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Constitutional Design and Problems of Implementation in Southern and Eastern Europe

Leonardo Morlino

in Democratic Consolidation in Eastern Europe Volume 1: Institutional Engineering

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 ... More

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

Why Federalism and Constitutional Positivism Don’t Mix

James A. Gardner

in New Frontiers of State Constitutional Law: Dual Enforcement of Norms

This chapter places the book's approach in its interpretational context by linking the federal structure of constitutional norm production to the ever-present problem of interpretational methodology. ... More

This chapter places the book's approach in its interpretational context by linking the federal structure of constitutional norm production to the ever-present problem of interpretational methodology. It begins by arguing that previous approaches to the interpretation of subnational constitutions have failed because they improperly attempted to apply the dominant jurisprudence of national constitutional interpretation—constitutional positivism—to the constitutions of the states. Yet constitutional positivism as a technique only makes sense where subnational units are autonomous, as independent nations are. However, states in a federal system like ours are far from the kind of autonomous sovereigns contemplated by prevailing theories of national constitutional interpretation. Indeed, a state constitution is the product of processes that transcend the state, and in which both the state and national polities participate. As a result, the interpretation of state constitutions inevitably will require at least some resort to national norms and sources of constitutional meaning.Less

Transnational Constitutional Norms: Functions, Arenas, Processes, Structures

Gunther Teubner

in Constitutional Fragments: Societal Constitutionalism and Globalization

New constitutional subjects have emerged in the course of globalization: international organization, transnational regimes and networks. They are characterized by denationalization and fragmentation, ... More

New constitutional subjects have emerged in the course of globalization: international organization, transnational regimes and networks. They are characterized by denationalization and fragmentation, a high level of autonomy, and an issue-specific orientation. This chapter discusses the quality tests that the norms of a transnational regime must pass in order to count as constitutional norms. These cover constitutional functions (constituent and limitative), constitutional arenas (the economy: consumer activism, corporate social responsibility, money creation by the central banks), constitutional processes (reflexivity of legal and social processes), and constitutional structures (the emergence of constitutional/unconstitutional as a hybrid binary meta-code).Less

Regulating Constitutions

Colin Scott

in Regulating Law

This chapter looks first at the potential of the regulatory lens in the constitutional sphere to illuminate the mechanisms for securing accommodation between political and legal systems. The second ... More

This chapter looks first at the potential of the regulatory lens in the constitutional sphere to illuminate the mechanisms for securing accommodation between political and legal systems. The second main section on constitutions as regulatory regimes takes as its focus the mechanisms by which constitutional norms are made effective within political practice. Thus, it considers how the exercise of power is controlled. The analysis sets out the hypothesis that compliance with constitutional norms by political actors represents one workable form of accommodation between law and politics. The third main section considers the other main set of mechanisms for securing such an alignment, which are concerned with the controls over the contents of constitutions and the mechanisms by which they may be modified. This section addresses the day-to-day practices of constitutional interpretation and change, the more formal processes of amendment, and processes of disruption to constitutional norms in revolutionary situations.Less

Settlement Endurance

Levy O’Flynn.

in Deliberative Peace Referendums

This chapter focuses on the question of settlement endurance—a question that overlaps with but is importantly distinct from the question of settlement achievement (as discussed in Chapter 2). We ... More

This chapter focuses on the question of settlement endurance—a question that overlaps with but is importantly distinct from the question of settlement achievement (as discussed in Chapter 2). We argue that even a brief popular act of entrenchment may solidify in the form of a lasting constitutional settlement. However, the process by which this act occurs is crucial. We particularly focus on deliberative peace referendums. One claim in this chapter will be that these referendums, by drawing on institutional supports for deliberation, may expose a broad but latent constitutional agreement that may already have existed at the popular (but not the elite) level in a conflict society. The referendum may also clarify the reasons on which an agreement is based, and hence deepen the sense of legitimacy that attaches to it.Less

Civil Procedure and Evidence

Michael A. Livingston, Pier Giuseppe Monateri, and Francesco Parisi

Mauro Capelletti, John Henry Meryman, and Joseph M. Perillo (eds)

in The Italian Legal System: An Introduction, Second Edition

This chapter provides an overview of civil procedure, including historical background; constitutional norms; investigation and discovery; appeals and judgments; and trends in procedural scholarship. ... More

This chapter provides an overview of civil procedure, including historical background; constitutional norms; investigation and discovery; appeals and judgments; and trends in procedural scholarship. There are also briefer discussions of the laws of evidence and of criminal and administrative procedures. The differences between Italian and American procedural norms, which flow from the civil–common law distinction but are augmented by various historical differences, are a major theme of this chapter.Less

Sources of the Constitution

John Bell

in French Constitutional Law

This chapter introduces the various sources of the Constitution and how they relate to each other. It is specifically about the ‘formal sources’ (to use the French term) of the Constitution, in the ... More

This chapter introduces the various sources of the Constitution and how they relate to each other. It is specifically about the ‘formal sources’ (to use the French term) of the Constitution, in the sense of the authoritative standards by reference to which constitutional norms are identified. Necessarily, this also leads to a discussion of the ‘material sources’ of the Constitution, namely, the particular texts from which constitutional norms are quarried. It is not directly concerned with the sources for the political legitimacy of these constitutional norms — why they have come to be treated as authoritative — but such issues will arise tangentially from time to time. The 1958 Constitution is fairly full and complete in its provisions establishing the organs of government and their powers. Remaining rules are found in organic laws and parliamentary standing orders. Moreover, the decisions of the Conseil constitutionnel will provide a concrete source to which most French lawyers will turn. They do not constitute a formal source of the Constitution in the way that some English court decisions do.Less

Introduction

Thomas P. Crocker

in Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism

This chapter does not focus on the common-law or international doctrines of necessity but discusses the family of justificatory arguments that arise within liberal constitutionalism to the effect ... More

This chapter does not focus on the common-law or international doctrines of necessity but discusses the family of justificatory arguments that arise within liberal constitutionalism to the effect that “necessity knows no law.” It analyzes the constitutional norms that fail to guide and constrain the choice of action through an analysis of what is appropriate. It explores how constitutional norms always apply as unavoidably normative constitutional questions during an emergency. The chapter also looks into post-9/11 counterterrorism practices of surveillance, detention, interrogation, and targeted killing. It observes the scope of the argument that transcends specific 9/11 terrorist practices in order to encompass the structure of constitutional thought of which policy choices arise.Less

Sources of Law

Sophie Boyron

in Principles of French Law

Comparative lawyers often distinguish legal systems according to the sources to which they refer in determining what the law is. Though it may be doubted whether legal ‘thinking’ is so radically ... More

Comparative lawyers often distinguish legal systems according to the sources to which they refer in determining what the law is. Though it may be doubted whether legal ‘thinking’ is so radically affected, it is true that the use of sources in different ways alters the character of legal argument. This chapter seeks to bring out those aspects of the French approach to law and legal argument which are distinctive. Any such general presentation has to be qualified by the recognition that different branches of French law operate in different ways — the approach to case law and doctrinal legal writing is different in administrative and constitutional law to that in civil and criminal law. Although the idea of convergence itself is not easily defined, the study of the sources undertaken reveals some similarities with a common law system.Less

The Three Varieties of Unamendability

Richard Albert

in Constitutional Amendments: Making, Breaking, and Changing Constitutions

Constitutions sometimes codify unamendable rules. These unamendable rules are resistant to legal forms of change. They cannot be altered using the codified rules of amendment. Nor can they be ... More

Constitutions sometimes codify unamendable rules. These unamendable rules are resistant to legal forms of change. They cannot be altered using the codified rules of amendment. Nor can they be repealed. The only properly legal way to change them is to rewrite the constitution. Why do constitutional designers codify these unamendable rules? This chapter explains seven reasons why constitutional designers choose to codify unamendable rules. In explaining these reasons, the chapter discusses many different examples of codified unamendability around the world. This chapter also explains that unamendability can arise in two other forms. First, interpretive unamendability emerges from a judicial decision or an unwritten constitutional norm rooted in the dialogic interactions of political actors. Examples include the basic structure doctrine in India and the substitution of the constitution doctrine in Colombia. Second, constructive unamendability arises as a result of the practical impossibility of gathering the majorities required to amend a rule despite that rule being freely amendable in theory. This chapter illustrates how constructive unamendability occurs and operates with reference to the phenomenon of constitutional veneration, the use of omnibus amendment bills in Canada, the challenge of multi-party incompatibility, and the Equal Suffrage Clause in the U.S. Constitution,. This chapter then connects the three varieties of unamendability to the discussion in Chapter 3 on measuring amendment difficulty. This chapter shows that unamendability further complicates the effort to measure amendment difficulty across jurisdictions and makes it impossible to do so with any reliability. This chapter considers constitutions from around the globe.Less

The Triumph of Hate Speech Regulation

in Speak No Evil: The Triumph of Hate Speech Regulation

This chapter expands the inquiry from college campuses to civil society, concluding that hate speech regulation has permeated other elite institutions such as the media and has trickled down to ... More

This chapter expands the inquiry from college campuses to civil society, concluding that hate speech regulation has permeated other elite institutions such as the media and has trickled down to influence mass opinion and common understandings of constitutional norms. The chapter reconnects the hate speech story to extra-judicial law and the power of legal meaning-making, arguing that informal law or mass constitutionalism is as powerful as the formal Constitution, providing vehicles for change that exist without the intervention of courts. Contemporary hate speech regulation arose almost from happenstance, but the lesson remains true for those who seek legal change: Although the courts help to establish legal meaning with their decisions, it is just as important to win the battle in civil society by influencing the public's construction of legal and constitutional norms.Less

Setting the Scene

Jean Thomas

in Public Rights, Private Relations

In the US the argument that private actors ought sometimes to be held responsible for individuals’ public law rights has been made since the earliest rights adjudication. In the main, it has ... More

In the US the argument that private actors ought sometimes to be held responsible for individuals’ public law rights has been made since the earliest rights adjudication. In the main, it has consistently failed. The reason for this failure can be understood as partly related to the method of argument employed. This chapter considers the ways in which the problem has so far been addressed, both theoretically and in practice, and outlines the limitations of existing mechanisms for enforcing public rights against private actors. It shows how approaches that extend the protections of public rights to the private sphere through ‘horizontalization’ retain the state as the central duty–bearer and thus fail to address the central problem of recognizing and limiting direct private obligations. It argues that these approaches are therefore overly reliant on judicial discretion, leading to uncertainty and judicial deference to existing private law rules.Less

While They Slept

in Speak No Evil: The Triumph of Hate Speech Regulation

This chapter reexamines the prevalence of college speech codes in light of the courts' holdings. It finds colleges not only declined to follow the courts' decisions, but they also adopted new and ... More

This chapter reexamines the prevalence of college speech codes in light of the courts' holdings. It finds colleges not only declined to follow the courts' decisions, but they also adopted new and more extensive speech policies in the face of contrary precedent. This paradox—between court decisions and public behavior—illustrates the power of extra-judicial legal meaning-making, for the resistance of college administrators served to redefine the meaning of the underlying constitutional norm.Less

Conclusion

Carmen E. Pavel

in Law Beyond the State: Dynamic Coordination, State Consent, and Binding International Law

The conclusion shows that while the book draws on international legal scholarship, legal philosophy, and empirical and qualitative political science, its mode of analysis distinguishes it as a work ... More

The conclusion shows that while the book draws on international legal scholarship, legal philosophy, and empirical and qualitative political science, its mode of analysis distinguishes it as a work of political philosophy. It identifies some of the central moral ideals of the rule of law and places them at the core of a revised international legal system. The ultimate beneficiaries of a revised international law are the individuals living in various states. Their interests are better protected when states respect human rights, cooperate peacefully, refrain from producing negative externalities, and protect natural resources. The political philosophy this project draws on is one which takes individuals as the ultimate units of moral concern. This book demonstrates that normative analyses of international law can be substantially enriched by taking this perspective.Less

Normatividad Internacional en Colisión con la Norma Fundamental del Derecho Internacional: International Normativity in Collision with International Law’s Constitution

Luis A. López Zamora

in The Global Community Yearbook of International Law and Jurisprudence 2017

It is undeniable that current international relations are exhibiting regressive trends that target International Law Rule of Law. These trends have limited the space for the construction of a ... More

It is undeniable that current international relations are exhibiting regressive trends that target International Law Rule of Law. These trends have limited the space for the construction of a coherent discourse coming from the constitutional school of International Law; however, this scenario is not only the result of speculative behavior of certain states. It lies—as well—in the lack of an articulate theory offered by international constitutionalism directed to explain the consequences of asserting the existence of a fundamental norm in the international realm. If the constitutional movement maintains that International Law has a constitution, then: Why is there no attempt to label current world events, not only as illegal but as breaches of its constitution? Why are legal norms being formed in the context of those breaches not labeled as constitutionally flawed? This chapter will attempt to analyze this in order to strengthen the constitutionalization argument in our discipline.Less