Constitutional Democracy and Electoral Commissions: A Reflection from Asia

2021 ◽  
pp. 1-9
Author(s):  
Rosalind Dixon ◽  
Mark Tushnet
Keyword(s):  
Sri Lanka ◽  
Constitutional Law ◽  
Global South ◽  
Constitutional Democracy ◽  
Comparative Constitutional Law

This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.

Introduction

2021 ◽  
pp. 3-30
Author(s):  
Alejandro Linares-Cantillo
Keyword(s):  
Transitional Justice ◽  
Constitutional Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Amendments ◽  
Leading Role ◽  
Comparative Constitutional Law ◽  
The Republic

This introductory chapter provides an overview of the twenty essays compiled for the XIII conference of the Constitutional Court of the Republic of Colombia, which was held in Bogota in January of 2019. The collection is divided into three thematic parts which illustrate five subjects at the spotlight of comparative constitutional law, in light of the growing circulation and intensification of the idea of constitutionalism. The first part examines the evolving and leading role of constitutional courts in constitutional democracies. The second part allows constitutional experiences speak for themselves and discusses tensions and debates in three topics: (A) the growing trend to judicially enforce 'constitutional unamendability' under the doctrine of 'unconstitutional constitutional amendments'; (B) the idea of 'transformative constitutionalism' in the area of social rights enforcement; and (C) the models of transitional justice and their implementation in the Colombian case. Finally, the third part analyses vertical and horizontal movements of constitutional law doctrines and decisions.

5 How Universal is Comparative Constitutional Law?

2014 ◽  
Author(s):  
Hirschl Ran
Keyword(s):  
Constitutional Law ◽  
Global South ◽  
Common Elements ◽  
Third Way ◽  
Body Of Knowledge ◽  
European Court ◽  
Comparative Constitutional Law ◽  
Unique Nature ◽  
Constitutional System ◽  
Constitutional Pluralism

This chapter addresses issues central to comparative constitutional law’s epistemological and methodological domain. First, the possibility of comparisons of constitutional law and institutions across time and space, notably between “universalists,” who emphasize common elements of legal (and constitutional) systems across time and place, and “particularists” who emphasize the unique nature of any given legal (and constitutional) system. “Third way” alternatives such as constitutional pluralism are also examined. Second, the “global south” critique in comparative constitutional law, or how truly “comparative,” universal, or generalizable are the lessons of a body of knowledge that draws almost exclusively on a small—not necessarily representative—set of frequently studied jurisdictions and court rulings to advance what is portrayed as generic and universally applicable prescriptions. The global south critique poses major challenges to contemporary comparative constitutional inquiry but has its own analytical challenges. Examples include South Africa, India, and the European Court of Human Rights.

scholarly journals Encuesta: el método comparado en Derecho constitucional

2018 ◽  
pp. 15
Author(s):  
Benito Aláez Corral ◽  
Francisco Balaguer Callejón ◽  
Raul Canosa Usera ◽  
María Jesús García Morales ◽  
Javier García Roca ◽  
...  
Keyword(s):  
Constitutional Law ◽  
Comparative Method ◽  
Present Situation ◽  
Constitutional Court ◽  
Comparative Constitutional Law ◽  
Law Professors

En esta encuesta un grupo de Catedráticos de Derecho Constitucional contestan un conjunto de preguntas sobre el uso del método comparado en el derecho constitucional español, y sobre la influencia de modelos o referentes extranjeros durante el proceso constituyente, en la actividad legislativa y en la del Tribunal Constitucional, así como también algunas preguntas sobre los estudios de derecho constitucional comparado.In this academic survey a group of Constitutional Law Professors answer some questions about the role of the comparative method in the Spanish constitutional law, and the influence of foreign models in the constitutional process, the legislator and the Constitutional Court, as well as about the present situation of comparative constitutional law studies.

scholarly journals La reforma del procedimiento ordinario de nombramiento del presidente del Gobierno

2012 ◽  
pp. 315
Author(s):  
Ignacio Torres Muro
Keyword(s):  
Constitutional Law ◽  
Radical Change ◽  
The Real ◽  
Head Of State ◽  
Comparative Constitutional Law ◽  
The Cost

El trabajo revisa el debate sobre una posible reforma del procedimiento ordinario de nombramiento del presidente del gobierno en España, con la intención de hacerlo más simple y más rápido. Se examinan las principales soluciones al problema en el derecho constitucional comparado, como una manera de fijar las alternativas reales, solo para llegar a la conclusión de que el coste de la reforma del sistema actualmente vigente es demasiado alto, porque significaría un cambio radical en el papel del jefe del Estado (el Rey) y en sus relaciones con el Parlamento y los ministros.The essay makes a review of the debate about a possible reform of the ordinary procedure to choose the primer minister in Spain, in order to make it simpler and quicker. The main solutions to the problem in comparative constitutional law are examined, as a way of fixing the real alternatives, only to conclude that the cost of the reform of the system, that is nowadays working, is to high, because it will mean a radical change in the role of the Head of State (the King), and in his relations with Parliament and the ministers.

The Southern Turn in Comparative Constitutional Law

2020 ◽  
pp. 1-38
Author(s):  
Philipp Dann ◽  
Michael Riegner ◽  
Maxim Bönnemann
Keyword(s):  
Constitutional Law ◽  
Comparative Law ◽  
Global South ◽  
Methodological Pluralism ◽  
Legal Scholarship ◽  
Comparative Constitutional Law ◽  
Global North ◽  
The Way

This introductory chapter argues for and conceptualizes a ‘Southern turn’ in comparative constitutional law. It takes stock of existing scholarship on the Global South and comparative constitutional law, situates the volume in this context, and seeks to move the debate forward. Its argument has three elements: the first is that the ‘Global South’ has already become a term used productively in various disciplines and in legal scholarship, even though in very different and sometimes under-theorized ways. Secondly, we argue that the ‘Global South’ is a useful concept to capture and understand a constitutional experience that is distinct from, and at the same time deeply entangled with, constitutionalism in the Global North. Thirdly, we contend that the Southern turn implies a specific epistemic, methodological, and institutional sensitivity that has implications for comparative constitutional scholarship as a whole. This sensitivity embraces epistemic reflexivity, methodological pluralism, as well as institutional diversification, collaboration, and ‘slow comparison’ and thus points the way towards an understanding of the discipline as ‘world comparative law’.

The Global South and Comparative Constitutional Law

2020 ◽  
Keyword(s):  
Constitutional Law ◽  
Global South ◽  
High Time ◽  
Access To Justice ◽  
Comparative Constitutional Law ◽  
The World ◽  
Methodological Approaches ◽  
Constitutional Discourse

Although the Global South represents ‘most of the world’ in terms of constitutions and population, it is still underrepresented in comparative constitutional discourse. Against this background, this volume posits that it is high time for a ‘Southern turn’ in comparative constitutional scholarship. It aims to take stock of existing scholarship on the Global South and comparative constitutional law and to move the debate forward. It brings together authors who all hail from, or are based in, the Global South and who represent a range of regions, perspectives, and methodological approaches. They address the theoretical and epistemic foundations of Southern constitutionalism and discuss its distinctive themes, such as transformative constitutionalism, inequality, access to justice, and authoritarian legality. What emerges is a rich tapestry of constitutional experiences that pluralizes comparative constitutional law as discipline and field of knowledge.

Kelsen versus Schmitt and the Role of the Sub-National Entities and Minorities in the Appointment of Constitutional Judges in Continental Systems

ICL Journal ◽  
2021 ◽  
Vol 14 (4) ◽  
pp. 523-543
Author(s):  
Antoni Abat Ninet
Keyword(s):  
European Commission ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Third ◽  
Comparative Constitutional Law ◽  
Constitutional Justice ◽  
The Guardian

Abstract In composed and decentralised states, sub-national entities and (ethnic, linguistic, racial) minorities ought to play a determinant role in the process of appointment of constitutional courts justices to obtain a balanced representation in the guardian of the constitution. The necessary appearance of constitutional justice independence can be at stake without a proportionated participation of minorities and sub-national entities in the court. It is not enough to introduce a symbolic presence. The first section of this essay analyses the transcendence and political-legal significance that the system of appointment of constitutional court judges has and its relation to the separation of powers (horizontal and vertical). The second section is a return to the roots, ie the system of appointment the Austrian Constitution of 1920, even that first constitutional court was created in 1919, and Kelsen’s theory on federalism. The third section carries out an analysis from a comparative constitutional law perspective by using as an analytical basis the reports on the composition of the Constitutional Courts of the European Commission for Democracy through Law. The paper ends with a reflection on Schmitt considerations on the Guardians of Constitutions.

The Case for Religious Constitutions: Comparative Constitutional Law among Buddhists and Other Religious Groups

2021 ◽  
pp. 1-29
Author(s):  
Benjamin Schonthal
Keyword(s):  
Sri Lanka ◽  
Constitutional Law ◽  
Global History ◽  
Religious Groups ◽  
Comparative Constitutional Law ◽  
Social Ordering ◽  
History Of Religions ◽  
History Of ◽  
Higher Law

This article argues that there is body of governing laws appearing widely throughout the global history of religions that warrants classification as constitutions. Like national constitutions, these religious constitutions present themselves as a form of “higher law” that declare the identity of a given a community, organize its structures of governing power, define its foundational norms, and authorize further acts of rulemaking. In this article, I offer an overview of these texts across several traditions and a defense of their importance in the study of comparative constitutional law. I then draw on fieldwork from Sri Lanka to provide a firsthand account of what a modern religious constitution looks like and how it works to govern one of the country’s largest communities of Buddhist monks. I conclude by urging scholars to view religion and constitutional law not as opposing legal domains but, rather, as homologous forms of social ordering that draw upon similar concepts and logics to address common human dilemmas.

Facing South

2020 ◽  
pp. 41-66
Author(s):  
Florian Hoffmann
Keyword(s):  
Constitutional Law ◽  
Global South ◽  
Structural Determinants ◽  
Disciplinary Identity ◽  
Western Modernity ◽  
Real Locus ◽  
Comparative Constitutional Law ◽  
The World ◽  
Different Types ◽  
North And South

The idea and the reality of the Global South represent different types of epistemological challenges to the disciplinary identity of comparative (constitutional) law. Taking the Global South seriously in and for comparative constitutional law must mean transcending its use as either a mere marker of supressed difference or a critical wedge against the hegemony of Western/modern constitutional concepts. The Global South must, instead, be unlocked as the real locus—not in a geographical but in a cognitive sense—of constitutional modernity the world over. Such an agenda of epistemic meridianization requires a number of methodological moves, the most important of which is the de-Weberianization of the fundamental terms and normative ideals of comparative constitutional law. De-Weberianization through a Southern lens is not limited to an ideology critique of Western modernity, but is a project to provide a more realist vision of that modernity and, thereby, a deeper understanding of ‘how the world works’ across North and South. A fundamental openness to alterity, hybridity, and contingency as the structural determinants of ‘law in practice’ is what is at the basis of the South and what enables the re-cognition of the modern world in its likeness.

Sign in / Sign up

Export Citation Format

Share Document