Value Pluralism, Constitutionalism, and Democracy: Waldron and Berlin in Debate

2018 ◽  
Vol 81 (1) ◽  
pp. 101-127
Author(s):  
George Crowder
Keyword(s):  
Judicial Review ◽  
War On Terror ◽  
Separation Of Powers ◽  
The Other ◽  
Value Pluralism ◽  
Democratic Institutions ◽  
Isaiah Berlin ◽  
Checks And Balances ◽  
Other Hand ◽  
Extended Discussion

AbstractJeremy Waldron claims that Isaiah Berlin wrongly neglects, and is hostile to, constitutional and democratic institutions. I argue that although Berlin offers no extended discussion of constitutionalism or democracy, he is not hostile to them. Moreover, the logic of Berlin's value pluralism is strongly supportive of these ideas—for example, it fits well with constitutionalist notions such as the separation of powers and checks and balances. On the other hand, Waldron's rejection of judicial review on the ground of democracy is questionable in these same pluralist terms. Here I argue that Berlinian pluralism supports democracy as long as this is inclusive in its outcomes. But contemporary democracy cannot be relied upon to be sufficiently inclusive, in part because of the effects of the war on terror and the rise of populism. Under these conditions it is unwise for pluralists to dispense with judicial review.

Checks and Balances in Foreign Relations

1989 ◽  
Vol 83 (4) ◽  
pp. 736-739 ◽  
Author(s):  
Elliot L. Richardson
Keyword(s):  
Foreign Relations ◽  
Separation Of Powers ◽  
The Other ◽  
Constitutional Theory ◽  
Checks And Balances ◽  
Other Hand

One of the most frequently overstated concepts in American constitutional theory is the “separation” of powers. The Framers of the Constitution began with the proposition that concentration of power was to be avoided. They understood, on the other hand, that if governmental powers and responsibilities were actually set apart, each branch would exercise its powers in isolation from the other coordinate branches, to the detriment of cooperation and accommodation among them. Governance would be at best inefficient and at worst impossible.

Introduction The Birth and Growth of Judicial Review: 1607–2020

2021 ◽  
pp. 1-14
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Charismatic Leadership ◽  
The United States ◽  
Boundary Line ◽  
Constitutional Courts ◽  
Supreme Courts ◽  
Checks And Balances ◽  
The Third

This introductory chapter discusses how judicial review of the constitutionality of legislation has usually emerged historically for a combination of four reasons. First, judicial review of the constitutionality of legislation is a response to a nation’s need for an umpire to resolve federalism or separation of powers boundary line disputes. The second main cause of the origins and growth of judicial review of the constitutionality of legislation is what can be called the rights from wrongs hypothesis; judicial review very often emerges as a response to an abominable deprivation of human rights. The third major cause is the out-and-out borrowing of the institution of judicial review of the constitutionality of legislation from either the United States’ model; the German Civil Law model; and, most recently, from the Canadian Second Look judicial review constitutional model. The fourth major cause is the existence of a system of checks and balances, which gives Supreme Courts and Constitutional Courts political space to grow in. Revolutionary charismatic constitutionalism can also lead to the growth of judicial review as Professor Bruce Ackerman has explained in an important new book, REVOLUTIONARY CONSTITUTIONS: CHARISMATIC LEADERSHIP AND THE RULE OF LAW (2019).

Kingdom of Heaven: The One State Solution and Western Military Intervention in the Holy Land

2020 ◽  
Vol 19 (2) ◽  
pp. 175-189
Author(s):  
Nisreen T. Yousef
Keyword(s):  
War On Terror ◽  
State Solution ◽  
Religious Violence ◽  
The Other ◽  
Holy Land ◽  
Ridley Scott ◽  
Other Hand ◽  
Kingdom Of Heaven ◽  
Historical Analogy ◽  
The One

In this article I argue that in Kingdom of Heaven Ridley Scott creates historical analogies between Saladin's taking of Jerusalem and the Third Crusade, on the one hand, and the Israeli-Palestinian question and American-led ‘War on Terror’, on the other hand. I maintain that Scott pictures the one-state solution in which both the Israelis and the Palestinians can coexist peacefully as a feasible settlement. By presenting the idea of a shared Jerusalem under the Crusaders' rule in the past, Scott wittingly promotes through a contrived historical analogy to contemporary Western interventionism in the Middle East. Crucially, Scott goes beyond Samuel Huntington's essentialist views of Muslims. He provides variable representations of Muslim characters, fluctuating between characters that are superstitious, on the one hand, and characters that are capable of rational thinking, on the other hand. Nevertheless, Scott seems to be highly convinced about the myth of religious violence, as suggested by William Cavanaugh. This myth suggests that secular violence is rational and useful whereas religious violence is irrational and dangerous. Moreover, Scott proves to be swayed by the idea of the ‘just war’ according to which the use of force can be legitimate. In Kingdom of Heaven, Scott pictures the ongoing ‘War on Terror’ as an incarnation of earlier centuries' European (colonial) ‘civilising missions’ towards the ‘less-civilised’ nations.

scholarly journals Dissenting Opinion dan Concurring Opinion dalam Putusan Mahkamah Konstitusi

2018 ◽  
Vol 3 (2) ◽  
pp. 307-324
Author(s):  
Haidar Adam
Keyword(s):  
Law Enforcement ◽  
Judicial Review ◽  
The Other ◽  
Constitutional Court ◽  
Procedural Law ◽  
Other Hand ◽  
The Difference

Abstract: This article discusses about dissenting opinion and concurring opinion in the decision of the Constitutional Court. Law enforcement can be done through the Constitutional Court in the form of law judicial review. The issue of dissenting opinion is regulated through Law No. 24 Year 2003 and Constitutional Court Regulation No. 6 of PMK Year 2005 concerning Procedural Law of Tests of Act. The phrase used in the Constitutional Court Law is “the different opinion of the judiciary members". The different opinion, according to Jimly, is divided into two namely dissenting opinion and concurrent opinion. A verdict is considered concurring if there is an argument by a member of the panel of judges that is different from that of the other members of the judiciary but it does not affect the difference of the decision. On the other hand, a decision is said to be dissenting if the opinion of a member of the panel of judges is different from that of the majority of the other members of the panel of judges and the difference is not merely in the case of reasoning but to touching on the verdict. Keywords: Dissenting opinion, concurring opinion, the court constitution’s decision. Abstrak: Penegakan hukum dapat dilakukan melalui pengadilan oleh Mahkamah Konstitusi dalam bentuk pengujian terhadap undang-undang. Masalah dissenting opinion diatur melalui Undang-Undang Nomor 24 Tahun 2003 dan Peraturan Mahkamah Konstitusi Nomor 6 PMK Tahun 2005 tentang Hukum Acara Pengujian Undang Undang. Frase yang dipakai dalam UUMK adalah “pendapat anggota majelis hakim yang berbeda”. Pendapat yang berbeda menurut Jimly, dibedakan menjadi dua yaitu dissenting opinion dan concurrent opinion. Suatu putusan dianggap sebagai concurring apabila terdapat argumentasi anggota majelis hakim yang berbeda dengan mayoritas anggota majelis hakim yang lain, namun tidak berimbas pada perbedaan amar putusan. Di sisi lain, suatu putusan dikatakan dissenting, jika pendapat suatu anggota majelis hakim berbeda dengan pendapat mayoritas anggota majelis hakim yang lain dan sampai menyentuh pada amar putusan. Kata Kunci: Dissenting opinion, concurring opinion, putusan Mahkamah Konstitusi.

scholarly journals Penataan Kelembagaan Pengujian Norma Hukum di Indonesia

2018 ◽  
Vol 15 (1) ◽  
pp. 206
Author(s):  
Tanto Lailam
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Institutional Arrangement ◽  
The Other ◽  
Legal Norm ◽  
Constitutional Court ◽  
Checks And Balances ◽  
Legal Norms ◽  
Constitutional System ◽  
The Guardian

Artikel ini membahas tentang penataan kelembagaan pengujian norma hukum di Indonesia, yang diawali dengan pembahasan problematika kelembagaan dan praktik pengujian norma hukum saat ini dan gagasan penataaan lembaga kedepan. Hasil kajian menunjukkan bahwa beberapa persoalan, meliputi (1) kelembagaan yang tidak ideal dan tidak sesuai dengan checks and balances system, hal ini terbukti banyaknya lembaga yang terlibat dalam pengujian norma, yakni MK, MA, dan Mendagri–Gubernur (Wakil Pemerintah Pusat); (2) persoalan objek pengujian yang tidak memiliki batasan yang jelas; (3) dalam praktik, persoalan tolok ukur pengujian terjadi kerumitan, terutama dalam penggunaan tolok ukur dalam menilai pertentangan norma hukum. Gagasan penataan kelembagaan ini di desain untuk kelembagaan satu atap pada MK, yang didasari argumentasi bahwa: MK sebagai pengawal Pancasila dan UUD 1945, dalam rangka penataan kelembagaan yang berbasis pada mekanisme checks and balances system, mewujudkan hierarkisitas peraturan perundang-undangan yang berkelanjutan, implementasi pengujian formil dalam praktik pengujian peraturan perundang-undangan di bawah undang-undang, penataan regulasi menjadi lebih tersistem, pengujian produk hukum tertentu merupakan pintu masuk untuk melihat semua persoalan pertentangan normanya pada setiap hierarki. Pada sisi yang lain, objek dalam sistem pengujian peraturan perundang-undangan juga belum terintegrasi menurut konstitusi dan belum mengarah pada penataan sistem heirarki norma hukum dan upaya harmonisasi norma hukum. Sistem konstitusi dengan paradigma “the supreme law of the land” mengharuskan seluruh peraturan dibawahnya harus bersumber dan tidak boleh bertentangan, dengan berpijak pada prinsip “tidak boleh satu detik pun ada peraturan perundang-undangan yang berpotensi melanggar konstitusi tanpa bisa diluruskan atau diuji melalui pengujian yudisial”.This article is discussed the institutional arrangement of regulation reviews in Indonesia. It’s begins with a discussion of the institutional problems and practice of regulations review and the design of institutional arrangement in the future. The results of the study shows several issues including: (1) institutions which are not ideal and contradicted with checks and balances system, it’s proofed by amount of institutions has authority about the functions, namely: Judicial review (Constitutional Court, Supreme Court), and Executive Review (Minister of Home Affairs and Governor; (2) the object of review doesn’t clear boundaries; (3) in practice, the problems of standard reviews is complicated, especially in the use of judging standard in the conflict of legal norm. The idea of institutional arrangement is designed for one institutionalization at the Constitutional Court, which is based on the argument: The Constitutional Court as the guardian of the Pancasila (ideology of state) and the 1945 Constitution, in the framework of institutional arrangement based on checks and balances system, realizing the sustainable in the heirarchy of regulation, in practice of formal review to reviewing regulations under a law, arrangements of regulations more systematic and comprehsnsive, regulations review is the entrance to see all the issues of it’s conficting in each hierarchy. On the other hand, the object in the system of regulation reviews is also not integrated according by the constitution, and it’s not in accordance with the arrangement system in hierarchy of the regulation and efforts to harmonize the legal norms. The constitutional system with the “supreme law of the land” paradigm requires that all the regulations below should be sourced and not be contradictions, with the principle of “no regulations may be conflict againts the constitution without judicial review.

scholarly journals The Dynamics of Relationship Between Legislative and Executive in Post Reformation Era: A Critical Thinking for Amendment of the 1945 Constitution

2019 ◽  
Vol 4 (1) ◽  
pp. 138-157
Author(s):  
Sunarto Sunarto
Keyword(s):  
Critical Thinking ◽  
Political Parties ◽  
The Other ◽  
Checks And Balances ◽  
Indonesian Government ◽  
Other Hand ◽  
Presidential System ◽  
The Government ◽  
Opposition Parties

Amendment of the 1945 Constitution brought significant shifting on the Indonesian government. Before amendment, the government was dominated by the enormous power of President (executive heavy). The amendment strengthens the DPR’s power realizing the checks and balances between DPR and President. The amendment of the 1945 Constitution also brought the purification of presidential system. These two things make the dynamics of relationship between the DPR and the President. In post amendments, the government is characterized by an increasing controlling function of DPR. But the combination of presidential system and the multi-party still brings problem related to government instability. Relationship between the DPR and the President was strongly influenced by the presence of opposition parties, which in the previous was regarded as “a taboo” in Indonesian democracy. On the other hand, the elected president also became a strong magnet to get the support of political parties in DPR. Therefore, certain parties that previously became the government’s opposition crossed and supported government. Thus, the presumption that the elected President would find difficulties in implementing his policies because of the lack of support in the DPR was not proven.

Reporting terrorism in Muslim Asia: the Peshawar massacre

2019 ◽  
Vol 173 (1) ◽  
pp. 108-124
Author(s):  
Saira Ali ◽  
Umi Khattab
Keyword(s):  
Discourse Analysis ◽  
Media Coverage ◽  
War On Terror ◽  
The Other ◽  
Terror Attack ◽  
The West ◽  
Mainstream Media ◽  
Other Hand ◽  
New Meanings ◽  
Western Civilisation

Terrorism is not a threat to Western civilisation alone. Drawing on interdisciplinary perspectives and using Pakistan as a case, where the war-on-terror is being fought ceaselessly, analysis was carried out on Pakistan’s mainstream media coverage of, and citizen media reactions to, the December 2014 Peshawar school terror attack where 144 people, mostly children, were killed. Discourse analysis of media texts reflects that Pakistan’s mainstream media was spineless in openly fighting terrorism as it focused on the victims of the attack while camouflaging stories with shahadat-ism (martyrdom). On the other hand, citizen media condemned the Taliban perpetrators and hotly debated the perils of Taliban-ism and Islamo-fascism. Attempts to fight militant Islamism and mitigate terrorism were evident in an emerging citizen sphere where the issue took on new meanings, unlike the West. It is important for journalists to be culturally alert in reporting ‘terrorism’ in the light of the intersections of Islamism.

Japan

2021 ◽  
pp. 115-132
Author(s):  
Steven Gow Calabresi
Keyword(s):  
World War Ii ◽  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The Political ◽  
Bill Of Rights ◽  
Checks And Balances ◽  
Rubber Stamp ◽  
The Supreme Court ◽  
The Government

This chapter looks at the Japanese experience with judicial review. The Supreme Court of Japan does not enforce those parts of the Japanese Constitution, like Article 9, which prohibits war making; Article 21, which protects freedom of speech; or Article 89, which forbids taxpayer money from being used to hire Shinto priests. The Supreme Court of Japan thus refuses to enforce important articles in the Constitution of Japan. It does rubber stamp and thus legitimize actions taken by the political branches of the government. Why has judicial review of the constitutionality of legislation failed to take root in Japan? Japan does not need either a federal or a separation of powers umpire, since Japan is, firstly, a unitary nation-state with no need for a federalism umpire; and, secondly, a parliamentary democracy with a weak upper house of the legislature. Moreover, Japan has never atoned for the wrongs it committed during World War II nor has it truly admitted to even having done the horrible things that Japan did. A nation cannot get rights from wrongs judicial review and a Bill of Rights unless it admits it has done something wrong. Finally, the Japanese Constitution contains an inadequate system of checks and balances. As a result, the Supreme Court of Japan may not have the political space within which it can assert power.

Democracy and Industrialisation

1967 ◽  
Vol 8 (1) ◽  
pp. 47-70 ◽  
Author(s):  
Ernest Gellner
Keyword(s):  
The Other ◽  
Democratic Institutions ◽  
Transitional Societies ◽  
Contemporary World ◽  
Other Hand ◽  
New States ◽  
As If

Looking at the contemporary world, two things are obvious: democracy is doing rather badly, and democracy is doing very well. ‘New states are born free, yet everywhere they are in chains.’ Democracy is doing very badly in that democratic institutions have fallen by the wayside in very many of the newly independent ‘transitional’ societies, and they are precarious elsewhere. Democracy, on the other hand, is doing extremely well in as far as it is almost (though not quite) universally accepted as a valid norm. It is almost as if its success as a norm of legitimacy were inversely related to its success in concrete implementation.

PLURALIST CONSTITUTIONALISM

2010 ◽  
Vol 28 (1) ◽  
pp. 228-241 ◽  
Author(s):  
William A. Galston
Keyword(s):  
Common Sense ◽  
Theory And Practice ◽  
The Other ◽  
Political Life ◽  
Group Differences ◽  
Value Pluralism ◽  
Constitutional Theory ◽  
General Category ◽  
Isaiah Berlin ◽  
The One

AbstractThis essay explores the ways in which a broadly pluralist outlook can help illuminate longstanding issues of constitutional theory and practice. It begins with a common-sense understanding of pluralism as the diversity of observed practices within a general category (section 2). It turns out that many assumptions Americans and others often make about constitutional essentials are valid only locally but not generically. The essay then turns to pluralism in a more technical and philosophical sense—specifically, the account of value pluralism adumbrated by Isaiah Berlin and developed by his followers. Section 3 sketches this version of pluralism, and section 4 brings it to bear on a range of familiar constitutional issues. In the process, a distinction emerges between, on the one hand, areas of variation among constitutions and, on the other, some general truths about political life that define core constitutional functions. The essay concludes (section 5) with some brief reflections on the normative thrust of pluralist constitutional theory—in particular, a presumption in favor of the maximum accommodation of individual and group differences consistent with the maintenance of constitutional unity and civic order.

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