Search Results

Constitutional morality is important for constitutional laws to be effective. Without constitutional morality, the operation of a constitution tends to become arbitrary, erratic, and capricious. This chapter discusses constitutional morality in India, makes a distinction between ‘constitutional democracy’ and ‘populist democracy’, and argues that democracy has survived in India by moving away from the ideal of a constitutional democracy towards a more populist form. It looks at the Emergency of 1975–7 to show the connection between anarchy and the abuse of power as two forces that are both antithetical to constitutional morality. It also examines the link between constitutional morality and the principle of civil disobedience, which under the leadership of Mahatma Gandhi became the cornerstone of India’s nationalist movement.

This chapter presents a broad-ranging account of the impact of the emergence of ‘world society’ on the ideals of constitutional democracy. This argument is based on the premise that constitutionalism has always maintained the Janus-face of inclusion and exclusion, emancipation and oppression. Although Western constitutionalism has acquired its inclusive qualities at the price of its cosmopolitan claims, it has nevertheless been able to provide a legal means of coordinating conflicting powers within nation-state systems. The democratic possibilities which are inherent in the emergence of a world society can be realised only by promoting an agenda of radical reform which, in conceptual terms, requires us to overcome the limitations of dualistic and representational thinking.

This chapter examines Woodrow Wilson's attempts to foster constitutionalism in Latin America through imperialist interventions that commenced shortly after he was elected president in 1913. It begins with a discussion of three policy instruments that Wilson found at his disposal after he assumed the presidency and that he could use to promote constitutional democracy in Latin America: limited military occupation and control of customs houses, economic influence, and international agreements. The chapter then assesses Wilson's interventionist policy in Mexico and the Dominican Republic, along with the failure of Wilsonianism in the Philippines and the Dominican Republic. It also considers the limits of Wilson's democratic initiatives abroad before concluding with an analysis of four distinct U.S. policies aimed at fostering political stability in Latin America and ensuring that American security interests would not be threatened.

This chapter examines the constitutional conflict that occurs in the context of Ireland's rejection of the Lisbon Treaty. It begins by distinguishing the concepts “direct democracy” and “constitutional democracy” in order to clarify the importance of referenda if they are used as the constitutional amendability procedure in a functioning constitutional democracy. It then considers the place of amendability procedure in Irish constitutional history. It discusses Ireland's constitutional amendability procedure vis-à-vis European treaty referenda. The chapter concludes by examining the three ways in which Europe's constitutional ambitions are intimately tied up with national constitutional amendability procedures.

South Africa's emergence as a constitutional democracy after four decades of apartheid and nearly three centuries of colonialism is rightly heralded as a miracle. With 243 sections and seven schedules, the constitution of South Africa also represents an attempt to constitutionalise all the hopes, fears, and conflicts of its democratic transition. This process is epitomised by the two-stage constitution-making process in which the conflicting parties first negotiated an ‘interim’ constitution and then, after democratic elections, empowered the new Parliament to sit as a constitutional assembly in order to produce a ‘final’ constitution. This chapter describes South Africa's constitution, the union and apartheid constitutions, democratic transition, constitutional principles, the 1993 interim constitution, regionalism and cooperative governance, rule of law and the Bill of Rights, amending procedures, Constitutional Court, sources of constitutional interpretation, constitution as statute, modes of interpretation, duty to develop the common law and customary law, internal directives for interpretation, problems of interpretation, certification and the problem of future constitutional amendments, and legal legacies and popular experience of the law.

This book offers an account of the rule of law that, though primarily an ideal of procedural fairness, governing the manner in which laws and policies should be applied to particular persons, also has important implications for the permissible content of such laws and policies. The rule of law is explained as a set of closely interrelated principles that together make up the core of the doctrine or theory of constitutionalism, and hence a necessary component of any genuine liberal or constitutional democratic polity. The book argues that the procedural ideal of ‘natural justice’ or due process, if it is to provide real protection against arbitrary power, must be accompanied by the equally fundamental ideal of equality. The latter ideal imposes substantive constraints on governmental power, ensuring equal citizenship. This book discusses the rule of law as a rule of reason, constitutionalism in the United Kingdom and A.V. Dicey's ‘rule of law’, equal citizenship, and constitutional democracy.

This chapter takes up another key issue that has been neglected in the philosophical literature: the problematic claims to legal supremacy that are made on behalf of international legal human rights norms. It sorts out five different worries about claims of legal supremacy and evaluates them. It concludes that there is a serious problem regarding the processes by which some states integrate international human rights law with their own laws: In many cases, acknowledgment of the supremacy of international human rights law does not occur with proper democratic authorization. The chapter concludes that when recognizing the supremacy of international human rights law either alters domestic constitutional arrangements or involves a significant loss of collective self-determination, more democratically robust processes of incorporation than treaty-making as usual are morally required.

This chapter argues that Giuseppe Mazzini's thought belongs to the tradition of cosmopolitanism insofar as he deems the self-determination of autonomous and democratic nations the precondition for a peaceful international order. Countering the nationalistic interpretation of his thought, and Giovanni Gentile's reading in particular, it maintains that Mazzini, whose political education occurred in the aftermath of the collapse of Napoleon's empire, believed that the individual (as a primary good and the recipient of equal rights) and the nation (as the collective sovereign that has the power of giving individual rights a legal status) were the two modern agents of political and moral resistance against imperial projects. Beginning with the Abbé de Saint–Pierre, Kant, and the Saint–Simonians, the pact of union and the association of autonomous nations became, in a kind of federative covenant of mutual help and cooperation, the language of European democrats and republicans. In the 20th century it was adopted by those jurists who deemed the consolidation of the rule of law and constitutional democracy intermediary and necessary steps towards a global legal order. Mazzini must be interpreted as belonging to this tradition, though in a peculiar way since he was a cosmopolitan not despite, but because of, his advocacy of the principle of nationality.

This chapter addresses the problem of the justification of democracy. It begins with an investigation of political-legal instrumentalism in general and democratic instrumentalism in particular. This is followed by three sections, each of which presents and discusses the three kinds of democratic non-instrumentalism. The argument here proceeds progressively, in the sense that objections to the first kind of justification (Aristotelian non-instrumentalism) lead to the second kind (justice-first non-instrumentalism), and similarly with the transition from the second to the third kind of non-instrumentalism (Kantian non-instrumentalism). The chapter includes an extra section on Kantian non-instrumentalism, since this justification of democracy is the main contribution of the chapter. It argues that the Kantian justification is a justification of a specific form of democracy, namely, constitutional democracy.

This chapter characterizes contemporary Russian politics as a struggle between two systems: the formal constitutional order, called the normative state, and the second world of factional conflict and para-constitutional political practices, termed the administrative regime. Much of politics takes place in the charged zone between the two pillars of the dual state. Therefore, it would be incorrect to label contemporary Russia as an authoritarian regime tout court. Not only does it remain formally committed to constitutional democracy and liberal capitalism, these commitments moderate its behavior and allow the formal constitutional framework to structure and influence the conduct of politics. Although many of the regime's actions are authoritarian in spirit, the formal niceties of a constitutional democracy remain preeminent and the legitimating framework for the system as a whole.

This chapter deliberates several paradoxes about loyalty in constitutional liberal democracy and about liberal democracy itself. Abraham Lincoln and Alexis de Tocqueville warned about the tendencies of democratic politics to undermine commitment to the rule of law and to formal ideals of rules and professionalism. They shared a particular concern about a greater commitment to “the people” or to moral indignation expressed by citizens than to abstract seemingly elitist ideals like law or professionalism. Moreover, the democratic view of military loyalty would emphasize the experiences of individual soldiers and the aggregate of such feelings in the ranks. Democracy would also draw attention to immediate public opinion about the justice or practicality of a given war or strategy.

This chapter discusses the concept of constitutionalism and its relation to legal constitutions. It explains how the terms ‘constitution’ and ‘constitutionalism’ are used before asking what makes a document (whether an agreement or an imposed charter) into a constitution and whether constitutionalism makes government weak. It considers constitutions as a genre of political self-expression and explores how constitutional bargains allow political transition (from an authoritarian/military regime to more traditional constitutional democracy, or the other way around). It also describes the constitutional arrangements of limited government as calculated, rational reactions to fear. It explores how constitutional order is related to social organization and the function of a constitution as an instrument of pre-commitment. Finally, it explores imperfect constitutions and threats to constitutionalism.

Modern Enlightenment based constitutionalism accords secularism a privileged position: by remaining secular, the public sphere should warrant neutrality among religions and among the latter and non-religious ideologies in order to provide an optimal setting for the realization of freedom of religion as well as of freedom from religion. In recent decades, however, this institutional secularism has come under intense attack from a number of different quarters intent on dislodging it from its constitutional pedestal. These attacks have targeted secularism’s claim to neutrality from religious as well as non-religious perspectives. This Chapter explores the case for “ideological” secularism as one of many conceptions of the good competing against others in a post-secular constitutional polity. Adopting a pluralist perspective, the chapter concludes that under current circumstances ideological secularism is easier to defend than institutional secularism.

This chapter addresses the role of freedom in a constitutional democracy through a consideration of law, political rule, and individual rights. The author advances an account of what liberal rule consists of, what rights it does or does not guarantee, and what gives it legitimacy.

This chapter examines how constitutions fare in crisis situations, under stress, with special attention to three disturbing scenarios. The classic form of lifting constitutionalism occurs under the guise of emergency. The official purpose of emergency powers is simple: to restore constitutional normalcy after a sudden shock. The idea that constitutional democracy should be able to defend itself from its enemies also sounds appealing. However, this militant democracy remains ambiguous and an invitation to and justification for abuse of powers. In closing, the chapter considers the rise of the preventive state and its implications for constitutionalism, especially in governments engaged in a war on terror.

This chapter examines the Spanish Tribunal Constitucional. It showcases the story of the Tribunal as one of an institution that has been crucial for the success of the 1978 Constitution and thus for the setting up and consolidation of the Spanish constitutional democracy. It has brought to an end the work that the founding fathers were not able to conclude in 1978 as far as the territorial distribution of power is concerned. However, the chapter considers if maybe it is finally time to translate its praetorian construction of the autonomic State (Estado autonómico) into the words of the written Constitution, and by doing so closing a process that should not stay open permanently, and exposed to eventual substantial changes in the jurisprudence of the Tribunal, with all that this would imply at the expense of the definition of the territorial Constitution and its stability. In any case, the experience shows that entrusting a constitutional court with such a task implies to overburden it with a responsibility that no court is able to deal with for a long time.

The chapter offers a critical evaluation of the post-secularist argument through the analysis of an empirical case that is meant to show the link between secularism or laicité and religious pluralism. The Italian case is exemplary of a constitutional democracy whose society does not have religious pluralism, but one dominant religion. It shows that in order to be consistent with the constitutional principle of equal rights a mono-religious society has the need to adopt a more secularist politics but weaker chances to produce a full liberal society.