Tom Ginsburg

University of Chicago | UC · Law School

This chapter examines East and Southeast Asian monarchy in comparative perspective. Much recent thinking, particularly about contemporary monarchy, has developed from the history of European (and to a lesser extent African) monarchies. Indeed, European scholars have long contrasted the limited character of European kingship from the putatively more...

This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products, and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutiona...

How does a democracy that has survived a close brush with authoritarianism start to recreate conditions of meaningful democratic political competition? What steps are to be taken, and in what order? Certain lessons can be gleaned from comparative experience with the challenges of “front-sliding”—that is, the process of rebuilding the necessary poli...

Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a complex portrait of “the Buddhist...

Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a complex portrait of “the Buddhist...

Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a complex portrait of “the Buddhist...

Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a complex portrait of “the Buddhist...

Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a complex portrait of “the Buddhist...

Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a complex portrait of “the Buddhist...

The Universal Declaration of Human Rights (UDHR) is thought to have shaped constitutions profoundly since its adoption in 1948. The authors identify two empirical implications that should follow from such influence. First, UDHR content should be reflected in subsequent national constitutions. Second, such reflections should bear the particular mark...

We explore the apparent disruption of legal scholarship wrought by leximetrics—variable-oriented, predictive methods. We view the skepticism surrounding leximetrics as healthy, in that it focuses attention on some central inferential challenges relevant to most empirical methods. Scholarly anxiety may be a natural by-product of this disruption, as...

The Cambridge Companion to the Rule of Law introduces students, scholars, and practitioners to the theory and history of the rule of law, one of the most frequently invoked-and least understood-ideas of legal and political thought and policy practice. It offers a comprehensive re-assessment by leading scholars of one of the world's most cherished t...

Emergency governance, we are often told, is executive governance. Only the executive has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. Ordinary checks and balances, then, are believed to effectively disappear during a crisis. Referring to the cl...

This article responds to a set of well-known challenges to empirical research on formal institutions in comparative politics. We focus on the case of written constitutions and discuss the scholarly utility of studying such documents in the face of four analytic and theoretical challenges. Each of these challenges, in turn, implies a set of empirica...

War often appears to be definitionally outside the realm of structures such as law and literature. When we speak of war, we often understand it as incapable of being rendered into rules or words. Lawyers struggle to fit the horrors of the battlefield, the torture chamber, or the makeshift hospital filled with wounded and dying civilians into the fr...

To say that monarchy has received too little attention in the field of comparative constitutional law is to engage in understatement that even Queen Elizabeth might find excessive. In this useful volume, editors Robert Hazell and Bob Morris aimed to fill not just a gap in the literature, but a “gaping void” (at 3). Yet by their count there are fort...

This contribution takes as its starting point Professor Sadurski’s analysis of the Polish slide from democracy. Poland’s populists learned from Hungary, trying many of the same strategies as Viktor Orbán’s Fidesz Party. The lack of a constitutional majority meant that certain moves were open and others foreclosed, and Europe’s previous failures wit...

Redrafting Constitutions in Democratic Regimes - edited by Gabriel L. Negretto September 2020

Cambridge Core - Constitutional and Administrative Law - Redrafting Constitutions in Democratic Regimes - edited by Gabriel L. Negretto

Our era is one of democratic backsliding. International courts and institutions have provided some bulwark against this trend, but we are now witnessing leaders seeking to use international law to extend their power. Courts in several countries have relied on international human rights norms to facilitate term limit extensions by leaders seeking to...

International law, though formally neutral among regime types, has mainly been a product of liberal democracies since World War II. In light of recent challenges to the liberal international order, this Article asks, what would international law look like in an increasingly authoritarian world? As compared with democratic countries, authoritarians...

Cambridge Core - Comparative Law - From Parchment to Practice - edited by Tom Ginsburg

Militant organizations and rebel groups are an enduring feature of political life in much of the world. As scholars pay greater attention to rebel governance strategies, the role of law and courts is coming to the fore. We observe a good deal of variation across rebel groups in terms of their legal infrastructure and its organizational differentiat...

For many, the growing judicialization of international relations is the next step in the process toward the complete legalization of international politics. We draw on the literature in comparative judicial politics to examine the limits of the phenomenon. The domestic literature on judicialization portrays the process as something of a one-way rat...

How has academia understood the massive changes in the world since 1989? This article emphasizes the important role of institutional analysis and empirical scholarship of various kinds. There has also been new attention to issues of identity. Finally, there have been monumental changes in the way scholarship is produced and consumed, and these too...

Our chapter elaborates the distribution of term limit provisions across time and space. We draw on the Comparative Constitutions Project, which records data from written constitutions for independent states since 1789. We show that term limits have become more common in presidential systems, and that there are regional variations to the patterns. W...

Constitution-Making and Transnational Legal Order - edited by Gregory Shaffer April 2019

This chapter considers a variety of constitutional options for resolving and managing enduring territorial cleavages. Three categories of constitutional tools are discussed: those that involve allocation of decision-making to different levels of government, including federalism, autonomy, and various forms of devolution; those that concern central...

Democracies can collapse or erode beyond repair, but they can also suffer substantial yet “non-fatal” deterioration in the quality of democratic institutions, and then experience a rebound. Such “near misses” have received little or no attention in the new wave of scholarship on why democracies die (or survive). This article develops the concept of...

Cambridge Core - Constitutional and Administrative Law - Constitutional Courts in Asia - edited by Albert H. Y. Chen

The field of comparative constitutional studies is an interdisciplinary inquiry that combines positive and normative analysis, and utilizes tools from several different academic disciplines including history, law, political economy, and sociology. The field reflects James Madison’s confidence that we can utilize the comparative method to produce ge...

Introduction to the Symposium on Thomas Franck, “Emerging Right to Democratic Governance” at 25 - Volume 112 - Tom Ginsburg

Because constitutions do not last forever, polities face the problem of transitions. In recent years, national constitution-making processes have tended to employ two mechanisms to effectuate the transition between the former regime and incoming one: (i) interim constitutions; and (ii) transitional provisions. In this chapter, we provide a descript...

Screening potential entrants is a major challenge to any system of immigration. At bottom, the problem is one of information asymmetry, in which migrants hold private information as to their abilities and intentions. We propose a new approach that leverages information that potential entrants have about each other. Certain potential entrants to the...

This chapter examines a particular aspect of treaty practice, namely the use of objections to reservations, as an example of the comparative international law project. The practice of objections, it argues, occurs when states have divergent interpretation of treaty requirements, but also illustrates the differential propensity of states to push the...

We explore how ideas from infectious disease and genetics can be used to uncover patterns of cultural inheritance and innovation in a corpus of 591 national constitutions spanning 1789–2008. Legal “ideas” are encoded as “topics”—words statistically linked in documents—derived from topic modeling the corpus of constitutions. Using these topics we de...

Constitutional review, and constitutions more broadly, have been analyzed as providing political insurance for parties who risk declining power. This article develops a typology of risks against which insurance may be useful, and explains how each has its own distinctive institutional implications. It suggests that political elites may seek insuran...

National constitutions are central to the field of foreign relations law, which is defined by Curtis Bradley in his essay as “the domestic law of each nation that governs how that nation interacts with the rest of the world.” In this contribution to the symposium, I wish to explore the relation between foreign relations law and national constitutio...

Introduction to Symposium on Sovereignty, Cyberspace, and Tallinn Manual 2.0 - Volume 111 - Tom Ginsburg

This book provides unique insights into the practice of democratic constitutionalism in one of the world’s most legally and politically significant regions. It combines contributions from leading Latin American and global scholars to provide ‘bottom up’ and ‘top down’ insights about the lessons to be drawn from the distinctive constitutional experi...

This paper surveys the history and practice of providing constitutional advice. It first examines antecedents, then looks at the contemporary political economy of the process, drawing on the transnational legal order (TLO) framework to evaluate whether or not it can be characterized as a TLO. The answer is a partial yes. We focus on one feature of...

A World of Struggle: How Power, Law and Expertise Shape Global Political Economy. By David Kennedy . Woodstock, Oxfordshire: Princeton University Press, 2016. Pp. ix, 298. Index. $29.95, £24.95. - Volume 111 Issue 1 - Tom Ginsburg

As noted by President Obama’s recent Review Group on Intelligence and Communications Technologies, pervasive state surveillance has never been more feasible. There has been an inexorable rise in the size and reach of the national security bureaucracy since it was created after World War II, as we have gone through the Cold War and the War on Terror...

Regime transition is a central challenge in constitutional design. This chapter discusses two increasingly popular mechanisms to effectuate the transition between regimes: (i) interim constitutions; and (ii) transitional provisions. Both mechanisms involve the manipulation of temporality, limiting duration of what is supposed to be an enduring form...

Rule of law and constitutionalist ideals are understood by many, if not most, as necessary to create a just political order. Defying the traditional division between normative and positive theoretical approaches, this book explores how political reality on the one hand, and constitutional ideals on the other, mutually inform and influence each othe...

Is the United States at risk of democratic backsliding? And would the Constitution prevent such decay? To many, the 2016 election campaign may be the immediate catalyst for these questions. But it is structural changes to the socio-economic environment and geopolitical shifts that make the question a truly pressing one. This Article develops a taxo...

Concepts are the building blocks of legal doctrine. All legal rules and standards, in fact, are formed by combining concepts in different ways. But despite their centrality, legal concepts are not well understood. There is no agreement as to what makes a legal concept useful or ineffective - worth keeping or in need of revision. Social scientists,...

From London to Libya, from Istanbul to Iceland, there is great interest among comparative constitutional scholars and practitioners about when a proposed constitution is likely to succeed. But what does it mean for a constitution to succeed? Are there universal criteria of success, and which apply across the board? Or, is the choice of criteria ent...

From London to Libya, from Istanbul to Iceland, there is great interest among comparative constitutional scholars and practitioners about when a proposed constitution is likely to succeed. But what does it mean for a constitution to succeed? Are there universal criteria of success, and which apply across the board? Or, is the choice of criteria ent...

From London to Libya, from Istanbul to Iceland, there is great interest among comparative constitutional scholars and practitioners about when a proposed constitution is likely to succeed. But what does it mean for a constitution to succeed? Are there universal criteria of success, and which apply across the board? Or, is the choice of criteria ent...

In the last 25 years, constitutional courts have been major players in the governance of Central and Eastern Europe, and were arguably the most important defenders of the rule of law in the region. Yet the last few years have exposed the institutional fragility of constitutional courts in the face of illiberal democracy, as several countries have m...

Magna Carta’s status as a touchstone of modern thinking about the rule of law rests on several well-known myths. This article evaluates the influence of Magna Carta on modern constitutions, both in terms of formation as well as content. The analysis confirms that Magna Carta’s symbolic popularity is continuing to increase, even if the causal chains...

This introduction to the special issue on Buddhism and law lays out an agenda for the socio-legal study of contemporary Buddhism. We identify lacunae in the current literature and call for further work on four themes: the relations between monastic legal practice and state law; the formations of Buddhist constitutionalism; Buddhist legal activism a...

The rule of law era has given rise to multiple indicators purporting to measure the concept. This article compares four major indicators of the rule of law and shows that their approaches to conceptualization and measurement differ. Given their disparate conceptualizations and measurement strategies, one might expect a weak correlation between them...

This introduction to the special issue on Buddhism and law lays out an agenda for the socio-legal study of Buddhism. We identify lacunae in the current literature and call for work in four clusters: the relation of monastic legal practice and state law; the formations of Buddhist constitutionalism; Buddhist legal activism and Buddhist-interest liti...

We explore how ideas from infectious disease and genetics can be used to uncover patterns of cultural inheritance and innovation in a corpus of 591 national constitutions spanning 1789 - 2008. Legal "Ideas" are encoded as "topics" - words statistically linked in documents - derived from topic modeling the corpus of constitutions. Using these topics...

Constitution Making as a Transnational Legal Order - Volume 110 - Tom Ginsburg

It is conventional wisdom that China’s Constitution is unenforceable, and plays little role in China’s legal system, other than as a symbolic document. This view rests on the fact that the Supreme Court has no power to interpret the Constitution. The formal body with interpretive power, the Standing Committee of the National People’s Congress, has...

This article presents and assesses a new wave of em- pirical research on international law. Recent scholar- ship has moved away from theoretical debates over whether international law “matters,” and focuses in- stead on exploring the conditions under which inter- national law is created and produces effects. As this empirical research program has m...

As noted by President Obama’s recent Review Group on Intelligence and Communications Technologies, pervasive state surveillance has never been more feasible. There has been an inexorable rise in the size and reach of the national security bureaucracy since it was created after World War II, as we have gone through the Cold War and the War on Terror...