Exercise Of Constituent Power Research Articles

On the legal implications of a ‘permanent’ constituent power

AbstractThis article examines the development of the doctrine of the ‘permanent constituent power’ in Mexico. This doctrine reflects a long tradition in constitutional theory according to which the exercise of constituent power is a one-time event: once a constitution is adopted, there will be no legal mechanism in place for the exercise of the people’s original constitution-making authority. This view is nonetheless in tension with a notion that has also been historically embraced by liberal constitutionalism: that the people has an inalienable right to alter the form of government. The constitutional provisions that reflect that idea, we will see, can have important implications in terms of the nature and scope of the amending authority and, at the same time, point toward alternative mechanisms for the exercise of constituent authority. By closely examining the operation of those kinds of provisions in the Mexican constitution, we seek to illustrate a tension central to the liberal constitutional tradition and to suggest a way out of it. In so doing, we aim to draw some lessons from the Mexican case that can contribute to current discussions about constituent power and fundamental constitutional change in liberal constitutional orders.

The legal principle of the newest system of Ukrainian law in the activity of the judiciary is legalized

The purpose: to study the rule of law as a principle in the judiciary in such aspects as to clarify the origins of the idea of the rule of law, the relationship between the concepts of the rule of law and the judiciary, analysis of relevant doctrine in Ukraine. Methods: dialectical, hermeneutic, prognostic, comparative-legal, formal-logical, method of modeling, decomposition, complex analysis, intersectoral method of legal research, logical methods that were used as tools to achieve this goal. Results: Applying the principle of the rule of law, the judge must remember it as a global goal of justice - the rule of law in society. The resolution of every dispute and any legal conflict must be aimed at adhering to this principle. Scientific novelty: From a practical point of view, the rule of law determines the place of the judiciary in the system of public power, which should attest not only to the real separation of powers but also to the judiciary's ability to limit the discretion of the legislature and the executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally - an element of the concept of the rule of law) brings together the concept of the rule of law and the idea of the rule of law in modern conditions. The principle of the rule of law in the modern state is studied. Emphasis is placed on the scope of the rule of law, which includes: legality, which provides for a transparent, accountable and democratic process for the implementation of legal provisions; legal certainty; prohibition of arbitrariness; access to justice; respect for human rights; prohibition of discrimination; equality before the law. Conceptually, the rule of law is to limit the arbitrariness of public authority over society and the individual. Different ways of establishing the system of the rule of law (the court through the application of human rights directly forms the system of the constitution - the English tradition; it is created by the people through the exercise of constituent power - the European continental tradition) are not fundamental. From a practical point of view, the rule of law determines the place of the courts in the system of public power, which must attest not only to the real separation of powers but also to the judiciary's ability to limit the discretion of the legislature and executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally an element of the rule of law) brings together the concepts of the rule of law and the rule of law. The article is devoted to a comprehensive study of the theoretical foundations of judicial law enforcement in Ukraine as a special process of practical achievement of the rule of law in the daily activities of courts, carried out after the constitutional reform of justice in 2016-2017. The acute theoretical and applied need to find ways and means to ensure the unity of law enforcement after this reform, which allowed to form a new scientific approach to solving problems of judicial law enforcement. The problem is solved with the help of intersectoral methodology and integration in law, given the expansion of the functions of the judiciary, in particular, in terms of increasing the law-making role of courts (the theory of "soft" separation of state power). The article proves that the current state of transit legislation in Ukraine leads to the fact that the courts of first instance (sometimes - the appellate court as courts of first instance) take on challenges - to consider the case, guided by the rule of law, taking into account not only the balance of public and private interests, but often the existence of gaps in laws or applying poor quality legislation. The result of judicial enforcement in such cases is the completion of a rule of law, which in fact can be considered a judicial rule and become the basis for the emergence of a new law, the maintenance of which during the review of the court decision gives it a precedent, and thus lower courts promote judicial supremacy.

THE LEGAL PRINCIPLE OF THE NEWEST SYSTEM OF UKRAINIAN LAW IN THE ACTIVITY OF THE JUDICIARY IS LEGALIZED

Objective: to study the rule of law as a principle in the judiciary in such aspects as to clarify the origins of the idea of the rule of law, the relationship between the concepts of the rule of law and the judiciary, analysis of relevant doctrine in Ukraine. Methods: dialectical, hermeneutic, prognostic, comparative-legal, formal-logical, method of modeling, decomposition, complex analysis, intersectoral method of legal research, logical methods that were used as tools to achieve this goal. Results: applying the principle of the rule of law, the judge must remember it as a global goal of justice - the rule of law in society. The resolution of every dispute and any legal conflict must be aimed at adhering to this principle. Discussion: from a practical point of view, the rule of law determines the place of the judiciary in the system of public power, which should attest not only to the real separation of powers but also to the judiciary’s ability to limit the discretion of the legislature and the executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally - an element of the concept of the rule of law) brings together the concept of the rule of law and the idea of the rule of law in modern conditions. The principle of the rule of law in the modern state is studied. Emphasis is placed on the scope of the rule of law, which includes: legality, which provides for a transparent, accountable and democratic process for the implementation of legal provisions; legal certainty; prohibition of arbitrariness; access to justice; respect for human rights; prohibition of discrimination; equality before the law. Conceptually, the rule of law is to limit the arbitrariness of public authority over society and the individual. Different ways of establishing the system of the rule of law (the court through the application of human rights directly forms the system of the constitution - the English tradition; it is created by the people through the exercise of constituent power - the European continental tradition) are not fundamental. From a practical point of view, the rule of law determines the place of the courts in the system of public power, which must attest not only to the real separation of powers but also to the judiciary’s ability to limit the discretion of the legislature and executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally an element of the rule of law) brings together the concepts of the rule of law and the rule of law. The article is devoted to a comprehensive study of the theoretical foundations of judicial law enforcement in Ukraine as a special process of practical achievement of the rule of law in the daily activities of courts, carried out after the constitutional reform of justice in 2016-2017. The acute theoretical and applied need to find ways and means to ensure the unity of law enforcement after this reform, which allowed to form a new scientific approach to solving problems of judicial law enforcement. The problem is solved with the help of intersectoral methodology and integration in law, given the expansion of the functions of the judiciary, in particular, in terms of increasing the law-making role of courts (the theory of «soft» separation of state power). The article proves that the current state of transit legislation in Ukraine leads to the fact that the courts of first instance (sometimes - the appellate court as courts of first instance) take on challenges - to consider the case, guided by the rule of law, taking into account not only the balance of public and private interests, but often the existence of gaps in laws or applying poor quality legislation. The result of judicial enforcement in such cases is the completion of a rule of law, which in fact can be considered a judicial rule and become the basis for the emergence of a new law, the maintenance of which during the review of the court decision gives it a precedent, and thus lower courts promote judicial supremacy.

Arato’s Adventures: between sovereignty and constituent power

In this paper, I will argue that the paradigm of sovereign constitution-making, as described by Professor Arato, is inconsistent with the very notion of the constituent power of the people. What the distinction between the sovereign and the post-sovereign constitution-making models do is to bring to the surface an unfortunate misunderstanding long present in our constitutional traditions. The exercise of constituent power, as I will show in Part 1 below, should have always been non-sovereign if understood as a power that can only belong to the populace. In Part 2, that argument is developed further but, rather than challenging the result of Professor Arato’s fine theoretical and comparative analysis, I propose an alternative route towards the same conclusion. The advantage of this approach, it will be seen in Part 3 and 4, is that it avoids the democratic trade-offs that usually accompany the post-sovereign model, such as the creation of interim constitutions by non-elected entities. This alternative route, however, is inconsistent with the way in which the power of constituent assemblies has been understood in many 20th and 21st century constitution-making episodes.

Populist constitutionalism and constituent power

AbstractConstituent power is a helpful component of constitutional theory because it provides a conceptual and potentially normative explanation of how a new constitution can be made without any existing legal authority to do so. Contemporary theories of constituent power, however, unhelpfully treat constituent power as a fictive entity, typically the people, that subsists through time. This predominant account of constituent power fails adequately to explain examples of constitution-making and also lends support to the populist claim that a unitary and unchanging people has an immanent but continuing role as a constitutional actor superior to the constitution itself. This enables populist leaders to rely on prevalent understandings of constitutionalism to support the sidestepping and/or removal of constraints on their power. In this Article, I trace the connections between mainstream theories of constituent power and the academically peripheral claims of populist constitutionalism. I argue for a different understanding of constituent power as a capacity that, in principle, may momentarily be exercised by any entity. This explains how a new constitution can unlawfully replace a pre-existing constitution yet come to have lawful authority itself, without implying the diachronic existence of the constituent power as an entity. I illustrate this understanding of constituent power with reference to the constitutional development of Taiwan and Ireland. These examples show—contrary to the predominant account of constituent power—that constitutional systems may be created without the exercise of constituent power and that constitutional law can play an important role in constructing an entity capable of exercising constituent power. Seen in this way, popular references in preambles are important not for their account of how a constitution was made but rather for their account of whom a constitution is for. This account of constituent power undermines core claims of populist constitutionalism. But it also provides a salutary lesson for liberal constitutionalists: a constitution adopted for a people must broadly serve the interests of that people.

Reforming Withdrawal and Opt-Outs from the European Union: A Dual-Constituent Perspective

This paper engages in a normative critique of the phenomena of Member State withdrawal and opt-outs from the European Union from the perspective of the dual-constituent thesis. Opt-outs from the EU legal order are conceptualised as the retention of the constituent power of Member States to derogate from the norms of the EU constitutional order. By contrast, Article 50 TEU functions as the pooling of the ultimate sovereign authority for nationals of a a Member State to withdraw their consent to engage in the exercise of constituent power at the European level. It is argued that reform should be enacted to limit the power to opt-out to strict conditions established by the EU constitutional order. By contrast, although withdrawal may have more extensive consequences for individuals, the sovereign right to withdraw is a prerequisite for the exercise of the mixed constituent power shared by individuals in their dual roles as nationals of the Member State and citizens of the EU. Therefore, reform of withdrawal could only legitimately be enacted at the domestic level of the 'constitutional requirements' necessary under Article 50(1) TEU.

Reframing civil disobedience: Constituent power as a language of transnational protest

In 1992, the Frankfurt scholar Ingeborg Maus launched a polemical attack against then current narratives of democratic protest, objecting to the languages of ‘resistance’ or ‘civil disobedience’ as defensive, servile and insufficiently transformative. This article explores in how far the language of constituent power can be adopted as an alternative justificatory strategy for civil disobedience in transnational protests. In contrast to current approaches that look at states as agents of international civil disobedience-as-constituent power, I suggest we look at political movements. I focus on the example of the Democracy in Europe Movement 2025 (DiEM25) which understands itself as a pan-European movement of civil disobedience, at the same time working towards an articulation and exercise of constituent power among the people(s) of Europe. In the final section, I sharpen the criteria for the invocation of constituent power in transnational protest in distinguishing between its articulation, activation and exercise.

Democratic legitimacy does not require constitutional referendum. On ‘the constitution’ in theories of constituent power

Constitutional referendum – Popular sovereignty – Constituent power – Democratic legitimacy – Participation in referendum as exercise of constituent power – The legal status conception of the constitution – The legal functions conception of the constitution – Open question whether every provision in codified constitutions is essential to constituent power – Therefore, constitutional referendum not always mandated by democratic legitimacy

The American tradition of constituent power

How do “the people” exercise their revolutionary right to replace the existing constitutional order? The conventional answer is that the people act through specially elected constitution-making bodies like constitutional conventions. But what powers must these specially elected institutions—as the representatives of the people—wield? Must they possess the inherent power to, for instance, unilaterally change the ratification requirements? Or, even if they must submit their drafts to a popular referendum, must they have inherent power to pass laws or displace existing government prior to a referendum? These questions have recently re-emerged in constitutional transformations around the world. Constitution-making bodies with broad inherent legal powers—justified as necessary for revolutionary expressions of the popular voice—have allowed strong partisan factions to use constitution-making to consolidate power. Some scholars—citing recent practice—have argued that we should abandon the revolutionary tradition altogether. A recovery of American debates about the powers of constitution-making bodies, however, shows that these runaway bodies are not necessary to a revolutionary expression of constituent power. On the contrary, the American approach to constituent power presents strong reasons why a revolutionary exercise of constituent power requires an elected constitution-making body to be a proposing body with limited legal powers.

In Praise of Rebellion: Constituent Power and Dissent in the American Revolution

In the context of the American Revolution, alongside the influential notion of constituent power advocated, for instance, by the Federalists, emerged an alternative and potent perspective about this concept. This perspective, which was particularly strong in revolutionary Pennsylvania, had at least two distinctive features. First, rather than limiting constituent power to a sort of ante-room of constitutional authority, this view conferred primacy to the constituent process over the institutional machinery. Second, instead of exclusively assigning the exercise of constituent power to a few specialists, this perspective invented ways for the multitude to exercise its power directly. This article examines this particular vision of constituent power. This investigation, as I argue, can both assist in demystifying some common assumptions entrenched in the concept of constituent power and provide insights for contemporary reflection on the limits of representative democracy.

Constituent Power on Trial: Extra Constitutionem Nulla Salus.

Constituent power is for constitutional theory what god is for cognitive dissonance: a creation of legal consciousness that is necessary in order to make sense of phenomena that are not explainable nor justifiable in terms of positive law to which we are so helplessly bound. Today constituent power is, for that matter, an ex-post justification we ascribe to certain changes that occur in our legal systems. These changes used to be conceived as instances in which, as some claimed, norms were created in a god-like manner ex nihilo. They were willed into existence. The ex nihilo creation is a hallmark of traditional understanding of the role played by the concept of constituent power in constitutional theory. The unfetteredness of constituent power entails a danger of possibility that democratic states will backslide into authoritarian regimes where the citizens are treated as the objects, not the subjects of the state.The main claim of my dissertation is that the practice of constitutional and supreme courts indicates that the constituent power of free and equals cannot be understood as unlimited and that it should not be regarded as such in light of the theoretical justification I provide.Based on the practice of constitutional and supreme courts, the constituent power is not unfettered because there are principles and values based on which these courts strike down constitutional amendments. Courts declare the unconstitutionality of constitutional amendments which infringe upon certain principles and values that are claimed to be either sine qua non of a constitutional state governed by the rule of law, or belong to the fundaments of the constitution. Often these principles and values are not found among constitutional provisions. Moreover, the courts establish those limits regardless of whether such an authority has been provided to them by constitutional framers or without there being any substantive entrenchment provision on which the courts could ground their decision.I propose a theoretical account of constituent power that is limited. It is limited because its ultimate aim is creating a constitution which makes a claim to legitimate authority. Legitimate constitutional authority requires that the norms establishing basic procedures, institutions and substantive rules that claim authority over someone must be reasonably justifiable to them as free and equals endowed with human dignity. According to the theory I am proposing there exists a ‘core of constitutionalism’ which consists of normative presuppositions that condition how the constituent power of free end equals can be exercised. In my project I intend to argue that we can conceive of how and in what way the exercise of constituent power of free and equals produces constitutional law which makes claim to legitimate constituent authority.

The Treaty of Waitangi as an Exercise of Māori Constituent Power

This article analyses the Treaty of Waitangi in light of Carl Schmitt's concept of constituent power – the idea that in a democracy the people hold the power to make fundamental political decisions to determine their form of political existence. It finds that in 1840, Māori, as the holders of constituent power, made a fundamental political decision to share authority between themselves and the Crown. This fundamental political decision is a key element of the New Zealand constitution; limiting potential constitutional changes that would override the substance of the decision, and requiring changes to the current legal framework in order to comply with the decision to share authority. This article focuses solely on the conservative implications of characterising the Treaty as a fundamental political decision. It concludes that only a further exercise of constituent power by Māori can legitimately override or significantly change the fundamental political decision in the Treaty.

Constituent power and Carl Schmitt's theory of constitution in Kenya's constitution-making process

The decade-long constitutional reform process in Kenya spans two phases. The first ended with a High Court decision that the constitution-making process was unconstitutional because it failed to provide an opportunity for the exercise of constituent power by the Kenyan people. In the second phase Parliament sought to shield substantive questions of constitutional design from the reach of the constituent power. Drawing on Carl Schmitt’s constitutional theory, this article argues that although paradoxical, such treatment of the constituent power is theoretically coherent. Reading Schmitt’s theory closely reveals that, despite himself, Schmitt accepts limitation of the constituent power where the nature of law and liberal constitutionalism demand it. The article does not apply Schmitt’s constitutional theory, so much as read it against itself to suggest that it bears close resemblance to Fuller’s and Dworkin’s jurisprudence. At the same time, the article seeks to understand the Kenyan constitutional reform process, and ultimately questions whether the limitations placed on the constituent power in Kenya are consistent with theoretically acceptable limitations.