Constitutional Ideas Research Articles

Global constitutionalism: Asia-Pacific perspectives

AbstractThis special issue of Global Constitutionalism discusses how global constitutionalism influences Asia-Pacific jurisdictions and how they respond. This introductory article presents the theme and structure of this issue, explains the Asia-Pacific’s unique contribution to global constitutionalism and offers a synthetic argument. It conceptualizes global constitutionalism as the global diffusion of common constitutional ideas, institutions and doctrines rooted in comparative constitutional law and public international law. On that base, it argues that constitutional design, adjudication and discourse in many Asia-Pacific jurisdictions are influenced by global constitutionalism. The influence results in not only convergence but also resistance to global constitutionalism in the regions. The regional experience presents critical challenges for global constitutionalism, and hence its effective operation significantly depends on its situation within the region’s axiological, institutional and social contexts.

Foreign judges of the Pacific as agents of global constitutionalism

AbstractStudies of global constitutionalism have focused on the transnational movement of constitutional law through the citation of foreign judgments. However, little attention has been paid to the movement of constitutional judges themselves. This article considers how the foreign judges who sit on courts of constitutional jurisdiction in Pacific island states can be understood as part of the phenomenon of global constitutionalism. It identifies three ways in which foreign judges can be agents of global constitutionalism: as mechanisms for the diffusion of constitutional ideas, as expressions of global constitutional values and as objects of transnational legal transfer. An empirical analysis comparing the citation practices of local and foreign judges in constitutional cases in nine Pacific states suggests that the use of foreign judges on constitutional courts does contribute to the international movement of constitutional ideas. However, a critical analysis of foreign judges as expressions and objects of global constitutionalism sheds light on a range of tensions in the role of constitutional judges and understandings of global constitutionalism.

Constitutional innovation as a political science

The article describes the object, subject, main properties, tasks and functions of the science "constitutional innovation". It is a science that studies the implementation of constitutional ideas developed by political philosophy in the life of society. This implementation is carried out throughout the world, in individual countries and at the local level. Based on the subject of the study, the structure of the science "constitutional innovation" is described. Within it, a general theory is distinguished, which studies the laws of the transition of the world and individual countries from the pre-constitutional system to the constitutional one. She answers questions about the possibility of transition of all countries of the world to constitutionalism, about the ways of this transition. In the course of the movement towards constitutionalism, there is usually a stage of imitation of the constitutional system. Part of constitutional innovation should be constitutional deviantology, which studies deviations from the ideals of constitutionalism, the factors that cause them. The General theory develops methods of cognition of this world process. According to the author, the study of the subject of research should be based on dialectics, a materialistic approach using the ideas of Enlightenment, modernization theories, democratic transit, diffusion theory, and conflict theory. Constitutional innovation includes the history of the world's movement towards constitutionalism. On the basis of the known regularities, forecasts of the constitutionalization of the world and individual countries are built. Constitutional innovation performs applied tasks. It helps supporters of constitutionalism to form programs for the promotion of constitutional ideas in the life of society. A separate area of research is the introduction of constitutional ideas through international relations. Constitutional countries are trying to build the whole world in their own image. Science evaluates the effectiveness of the measures applied.

Socialist Constitutional Legacies

With the end of the Cold War, many assumed that socialism, together with the specific constitutional values and political structures was dead (or dying). This article will challenge these assumptions. Post-Cold War reality did not, however, follow these assumptions. Some countries, especially in Asia, continue to adhere to socialist constitutional approaches. Some cannot fully overcome their socialist legacy. And still others include socialist values in their constitutions and practice. These values and ideas warrant study. Most notably, socialism carries with it a certain set of values and, consequently, a corresponding pressure on legal institutions. The authors, guest editors of this special issue of the Russian Law Journal on the socialist legacies in the world constitutions, outline a general approach for the study of socialist constitutional legacies. The article therefore addresses (a) the methodology of socialist constitutional legacies analysis, (b) the core values of the socialist constitutions and (c) ways in which socialist constitutional ideas and concepts can be combined with the principles of constitutionalism. This analysis raises a number of important – but under-researched questions. One is the extent to which these socialist ideas or concepts are actually socialist. Another is the extent to which these ideas can be included in constitutional discourse.

Ely in New Zealand

Abstract John Hart Ely’s representation-reinforcing theory of the US Constitution had a significant impact on the drafting of the New Zealand Bill of Rights Act 1990. This short article begins by recapping briefly the pathway by which that influence occurred. It then expands on earlier accounts in two ways. The first is to suggest that Ely’s influence in New Zealand illustrates the significance of American postgraduate legal education programs as a vector for the migration of constitutional ideas (although the causal relationship in this case is neither straightforward nor direct). The second is to confront more explicitly a nagging question raised by earlier scholarship: to what extent was it Ely specifically (rather than US process theories more generally) that influenced the New Zealand experience? The article suggests that, at very least, Ely’s work acted as the conduit by which the ideas underlying American process theory were transmitted into the New Zealand text. Although it is inevitably somewhat speculative, the article also suggests that it is unlikely that, in the absence of Ely, the drafters of the N.Z. Bill of Rights would have pursued a process-perfecting strategy with quite the same vigilance and systematicity.

The Recognition of Customary Rights by Indonesian Constitutional Court

Formal law and customary rights never-ending contest have been a challenge for Indonesia in its effort to construct a modern nation. In this kind of battle, there are two conflicting values, the certainty of law versus harmonious value within society. However, the idea of constitutionalism can incorporate customary law as part of its fabric. Within the array of positivism and legal pluralism, the Indonesian Constitutional Court is trying to take leadership in the role of customary rights recognition. One of the legal standings that can put a petition to the constitutional court is a representative of the adat community as long as it still lives according to the values Indonesian State as required by legislation. The provision requires the existence of customary communities stipulated in a specific law. However, the required legislation is not stipulated yet in Indonesia, creating the institutional difficulty for The Constitutional Court upon accepting the customary rights case from specific adat communities. Given the limitation, this paper turns attention to how the Indonesian Constitutional Court deals with the recognition of customary rights as outlined in the Constitution. This study will attempt at answering this question by integrating the reading of Indonesia Constitutional Court judgments, the institutional framework analysis with a sociological approach through Indonesian Constitutional Court judges’ interviews. The study reveals one possible picture of how customary law and constitutionalism can co-exist in the same vision in Indonesia's pluralistic society. This co-existence is not without risk of tension, but with the possibility of success under the name of constitutionalism order to protect, rather than neglect, the national people living on the plural law.
 
 Received: 16 January 2021 / Accepted: 6 April 2021 / Published: 10 May 2021

Global constitutionalism as a social concept: socio-philosophical analysis of socio-historical conditions of genesis and evolution

The authors investigated the mechanism of interconnection of ideas of global constitutionalism as a social concept with social reality, denoting the socio-historical conditions of its origin and development. The article proves that emergence and development of the social concept of global constitutionalism is due to a set of socio-economic, socio-political, historical and legal conditions that, in their interrelation and interdependence, determined the main features of this social concept, as well as the forms and stages of its implementation in the social reality of national societies and states as well as internationally. These conditions for the emergence and development of the social concept of global constitutionalism can be classified into a number of stages: the stage of the formation of the social concept of global constitutionalism, the definition of its system-forming features and the formulation of global democratic values; the stage of creating international and supranational political and legal institutions acting as unified control centres of regulation and control, which consists in the forcible export of values of constitutional democracy on a planetary scale.

Comparative constitutional adaptation: Democracy and distrust in the High Court of Australia

Abstract The ideas developed by Ely in Democracy and Distrust have had an important influence on at least one member of the High Court of Australia—Justice Stephen Gageler, first as counsel and now as a justice of the Court. This influence has not involved the straightforward “borrowing” of those ideas. Rather, it has involved a more standard-like application of US-style tiered scrutiny in contexts such as the protection of the “channels of political change” and giving narrower ambit to the judicial protection of “discrete and insular minorities.” This, the article suggests, reflects a distinctive form of comparative constitutional adaptation—a process involving, first, the attempt to develop a contextual understanding of Ely’s thought; second, a quite “thick” or “deep” form of comparison between the original and new context; and third, a context-sensitive adaptation of the theory to that new setting. This comparative adaptation has some similarity to the process of “recontextualization” identified in Gunther Frankenberg’s account of an “IKEA” style of global constitutional transfer. But it is distinctive in its direct engagement with foreign constitutional ideas at their source and its attention to the importance of constitutional context, difference, and generality or commonality. Similar forms of comparative constitutional adaptation can be found elsewhere, including in the engagement by Australian Chief Justice, Susan Kiefel, in the development of proportionality doctrines. But attention to Ely’s influence on Justice Gageler’s thought provides a useful window not only into Australian constitutional practice, but also into this distinctive and normatively attractive form of comparative engagement.

The idea of constitutionalism in democratic and authoritarian states

Polish constitutional law utilizes the notion of “constitutionalism” but does not explain the basic components which would help to classify a given system to such a category. The 20th century utilized this concept for the purposes of confrontation between West and East, but with the democratic wave of the 1990s and the decay of the transition process, it began to lose its widely acknowledged criteria of recognition. The article brings new taxonomy proposed in comparative constitutional law which suggests that there is no longer one fixed notion of constitutionalism. Such an approach seems to be the equivalent of realpolitik in constitutional studies accompanied by the suggestion that Western taxonomy can no longer ignore the protracted existence of constitution- based states which treat it as an object but reject other components e.g. separation of powers, an effective impartial and independent judicial system and legal constraints. Such realism in taxonomy may come at a price, with even further decay of rule of law standards and erosion of liberal democracy.

Systemic corruption: Constitutional ideas for an anti-oligarchic republic

Systemic corruption: Constitutional ideas for an anti-oligarchic republic

Populism, Constitutional Counter-Narratives and Comparative Law

Abstract This article tries to explore the relationship between constitutionalism and populism in conceptual terms. This piece is divided into two parts. In the first part it will be argued that the relationship between populism and constitutionalism should not be seen in terms of mutual exclusion and perfect opposition. In the second part I shall look at comparative law in order to explore its incredible anti-populist potential. More in general, as I shall try to explain, the very idea of populist constitutionalism is not consistent with the legacy of post-wwii constitutionalism.

State, Constitution, and Parliament: Three Axes of the Spanish Constitutional Debate of 1931

This article aims to elucidate the relationship between the ideas of state, constitution, and Parliament in the Spanish constitutional debate of 1931. It argues that Members of Parliament (MPs) made a valuable contribution when understanding the relevance of this interrelation in terms of political philosophy and legal theory. From a methodological perspective, this study pays attention to the arguments of MPs in the course of the constitutional sessions which took place between August and December 1931. In doing so, it portrays the ideological differences of left-wing, centrist and right-wing parties in that constituent assembly. In the first section (“European influences on the Constitution of 1931”) the intellectual links with interwar trends of public law, administrative law and European constitutionalism are highlighted. The second section (“Constitution and Parliament according to Spanish representatives”), shows the meanings given to this nascent constitutional democracy by MPs. Despite their ideological differences they were in favour of strengthening Parliament and the Constitution as a prerequisite for safeguarding democracy. The conclusions resume the argumentative thread, that is to say, that the regime, a democratic republic, was understood by a large majority of MPs as the confluence of three conditions founded on doctrinal and conceptual exchanges from interwar European constitutionalism: the acknowledgement of parliamentary sovereignty, the legal and administrative revamping of institutions, and state intervention in the economy.

Formation of the ideas of constitutionalism in medieval Scotland

Formation of the ideas of constitutionalism in medieval Scotland

Influence of American and French Constitutional Ideas on the Institution of Modern Citizenship

“Citizenship” is a legal term. Citizenship means a person’s belonging to any state and implies the presence of mutual obligations of a person and a state. Citizenship is a separate institution of law. The modern form of citizenship is different from those that we re before. So it was precise because of the experience present, thanks to the evolution of citizenship. In this article, the formation and development of citizenship will be considered on the example of the revolutionary citizenship of France and America.

Administrative offences law (constitutional prospects of codification).

The subject of the research is the problems of constitutional law enforcement of administrative offences legislation, taking into account the prospects for its new codification. The purpose of the article is confirmation or confutation of the hypothesis that the effectiveness of the new Code of administrative offences depends on whether the legal positions of the Constitutional Court of the Russian Federation on the principles of administrative responsibility will be taken into account when drafting it. The authors use methods of complex analysis, synthesis, as well as formal-legal method of interpretation of Constitution, legislation on administrative offences and judicial decisions of Russian Constitutional Court. The main results and scope of their application. The administrative torts law in Russia is expected to pass through the total review up to the grounds of its codification in close future. The article presents initial positions of that changes within basic frames produced by Russian Constitutional Court. Its case-law has already invaded into many spheres and details in respective sphere of legal rules and also prescribed a lot for their future. This case-law yet is necessarily made within its inherent range for it is ever constrained procedurally by content of actions and cases to be settled. However Russian administrative torts law is destined for reformation in new code-making in view of constitutional case-law and in order to do better with neighbor spheres of legal responsibility. Disputable matters of administrative liability, the company’s responsibility with psychical fiction on its fault (corporative thinking, wishing, desire, diligence), substantial and procedural equity etc. are described and discussed in the article as to the administrative law of torts on in its constitutional dimension. Conclusions. The Code of administrative offences of the Russian Federation does not fully meet the legal needs of society. Work on real improvement of this code will continue, therefore, legal science should be more strongly and persistently to implement in legislative practice constitutional ideas about improvement of codification and ensuring unity of legal space of the country. In particular, it is necessary to settle the debatable aspects of tort liability, the guilt of legal entities when it is addressed by fiction to the phenomena of the psyche (thinking, goals, will, caution), the constitutional and legal foundations of justice in the field of administrative penalties, procedural enforcement of rights and freedoms, etc.

The Claim to Correctness, Rights, and the Ideal Dimension of Law: A Short Reply

AbstractThese are the answers I gave to Brian Bix, Peter Koller, Ralf Posher, Torben Spaak, Timothy Endicott, and Jan Sieckmann at the end of a splendid conference day in 2018. The critique given to me concerned important aspects of three main themes in my work: the claim to correctness, human and constitutional rights, and the ideal dimension of law. In the last decades I have attempted to connect these themes systematically. The result is the idea of democratic constitutionalism as an institutionalization of practical reason.

Globalization and standards of constitutional interpretation

The article examines the problems of constitutional interpretation through the prism of globalization and modern world modelsof constitutional interpretation. Emphasis is placed on the fact that the main trend in the implementation of constitutional interpretationin modern conditions is the use of the case law of the European Court of Human Rights and reference to the decisions of the constitutionalcourts of foreign countries. This is the result of globalization, the practice of modern constitutionalism and dialogue betweenjudges of constitutional courts in the world. Such a constitutional combination of practices is not only a tool for improving judicial decisions,but also for building a “global legal system”. The globalization of constitutional law means that constitutionalism is no longerthe privilege of the nation-state, but a world concept and standard. The use of international law in the constitutional interpretation isjust one example of the migration of constitutional ideas through legal systems, which also includes the use of foreign constitutions asmodels in the process of adopting a constitution.It is concluded that Ukraine, like the countries of Eastern and Central Europe, has no choice but to adopt liberal-democratic constitutions.These are common constitutional values and constitutional rapprochement. Therefore, the constitutional interpretationthrough a comparative reference to international (and foreign) law and soft law acts of the Council of Europe is part of the modernimplementation of the concept of international law, the concept of friendly attitude to international law and the migration of constitutionalideas.

ANAYASA İLE TOPLUM ARASINDAKİ KIRILGAN İLİŞKİ: CAM ve SIR

The idea of the modern constitution, which emerged with the secularization of political power, was born from the understanding that this new power, which does not derive its source from divine grounds, should again be limited by the superior nondivine rules of the human mind. Thus, every new beginning of societies after this intellectual break has been crowned with a new constitutional text; It has become common practice to accompany these texts with the preambles that describe the philosophy, legitimacy and spirit of the new order in a literal language. Although it is widely accepted that constitutions reflect the society’s general will, this new relationship between the society and constitution, which is usually produced after some national or global struggles, is fragile. Essentially, the text of the constitution is like a thin glass, through which the political and legal grounds behind can be seen. The preambles, on the other hand, undertake the function of the material called “silver”, which transforms the glass into mirror with the holy, emotional and literary expressions found in its content. Silvered by the traditional and sacred references of the preamble, the constitution has now become a mirror in which the political area behind it is rendered invisible. Although the preambles are rarely included in the main text of the constitution, they mostly regarded as symbolic texts without legal value; however, it has been observed that in some examples even some expressions in preambles with symbolic value are included in the block of constitutionality by the judicial bodies charged with the constitutional review. In this case, the preambles, which contain vague and hard to interpret expressions, have become a legal instrument of the constitutional order, partially or completely. In this study, the anology of glass and silver established for constitutional texts was tested comparatively over various constitutional texts; after analyzing the practices regarding the legal value of the preambles, the effects of operating some unclear expressions in the constitutional order have been revealed as part of the glass-silver anology and solutions have been proposed.

Memory enabling dwelling: remembrance and amnesia in Louis I. Kahn’s design for the Salk Institute for Biological Studies in La Jolla, California

Louis I. Kahn’s reference to historical forms is known as a distinctive characteristic of his architecture. However, Kahn’s reference to the past is more intricate than what has been acknowledged to date. Kahn did not embrace memory as a fixed aesthetic criterion. He referred to memory as a living temporal phenomenon that endows his architecture with an enduring value. The Salk Institute for Biological Studies in La Jolla is recognised as one of his masterpieces. Scholars have pointed out aesthetic similarities of Kahn’s design to several monuments of the past and assessed the aesthetic contribution of these monuments to his work. In light of Kahn’s theory regarding memory, as expressed in his writings, together with Jonas Salk’s ideas on modern research and its relationship to traditional thinking, this article shows how Kahn creatively referred to the memory of religious monastic structures to express constitutive ideas and beliefs of modern research. His refences to memory in the Salk Institute embody the notion that memory can serve as a basis for belonging, encourage mediation, and inspire meaningful participation. In this sense, memory plays a role in architecture conceived as a living phenomenon that transcends aesthetic concerns. It is an architecture of cognitive and habitual associations and connotations in which remembrance and amnesia coexist. In conclusion, the article points towards the value of referring to memory in architecture. As this enables poetic dwelling, it also summons the importance of the built environment in serving societies as places to both recollect our past and redefine our aspirations for the future.

«Моя исповедь» князя П. А. Вяземского

<p><em>My Confession</em> (1829) of P. A. Vyazemsky, one of the most important historical, literary and autobiographical documents of the 19th century, has never been the subject of independent study. Its focus of attention is the period of the Prince’s civil service in Warsaw, which predetermined not only the formation of his ideas of liberalism and constitutionalism, but also the collapse of his career as a civil servant in 1821. The article makes an attempt to identify the main formal-meaningful constants of<em> My Confession</em>. As a result of the study, the immediate motif and reasons for the prince's resort to confession, his addressee, the main goal and discursive practices are identified. The author of the article states that <em>My Confession</em> does not contain religious connotations; its main content is the consistent presentation of events, facts, thoughts, feelings (in the form in which they appear in the mind of the Prince almost a decade later), as well as the exposure of the libels of ill-wishers and the restoration of a good name. It is noted that the general autobiographical confessional strategy of Vyazemsky determines both the author’s repentance of the political “errors” of liberal youth and the exposition / propaganda of liberal views due to active auto-citation; at the same time, the fundamental attitude towards veracity is combined with the so-called “Political correctness” (allowing conscious silence about certain events, facts, persons in order to avoid knowingly lying).</p>