Modern Constitutionalism Research Articles

Constitutional Symbolism in the Shadow of the Common Good

Abstract This paper aims to clarify the concept of the symbolic constitution and to explain one of its most significant functions: the representation of political unity in complex societies. Section B briefly outlines the concept of the symbolic constitution which informs the arguments of the paper. The next two sections proceed “hermeneutically” through critical engagements with (i) Martin Loughlin’s recent analysis of the symbolic constitution within an ideology-critique of neo-liberal constitutionalism (ii) Niklas Luhmann’s account of the role of symbolic constitutionalism in concealing the function of the modern constitution as a structural coupling between the political and legal sub-systems. Section E then considers the relationship between the symbolic constitution and an alternative “traditional” concept for the representation of political unity: the common good. I argue that the symbolic constitution is both (i) a placeholder which speaks to the abiding relevance of the common good (ii) a symptom of the decline of its preconditions.

A Study on the Constitutional Meaning of the Right to Pursue Happiness in Intelligence Information Society

The meaning of happiness in human life depends on what each individual thinks of as happiness and what one pursues due to differences in personalities and values. An important value and ideology of modern constitution is the guarantee of human rights to ensure that all human beings can live the life they want. Therefore, the meaning of the right to pursue happiness can be seen as very important not only at the time of the modern human rights declaration, but also in modern society, where technological breakthroughs and artificial intelligence are emerging at ever-higher rates.
 The role of law is also very important in an intelligent information society, and it is also necessary to find out what fundamental rights the state should protect more actively through the interpretation and guidelines of the Constitution and include the necessary legislative direction or outline in the constitutional amendment. It is crucial to prepare for risks caused by the emergence of new technologies and the development of an intelligent information society, to protect the fundamental rights and safety of the people, and to review constitutional countermeasures. If successful, it may be possible to establish a normative framework for pursuing safe and sustainable development and human happiness.

Strategic Constitutionalism and Constitutional Changes: the State and Citizens in Constitutional Forecasting and Public Legal Communication

The paper highlights foundations and development of the doctrine of strategic and dialogical constitutionalism in the context of the crisis of the modern world order and constitutional and legal thinking. Strategic constitutionalism and the strategy of constitutional changes are considered as the most important development paradigm that ensures the progress and diversification of models of modern constitutionalism. The paper explains the factors of conceptualization of constitutional changes, dwells on the state as a constitutional strategy and a strategy for diversifying constitutionalism in the world, the dilemmas of legal constitutionalism and forecasting constitutional changes from the standpoint of academic and expert opinion, academic discussions concerning the purpose and role of dialogical constitutionalism and citizens’ participation in constitutional changes, some strategies for constitutional changes in Russia and Europe, prospects for improvement of institutions of popular participation, the institute of professional and expert opinion in the Russian constitutional doctrine and legislation. The paper employs deliberative and epistemological approaches, methods of formal-legal, concretehistorical, comparative constitutional-legal and complex analysis.

Demodernizing psychology

What would be required to dismantle modern psychology? How could it be purged the pervasive dichotomies that turned this discipline highly asymmetrical? Could we focus on the practices of hybridization to reformulate psychology as a non-modern science? This overreaching project will be explored in a series of four essays. This first piece will begin by describing the difference between the approaches of classic epistemology and Latourian philosophy to scientific activities in general and psychology in particular. Then it will explain in greater detail the symmetric anthropology used by Latour to depict the Modern Constitution and its dualistic influence in the sciences. Not only is psychology problematic due to its deeply rooted dichotomies, but mainly because it plays a pivotal role in this Modern Constitution. The essay finishes by exploring alternatives proposed by Latour to achieve a symmetrical metaphysics, which consequentially would lead to a reformation of psychology itself.

Making and re-making the theory of constitutional democracy: further observations

In this reply, I address many of the observations and criticisms raised by Donald Bello Hutt, Mathieu Carpentier, Maris Köpcke, and Graziella Romeo vis-à-vis in my book The Making of Constitutional Democracy: From Creation to Application of Law (Hart Publishing 2022). The discussion touches upon a host of different but interconnected issues: from the necessary connection (or lack thereof) between the state and the rule of law; to the feasibility and relevance of the distinction between law as lex and law as ius for modern constitutionalism; to the role and scope of a theory of normative powers for the concept of law-application; to the centrality of the idea of contingency in constitutional theory and its consequences for constitutional design. As a result, I clarify and further develop several aspects of the theory (and meta-theory) of constitutional democracy I originally presented in the book.

What do we mean by constitutional supremacy?

This paper offers a comment on Paolo Sandro’s “The making of constitutional democracy”. It discusses Sandro’s choice of defining modern constitutionalism as legal otherness from two perspectives. First, Sandro’s methodological option for discussing constitutional theory is addressed by looking at legal traditions, clarifying the extent to which comparative constitutional law can help the development of studies in legal theory. Second, it addresses the accounts of constitutionalism that Sandro introduces in his work to set the scene for the discussion of the conditions for the existence and endurance of constitutional democracy.

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.

Organization of parliamentary institutes in Azerbaijan Democratic Republic

The author mentions that a large part of our researchers deals with the problem of parliamentary activity and the main directions of activity of the Azerbaijan Democratic Republic on the issues of the legislative parliament almost do not analyze. So, there is a need to examine the study of this problem in terms of the scientific point of view. It is necessary to take into account the experience and traditions of the Azerbaijan Democratic Republic in the constitutional and legal field. Based on the experience of our country, modern constitution should be one of the methodological principles of legal research. The achievements gained at the level of the theory and the experience of constitutional development in Azerbaijan at the beginning of the twentieth century can be used to improve the modern constitutional system and to build a state of law. The events taking place in the parliament, the parliamentary inquiries, and the ministerial responsibility of the ministers are crucial.The current socio-economic and political situation in the Republic of Azerbaijan once again proves that our country is at the highest stage of development, and this development is characterized by intensive progress. With its achievements as a multicultural and tolerant country, the Republic of Azerbaijan can be an example for some of the world's most developed countries. Establishing a legal state in accordance with the regulations of the era of globalization, Azerbaijan is one of the leading countries, and even the first leading country practicing modern integration processes.

Contemporary Matters of Constitutionalization of Legal Norms in the Republic of Armenia

The article examines the issues of constitutionalization of law in RA.The constitutionalization of the right is one of the contemporary problems of modern constitutionalism, which is currently of interest not only to specialists in the field of constitutional law but also to scholars dealing with problematic issues in other branches of law, the article studied the Constitutionalization process, which is of great importance in terms of guaranteeing the supremacy of the Constitution and is meant to ensure the compliance of normative legal acts with the requirements of the Constitution. The process of constitutionalization was studied from an institutional point of view, conventionally classifying it into two main groups. First, it is the units operating in the field of public service which is entitled to subject the drafts of normative legal acts to legal examination. One of the important goals of such examination is to provide law-making bodies and officials with conclusions on the conformity of the legal acts reflected in the drafts of the aforementioned normative legal act with the requirements of the Constitution. Second, as a result of the constitutional reforms of 2015, the role and importance assigned to the Constitutional Court in order to ensure the constitutionalization of the legal fiel was studied. The Constitutional Court, as a constitutional supervisory body, is called to ensure the supremacy of the Constitution, which is carried out within the framework of concrete and discrete control.

SOME SPECIFIC FEATURES OF THE GENESIS OF MODERN BELGIAN POLITICS

This article discusses the symbolism of the year 1830 in the transition from the old political order to the establishment and gradual consolidation of the modern Belgian state. Modern constitutionalism was characterized by the struggle against monarchical absolutism and the concentration of political power in the hands of a single person. In addition, it supported the respect of civil rights and liberties, the individual being at the center of liberal philosophy, along with the idea of a representative government, the separation of powers in the state and the supremacy of the rule of law. The spread of the revolutionary wave from 1830 throughout the country opened a new period in the history of Belgium, in which the ideas of centralizing the state and asserting national independence merged with the urgency to give a direction to the state by choosing the representative monarchy as a form of governance and with the introduction of the Senate as an intermediate power. By analyzing the Belgian deputies’ speeches, this article aims to make an introduction in the way the deputies imagined the construction of the state and to advance the idea of a mutual trajectory of the Belgian society in accordance with the young European nations.

The autobiographical constitution

ABSTRACT The idea that the modern constitution can be understood as the autobiography of a people is becoming a frequently invoked metaphor. Autobiography is commonly understood as a narrative of an individual of their own lives, including their origins, the challenges they experienced, significant events that influenced their identity, as well as their values and dreams. A constitution, somewhat similarly, often in its preamble, refers to the history and challenges of a nation, as well as its values and aspirations. This essay looks at what the implications would be of such a reading of the modern constitution, specifically when taking account of Derrida’s analysis of autobiography, inter alia through his reading of Nietzsche. What would, in other words, be the consequences for the modern constitution if one takes seriously Nietzsche’s notions of the eternal return and the will to power, as well as his challenge to the traditional opposition between life and death, and to the notion of self-identity? The essay concludes that those who authoritatively interpret the modern constitution must have an ear for life and death, that is, interpretation should be understood as not only involving a return of the economy of the same, but also of the excess of the an-economic, the wholly other, death. This opening poses both a threat to the (law of the) self and a chance for justice.

The concept of the popular sovereignity from the historical perspective

The concept of the state’s sovereignty represents the basic concept of the entire legal philosophy, which was developed since Antiquity and triumphed during the Enlightenment. The concept of popular sovereignty is the dominant doctrine in the legal philosophy of the 17th and 18th centuries. The main idea of this doctrine was focused on positioning the people as the main holder of state power, as a source of the supreme will. Actually, the popular sovereignty represents the basis of State power. The people are the sole possessor of supreme power, which symbolize the basis of modern constitutionalism. This article constitutes a study of the specific aspects of the concept of popular sovereignty in the history of ideas. The doctrinal and practical interest in the concept of popular sovereignty is based on the political and legal dimension of it within the framework of State-building. In this study, we would like to determine the role of the concept of popular sovereignty in the current constitutional framework, from the philosophic point of view.

Politicity and Proportionality as Methods for Resolving Collisions of Constitutional Values

From a philosophical-legal point of view this article examines the polarisation of the politico-legal discourse between liberal constitutionalism and the concept of the primacy of the integrity of the constitution, which from the perspective of modern constitutionalism is identified with the possible use of two different methods of resolving collisions of constitutional values – the proportionality test and the politicity test.

Historic Cultural Features and Spiritual and Moral Values in Modern Constitutionalism

Historic Cultural Features and Spiritual and Moral Values in Modern Constitutionalism

The idea of a welfare state in the aspect of state-legal monism and pluralism

The problem of implementing the idea of a social state is considered from the point of view of state-legal monism and pluralism at the level of humanity, that is the possibility of the emergence of a universally recognized model of such a state or the inevitability of the coexistence of various such models due to national, economic, cultural factors operating in specific countries.Attention is drawn to the fact that such a problem is also relevant in relation to the ideas of a democratic and rule-of-law state. In general, the coincidence of formal characteristics of states reflected in modern constitutions is accompanied by statements about the absence of unified concepts of democracy and human rights. To an even greater extent, this is characteristic of the search for a solution to the so-called social issue. The theses underlying the concept of the welfare state by L. von Stein are presented. In particular, it is indicated that, in his opinion, the simple development of the social security system of the poor class is not enough to solve the “social issue”. The further development of the idea of a social state is shown, discussions are touched upon regarding the understanding of its essence and the problems that were revealed during the social reforms carried out by socio-democratic and liberal forces in capitalist states at the end of the 19th and 20th century.The main approaches to the constitutionalization of the social state are revealed (the “simple” proclamation of “social” statehood in the constitution; the clear formation of the goals and objectives of such a state; the absence of an indication of the social nature of the state). The classifications of the welfare state carried out by G. Esping-Andersen, as well as modern researchers of Russia and neighboring countries are analyzed. It is established that the very existence of a “social issue” and the importance of one or another of its solutions are gradually becoming generally recognized. Despite this, the fixation of the social character of the state has not yet received the same universal distribution as, for example, theses about the democratic and legal nature of the state. Both the implementation of the idea of a welfare state where it is legally recognized, and its declared “projects” are very diverse, while the typology of the welfare state is subject to further study. The social model, the framework of which determines the position of the state in relation to society, is, on the one hand, the result of the evolution of a complex of factors specific to each country, and on the other, the result of a conscious choice. Different models of the welfare state are characterized by different degrees of realization of the interests of different social classes, a different relationship between the beginnings of society and the state. Accordingly, these models are “attractive” to representatives of the haves and have-nots to varying degrees, they compete with each other at the international level. It is concluded that the idea of a social state can be reduced to a certain unity, whereas the ways of its implementation are inevitably multiple.

Understanding the term "constitution" in the period of ancient Rome

It is indicated that the constitution in the modern state is the basis of the legal system, that is, it determines its normative component (legislation and other sources of law), as well as the system of state institutions, legal ideology, and legal consciousness. Thus, the Constitution defines the entire paradigm of constitutional and legal relations in one or another period of state development. At the same time, the transformation of ideas about the content of the constitution also reflects social and political processes.The article is devoted to the study of the process of formation and development of constitutionalism, the understanding of the term “constitution” and the idea that philosophers invested in this concept, looking for a better model of a stable political system of the state. The article analyzes the term “constitution” in historical retrospect and how it correlates with the understanding of constitutionalism in modern legal literature. The homeland of constitutionalism was the ancient Greek polis, and the main theoretician in this field was Aristotle, who, based on the study of the constitutions of the polis of his era, came to the conclusion that the best model of a constitution is a mixed constitution, since it is this model that guarantees a stable political system. An example of a mixed constitution was the constitution of Sparta. According to the opinion of Polybius and Cicero, the model of a mixed constitution was characteristic of Ancient Rome as well. The model of the mixed constitution was accepted by modern constitutionalism as a guide.The article concludes that the constitution in a narrow sense was understood as an institutional arrangement with an indication of who has access to governing bodies and can participate in decision making. Thus, it was about state management. The constitution, in a normative sense, was designed to adapt a just system of government to the nature and purpose of the community of citizens.

Trends in the development of constitutional law and problems of the transformation of the Constitution of Ukraine in the dimension of constitutional economy

The problems of the transformation of the Constitution of Ukraine in the context of the theory and practice of constitutional economics are considered. The problem of constitutionalization of economic relations is studied. The analysis of foreign experience shows that the successful development of the economy depends on the perfection of the mechanism of constitutional and legal regulation of economic and budget-financial relations, as well as the determination of the place and role of the state in the management of economic processes. The role of direct constitutional regulation of economic relations is particularly important. These and other factors determine the need for a conceptual analysis of the economic dimension of constitutional law and the Constitution of Ukraine. It was established that the process of constitutionalization of public property, public finances and other economic relations is connected with a significant expansion of the influence of constitutions on the processes of socioeconomic development of society. It is proved that property, finances, taxes, the budget, the banking system are categories of constitutional law in view of the degree of freedom of the individual and the limits of the powers of institutions of public power in the sphere of economy. The need to allocate separate sections «Public Property» and «Public Finances» in the Constitution of Ukraine is substantiated. According to the author, this will indicate not only the special constitutional significance of the relevant institutions, but also their axiological, synergistic, functional-teleological connection with the principles of the constitutional order. The foreign experience of constitutional economics shows that most constitutions initially regulated financial and economic relations quite fragmentarily. As constitutionalism developed, the constitutionalization of institutions of public property and public finance intensified. Constitutional regulation in this area became over time more and more detailed and branched, and therefore voluminous and functional. In this regard, we draw attention to the need to deepen the detailing of the constitutional regulation of public property and public finances. At the current stage of the development of constitutionalism, this is explained by the effect of the trends of economization and internationalization of constitutional law, which leads to the growth of both the importance and complexity of financial and economic relations and their legal regulation. In this context, the allocation of separate chapters on public property and public finances in the structure of the Constitution of Ukraine will largely reflect the development trends of modern constitutionalism. Key words: constitutional economy, economic constitutionalism, constitutionalization, constitution, public property, public finances, state, human rights, constitutional order, economic functions of the state, fiscal constitutionalism, constitutional regulation, constitutional values, democracy, public power, transformation of legislation.

Constitutional dialogue and judicial activism

The dialogic model of jurisdiction cannot be seen as a simple defense against judicial activism, given that it can be added to it by opening the details of a decision to the cooperation of other actors, but without redeeming the political decision based on the decision. In extreme cases, dialogic theories and techniques can be seized for perverse use in the context of a major escalation of political conflicts. The problematization of this topic is far from canceling the dialogical model, it challenges its deepening, demanding institutional mechanisms, incentives, sanctions, designs, procedures that structure the dialogue. And it also calls for a step back, a retreat to the most essential part of the debate about judicial activism, especially on the question of interpretation. Over time, dialogues have been associated with various other decision-making techniques. In their context of origin, they have already presented their limits and possibilities.Procedures and dialogues only make sense when a minimal interpretive basis can be shared, if we can recognize as authentic the application to specific cases of the principles that make up society. This article aims to depict the role of judicial dialogues by enumerating its three main constitutional functions: coherence, cohesion and conformation. Using doctrinal bibliographic research, it was analyzed that modern constitutionalism, marked by the consequences of globalization, suffers from strong instability. The protection of human rights in the current global scenario of legal fragmentation depends on the interaction between different orders, which occurs through the establishment of judicial dialogues. Taking into account the relevance of the study of judicial dialogue for the effective protection of the individual in the human rights protection system, with the help of the deductive method and search-bibliographic, documentary and qualitative research, it seeks to identify the factors that require its promotion among the constitutional courts.

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.

Kajian Atas Pemikiran Pembaharuan Hukum Islam Abdullah Ahmad An-Na'im

The development of thought in the Islamic world that is emerging today is very diverse in politics, economics, feminism, and so on. This idea emerged in Africa, India and Sudan. Apart from these areas, Islamic thought and studies have also developed widely in Europe and America. The term sharia reform that An-Na'im uses as his idea goes beyond Muslim fundamentalism and secularism in responding to contemporary discourse, including justice, democracy, human freedom as individuals and their obligations towards the environment. Is it true that Islam has been able to answer all contemporary problems, is it true that social problems have answers only outside Islam? Shouldn't Islam be a modern ideology that remains alive? This research uses normative research because the research uses library materials as the main data for analyzing cases. This research specifically examines the study of Islamic law reform ideas by Abdullah Ahmad An-Na'im. An-Naim offers a new alternative methodology in uncovering Islamic views on Human Rights. His main concern is Islamic law with its relationship to modern international issues such as human rights, modern constitutionalism and modern criminal law. According to him, Islamic law currently requires total deconstruction reform.