Contemporary Constitutionalism Research Articles

Human Dignity and the Constitution

Most contemporary national constitutions and international human rights declarations recognise the respect of human dignity as their inviolable fundamental principle. Nevertheless, besides some generally accepted cases of its flagrant violations, human dignity remains a highly controversial concept not only in its practical application but also in its theoretical explication. In order to resolve all these kinds of problems, we need a sound philosophical foundation of dignity that would allow a coherent moral reading of our constitutional documents. The crucial question is: what justifies dignity's place as the leading constitutional principle? There are three conceptions concerning dignity's nature and role: the conception of dignity as the highest constitutional value, namely the value of humanity and of human life; the conception of dignity as the chief personal right; and the conception of dignity as status. The conception of human dignity as the highest value is adopted by the prevailing constitutional doctrine in Germany in accordance with the established practice of the Federal Constitutional Court; from there it has acquired immense influence all over continental Europe. This conception is problematic, because value is a holistic concept: there are many concurring, if not conflicting, values, so that the degree of satisfaction of every one of them varies depending on its unstable coincidence with other values. The prevailing doctrine recognises this by introducing the principles of balancing and of proportionality. But this is unsatisfactory in view of the inviolability claim: a violation in some unusual cases, recommended by means of balancing and proportionality, should be permissible at every time. Similar problems are envisaged by the conception of dignity as the chief personal right, at least if we follow the leading rights doctrine that considers them, in a consequentialist manner, as interests or values; under the same presupposition, the idea of dignity as a second order right, ie, as the right to have rights, reveals itself to be redundant. So the only tenable conception is that of dignity as status. But this conception poses serious problems, too; they concern, above all, inviolability and the demand of individualised protection. They can be resolved only if we adopt a broadly Kantian conception of the person. The status in question is then a deontological, not comparative concept: it is the status of the autonomous and responsible moral subject, whose equal recognition and respect is the only thinkable fundament of our publicly enforceable mutual claims and duties.

Autonomia privada e suas limitações legais: reflexo da incidência indireta dos direitos fundamentais

In contemporary constitutionalism the limits between Public Law and Private Law have become increasingly close. Nowadays, Public and Private Law interrelate themselves and create intersection points in which it is possible to notice their influence. In this Considering the importance of this subject, this paper investigates the status and potential application of private autonomy in Brazilian law, within the insertion of Public Law in Private Law, especially considering the indirect effectiveness of fundamental rights in private relations, which causes the influence of the public interest over private institutes. By using the hypothetical-deductive method and bibliographical research technique we demonstrate that private autonomy, in this proposed context, undergoes changes in its concept and, consequently, causes several limitations to the power available to private individuals for self-regulation of their private affairs. These limitations arise due to the care of social interests and result in the indirect incidence of fundamental rights in relationship between individuals, i.e., with the intermediation of the legislator, that at the time of creation of the law must balance the fundamental rights with other interests, especially with private autonomy. This can still happen from the use of indeterminate principles, which open space for the Judiciary to apply the fundamental rights in the private relations, according to each specific case by constitutional interpretation.Keywords: private autonomy, contemporary constitutionalism, fundamental rights, public law, private law.

A EFICÁCIA HORIZONTAL DOS DIREITOS FUNDAMENTAIS NO BRASIL: UMA ANÁLISE SOBRE O JULGAMENTO DO RECURSO EXTRAORDINÁRIO 201.819-8 À LUZ DO CONSTITUCIONALISMO CONTEMPORÂNEO

The new constitutional right – contemporary constitutionalism or neoconstitutionalism – arising after the end of World War II is an undeniable reality of the doctrine. The strengthening and the quest for effectiveness of fundamental rights is one of its main goals. From this ideal, there are various phenomena and institutes, such as the horizontal effect of fundamental rights, which is the production of effects of these rights not only in relations involving the government, but also in relations of individuals. This study aims to verify that the ideals of the neoconstitutionalism, especially the appreciation of fundamental rights in the main figure of the horizontal effectiveness of these rights, have been inserted in the decisions of the Brazilian courts, specifically the Brazilian Supreme Court, and how this new constitutional motion in judicial decisions can be observed. The answer is sought by analyzing the judgment of the Extraordinary Appeal 201.819-8. As for the approach, the method is deductive, as a part of general concepts about the new constitutional law and the horizontal effect of fundamental rights, to subsequently verify the presence of these effects in this case. In the background, the method used is mainly the monographic, since it works with a concrete case. Finally, the decision in the case had its majority voted in favor of recognition of the horizontal effect and can be seen clearly in the arguments used by the Ministers, the acceptance and application of neoconstitutionalism phenomena.

The pursuit of happiness reloaded. From measures to policymaking, holistic well-being as a global political goal in contemporary constitutionalism

The rise of a number of initiatives, at both the national and supranational levels, to go beyond economic metrics of societal progress such as the gross domestic production is sparking a growing interest worldwide. Such a shift would generate a number of effects on the policymaking process and traditional strategic narratives about the interplay between community and society, the functioning of the public debate and the roles of civil society, government and the state at large. Introducing indicators of holistic quality of life would impact the policymaking process and require to abandon the current “rational-instrumental” model of policymaking in favour of the alternative “constructivist” or “interactionist” models. Furthermore, this would shake the very foundations of Western constitutionalism by challenging consolidated assumptions of what are considered to be the traditional aims and responsibilities of a state, the functioning of the media sphere and the public debate, and eventually raising a case for redistributing the political power between governments and social groups of different sorts.

Constitutional Legislation, European Union Law and the Nature of the United Kingdom's Contemporary Constitution

United Kingdom – UK Supreme Court – European Union – The orthodox view of the British constitution: lack of hierarchy of laws – Britain's ‘unwritten’ constitution and the role of ‘constitutional statues’ in Factortame – HS2 judgment makes up for House of Lords' omission in Factortame – Relationship between parliamentary sovereignty and EU law more clearly articulated – A normative-hierarchical constitutional order

Relations and Balances: Self‐restraint and Democratic Governability under Confucianism

This article attempts to create a theory of relations and balances (RaB) in order to understand the systemic stability of democracy. It draws on Confucianism and compares Confucian self‐restraint with liberal self‐restraint. Empirical evidence suggests that on the one hand a Confucian constituency dislikes challenges to the authorities for the sake of systemic stability, but on the other it disapproves of authoritarian control in order to maintain a harmonious system. Evidence likewise suggests that if the systemic identity is weak, the constituency of RaB shows higher support for inclusive, not enforcive, leadership to restore governability. The RaB support for systemic inclusiveness can be mistaken as liberalism. Coupled with the idea of civic nationalism, contemporary constitutionalism of checks and balances neglects systemic stability and fails to explain the spread of illiberal democracy. The RaB theory provides an explanation on a systemic level of how a democracy can maintain or lose stability.

The freedom of all freedoms. On the grounding foundations of contemporary constitutional thinking

In large parts of the world the freedom of all freedoms, namely religious freedom and the freedom of conscience, is at risk. But only if freedom in its most basic form, freedom of conscience as religious freedom, is guaranteed men are protected from physical and spiritual domination and violence by others. The need to protect men’s freedom is based on the assertion and the respect of human dignity as an inalienable right. And so is modern statehood. In our contemporary constitutions this conviction has become inviolable and irrevocable law on which governments base their legitimacy. The modern state is therefore rooted in a human conviction, a faith, that is, which to forget would take away its sole raison d’etre.

Book Review: Accountability in the Contemporary Constitution

Book Review: Accountability in the Contemporary Constitution

A jurisdição constitucional e a contextualização do texto da Constituição Federal de 1988: mutação constitucional.

This article aims to explore the issue of the constitutional mutation, which has been traditionally considered an informal amendment of the constitution, which means, without the interference of the Legislature in the creation of the law. On this perspective, it is necessary to delimitate the sign Law, designing it as an allographic art, meaning that the norm is the result of the interpretation of the text, which brings the possibilities and limitations that stem from this affirmation. Then, there is a discussion on the goal of the constitutional jurisdiction, finding that it is a factor for the constitutional stabilization and , therefore, has a decisive political role on the maintenance of the State. Under these premises, the theme has been revisited, switching between two directions: i) the reforming power; ii) constitutional interpretation. The first theory states that the constitutional mutation presents as an informal amendment of the Constitution, regardless of the text change. On the other hand, the second shows that it is not a change on the Constitution itself, but on its comprehension, therefore, it cannot be understood as a constitutional mutation, but only as a change in the contextualization of its text. It is concluded that non-existent, in fact, the change of the constitution by “constitutional mutation,” since the term is confined to the interpretation that creates a different standard that once emerged. However, such expression should continue to be used, for its wide dissemination occurred through the years, nevertheless, with a new meaning, adequate to the premises of the contemporary constitutionalism

ESTADO CONSTITUCIONAL DE DERECHO Y PONDERACIÓN: HACIA LA SUPERACIÓN DE LA FALSA DISYUNTIVA ENTRE LIBERTAD Y SATISFACCIÓN DE LOS DERECHOS SOCIALES FUNDAMENTALES

El presente trabajo analiza los derechos sociales en el contexto del Estadoconstitucional de derecho y propone el uso de la ponderación para superarla falsa dicotomía entre libertad y derechos sociales.

The Independence Referendum, the Contested Constitution and the Authorship of Constitutional Change

The independence referendum is an important 'constitutional moment' for Scotland and the UK, not only because it may usher in a new era, but also because it has the power to shape our understanding of the contemporary constitution. Focusing on the referendum as a constitutional process, this article explores its implications for contested questions about the role of the people as the authors of constitutional change and about the location of constituent power within the British constitution. It also considers questions of constitutional process after the referendum.

Global constitutionalism in historical perspective: Towards refined tools for international constitutional histories

AbstractThis article raises the question of how the evolution of constitutional structures in international history can be conceptualized and narrated. This question is nurtured by the divergent historical accounts found in the literature on global constitutionalism and the historical-comparative literature on international societies. Although both literatures have so far largely ignored each other, they share a number of common conceptual problems and should therefore engage in a dialogue. The article sketches out the contours of such a dialogue to reveal the insufficient sensitivity of both literatures to the historicity of constitutional structures as well as their inherent political dimension. This article proposes to conceptualize constitutional structures as a set of fundamental and prioritized principles and rules that serves as a framework for the self-ordering of relations between polities. It thereby differentiates between a meta-constitutional and a legal-constitutional dimension and proposes seven analytical tools for more nuanced and empirically sensitive constitutional histories of interpolity relations. Such a historical perspective helps to account for the conditions of emergence as well as to delineate the novelty of contemporary global constitutionalism.

A Universal Approach to International Law in Contemporary Constitutions: Does It Exist?

The effectiveness of the international legal system and its capacity to be ‘universal’ is largely dependent on the attitude of domestic authorities towards international rules, which can be influenced by solutions provided in constitutions. Specific attention should be paid to the role and rank of sources of international law in domestic legal orders and their relationship with the constitution and other national sources. In the past, scholars identified three different approaches to this issue (Western constitutions, Socialist States and Third World countries). However, it is relevant to examine the current state of the art in contemporary constitutions, due to novelties concerning the attitude of States towards international sources. A survey of these texts reveals a spectrum of solutions, including: constitutions that ignore the topic; the express subordination of international law to the constitution and/or acts of Parliaments; and the predominance of general custom and/or international treaties over national legislation. This assessment clearly identifies some potential difficulties for international law to apply equally and indiscriminately across domestic legal systems even if a general survey indicates the increasing openness of contemporary constitutions towards international law. Consequently, a series of mechanisms have also been included in contemporary constitutions to solve conflicts between domestic and international rules. Nonetheless, in some instances, difficulties to reconcile international law with national constitutions can be recognised which contribute to undermining the ‘universal’ character of the international legal order.

Fair Measure of the Right to Vote: A Comparative Perspective on Voting Rights Enforcement in a Maturing Democracy

Fair measure of a constitutional norm requires that we consider whether the scope of the norm can be broader than its enforcement. This query is usually answered in one of two ways: some constitutional theorists argue that the scope and enforcement of the norm are co-terminous, while others argue that the norm maintains its original scope and breadth even if it is underenforced. This Article examines the right to vote when it exists as a constitutional norm and is underenforced by both judicial and non-judicial actors. First, I adopt the position that the scope and meaning of a constitutional norm can be greater than its enforcement. Second, I rely on the argument that underenforcement results not only from judicial underenforcement but also from underenforcement by the legislative and administrative actors that are obligated to enforce constitutional norms to the fullest extent.By employing these two principles, this Article analyzes the underenforcement of the right to vote that has evaded the force of some of the most liberal contemporary constitutions. To illustrate this point, I use Ghana, West Africa - a newly designated “maturing democracy” - as a case study. In particular, I examine Ghana’s prior underenforcement of the constitutional norm of universal adult suffrage through its failure to allow incarcerated citizens to vote. This underenforcement created what I term a “systemic electoral inconsistency.”A systemic electoral inconsistency occurs when a nation’s electoral laws, systems, policies, or practices are at odds with a nation’s democratic ideals. When a systemic electoral inconsistency manifests as a derogation of the constitution, it becomes a matter of constitutional underenforcement. I argue that the underenforcement of constitutional norms, especially in maturing democracies, results from the entrenchment of illiberal extra-constitutional norms among judicial and non-judicial actors despite the existence of a liberal constitution within a democracy. Fair measure of the right to vote should be guided instead by the democratic ideals that define the norm, not the systemic electoral inconsistency that results from its underenforcement. In other words, fair measure of the right to vote is as broad as the democratic ideals that animate the underlying norm. Ghana’s recent judicial triumph over administrative underenforcement of the right to vote both reinforces the fair measure of a fundamental right and instructs maturing - and mature - democracies that underenforcement is not irremediable.

LA CONCEPCIÓN IRENISTA DE LA CONSTITUCIÓN. SOBRE LA POSIBILIDAD DE UNA RECONSTRUCCIÓN ARMÓNICA DEL CONTENIDO ÉTICO-SUSTANTIVO DEL ESTADO CONSTITUCIONAL

Este artículo explora la posibilidad de que las constituciones contemporáneas puedan ser interpretadas de manera armónica, es decir, irenista. Las objeciones más importantes a las que una concepción irenista de la constitución debería hacer frente son las objeciones de la incoherencia y de la inestabilidad. La primera afirma que la armonía no es posible porque se dan conflictos normativos entre los diversos componentes de las constituciones contemporáneas. La segunda afirma que no es posible una armonía de tipo universalista. Una concepción irenista con visos de ser plausible debería poder ser capaz de dar una respuesta a cada una de estas objeciones.

Constitutionalism, ethnicity and minority rights in Africa: A reply to Jeremie Gilbert

Jeremie Gilbert’s article highlights a notable feature of contemporary African constitutionalism, namely its neglect of group or minority rights. The omission, as Gilbert explains, is both deliberate and longstanding. Group-based claims and political formations were anathema to postcolonial Africa’s founding elites. Early official hostility to political mobilization on the basis of ethnicity stemmed from a fear that recognition or encouragement of such activity might challenge and undermine the inchoate national identity that fragilely held the new states’ ethnically heterogeneous populations together. Thus, among the first constitutional and legislative changes enacted by Africa’s postcolonial governments were the proscription of political parties allegedly organized along ethnic lines 1 and the removal of structural safeguards that had been inserted in independence constitutions to preserve a realm of territorial autonomy for ethno-regional subnational communities. 2 Although justified in the name of “national unity,” these measures were also aimed at the time at suppressing political opposition, the most formidable of which tended to represent ethno-regional interests and constituencies, and often supported demands for provincial devolution or federalism. The ideology of national unity was similarly deployed by Africa’s state elites to underwrite both the one-party state and presidential autocracy. In pressing the case for explicit constitutional recognition of the rights of ethnic minorities in African states, Gilbert implicitly rejects the early attempts by state elites to delegitimize political mobilization of ethnicity as a negative force in African politics.

On the Emergence of Science and Justice

In the last few years, justice has emerged as a matter of concern for the contemporary constitution of technoscience. Increasingly, both practicing scientists and engineers and scholars of science and technology cite justice as an organizing theme of their work. In this essay, I consider why “science and justice” might be arising now. I then ask after the opportunities, but also the dangers, of this formation. By way of example, I explore the openings and exclusions created by the recent conjugation of science and justice in the field of personal genomics. Finally, I conclude with reflections on what other forms “science and justice” might take, and what might be gained or lost in fostering them.

Ideas de libertad y modelos de derechos fundamentales. una aproximación

Contemporary constitutionalism can be understood as a formula that seeks to reconcile two basic ideas of our legal and political grammar: constitutional rights and democracy. The former tend to bind power. Are essential for individuals to enjoy a degree of autonomy. The latter is basically a decision-making method that is based in the rule of majority. However, it is unclear how these (tendentially divergent) requirements are articulated. This paper discusses two ideas of liberty and translates them to the scope of constitutional democracy. It is argued that these ideas of freedom are relevant, not only to understand constitucional rights or the institutional framework, for the type of democracy that is projected. Finally, are highlighted advantages and the risk of opting for one or another model.

和谐：当代宪法价值的发展方向<br>Harmony: The Direction of Development of the Contemporary Constitutional Values

传统的宪法价值包括主权在民、法治与分权、对权利的保护、自由至上。和谐作为一个新的宪法概念引入宪法的前提是，就社会成员共同的和必然的选择而言，和谐优于冲突。在社会成员之间，首要的是共同的建立于和谐基础上的公共利益。虽然社会成员各自利益相互独立，其利益会产生冲突。但其协调需要的仍是政府公权力和其所依据的公共利益。政府作为人民共同授权行使公权力的组织，其核心职能正是维护人民的权利、自由，这种主体价值指向的一致性，决定了和谐的必然性。和谐作为一种新的宪法价值，虽然不能取代传统的宪法价值，但其指向则相当明确地代表了当代宪法的发展方向。和谐应当作为宪法价值而彰显。 Traditional constitutional values consist of civil rights, constitutionality & decentralization of powers, protection of rights, and the supremacy of freedom. Harmony can be introduced to the constitution as a new constitutional concept on the premise that harmony is superior to conflict as for the common and inevitable choice of members of society. Common public interest based on harmony is of the first importance among members of society. Individual interests of the social members are mutually independent but in conflict. However, the coordination still requires government authority and public interests to which they are pursuant. The government is such an organization authorized by the people to exercise authorities with the core function of maintaining rights and freedom of the people. The consistency of the subject value orientation determines the inevitability of the harmony. Harmony, as a new constitutional value, although cannot replace the traditional constitutional values, its orientation explicitly represents the development trend of contemporary constitution. The harmony shall be manifested as a component of constitutional values.

<b>Constitucionalismo e Democracia nas Análises Procedimentalista e Substancialista

The goal of this study is to review the themes of constitutionalism and democracy from procedural and substantial views, making a contrast between Dworkin and Ely. The methodology used was the literature review. Inside of this work, it is presented a brief history of constitutionalism, the concept of judicial review, Dworkin’s substantialist view, and Ely’s procedural view. At the end of this work, it is made a contrast between proceduralist and substantialist theories, discussing constitutionalism in Brazil. As a conclusion, it was observed that the contemporary constitutionalism has challenges and both proceduralist and substantialist theories bring contributions to obtain a possible answer to the difficulties encountered in the debate between constitutionalism and democracy.