Global Constitutionalism Research Articles

Social Sciences (Miscellaneous): Categories of Morality and Ethics in Modern Dominant Socio-Philosophical Concepts

Annotation. This article is devoted to the analysis of the categories of morality and ethics in the modern socio-philosophical concepts dominating in the world. The work provides a comprehensive analysis of the concepts of "morality" and "ethics" as socio-philosophical categories and as phenomena of social reality. In particular, morality in the work is understood as a set of ideas accepted in a particular society (which can be formalized in the form of regulations, legal customs and judicial precedents, or reflected in traditions, folklore, linguistic culture and other stable forms of social communication) about possible and acceptable boundaries of human behavior and his relationship to the surrounding reality (primarily society, man and nature), through the prism of which a person manifests himself as a thinking being with freedom of internal choice. In turn, ethics in work is understood as the internal side of morality, which is formed in a person in the process of interiorization of his psyche, which is a set of ideas conscious and accepted by a given person about the possible and acceptable boundaries of his behavior, as well as about his relationship to the surrounding reality (material and the immaterial world). The article substantiates the concept of a dominant socio-philosophical concept and provides a system of features identifying it. The authors analyze current trends in the positioning of the concepts of "morality" and "ethics" in the main socio-philosophical concepts dominant in the modern world: neoliberalism; neoconservatism; liberalism; conservatism; neo-anarchism; neo-marxism; marxism (proletarian internationalism); anti-globalism; alter-globalism; global constitutionalism; Islamic radical fundamentalism; Shiism; Sunnism, traditional and Orthodox Judaism, Chabadism. The work substantiates the position that the processes of globalization, which currently cover all of humanity, lead to an extremely negative tendency to smooth out contradictions regarding the ideas of the dominant socio-philosophical concepts on the model of man within their framework, one of the typifying features of which is the formation in human society of a new morality (an anti-moral person), whose behavior and attitude to the surrounding reality is increasingly determined by the system of his desires and needs, which, in turn, are increasingly formed in a manipulative manner by the global managing elites represented by the global managing class, without having any relation to the real needs of both individual citizens and society as a whole, ensuring their preservation and full development as rational, self-aware and free individuals.

All in good time: temporal forms of public law decisions

ABSTRACT Assessing when a legal entitlement begins and expires is necessary to make sense of the law. To this end, the law resorts to the following temporal slots: a present, which the law can regulate, and a past and a future that, to different extents, are usually outside of the law’s scope and command. Sometimes, however, past and future issues need a present regulation, and therefore laws with a backward or forward-looking projection are enacted. Global constitutionalism is traditionally at odds with an unlimited projection of the law in time and therefore is sceptical of retroactive and ‘ultractive’ laws. Still, the more moderate forms of retrospective and ‘ultraspective’ laws can usefully tackle public law decisions, since they inherently live in a mobile flow of time that rejects a strict division between past, present, and future.

When Should Courts Invalidate Constitutional Amendments?

Abstract Courts having the ability to invalidate procedurally correct constitutional amendments for violating core democratic or constitutional values is a growing practice in global constitutionalism. However, this power is generally exercised by courts on a whim and very often without any textual basis. Such actions raise serious legitimacy concerns and can undermine efforts towards regular constitutional change. In extreme cases, this power has been wielded by courts in ways that contribute to democratic backsliding rather than its prevention. Few solutions to police this power of courts and prevent net negatives exist. These solutions either fall short of addressing the challenges of courts invalidating procedurally correct constitutional amendments or rely heavily on judges’ restraint and good faith, qualities which we struggle to see in many jurisdictions where courts exercise this power. In turn, this article outlines a template for courts to use when evaluating the validity of procedurally correct constitutional amendments. This article’s suggested template hopes to prevent courts from misusing their powers while still leaving sufficient room for them to act to prevent threats to a polity’s democratic and/or constitutional project. It aims to do so by reducing the subjective discretion available to judges relative to other available templates.

Which global constitution? The illiberal globalism of the US Supreme Court’s Dobbs decision

Abstract Fostering global constitutional discourse has long been anathema to the conservative legal movement within the United States. In Dobbs v Jackson Women’s Health Services, which overturned Roe v Wade’s right to an abortion, the court’s conservative justices relied on a globalized analysis. In this article, I identify three potential hypotheses to explain this deviation from conservative orthodoxy. Dobbs’ conservative globalism could be explained by attitudinal preferences, legitimation concerns or the influence of illiberal legal networks. I compare the proceedings of Dobbs against Carson v Makin and Kennedy v Bremerton School District, the other significant Constitutional cases from the court’s 2021–22 term, to deal with religious issues. These two other cases did not feature global citations, despite such citations being able to advance the Justices’ policy preferences or blunt legitimation concerns. Lending credence to the illiberal network hypothesis, Alito’s Dobbs opinion was reliant on a unique amicus briefing by a global network of anti-abortion scholars advocating on behalf of the natural family. Such network campaigns were absent from the proceedings of Carson and Kennedy.

Feminist constitutional narratives, the pandemic and hyper-presidentialism in Turkey

Constitutional resilience has been tested by various crises worldwide, and the COVID-19 pandemic constituted another litmus test for global constitutionalism. In Turkey, the pandemic came three years after a constitutional revision introduced hyper-presidentialism in 2017, which undermined the separation of powers and the system of checks and balances. This article looks at the period that begins with the official announcement of the COVID-19 pandemic in March 2020 and ends with the assessment of the general elections of May 2023 to document three years of hyper-presidentialist constitutionalism and the counter-responses to it proposed by the Turkish feminist movement and the constitutional institutions that still remain autonomous from the executive. By combining conventional constitutional methods with the critical feminist positionality approach, this article diagnosed the impact of the pandemic on authoritarian regime-building. Based on feminist constitutionalism, this scholar activist approach shed light on some overlooked aspects of the pandemic in Turkey, such as persistent déconstitutionalisation and its link with anti-gender politics, to reveal the living essence of authoritarian constitutionalism and the evolution of hyper-presidentialism in Turkey.

Descriptive global constitutionalism and its discontents

Descriptive global constitutionalism and its discontents

사회변동과 입헌주의

Revolutionary social changes have led to reformations in the constitutional system of countries in human history. In this sense, Constitutionalism has had a direct impact not only on the countries and their people, but also on the lives of the mankind as a whole. Constitutionalism in the modern sense, a concept that is based on a society in which people are the masters of their own and that guarantees human freedom and rights, originates from the American Revolution of 1787 and the French Revolution of 1789. The bourgeois revolution brought about a fundamental social transition from monarchical sovereignty dominated by absolute monarchies to popular sovereignty. Modern constitutionalism has gone through many kinds of “challenges and responses”. Firstly, the industrial revolution of the 19th century led to the Proletarian Revolution. In the 20th century, after World War I, the world was split into people's democracy and liberal democracy. After World War II, the world was divided even more sharply. After the fall of the Berlin Wall in 1989, however, communist people's democracy virtually came to an end. In the early 21st century, as the 9/11 terrorist attacks made a new inflection point, the traditional legal system and legal theory also brought about fundamental changes. In addition, with the progress of the intelligent information society, drastic changes are coming to human life.
 The Constitutionalism which is resulted from gradual social reform in Britain and radical social reform in the United States and France, has been the model one for other countries in the world. Yet, the establishment of Constitutionalism is still far away in the Middle East and Africa. Constitutionalism in Latin America also remains unstable. Constitutionalism in Asia is entering a stable stage in many countries. The discussion on whether globalization of Constitutionalism, “Global Constitutionalism”, is feasible, will be enabled only by considering both the current situation of the human world and the present status of individual Constitutionalism in each country simultaneously. As each country is developing its own Constitutionalism, global Constitutionalism must substantially guarantee the freedom and rights of each members of people based on popular sovereignty. Since the actual meaning of Constitutionalism very diverse in each country and the essence of Constitutionalism, in some country, could be seriously distorted, Global Constitutionalism is still far away and its implementation is also unclear.
 Unlike the nature of revolution, Constitutionalism is an ideology that is established on the continuity of history. People should internalize constitutional values for the success of Constitutionalism. It is time to develop a theory based both on a general understanding of foreign constitutional theories and on the norms and reality of Korean Constitution. In other words, while being based on modern natural law theory that is the common value of the modern constitution, it must be based on legal existentialism which recognizes and adapts to the existential legal norms and legal realities that are unfolding in Korea. By doing so, a theory of balance can be established in the understanding and practice of constitutional law through the harmonious development of legal ideology and legal stability that are sought to be established in the contemporary era. Only when the Constitution, the country's basic law and highest law, is implemented in the country and breathes with the people, does the Constitution become the “people's charter for life.” At that time, the Constitutionalism of a democratic rule of law based on popular sovereignty can open the way for the rule of law to take root in the lives of the people.

Actual Problems of the Theory of State and Law in the Works of German Lawyers of the Late XX – Early XXI Century

The importance of the theory of state and law as a basic fundamental legal science is generally recognized in European jurisprudence. This is especially true for the countries of the Romano-German legal family. The article shows the points of view of famous German jurists, philosophers, sociologists on topical issues of the theory of state and law. It is important to study the basic theoretical and legal views of representatives of the German law school, since they, along with scientists from other countries, have made a significant contribution to the development of theoretical and legal science. The purpose of the article is to draw the attention of the Russian legal community to the works of German lawyers that have not been fully translated into Russian. The article begins with a description of the problems of methodology and justification of the chosen comparative legal research method. In relation to the theory of the state, the issues of global constitutionalism, problems of state sovereignty, changes in the role of the state in modern society, the emergence of new functions for the state, the theory of the liberal state and its criticism are considered. The problems of the theory of law raised in the article relate to the issues of the system and self-production of law, legal interpretation and non-legal interpretations, the limits of legal regulation, legal positivism, concretization in law, judicial lawmaking, the views of the Frankfurt School. Attention is paid to the problem of the value justification of law and sociocultural factors in law, the relationship between law and culture. The article may be of interest to specialists in the field of theory of state and law and comparative law.

Dead or alive? Global constitutionalism and international law after the start of the war in Ukraine

Abstract Russia’s continued aggression against Ukraine has sent shock waves around the world. Russia has violated the most fundamental rule of international law and most people intuitively feel that the war in Ukraine has changed the entire landscape of international society. Given what is clearly a turning point, it is difficult to assume that global constitutionalism founded on ‘human rights, the rule of law and democracy’, called ‘the constitutional trinity’, will not undergo any changes. Can global constitutionalism survive such a difficult moment? This is a fundamental question that global constitutionalists must address. This article answers this question in the affirmative. First, despite its gross violations of international law, Russia is not necessarily attempting to withdraw from the current framework of international law. The existing individual-centred elements in international law, which are the central pillar of global constitutionalism, will not be replaced by any alternatives. Second, even if the existing framework of international law remains viable, there is an undeniable risk that the polarization of international law accelerated by the ongoing war will negatively affect global constitutionalism. Such polarization may hollow out the constitutional trinity in international law. However, global constitutionalism will continue to function as the principal cognitive framework for international society because the exercise of individuals’ rights embedded in international law will incessantly provide energy for global constitutionalism. This article concludes that insofar as international law keeps its individual elements, global constitutionalism will be able to retain its normative power under the present predicament in the world.

THE "LARGE BARYON PUMP OF THE EARTH" AS A NATURAL IMAGE OF THE "TREE OF LIFE" AND AN OBJECT OF ENVIRONMENTAL LAW, WHICH IS INTEGRATED WITH THE NATURAL ENVIRONMENT OF MAN

THE "LARGE BARYON PUMP OF THE EARTH" AS A NATURAL IMAGE OF THE "TREE OF LIFE" AND AN OBJECT OF ENVIRONMENTAL LAW, WHICH IS INTEGRATED WITH THE NATURAL ENVIRONMENT OF MAN

THE GERMAN FEDERAL CONSTITUTIONAL COURT APPROACHES PROPORTIONALITY ANALYSIS AS A LEGAL REASONING METHOD TO DECIDE INVOLVING COMPETING RIGHTS CASES

The research focused on the proportionality analysis (proportionality principle) as a Legal Reasoning Method to decide competing rights caseS in the German Federal Constitutional Court (GFCC) or Bundesverfassungsgericht. It is the ultimate rule of law, global constitutionalism value, and the benchmark for constitutional judges to review conflicts between individual rights and state interests. Hence, an analysis model for measuring conflicts of competence between the European Union and Germany. It is four stage assessment analysis: legitimate aims, suitable, necessary, and balancing (strict sense). The result of the research saw that it is used as a constitutional reasoning model in landmark decision cases in 2020-2022, namely: the European Central Bank asset case, the climate change case, the Election of a Vice-President of the Bundestag case, and the Bavarian Constitution Protection Act case. Based on these case reviews, it is well applied, systemised, structured, and comprehensive in each case. However, not all stages are used in competing rights analysis, especially the balancing test as the last analysis in proportionality.

War in World Society: Towards a new order of global constitutionalism?

AbstractIn world society, all wars are world wars and so is the present war in Ukraine even if the use of violence is broadly restricted to the Ukrainian area (a restriction imposed clearly imposed by global politics). World society emerged between 1750 and 1850 together with the first world wars and world revolutions that were fought on all continents and oceans (1). There is no society beyond world society any longer. The world society pushes (but by no means sufficiently) (a) law and politics to institutionalise a world constitution and (b) social actors to culturally symbolise global mindsets, world views and normativity (2). Yet, only a second wave of world revolutions and world wars between 1900 and 1950 caused the rise of autonomous world law that enabled a now interrupted but still lasting global process of fully inclusive democratisation (3). However, the rise of world law in 1945 was followed by its fall after 1989, and the present wars in Ukraine and beyond come close to a complete destruction of world law. There is only a small chance to end the use of violence in Ukraine that cannot and should not lead to sufficient victory of one of the warring parties but to a reconstruction and new foundation of world law and the constitutional order of the world. The alternative is not the national state but failed states and anomia (4).

Passionate humility for global constitutionalism in the aftermath of the Russo-Ukrainian war

Passionate humility for global constitutionalism in the aftermath of the Russo-Ukrainian war

Critique of digital constitutionalism: Deconstruction and reconstruction from a societal perspective

Abstract Digital constitutionalism is a strand of scholarship that focuses on the relationship between constitutional law and the socio-legal challenges posed by the digital revolution. However, such scholarship often builds uncritically on the tenets of liberal, state-centred constitutional theory, giving rise to contradictions between analytical starting points and normative aspirations. Against this background, with an approach inspired by societal constitutionalism, this article engages with digital constitutionalism as both an object and a means of critique. As an object, digital constitutionalism is assessed in the light of its contradictions. As a means, digital constitutionalism is used to assess the limits of traditional, liberal, state-centred constitutional theory. In other words, societal constitutionalism is the theoretical lens used to both deconstruct and reconstruct digital constitutionalism according to its normative aspirations. The article has three main goals: first, linking different discourses within digital constitutionalism, highlighting its critical potential; second, advancing some proposals based on such reflections; and third, bringing digital constitutionalism closer to the broader global constitutionalism discourse. After an overview of societal constitutionalism, the article focuses on digital constitutionalism’s definition and three functionally differentiated systems: politics, economy and law. For each of them, it highlights analytical and normative gains deriving from the societal constitutionalism-based approach as well as policy proposals to be developed further.

Introduction to special issue: Feminist manifestos and global constitutionalism

AbstractFeminists and women activists use manifestos to express their frustrations with legal and political systems, expose the harms suffered in their lived experiences under patriarchy, colonialism and capitalism, and call for radical political, legal and social change. This special issue on feminist manifestos and global constitutionalism considers the role of feminist manifestos in global constitutionalism. It interrogates the role of feminist manifestos in bringing about legal and political reform, their role as historical texts and sources of global constitutionalization, and their limitations as tools that are potentially both exclusionary and de-political. In their article, Ruth Houghton and Aoife O’Donoghue outline a role for feminist manifestos within feminist approaches to constituent power. Sheri Labenski uncovers from the archives the Women’s International League for Peace and Freedom manifesto from 1924 and the outline for a ‘New International Order’. Gina Heathcote and Lucia Kula centre Lusophone African feminist action in Luanda, Angola, to problematize an approach to feminist manifestos that reiterates dominant feminisms, and instead argue for active silence by those more dominant feminist voices. In her conclusion to the special issue, Emily Jones uses posthuman feminism to interrogate and critique the claim of universality in global constitutionalism. Across this special issue, key themes emerge: the potential of inclusion and exclusion, and the role of manifesto as a method in knowledge production.

Сучасні тенденції конституціоналізму у контексті глобалізації

Transformation of the national legal system in the conditions of globalization. Recently, the scientific community has been discussing the development of various concepts of constitutionalism, such as transnational (global), international (international), multi-level and others, which provide for the creation and implementation of standards designed to solve global problems, which include prevention of wars, development and coordination of international relations on a peaceful basis, elimination of hunger and poverty, rational use of natural resources, prevention of terrorism and security, etc. Discussions around global constitutionalism testify not only to scientific interest, but also to the gradual maturation of legal, political, economic, social and cultural, ideological and theoretical prerequisites for a new paradigm of both constitutional-legal and international-legal thinking. The article discusses the impact of the era of globalization on the development of modern constitutionalism. Based on the methods of historical-legal and comparative-legal analysis, modern approaches to the definition of global constitutionalism are defined in order to understand the latest constitutionalism in the conditions of the modern development of interstate relations and interstate integration.

АНАЛІТИЧНИЙ ОГЛЯД ПУБЛІКАЦІЙ З КОНСИТУЦІЙНОГО ПРАВА У ВИДАВНИЦТВІ ОКСФОРДСЬКОГО УНІВЕРСИТЕТУ (Монографічні видання)

The integration of Ukraine into the world and European research space in the field of jurisprudence requires a thorough acquaintance with the latest methodological approaches and theoretical and doctrinal developments of the world's leading experts. Familiarity with the publishing activity of foreign legal scholars and the work of academic publishing houses plays an important role in this regard. The presented analytical review highlights the activity of publishing constitutional and legal studies of the Oxford University Press, which is the largest university publishing house in the modern world. The characteristics of constitutional publications are structured according to thematic sections: sources of constitutional law and reference publications, studies on the constitutional law of individual countries and regions, as well as problems and phenomena related to constitutional development (freedom, deliberative democracy, human rights, local self-government). If we depart, so to speak, from the territorial principle, the following thematic blocks can be distinguished in relation to the issues of Oxford University publications on constitutional law: a) comparative legal constitutional studies; b) analysis of constitutionalism within the framework of classical doctrinal discourse (constituent elements of constitutionalism, constitutionalism in the philosophical dimension, problems of the social context of modern constitutionalism); c) globalization of law and the phenomenon of global (transnational, supranational) constitutionalism. This distinction is quite arbitrary, because two or more problems may be covered in a particular publication. Publications of the University of Oxford accumulate the main achievements of world jurisprudence in the field of constitutional law. Many of the characterized editions are available on a special online resource "Oxford Scholarship Online".

O constitucionalismo global e o projeto constituinte da Terra: Uma análise das formulações teóricas mais recentes de Luigi Ferrajoli

The transformation of contemporary international society in recent decades has strengthened the links between the various regions of the planet and created the necessary conditions for the establishment of the debate about the possibilities of configuring a constitutionalism of global reach. This process has been strengthened recently by the spread of the new coronavirus and by the difficulties encountered in the adoption of coordinated actions among the various States to confront the respective pandemic. It was in this context that the Italian jurist Luigi Ferrajoli formulated the so-called Earth Constituent Project. Thus, the present article analyzes this proposal and its possibilities of realization. The conclusion of the research is that, although the formation of a true global constitutionalism is still unlikely, the implementation of an Earth Charter is fundamental for the expansion of international cooperation, for the peaceful resolution of conflicts, and for the protection of the common goods of humanity. In the pursuit of this study, the hypothetical-deductive scientific method and the bibliographical and documental research technique were used.

The paradox of global constitutionalism: Between sectoral integration and legitimacy

Abstract The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law.

Global constitutionalism and the People’s Republic of China: Dignity as the “fundamental basis” of the legal system?

Abstract The People’s Republic of China has declared dignity to be a foundational norm of its legal system, as institutionalized through a suite of constitutional and legislative reforms. Indeed, the 2017–21 period saw the adoption of some of the most far-reaching statutes in the history of the PRC, the centerpiece of which is the new Civil Code (2021). In both structure and content, provisions of the Civil Code comprise a quasi-constitutional charter of rights. Indeed, many Chinese scholars do treat the Civil Code as such, developing sophisticated constitutional theory along the way. At the core of these claims is dignity, which occupies a prominent position within the Civil Code, and from which a host of additional rights, including unenumerated rights, can be derived. After situating these developments in light of global constitutional practice, we examine the emergence of dignity as an officially sanctioned commitment device, and analyze the pertinent scholarly discourse, structure, and content of the new Civil Code, and the various roles that the Communist Party of China, the National People’s Congress, and the Supreme People’s Court are expected to perform in supervising the work of the judiciary in operationalizing the Civil Code. We conclude that while the PRC has not fully embraced the dignity norm in the way other constitutional systems have, it has nonetheless permitted significant discursive debates that deserve to be analyzed comparatively.