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The New Commonwealth Model of Constitutionalism: Theory and Practice

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Stephen Gardbaum argues that recent bills of rights in Canada, New Zealand, the United Kingdom and Australia are an experiment in a new third way of organizing basic institutional arrangements in a democracy. This new Commonwealth model of constitutionalism promises both an alternative to the conventional dichotomy of legislative versus judicial supremacy and innovative techniques for protecting rights. As such, it is an intriguing and important development in constitutional design of relevance to drafters of bills of rights everywhere. In developing the theory and exploring the practice of this new model, the book analyses its novelty and normative appeal as a third general model of constitutionalism before presenting individual and comparative assessments of the operational stability, distinctness and success of its different versions in the various jurisdictions. It closes by proposing a set of general and specific reforms aimed at enhancing these practical outcomes.

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Judicial remedies are the critical means by which courts worldwide enforce and implement constitutional rights. Yet constitutional remedies were largely overlooked by early political process theorists, such as John Hart Ely. Contemporary comparative political process theory (CPPT) or comparative representation-reinforcing theory (CRRT) pays much greater attention to remedial questions, including the use of a range of ‘weak’ judicial remedies. These CPPT/CRRT scholars have highlighted the risks as well as advantages associated with the use of such remedies, but they have not reached any consensus on how to strike this balance and optimise their use. The article therefore draws on one specific recent version of CPPT/CRRT, namely the theory of ‘responsive judicial review’, to propose one way to strike this balance, namely: In cases impacting the ‘democratic minimum core’, courts should generally prefer strong remedies, with delayed relief only applied for prudential reasons; for other cases, courts should deploy more dialogic remedies, but generally these delayed or suspended remedies should be accompanied by a judicial statement of pre-defined strong remedies that take effect automatically in the event of legislative inaction. In this way, this article suggests that courts can give weak remedies ‘bite’, and hence promote actual legislative debate and dialogue, rather than incentivise legislative inaction after their rulings.
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The illiberal regimes in Central and Eastern Europe present themselves as populist, using anti-representation and pro-direct democracy arguments. But in reality, this is only rhetoric, which does not necessarily correspond with these populists’ practice. Autocrats’ populism is ‘false’ their decisive characteristic is authoritarianism. What makes them distinct from non-populist autocrats are the democratic elections through which they come to power. The main argument of Central and Eastern European illiberals to defend their constitutional projects is grounded in claims to majoritarianism and political constitutionalism, which favors parliamentary rule and weak judicial review. But these efforts have nothing to do with either majoritarianism, because they are not based on the mechanism of political accountability and checks on power, or with political constitutionalism, because they do not question the capacity of constitutional courts to invalidate legislation passed by parliaments.
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In recent years, the United Kingdom has seen a growing doctrinal discourse around competing models of legal and political constitutionalism. The situation has been exacerbated by ongoing changes in both theory and practice, which have engendered a strong conviction that the UK is now departing from the political constitutionalism associated with the traditional model of parliamentary sovereignty, in which Parliament’s legislative power is unlimited by law and the courts have no right to question the validity of laws on substantive grounds. From a theoretical point of view, legal constitutionalists contributed to provoking this change while desiring to continue to promote it by moving almost completely and exclusively towards legal constitutionalism, thus supplanting its political formula. From a practical point of view, however, one should bear in mind that the events that led to a specific change in thinking about British constitutionalism encompass, in particular, the legal consequences resulting from the UK’s membership in the European Union, including the phenomenon of the so-called judicial activism. Nevertheless, these events were also induced by the expansion and strengthening of judicial review of administrative actions, judicial shaping of the principle of legality, as well as by the enactment and application of the Human Rights Act 1998.
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Transformative constitutionalism and process theory are generally seen as worlds apart. But they may be more compatible than we think. A transformative understanding of process is very broad, but it represents a natural extension of the line already being taken by contemporary process accounts intent on expanding the theory to fit global practice. It can help us to understand why an expansion based on and including a wider set of justiciable process concerns has proved difficult to limit. Conversely, transformative constitutionalism badly needs a better account of judicial restraint to balance its preoccupation with judicial boldness. Since it shares with process theory a deep concern with democracy, it can naturally draw on process accounts to understand its own limits. Democracy-seeking review, in aiming to build as well as protect democratic capacity, needs to be as concerned with restraint as intervention, depending on the context. Working out a transformative process theory is therefore at least an exercise instructive to either side, and it can offer a way to overcome divides that hamper global engagement with these core constitutional issues.
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This article aims to continue the recent neo-Elyean turn in comparative constitutional scholarship by further exploring the role of the courts in supporting and protecting democracy. In so doing, it refines and develops my previous work on the topic, and applies this fuller version to a highly visible current dispute. The article first examines the underlying conception of democracy that comparative political process theory is designed to protect; namely, constitutional democracy. It asks what this is and what role courts have in supporting it. The article then introduces the idea of ‘semi-substantive review’ as an integral and output-oriented part of a comprehensive comparative political process theory, alongside and in addition to the types of more purely procedural review I primarily emphasized in my previous work. Finally, the article employs the recent, highly controversial judicial reforms in Israel as a case study in applying the criteria for, and limits of, court intervention in my account. It analyses whether, why and how, in the event that the deeply contested bills become law (as so far one did), judges would be justified in acting to support and protect constitutional democracy.
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In May 1917, two South African feminist friends and critics of empire then in London sent a telegram to Field Marshal Jan Smuts, the Union of South Africa’s Defence Minister and delegate to the Imperial War Cabinet, in response to his early proposal for a Commonwealth of Nations. It read simply: “Your speech was fine”. Whether intended sincerely (as in “very fine”) or as faint praise (“fine as far as it goes, but”) is not known, but the ambiguity is fitting for an association and description with such contested associations – and one that, by some accounts, originated in the colonies (from an idea proposed by Canadian Prime Minister William Lyon Mackenzie King and South Africa’s then-Prime Minister J. B. M. Hertzog). It is fitting, too, that one of the cable’s authors was Olive Schreiner (1855-1920), leading novelist of the “New Woman”, advocate of sex equality, and clear-sighted critic of empire’s presumptions, rapacious designs, and gendered and ethnic biases, as well as of the race politics taking shape in South Africa at the start of the twentieth century. Even as we read Schreiner’s work today with an eye to its own prejudices and contradictions, this essay contends that it is worth considering the value of the proleptic critique it embodies for an understanding of the ongoing limitations — but also use-value — of the term “Commonwealth”, as well as of any term that might replace it. The outlines of Schreiner’s critique suggest that the term might yet encode a counter-ideal that points to an ongoing latent potential for the common to be reactivated as promise of a more equal and just division of empire’s spoils.
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Starting with this chapter, the book moves to the analysis of contemporary constitutional law in the Western World. The Second World War represented, indeed, a watershed in the development of western constitutionalism, as well as in the structure and goals of public international law. Despite the persisting legal peculiarities of each national experience, mainly deriving from cultural contexts and longstanding legal institutions, a convergence toward the common pattern of constitutional democracy can be observed, with regard to both the sharing of basic liberal-democratic values and the formation of constitutional designs corresponding to the main patterns of constitutionalism itself.
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In this book, Aileen Kavanagh offers a fresh account of how we should protect rights in a democracy. Departing from leading theoretical accounts which present the courts and legislature as rivals for constitutional supremacy, Kavanagh argues that protecting rights is a collaborative enterprise between all three branches of government - the Executive, the legislature, and the courts. On a collaborative vision of constitutionalism, protecting rights is neither the solitary task of a Herculean super-judge, nor the dignified pronouncements of an enlightened legislature. Instead, it is a complex, dynamic, and collaborative endeavour, where each branch has a distinct but complementary role to play, whilst engaging with each other in a spirit of comity and mutual respect. Connecting constitutional theory with the practice of protecting rights in a democracy, this book offers an innovative understanding of the separation of powers, grounded in the values and virtues of constitutional collaboration.
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Sweden can be framed as a history of ambiguity, making the law of the realm a natural part of what is often referred to as a Nordic mixed legal system. Civil law ideas are combined with typical common law elements, topped with traces of legal engineering of the welfare state. Any compromise seems possible. This chapter explores the Swedish legal culture in a heuristic manner, focused particularly on finding historical and structural explanations to the open-ended legal method, sometimes seen as way to define and demarcate Swedish law. A case study of the Girjas judgement provide a contemporary and momentary picture of the broad range of sources that can be referred to by Swedish Supreme Court Justices when justifying their decisions. Contextual elements are therefore used primarily to explain how the most important legal sources are reproduced, valued, and interrelate. Possible explanations to the plurality of sources are found in the long and evolutionary development of legal institutions and practices. Old and established national structures have seldomly been fully abolished, but rather complemented by new, sometimes contradictory, influences. The result is a combination of many ideas, reflected both in the evolution of constitutional structures and in the legal method. The conclusion is that the combination of critical and flexible attitudes towards law will likely keep tempering any effort to institutionalise thorough and enduring doctrinal harmony in the Swedish legal culture.
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As part of their continuous effort to enhance the effectiveness and democratic legitimacy of human rights treaties, human rights treaty organs have increasingly fostered a direct relationship with various state organs, thereby penetrating the ‘states’ that traditionally have been treated as monolithic legal entities. Treaty organs review the decision-making process of each type of state organ – courts, parliaments and administrative organs – and make remedial orders that are substantially addressed to specific state organs. Such phenomena go hand in hand with the relativization of the distinction between the legal spheres in which human rights treaty organs and state organs operate. This is the first study to address such phenomena as a totality. It constructs the ‘separation of powers in a globalized democratic society’ theory, thereby proposing how each type of state organ and the treaty organs should interact under human rights treaties. Its findings contribute, first, to the harmonious achievement of the effectiveness and democratic legitimacy of human rights treaties; second, to the reform of the classical paradigm of international law, in which monolithic states are the only relevant legal entities; and third, to the long-standing debates on the relationship between international and national laws from a new angle.
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Reseña del libro: Jorge Ernesto Roa Roa, Control de constitucionalidad deliberativo: el ciudadano ante la justicia constitucional, la acción pública de inconstitucionalidad y la legitimidad democrática del control judicial al legislador, Bogotá, Universidad Externado de Colombia, 2019.
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'New speakers' is a term used to describe those who have learnt a minority language not within their home or community settings, but through bilingual education, immersion or migration. Looking specifically at the impact of new speakers on language policy, this book provides an authoritative and detailed examination of minority language policy in Wales, Scotland, Ireland, the Basque Autonomous Community, Navarre, Catalonia and Galicia. Based on interviews with politicians, senior civil servants, academics and civil society activists, it assesses the extent to which interventions derived from a new speakers' perspective has been incorporated into official language practice. It describes several challenges faced by new speakers, before proposing specific recommendations on how to integrate them into established minority language communities. Shedding new light on the deeper issues faced by minority language communities, it is essential reading for students and researchers in sociolinguistics, language policy and planning, language education, bi- and multilingualism.
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One of the most notable features in recent Confucian political theory is the advocacy of political meritocracy. Though Confucian meritocrats’ controversial institutional design has been subject to critical scrutiny, less attention has been paid to their underlying normative claims. This paper aims to investigate the two justificatory conditions of Confucian political meritocracy—the service condition and the reciprocity condition—in light of classical Confucianism and with special attention to moral disagreement. Finding the normative argument for Confucian political meritocracy both incomplete (in light of classical Confucianism) and implausible (under the circumstances of moral disagreement), it proposes Confucian constitutional democracy as an alternative that can meet the three conditions of the good Confucian polity—service, reciprocity, and remedy—by reconceiving the people's well-being in terms of their basic rights, as well as by promoting constitutional dialogue among the three branches of the government.
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Is judicial review an effective and appropriate way to regulate counter-terrorism measures? Some argue that the judiciary is ill-equipped to examine such measures, for instance because they lack the expertise of the institutions which bring them about under exigent conditions. Others claim that subjecting counter-terrorism measures to judicial review is crucial for maintaining a jurisdiction's principles of constitutionalism. This volume brings together voices from all sides of the debate from a broad range of jurisdictions, from North America, Europe and Australasia. It does not attempt to 'resolve' the argument but rather to explore it in all its dimensions. The debates are essentially concerned with fundamental questions of organising and making accountable the exercise of power in a particularly challenging environment. The book is necessary reading for all those concerned with counter-terrorism, but also with broader public law, constitutional law and administrative law principles.
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Is judicial review an effective and appropriate way to regulate counter-terrorism measures? Some argue that the judiciary is ill-equipped to examine such measures, for instance because they lack the expertise of the institutions which bring them about under exigent conditions. Others claim that subjecting counter-terrorism measures to judicial review is crucial for maintaining a jurisdiction's principles of constitutionalism. This volume brings together voices from all sides of the debate from a broad range of jurisdictions, from North America, Europe and Australasia. It does not attempt to 'resolve' the argument but rather to explore it in all its dimensions. The debates are essentially concerned with fundamental questions of organising and making accountable the exercise of power in a particularly challenging environment. The book is necessary reading for all those concerned with counter-terrorism, but also with broader public law, constitutional law and administrative law principles.
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Dabartiniame konstitucionalizme ginti pagrindines teises nuo daugumos despotizmo pirmiausia buvo patikėta teisėjams, vėliau – ir nepriklausomoms institucijoms. Tačiau pastaruoju metu į šią veiklą vėl įsitraukia parlamentai, čia atlikę nepamirštamą istorinį vaidmenį; jų gebėjimai prilygsta atitinkamiems teisminių institucijų gebėjimams. Tarptautiniu mastu augant politiniam sąmoningumui, atgijo parlamentų, parlamentarų ir parlamentų tarnybų domėjimasis šia tema, o pagrindinių teisių apsauga tapo bendra atsakomybe. Įstatymų priėmimas, vykdomosios valdžios kontrolė, biudžeto tvirtinimas, svarstytinų pasiūlymų, ataskaitų teikimas, tyrimas – visos šios tradicinės parlamentų funkcijos gali prisidėti prie teisių apsaugos. Tokia apsauga savotiškai nuspalvina kasdienę asamblėjų veiklą dėl piliečių politinių teisių įgyvendinimo. Esama ir iniciatyvesnio požiūrio: siekiant išskirti šią autentišką parlamento misiją, steigiami specializuoti instituciniai dariniai (pavyzdžiui, Jungtinės Karalystės Jungtinis žmogaus teisių komitetas). Ar tai iš tiesų padeda formuoti bendrą tarpinstitucinę jautrumo pagrindinėms teisėms kultūrą, empiriniu lygmeniu diskutuotina.
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In an infamous speech delivered on July 26, 2014, the populist and autocratic Prime Minister Viktor Orbán proclaimed his intention to turn Hungary into a state that ‘will undertake the odium of expressing that in character it is not of liberal nature’. Citing as models he added: We have abandoned liberal methods and principles of organizing society, as well as the liberal way to look at the world … Today, the stars of international analyses are Singapore, China, India, Turkey, Russia … and if we think back on what we did in the last four years, and what we are going to do in the following four years, then it really can be interpreted from this angle. We are … parting ways with Western European dogmas, making ourselves independent from them … If we look at civil organizations in Hungary … we have to deal with paid political activists here … [T]hey would like to exercise influence … on Hungarian public life. It is vital, therefore, that if we would like to reorganize our nation state instead of it being a liberal state, that we should make it clear, that these are not civilians … opposing us, but political activists attempting to promote foreign interests … This is about the ongoing reorganization of the Hungarian state. Contrary to the liberal state organization logic of the past twenty years, this is a state organization originating in national interests.1 In a conversation with the French philosopher, Bernard-Henri Lévy, Orbán identified liberalism with totalitarianism, and illiberalism with true democracy:Liberalism gave rise to political correctness—that is, to a form of totalitarianism, which is the opposite of democracy. That’s why I believe that illiberalism restores true freedom, true democracy. 2 In a speech, delivered in mid-September 2019 at the 12th congress of the Association of Christian Intelligentsia, he said that ‘Christian liberty’ is superior to individual liberty – defined by John Stuart Mill in his On Liberty – which can only be infringed upon if the exercise of one’s liberty harms others. Christian liberty, by contrast, holds that we ought to treat others as we want to be treated.3 ‘The teachings of ‘Christian liberty’ – he added – ‘maintain that the world is divided into nations.’ As opposed to liberal liberty, which is based on individual accomplishments, the followers of ‘Christian liberty’ acknowledge only those accomplishments that also serve the common good. While liberals are convinced that liberal democracies will eventually join together to form a world government à la Immanuel Kant in the name of liberal internationalism, Christian liberty by contrast considers ‘nations to be as free and sovereign as individuals are, and therefore they cannot be forced under the laws of global governance’.
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The African Americans who wrote the Liberian constitution of 1847 represent one of the few instances where Americans engaged national constitution-making after 1787. While the Liberians adopted many aspects of the American constitution, they also made substantial changes implicitly critiquing the American original and forging a uniquely African American constitutionalism. Examining the Liberian constitution contributes to three fields of study: comparative constitutionalism, American political development, and African American political thought. In comparative constitutionalism, the Liberians show the adaptability of American constitutional principles to the west coast of Africa. In American political development, the Liberians provide a snapshot of what a subset of Americans disliked about the American constitution and what they changed when given the chance. Finally, the Liberians demonstrate how ideas of black nationalism and American constitutionalism may be intertwined in African American political thought.
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This paper critically examines the proposal to overcome the judicial definition of fundamental rights by using constitutional amendment procedures. Authors known as “political constitutionalists” have advocated weak‐form judicial review as an alternative to the constitutional practice currently prevailing in liberal democracies. The proposal under consideration here seeks to achieve this alternative by making constitutional amendment as easy as possible, i.e., through minimal constitutional rigidity. The discussion begins by questioning the idea of adopting institutional design as a suitable criterion for rating a judicial review system as “strong” or “weak.” Then the alleged relevance of constitutional amendment in the specification of constitutional rights is called into question. Lastly, the paper reaches a double conclusion. On the one hand, minimal constitutional rigidity is not an alternative to prevailing constitutional practice, but a more collaborative version of the same practice; on the other hand, minimal constitutional rigidity only represents a genuine alternative design when it is part of a model (“strong popular sovereignty”) aimed at overcoming the current constitutionalist paradigm.
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Die Verabschiedung des neuen Grundgesetzes Ungarns 2011/12 war nicht nur für Ungarn, sondern ganz Europa ein äußerst wichtiges Ereignis, und zwar aus zwei Gründen: Einerseits war dies nach der EU-Osterweiterung 2004 die erste neue Verfassung unter den neuen Beitrittsländern, wobei es zuvor auch nur ein einziges Mal vorgekommen war, dass ein Land nach seinem EU-Beitritt eine neue Verfassung verabschiedet hatte (Finnland 2000). Eine Verfassungsgebung ist auch aus der Perspektive der jeweils anderen Mitgliedstaaten keine alltägliche – und freilich keine leicht nachvollziehbare – Angelegenheit. Bei der ungarischen Verfassungsgebung ging es jedoch um eine noch interessantere Situation, die den zweiten Grund deren ungewöhnlich großen Relevanz liefert: Ungarn war der erste EU-Mitgliedstaat, der nach den – letztendlich gescheiterten – Bestrebungen der Union, sich eine Verfassung zu geben, bzw. nach dem Inkrafttreten des Vertrags von Lissabon eine neue Verfassung verabschiedete.
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The tricoloured flag India adopted in 1947 to mark its independence from Britain, the Tiraṅgā, results in fact from the combination of four elements whose official and popular semiotics has traversed several waves of negotiations during the decades preceding the foundation of contemporary India. Three of these elements are its equally sized, horizontal colours: saffron, white, and green; theirs is a chronicle of embeddedness in both confessional and secularist narratives which had shaped ancient and modern India, whereby the colour at the top—the saffron—best testifies to the intensity of and controversies surrounding mentioned narratives. Related struggles are subsumed under the choice to replace the 1921/1931 spinning wheel (charkha) with the blue-stained Ashok/Dharma Chakra, the “Wheel of Law”. Significant legal accounts coalesce indeed into the Tiraṅgā, from both spiritual-philosophical and positivistic standpoints. Despite conveying a supposedly ethnicity-neutral identity, the Chakra is often replaced with sectarian symbols by “minority” movements when they protest against the Hindu majority’s legislative radicalism.
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Die Verabschiedung des neuen Grundgesetzes Ungarns 2011/12 war nicht nur für Ungarn, sondern ganz Europa ein äußerst wichtiges Ereignis, und zwar aus zwei Gründen: Einerseits war dies nach der EU-Osterweiterung 2004 die erste neue Verfassung unter den neuen Beitrittsländern, wobei es zuvor auch nur ein einziges Mal vorgekommen war, dass ein Land nach seinem EU-Beitritt eine neue Verfassung verabschiedet hatte (Finnland 2000). Eine Verfassungsgebung ist auch aus der Perspektive der jeweils anderen Mitgliedstaaten keine alltägliche – und freilich keine leicht nachvollziehbare – Angelegenheit. Bei der ungarischen Verfassungsgebung ging es jedoch um eine noch interessantere Situation, die den zweiten Grund deren ungewöhnlich großen Relevanz liefert: Ungarn war der erste EU-Mitgliedstaat, der nach den – letztendlich gescheiterten – Bestrebungen der Union, sich eine Verfassung zu geben, bzw. nach dem Inkrafttreten des Vertrags von Lissabon eine neue Verfassung verabschiedete.
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Este artículo examina y propone alternativas institucionales para el constitucionalismo popular. La propuesta es una combinación progresiva de instituciones que buscan dotar a la ciudadanía con el poder final para determinar qué significa una constitución, contribuyendo a asegurar su libertad republicana, implementando mecanismos de deliberación, al tiempo que es respetuoso de una forma particular de comprender la igualdad política. El artículo comienza con una descripción del constitucionalismo popular y de los principios que considero que deberían fundamentar la teoría. Luego, procede a examinar críticamente diversas propuestas institucionales presentes en la literatura. Después de mostrar las áreas en las que dichas propuestas se quedan cortas en el esfuerzo de encarnar los principios aquí defendidos, el artículo aboga por la implementación de cuatro mecanismos que, según sostendré, sí se acercan más a dichos objetivos.
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The Cambridge Companion to Public Law examines key themes, debates and issues in contemporary public law. The book identifies and draws out five key themes: the notions of government and the state; the place of the state and public law in the world at large; relationships between institutions and officials within the state; the legitimacy of institutions; and the identity and value of public law in relation to politics. The book also presents a contemporary examination, taking account of the substantial changes witnessed in this area in recent decades and of the resulting need to reassess orthodox accounts of the subject. Written by leading authorities drawn from across the common law world, their approach is rigorous, engaging and highly accessible. This Companion acts as both a thoughtful introduction and a collection that consciously moves the discipline forward.
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Constitutional drafters often look to foreign constitutional models, ideas, and texts for inspiration; many are explicit about their foreign borrowing. However, when implemented domestically, the meaning of borrowed elements often changes. Political scientists and scholars of comparative constitutional law have analyzed the transnational movement of constitutional ideas and norms, but the political processes through which the meaning of foreign provisions might be refashioned remain understudied. Sociolegal scholars have examined the “transplantation” and “translation” of laws and legal institutions, but they rarely scrutinize this process in the context of constitutions. Drawing on an examination of borrowed constitutional elements in four cases (Pakistan, Morocco, Egypt, Israel), this article builds on research in comparative politics, comparative constitutional law, and sociolegal studies to provide a nuanced picture of deliberate efforts to import “inclusive” constitutional provisions regarding religion-state relations while, at the same time, refashioning the meaning of those provisions in ways that “exclude” specific forms of religious, sectarian, doctrinal, or ideological diversity. Building on sociolegal studies regarding the translation of law, we argue that foreign constitutional elements embraced by politically embedded actors are often treated as “empty signifiers” with meanings that are deliberately transformed. Tracing the processes that lead political actors to engage foreign constitutional elements, even if they have no intention of transplanting their prior meaning, we highlight the need for detailed case studies to reveal both the international and the national dynamics that shape and reshape the meaning of constitutions today.
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Any analysis of the role of human rights in domestic constitutional law must grapple with a central tension lying at the core of the relationship between the two. Whereas constitutional law is inevitably grounded in a particular place covering defined sets of people, human rights aspire, as the term makes clear, to transcend the political in the name of entitlements that inhere in people wherever they are from and regardless of the governmental arrangements under which they live. National constitutional law can almost always point to a specific moment when the foundational document from which all else follows is agreed and brought into effect, and even in those very few places where this is not the case (the United Kingdom, for example) the ‘constitution’ is made up of a bundle of documents (statutes; judicial decisions; shared practices) which are similarly rooted in time as well as in place and people. In this way too human rights appear different: the vast ambition of the phrase involves a claim to stand outside a history made up not only of people and places but of foundational turning points as well.
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The Cambridge Companion to Comparative Constitutional Law - edited by Roger Masterman October 2019
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The Cambridge Companion to Comparative Constitutional Law - edited by Roger Masterman October 2019
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The Cambridge Companion to Comparative Constitutional Law - edited by Roger Masterman October 2019
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The Cambridge Companion to Comparative Constitutional Law - edited by Roger Masterman October 2019
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The author makes two claims in this paper. First, there appears to be an increase in indications of inconsistency (“IoIs”) across the common law world. Second, this increase is a normatively concerning turn in judicial practice. IoIs are judicial statements which, either explicitly or by implication, indicate that primary legislation is incompatible with certain protected human rights or civil liberties. They are related to, but stop short of, the formal remedies known as declarations of inconsistency (“DoIs”).
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Este artículo contesta el argumento de Jeremy Waldron en contra de la revisión judicial de las leyes. La tesis principal del artículo es que las cuatro condiciones waldronianas (core of the case) necesarias para que exista una sociedad bien ordenada son demasiado exigentes para el sistema democrático de Colombia. Por esa razón, las objeciones formuladas por Waldron al control de constitucionalidad no son aplicables al caso colombiano. Solo una interpretación excesivamente minimalista de las cuatro condiciones de una sociedad core of the case permitiría aplicar esa crítica al control de constitucionalidad en Colombia. Además, el artículo mantiene que el argumento de Waldron resulta afectado por una paradoja. Esta consiste en que una interpretación exigente de las cuatro condiciones del core of the case deja fuera a la mayor parte de las democracias del mundo. Por el contrario, una interpretación flexible de esas condiciones aumenta el potencial aplicativo de las objeciones waldronianas, pero les resta fuerza. El artículo demuestra que, en contextos que apenas satisfacen las cuatro condiciones bajo mínimos, el control de constitucionalidad puede resultar necesario y útil para el propio sistema democrático con el fin de superar las cargas de inercia y los puntos ciegos del proceso legislativo que afectan la protección efectiva de los derechos constitucionales. En estos casos, los jueces ordenan remedios directos que no pueden ser objeto de reproche democrático en virtud de que el propio legislador ha defraudado las expectativas respecto del rol que le corresponde dentro de la organización política.
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Many commentators portray the Human Rights Act (HRA) as marking the demise of Britain's “political constitution.” This article argues otherwise. The HRA need not be taken as handing over supremacy for rights adjudication from the legislature to the courts. First, the HRA brings “rights home,” strengthening, in certain respects, domestic rights instruments vis-à-vis the European Convention on Human Rights (ECHR). Second, sections 19 and 4 of the Act maintain and potentially enhance Parliament's scrutiny of rights and its sovereignty over the courts in defining and upholding them. Finally, section 3 and rights-based judicial review generally can be assimilated to a system of “weak” review whereby courts defer to the legislative “scope,” as determined by Parliament, and are restricted in their independent determinations to the judicial “sphere” of the fair conduct of the case at hand. Such weak review, so called, has always been necessary. However, the HRA potentially reinforces judicial deference by giving it a stronger statutory basis. That the HRA could strengthen rather than undermine political constitutionalism need not mean it does or will. However, the implication of this article is that it ought to be regarded as doing so, with the judiciary acting accordingly.
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Bills of rights are now central components of liberal democratic constitutions. But debates over the character and content of bills of rights are no longer at the center of more recent rounds of postconflict constitutional politics. This review puzzles through the rise and decline, but persistence, of rights-based constitutionalism. Neither comparative constitutional law nor constitutional politics offers the answer. The literature on civil war settlement suggests that bills of rights serve two functions in postconflict constitutions: a regulative role to check the abuse of public power and a constitutive role to serve as the basis of a new constitutional identity. Bills of rights cannot do the work that is expected of them. Politicized judiciaries, constitutional underenforcement, and the ex post nature of judicial review undermine the ability of the bill of rights to serve as a credible commitment against future abuses of human rights. Moreover, the idea of a bill of rights as a source of shared political identity abstracted from a contingent political and historical context is unlikely to succeed in practice.
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This chapter contributes to the debate between legal constitutionalists and political constitutionalists. It is in three parts. The first summarizes the leading UK case law on rights, liberty, and security since the Belmarsh decision. Arguing that Belmarsh already looks like an exception rather than a new beginning in public law, it outlines the illiberal nature of a range of decisions. Secondly, this case law is used to challenge the workability/ desirability of David Dyzenhaus's model of rule-of-law protection in times of crisis. Thirdly, the chapter examines Parliament's recent record at scrutinizing various government claims as to what it is necessary to do in the interests of national security, focussing on the debate of the Terrorism Act 2006, and the role of the Joint Committee on Human Rights. This is used to show that that a weak judicial decision that legitimates an illiberal policy is used by governments to shut down political debates, and also that Parliament is an agency through which rights can be better protected even in this most difficult area of national and international concern.
Article
This chapter starts by outlining the chapter's moderately critical analysis of external constitutional review of legislation and moves on to describes the ex post concrete constitutional review of legislation introduced in 2000 as it relates to the Finnish case, which was added to the pre-existing system of abstract ex ante review exercised by the Constitutional Law Committee of Parliament. The latter is a quasi-judicial body composed of Members of Parliament and advised by constitutional experts whose opinions tend to be adopted by the Committee and are respected by the courts, but does not have to be followed by the Parliament. Ex post judicial review can bypass the legislation it considers 'in evident conflict with the Constitution' but the primary duty of the courts is to interpret legislation consistently with constitutional provisions. This is presented as a hybrid model which has retained a strong parliamentary involvement, although the chapter accepts that there is a certain juridification of legislative politics through the input of the Constitutional Law Committee of Parliament.
Article
Introduction In A Bill of Rights for Britain, Ronald Dworkin advocated the incorporation of the European Convention on Human Rights into domestic law to halt the ‘decline in the culture of liberty’ that had affected freedom in the UK since the 1970s. He rejected the idea of adopting a newly drafted domestic instrument on the ground that – with the Convention still enforceable at Strasbourg – ‘potential conflict between the two fundamental charters of rights would be a source of wasteful confusion’. That the incorporated Convention could be as powerful an instrument as such a Bill of Rights was not, however, in doubt: Incorporation would put the special skills of British lawyers and judges, and the heritage of British legal principle, at the service of the civilised world. Britain could become once again a leader in defining and protecting individual freedom, instead of a sullen defendant giving ground to liberty only when ordered to do so by a foreign court. Dworkin saw that, in the hands of the domestic judiciary, the framework provided by the Convention might be crafted to form a ‘distinctly British scheme of human rights and liberty’, and that specifically: British judges could certainly adopt … a more generous interpretation, using the rich and special traditions of the British common law to develop out of the Convention a particularly British view of the fundamental rights of citizens in a democratic society.
Article
This book explores bill of rights outcomes in four countries - Australia, Canada, New Zealand, and the United Kingdom - whose development exhibits an interesting combination of both commonality and difference. Whilst sharing a core 'Westminster' political set-up, more recent experiences display striking diversity. Comparative analysis of some thirty-six democracies demonstrates that the historic lack of a bill of rights in Westminster countries is best explained by, firstly, the absence of a clear political transition and, secondly, by their strong British constitutional heritage. Detailed chapters then explore recent developments. In all the countries, postmaterialist socio-economic change has resulted in a growing emphasis on legal formalization, codified civil liberties, and social equality. Pressure for a bill of rights has therefore increased. Nevertheless, by enhancing judicial power, bills of rights conflict with the prima facie positional interests of the political elite. Given this, change in this area has also required a political trigger which provides an immediate rationale for change. Alongside social forces, the nature of this trigger determines both the strength and substance of the bill of rights enacted. The statutory Canadian Bill of Rights Act (CBORA 1960), New Zealand Bill of Rights Act (NZBOR 1990), and the Human Rights Act (UK) (HRA 1998) were prompted politically by a relatively weak and backward-looking 'aversive' reaction against perceived abuses of power under the previous administration. Meanwhile, the fully constitutional Canadian Charter (1982) had its political origins in a stronger, more self-interested, and prospective need to find a new unifying institution to counter the destabilizing, centripetal power of the Québécois nationalist movement. Finally, the absence of any relevant political trigger explains the failure of national bill of rights initiatives in Australia. The conclusionary section of the book argues that this Postmaterialist Trigger Thesis (PTT) explanation of change can also explain the origins of bills of rights in other internally stable, advanced democracies, notably the Israeli Basic Laws on human rights (1992).
Article
The aim of this paper is to show that in recent times (and certainly since the enactment of the U.K. Human Rights Act 1998) there has been a subtle but nonetheless significant change in British constitutional law. Using case law dealing with questions of national security post-9/11, this paper argues that there has been a “constitutional shift” from a completely hands-off judicial approach (as embodied in the doctrine of nonjusticiability) to a more hands-on approach (as embodied in the idea of a variable intensity of review combined with a degree of deference).
Article
The article sketches the beginnings of a theory of what the courts should do in the political constitution. As such, it differs from most of the literature on political constitutionalism (which tends to say more about what courts should not do) and most of the literature about what courts should do in constitutional law (which tends to be framed in a legal constitutionalist perspective). First, arguments are presented about how a political constitutionalist might distinguish between rights which are best left to political institutions and those which better lend themselves to judicial enforcement. Second, the argument is made that in constitutional litigation the courts should focus as much (if not more) on powers and evidence as on rights. The article closes with brief consideration of the legislature's role in the political constitution and of the courts' role in supporting the legislature. Throughout, the article takes the British constitution as its principal case study, but the implications of the argument presented here extend beyond Britain alone.
Article
This article adapts Ginsburg's model of ‘judicial review as insurance policy’ to understand the functioning of the statutory New Zealand Bill of Rights Act (NZBORA) 1990 – a ‘parliamentary’ bill of rights that is principally insured through political rights review and marginally through judicial review. Arguing that judicial and political rights review has proven to be a less-than-adequate check on the introduction of incompatible legislation by the Cabinet in the context of the Crimes Act and the Misuse of Drugs Act, this article suggests that the NZBORA functions as an ‘under-insured’ bill of rights in the criminal law context. This is the result of the limited political cost paid by the Cabinet for introducing incompatible legislation in the criminal law context, structural factors within the NZBORA that limit judicial review as a substantive check on executive conduct, and finally, the limited value of political rights review mechanisms such as the reporting duty of the Attorney General under Section 7 of the NZBORA.
Article
As a ‘third-wave’ Bill of Rights, the Victorian Charter of Human Rights and Responsibilities Act is premised on the twin goals of creating a ‘culture of rights’ within the bureaucracy and the emergence of a rights-based dialogue between Cabinet and the Parliament of Victoria through statements of compatibility. The first objective has been advanced through a revised policy process within the bureaucracy, but a dialogic engagement between Parliament and the Cabinet has yet to emerge in a substantive way. A number of factors account for this modest parliamentary dialogue: first, the functioning of a statutory Bill of Rights in a moderately sized Parliament with a strong partisan orientation; second, the general reluctance of the Cabinet to alter legislation once introduced into Parliament despite compatibility disagreements identified by the Scrutiny of Acts and Regulations Committee; and finally, the approach by both the Cabinet and backbenchers to statements of compatibility that limit their ability to facilitate rights-based parliamentary scrutiny. This article explores the contemporary difficulties of a parliamentary dialogue emerging in Victoria that are, in large part, the result of an unintended tension between pre-introduction scrutiny by the bureaucracy on behalf of the Cabinet, and secondly, the weakness of post-introduction scrutiny facilitated by Scrutiny of Acts and Regulations Committee via statements of compatibility.
Article
Scholarly works on the impact of the Charter of Rights and Freedoms have largely focused on judicial activism and its effect on the political executive's ability to advance its policy agenda. As such, these works have suggested that a vertical transfer of decision-making authority from the parliamentary arena to the judicial arena has been the primary outcome of Charter review. This article considers the emergence of an alternative form of activism that is a by-product of judicial review on Charter grounds. Specifically, this article suggests that politically generated bureaucratic activism, a process whereby the development of policy within the administrative state has been restructured to incorporate an extensive Charter review of policy proposals, has ensured that the political executive has retained control over its policy agenda and continues to govern from the centre. More importantly, this bureaucratic activism has been under the direction of the Department of Justice and has seen a transformation within both the conceptualization of the centre of government in Canada and our understanding of executive-support agencies. Specifically, because the Department of Justice monopolizes Charter advice within the federal bureaucracy, it has been deployed by the political executive to act as a countervailing source of Charter advice to that of the judiciary and, thus, Justice has entered the centre of government in Canada. This development is largely because the Department of Justice is an important actor that generates policy space for the political executive in the new policy environment by offsetting judicial power. Second, because the Department of Justice has assumed new roles and responsibilities that allow it to control and coordinate the policy activities of line departments, Justice has emerged as an executive-support agency. This latter development is the result of bureaucratic activism, which exists in two distinct forms, reactive and proactive bureaucratic activism, but it is only in the latter phase that Justice has entered the centre of government and emerged as an executive-support agency. Sommaire: Les études sur l'effet de la Charte des droits et libertés ont visé avant tout l'activisme judiciaire et son effet sur la capacité des autorités politiques à poursuivre leur agenda de politiques. Selon ces études, le transfert vertical d'autorité déisionnelle de l'arène du parlement à l'arène judiciaire serait le principal résultat de la révision de la Charte. Cet article examine la naissance d'une autre forme d'activisme qui découle de la révision judiciaire à la lumière de la Charte. Plus précisément, cet article suggère que l'activisme bureaucratique d'origine politique, dans le cadre duquel chaque politique proposée par l'État se voit examinée à la lumière de la Charte, a fait que les autorités politiques tiennent bien en main leur agenda et continuent à gouverner à partir du centre. Ce qui plus est, cet activisme du fonctionnariat, sous la direction du ministère de la Justice, a vu se transformer à la fois le concept de centre de gouvemement au Canada et notre perception des organismes de soutien exécutif. Puisque le ministère de la Justice a le monopole des avis sur la Charte au sein de l'administration fédérale, les autorités politiques en ont fait une source-contrepoids en matière d'avis concemant la Charte pour contrebalancer les avis judiciaires, et ainsi le ministère de la Justice est entré au centre du gouvernement au Canada parce qu'il s'agit là d'un acteur important pour équilibrer le pouvoir judiciaire dans ce domaine. Deuxièmement, le ministère de la Justice est devenu un organisme de soutien du pouvoir exécutif parce qu'il assume de nouveaux rôles et responsabilités lui permettant de contrôler et de coordonner l'élaboration des politiques des autres ministères. Ceci résulte de l'activisme du fonctionnariat qui a deux formes distinctes, la forme réactive et la forme proactive, mais ce n'est que cette dernière qui a permis au ministère de la Justice de rejoindre le centre du gouvemement et d'agir en organisme de soutien de l'exécutif.
Article
Academic lawyers have commented extensively on the judicial interpretation of the Human Rights Act 1998, but the reaction of politicians to it has received less attention. This paper examines the trends in parliamentary attitudes to human rights by analysing Commons and Lords debates on the Human Rights Bill itself, the Terrorism Bill 1999–2000, the Anti-Terrorism, Crime and Security Bill 2001 and the Nationality, Immigration and Asylum Bill 2002. It also considers MPs' response to the Thompson and Venables and Anderson judgments, as well as Conservative attempts to amend the Human Rights Act. Against this background, it argues that the British polity can be characterised as a ‘contestatory democracy’, in which the system of fundamental rights protection is incomplete since it neglects Parliament's vital role in defining the Convention rights.
Article
This article explores the idea of Parliamentary sovereignty in British constitutional theory. Two general explanations for this idea are considered: firstly, that the existence of a sovereign entity is a conceptually necessary precondition for the existence of a state or constitution; secondly, that Parliament is sovereign, if it is, in virtue of a rule of recognition whose existence and content may be empirically determined. The former account, it is suggested, looms large in orthodox British constitutional theory but cannot be sustained. Herbert Hart's version of the latter account is examined by reference to the decision in Jackson v Attorney General but is also found wanting. Given the inadequacy of these accounts, it is contended that the idea of Parliamentary sovereignty is misconceived. Building on insights in the work of Hart and Dworkin, it is argued that the British constitution instead rests on the ideal of government under law or the principle of legality. The putative value of legality, it is contended, will shape or control the many different principles that condition the exercise of official power.
Article
The structure of constitutional rights in the United States and most other liberal democracies grants to legislatures a limited power to override constitutional rights. This limited power contrasts with an absolute one, as enshrined in section 33 of the Canadian Charter of Rights and Freedoms, and is also both general and non-interpretive in nature, unlike the substantive view of Congress's power under Section 5 of the Fourteenth Amendment. This override power tends to be obscured in the United States by the unique absence of express limits on rights and, thus, a textually mandated two stage process of rights adjudication. Indeed, this absence also helps to explain why the whole topic of limits on rights is strangely under-theorized in the United States. In this Article, I first highlight the existence and nature of the limited legislative power to override constitutional rights in the United States and elsewhere. I then present a normative justification of this power and the modern structure of rights as presumptive shields rather than peremptory trumps that underlies it. This case needs to be made because it is not obvious or self-evident that constitutional rights should be overridable by legislatures in the face of their conflicting public policy objectives. In presenting this case, I also aim to respond to the highly influential, but largely unanswered, antibalancing critique in constitutional law. Specifically, I offer a democratic justification--that, at least when certain constitutional criteria are satisfied, legislatures should be empowered to promote public policies that conflict with entrenched rights for democratic reasons. My justification in turn has important consequences for how courts should go about their task of reviewing exercises of this power. My specification and defense of the limited legislative override power also provide fresh perspective on two other vigorous debates in contemporary constitutional theory. First, both opponents and proponents of judicial review have overlooked the important role that this near-universal power plays in rendering modern systems of judicial review less vulnerable to democratic critiques. Second, this power represents an alternative form of popular constitutionalism that does not challenge - indeed is entirely consistent with - the interpretive supremacy of the U.S. Supreme Court and other constitutional courts.
Article
Although the constitutional reform programme undertaken by the Blair administration is formally consistent with the doctrine of parliamentary sovereignty, it is clear that the human rights and devolution legislation, in particular, significantly alter the political and constitutional environment within which Parliament's legislative powers are exercised. This paper considers whether it is meaningfiul, within this new constitutional setting, to adhere to the traditional notion of sovereignty. It is argued that the disparity between a Parliament whose powers are formally unlimited yet increasingly constrained, in political terms, by norms based on fundamental rights and devolved governance may be accommodated, in the short term, by means of constitutional conventions which trace the constitutionally acceptable limits of legislative action by Parliament. However, following examination of the nature of convention and its relationship with law and constitutional principle, it is argued that the possibility arises, in the long term, that conventional limits upon legislative freedom may ultimately evolve into legal limiis, thus ensuring that the fundamental values embraced by the legal order are acknowledged not merely in pragmatic or conventional terms, but as a matter of constitutional law.
Article
The Labour Party in the 1990s supported enactment of the European Convention on Human Rights (ECHR) rights for party-political as well as principled reasons. The Human Rights Bill sought to balance parliamentary sovereignty and effective protection of rights, relying on both legal and political remedies for victims of violations. Whilst the potentially major constitutional and legal effects of the bill, which made it highly controversial from the start in the press, were partly hidden by highly-technical drafting, members of both Houses were fully aware of the scale of the bill's implications. Scrutiny was particularly rigorous in relation to the effect of decisions of the European Commission and Court of Human Rights in Strasbourg on domestic courts especially in the light of the Strasbourg organs' view of the ECHR as an evolving instrument, the position of particular interest groups such as journalistic and religious organisations, domestic courts' new obligation to interpret legislation so far as possible compatibly with the rights and their power to make a declaration of incompatibility should that prove impossible, and parliamentary scrutiny of legislation to remedy incompatibilities. Some worries have proved well founded, and political controversy has not diminished since 1998, partly because of heightened concern with measures to combat terrorism since 2001.