Anticolonial Constitutionalism: The Case of Hồ Chi Minh

2018 ◽  
Vol 19 (2) ◽  
pp. 197-221
Author(s):  
SON NGOC BUI
Keyword(s):  
Twentieth Century ◽  
Special Reference ◽  
Rule Of Law ◽  
Fundamental Rights ◽  
Popular Sovereignty ◽  
French Colonialism ◽  
The Rule Of Law ◽  
Constitutional Government ◽  
Colonial Government ◽  
The Relationship

AbstractHow is modern constitutionalism related to anticolonialism? This Article takes into account this question with a special reference to the case of Hồ Chi Minh. It argues that modern constitutionalism offers a powerful ideational and discursive weapon for the colonized people to struggle against colonialism. To understand this, the Article introduces the concept of ‘anticolonial constitutionalism’, defined as a form of political discourse in which anticolonialists employ the language and ideas of modern constitutionalism to combat the predatory colonial government and to express the aspirations to a constitutional government. Anticolonial constitutionalism emerges under three conditions, namely exploitatory and arbitrary colonialism, anticolonialism, and constitutional enlightenment. The case of Hồ Chí Minh illustrates this phenomenon well. When Vietnam was under French colonialism as a part of French Indochina during the first half of the twentieth century, Vietnamese anticolonialism was vehement, and different anticolonialists employed the language and ideas of constitutionalism to oppose the colonial government. One of them was Hồ Chí Minh, considered by many Vietnamese as the father and icon of the nation. A tremendously influential anticolonialist, he was enlightened with constitutionalist knowledge and employed key ideas of modern constitutionalism, namely a written constitution, the rule of law, popular sovereignty, and fundamental rights to struggle against French colonialism and to express such aspirations to a constitutional government in Vietnam. This study has implications for the trajectory of constitutionalism in contemporary Vietnam given the continuing influence of Hồ Chí Minh's constitutionalist discourse in the country nowadays. More generally, this study has implications for the relationship between constitutionalism and anticolonialism.

The Moral Dimension of Constitutional Faith

2011 ◽  
Author(s):  
Sanford Levinson
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
Social Order ◽  
Moral Dimension ◽  
The Rule Of Law ◽  
Law And Morality ◽  
The Relationship

This chapter considers the relationship between the Constitution—and the sovereign people ostensibly represented in its terms—and morality. Constitution faith requires the linkage of law and morality even as most twentieth-century jurisprudence has emphasized their analytic separation. All calls for renewed faith in the rule of law and renewal of the constitutional covenant imply that submission to the Constitution will create not only order but also the conditions of a social order worthy of respect. In order to see the logic and desirability of submission to the rule of the Constitution, the assumed linkage between it and morality must be closely examined.

Theoretical Foundations of Liberal Order

2013 ◽  
Author(s):  
Casper Sylvest
Keyword(s):  
Twentieth Century ◽  
International Relations ◽  
Rule Of Law ◽  
Representative Government ◽  
The Rule Of Law ◽  
Early Twentieth Century ◽  
Late Nineteenth ◽  
The Relationship ◽  
Theoretical Foundations

This chapter draws on the writings of late nineteenth- and early twentieth-century liberal writings to show how, mainly British, liberals campaigned for the moralization, reform, or regulation of international relations. It demonstrates how contemporary liberal theories have lost connection to the moral and normative articulations of a century or so ago and that the meaning and value of many key liberal terms and concepts have changed significantly. As an example, the chapter shows that, although the relationship between liberalism and democracy appears inseparable today, a century and a half ago liberals were apprehensive about democracy. Liberals were devoted to the rule of law and representative government but, for many, democracy raised the spectre of the tyranny of an uneducated and potentially debased majority.

4. The Royal Prerogative

2018 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
Judicial Review ◽  
Civil Service ◽  
Administrative Law ◽  
Revolutionary Era ◽  
The Rule Of Law ◽  
The Relationship

This chapter considers the fate of the royal prerogative in the courts during the twentieth century. The discussions cover the relationship between statute, the prerogative, and the rule of law; the traditional perspective on judicial review of prerogative powers and its erosion; Council of Civil Service Unions v Minister for the Civil Service (GCHG) as the pivotal case in the development of judicial review of the prerogative; post-GCHG developments; and the notion of justiciability. The chapter concludes that the courts supervise the government’s use of prerogative powers more closely now than in the pre-revolutionary era. There has been an increase in the theoretical reach of the courts’ power of review since the 1967 decision in Lain. Administrative law also seems to treat prerogative and statutory powers in the same way.

The Problem with Normality: Taking Exception to “Permanent Emergency”

2006 ◽  
Vol 31 (2) ◽  
pp. 191-213 ◽  
Author(s):  
Mark Neocleous
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
War On Terror ◽  
September 11 ◽  
The Rule Of Law ◽  
Emergency Powers ◽  
Historical Developments ◽  
The Relationship ◽  
Emergency Measures

This article challenges the increasingly prevalent idea that since September 11, 2001, we have moved into a state of permanent emergency and an abandonment of the rule of law. The article questions this idea, showing that historical developments in the twentieth century have actually placed emergency powers at the heart of the rule of law as a means of administering capitalist modernity. This suggests we need to rethink our understanding of the role of emergency measures in the “war on terror” and, more generally, to reconsider the relationship between the rule of law and violence.

4. The Royal Prerogative

2021 ◽  
pp. 76-102
Author(s):  
Ian Loveland
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
Judicial Review ◽  
Civil Service ◽  
The Rule Of Law ◽  
Rigorous Approach ◽  
House Of Lords ◽  
The Relationship

This chapter considers the evolving constitutional status of the royal prerogative in the courts during the twentieth century. The discussions cover the relationship between statute, the prerogative, and the rule of law; the traditional perspective on judicial review of prerogative powers and the rejection of that traditional perspective in the House of Lords’ judgment in Council of Civil Service Unions v Minister for the Civil Service (GCHQ). The chapter continues by analysing the ways in which the new organising principle of ‘justiciability’ which emerged in the GCHQ judgment in the 1980s has since been applied in several leading cases, and suggests that in recent years the courts have adopted an increasingly rigorous approach to the supervision of governmental actions claimed to be taken under prerogative powers.

scholarly journals RELEVANSI HAM DALAM PERSPEKTIF HUKUM DI INDONESIA

2021 ◽  
Vol 8 (1) ◽  
pp. 40-48
Author(s):  
Rizkyana Tri Nandini ◽  
Anita Trisiana ◽  
Dina Yeti Utami
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal Protection ◽  
Fundamental Rights ◽  
Human Rights Law ◽  
The Rule Of Law ◽  
Show Evidence ◽  
Descriptive Approach ◽  
The Law ◽  
The Relationship

ABSTRAKHak Asasi Manusia adalah suatu hak fundemental  yang dimiliki manusia yang merekat pada seseorang dari lahir, HAM tersebut juga tidak dapat dirampas dan dicabut keberadaannya selain itu untuk kehormatan, HAM juga harus dihargai, dipelihara, dan dijaga oleh negara, hukum, pemerintah dan semua orang. Hubungan antara HAM dan negara hukum sangat erat dan saling berhubungan serta tidak dapat dipisahkan karena suatu hukum berfungsi untuk melindungi hak asasi manusia itu, selain itu semua perilaku manusia disuatu negara selalu berdasarkan hukum. Semua hak terikat oleh hukum dan ada bukti bahwa hukum yang mengikatnya. Sebagai warga negara kita harus mengetahui pentingnya hubungan HAM dengan hukum yang mengatur agar dapat terhindar dari pelanggaran HAM. Metode yang diterapkan yaitu metode penelitian kualitatif dengan pendekatan deskriptif. Hasil dari penelitian ini menunjukan bukti bahwa hukum sangat berpengaruh dan penting dalam penegakan HAM, hal ini karena hukum sebagai penunjang dan mengikat setiap orang serta memberikan sanksi bagi yang melanggarnya, sehingga adanya hubungan antara rule of law dengan HAM sangat jelas. Setiap individu membutuhkan hak asasinya dengan adanya kepastian hukum. Di dalam hukum terhadapat pengaturan tentang hak, dan dalam hak manusia tertulis perlindungan hukumnya. Jadi hubungan keduannya berhubungan satu sama lain dan saling melengkapi. Untuk itu, kita harus memahami relevansi HAM dan hukum agar kita juga dapat terhindar dari pelanggaran HAM.Kata Kunci : Hak Asasi Manusia, Hukum, IndonesiaABSTRACTHuman rights are fundamental rights that are owned by humans which are inherent in someone from birth. Human rights cannot be deprived and deprived of their existence. Besides that, for honor, human rights must also be respected, maintained and guarded by the state, law, government and everyone The relationship between human rights and the rule of law is very close and interconnected and cannot be separated because a law functions to protect human rights, besides that all human behavior in a country is always based on law. All rights are bound by law and there is evidence that the law is binding. As citizens, we must know the importance of the relationship between human rights and laws that regulate human rights violations to be avoided. The method applied is a qualitative research method with a descriptive approach. The results of this study show evidence that law is very influential and important in upholding human rights, this is because the law supports and binds everyone and imposes sanctions for those who break it, so that the relationship between rule of law and human rights is very clear. Every individual needs their basic rights with legal certainty. In the law there are regulations regarding rights, and in human rights written legal protection. So the relationship between the two is related to each other and complementary. For that, we must understand the relevance of human rights and the law so that we can also avoid human rights violations.Keywords: Human Rights, Law, Indonesia

Mondialisation et état de droit: quelques réflexions sur la normativité technologique

1997 ◽  
Vol 34 ◽  
pp. 233-248
Author(s):  
Katia Boustany ◽  
François Crépeau ◽  
Pierre Mackay ◽  
Daniel Mockle
Keyword(s):  
Rule Of Law ◽  
Self Regulation ◽  
Legal Order ◽  
Fundamental Rights ◽  
Soft Law ◽  
The Rule Of Law ◽  
Normative Framework ◽  
International Legal Order ◽  
The Relationship

SummaryThe progressive withdrawal of the state from the role of “economic agent” has had an impact upon its function of regulator. Therefore, norms production was transferred to international and national bodies favouring more non-binding normative settings (soft law) and self-regulation. This is clearly the case of the normative framework applying to technologies. As a result, the relationship between the international legal order and national legal order bears significant modifications, and fundamental rights of citizens may also be affected within democracies based on the rule of Law.

The Village Courts in Bangladesh

2017 ◽  
Author(s):  
Tobias Berger
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
Colonial Administration ◽  
The Rule Of Law ◽  
Complex Processes ◽  
Local Institution ◽  
International Donor ◽  
Donor Agencies ◽  
Historical Trajectory ◽  
The Village

This chapter embeds contemporary translations of ‘the rule of law’ in their historical trajectory. It reveals how the introduction of village courts by the colonial administration at the dawn of the twentieth century and current efforts by international donor agencies to activate these village courts follow strikingly similar logics. The village courts are therefore neither an exclusively global imposition nor an ostensibly local institution; instead, they have emerged in complex processes of translation in which the global and the local have become inseparably intertwined. Having reconstructed this historical trajectory, the chapter also provides a brief overview of Bangladesh’s recent political history and maps the country’s contemporary legal landscape.

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