateness and conceptual coherence of Habermas’ discursive approach to democracy for the case of plurinational societies in contemporary constitutional democracies. A discussion of a test case – Catalonia – demonstrates that this inadequacy renders incoherent the deliberative model regarding one of its most fundamental premises: the equal weight of the principles of law and the principle of democracy. On the other hand, I sustain that the challenge is not about identity but democracy, and more particularly, about the role deliberative democracy is called to play when controversy challenges whether the people of a state do conform to a single people or not. More concretely, I explore the opportunities offered by the systemic turn to sustain a more realistic approach to deliberative democracy regarding its capacity to steer society towards integration in the context of the system of public deliberation.

Constitutional neutrality: an essay on the essential meaning of freedom of speech

The present essay explores the essential meaning of freedom of speech in the context of contemporary constitutional democracy. In addressing the question of how free speech constitutional clause should be understood in an universe full of controversial cases, the study articulates three main propositions: 1. Freedom of speech is the right not to be prevented from speaking or not to be punished for speaking based on the alleged unacceptability of an idea (taken as incorrect, inappropriate, stupid, irrelevant, shocking, dangerous, etc.); 2. Freedom of speech grants protection no matter the content of the message because the exchange of ideas is valuable for reasons other than the substantive qualities of what is said; to be worthy of protection, speech does not need to be infallible, clever or polite, but only play an expressive role in the process of discussion; 3. Freedom of speech doesn’t collide with rights of others, especially in the case of assertive speech acts, that is, assertions of facts and values that the speaker sincerely believes to be true or correct; even when the content sounds outrageous, asserting something doesn’t imply violation of anyone’s right, but rather it means the exercise of one’s own right.

Władza konstytuująca jako przedmiot badań nauk prawnych

The article discusses the nature and role of constituent power in contemporary constitutional democracies. It presents the genesis of the concept of constituent power (phrased by Joseph Emmanuel Sieyès within the distinction between «pouvoir constituant» and «pouvoir constitué»), different approaches to this concept framed in the XXth century legal science by such thinkers as H. Kelsen and C. Schmitt, and finally the contemporary interpretations of this concept. The author indicates and analyses two major issues relevant to the nature and role of constituent power in the contemporary constitutional democracy. Firstly, he examines the thesis that the democratic constituent power’s activity remains normatively undetermined. The search for internal normativity that might characterise constituent power in democracy determines such practical constitutional issues as discretion of the legislator within the process of making or amending the constitution. Secondly, the author points out that analysis of the role of pouvoir constituant» in contemporary constitutionalism should not be limited to analysis of the „constitutional moment” only; the significance of constituent power should not be seen just in the framework of the one-off act of making the constitution. Constituent power should remain an active participant of constitutional discourse which induces a search for new principles ensuring balance between constituent and constituted power in constitutional democracies.

Dialektyka solidarności a państwo prawa

The article concerns the significance of the idea of solidarity for the rule of law within contemporary constitutional democracies. The author presents, with reference to P. Ricouer’s philosophy, the dialectical nature of solidarity which mediatises ideals of love and justice. He also presents the solidarity’s place within liberal and republican political thought. The author points the limitations imposed on the idea of solidarity by the model of liberal constitutionalism. At the same time he emphasises that legal recognition related to liberal culture of human rights gains its social complement in the idea of solidarity. He argues that the idea of solidarity might determine the concept of legitimization of power in its modern formula. The idea of solidarity and the concept of rule of law both realise – in different ways and on different levels – the common values oriented towards elimination of arbitrariness of power and ensuring conditions for cooperation between members of political community. The constitutional justice may perform a leading role in fulfilment the idea of solidarity as it watches over distribution of political power and secures processes of free communication within political community.

Rule of law and constitutional democracy

The rule of law is a traditional concept much used but little examined in its current magnitude. It is a cornerstone of contemporary constitutional democracy as underscored by its paramount role in cementing all of the transitions from authoritarian or totalitarian regimes to constitutional democracy. Moreover, rule of law is one of the three essential elements of modern constitutionalism with protection of human rights and limitation/separation of government powers. However it is not clear what precise characteristics the rule of law must possess to ensure a working constitutional democracy. Thus there is no consensus on what rule of law stands for, even if it is fairly clear what it stands against. In order to determine how the rule of law might contribute to establishing the legitimacy of constitutional democracy in a contemporary pluralistic society, I shall first focus on the essential jurisprudential characteristics of the conception of rule of law in three different legal traditions German, French and Anglo-American and then on the contrast between procedural and substantive safeguards. Secondly I will try to point out the apparent convergence which has occurred between these different traditions. Finally I will describe how rule of law could reconcile the need for predictability with that for fairness in its “globalized” formula, which has been recently shaped by sovranational hard law and soft law rules with particular reference to the Venice Commission activity . The idea of the rule of law as the foundation of modern states and civilizations has recently become even more talismanic than that of democracy, but what does it actually consist of? So far, on one hand scholars have ascertained that, in the broadest terms, the rule of law requires that the state only subject the citizenry to publicly promulgated laws, that the state’s legislative function be separate from the adjudicative function and that no one within the polity be above the law. Moreover, that rule of law is one of the three essential elements of modern constitutionalism with protection of human rights and limitation/separation of government powers. We’ve also realized that in absence of the rule of law constitutional democracy would be impossible and that the rule of law is a cornerstone of contemporary constitutional democracy as underscored by its paramount role in cementing all of the transitions from authoritarian or illiberal regimes to constitutional democracy1. Still, on the other hand we’ve found a paradox at the heart of the rule of law, since that ideal demands certainty and condemns ambiguity in the law, but the ideal itself appears unclear and somehow uncertain. As a matter of fact “there is no consensus on what the rule of law stands for even if it’s fairly clear what it stands against”2. Like the concepts of equality or liberty the descriptive meaning of the rule of law is dependent on the prescriptive meaning one ascribes to it. Consistent with this, the rule of law has come to mean different things within different legal traditions, even within a single tradition it is often not clear whether the rule of law ought to be largely procedural or substantive and a few constitutional texts make express reference to the concept German, Turkish, Spanish and some of the new East-European constitutions . Then, in order to determine whether and how the rule of law might contribute to establish the legitimacy of constitutional democracy in the contemporary pluralistic society it is necessary to deal with the following issues. Firstly we have to observe the connection between rule of law and constitutional democracy and modern concept of the rule of law in three different legal traditions. Secondly we will explore the progressive convergence which has occurred between these notions during the 20th century due to the increasing internationalization and transnationalizations of the rule of law. Thirdly we will evaluate the usefulness of addressing the rule of law as a practical legal concept still able to guide and to constrain the exercise of democratic power.

Patologías de la división de poderes

La división de poderes parece consustancial hoy a una democracia constitucional moderna, aunque sus orígenes puedan ser rastreados en la idea de república. La división de poderes no ha sido presentada, sin embargo, de igual forma teórica, no se ha manifestado empíricamente de igual modo, ni ha tenido una única y uniforme justificación. Se analizan dos principios justificatorios diferentes: el de especialización y el de independencia. A la luz de estos dos principios se pueden colegir diversas patologías en la división de poderes por la invasión de un poder sobre la competencia y las acciones del otro. Se examinan cuatro posibles patologías: obstrucción, inhibición, conducción, congraciamiento. Y también otras cuatro provocadas por la invasión por parte de agentes privados del poder estatal: entorpecimiento, abstención, colonización y adaptación.

CONSTITUCIONALISMO POPULAR CONTESTATARIO

Si partimos de la idea que un régimen democrático debe entenderse como un sistema de autogobierno, la Constitución, en tanto está, por decirlo de algún modo, en manos de unos cuantos, presenta una aparente contradicción con el ideal democrático. El constitucionalismo popular surge precisamente con el propósito de atenuar la contradicción inserta en la mayoría de las democracias constitucionales: ¿por qué un puñado de ciudadanos deben poder interpretar una Constitución que ata y vincula a todos los miembros de la comunidad por igual? Interpretar el significado de la Constitución, reclaman los populistas, debe ser una empresa compartida y deliberativa entre la ciudadanía, sus representantes y los miembros del poder judicial. Este artículo analiza algunos aspectos del argumento popular. En vez de deliberar sobre el significado de la Constitución, sugiere, es la contestación—una forma específica de deliberación que ocurre después de que la Suprema Corte de Justicia ha emitido una sentencia— la que debe guiar los esfuerzos de interpretación popular.

Key Theoretical Issues in the Interaction of Law and Religion: A Guide for the Perplexed

There is perhaps no more important access point into the key issues of modern political and legal theory than the questions raised by the interaction of law and religion in contemporary constitutional democracies. Of course, much classical political and moral theory was forged on the issue of the relationship between religious difference and state authority. John Locke’s work was directly influenced by this issue, writing as he did about the just configuration of state authority and moral difference in the wake of the Thirty Years’ War. Yet debates about the appropriate role of religion in public life and the challenges posed by religious difference also cut an important figure, in a variety of ways, in the writings of Hobbes, Rousseau, Spinoza, Hegel, and much of the work that we now view as being at the centre of the development of modern political philosophy.

The Normative Paradigm of Constitutional Democracy

This piece criticizes traditional formal and procedural conceptions of democracy, which fail to account for the development of contemporary constitutional democracy. The latter is characterized by a substantive dimension with respect to the content of the decisions taken through the democratic process. The validity of such decision is conditioned by the respect and actualization of fundamental rights, which are established by the constitution. The limits and constraints established by the constitution require juridical science to play a critical and programmatic role vis-a-vis the ‘unlawful’ exercise of public powers, when these enter in contrast with the limits imposed by the constitution.

Rights as Norms and as Ends

This article considers the narratives of law through the lens of the form-substance devide. Different legal theories have provided for opposite definitions of law, legal rules and individual rights, enhancing their identity as due to some substantive content or, on the contrary, to some formal-functional features. The form-substance antinomy reflects both institutional and theoretical reasons. It bears down on the relations envisaged among rights, norms and ends. Different conceptions of rights are best understood as a special articulation of those three terms, and offer different patterns for rights, depending on their relation-opposition with collective ends, ethical values, legislation. The following pages show how in contemporary constitutional democracies the identity of the constitutional fundamental rights and the reason for their being fundamental are due to the functional role they play (as validity criteria in the structure of a legal order), and to their place among main collective ends.

Partisan or Neutral? The Futility of Public Political Theory

Partisan or Neutral? critically examines the Rawlsian ideal of a public, supposedly neutral, political theory meant to justify contemporary constitutional democracies. Placing this ideal-appealed to by neo-natural law theorists and advocates of 'public theology' as well as by political theorists-against the background of the history of political liberalism, White shows its contradictory nature. He argues that any such legitimating theory will be 'partisan,' in the sense of appealing to convictions concerning the human good that will not be universally accepted. He concludes that all politics must be imperfect-a matter of pragmatism and prudence in forming the most workable compromises possible and in acquiescing, where our principles allow us to do so, in situations that are often far from optimal.