Dieter Nohlen, Bernard Thibaut, and Michael Krennerich (eds)
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198296454
- eISBN:
- 9780191600036
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198296452.001.0001
- Subject:
- Political Science, Reference
Elections in Africa is the first volume of a series of election data handbooks published by OUP; it covers all the 53 states in Africa. Elections have always been an integral part of ...
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Elections in Africa is the first volume of a series of election data handbooks published by OUP; it covers all the 53 states in Africa. Elections have always been an integral part of post‐independence African politics and have assumed the utmost importance in the course of recent democratization processes. However, comparative research on political development in Africa lacks reliable electoral data. Elections in Africa fills this gap. Following the overall structure of the series, an initial comparative introduction on elections and electoral systems is followed by chapters on each state of the region. These contributions examine the evolution of institutional and electoral arrangements from independence to the present (1999), and provide systematic surveys of the up‐to‐date electoral provisions and their historical development. Exhaustive statistics on national elections (presidential, parliamentary, and constitutional assembly), referendums and coups d’état are included within each chapter; these cover electoral bodies and voting, electoral participation of parties and alliances, vote distribution, parliamentary composition, and power holders. The data are presented in the same systematic manner for all countries in order to provide electoral statistics in line with internationally established standards of documentation, so that the data can be easily compared. The book, therefore, provides a definitive and comprehensive set of data on elections in order to facilitate comparative research. Together with the other books of this series, Elections in Africa is a highly reliable resource for historical and cross‐national comparisons of elections and electoral systems worldwide.Less
Elections in Africa is the first volume of a series of election data handbooks published by OUP; it covers all the 53 states in Africa. Elections have always been an integral part of post‐independence African politics and have assumed the utmost importance in the course of recent democratization processes. However, comparative research on political development in Africa lacks reliable electoral data. Elections in Africa fills this gap. Following the overall structure of the series, an initial comparative introduction on elections and electoral systems is followed by chapters on each state of the region. These contributions examine the evolution of institutional and electoral arrangements from independence to the present (1999), and provide systematic surveys of the up‐to‐date electoral provisions and their historical development. Exhaustive statistics on national elections (presidential, parliamentary, and constitutional assembly), referendums and coups d’état are included within each chapter; these cover electoral bodies and voting, electoral participation of parties and alliances, vote distribution, parliamentary composition, and power holders. The data are presented in the same systematic manner for all countries in order to provide electoral statistics in line with internationally established standards of documentation, so that the data can be easily compared. The book, therefore, provides a definitive and comprehensive set of data on elections in order to facilitate comparative research. Together with the other books of this series, Elections in Africa is a highly reliable resource for historical and cross‐national comparisons of elections and electoral systems worldwide.
George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.001.0001
- Subject:
- Political Science, American Politics
This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new ...
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This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new kind of “covert” constitutional law – one with a stronger emphasis on equality in the wake of the abolition of slavery – which was legally established in the Amendments made to the U.S. Constitution between 1865 and 1870. The author asserts that the influence of this “secret constitution”, which has varied in degree from Reconstruction to the present day, is visible in the rulings of the Supreme Court on issues hinging on personal freedom, equality, and discrimination.Less
This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new kind of “covert” constitutional law – one with a stronger emphasis on equality in the wake of the abolition of slavery – which was legally established in the Amendments made to the U.S. Constitution between 1865 and 1870. The author asserts that the influence of this “secret constitution”, which has varied in degree from Reconstruction to the present day, is visible in the rulings of the Supreme Court on issues hinging on personal freedom, equality, and discrimination.
Tim Hayward
- Published in print:
- 2004
- Published Online:
- July 2005
- ISBN:
- 9780199278688
- eISBN:
- 9780191602757
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199278687.001.0001
- Subject:
- Political Science, Political Theory
This book shows why a fundamental right to an adequate environment ought to be provided in the constitution of any modern democratic state. Explains why the right to an environment adequate for one’s ...
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This book shows why a fundamental right to an adequate environment ought to be provided in the constitution of any modern democratic state. Explains why the right to an environment adequate for one’s health and well-being is a genuine human right and why it ought to be constitutionalised. Elaborates this case and defends it in closely argued responses to critical challenges. Shows why there is no insurmountable obstacle to the effective implementation of this constitutional right, and why constitutionalising this right is not democratically illegitimate. With particular reference to European Union member states, it explains what this right adds to the states’ existing human rights and environmental commitments Concludes by showing how constitutional environmental rights can serve to promote the cause of environmental justice in a global context.Less
This book shows why a fundamental right to an adequate environment ought to be provided in the constitution of any modern democratic state. Explains why the right to an environment adequate for one’s health and well-being is a genuine human right and why it ought to be constitutionalised. Elaborates this case and defends it in closely argued responses to critical challenges. Shows why there is no insurmountable obstacle to the effective implementation of this constitutional right, and why constitutionalising this right is not democratically illegitimate. With particular reference to European Union member states, it explains what this right adds to the states’ existing human rights and environmental commitments Concludes by showing how constitutional environmental rights can serve to promote the cause of environmental justice in a global context.
Alicia Hinarejos
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199569960
- eISBN:
- 9780191721977
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569960.001.0001
- Subject:
- Law, EU Law
The EU's activity under its intergovernmental pillars — The Common Foreign and Security Policy and Justice and Home Affairs — has traditionally been beyond the scope of judicial control offered by ...
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The EU's activity under its intergovernmental pillars — The Common Foreign and Security Policy and Justice and Home Affairs — has traditionally been beyond the scope of judicial control offered by the central EC legal system. The increasing importance of this activity, and its growing intrusion into the lives of individuals, has led to a sense that the level of judicial oversight and protection is insufficient and that the constitutional balance of the Union stands in urgent need of reform. While the need for reform is widely recognised, wholesale constitutional change has been stalled by the failure to ratify the Constitutional Treaty and the delay in ratifying the Treaty of Lisbon. This book charts the attempts to develop more satisfactory judicial control over the intergovernmental pillars in the face of such constitutional inertia. It examines the leading role played by the European Court of Justice in reforming its own jurisdiction, and analyses the ECJ's development as a constitutional court in comparison with more established constitutional adjudicators. Throughout the book the current constitutional position is compared extensively to the reforms introduced by the Treaty of Lisbon, offering a timely snapshot of the EU's federal structure in a state of flux.Less
The EU's activity under its intergovernmental pillars — The Common Foreign and Security Policy and Justice and Home Affairs — has traditionally been beyond the scope of judicial control offered by the central EC legal system. The increasing importance of this activity, and its growing intrusion into the lives of individuals, has led to a sense that the level of judicial oversight and protection is insufficient and that the constitutional balance of the Union stands in urgent need of reform. While the need for reform is widely recognised, wholesale constitutional change has been stalled by the failure to ratify the Constitutional Treaty and the delay in ratifying the Treaty of Lisbon. This book charts the attempts to develop more satisfactory judicial control over the intergovernmental pillars in the face of such constitutional inertia. It examines the leading role played by the European Court of Justice in reforming its own jurisdiction, and analyses the ECJ's development as a constitutional court in comparison with more established constitutional adjudicators. Throughout the book the current constitutional position is compared extensively to the reforms introduced by the Treaty of Lisbon, offering a timely snapshot of the EU's federal structure in a state of flux.
James A. Gardner and Jim Rossi (eds)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195368321
- eISBN:
- 9780199867509
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368321.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book presents a range or perspectives on the role of state constitutions within the context of federalism. Rejecting both the old dual federalism and the newer judicial federalism models, this ...
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This book presents a range or perspectives on the role of state constitutions within the context of federalism. Rejecting both the old dual federalism and the newer judicial federalism models, this book understands the generation, development, interpretation, and enforcement of constitutional norms at the national and state levels to be best conceived as constituent activities of a single, collective enterprise conducted by many actors located in many sites scattered throughout the system. The chapters in this book present a conception of national and subnational constitutional law as complementary partners in a complex, collective enterprise of constitutional self-governance. The book aims to advance an understanding of state constitutions in the broader inter-institutional process of constitutional dialogue.Less
This book presents a range or perspectives on the role of state constitutions within the context of federalism. Rejecting both the old dual federalism and the newer judicial federalism models, this book understands the generation, development, interpretation, and enforcement of constitutional norms at the national and state levels to be best conceived as constituent activities of a single, collective enterprise conducted by many actors located in many sites scattered throughout the system. The chapters in this book present a conception of national and subnational constitutional law as complementary partners in a complex, collective enterprise of constitutional self-governance. The book aims to advance an understanding of state constitutions in the broader inter-institutional process of constitutional dialogue.
Monique Deveaux
- Published in print:
- 2006
- Published Online:
- January 2007
- ISBN:
- 9780199289790
- eISBN:
- 9780191711022
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199289790.003.0007
- Subject:
- Political Science, Democratization
Nowhere are the difficulties of protecting both the right to enjoy one’s culture and the right to sexual equality protections better illuminated than in the case of post-Apartheid South Africa. This ...
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Nowhere are the difficulties of protecting both the right to enjoy one’s culture and the right to sexual equality protections better illuminated than in the case of post-Apartheid South Africa. This chapter discusses efforts to reconcile constitutional recognition of African customary law (and to a lesser extent Muslim personal law) with formal protections for women’s sexual equality. It also presents the debate and consultations over the reform of African customary marriage (in the late 1990s in South Africa) as a good example of open-ended democratic deliberation grounded in principles of democratic legitimacy and political inclusion. It is this kind of model of deliberation that offers up the best solution to conflicts of culture, including those over gender roles, in socially plural, liberal constitutional democracies.Less
Nowhere are the difficulties of protecting both the right to enjoy one’s culture and the right to sexual equality protections better illuminated than in the case of post-Apartheid South Africa. This chapter discusses efforts to reconcile constitutional recognition of African customary law (and to a lesser extent Muslim personal law) with formal protections for women’s sexual equality. It also presents the debate and consultations over the reform of African customary marriage (in the late 1990s in South Africa) as a good example of open-ended democratic deliberation grounded in principles of democratic legitimacy and political inclusion. It is this kind of model of deliberation that offers up the best solution to conflicts of culture, including those over gender roles, in socially plural, liberal constitutional democracies.
Jo Shaw and Antje Wiener
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297574
- eISBN:
- 9780191598982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297572.003.0004
- Subject:
- Political Science, European Union
This chapter examines the features of European integration, which suggest that the EU is both ‘near-state’ and antiethical to stateness. It highlights the paradox of the European policy, consisting ...
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This chapter examines the features of European integration, which suggest that the EU is both ‘near-state’ and antiethical to stateness. It highlights the paradox of the European policy, consisting of a parallel development of two dimensions: one institutional and the other theoretical. The debate over constitutionalism and constitutional change as an approach to the paradox of stateness is discussed. An empirical example of a process in which social norms become materialized into legal norms is presented.Less
This chapter examines the features of European integration, which suggest that the EU is both ‘near-state’ and antiethical to stateness. It highlights the paradox of the European policy, consisting of a parallel development of two dimensions: one institutional and the other theoretical. The debate over constitutionalism and constitutional change as an approach to the paradox of stateness is discussed. An empirical example of a process in which social norms become materialized into legal norms is presented.
Ronan McCrea
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199595358
- eISBN:
- 9780191595776
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199595358.001.0001
- Subject:
- Law, EU Law
This book offers a comprehensive account of the role of religion within the public order of the European Union. It examines the facilitation and protection of individual and institutional religious ...
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This book offers a comprehensive account of the role of religion within the public order of the European Union. It examines the facilitation and protection of individual and institutional religious freedom in EU law and the means through which the Union facilitates religious input and influence over law. In addition, the book identifies the limitations on religious influence over law and politics that have been identified by the Union as fundamental elements of its public order and prerequisites to EU membership. It demonstrates that the Union seeks to balance its predominantly Christian religious heritage with an equally strong secular and humanist movement by facilitating religion as a form of cultural identity while limiting its political influence. Such balancing takes place in the context of the Union's limited legitimacy and its commitment to respect for Member State cultural autonomy. Deference towards the cultural role of religion at Member State level enables culturally-entrenched religions to exercise a greater degree of influence within the Union's public order than ‘outsider’ faiths that lack a comparable cultural role. The book places the Union's approach to religion in the context of broader historical and sociological trends around religion in Europe and of contemporary debates around secularism, equal treatment, and the role of Islam in Europe.Less
This book offers a comprehensive account of the role of religion within the public order of the European Union. It examines the facilitation and protection of individual and institutional religious freedom in EU law and the means through which the Union facilitates religious input and influence over law. In addition, the book identifies the limitations on religious influence over law and politics that have been identified by the Union as fundamental elements of its public order and prerequisites to EU membership. It demonstrates that the Union seeks to balance its predominantly Christian religious heritage with an equally strong secular and humanist movement by facilitating religion as a form of cultural identity while limiting its political influence. Such balancing takes place in the context of the Union's limited legitimacy and its commitment to respect for Member State cultural autonomy. Deference towards the cultural role of religion at Member State level enables culturally-entrenched religions to exercise a greater degree of influence within the Union's public order than ‘outsider’ faiths that lack a comparable cultural role. The book places the Union's approach to religion in the context of broader historical and sociological trends around religion in Europe and of contemporary debates around secularism, equal treatment, and the role of Islam in Europe.
Nick Barber
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199585014
- eISBN:
- 9780191595318
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585014.001.0001
- Subject:
- Law, Philosophy of Law, Constitutional and Administrative Law
This book provides an original analytical account of the state and its associated constitutional phenomena. It presents the state as a form of social group, consisting of people, territory, and ...
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This book provides an original analytical account of the state and its associated constitutional phenomena. It presents the state as a form of social group, consisting of people, territory, and institutions bound together by rules. The institutions of the state make a distinctive and characteristic claim over the people of the state, who, in turn, have a distinctive and characteristic relationship with these institutions. This account reveals the importance of at least two forms of pluralism — legal and constitutional. It also casts light on some of the more difficult questions faced by writers on constitutions — such as the possibility of states undertaking actions and forming intentions, the moral significance of these actions for the people of the state, and the capacity of the state to carry responsibility for acts between generations.Less
This book provides an original analytical account of the state and its associated constitutional phenomena. It presents the state as a form of social group, consisting of people, territory, and institutions bound together by rules. The institutions of the state make a distinctive and characteristic claim over the people of the state, who, in turn, have a distinctive and characteristic relationship with these institutions. This account reveals the importance of at least two forms of pluralism — legal and constitutional. It also casts light on some of the more difficult questions faced by writers on constitutions — such as the possibility of states undertaking actions and forming intentions, the moral significance of these actions for the people of the state, and the capacity of the state to carry responsibility for acts between generations.
Vernon Bogdanor
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198293347
- eISBN:
- 9780191598821
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198293348.001.0001
- Subject:
- Political Science, UK Politics
Seeks to answer the question `How does monarchy function in a modern democracy?’ Since the British Constitution is so heavily dependent upon history, the question can only be answered historically. ...
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Seeks to answer the question `How does monarchy function in a modern democracy?’ Since the British Constitution is so heavily dependent upon history, the question can only be answered historically. The rules that regulate Britain's constitutional monarchy and the so‐called personal prerogatives are then discussed. Three twentieth‐century constitutional crises in which the authority of the sovereign was in question are then analysed. Finally, the book considers how the monarchy is financed, and the relationship between the monarchy and the Church of England and the monarchy and the Commonwealth. The concluding chapter considers the future of constitutional monarchy.Less
Seeks to answer the question `How does monarchy function in a modern democracy?’ Since the British Constitution is so heavily dependent upon history, the question can only be answered historically. The rules that regulate Britain's constitutional monarchy and the so‐called personal prerogatives are then discussed. Three twentieth‐century constitutional crises in which the authority of the sovereign was in question are then analysed. Finally, the book considers how the monarchy is financed, and the relationship between the monarchy and the Church of England and the monarchy and the Commonwealth. The concluding chapter considers the future of constitutional monarchy.
Alec Stone Sweet
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0006
- Subject:
- Political Science, Comparative Politics
This is the second of two papers that explore the politics of constitutional review – the power of a court or other organ of government to review the constitutionality of public acts, including ...
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This is the second of two papers that explore the politics of constitutional review – the power of a court or other organ of government to review the constitutionality of public acts, including legislation, and to void those acts as unlawful when they are found to be in conflict with the constitutional law. It was originally published in 1994 as ‘Judging Socialist Reform: The Politics of Coordinate Construction in France and Germany’ in the journal Comparative Political Studies, and begins with a general discussion of the role and impact of the French and German constitutional courts within policy-making processes. Case studies drawn from the legislative programmes of the first two Social–Liberal coalitions in Germany (1969–76) and the first Socialist government in France (1981–85) are then employed to ground a discussion of the coordinate construction of legislation and of constitutional law. These two periods have attracted the special attention of students of policy-making as singular experiences of governments of the left pledged to non-incremental reform agenda; both governments promised democratization, redistribution schemes, and alteration of the balance of power between labour and capital in favour of the former. These programmes not only polarized opposition but also strained the confines of existing legal regimes, administration, and jurisprudence; in consequence, constitutional courts, which remained dominated by appointments of the former majority, were enabled or required to develop previously unexplored areas of law.Less
This is the second of two papers that explore the politics of constitutional review – the power of a court or other organ of government to review the constitutionality of public acts, including legislation, and to void those acts as unlawful when they are found to be in conflict with the constitutional law. It was originally published in 1994 as ‘Judging Socialist Reform: The Politics of Coordinate Construction in France and Germany’ in the journal Comparative Political Studies, and begins with a general discussion of the role and impact of the French and German constitutional courts within policy-making processes. Case studies drawn from the legislative programmes of the first two Social–Liberal coalitions in Germany (1969–76) and the first Socialist government in France (1981–85) are then employed to ground a discussion of the coordinate construction of legislation and of constitutional law. These two periods have attracted the special attention of students of policy-making as singular experiences of governments of the left pledged to non-incremental reform agenda; both governments promised democratization, redistribution schemes, and alteration of the balance of power between labour and capital in favour of the former. These programmes not only polarized opposition but also strained the confines of existing legal regimes, administration, and jurisprudence; in consequence, constitutional courts, which remained dominated by appointments of the former majority, were enabled or required to develop previously unexplored areas of law.
Sanford Levinson
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691152400
- eISBN:
- 9781400839872
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691152400.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book examines the “constitutional faith” that has, since 1788, been a central component of American “civil religion.” By taking seriously the parallel between wholehearted acceptance of the ...
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This book examines the “constitutional faith” that has, since 1788, been a central component of American “civil religion.” By taking seriously the parallel between wholehearted acceptance of the Constitution and religious faith, the book opens up a host of intriguing questions about what it means to be American. While some view the Constitution as the central component of an American religion that serves to unite the social order, the book maintains that its sacred role can result in conflict, fragmentation, and even war. This book takes the view that the Constitution’s value lies in the realm of the discourse it sustains: a uniquely American form of political rhetoric that allows citizens to grapple with every important public issue imaginable. A new afterword looks at the deepening of constitutional worship and attributes the current widespread frustrations with the government to the static nature of the Constitution.Less
This book examines the “constitutional faith” that has, since 1788, been a central component of American “civil religion.” By taking seriously the parallel between wholehearted acceptance of the Constitution and religious faith, the book opens up a host of intriguing questions about what it means to be American. While some view the Constitution as the central component of an American religion that serves to unite the social order, the book maintains that its sacred role can result in conflict, fragmentation, and even war. This book takes the view that the Constitution’s value lies in the realm of the discourse it sustains: a uniquely American form of political rhetoric that allows citizens to grapple with every important public issue imaginable. A new afterword looks at the deepening of constitutional worship and attributes the current widespread frustrations with the government to the static nature of the Constitution.
Aida Torres Pérez
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199568710
- eISBN:
- 9780191705571
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199568710.001.0001
- Subject:
- Law, EU Law
This book focuses on the potential for conflict between overlapping constitutional and EU fundamental rights. When constitutional and EU rights overlap and the respective interpretations diverge, ...
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This book focuses on the potential for conflict between overlapping constitutional and EU fundamental rights. When constitutional and EU rights overlap and the respective interpretations diverge, state courts are asked to follow the standard of protection defined by the European Court of Justice (ECJ). The ECJ's claim to normative authority needs to be justified. This book advocates a theory of supranational judicial authority grounded in the ideal of dialogue. At the outset, it is argued that traditional approaches to constitutional conflicts based upon supremacy should be overcome. A pluralist framework for structuring the interaction between legal systems in the EU not only offers a better account of reality, but it should be welcomed normatively as well. In this context, the ideal of dialogue will contribute to a better understanding and theorizing of the interaction between national and supranational courts interpreting fundamental rights. Despite multiple and varied references to dialogue in the literature, mostly from a descriptive standpoint, there has been no thorough and rigorous account establishing its legitimating potential regarding ECJ adjudication of fundamental rights norms. This book offers a theoretical account of how the legitimacy of ECJ's authority in adjudicating fundamental rights might be grounded in the ideal of dialogue. The arguments underpinning the legitimating potential of dialogue and the prerequisites for judicial dialogue are explored. Thereafter, the implications of dialogue for the mode of judicial reasoning in interpreting fundamental rights are analyzed. Such a theory of supranational judicial authority would serve as a normative model to assess the activity of the ECJ and to improve current institutional practices.Less
This book focuses on the potential for conflict between overlapping constitutional and EU fundamental rights. When constitutional and EU rights overlap and the respective interpretations diverge, state courts are asked to follow the standard of protection defined by the European Court of Justice (ECJ). The ECJ's claim to normative authority needs to be justified. This book advocates a theory of supranational judicial authority grounded in the ideal of dialogue. At the outset, it is argued that traditional approaches to constitutional conflicts based upon supremacy should be overcome. A pluralist framework for structuring the interaction between legal systems in the EU not only offers a better account of reality, but it should be welcomed normatively as well. In this context, the ideal of dialogue will contribute to a better understanding and theorizing of the interaction between national and supranational courts interpreting fundamental rights. Despite multiple and varied references to dialogue in the literature, mostly from a descriptive standpoint, there has been no thorough and rigorous account establishing its legitimating potential regarding ECJ adjudication of fundamental rights norms. This book offers a theoretical account of how the legitimacy of ECJ's authority in adjudicating fundamental rights might be grounded in the ideal of dialogue. The arguments underpinning the legitimating potential of dialogue and the prerequisites for judicial dialogue are explored. Thereafter, the implications of dialogue for the mode of judicial reasoning in interpreting fundamental rights are analyzed. Such a theory of supranational judicial authority would serve as a normative model to assess the activity of the ECJ and to improve current institutional practices.
Leonardo Morlino
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199244089
- eISBN:
- 9780191600364
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199244081.003.0003
- Subject:
- Political Science, Democratization
In this chapter, Leonardo Morlino presents an analytical framework for studying the implementation of constitutional norms. The aim of the first section is to isolate the guiding concepts for ...
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In this chapter, Leonardo Morlino presents an analytical framework for studying the implementation of constitutional norms. The aim of the first section is to isolate the guiding concepts for analysing constitutional design and its implementation. The second section explores the main aspects of constitutional design and the problems related to implementation in Southern Europe. The third section presents the constitutional designs of selected Eastern European countries and identifies certain implementation problems they faced. Some tentative conclusions are drawn from the empirical evidence presented in the first two sections with reference to the patterns of constitutional design implementation.Less
In this chapter, Leonardo Morlino presents an analytical framework for studying the implementation of constitutional norms. The aim of the first section is to isolate the guiding concepts for analysing constitutional design and its implementation. The second section explores the main aspects of constitutional design and the problems related to implementation in Southern Europe. The third section presents the constitutional designs of selected Eastern European countries and identifies certain implementation problems they faced. Some tentative conclusions are drawn from the empirical evidence presented in the first two sections with reference to the patterns of constitutional design implementation.
Alan Brudner
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199207251
- eISBN:
- 9780191705502
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207251.001.0001
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This book sets out a new understanding of the penal law of a liberal legal order. The prevailing view is that the penal law is best understood from the standpoint of a moral theory concerning when it ...
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This book sets out a new understanding of the penal law of a liberal legal order. The prevailing view is that the penal law is best understood from the standpoint of a moral theory concerning when it is fair to blame and censure someone for engaging in unlawful conduct and for the results of that conduct. By contrast, this book argues that the penal law is best understood by a political and constitutional theory concerning when, and in what measure, it is permissible for the state to coerce a free agent. The book argues that penal action by public officials is permissible force rather than wrongful violence only if it could be accepted by the agent as being consistent with its freedom. There are, however, different conceptions of freedom — formal liberty, real autonomy, and free citizenship — and each informs a distinctive theoretical paradigm of penal justice generating its own constraints on state coercion. Although this plurality of paradigms creates an appearance of fragmentation and contradiction in the law, the book argues that the penal law forms a complex whole under an inclusive idea of freedom uniting the constraints on punishment flowing from each paradigm.Less
This book sets out a new understanding of the penal law of a liberal legal order. The prevailing view is that the penal law is best understood from the standpoint of a moral theory concerning when it is fair to blame and censure someone for engaging in unlawful conduct and for the results of that conduct. By contrast, this book argues that the penal law is best understood by a political and constitutional theory concerning when, and in what measure, it is permissible for the state to coerce a free agent. The book argues that penal action by public officials is permissible force rather than wrongful violence only if it could be accepted by the agent as being consistent with its freedom. There are, however, different conceptions of freedom — formal liberty, real autonomy, and free citizenship — and each informs a distinctive theoretical paradigm of penal justice generating its own constraints on state coercion. Although this plurality of paradigms creates an appearance of fragmentation and contradiction in the law, the book argues that the penal law forms a complex whole under an inclusive idea of freedom uniting the constraints on punishment flowing from each paradigm.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0006
- Subject:
- Political Science, American Politics
In this chapter Professor Gerhardt demonstrates that precedents end up influencing and contributing to constitutional law in many ways other than constraint, which is the predominant concern of ...
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In this chapter Professor Gerhardt demonstrates that precedents end up influencing and contributing to constitutional law in many ways other than constraint, which is the predominant concern of social scientists who study courts. These multiple functions include educating the public about constitutional law, shaping constitutional discourse in and outside of courts, implementing constitutional values, clarifying constitutional structure and history, resolving particular cases or controversies, and democratizing constitutional law.Less
In this chapter Professor Gerhardt demonstrates that precedents end up influencing and contributing to constitutional law in many ways other than constraint, which is the predominant concern of social scientists who study courts. These multiple functions include educating the public about constitutional law, shaping constitutional discourse in and outside of courts, implementing constitutional values, clarifying constitutional structure and history, resolving particular cases or controversies, and democratizing constitutional law.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0007
- Subject:
- Political Science, American Politics
This chapter examines the relatively rare, though highly significant circumstances in which precedents are practically immune to reconsideration or reversal. After reviewing the basic features that ...
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This chapter examines the relatively rare, though highly significant circumstances in which precedents are practically immune to reconsideration or reversal. After reviewing the basic features that super precedents share, it examines whether specific precedents, such as Roe v. Wade, have these features. It concludes with an examination of the ramifications of super precedent for both constitutional theory and Supreme Court selection.Less
This chapter examines the relatively rare, though highly significant circumstances in which precedents are practically immune to reconsideration or reversal. After reviewing the basic features that super precedents share, it examines whether specific precedents, such as Roe v. Wade, have these features. It concludes with an examination of the ramifications of super precedent for both constitutional theory and Supreme Court selection.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0008
- Subject:
- Political Science, American Politics
In the conclusion Gerhardt reviews the basic arguments made throughout the book about the role of precedent in constitutional law, as well as the ramifications of the Roberts Court's handling of ...
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In the conclusion Gerhardt reviews the basic arguments made throughout the book about the role of precedent in constitutional law, as well as the ramifications of the Roberts Court's handling of precedent in its first two years. He suggests that the Roberts Court has been entirely predictable in avoiding direct overruling of precedents, weakening precedents which the majority does not like, and grounding its opinions largely (but not wholly) in precedent. Gerhardt reiterates the case for his comprehensive framework for explaining better than other current theories (or statistical studies) the multiple functions of constitutional law. One strength he identifies in his framework is the importance it places on candor as a means for justices and other constitutional actors to clarify the significance of precedent, as contrasted with judicial minimalism, which liberates justices from having to explain the reasons for (or implications of) their decisions.Less
In the conclusion Gerhardt reviews the basic arguments made throughout the book about the role of precedent in constitutional law, as well as the ramifications of the Roberts Court's handling of precedent in its first two years. He suggests that the Roberts Court has been entirely predictable in avoiding direct overruling of precedents, weakening precedents which the majority does not like, and grounding its opinions largely (but not wholly) in precedent. Gerhardt reiterates the case for his comprehensive framework for explaining better than other current theories (or statistical studies) the multiple functions of constitutional law. One strength he identifies in his framework is the importance it places on candor as a means for justices and other constitutional actors to clarify the significance of precedent, as contrasted with judicial minimalism, which liberates justices from having to explain the reasons for (or implications of) their decisions.
Alexander Somek
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199542086
- eISBN:
- 9780191715518
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199542086.001.0001
- Subject:
- Law, Philosophy of Law, EU Law
This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are ...
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This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are deemed to be essentially separate from one another. They abandon larger society to itself and pursue their good in the private sphere. In lieu of trust and reliance in their own power to bring about change through common action, they hope to benefit from entrusting ‘problem-solving’ to international networks of expertise. Put bluntly, citizens of this kind exhibit a strong commitment to individualism. The book shows how individualism is reflected in the regulatory authority that the Union claims for itself, in particular as regards the regulation of the internal market. The paradigmatic case studied in this book affects the regulation of smoking and the marketing of tobacco products. Throughout this book, continuity is established with two of the historically most influential modes of constitutional reasoning: the constitutional theory of the French revolution, on the one hand, and the ancient tradition of linking different types of public power with the composition of the citizen's soul, on the other. The study is true and original — unclassifiable in its line and style of argument. It is at one and the same time an essay in the contemporary history of public culture and taste, a study of European Union competence, an exercise in pure normative political theory, and a study in constitutional method and culture with much comparative and historical material.Less
This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are deemed to be essentially separate from one another. They abandon larger society to itself and pursue their good in the private sphere. In lieu of trust and reliance in their own power to bring about change through common action, they hope to benefit from entrusting ‘problem-solving’ to international networks of expertise. Put bluntly, citizens of this kind exhibit a strong commitment to individualism. The book shows how individualism is reflected in the regulatory authority that the Union claims for itself, in particular as regards the regulation of the internal market. The paradigmatic case studied in this book affects the regulation of smoking and the marketing of tobacco products. Throughout this book, continuity is established with two of the historically most influential modes of constitutional reasoning: the constitutional theory of the French revolution, on the one hand, and the ancient tradition of linking different types of public power with the composition of the citizen's soul, on the other. The study is true and original — unclassifiable in its line and style of argument. It is at one and the same time an essay in the contemporary history of public culture and taste, a study of European Union competence, an exercise in pure normative political theory, and a study in constitutional method and culture with much comparative and historical material.
Robert Elgie (ed.)
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198293866
- eISBN:
- 9780191599156
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198293860.001.0001
- Subject:
- Political Science, Comparative Politics
Semi‐presidentialism is an increasingly popular form of constitutional government. Semi‐presidential regimes can now be found in Western Europe, in Austria, Finland, France, Iceland, Ireland, and ...
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Semi‐presidentialism is an increasingly popular form of constitutional government. Semi‐presidential regimes can now be found in Western Europe, in Austria, Finland, France, Iceland, Ireland, and Portugal, in Central and Eastern Europe, including Bulgaria, Lithuania, Poland, Romania, Russia, Slovenia, and Ukraine; in Asia, in places such as Mongolia, South Korea, and Sri Lanka; and elsewhere in, e.g. Guyana, Haiti, Angola, and Namibia. By definition, all of these countries share a similar set of basic constitutional features, namely, a directly elected fixed‐term president and a prime minister who is responsible to parliament. However, the main observation to be made about them is that the exercise of political power varies greatly from one to another. For example, in some countries (particularly France), the president is usually the dominant political actor; in other countries (such as Finland), there is a sometimes uneasy balance of power between the president and prime minister; in yet others (notably Ukraine), the president and parliament share powers; and finally, in others still (including Austria, Iceland, and Ireland), the president is merely a figurehead and the prime minister dominates the decision‐making process. Because of the very varied forms of political leadership that occur across these institutionally similar countries, some writers have dismissed the concept of semi‐presidentialism, but in fact, though, it provides a perfect opportunity to study the general question of why political systems function in the way they do and to examine the relationship between particular constitutional arrangements and different forms of political practice. This book examines the politics of semi‐presidentialism in 12 European countries (all those listed above except for Portugal), and the constitutional powers of political leaders, the role of political parties, and the importance of past precedent. Ch. 1 provides a background to the study of the concept and a framework for the analysis of semi‐presidential regimes. This framework is then applied to the politics of individual European countries in the following chapters. In the conclusion, the lessons of these chapters are reviewed and the future of semi‐presidential studies is considered.Less
Semi‐presidentialism is an increasingly popular form of constitutional government. Semi‐presidential regimes can now be found in Western Europe, in Austria, Finland, France, Iceland, Ireland, and Portugal, in Central and Eastern Europe, including Bulgaria, Lithuania, Poland, Romania, Russia, Slovenia, and Ukraine; in Asia, in places such as Mongolia, South Korea, and Sri Lanka; and elsewhere in, e.g. Guyana, Haiti, Angola, and Namibia. By definition, all of these countries share a similar set of basic constitutional features, namely, a directly elected fixed‐term president and a prime minister who is responsible to parliament. However, the main observation to be made about them is that the exercise of political power varies greatly from one to another. For example, in some countries (particularly France), the president is usually the dominant political actor; in other countries (such as Finland), there is a sometimes uneasy balance of power between the president and prime minister; in yet others (notably Ukraine), the president and parliament share powers; and finally, in others still (including Austria, Iceland, and Ireland), the president is merely a figurehead and the prime minister dominates the decision‐making process. Because of the very varied forms of political leadership that occur across these institutionally similar countries, some writers have dismissed the concept of semi‐presidentialism, but in fact, though, it provides a perfect opportunity to study the general question of why political systems function in the way they do and to examine the relationship between particular constitutional arrangements and different forms of political practice. This book examines the politics of semi‐presidentialism in 12 European countries (all those listed above except for Portugal), and the constitutional powers of political leaders, the role of political parties, and the importance of past precedent. Ch. 1 provides a background to the study of the concept and a framework for the analysis of semi‐presidential regimes. This framework is then applied to the politics of individual European countries in the following chapters. In the conclusion, the lessons of these chapters are reviewed and the future of semi‐presidential studies is considered.
