Institutions for Protecting Constitutional Democracy: An Analytic Framework, with Special Reference to Electoral Management Bodies

2021 ◽  
pp. 1-13
Author(s):  
Mark Tushnet
Keyword(s):  
Special Reference ◽  
Governance Structure ◽  
Constitutional Theory ◽  
Specific Function ◽  
Constitutional Democracy ◽  
Analytic Framework ◽  
General Rules ◽  
Electoral Management Bodies

Constitutional theory dating to Montesquieu identified three branches of government, each with a specific function: the legislature enacted general rules, the executive enforced the rules, and the judiciary resolved disputes about the rules’ meaning and application. Every government had to have these branches in some form; that is, the branches were necessary elements in a governance structure. In addition, the branches were exhaustive: that is, taken together they did everything a government could do.

scholarly journals Constitutionalism and populism: national political integration and global legal integration

2019 ◽  
Vol 12 (1) ◽  
pp. 1-32
Author(s):  
Chris Thornhill
Keyword(s):  
Sociological Theory ◽  
Popular Sovereignty ◽  
Theoretical Research ◽  
Constitutional Theory ◽  
Constitutional Democracy ◽  
Constituent Power ◽  
Legal Norms ◽  
Normative Models ◽  
Normative Foundations ◽  
Constitutional Analysis

AbstractThis article adds to the emergent body of constitutional-theoretical research on populist government. It argues that constitutional analysis has specific importance in explaining the hostility to global legal norms that characterizes many populist or neo-nationalist polities. However, it argues that more classical perspectives in constitutional theory have not provided adequate explanations for this phenomenon. This is because constitutionalism itself misunderstands the sociological foundations of constitutional democracy and it promotes normative models of democracy, based in theories of popular sovereignty and constituent power, which create a legitimational space in which populism can flourish. In contrast, this article sets out a historical-sociological account of national democracy, explaining how democracy has been formed through processes of global norm construction. As a result, the basic subjects imputed to democracy by both constitutionalism and populism only became real on global normative foundations. In advancing these claims, this article presents a global-sociological critique of populism, explaining that populism evolves where the realities of democratic formation enter conflict with the norms of constitutional theory. In so doing, it offers a sociological theory of constitutional democracy that might help to avert democratic self-subversion.

Carl Schmitt's State and Constitutional Theory

2018 ◽  
Author(s):  
Benjamin A. Schupmann
Keyword(s):  
Civil War ◽  
State Theory ◽  
The State ◽  
Popular Sovereignty ◽  
Constitutional Theory ◽  
Constitutional Democracy ◽  
Liberal Democrats ◽  
Positive Law ◽  
Liberal Democratic ◽  
Past State

This book analyzes Carl Schmitt’s state and constitutional theory and shows how he conceived it in response to the Weimar crisis. Schmitt modeled his theory on past state theory, particularly Hobbes’ Leviathan. Schmitt sought to address the unique problems posed by mass democracy. Extremists recognized a path to legal revolution lay in the constitution’s combination of democratic procedures, total neutrality toward political goals, and positive law. To prevent the subversion of the state and civil war, Schmitt theorized ways to depoliticize conflicts and restore the state’s authority. He argued the constitution imposed absolute limits on democratic will. And he insisted those limits were determined by the liberal democratic constitution’s prior commitment to basic rights. Schmitt’s state and constitutional theory remains important today because the problems he identifies within liberal democratic states have not gone away. Schmitt’s thought anticipated “constrained” or “militant” democracy, a type of constitution that guards against subversive expressions of popular sovereignty and whose mechanisms include the entrenchment of basic constitutional commitments and party bans. Although today’s political challenges are not identical to those Weimar faced, the threat of constitutional democracy committing suicide has not gone away. Liberal democrats can learn from Schmitt’s analysis and theory to address today’s challenges.

scholarly journals Towards a methodology of applying the paribhāṣās in the KauśikaSūtra (I) (with special reference to 7.1)

2008 ◽  
Vol 9 (2) ◽  
pp. 57-82
Author(s):  
Julieta Rotaru
Keyword(s):  
Special Reference ◽  
Systematic Study ◽  
General Rules ◽  
High Degree

University of BucharestThe KauśikaSūtra (KauśS) represents a complex work of the Śaunaka school, collected from various sources of Atharvavedic ritual literature. Bloomfield considered that the KauśS was compiled at a certain time from different materials with clearly individual characters and that the redactor(s) did not try or did not succeed in harmonising and unifying the text by removing the discrepancies. One of the effects which would follow from these inconsistent revisions would be that the general rules would be applied strictly to some passages and loosely or not at all to others. A systematic study regarding a methodology for applying metarules to the KauśS is wanting. The present work represents such an attempt, restricted to the elucidation of the paribhāṣā 7.1. Following an exhaustive analysis of all its potential uses, underlined by a new translation of the respective passages, it is noted that the metarule is quite consequently applied. One of the questions arising from this is whether Kauśika had in mind some of these metarules at the time of his composition and the later redactor(s) attempted to maintain a high degree of consistency in applying them to the newly introduced fragments. Secondarily, the paper addresses another issue, the use of the preverb pra in prāśnāti and prāśayati allegedly as a tool for disambiguation in the KauśS.

Independence in Electoral Management: Electoral Processes Primer 1

2021 ◽  
Author(s):  
Oliver Joseph
Keyword(s):  
Political Parties ◽  
National Level ◽  
State Institution ◽  
Governance Structure ◽  
Functional Independence ◽  
The State ◽  
Institutional Framework ◽  
Political Processes ◽  
Core Elements ◽  
Electoral Management Bodies

Elections are the cornerstone of democratic political processes, serving as a mechanism for political parties or candidates to compete for public office under equal conditions before the electorate. For an election to be credible, the competition must be fair, requiring impartial management of the process. As described in International IDEA’s Handbook on Electoral Management Design (Catt et al. 2014), electoral management bodies (EMBs) are the state institution or institutions established and mandated to organize or, in some instances, supervise the essential (or core) elements of this process. This Primer focuses on the establishment of EMBs as institutions normatively, structurally and functionally independent from government. It examines the benefits and limitations of the legal and institutional framework, governance structure, remit, autonomy over their resources, and contextual approaches that facilitate their functional independence, applicable to different legal and political contexts. The Primer discusses EMB independence and EMB relations with all stakeholders engaged in an electoral process at the national level.

Filtering Populist Claims to Fight Populism

2021 ◽  
Author(s):  
Giuseppe Martinico
Keyword(s):  
World War Ii ◽  
Constitutional Law ◽  
Historical Context ◽  
Constitutional Theory ◽  
New Wave ◽  
Constitutional Democracy ◽  
World War ◽  
The Us ◽  
The Impact

The new wave of populism that has emerged over the last five years in Europe and in the US urgently needs to be better understood in a comparative and historical context. Using Italy – including the experiment of a self-styled populist coalition government – as a case study, this book investigates how populists in power borrow, use and manipulate categories of constitutional theory and instruments of constitutional law. Giuseppe Martinico goes beyond treating constitutionalism and populism as purely antithetical to dive deeply into the impact of populism on the activity of some instruments of constitutional democracy, endeavoring to explore their role as possible fora of populist claims and targets of populist attacks. Most importantly, he points to ways in which constitutional democracies can channel populist claims without jeopardizing the legacy of post-World War II constitutionalism. This book is aimed at academics and practicing lawyers interested in populism and comparative constitutional law.

Constitutionalism Justified

2019 ◽  
Keyword(s):  
Political Philosophy ◽  
Moral Theory ◽  
Legal Philosophy ◽  
Constitutional Theory ◽  
Constitutional Democracy ◽  
Theory Of Justice ◽  
Legal Discourses ◽  
Political Philosopher ◽  
The Right

Rainer Forst is a leading German political philosopher and was named ‘the most important political philosopher of his generation’ upon his 2012 receipt of the Leibniz Prize. This book brings together discussion from political philosophy, constitutional theory, and legal philosophy to examine Forst’s theory of justice, paying special attention to the application of his moral theory to legal fields. Forst then responds to his interlocutors in a concluding chapter. The book is structured from the general to the specific, and begins by examining the philosophical fundaments of Forst’s ‘right to justification’ as the basis for justice. This right is in the second section transferred to the realm of constitutional theory, exploring the implications the right to justification has for conceptualizing legal discourses in a constitutional democracy. The concluding section sees Forst respond to the foregoing chapters.

scholarly journals A bicameral parliament in the context of forming constitutional democracy

2020 ◽  
pp. 136-139
Author(s):  
Andrey Irkliienko
Keyword(s):  
European Union ◽  
Developed Countries ◽  
The State ◽  
Theory And Practice ◽  
Constitutional Theory ◽  
The European Union ◽  
Constitutional Democracy ◽  
Member States ◽  
The Czech Republic ◽  
The World

The article analyzes peculiarities of formation of a two-house parliament in the conditions of constitutional democracy. It has been established that parliamentarism, which theoretical origins date back into the doctrines about folk and national sovereignty, is logically connected with the establishment of principles of the supremacy of law and democracy in society and the state, with the implementation of effective mechanisms to guarantee constitutional human rights, as well as with the formation of such institutions that would ensure the most complete and comprehensive conduction of its functions and meeting the needs of society. Ukrainian parliamentarism has long-standing historical roots. Modern legal scholars consider that there are a few precursors of national parliamentarism. These are Viche democracy and feudal congresses in Kyievan Rus, Cossack councils and Cossack democracy in general, the activities of the Central Rada and even to some extent the “parliamentarism” of the Soviet era. However, the establishment and development of full-fledged national parliamentarism became possible only after Ukraine’s independence in 1991. It has been summarized that nowadays, comprehensive outspread of the theory and practice of bicameralism should be recognized as one of the most distinctive tendencies of genesis of modern constitutionalism. In the last decades, many countries around the world, regardless their state form of government, have intensified processes of transition to a bicameral structure of a parliament. Even if in the early 70’s of XX century two-house parliaments functioned in 45 countries in the world, in 2008 their number reached 70. Yet, another ten more countries are preparing to switch to the bicameral structure of their parliaments. Currently, two-house parliaments have ceased to be a tribute of historical traditions of constitutionalism or some “anomaly” of the state legal development of countries, which are united by one legal system. Bicameralism has become a daily political and legal phenomenon for a large number of population of our planet. These are the most economically developed countries of the world that have chosen such a system of parliamentarism at present. Therefore, out of fifteen countries that have the highest indicators of the gross domestic product in the world, only two, that is China and South Korea, have one-house national legislative bodies. It has been recapitulated that the European Union and its member states are gradually asserting bicameralism both in the constitutional theory and in practice. Particularly, two-house parliaments are successfully functioning in such unitary member states of the European Union as Austria, Ireland, Spain, Italy, Poland, Slovenia, Romania, France, the Czech Republic, Switzerland and others.

CRITICAL REFLECTION ON PATHOLOGICAL PORTRAYAL OF HOLY PROPHET (PBUH) WITH SPECIAL REFERENCE TO D. B. MACDONALD

ĪQĀN ◽  
2021 ◽  
Vol 3 (01) ◽  
pp. 1-18
Author(s):  
Dr. Muhammad Tariq Ramzan ◽  
Dr. Muhammad Feroz-ud-Din Shah Khagga
Keyword(s):  
Nineteenth Century ◽  
Special Reference ◽  
Critical Reflection ◽  
Pivotal Role ◽  
Constitutional Theory ◽  
Western Thought ◽  
Religious Attitude ◽  
Sick Person ◽  
Pathological Case ◽  
Literary Circles

Nineteenth century in the western theological literary circles, has been proved to be the age of shifting over the academic paradigms from theological debates to introducing Muslim studies particularly. In this perspective, one of the prolific and legendary orientalists Duncan Black MacDonald (d.1943 A.D.) played a pivotal role in transmitting and establishing chairs for Arabic and Islamic learnings at Hartford Seminary. He himself portrayed the image of Islam through his writings and lectures. He authored several books on different matters belonging from the Western thought, ideology, culture and perspective to the Muslim rituals and creeds. His major writings regarding Islam and its fundamental belief focusing Muslim cultural, social, religious and historical foundations got widespread recognition in the western academia. While delivering his famous series of lectures “Development of Muslim Theology, Jurisprudence and Constitutional Theory”; “Religious Attitude and Life in Islam” and “Aspects of Islam” have a remarkable impression of presenting the image of Islam in an absurd way. In particular, he proclaimed Prophet of Islam as a pathological case. In the first phase of the article, D.B. MacDonald’s life sketch has been penned down, while in the second part of the article, his portrayal of Prophet of Islam (PBUH) as a sick person has been described while in the last part of the article, this assertion has been critically reviewed.

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