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.

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.

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 Contributions of the Brazilian Act for the Protection of Personal Data for treating Digital Legacy

2021 ◽  
Vol 12 (1) ◽  
pp. 112-124
Author(s):  
Flávia R. Beppu ◽  
Cristiano Maciel ◽  
José Viterbo
Keyword(s):  
Literature Review ◽  
Legal System ◽  
Data Protection ◽  
Personal Data ◽  
Post Mortem ◽  
Internet Applications ◽  
Constitutional Order ◽  
Digital Assets

In this article, we analyze how the Brazilian Act for the Protection of Personal Data --- Lei Geral de Proteção de Dados Pessoais (LGPD) in Portuguese --- can contribute to handling some situations involving post-mortem digital legacy. For that purpose, we investigate some aspects of this act that can concur with the development of software and internet applications that cope with users’ digital assets. We analyzed the role of LGPD in the Brazilian legal system. The research was carried out based on a literature review and on the analysis of the relevant legislation and some bills proposed to regulate the matter. In line with the national constitutional order, the results point to the possibility of applying the principles and foundations of the data protection act as an axiological matrix for the treatment of the existing digital legacy.

scholarly journals Dimensions of precedent: a methodology to understand the doctrine of precedent

Perspectivas ◽  
2020 ◽  
Vol 11 (1) ◽  
pp. 75-107
Author(s):  
Florencia S. Ratti Mendaña ◽  
Keyword(s):  
Comparative Analysis ◽  
Conceptual Framework ◽  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
Adequate Understanding

This article evidences multiple ways in which judicial precedent is used in different legal systems. It shows that: a) precedent is currently used, one way or another, in every legal system but its use differs in each legal system and frequently it is used differently even between courts of the same legal system; b) a comparative analysis under the methodology hereby proposed would provide useful tools in order to address how to “treat like cases alike”. The main aim of this research is to set the conceptual framework for an adequate understanding and study of the doctrine of precedent. To do this, some dimensions of the doctrine of precedent will be added to those enumerated by Michele Taruffo and analyzed not only theoretically, but also under concrete examples of how they work in different legal systems —both of common law and civil law.

scholarly journals Critique of the Classical Theory of Education Crisis

2021 ◽  
Vol 29 (3) ◽  
pp. 19-67
Author(s):  
Glenn Rikowski
Keyword(s):  
Classical Theory ◽  
Second World War ◽  
Contemporary Society ◽  
World War ◽  
Economic Crises ◽  
Default Theory ◽  
Theory Of Education ◽  
Education Crisis ◽  
Second World

The Classical Theory of Education Crisis is the default theory utilised by educational theorists for understanding the constitution and explanation of education crises in contemporary society. Following a brief outline of the concept of crisis, and the histiography of the notion of education crisis from the Second World War to the neoliberal recession of 1980-82, there is an outline of The Classical Theory of Education Crisis as most fully expressed in Madan Sarup’s classic Education, State and Crisis: A Marxist Perspective (1982). The key aspect of the Classical Theory is that education crises are derivative of economic crises. This is followed by the main event: critique of the Classical Theory. Its reliance on structuralist thought (with associated determinism, functionalism and reductionism) and the inflow of economics imperialism are some of its key deficiencies. The Conclusion outlines ground still to be covered and the need to move beyond the Classical Theory of Education Crisis.

Machiavelli on the Plebeian Power to Create and Punish

2020 ◽  
pp. 125-143
Author(s):  
Camila Vergara
Keyword(s):  
Democratic Theory ◽  
Institutional Design ◽  
Political Power ◽  
Socioeconomic Inequalities ◽  
Constituent Power ◽  
Basic Principles ◽  
Constitutional Order ◽  
Its Analysis ◽  
Constitutional Thought ◽  
Free Government

This chapter begins by presenting Niccolò Machiavelli's constitutional thought as the foundation of a type of constitutionalism that is material in its analysis of law and procedures, and anti-oligarchic in its institutional design. It recognizes the influence that socioeconomic inequalities exert over political power, in which Machiavelli embraces conflict as the effective cause of free government and strives to empower and channel emancipatory, plebeian energies through the constitutional order. It also focuses on Machiavelli's most important contribution to materialist constitutionalism: the plebeian nature of constituent power. The chapter contends that the constituent power in Machiavelli serves not as a bridge between basic principles and politics, but rather as the power exerted to resist oppression and establish plebeian and anti-oligarchic institutions. It looks at the democratic theory on the constituent power that has been conceived as the autopoietic power of the community.

Back to Rousseau

2020 ◽  
pp. 29-55
Author(s):  
Joel Colón-Ríos
Keyword(s):  
Legal System ◽  
Direct Democracy ◽  
Close Reading ◽  
Constituent Power ◽  
Form Of Government ◽  
The Government ◽  
Practical Implications

This chapter provides an overview of what should be understood as one of the most sophisticated analyses of the distinction between constituent and constituted authority, that of Rousseau. It engages in a close reading of Rousseau’s work and considers the ways in which it anticipated and served as the basis for Sieyès’ famous theory. Rousseau has not generally been seen as a theorist of constituent power. This is probably a result of his apparent support of direct democracy: in a direct democracy, there is no separation between the government and the governed and, therefore, no separation between the constituted powers and the constituent subject. But Rousseau, the chapter shows, clearly rejected direct democracy as a form of government: he only insisted in the direct intervention of the citizenry for the ratification of the ‘laws’. The problem with most contemporary interpretations of Rousseau is that they attribute to his use of the term ‘law’ the same meaning that that term has today: an ordinary statute adopted by a representative body. But Rousseau used the term ‘law’ to refer to the fundamental norms of the legal system, norms that only an assembly of the entire people or a multiplicity of primary assemblies, the constituent subject, could legitimately adopt. The chapter also considers the practical implications of Rousseau’s approach, such as primary assemblies with the authority to issue legally binding instructions.

The function of moral norms in the legal system: The Krausists’s restoration of the fundamental concepts of law

Human Affairs ◽  
2011 ◽  
Vol 21 (1) ◽  
Author(s):  
Delia Manzanero ◽  
José Vázquez Romero
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
Natural Law ◽  
Balance Of Power ◽  
Civil Servants ◽  
Moral Action ◽  
Contemporary Society ◽  
Moral Norms ◽  
Philosophy Of Law ◽  
Theory Of Law

AbstractThere are multiple and diverse voices of jurists who have expressed their fear of the unrestricted power of law enforcement and have announced the crisis of the formalist sense of Law. The widespread reaction against the abstract and formalist character of the positivist theory of law manifested itself as the Krausist philosophy of law and was backed by the philosophy of Krause, Schelling, Hegel and the most recent Natural Law theories that seek to establish substantial criteria for moral action. This distrust was caused by the heteronomy of modest and obedient civil servants of the judicial order that rely on political balance of power in which nothing depends on the human bottom of institutions. Let us consider briefly the impressive analyses performed by different thinkers on this issue, which they considered characteristic of their era, but that continues to constitute a difficulty that challenges contemporary society.

scholarly journals Legitimacy of Power and Constitutional Continuity

2020 ◽  
Vol 15 (3) ◽  
pp. 89-95
Author(s):  
S. V. Kabyshev
Keyword(s):  
Legal System ◽  
Historical Development ◽  
Constitutional Order ◽  
Legal Traditions ◽  
The Stability ◽  
Constitutional Identity

The paper analyzes the views of Prof. Ekaterina I. Kozlova concerning the lost values of the procedures institutionalizing the Russian Parliament, the risks of inconsistent implementation of mechanisms of recognition of powers of elected deputies of legislatures, peculiarities of procedures under consideration in other countries. The author has determined the mechanisms of ensuring legitimacy of power. The paper provides arguments in favour of preserving legal traditions, customs and rituals to ensure the stability of the constitutional order. The hypothesis has been put forward that constitutional identity and continuity of historical development are covered by the concept of constitutional continuity. It is concluded that the study of the constitutional continuum as a concept reflecting the natural relations between different conditions of the constitutional order can contribute to the ensuring of the legitimacy of the power and finding the best ways of transforming the constitutional and legal system.

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