Montesquieu, Methodological Pluralism and Comparative Constitutional Law

2009 ◽  
Vol 5 (3) ◽  
pp. 481-500 ◽  
Author(s):  
Lorenzo Zucca
Keyword(s):  
Constitutional Law ◽  
Methodological Pluralism ◽  
Comparative Constitutional Law

Montesquieu's lessons for modern comparative constitutional law – The Spirit of the Laws – The textual bias of normative constitutionalism – The utility of other disciplines to comparative constitutional law – Constitutions as more than mere texts

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’.

Constituting Scotland

2016 ◽  
Author(s):  
W. Elliot Bulmer
Keyword(s):  
Constitutional Law ◽  
Constitutional Theory ◽  
Constitutional Design ◽  
Global Trends ◽  
National Movement ◽  
Comparative Constitutional Law ◽  
Constitutional Thought ◽  
Scottish Government ◽  
Historical Trajectory ◽  
Constitutional Tradition

The rise of the Scottish national movement has been accompanied by the emergence of distinct constitutional ideas, claims and arguments, which may affect constitutional design in any future independent Scotland. Drawing on the fields of constitutional theory, comparative constitutional law, and Scottish studies, this book examines the historical trajectory of the constitutional question in Scotland and analyses the influences and constraints on the constitutional imagination of the Scottish national movement, in terms of both the national and international contexts. It identifies an emerging Scottish nationalist constitutional tradition that is distinct from British constitutional orthodoxies but nevertheless corresponds to broad global trends in constitutional thought and design. Much of the book is devoted to the detailed exposition and comparative analysis of the draft constitution for an independent Scotland published by the SNP in 2002. The 2014 draft interim Constitution presented by the Scottish Government is also examined, and the two texts are contrasted to show the changing nature of the SNP’s constitutional policy: from liberal-procedural constitutionalism in pursuit of a more inclusive polity, to a more populist and majoritarian constitutionalism.

The judicial review of legality

2021 ◽  
Author(s):  
Natalie R. Davidson ◽  
Leora Bilsky
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
New Model ◽  
Substantive Content ◽  
Comparative Constitutional Law ◽  
Recent Developments ◽  
Relationship Of

In comparative constitutional law, the various models of judicial review require courts to examine either the substantive content of legislation or the procedure through which legislation was passed. This article offers a new model of judicial review – ‘the judicial review of legality’ – in which courts review instead the forms of law. The forms of law are the ways in which law communicates its norms to the persons who are meant to comply with them, and they include generality, clarity, avoidance of contradiction, and non-retroactivity. Drawing on recent writing on the jurisprudence of Lon Fuller, this article argues that Fuller’s linking of the forms of law to a relationship of reciprocity between government and governed can ground judicial review and that such review provides a missing language to address important legislative pathologies. Moreover, through an analysis of recent developments in Israel, the article demonstrates that the judicial review of legality targets some of the key legal techniques of contemporary processes of democratic erosion which other models of judicial review struggle to address, all the while re-centring judicial review on the lawyer’s craftsmanship and thus reducing problems of court legitimacy. This article therefore offers a distinctive and normatively appealing way for courts to act in troubling times.

scholarly journals Public Participation in African Constitutionalism

2019 ◽  
Vol 22 ◽  
pp. 1-7
Author(s):  
Werner Menski
Keyword(s):  
Public Participation ◽  
Constitutional Law ◽  
Fine Tuning ◽  
Comparative Constitutional Law ◽  
Responsible Governance ◽  
Constitution Making

This review explores why public participation in constitution-making matters for cultivating responsible governance and for fine-tuning justice, focused on immensely rich African evidence within a broader comparative constitutional law context.  

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.

How (Not) to Compare?: Not Being Inside, Nor Outside

Global Jurist ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Gürkan Çapar
Keyword(s):  
Interaction Effect ◽  
Constitutional Law ◽  
Comparative Law ◽  
Legal Philosophy ◽  
Constitutional Amendment ◽  
Discursive Analysis ◽  
Comparative Constitutional Law ◽  
New Methodologies ◽  
Points Of View

Abstract Despite the clear clue given by Kim L. Scheppele as to the shortcomings of governance checklists, it is surprising that comparative constitutional lawyers have not yet followed it up. In fact, what Scheppele hinted at is that the methodologies we have used so far fall short of detecting the interaction effect of the particular components; this is why we need new methodologies and new ways of seeing. To address this, this article will incorporate some tools, having already taken hold in legal philosophy, into the methods discussions in comparative constitutional law in particular and comparative law in general. Upon benefiting from the distinction between internal and external points of view and showing how hermeneutical one differs from the others, the article will make a discursive analysis of the 2010 constitutional amendment in Turkey through the lenses of these three points of view.

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