scholarly journals Introduction: The C Word

2014 ◽  
Author(s):  
Hirschl Ran
Keyword(s):  
Intellectual History ◽  
Constitutional Law ◽  
Constitutive Laws ◽  
Legal Scholarship ◽  
Comparative Aspect ◽  
Comparative Constitutional Law ◽  
Constitutional Jurisprudence ◽  
Constitution Making

From its beginnings as a relatively obscure and exotic subject studied by a devoted few, comparative constitutionalism has developed into one of the more fashionable subjects in contemporary legal scholarship, and has become a cornerstone of constitutional jurisprudence and constitution-making in an increasing number of countries worldwide. Despite this tremendous renaissance, the “comparative” aspect of comparative constitutional law, as a method and a project, remains blurry and under-theorized. The introduction sets out the main arguments and structure of the book. The intellectual history and analytical underpinnings of comparative constitutional inquiry are charted and the various types, aims, and methodologies of engagement with the constitutive laws of others through the ages are probed. The introduction also surveys in a nutshell arguments developed in the book as to how and why comparative constitutional inquiry has been, and perhaps ought to be more extensively, pursued by academics and jurists worldwide.

Comparative Matters

2014 ◽  
Author(s):  
Hirschl Ran
Keyword(s):  
Intellectual History ◽  
Constitutional Law ◽  
Interdisciplinary Approach ◽  
Constitutive Laws ◽  
Political Community ◽  
Comparative Aspect ◽  
The Social ◽  
History Of ◽  
Constitutional Thought ◽  
Constitutional Adjudication

Comparative study has emerged as the new frontier of constitutional law scholarship as well as an important aspect of constitutional adjudication. Increasingly, jurists, scholars, and constitution drafters worldwide accept that “we are all comparativists now.” And yet, despite this tremendous renaissance, the “comparative” aspect, as a method and a project, remains under-theorized and blurry. Fundamental questions concerning the very meaning and purpose of comparative constitutional inquiry, and how it is to be undertaken, are seldom asked, let alone answered. The author addresses this gap by charting the intellectual history of constitutional thought and the analytical underpinnings of comparative constitutional inquiry, probing the various types, aims, epistemology, and methodologies of engagement with the constitutive laws of others through the ages, and exploring how and why comparative constitutional inquiry has been and ought to be more extensively pursued by academics and jurists worldwide. Through extensive exploration of comparative constitutional endeavors past and present, near and far, the author shows how attitudes toward engagement with the constitutive laws of others reflect tensions between particularism and universalism as well as competing visions of who “we” are as a political community. Drawing on insights from social theory, religion, history, political science, and public law, the author argues for an interdisciplinary approach to the study of comparative constitutionalism that is methodologically and substantively preferable to merely doctrinal accounts. It is contended that the future of comparative constitutional studies lies in relaxing the sharp divide between constitutional law and the social sciences.

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.  

4 From Comparative Constitutional Law to Comparative Constitutional Studies

2014 ◽  
Author(s):  
Hirschl Ran
Keyword(s):  
Social Sciences ◽  
Constitutional Law ◽  
Real Life ◽  
Interdisciplinary Approach ◽  
Public Law ◽  
Constitutional Change ◽  
Disciplinary Boundaries ◽  
The Social ◽  
Comparative Constitutional Law ◽  
Constitutional Jurisprudence

The chapter argues for an interdisciplinary approach to comparative constitutional inquiry that is methodologically and substantively preferable to doctrinal accounts. It suggests that for historical, analytical, and methodological reasons, maintaining the disciplinary divide between comparative constitutional law and other closely related disciplines that study various aspects of the same constitutional phenomena, artificially and unnecessarily limits our horizons and restricts the questions asked as well as the answers provided. Traditional disciplinary boundaries, both substantive and methodological, between comparative (public) law and the social sciences continue to impede the development of comparative constitutional studies as an ambitious, coherent, and theoretically advanced area of inquiry. By engaging in a dialogue with the social sciences, and political science in particular, comparative constitutional inquiries would go beyond the traditional realms of judicial review to consider extrajudicial factors such as judicial behaviour, the origins of constitutional change, constitutional design, and the real-life effects of constitutional jurisprudence.

2 Early Engagements with the Constitutive Laws of Others: Lessons from Pre-Modern Religion Law

2014 ◽  
Author(s):  
Hirschl Ran
Keyword(s):  
Canon Law ◽  
Constitutional Law ◽  
Constitutive Laws ◽  
Jewish Law ◽  
Comparative Constitutional Law ◽  
Per Se ◽  
Convergence Trend

Many purportedly new debates in comparative constitutional law have early equivalents, some dating back over two millennia. The chapter examines pre-modern religion law and the birth of two concepts cardinal for understanding the philosophy of comparative constitutional studies of law and religion: acknowledgment of the legitimacy and integrity of the constitutive laws of others; and doctrinal innovation from a necessity-based or ideologically driven impulse to respond to or incorporate such laws. Pre-modern canon law and Jewish law suggest that engagement with the constitutive laws of others is much longer and thicker than the current convergence trend. Some of the concepts developed in religion-laden contexts in times long gone continue to be relevant for understanding contemporary constitutional reaction to external convergence pressures. Further examples illustrate that alongside inquisitiveness per se, instrumentalist factors matter greatly in explaining purportedly principled, doctrinal debates over openness toward, or rejection of, the constitutive laws of others.

scholarly journals Territory and Power in Constitutional Transitions

2019 ◽  
Keyword(s):  
Case Studies ◽  
Constitutional Law ◽  
Full Range ◽  
Political Mobilization ◽  
Constitutional Design ◽  
Comparative Constitutional Law ◽  
Territorial Politics ◽  
Salient Regions ◽  
Realist View ◽  
Constitution Making

This volume explores the full range of challenges that different kinds of territorial cleavages pose for Constitution-making processes and constitutional design. It provides seventeen case studies of countries going through periods of intense constitutional engagement in which the issue of how to deal with the politics of territory is important. It is unique in that its cases include the full gamut of types of territorial cleavages—small distinct territories, bi-communal countries, highly diverse countries with many politically salient regions, and countries where territorial politics is important but secondary to other bases for political mobilization. While the volume draws significant normative conclusions, it is based on a highly realist view of the implications not only of the territorial and other salient political cleavages in the country (the country’s “political geometry”) but also of the power-configurations that lead into periods of constitutional engagement, so that processes differ depending on whether the preceding politics has been peaceful or violent and whether a victor, military or political, has emerged or whether there is a stalemate or diffused political power. Its thematic chapters on Constitution-making processes and constitutional design, along with the final synthetic chapter, draw original conclusions from the comparative analysis of the case studies and relate these to the literature, both in political science and comparative constitutional law. There are clear lessons that should help practitioners in analyzing their own challenges in dealing with territorial cleavages as well as in considering possible approaches to constitution-making and constitutional design.

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’.

Constitutional rights, horizontality, and the Ugandan Constitution: An example of emerging norms and practices in Africa

2020 ◽  
Author(s):  
Danwood M Chirwa ◽  
Christopher Mbazira
Keyword(s):  
Human Rights ◽  
Constitutional Law ◽  
Common Law ◽  
Third Party ◽  
Constitutional Rights ◽  
African Countries ◽  
Comparative Constitutional Law ◽  
State Actors ◽  
Constitutional Jurisprudence ◽  
Practical Implications

Abstract The traditional view that only states have human rights obligations and, relatedly, that a constitution operates only vertically has been changing. In Uganda, as is the case in several other African countries, the Constitution expressly states that the rights and freedoms it recognizes must be respected, upheld, and promoted by all persons and organs of state, but the practical implications of this provision remain unexplored. So far, Ugandan courts have shown willingness to hold non-state actors directly responsible for violations of constitutional rights, although they are yet to use the language of horizontality expressly. Furthermore, Ugandan courts do not seem particularly troubled by the principle of subsidiarity which holds that statutory and common law remedies must be pursued first before recourse may be had to direct constitutional remedies. This has made it possible for litigants to bring direct constitutional suits against state and non-state actors in one action or to plead both constitutional provisions and statutory provisions, or direct and indirect horizontality, to enforce constitutional rights. This is a significant departure from the existing practice of constitutional horizontality in comparative constitutional law. In other respects, however, such as recognizing the duty to protect and applying the principle of third-party effect of constitutional rights, Uganda’s constitutional jurisprudence remains underdeveloped.

scholarly journals Negotiating Gender Rights and Gender Relations in the Constitutionmaking Process in Egypt: Towards a ‘Thick’ Constitutional Guarantee for Women’s Rights

1970 ◽  
pp. 43-54
Author(s):  
Naoko Kuwahara
Keyword(s):  
Constitutional Law ◽  
Gender Relations ◽  
Status Quo ◽  
Women's Issues ◽  
Japanese Experience ◽  
Comparative Constitutional Law ◽  
The Status ◽  
Gender Perspectives ◽  
And Gender ◽  
Constitution Making

The purpose of this article is to explore gender-sensitive constitution-making. I will examine the constitution-making process in Egypt, as well as the constitutions themselves, from comparative constitutional law and gender perspectives, and I will then include the Japanese experience. Constitutionalizing or legalizing women’s issues is one of the most controversial or challenging legal areas because women’s issues are often assumed to be matters deeply embedded in tradition or culture, and therefore, it has been held that changing the status-quo relating to women’s issues will erode the tradition or culture which should be protected.

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.

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