Contemporary Constitutionalism Research Articles

A Democracy-Friendly Theory of the Rule of Law

The dominant way of thinking about the rule of law is that it is a constraint, a limit, on government. On this view the limitation applies with full force to all forms of government, democratic and undemocratic, and to both the executive and the legislative branches. The privileged institution for enforcing those limits is the courts. Democracy and the rule of law are, in effect, portrayed as though they were in opposition to one another. That, I claim, is a mistake (a) historically (for, in the Anglo-American tradition, the rule of law developed first as a restriction on an undemocratic executive, with a less undemocratic Parliament acting in concert with the courts to institute the rule of law); (b) in principle (for there is a strong argument that democracy needs the rule of law for its fullest expression, and the rule of law needs democracy); and (c) strategically (because it hinders us from mobilizing our full resources to protect both principles; this paper began its life as a response to populist movements, many of which, wrongly, are conceded to be democratic). In this paper I make that case, especially focusing upon its most controversial claim, namely that the rule of law needs democracy. This paper forms part of a larger project on democratic constitutionalism in which I reconsider key concepts in constitutionalism in a manner that takes democratic decision-making to be fundamental to contemporary constitutionalism.

St. John Paul II’s Natural Law Legacy and International Human Rights Culture of Human Dignity – A Road to Universal Brotherhood and Peace

The text underscores the pivotal role of human dignity in shaping the notions justice, peace, and human rights in the 21st century. The author advocates a return to the core principles of key documents on this subject to counter the influence of various ideologies and totalitarian regimes. Highlighting secular and faith-based sources including the Universal Declaration of Human Rights and Vatican II Council Declaration, the text emphasizes human dignity as the meeting point for religious and secular humanists. It underscores the belief in the innate value of individuals and their equality in dignity, derived from the Judeo-Christian tradition. The three dimensions of Me, Thee, and We are explored, emphasizing personal uniqueness, respect for others, and societal responsibility. The text concludes by advocating for a culture of human dignity in politics, serving as the basis, purpose, and criterion for public policies, promoting equal dignity and fraternity for a just and unified society. The text discusses the historical evolution of the concept of human dignity in global constitutional history, highlighting its presence in contemporary constitutions and international declarations. It advocates the promotion of a culture of human dignity, encompassing gold and silver ethical principles. The conclusion emphasises the need for a renewed commitment to a culture of human dignity in line with the legacy of John Paul II.

Is Climate Emergency a Constitutional Emergency?

Abstract More than 2,000 public authorities worldwide have to date declared a “climate emergency”. Can these declarations be framed within the constitutional category of emergency? And what legal consequences do they entail? To answer these questions, this paper confronts the basic features of constitutional emergencies, as arising from legal scholarship and contemporary Constitutions, with the characteristics of the climate issue. The conclusion is that climate change cannot be framed within the category of constitutional emergency, but rather in that of constitutional crisis, as it does not require a temporary suspension of the constitutional order but a structural modification of it.

Environmental Protection in the Amazon: Constitutional Dialogues for International Cooperation

Taking into consideration the increasing relevance that environmental constitutionalism has currently assumed, the aim of this article is to critically analyze the constitutional protection of the environment in the Amazonian countries. It seeks to identify whether there is a common language among the constitutions concerning environmental protection in order to improve international cooperation. The hypothesis states that: 1) the Amazon environmental constitutionalism follow the epistemological opening of contemporary constitutionalism, by assimilating innovations in each new constitution; and, 2) the constitutions establish normative elements for the improvement of international cooperation in the region. The reflection is grounded on the field of comparative constitutional law, in dialogue with international constitutional law and constitutional theory, in a functional-structural perspective, focusing the “legislative” formant.

The Rule of Law and Criminality in the Republic of Kosovo

The principle of the state of law is undoubtedly one of the most important and essential principles for any state and democratic society. Its fullest realisation in everyday life is the best guarantee for the development of democracy as well as recognition and enforcement of citizensʼ fundamental rights and freedoms. To this end, the general principles of the rule of law today occupy a special place and are fixed explicitly in contemporary constitutions and democratic legislation. However, it should be borne in mind that the existence of the constitutional and legal framework is only a necessary premise for the rule of law. Equally important is the functioning of various control mechanisms for the implementation of constitutional and legal norms, and especially, the creation of a new mentality among both public officials and citizens expressed in the awareness to the needs for the implementation of these norms and in the reaction with legal and democratic means against their violation by anyone. The Balkan Peninsula represents great strategic importance, not only for the surrounding states but also for the criminal groups that interact in this region. Many Balkan states have been through and currently are in deep democratic transition and it is difficult to break away from their historical past. Although many law enforcement agencies in this region stand out for their professionalism, the impact of consecutive wars presents decisive factors for the triumph or failure of law enforcement institutions against various crimes in this European area. The last war was waged in Kosovo, which ceased in June 1999, has a significant importance in the increase of criminality in Kosovo. After 1999, due to poorly controlled borders, lack of legislation, creation of a new police, and the establishment of the justice system, many criminal groups from the field of narco-criminality took advantage of this situation by creating organized criminal networks for the purpose of trafficking narcotic substances and psychotropic substances from the country of origin, transiting through Kosovo, and continuing towards the country of destination which was in Western Europe. The current internal processes that Kosovo is facing are economic and social development, which are still far from regional and European development structures, which as a result of poverty and lack of perspective, for a significant part of Kosovan society, are resulting with a high crime rate. The geostrategic position of the Republic of Kosovo in the Balkans, as well as the created post-war conditions, enables various criminal groups to carry out organised crime activities. High levels of unemployment and poverty, high levels of corruption in state institutions, and lack of free movement outside Kosovo contribute to creating appropriate conditions for the development of criminality in general and organised crime in particular. In support of various analyses conducted during the research, is the author has noticed that the Republic of Kosovo, compared to EU countries, has a lower level of criminality, while compared to countries in the region where the criminality level is higher.

Constitutionalism “of” the Global South? Epistemological reflections on emerging constitutional trends

Taking into consideration the recent studies on the “constitutionalism of the global south”, the aim of this article is to critically analyze the applicability of the mentioned concept, highlighting the potentialities and inadequacies of its theoretical construction. The hypothesis states that notwithstanding the relative frailties on the concept of “global south”, it is possible to conceive the emergency of a “constitutionalism of the global south”, grounded on singular innovative experiences of several “southern” countries, which are relevant contributions for the common heritage of democratic constitutionalism. The article, an outcome of researches carried out between Brazil and Italy, with the use of hypothetical-deductive method, is methodologically grounded in the field of constitutional theory, with some elements of comparative constitutional law, and is divided in three topics: I. Defining constitutionalism: concept and evolutions; II. Constitutionalism, the global north and the south; III. Constitutionalism of the global south: a critical analysis. As results, the hypothesis has been partially confirmed, as it has been evidenced the inadequacy of the concept “constitutionalism of the global south”, for its vagueness and ambiguous delimitation. Therefore, it would be more appropriate to comprehend the constitutionalism of the global south as a “constitutionalism from the global south”, as an attempt to emphasize the diversity on global south constitutionalisms and, through this, increase the analytical perspective of contemporary constitutionalism complexity. Thus, in a “multicentered approach”, constitutional theory fits a more adequate position to analyze constitutional innovations, considering that center and periphery are conditional concepts, especially when referring to contemporary constitutionalism.

Post-Liberalism: The Problem of Political Form and Regime

The application of Thomistic Aristotelian principles to contemporary constitutionalism has involved many shifts and transformations: from postwar Christian democracy to post-liberalism. In order to evaluate these changing assessments, the article discusses and compares the work of Pierre Manent and John Milbank who provide a useful long term historical perspective on the relevant issues. The article explores how Manet’s emphasis on the theologico-political problem seems inescapable in one form of another in appraising the origin, development and the future of the liberal regime as well as any possible alternatives. Nevertheless, Milbank’s work points to more fruitful post-liberal institutional forms capable of sustaining an Aristotelian conception of political association. Despite this, the theologico-political problem arguably still affects how such political structures are to be thought and developed with tensions involving the realization of cardinal and supernatural virtues intrinsic to the balances that need to be struck.

Constitutional embodiment of people with special needs A comparative study

The issue of the constitutional embodiment of people with special needs is one of the important topics. That is because disability has a great role for the disabled person, his family, and individuals in society in general. It makes this social group face great difficulty in bearing the burdens of life. And due to the increasing percentage of people with special needs globally, in the Arab world and locally, caring with them has increased.
 With the growth of human knowledge, the fertilization of experiences and the exchange of information among the countries of the world, most constitutions paid attention to this phenomenon, and interest in it evolved from one constitution to another, with the change of constitutional formulations, to ensure more rights for this important group in society.
 By adopting an analytical description based on the analysis of constitutional texts, and a comparative approach that compares the constitutional articles related to people with needs with similar ones in the constitutions of other countries, the research seeks to clarify the importance that the constitution attaches to this category of society.
 The research is divided into three chapters, the first of which deals with the concept of people with special needs, and the second deals with the development of legal interest in them. The third deals with the rights and privileges of this social segment in contemporary constitutions.

A Theoretical War: Accounting for American Imperialism in the Middle East

Abstract This review surveys two decades of academic research on the question of contemporary imperialism and holds it up against the historical record of America’s increasingly violent entanglements in the Middle East over the course of the previous half century, though particularly since 2001. While early contributions to this literature emerged from a different context than the one they often sought or were expected to explain, others attributed a simplistic and problematic understanding of the relationship between US foreign policy and the political-economy of petroleum. Later contributions then eschewed a close analysis of imperialism in the Middle East in favor of a broader accounting of the dynamics of global capitalism. This review ultimately critiques the widespread assumption that the vitality of hegemony and capital must be assessed in relation to their ability to secure control and homogenous conditions of reproduction. A more robust understanding must be based in an approach that views the economic and the political not as fundamental units of analysis but as sites of struggle in the historical and contemporary constitution of imperialism.

Dignitatis Humanae and Human Rights in Philosophical and Legal Existence and in Contemporary Constitutionalism: Division and Reunification

The article analyzes the concept of “human dignity” in the context of philosophical and legal existence; scientific and philosophical identification of dignity as a polysemantic concept allows us to state its universal value and consider it as a universal legal and ethical category. The research work reveals the views of modern philosophers and lawyers on the nature and role of dignity in relation to human rights. The aim is to study the philosophical foundations and legal aspects of human dignity, to highlight the conceptual foundations of dialogue and the co-existence of human dignity and human rights in modern philosophical and legal discussions. The polysemy and polymorphism of human dignity is combined with a wealth of concepts of dignity, especially in modern constitutional jurisprudence and the practice of constitutionalism, and a unified theoretical basis for the relationship between individual dignity and human rights. The author used general and specific research methods, including methods of dialectics, inductive-deductive analysis, legal hermeneutics and legal engineering and a discursive approach, critical rationalism, and legal realism. Conclusions: dignity as a philosophical and legal category in modern discussions has several of the most important hypostases, reflecting the fundamental categorical meaning: a) the category of ethics and humanistic understanding of man; b) a legal category with a significant variety of legal forms of consolidation at the international, supranational and domestic levels, in the branches of legal regulation; c) a historically changeable category, affecting both the evolution of ethics and law, the legal status of individuals. The article proposes four approaches to the relationship between human rights and human dignity, which are based on four concepts of human dignity: 1) dignity as a gift and heritage; 2) dignity as a social achievement and social honor; 3) dignity as human capacity; 4) dignity as human potential.

Political representation in positive law

Looking at political representation in the norms and provisions established or positioned in the legal order, we can say that the Albanian legal order contains norms that try to preserve the autonomy of each representative, which formally positions political representation as a situation of representativeness. The legal order also contains norms which, starting from the idea of a permanent relationship between the representatives and the represented, discipline the moments and ways through which these relationships connect the representatives with the represented. However, political representation beyond the relational dimension must be manifested above all in terms of the representation of national unity and sovereignty. Only in this way can political representation enter into symbiosis with the very concept of the State of the right to guarantee subjective rights beyond sectoral or corporativist influences. In this sense, the institution of banning the mandatory mandate is sanctioned in positive law, as one of the fundamental principles of contemporary constitutions. However, the political-juridical reality has been able to establish this principle not only through strictly political behavior but also through normative corollaries. This paper aims to highlight the constitutional and legal moment in which political representation is located. To highlight how political representation approaches positive law when it tries to relate both to the representative and “popular sovereignty”. Finally, the paper manages to conclude in critical terms on political representation, on its relationship with the represented subjects, and its bias in favor of political parties and their leadership.

Between Globes and Cones

Abstracts Increasingly preoccupied with the imaginative dimension of contemporary constitutionalism its theorists are yet to offer an analytically sophisticated, conceptually illuminating, and practically useful account of constitutional imagination – not as a historical phenomenon, but as an ongoing, professional activity. The aim of this essay is to contribute to this objective by exploring how theoretical definitions, observations, figurations, representations, narrations, justifications, and aspirations shape – and may yet to shape – our understandings of constitutionalism, constitution-making, constitutional authorship, constituent power, democratic decision-making, sovereign will, institutional hierarchy, legitimate authority, and the role of constitutional norms in political contestation around the world.

Judicial Landmarks in Modern Governance: The Contemporary Constitution in a Common Law Medium

Governance institutions evolve within historically-marked ‘frontiers’, but the judicial sector more so, in view of its sharper normative design. The motions of courts are shown to rest upon legal principles and patterns that draw cast and moulding from inputs of scholars and jurists nurtured in the common law tradition, and their heritage has constantly attended upon the conception and formulation of the modern codified Constitution, which constantly draws upon the same for its effectuation. The Constitution, therefore, rests upon the people’s sovereign mandate, and the direct legislative signals, just as it remains predicated upon regular interpretation and re-definition by the values of the judicial order, largely evolved under the common law tradition – and thus, dependent upon the inspirational works of ages, of distinguished jurists in that tradition.

Konstytucyjny wyraz zasady niezależności państwa i związków wyznaniowych

The aim of the study is to specify and analyze the expression of the principle of independence of the state and religious associations in contemporary constitutions. This is preceded by an attempt to establish the ideological roots of the principle of independence of the above-mentioned entities. Primarily, the formal-dogmatic and legal-comparative methods were used. The historical and legal method was used as a subsidiary. The texts of all binding constitutions were analyzed in terms of the articulation of the aforementioned principle of religious relations. The principle of independence of the state and religious associations is one of the main normative directives of religious relations in contemporary Poland. It has ideological roots not only in Catholic social teaching, but also in the liberal doctrine. Since the end of the 20th century, it has found a permanent place in the constitutionalism of a number of European secular (non-religious) states and some Latin American states.

The Mixed Constitution of Demetrius Phalereus

SummaryThe politeia established in Athens in 317 after a covenant between Cassander and Demetrius of Phalerum was variously described by ancient authors as a tyranny, an oligarchy, and a democracy. Even among modern scholars there is no agreement about its definition. A close study of the architecture of the so-called regime of Demetrius and a comparison with the almost contemporary constitution of Cyrene, imposed on the African town by Ptolemaeus I, lead us to characterize it as a mixed constitution, which balanced elements from the three principal types of political organisation. This experiment had a strong impact on the Hellenistic and Roman political traditions, as testified by Cicero, who recalled Demetrius as the last great Athenian lawgiver and inventor of the blended constitution.

The Freirechtsbewegung: a source of ideas that survives to this day in various theories of law, even in the contemporary constitutionalism

El presente trabajo analiza el Movimiento del Derecho Libre. Revisa y sistematiza sus principales postulados, todo con la intención de revelar las semejanzas que existen entre ellos y teorías del Derecho contemporáneas, especialmente aquellas surgidas al amparo del Constitucionalismo contemporáneo.

Property as a Fiduciary Relationship and the Extension of Economic Democracy

During the last two centuries, property understood as an exclusive and unlimited dominion became common sense. Before, the idea of property as a fiduciary relationship, which is still present in contemporary social constitutionalism, was closely linked to the view that the exercise of freedom entails the capacity to shape those property rights that channel socioeconomic life. Today, new ways to operationalise such an approach must be found. This article explores the scope of ‘direct strategies’ (the state as proprietor, democratically limited forms of private property, and common property) and ‘indirect strategies’ (the distribution of ‘social power’ through the introduction of unconditional public policy schemes such as basic income) in the recovery of the idea and the practice of collective fiduciary control over the economic realm.

Problematyka większości głosów wymaganej dla zmiany Konstytucji RP z 1997 roku

SOME PROBLEMS ASSOCIATED WITH THE MAJORITY OF VOTES REQUIRED FOR AMENDING THE 1997 CONSTITUTION OF POLAND The aim of this paper is to supplement the findings made by the doctrine of constitutional law regarding the requirements of the majority of votes for amending the 1997 Constitution of Poland at the parliamentary stage of that procedure. The following issues will be analysed in particular: the significance of constitutional amendment rules in a democratic system of government and their impact on its rigidity and durability; the role of the quorum as a factor contributing to the majority of votes’ requirements and some political dilemmas associated with that matter; the reasons and consequences of adopting different levels of the majority of votes for amending the Constitution in the Sejm and the Senate and their relation to the form of the relationships between those chambers. Regulations regarding amending the 1997 Constitution of Poland will be presented against a background of contemporary constitutions of European states. The important interpretative context will be constituted by the issues of axiology of democracy, parliamentary bicameralism and legitimization of power.

The constitution of political contention: The case of protests and riots at the turn of the 19th century

How is political contention constituted as an intelligible political practice, distinct from mere social disorders? This article gets at the question by analysing the relation between protests and riots at the turn of the 19th century in England. Drawing on Michel Foucault’s discussion of visibilities and post-foundational political theory, it contrasts the 1760s Wilkes and Liberty agitations with that of the London Corresponding Society in the 1790s. It articulates two ways of configuring the relation and constituting political contention in the self-governing practices of contentious actors. In the first case, political contention is an exercise of public spirit that may include riots and is opposed to passivity or factional interest. In the second, it is a process of public inquiry premised on a constitutive exclusion of riots. The comparison reveals how the emergence of protest politics also resulted in a new way of delineating and constituting political contention. In this way, it offers a new perspective on the contemporary constitution of political contention.

INTERSECCIONALIDADE E DIREITOS HUMANOS: UMA ANÁLISE DA SENTENÇA DO CASO DOS EMPREGADOS DA FÁBRICA DE FOGOS DE ARTIFÍCIOS EM SANTO ANTÔNIO DE JESUS (BA)

It focuses on intersectionality as one of possible parameters of contemporary constitutionalism. It examines the interconnection of fundamental notions of non-discrimination, race, gender, class and labour market in the design of notion of intersectionality based on analysis of the judgment handed down by Inter-American Court of Human Rights in case of explosion of the fireworks factory in Santo Antônio de Jesus (BA), drawing inspiration from thought of Kimberlé Crenshaw. This is an exploratory, qualitative study, with bibliographical resources and dialectical method, highlighting the relevance of the Court's role and indispensability of an intersectional reading and applicability of human rights.