Modern Constitutionalism Research Articles

Modern Constitutions. Edited by Rogers M. Smith and Richard R. Beeman. Philadelphia: University of Pennsylvania Press, 2020. 360p. $69.95 cloth.

Modern Constitutions. Edited by Rogers M. Smith and Richard R. Beeman. Philadelphia: University of Pennsylvania Press, 2020. 360p. $69.95 cloth.

The Antebellum Origins of the Modern Constitution: Slavery and the Spirit of the American Founding. By Simon J. Gilhooley. New York: Cambridge University Press, 2020. 350p. $110.00 cloth.

The Antebellum Origins of the Modern Constitution: Slavery and the Spirit of the American Founding. By Simon J. Gilhooley. New York: Cambridge University Press, 2020. 350p. $110.00 cloth. - Volume 19 Issue 4

Perlindungan Hukum Terhadap Pihak Ketiga Akibat Direksi Melakukan Tindakan di Luar Anggaran Dasar Perseroan Terbatas

Company carrying out actions outside the articles of association can basically be explained from the idea that the principles outside of these articles of association are generally accepted doctrines. In this case, sometimes there are problems that occur, so legal protection for third parties is very necessary in overcoming actions outside the articles of association of the limited liability company. The purpose of this study is to reveal the legal protection of third parties in the case of directors taking actions outside the articles of association of a limited liability company in an effort to restore the rights of third parties for actions by directors outside the articles of association of a limited liability company (PT). The type of research applied in this research is normative research. The sources of legal materials used are primary and secondary legal sources. Techniques for collecting legal materials by studying document recording. After the legal material is collected, it is then analyzed qualitatively. The results of the study reveal that in Indonesia it is possible to implicitly state the Limited Liability Company Law, acknowledge and accept the Doctrine outside the articles of association of the Limited Liability Company. In addition, there are also some grounds that can be used as an alibi to provide protection against third parties. These basics include the Principle of Good Faith, the Pacta Sun Servanda Principle and the Doctrine outside the Modern constitution. By relying on these basics, preventive legal protection and repressive legal protection can be provided.

A Quest for Due Process Doctrine in Vietnamese Law: From Soviet Legacy to Global Constitutionalism

Abstract Due process—the ‘soul’ of a modern constitution—was not seriously taken into account under purely socialist legal systems in general as well as in pre-2013 Vietnamese constitutions in particular. Since the 2013 Constitution, Vietnamese jurisprudence has incorporated the human rights-limitation principle (substantive due process) for the first time and strengthened the application of universal fair trial rights (procedural due process). This constitutional development is the result of the fact that, over the past two decades, the class-based perception of human rights has been increasingly less important and has been almost replaced by universalism. This article claims that, because of the influence of Soviet jurisprudence, the Vietnamese version of due process has been characterized by the fact that human rights could be arbitrarily trumped by public interests and that fair trial rights have been problematically limited to criminal proceedings and almost ignored in non-criminal procedures. This article analyses the importance of, and the challenges involved in, incorporating the human rights-limitation principle into the 2013 Constitution and argues for an extension of fair trial rights to all kinds of criminal, civil, administrative, and mixed procedures in keeping with global constitutionalism.

Development of theoretical and legal approaches to understanding the essence of somatic human rights in the process of biomedical research

It is pointed out that theoretical ideas about the relationship between man and the field of biomedical research inevitably affect the coverage of aspects that are not reduced to the subjects of constitutional and legal regulation. Accordingly, it was methodologically unjustified to limit the idea of realization of somatic rights of citizens only to the analysis of the norms of constitutions. The essence of the implementation of somatic rights of citizens in the process of biomedical research as effective elements in the development of society and in accordance with one category of constitutional law determines the need to review them from the standpoint of ontology, epistemology and axiology of rights. Thus, studies of these complex relationships do not take into account that they determine approaches to their knowledge, explore the order and principles of their implementation and protection, socio-legal "existence", analyze the value of political and legal image.
 Certainly, in order to create a reliable modern scientific foundation for understanding the essence of somatic human rights in the process of biomedical research, it is advisable to influence historical excursions in the specialty that studies a particular legal issue, constitutional and legal foundations of individual somatic rights, , on the basis of and formulated previously existing and current legislation. This will exclude certain trends in the development of both legal doctrine and rule-making activities, the results of which are a thorough improvement of current legislation of Ukraine, including codified content, solve certain problems while opening ways to solve them in different historical periods to avoid in the future. negative and borrow positive experiences.
 The authors argue, based on the analysis of theorists of state and rights, constitutionalists, natives who are involved in the study of somatic human rights, religious scholars who can achieve the result that the historiography of somatic human rights in biomedical research in the broad scientific field of knowledge development of constitutional and legal science and its regularities; in the narrow sense, it is a set of works on various problems of the history of modern constitutionalism, human rights, the influence of religion on human rights and the mechanism of their implementation and protection in a certain historical period.
 At the same time, the aim of the work is to study the constitutional and legal principles and the influence of various factors on the mechanism of realization of somatic rights in the process of biomedical research.
 The methodological basis of the study was the worldview dialectical, general scientific and specific scientific methods of cognition of the phenomena of state and legal reality. Thus, in particular, formal-logical methods of analysis and synthesis allowed to reveal the content of the concepts that make up the subject of research, to classify them, as well as to formulate intermediate and general conclusions. The systematic method allowed to study the role and significance of somatic human rights among other human and civil rights and freedoms. Using the historical method, the doctrinal basis of the study was analyzed, and the main stages of the formation of biomedical research with human participation were identified. The structural-functional method allowed to clarify the internal structure of the mechanism of constitutional and legal support of somatic rights and freedoms of man and citizen in the process of biomedical research, as well as to determine the functional purpose of each element of this mechanism. The content of legal regulations governing social relations, within which the organization and functioning of the mechanism of protection of somatic human rights in the process of biomedical research, was revealed using a special legal method of cognition. The comparative method made it possible to identify similar features and differences in the constitutional and legal regulation of the mechanism of protection of somatic human rights in the process of conducting biomedical research.

Ethnography and applied metaphysics

Ethnography and applied metaphysics

Four great magnalia of government. La riforma istituzionale di Henry Neville: un machiavelliano inglese alla corte di Cosimo III de’ Medici

The tumultuous phase running from the beheading of Charles I to the Glorious Revolution is the time frame in which England goes through the crucial phases that will put an end to royal absolutism. One of the most authoritative intellectual figures of that founding historical moment of modern constitutionalism is Henry Neville, author of political and satirical pamphlets who, taking up the lesson of the ancients with the experience of “modern things”, published in 1680 the Plato Redivivus, a work that will consecrate him as a Republican political thinker. The treaty, written and published in the context of the Exclusion crisis, exhort Charles II to reduce his powers. The disease suffered by the State, the causes of which Neville investigates by seeking remedies, arose precisely from the extension of the king's power and his arbitrariness.

Coronavirus pandemic as a reason for limitation of human rights and freedoms

The subject. The article analyzes the phenomenon of the COVID-19 pandemic and its impact on the human rights and freedoms. It emphasizes that some information about the corona-virus infection was available several decades ago. At the same time, the specialists unfortunately weren’t ready for the possible mutation of this virus, which has now exposed a large-scales threat to the population of the whole world.The purpose of the article is to identify the problems of the implementation of the citizens’ rights and offer proposals for improving the Russian and Belarusian legislation and the practice of its implementation in the field of combating the coronavirus infection.The methodology. The authors take into account the practice of the European Court of Hu-man Rights and the constitutional control bodies of Russia and foreign countries. They make a conclusion on the legitimacy and necessity of the taken restrictive measures. The article is based on the dialectical method, as well as at the logical, historical, systemic methods. Methods of analysis and synthesis were of particular importance. The authors have applied the functional method to research the main areas for ensuring a reasonable balance of private (individual) and public interests.The main results, scope of application. Modern constitutions, including the Russian and the Belarusian ones, contains the most important principles of the rule of law, enshrine human rights and freedoms as the highest value. Human rights and freedoms continue to be are at the epicenter of many disputes and discussions. The modern system of rights and freedoms is constantly developing; the legal status of a person receives new content as the human civilization develops and the paradigm of values changes. For example, we see how information technology and other advances affect the scope of rights and freedoms. Rights, freedoms and obligations are interconnected and interdependent. All groups of rights are currently in the field of view of international organizations. The problem of equality, the elimination of discrimination, the restoration of violated rights, the assessment of the limits of the state's invasion in human rights and freedoms continues to be relevant nowadays.The article focuses on the international and national standards for the possible restriction of rights and freedoms in order to protect the health of the population. The international law rules on human rights oblige states to take measures to protect health and provide medical assistance to those in need.Conclusions. One of the constant problems is the relationship between the rights of a particular person and the rights of other persons, group or society as a whole and the state. At the same time, the coronavirus pandemic forced the public authorities to determine the balance of the priority of human rights and freedoms or the protection of the life and health of citizens. The coronavirus pandemic is the factor that affects the content of the legal regulation of relations in the field of human rights and freedoms. The measures taken by the state affect the right to health protection, freedom of movement, the right to education, right to have sport activity, right to work, freedom of assembly and others.The article proposes to inform the population more fully about the measures taken by the state and society in this direction, about the wider use of information technologies, about the possible responsibility for non-compliance with the requirements for the use of per-sonal protective equipment and the self-isolation regime.

Judicial Observations over the Doctrine of Unconstitutional Constitutional Amendment in Pakistan: A Critical Appraisal

The legal fraternity and some political parties around the country challenged the twenty-first constitutional amendment, enacted by the Parliament of Pakistan. The petitioners contended that the Legislature amended the basic features of the Pakistan Constitution beyond its scope of amending power and liable to be declared unconstitutional. However, some of the judges of the apex Court of Pakistan adopted the former judicial approach. They ruled that the apex court had no authority to annul any amendment when it became a formal part of 1973’sConstitution. The apex court further stated that the impugned amendment might be taken under consideration if it was found that the required constitutional procedure for amendment did not comply with it. This research aims to critically analyze observations of the apex court about examining the constitutional amendment on the yardstick of repugnancy with the basic features of the Constitution of Pakistan. For achieving the proposed objective, this study adopts a doctrinal research method. It carries out an in-depth analysis from the perspective of modern Constitutionalism, juristic literature, and judgments of the superior courts of various States to support the study.

Developing Distinctions of Classical Principles for Modern Constitutions: Integralism: A Manual of Political Philosophy by Fr. Thomas Crean and Alan Fimister

Developing Distinctions of Classical Principles for Modern Constitutions: Integralism: A Manual of Political Philosophy by Fr. Thomas Crean and Alan Fimister

CONSTITUTIONAL IDENTITY IN THE ARGUMENTATION OF DECISIONS OF CONSTITUTIONAL COURTS

The latest trend in modern European constitutionalism is the issue of constitutional identity. Constitutional courts, which are the embodiment not only of the protection of the Constitution, but also of the limitation of power, are influential subjects of assessing the country’s international obligations and their implementation in national legislation. The purpose of the article is to analyze the constitutional identity in the argumentation of decisions of constitutional courts.
 The research method is a comparative legal analysis of the practice of constitutional review bodies in order to assess the expression of the concept of respect for national identity, which has become a condition and principle of legal integration in the European region. In addition, empirical analysis of decisions of constitutional courts was used. Using the system-structural method, the doctrine of «constitutional boundaries» as a component of constitutional identity is analyzed.
 It is justified that the concept of «identity» appeared and began to be actively used by European constitutional courts to justify decisions related to the processes of European integration and the expansion of the influence of supranational institutions of international organizations, including the European Union. It is proved that the decisions of constitutional courts should be based on national legal values, taking into account international practice and the principle of the supremacy of the Constitution. At the same time, national courts must take into account the country’s international obligations when making decisions. In today’s world, constitutional courts cooperate with the courts of international organizations, which form a common case law in the member states, in particular on the interpretation of human rights. This is manifested in the citation by constitutional courts in their acts of decisions of supranational judicial bodies. It should also be noted that the constitutional court may be guided by the positions of international courts in forming its legal position, but according to the doctrine of judicial discretion, the national court is free to assess the circumstances of the case and it is best acquainted with national features and specifics of national law.
 The analysis of the decisions of the bodies of constitutional proceedings, which used the concept of constitutional identity, gave grounds to claim that the courts in their practice in their interpretation appealed to different arguments depending on the specifics of the case. For example, in formulating the doctrine of constitutional boundaries, the Constitutional Court of Italy, in substantiating its decision, used at the same time an argument by analogy, an argument of agreement, an argument of general principles. The Federal Constitutional Court of Germany in its decision in the case of the Maastricht Treaty resorted to naturalistic and systemic arguments.
 It is concluded that constitutional identity is a system of interpretive arguments used by constitutional courts to substantiate decisions that verify compliance with the national specifics of constitutional norms. Of course, this applies to the categories of so-called «difficult cases», for the argumentation of which requires a system of strong arguments.

Triumph of Ancient Philosophy, Unanimously Agreeable Governance, Economic Policy and Constitution for Civilized Coexistence

This paper presents rational and unanimously agreeable norms in (a) governance, (b) economic policy, (c) constitution and (d) religious and scientific beliefs for civilized coexistence. The basis of unanimous agreeability is that individuals do not prefer to have their wealth (including life) robbed, even surreptitiously. This preference is unanimous because even robbers do not want to be robbed. I argue that unanimously agreeable norms are necessary for civilized co-existence of humans and are consistent with the ancient philosophy (Hindutva), which originated in India more than 3000 years BC and is reflected in Gita, https://en.wikipedia.org/wiki/Bhagavad_Gita . Gita is considered by Courts of India as a philosophical document. The basic ethos of Gita is explicit and transparent: the state (King Dhristarastra) must not allow anyone (including privileged princes like Duryodhan) to take away others' (Pandavas') property even surreptitiously (through Sakuni's rigged game of Pashakhel). The modern constitution ordains freedom through rights to property, liberty and pursuit for happiness of individuals. But it has tacitly allowed establishment of a system (rules) of governance to facilitate surreptitious robbery. Individuals accumulate property like home and retirement savings with a hope to attain freedom, eventually, which they cannot achieve if they are robbed, even surreptitiously. The ancient philosophy of Gita prohibits robbery of any kind and, thus, guarantees hope for individual freedom. The modern philosophy—underlying the established system (rules) tacitly allowing surreptitious robbery—cannot, however, achieve individual freedom. Widespread or inclusive economic prosperity can be attained only if the constitution and rules of law are unanimously agreeable which will be consistent with ancient ethos but not modern philosophy.

The rise of digital constitutionalism in the European Union

Abstract In the last twenty years, the policy of the European Union in the field of digital technologies has shifted from a liberal economic perspective to a constitution-oriented approach. This change of heart has resulted primarily from the rise of the information society which has created not only new opportunities but also challenges to fundamental rights and democratic values. Even more importantly, this technological framework driven by liberal ideas has empowered transnational corporations operating in the digital environment to perform quasi-public functions on a global scale. This article analyzes the path and the reasons that have led the European Union to enter a new phase of modern constitutionalism (i.e. digital constitutionalism). The primary goal of this article is to describe the characteristics of this new constitutional phase opposing platform powers, and to outline the potential evolution of European digital constitutionalism in the global context.

Decolonizing Critical Theory?

AbstractTheorists working within the Frankfurt School tradition of critical theory have not been immune to calls to “decolonize” that have been circulating in and beyond the academic world. This article asks what it means to seek to decolonize a tradition of thought that has never explicitly acknowledged colonial histories. What is needed, instead, this article suggests, is consideration of the very implications of the “colonial modern”—that is, an acknowledgement of the colonial constitution of modernity—for Frankfurt School critical theory's idea of historical progress. The issue is more extensive than simply acknowledging the substantive neglect of colonialism within the tradition; rather, this article suggests that its categories of critique and their associated normative claims are also necessarily implicated by this neglect and require transformation. Acknowledgment of colonial histories requires material reparations for the substantive inequalities bequeathed as legacies of the past, but these reparations also require a transformation of understandings and a recognition of “epistemological justice.”

Marx and Critical Constitutional Theory

This chapter argues that Marx proffers important resources to develop a critical constitutional theory that questions the fetishism and mystifications of modern constitutionalism and whose goal is to deepen democracy. In particular, it argues that Marx’s critical theory of constitutional law is political, social, socialist, and anti-systemic. The chapter is organised as follows. The first section highlights Marx’s attention to the antinomy of constitutionalism in his engagement with Hegel’s theory of the state. In the course of this engagement, Marx contrasts the political constitution (both monarchical and republican) with ‘democracy’ in order to foreground the constitution’s limitations and point the way toward the resolution of the paradox by centering the people’s constituent power and subjecting the constitution to popular will at all times. The second section examines alienation and the abstraction of popular sovereignty under a political constitution that emanates from the separation of state and ‘civil society’. The third section argues that the limitations and mystifications of ‘the paradox of constitutionalism’ are rooted in the political (or partial) revolution that generates the constitution. Instead of a class-neutral constituent power leading a political revolution, Marx envisions a social revolution in which the proletariat is the constituent power. In order to illustrate the false promises of political revolutions, the fourth and fifth sections focus on the failings of constituent assemblies. These constitution-making assemblies do not live up to the ideal of constituent power, either because their politics is non-revolutionary or because the pre-revolutionary constitutional order imposes constraints on their work to prevent revolutionary rupture. The sixth section highlights Marx’s analysis of the incoherence and contradictions of the political revolution’s constitution. The fact that the constitution is ultimately based on modus vivendi because it accommodates competing interest and embodies a class compromise generates this incoherence. The seventh section returns to the paradox of constitutionalism in order to highlight Marx’s conclusion, following his analysis of bourgeois revolutionary constitutions, that the fundamental contradiction consists in the blockage of social emancipation, and that the constitutional incoherence and instability are better understood as emanating from the unresolved paradox of constitutionalism. The eighth (and penultimate) section explores elements of an alternative radical constitutionalism that Marx identifies in the experience of the Paris Commune in order to chart a path beyond the alternatives of despotism and class rule.

CURRENT TENDENCY OF DEVELOPMENT OF CONSTITUTIONALISM: FROM WEST TO EAST

The article is intended to determine the tendency of current constitutional development. Using formal-legal, systematic and comparative methods, the author considered the problem of the impact of the constitutional values, which emerged in western societies and received the universal importance, on the constitutional development in the Eastern countries. The novelty of the study is using modern sources of constitutional law. The concept of «the global constitutionalism» is considered critically in the article. At the same time, the author is of the opinion that modern constitutions became inherent in a state. Furthermore, the western constitutional values influenced largely the contents of the modern east constitutions. The Scale of such influence, along with its forms are different, depending not only on external but also on internal factors of the state development. As a result of the study, the conclusions are drawn regarding the features of the modern constitutionalism in East countries, some common features and differences in the constitutional development in different countries, which are traditionally assigned to the eastern type of civilization, explanations of the formalization of the constitutional process.

교육의 자유와 국가의 역할 - 사립학교의 자유를 중심으로 -

Article 31 of the Constitution of the Republic of Korea stipulates the right of all citizens to receive an education. This generally encompasses the idea of this right being a fundamental social right. Considering that the principle of the social state is understood as a basic principle of the Constitution, that fundamental social rights are stipulated in the Constitution, and that education has significant realistic and normative implications, it is natural that the role of the state in education is deemed highly important. However, this does not mean that education should solely be under state responsibility. In the most fundamental sense, parental education of their children is an exercise of natural freedom, and the significance of the freedom of private schools can be recognized in this context. Today’s free and democratic state envisages the realization of a legal and political order that enables free individuals to coexist and prosper as the fundamental starting point of its existence. If education is understood to be only an obligation of a nation as a social state, it would be difficult for the state to act upon the original significance of its status as a guardian of the core values and order of the community that promotes the freedom of different individuals. Following the era when religion occupied the dominant position in education and since the adoption of modern constitutionalism, the cultivation of knowledge and qualifications by members of a political community formed at the national level has become the public goal of education. As the state carried out the task of establishing practical conditions for freedom and equality to thrive, the state’s role in education has been further expanded and justified. However, education is not merely a transfer of a certain consensus shared among members of a political community or a preparatory process that enables economic activity. It goes beyond such functions —it belongs to even a higher dimension in that it has profound significance extending to a very personal and intimate realm that includes exploring, challenging, reflecting on, and envisioning the reality and meaning of existence and life. As a result, it is outside the capacity of the state to provide diverse educational programs on a sufficient scale that meets the personality and judgment of different individuals; even if this were possible, it would not be appropriate. Through the diverse and creative education of private schools, a wide range of possibilities for the realization of individual character and development of personality can be guaranteed.

Niccolò Machiavelli: Father of Modern Constitutionalism

Niccolò Machiavelli is the father of modern constitutionalism. Constitutionalism began anew in the modern world with the study of the ancient republics and it was Machiavelli who inaugurated this revived science of politics. Five hundred years after the composition of Il principe and the Discorsi we are still working out the implications of applying reason to the structures of law and government in pursuit of justice and the common good. Modern constitutionalism and ancient republicanism share three central beliefs: first, that government should serve justice and the common good; second, that government should do so through known and stable laws; third, that these will best be secured through the checks and balances of a well-designed constitution. Machiavelli took the theories and experiences of republican Rome and applied them to his own era. This application of reason to constitutional design transformed the politics of emergent modernity and reconfigured government throughout the world.

Os híbridos cantam: a constituição do pensamento moderno, a poética Marubo e os estudos de poesia

The article discusses possibilities open to the study of poetry based on Amerindian poetics, focusing specifically on the contributions of anthropologist and translator Pedro Cesarino (2013), in “When the Earth stopped talking”, anthology of mythical songs from the ethnic group amazonian Marubo. With this objective in mind, the discussion of Bruno Latour (2013) on the Constitution of modern thought and its guarantees is recovered, to then promote a reflection on how modern poetry, and precisely its criticism, does not escape this. paradigm – on the contrary, it is inscribed in it. For this, the clash between Berardinelli (2007) and Friedrich (1978) around the immanence and transcendence of lyric poetry, and the accusatory posture that gives dynamics to modern thought, is brought up. That done, the text resumes the poetry Marubo and the translational act of Cesarino (2008; 2013), as a way to highlight a poetics coming from another worldview, in everything different from ours, but, above all, to discuss how to look at this poetics it can make us rethink paradigms that formulate modern epistemology and, by extension, the hegemonic pillars of criticism about poetry.

Axioconceptosphere of modern unitarism in Ukraine

The conceptual problems of the formation of the national doctrine of unitarism are covered. Recognizing the fact that the most multifaceted and complex problem is the establishment of the optimal form of government in Ukraine, it is proposed to introduce a separate vector in national constitutional science and education. In spite of the fact that in the field of political and legal science in general and modern constitutionalism, the issue of unitarism is quite actively discussed by scholars, scientists, politicians and public figures, the scientific knowledge in this field remains extremely controversial and fragmentary. Analyzing the complex of essential and substantive characteristics of unitarism as a phenomenon of modern constitutional law, outlines perspective directions of development of the unitarian doctrine. The synergistic connection between the theory of modern unitarism, the principles of unitarity of the state territory and the fundamental institutions of political-legal and state-administrative life of modern unitary states is shown. It proves that the unitary system is not only one of the important components of the process of achieving the tasks, goals and functions of most modern states, but also an immanent feature and strategic element of the mechanism of exercising their sovereign rights. Considering that unitarism is a multidimensional socio-political and constitutional phenomenon: it is an idea, a theory, a scientific direction, and a global social and constitutional practice, and a constitutional form of the existence and functioning of territorial communities, and the historical state of national statehood and Ukrainian regional civilization, and the form of realization of national identity and citizenship, etc., concludes the relevance and necessity of forming a unitarist discourse in modern constitutional law science and education. In the opinion of the author, consistent conceptualization and institutionalization of the unitarist doctrine will allow us to understand the deep processes that determine the emergence of the phenomenon of national unitarism, testify to the enormous civilizational role and axiological, ontological, epistemological, functional and psycho-logical features in the course of its political structuring, formation of market economy relations, implementation of eco-humanistic national security and defence.