Rise Of Constitutionalism Research Articles

The Horizontal Effect: Conceptualisation and Application of Constitutional Rights in Private Law

Private law has traditionally followed a separate mindset of rights, which is not necessarily related to the constitution. With the rise of constitutionalism in the world, thinking about constitutionalism and fundamental rights has spilt over into private law. The constitutionalisation of private law (or the horizontal effect of constitutional rights on relations between private actors) is one of the important topics that attract scholarly attention around the world.
 It can be seen that the modern history of the horizontal effect of constitutional rights has more than 60 years of development. However, in Vietnam, the topic of the effect of constitutional rights in private law has just been raised recently among legal scholars. This article serves as a development of the emerging discussion on the horizontal effect in Vietnam by providing a general conceptualisation and a brief history of the horizontal effect of constitutional rights in the world. The article also proposes the identification of horizontal effect paradigms in countries/jurisdictions and suggests implications of the horizontal effect for Vietnam.

The Constitutional Renaissance

This is a paper presented by Sir Robin Cooke on “the astonishing breadth and depth” of the “rise of constitutionalism and, with constitutionalism, human rights” across the world, through a series of examples. He begins with the United Kingdom, commenting on the Human Rights Act 1998, the three devolution Acts of 1998, and the effect of the European Court of Human Rights on English law. Sir Robin then moves beyond Britain to discuss developments in Canada, India, Africa, Hong Kong, Australia, and New Zealand. These include the enactment of the Canadian Charter of Rights and Freedoms, the work of the Indian Supreme Court as the “guardian” of human rights, the development of the South African Constitutional Court following the end of apartheid, and the protection of human rights by the Hong Kong judiciary following the handover of Hong Kong to China. Sir Robin concludes by stating, first, that courts have a “crucial role” in “the protection of minority rights now and in the future” as “one of the elements of democracy” and, secondly, that it is crucial that judges “not be elected”. Abstract by Tim Cochrane.

The Legal Complex

The concept of the legal complex is a new addition to the lexicon of sociology and sociolegal scholarship. As a concept, the legal complex emerged from a series of interdisciplinary collaborations and primary research on the politics of lawyers and judges across the world. The review introduces this new collective actor to the political stage and elaborates its defining elements, morphology, varieties of mobilization, and repertoires of action. This review argues for a complementary methodological strategy for investigation of the politics of the legal complex, the longue durée and événements. With respect to political liberalism, it shows the contexts and resources in which the legal complex thrives, with particular emphasis on civil society, information technology, the rise of constitutionalism, and international circumstances. The essay argues, however, that the explanatory reach of this concept can extend to any policymaking issues, national or supranational, that involve law, legal institutions, and legal actors. By adopting the logic of analysis developed in this review, not only do previously discrete areas of work on lawyers, judges, or prosecutors come into creative tension, but a lively politics of the legal complex will refine and extend theory across the landscape of law and society research.

Why Wield Constitutions to Arrest International Law?

A constitution’s seductive potential cannot be ignored even in international law. Though partisan in character, a constitutional lens, inter alia, is increasingly used to see international law today. While European lawyers interpret the Kadi judgement of the Court of Justice of the European Union (ECJ) as pluralist — a case of embracing monism upside-down — a developing country observer clearly sees Kadi as dualist. American scholars envisage international law subordinate to the United States’ constitution. From a studied monism Europe has moved to pluralism while the U.S. has always been dualist. In the post-colonial era, many developing and least developed countries (Third World) have established a successful constitutional democracy. Little surprise then, a new found constitutional confidence is colouring such countries’ international advocacy. In India - QRs, India drove the separation of power argument that New Zealand had made in the Rainbow Warrior case a step further. However constitutionalism, as an ideology, remains, as is often the case, an inconclusive question for an eternally observing Third World. This article discusses the rise of constitutionalism in international law and the Third World’s possible responses.(Winner of SATA Prize for International Law for 2010) 16 Asian Yearbook of International Law (2010)

An Introduction to International Institutional Law. By Jan Klabbers. Cambridge, New York, Port Melbourne: Cambridge University Press, 2002. Pp. xxxv, 438. Index. £70, cloth; £24.99, paper.

International institutions are powerful players on the world stage, and every student of international law requires a clear understanding of the forces that shape them. For example, with increasing global influence comes the need for internal control and accountability. This thought-provoking overview considers these and other forces that govern international institutions such as the UN, EU and WTO, and the complex relationship that exists between international organizations and their member states. Covering recent scholarly developments, such as the rise of constitutionalism and global administrative law, and analysing the impact of important cases, such as the ICJ's Genocide case (2007) and the Behrami judgment of the European Court of Human Rights (2007), its clarity of explanation and analytical approach allow students to understand and think critically about a complex subject.

The Fall and Rise of Constitutionalism in West Africa

THE conventional wisdom has it that European/Western constitutional forms cannot be expected to take root in African political soil, much less grow and flourish, since they are based on essentially alien predicates and principles. That is why, it is further claimed, practically all the so-called ‘independence’ constitutions were quickly annulled, abrogated, or simply put aside by the generation of ‘founding fathers’ and/or their immediate successors as leaders, despite having been adopted in the 1960s amid universal jubilation and optimism about the continent's democratic future. Needless-to-say, this bit of conventional wisdom suffers from the post hoc, ergo propter hoc fallacy that given the failure of constitutions, it must follow that they were at fault – a conclusion warranted neither by an examination of their provisions and the circumstances of their genesis, nor of the contexts in which they allegedly ‘failed’.

Hu Shih and Liang Ch'i-ch'ao: Affinity and Tension between Intellectuals of Two Generations

Liang Ch'i-ch'ao (1873-1929) and Hu Shih (1891-1962) were, respectively, leading figures in the 1898 Political Reform and the May Fourth Movement. There was an eighteen-year difference in their ages. Had they not appeared in the course of history, it is doubtful whether these two events would have been as they were or whether they would have occurred at all. But what we can be sure of is that Liang Ch'i-ch'ao's emotion-filled writings deeply influenced the abolition of the civil service examination system in the late years of the Ch'ing dynasty, the rise of constitutionalism, and even the outburst of the 1911 Revolution. It was the same with Hu Shih. He advocated pai-hua, wrote in pai-hua himself, spread experimentalism, campaigned for the emancipation of thinking, democracy and science, and total Westernization, casting a profound spell over the whole nation. In essence, both Liang and Hu were emancipators of the Chinese mind, each enjoying his own important position in modern Chinese intellectual history.