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The Decline of Statism and the Convergence of Political Alternatives

Bruce K. Rutherford

in Egypt after Mubarak: Liberalism, Islam, and Democracy in the Arab World

This chapter begins with a concise summary of the statist conception of political order that underlies Egypt's current autocratic regime. It then documents the economic contradictions that brought ... More

This chapter begins with a concise summary of the statist conception of political order that underlies Egypt's current autocratic regime. It then documents the economic contradictions that brought this order to the point of crisis in the early 1990s. In response to this crisis, the regime adopted reforms that enabled liberal constitutionalism and Islamic constitutionalism to broaden their influence and support. The analysis examines the growth of these two alternative views of constitutionalism through the actions of their most determined advocates: the de facto professional association for judges (the Judges' Club—Nadi al-Quda) and the Muslim Brotherhood. The analysis finds that political competition under Egypt's repressive regime has pushed advocates of liberal constitutionalism and Islamic constitutionalism toward common ground. Their political agendas converge in several areas, particularly with regard to key elements of liberalism such as constraints on state power, strengthening the rule of law, and protection of civil and political rights.Less

Liberal Constitutionalism: Preserving and Adapting Egypt’s Liberal Tradition

Bruce K. Rutherford

in Egypt after Mubarak: Liberalism, Islam, and Democracy in the Arab World

This chapter studies the emergence of liberal constitutionalism in Egypt. It examines the historical foundations of Egyptian liberalism in the late nineteenth and early twentieth centuries, and ... More

This chapter studies the emergence of liberal constitutionalism in Egypt. It examines the historical foundations of Egyptian liberalism in the late nineteenth and early twentieth centuries, and observes that this conception of governance became tightly integrated into the development of the legal profession. As a consequence, lawyers and judges became the most dedicated advocates of liberal reform. The Bar Association played a leading role in promoting the liberal cause for most of the twentieth century. However, changes in its membership and steady regime repression eventually fragmented the Bar and undermined its effectiveness. The judiciary, in contrast, has retained a strong sense of liberal identity and has developed a robust conception of liberal constitutionalism. In order to understand this approach to law and politics, the chapter studies the decisions of Egypt's major courts (the Supreme Constitutional Court, the administrative courts, and the Court of Cassation). It uses this body of jurisprudence to analyze the judiciary's views with regard to four core elements of constitutionalism: the rule of law, constraints on state power, protection of basic rights, and public participation in governance.Less

Sectorial Constitutions in the Nation State

Gunther Teubner

in Constitutional Fragments: Societal Constitutionalism and Globalization

Constitutions of social sub-areas came to light not just with functional differentiation on a global scale, but which had already become virulent in the era of the nation state. It starts with ... More

Constitutions of social sub-areas came to light not just with functional differentiation on a global scale, but which had already become virulent in the era of the nation state. It starts with liberal constitutionalism and discusses why the constitutional question was raised only in relation to the state and not to other sectors of society. Then it describes how totalitarian regimes dealt with different sectors of society. Against this background three models of societal constitutionalism in the welfare state are presented: (1) social state constitutionalism which attempts to politicize social sectors, (2) economic constitutionalism which insists on the autonomy oft he economic constitution and (3) neo-corporatist models of societal constitutionalism which develops constitutions of diverse social sectors which allow fort he coordination of different rationalities.Less

Liberalism, Islam, and Egypt’s Political Future

Bruce K. Rutherford

in Egypt after Mubarak: Liberalism, Islam, and Democracy in the Arab World

This chapter observes that the path of institutional change advocated by market liberals shares important areas of agreement with the reforms advocated by supporters of liberal constitutionalism and ... More

This chapter observes that the path of institutional change advocated by market liberals shares important areas of agreement with the reforms advocated by supporters of liberal constitutionalism and Islamic constitutionalism. Each of these groups favors the creation of a more liberal state with effective constraints on its power, a clear and unbiased legal code, and protection of civil and political rights. However, there is no comparable degree of consensus on the value of broadening public participation in politics. This fact suggests that liberalism and democracy have become de-linked in the Egyptian case. Liberalism is likely to progress steadily in the future, while democracy is likely to advance slowly and unevenly. This trajectory may eventually lead to democracy at some point in the future, particularly if liberalism enhances the private sector's independence from the state and leads to a more autonomous and politically active middle class. However, this outcome is not inevitable.Less

Federal Democracy: Federalism as Political Culture, Civil Society, and Liberal Democratic Constitutionalism

Michael Burgess

in In Search of the Federal Spirit: New Comparative Empirical and Theoretical Perspectives

The chapter builds upon the assumption established in the previous chapters that the successful operation of federalism can be achieved only if it is rooted in liberal democratic constitutionalism. ... More

The chapter builds upon the assumption established in the previous chapters that the successful operation of federalism can be achieved only if it is rooted in liberal democratic constitutionalism. To this end the chapter embarks on an initial journey of theoretical clarification before turning to investigate political culture and civil society as conceptual pathways into the foundation of liberal democratic constitutionalism. The investigation is designed to point up the significance of these two features selected as forming the basis of what we can identify as federal democracy. The chapter concludes by introducing a new classification of models of federal democracy and assesses their significance in relation to the new federal models.Less

The Politics of the Question of Constituent Power

David Dyzenhaus

in The Paradox of Constitutionalism: Constituent Power and Constitutional Form

This chapter mounts a defence of a liberal constitutionalism in which constitutional architecture is treated as eclipsing constituent power, not on the basis of the empirical inevitability of the ... More

This chapter mounts a defence of a liberal constitutionalism in which constitutional architecture is treated as eclipsing constituent power, not on the basis of the empirical inevitability of the legal taming of the political, but on account of the impossibility of developing normative accounts of how we might live together except on the basis of such a working assumption. Against Schmitt's claim that constitutional authority cannot escape its origins in constituent power, the chapter defends a liberal account of the rule of law.Less

Dispersed Democratic Leadership Revisited

John Kane, Haig Patapan, and Paul't Hart

in Dispersed Democratic Leadership: Origins, Dynamics, and Implications

This book began by observing that most democratic theorists have difficulty in articulating a proper role for leadership, largely because none among democratic equals has any innate or inherent right ... More

This book began by observing that most democratic theorists have difficulty in articulating a proper role for leadership, largely because none among democratic equals has any innate or inherent right to rule over others. Democracy requires good leadership if it is to function effectively, yet the very idea of leadership seems to conflict with democracy's egalitarian ethos. In practice, democracy's tendency is not to eliminate leadership but to multiply it and disperse it throughout society to a rather extraordinary degree. There are many unique opportunities — as well as constraints — that leaders confront in negotiating the demands of their specific offices within the larger expectations of a democratic regime. This chapter reflects on these contributions and their implications.Less

Slovakia: Misreading the Western Message

Ivo Samson

in Democratic Consolidation in Eastern Europe Volume 2: International and Transnational Factors

Shows the relative failure of Western pressure aimed at improving the democratic record of successive Slovak governments led by the former Prime Minister Vladimir Mečiar. The chapter points to ... More

Shows the relative failure of Western pressure aimed at improving the democratic record of successive Slovak governments led by the former Prime Minister Vladimir Mečiar. The chapter points to several factors that contributed to the ineffectiveness of Western influence. Firstly, the manner in which Slovakia achieved independence created unfavourable conditions for its democratic consolidation. The division of Czechoslovakia was accomplished against the will of the majority of Slovaks and officially presented as a rejection of rapid and radical transformation. Secondly, a new proud and insecure State tried to assert its independence of all external actors. Western pressure was often considered as alien to Slovak culture and in conflict with Slovak national interest. Thirdly, the former Prime Minister, Vladimir Mečiar, misread Western determination to bring about democratic reforms in Slovakia. It was wrongly believed that regardless of its many democratic flaws, Slovakia would soon become a member of the European Union and NATO, simply because of its unique geostrategic importance and decent economic performance. Bratislava thought that allowing free and relatively fair elections in Slovakia would be enough to satisfy Western actors. However, the West wanted Slovakia to embrace a Western‐type of liberal constitutionalism before considering its possible membership in the EU and NATO. Overall, Slovakia's misperception of its geopolitical uniqueness and paradoxes of its domestic political development led to serious misunderstandings about Western responses.Less

The Problem of Political Parties in Western Liberalism, 1868–1968

Paolo Pombeni

in Liberalism as Ideology: Essays in Honour of Michael Freeden

Are political parties an unavoidable component of liberal constitutionalism? A historical enquiry shows us how troubled was the perception of political parties among Western European liberals. In the ... More

Are political parties an unavoidable component of liberal constitutionalism? A historical enquiry shows us how troubled was the perception of political parties among Western European liberals. In the mid nineteenth century, the understanding of them as inheritors of classical ‘demagogy’ was still competing with the Burkeian idea of parties as ‘honourable connexions’. What changed in subsequent years was the expansion of the franchise and the realization that what counted in politics was numbers not brains. A realistic approach then prevailed, which understood a constitution as a means of organized access to power based on popular consent. This raised the problems of ‘disciplining’ the popular vote, and parties became seen as a tool to organize democracy. After the Second World War, a party-based democracy became the accepted norm in Western Europe, but parties now transformed themselves from ‘Weltanschaaung’ into ‘catch-all’ parties.Less

Can Abusive Borrowing Be Stopped?

Rosalind Dixon and David Landau

in Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy

This chapter concludes by offering thoughts on how policymakers and scholars might design better responses to combat abusive constitutional borrowing, or the repurposing of liberal democratic ... More

This chapter concludes by offering thoughts on how policymakers and scholars might design better responses to combat abusive constitutional borrowing, or the repurposing of liberal democratic designs, doctrines, and concepts for anti-democratic ends. It suggests a set of ways in which international and transnational monitoring might be made more sophisticated in recognizing and responding to the problem. It also highlights how liberal democratic theorists and practitioners might seek to design and promulgate norms that are more robust against the sometimes substantial threat of abuse. Finally, it concludes by considering how the pervasiveness of mimicry—the use of liberal democratic forms for anti-democratic goals—informs debates about liberal democratic constitutionalism and democratic erosion. It suggests that a more open contestation about the content of liberal democratic norms, bounded mainly by respect for the democratic minimum core, may be the best antidote against the threat posed by abusive constitutional borrowing.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

Future Prospects for the Plurinational State

STEPHEN TIERNEY

in Constitutional Law and National Pluralism

The flourishing of the plurinational states appears to be important in less instrumental terms to those citizens who feel a deep bond with the larger project. The alternative — separation — is one ... More

The flourishing of the plurinational states appears to be important in less instrumental terms to those citizens who feel a deep bond with the larger project. The alternative — separation — is one which brings losses that stretch beyond economic and strategic considerations. The extent of contemporary constitutional and political disjuncture within plurinational states means that the task of making them work is not easy. This book has identified three areas where general improvements in both the theory and practice of liberal constitutionalism seem necessary to improve the health of the plurinational states. This chapter addresses these three issues.Less

Conclusion: The Limits of Sovereignty

in The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War

Sequestration and confiscation present an opportunity to explore the way competing property ideologies were tested and utilized in the midst of the Civil War. In particular, the confiscation debates ... More

Sequestration and confiscation present an opportunity to explore the way competing property ideologies were tested and utilized in the midst of the Civil War. In particular, the confiscation debates were a significant episode in a century-long shift in the conception of the Constitution from a near-perfect machine for the distribution of federal power toward its late nineteenth-century role as the ultimate protector of the natural rights of individual property. Even as war raged, the making of confiscation policy prompted fundamental questions about the basis of private property, the nature of the Constitution, and the relationship of individual property rights to the needs of the state. In antebellum America, the focus of American liberal constitutionalism slowly shifted to a greater reliance on the Constitution for protection of individual rights, particularly property rights, a process that was greatly accelerated after the Civil War. Confiscation was an important episode in this shift and contributed to the increasing dominance of a property regime-based, liberal, rights-oriented constitutionalism.Less

Kenneth C. Wheare and the Federal Principle

Michael Burgess

in In Search of the Federal Spirit: New Comparative Empirical and Theoretical Perspectives

The chapter provides a brief intellectual biography of Wheare and examines in detail his major contribution to the study of federalism. His distinctive approach to and understanding of federalism is ... More

The chapter provides a brief intellectual biography of Wheare and examines in detail his major contribution to the study of federalism. His distinctive approach to and understanding of federalism is revealed and a textual exegesis of his major works on federalism is conducted that furnishes the basis for identifying the normative federal values and principles generally implicit in his work on the federal principle. This investigative approach clears the way for the federal spirit to be located at the core of his understanding of federalism.Less

Political democracy in the great society

Albert Weale

in Democratic Justice and the Social Contract

Although deliberative theorists sometimes stress the importance of representation, the participatory political institutions of common property resource regimes cannot be directly transferred to great ... More

Although deliberative theorists sometimes stress the importance of representation, the participatory political institutions of common property resource regimes cannot be directly transferred to great societies. A good representative system will combine the functions of aggregation and representation. Political equality directly implies proportional representation. Majority voting in the legislature is the counterpart principle. Even when shifting coalitions of parties are decisive according to the rule of the issue-by-issue median, this does not negate a meaningful sense of deliberative rationality. Liberal constitutionalism cannot plausibly be made consistent with the democratic principle and counter-majoritarian institutions are deficient. The public reasoning of representative democracies involves a contest over the warrant of decision premisses and a bargaining to mutual advantage where disagreement persistsLess

From Classical Civil Religion to Modern Liberal Religion

in The Theological Basis of Liberal Modernity in Montesquieu's “Spirit of the Laws”

This chapter analyzes Montesquieu's views on republican slavery, the commercial republic and its religiosity, liberal constitutionalism and its religiosity, and the application of the standard found ... More

This chapter analyzes Montesquieu's views on republican slavery, the commercial republic and its religiosity, liberal constitutionalism and its religiosity, and the application of the standard found in England. Montesquieu is keenly aware that the natural tendency or drift of despotism is toward stupid impoverishment and recurring chaotic self-destruction. But he believes that there is hopeful evidence that some major despots are learning to listen to the voice of the reasoning required by economic self-interest rightly understood.Less