Contemporary constitutionalism and the dialectic of constituent power

2012 ◽  
Vol 1 (3) ◽  
pp. 369-404 ◽  
Author(s):  
CHRIS THORNHILL
Keyword(s):  
Constitutional Law ◽  
Political System ◽  
Political Agency ◽  
The Political ◽  
Constitutional Rights ◽  
Contemporary Society ◽  
Constituent Power ◽  
Constitutional Order ◽  
The Common ◽  
Common Perception

AbstractThis article examines the changing status of constituent power in contemporary constitutionalism. It considers how, at face value, contemporary constitutional law reflects a post-constituent constitutional order, which is defined by a rupture with classical constitutional principles, such that the extra-legal source of constitutional order is diminished. However, it argues that the common perception of a decline in constituent power in constitutional norm construction is marked by an excessively literalistic understanding of the origins of constitutional norms and practices. As an alternative, drawing on systems-theoretical methodologies, the article proposes a functionalist, sociologically attuned reconstruction of the historical content of constitutional concepts, including the concept of constituent power. Through this perspective, it explains that constituent power, in conjunction with constitutional rights, always acted, not as an externally founding source of political agency, but as an inner projection of the political system, which served the internal organization of the political system as a distinct societal domain. The article concludes that the transnational constitutional models which are widespread in contemporary society, far from negating constituent power, re-articulate its primary functions, and they realize potentials for preserving the autonomy of the political system which constituent power always contained.

Collective Identity in National Anthems

2019 ◽  
pp. 45-64
Author(s):  
Hesham Mesbah
Keyword(s):  
National Identity ◽  
Thematic Analysis ◽  
Collective Identity ◽  
Political System ◽  
Arab Countries ◽  
The Other ◽  
The Political ◽  
Political Leaders ◽  
National Symbols ◽  
The Common

This chapter explores how national anthems of African and non-African Arab nations reflect a collective national identity. The national anthems of 22 Arab countries were analyzed using the textual thematic analysis to identify the common attributes of national identity in these anthems and the variance in referring to political entities, national symbols, and natural artifacts according to the political system (republic vs. monarchy) in the country. The analysis shows five thematic components of the national identity presented by those anthems, with an emphasis on the themes of religion and local political leaders in the anthems of monarchies. On the other hand, republics base their identity on religion, history, and nation-related natural and national artifacts. The anthems of the republics show a higher level of complexity (thematic richness) and more tendency to use emotionally charged, forceful language, in contrast to the anthems of the monarchies.

Empire without Sovereignty

2021 ◽  
pp. 25-71
Author(s):  
David Todd
Keyword(s):  
Nineteenth Century ◽  
Political Economy ◽  
Free Trade ◽  
The Political ◽  
Territorial Expansion ◽  
Global Consciousness ◽  
Intellectual Origins ◽  
The Common ◽  
Common Perception ◽  
Informal Imperialism

This chapter investigates the political economy of French informal imperialism, revealing a little-known facet of the intellectual origins of globalization, and confirming that the pursuit of empire and the emergence of global consciousness were inextricably linked. It highlights lesser known thinkers, which helps recover what the prevailing attitudes of the informed liberal-leaning public towards empire actually were. After 1815, once the word “liberal” entered the political lexicon, Charles-Maurice de Talleyrand, the Abbé Dominique de Pradt, and Michel Chevalier described themselves as liberals — with some justification, since they admired Britain's balanced constitution and were stalwart advocates of free trade. Recovering their views on empire therefore helps to suggest that French liberals did not become imperialistic in the mid-nineteenth century, but instead consistently harboured imperial ambitions, even if, for pragmatic reasons, they tended to shun territorial expansion after 1815. Focusing on these neglected but influential figures also helps correct the common perception of France as having withdrawn from the international stage after the fall of Napoleon.

scholarly journals The global legal system and the procedural construction of constituent power

2016 ◽  
Vol 5 (3) ◽  
pp. 405-442
Author(s):  
CHRIS THORNHILL
Keyword(s):  
Classical Theory ◽  
Legal System ◽  
Contemporary Society ◽  
Constituent Power ◽  
Constitutional Order ◽  
Adequate Understanding

Abstract:This article proposes an alternative to more standard, neoclassical theories concerned with the proceduralisation of constituent power. It argues that more established theories of proceduralisation are insufficiently aligned to the sociological realities in which constituent power is located and expressed, and their residual fixation on the premises of classical constitutionalism impedes adequate understanding of constituent power in the global constitutional order of contemporary society. On this basis, the article offers a sociological examination of constituent power, which attempts to grasp constituent power in its objectively existing procedural form. In particular, it claims that constituent power now exists as an inner-legal function, activated through procedures within an increasingly differentiated legal system: whereas in classical theory constituent power was a primary political source of constitutional norms, it now appears only as a secondary expression of norms already contained within the global legal system. Rather than renouncing the idea of constituent power, however, the article uses its sociological focus to observe new procedural openings for the activation of constituent agency, adapted to the material/sociological fabric of contemporary society.

Social Imperialism and Wilhelmine Germany

1979 ◽  
Vol 22 (2) ◽  
pp. 331-349 ◽  
Author(s):  
Ian L. D. Forbes
Keyword(s):  
Political System ◽  
Status Quo ◽  
Domestic Policy ◽  
The Political ◽  
Social Democrat ◽  
The Social ◽  
The Status ◽  
The Common ◽  
The Impact ◽  
Interpretive Scheme

In recent times the historiography of the Wilhelmine Reich has clearly reflected the influence of Eckart Kehr and of later historians who have adopted and developed his work. The Rankean dogma of the Primat der Aussenpolitik (primacy of foreign policy) has been replaced by a new slogan, Primat der Innenpolitik (primacy of domestic policy). The resultant interpretive scheme is by now quite familiar. The social structure of the Bismarckean Reich, it is said, was shaken to its foundations by the impact of industrialization. A growing class of industrialists sought to break the power of the feudal agrarian class, and a rapidly developing proletariat threatened to upset the status quo. The internecine struggle between industrialists and agrarians was dangerous for both and for the state, since the final beneficiary might be the proletariat. Consequently agrarians and industrialists closed their ranks against the common social democrat enemy and sought to tame the proletariat, which had grown restive under the impact of the depression, by means of a Weltpolitik which would obviate the effects of the depression, heal the economy, and vindicate the political system responsible for such impressive achievements. Hans-Ulrich Wehler and others call this diversionary strategy against the proletarian threat social imperialism; and this, it is said, is the domestic policy primarily responsible for Wilhelmine imperialism.

The Child'S Acquisition of Regime Norms: Political Efficacy

1967 ◽  
Vol 61 (1) ◽  
pp. 25-38 ◽  
Author(s):  
David Easton ◽  
Jack Dennis
Keyword(s):  
Political System ◽  
Political Process ◽  
Political Efficacy ◽  
Political Regime ◽  
The Political ◽  
Minimal Level ◽  
Constitutional Order ◽  
Political Interaction ◽  
General Goals ◽  
Minimal Constraints

In its broadest conception, a political system is a means through which the wants of the members of a society are converted into binding decisions. To sustain a conversion process of this sort a society must provide a relatively stable context for political interaction, a set of ground rules for participating in all parts of the political process. We may describe this context variously as a constitutional order, a set of fundamental rules, or customary procedures for settling differences. But however this context is defined, it usually includes three elements: some minimal constraints on the general goals of its members, rules or norms governing behavior, and structures of authority through which the members of the system act in making and implementing political outputs. To these goals, norms and structures we may give the traditional name “political regime” or constitutional order in the broadest, nonlegal sense of the phrase.We may hypothesize that if a political system is to persist, one of its major tasks is to provide for the input of at least a minimal level of support for a regime of some kind. A political system that proved unable to sustain a regime, that is, some relatively ordered and stable way of converting inputs into outputs, could not avoid collapsing. Each time a dispute arose it would have to seek to agree on means for settling differences at the same time as it sought to bring about a settlement of the substance of the issue, a virtually impossible combination of tasks for a society to engage in continuously.

Civil disobedience and constituent power

2015 ◽  
Vol 11 (4) ◽  
pp. 462-480
Author(s):  
Richard Nobles ◽  
David Schiff
Keyword(s):  
Legal System ◽  
Political System ◽  
Civil Disobedience ◽  
The Political ◽  
Constituent Power ◽  
Structural Coupling ◽  
Current Configuration ◽  
Law And Politics ◽  
Discretionary Powers ◽  
Legal Right

AbstractThis paper uses the example of civil disobedience to explore Luhmann's description of the constitution as structural coupling between law and politics. Civil disobedience highlights the paradox of constituent and constituted power. The claims made for constituent power provide a basis for challenging the current configuration and expression of constituted power. This paradox is first avoided in the legal system through that system's inability to recognise a legal right to disobey law. In turn, a political system that has, under conditions of modernity, increasingly second coded power as legality, has an ever decreasing capacity to include communications that acknowledge a right to disobey law. Civil disobedience is only able to operate within the political system in the form of protest, and is accommodated through the exercise of discretionary powers. However, juridification of those powers has the capacity to threaten this accommodation.

scholarly journals Pesca artesanal, patrimonio cultural y educación social.

2020 ◽  
pp. 11-32
Author(s):  
Gabriel López-Martínez ◽  
Pilar Espeso-Molinero
Keyword(s):  
Traditional Knowledge ◽  
Structural Changes ◽  
The Political ◽  
Contemporary Society ◽  
Artisanal Fishing ◽  
Anthropological Study ◽  
Fisheries Policy ◽  
The Common ◽  
New Challenges ◽  
Secondary Information

En los últimos años, las comunidades europeas de pescadores han sufrido cambios estructurales importantes derivados de las distintas reformas de la Política de Pesca Común (PPC). Los instrumentos aplicados han provocado una transformación en este sector, afectando de manera significativa a las pequeñas poblaciones de pescadores. En este contexto, el estudio antropológico se presenta como una herramienta de gran valor para comprender las respuestas de individuos y comunidades a los nuevos retos. El presente trabajo, basado en información primaria y secundaria recogida en la Región de Murcia en la última década, explora algunas de estas respuestas. Los testimonios de los diferentes informantes muestran el debilitamiento de esta profesión como consecuencia de las herramientas políticas implementadas. La disminución del número de embarcaciones y de trabajadores independientes, unido a la falta de relevo generacional pone en riesgo el conocimiento tradicional de la pesca artesanal. Para reflexionar sobre el presente y el futuro de estas prácticas ancestrales, se exponen una serie de experiencias donde se presenta al pescador como intermediador o agente transmisor de conocimiento, vinculando el legado patrimonial a distintos sectores de la sociedad contemporánea. In recent years, European fishing communities have undergone major structural changes resulting from the different reforms of the Common Fisheries Policy (CFP). The instruments implemented have led to a transformation in this sector, affecting small fishing stocks. In this context, we present an anthropological study as a tool of great value to understand the responses of individuals and communities to new challenges. This work, based on primary and secondary information collected in the last decade in the Region of Murcia (Spain), explores some of these responses. The testimonies of the different informants show the weakening of this profession as a result of the political tools implemented. Decreasing number of boats and self-employed workers, coupled with a lack of generational replacement puts at risk traditional knowledge of artisanal fishing. To reflect on the present and future of these ancestral practices, a series of experiences are presented where the fisherman is revealed as an intermediator or transmitting agent of knowledge, linking the heritage legacy to different sectors of contemporary society.

scholarly journals Functions of constitutional and legal responsibility: problems of conceptualisations

2020 ◽  
pp. 100-104
Author(s):  
Nataliia Batanova
Keyword(s):  
Constitutional Law ◽  
Academic Discipline ◽  
The State ◽  
Legal Responsibility ◽  
Constitutional Rights ◽  
Constitutional Order ◽  
Object Composition ◽  
Characteristic Features ◽  
The One ◽  
Definition Of

The article considers the problems of the theory of functions of constitutional and legal responsibility. The characteristic features of the functions of constitutional and legal responsibility are analyzed. It substantiates the correlation and relationship between the functions of constitutional and legal responsibility and the functions of the Constitution, the functions of constitutional law, the functions of the state, etc. It is proved that the functions of constitutional and legal responsibility are characterized by legal features that reveal the essence and content of this category, in particular: 1) express the nature and content of this type of legal responsibility, its purpose in society and the state, as well as its place in the system of protection of the Constitution and constitutional order; 2) interrelated with the main functions of the state; 3) is an active way of acting of constitutional and legal responsibility and constitutional law as a whole (its principles, tasks, functions); 4) having an objective nature, on the one hand, is a form of purposeful willful behavior or activity of the subjects of constitutional liability and constitutional law in general (subjects of instances of constitutional responsibility and subjects of violators of constitutional law and order (delinquents)), and, on the other hand, the system of legal states that give rise to the constitutional rights and obligations of participants in constitutional-controversial and constitutional-conflict relations; 5) directly related to the system of constitutional law institutions (people, state, elections and referendums, bodies and officials of state power and local self-government, people and citizens, territorial hromadas, political parties, etc.); 6) are in synergy with the sources of constitutional law as a branch of law (above all the Constitution and its functions); 7) directly affect the constitutional and legal relations (first of all, constitutionally-controversial and constitutional-conflict) and their properties, subject-object composition, constitutional legal facts; 8)are organically related to the functions of constitutional law as a legal science and academic discipline and the like, etc. The definition of the concept of the functions of constitutional legal responsibility as the main normative and organizationally secured areas and types of its influence on the constitutional and legal relations with the purpose of protection of the Constitution, restoration of the constitutional order and proper fulfilment of tasks, functions and powers of the subjects of these relations, constitutional disputes between them and overcoming constitutional conflicts is formulated.

In Defense of “French Nonsense”

2019 ◽  
pp. 221-246
Author(s):  
Gerald J. Postema
Keyword(s):  
Rule Of Law ◽  
Political Rhetoric ◽  
Natural Rights ◽  
Alternative Conception ◽  
The Political ◽  
Constitutional Rights ◽  
Public Justification ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
Constitutional Adjudication

Buried beneath the intemperate rhetoric of Bentham’s attack on natural rights lies a serious challenge to the jurisprudence of rights in constitutional adjudication. The political rhetoric of rights, Bentham charged, is not the rhetoric of rational deliberation, but rather the rhetoric of mere assertion and counter-assertion. The language of rights supplies no determinate basis for deciding particular cases. However, Bentham saw clearly that indeterminacy threatens not objectivity—in the sense of a decision’s being ideally correct, or rationally preferred when seen “from nowhere”—but rather publicity. He argued that the indeterminacy of rights language weakens the rule of law, because it undermines conditions of genuine public justification. The language of rights provides no public standards for evaluating rights assertions. Bentham was correct to insist upon the importance of publicity in a democratic constitutional order. However, he mistakenly assumed that public justification is possible only if the demonstrability condition is met. In defense of constitutional rights jurisprudence, this chapter sketches an alternative conception of public justification and argues that public justification understood in this way is not threatened by indeterminacy.

Demoi-cratic Constituent Power

2020 ◽  
pp. 87-104
Author(s):  
Markus Patberg
Keyword(s):  
European Integration ◽  
Political System ◽  
Theoretical Framework ◽  
The Political ◽  
Constituent Power ◽  
Constitutional Politics ◽  
The Public ◽  
Cross Border ◽  
Political Communities ◽  
The Eu

This chapter turns to the public narrative of ‘We, the peoples of Europe’, according to which constituent power in the EU lies with the peoples of the member states, and asks to what extent it can be defended in systematic terms. In doing so, it draws on the political theory of demoi-cracy, which interprets the EU as a political system for the joint self-government of separate political communities. Building on the proposals of central demoi-cratic authors, the chapter discusses how the distinction between pouvoir constituant and pouvoir constitué could find a place in the theoretical framework of demoi-cracy. It then proceeds to assess the strengths and weaknesses of the resulting view. While the demoi-cratic model of constituent power is convincing in its claim that the national peoples must not be bypassed in EU constitutional politics, it fails to draw the necessary conclusion from the fact that European integration has brought about politically significant relations between the citizens of Europe—namely, that there is the need to enable the expression of cross-border cleavages.

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