Abusive Constitutional Borrowing

2021 ◽  
Author(s):  
Rosalind Dixon ◽  
David Landau
Keyword(s):  
Judicial Review ◽  
Liberal Democracy ◽  
Constitutional Law ◽  
Dark Side ◽  
Constitutional Rights ◽  
Constituent Power ◽  
Liberal Democratic ◽  
Comparative Constitutional Law ◽  
The World ◽  
Legal Globalization

We live in a golden age of comparative constitutional law. Liberal democratic ideas have diffused readily around the world, and certain features such as judicial review and constitutional rights are now nearly universal. At the same time, recent years have seen a pronounced trend toward the erosion of democracy. This book argues that the rhetorical triumph of liberal democratic constitutionalism, and the tendency toward democratic retrenchment, are fully consistent phenomena. Legal globalization has a dark side: norms intended to protect and promote liberal democratic constitutionalism can often readily be used to undermine it. Abusive constitutional borrowing involves the appropriation of liberal democratic constitutional designs, concepts, and doctrines to advance authoritarian projects. Some of the most important hallmarks of liberal democratic constitutionalism—including constitutional rights, judicial review, and constituent power—can be turned into powerful instruments to demolish rather than defend democracy. The book offers a wealth of examples, selected both to shed new light on well-known cases such as Hungary, Poland, and Venezuela, as well as to expand discussions by considering contexts such as Cambodia, Rwanda, and Fiji. It also discusses the implications of the phenomenon of abusive constitutional borrowing for those who study and promote liberal democracy and related fields like human rights. It suggests ways in which the construction of norms might be improved to protect against abuse (what we call ‘abuse-proofing’), as well as ways in which monitoring regimes might be more attuned to the threat. Finally, it suggests recasting debates about liberal democracy to emphasize contestation, rather than mimicry.

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.

Thirty years from Tiananmen: China, Hong Kong, and the ongoing experiment to preserve liberal values in an authoritarian state

2019 ◽  
Vol 17 (2) ◽  
pp. 439-452 ◽  
Author(s):  
Cora Chan
Keyword(s):  
Hong Kong ◽  
Cold War ◽  
Liberal Democracy ◽  
World History ◽  
Tiananmen Square ◽  
Authoritarian State ◽  
The Past ◽  
Liberal Democratic ◽  
The World ◽  
The Cold War

Abstract The 1989 Tiananmen Square Massacre marked China out as an exception in the chapter of world history that saw the fall of international communism. The massacre crystalized the mistrust between China and Hong Kong into an open ideological conflict—Leninist authoritarianism versus liberal democracy—that has colored relations between the two since then. This article tracks the hold that authoritarianism has gained over liberal values in Hong Kong in the past thirty years and reflects on what needs to be done in the next thirty years for the balance to be re-tilted and sustained beyond 2047, when China’s fifty-year commitment to preserving Hong Kong’s autonomy expires. Still surviving (just) as a largely liberal (though by no means fully democratic) jurisdiction after two decades of Chinese rule, Hong Kong is a testing ground for whether China can respect liberal values, how resilient such values are to the alternative authoritarian vision offered by an economic superpower, and the potential for establishing a liberal-democratic pocket within an authoritarian state. The territory’s everyday wrestle with Chinese pressures speaks to the liberal struggles against authoritarian challenges (in their various guises) that continue to plague the world thirty years after the end of the Cold War.​

From promise to retrenchment: On the changing landscape of Israeli constitutionalism

2020 ◽  
Author(s):  
Adam Shinar ◽  
Barak Medina ◽  
Gila Stopler
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Israeli Society ◽  
Individual Rights ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Comparative Constitutional Law ◽  
Constitutional Revolution

Abstract Israeli constitutionalism has long interested comparative constitutional law scholars, whether due to its geopolitical status, the Israeli–Palestinian conflict, its internal divisions, or its unique constitutional evolution. Unlike many other countries that have ratified constitutions after the Second World War, Israel was established as a parliamentary democracy, with an explicit intention to ratify a constitution at a later stage. This did not happen. Instead, it underwent a “constitutional revolution” announced by its Supreme Court. Fitting a revolution, much of comparative constitutional law scholarship has focused on this pivotal moment. The articles in this symposium depart from the scholarship focused on that moment. They seek to critically understand what has become of Israeli constitutionalism in the past decade. In this introduction, we highlight several transformations and features which we believe are essential if one is to understand the extant constitutional order in Israel. These should be understood as background conditions against which Israeli constitutionalism is operating. They include the strengthening of judicial review alongside rising political resistance to the Court’s power; populism in political discourse targeting rule of law institutions; the erosion of individual rights alongside the strengthening of nationalist elements; and increasing divisions inside Israeli society. These challenge the idea of a successful constitutional revolution in terms of its inherent promise to better protect individual rights and safeguard the rule of law. In describing these features, we seek to situate the Supreme Court, judicial review, and the legal-constitutional order generally, in the larger sphere of Israeli society and politics.

Comparative Constitutional Law

2019 ◽  
pp. 1192-1221 ◽  
Author(s):  
Mark Tushnet
Keyword(s):  
National Identity ◽  
Gender Equality ◽  
Judicial Review ◽  
Comparative Studies ◽  
Constitutional Law ◽  
Free Expression ◽  
National Differences ◽  
Comparative Constitutional Law ◽  
International Rights ◽  
And Gender

This article examines the evolution of the field of comparative constitutional law and its relationship to politics and international rights; constitutionalism; constitutional foundings and transformations; constitutional structures; structures of judicial review; generic constitutional law; and national identity. Innumerable comparative studies address the ways in which different constitutions and constitutional systems deal with specific topics, such as privacy, free expression, and gender equality. However valuable such studies have been in bringing information about other constitutional systems to the attention of scholars versed in their own systems, their analytic payoff is sometimes questionable. Scholarship in comparative constitutional law is perhaps too often insufficiently sensitive to national differences that generate differences in domestic constitutional law. Or, put another way, that scholarship may too often rest on an implicit but insufficiently defended preference for the universalist approach to comparative legal study over the particularist one.

Comparative Constitutional Law

2006 ◽  
pp. 1224-1258 ◽  
Author(s):  
Mark Tushnet
Keyword(s):  
National Identity ◽  
Gender Equality ◽  
Judicial Review ◽  
Comparative Studies ◽  
Constitutional Law ◽  
Free Expression ◽  
National Differences ◽  
Comparative Constitutional Law ◽  
International Rights ◽  
And Gender

This article examines the evolution of the field of comparative constitutional law and its relationship to politics and international rights; constitutionalism; constitutional foundings and transformations; constitutional structures; structures of judicial review; generic constitutional law; and national identity. Innumerable comparative studies address the ways in which different constitutions and constitutional systems deal with specific topics, such as privacy, free expression, and gender equality. However valuable such studies have been in bringing information about other constitutional systems to the attention of scholars versed in their own systems, their analytic payoff is sometimes questionable. Scholarship in comparative constitutional law is perhaps too often insufficiently sensitive to national differences that generate differences in domestic constitutional law. Or, put another way, that scholarship may too often rest on an implicit but insufficiently defended preference for the universalist approach to comparative legal study over the particularist one.

scholarly journals Prospect of Judicial Preview in the Constitutional Court Based on the Construction of Constitutional Law

2020 ◽  
Vol 8 (3) ◽  
Author(s):  
Diya Ul Akmal ◽  
Fatkhul Muin ◽  
Pipih Ludia Karsa
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Preventive Measure ◽  
State Institution ◽  
The State ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Legislative Body ◽  
Law Making

AbstractThe Constitutional Court is a state institution that has the authority to reviewing laws against the Constitution (Judicial Review). Several times in issuing its decisions, the Constitutional Court has acted as a Positive Legislator. The potential for a legal vacuum as the implication of revoking a law is large. and also the slow formation of laws by the legislative body (DPR) and the lack of quality of regulations. The current law making does not pay attention to legal ideals based on Pancasila so that the resulting legal products lose their meaning. This has resulted in many people whose constitutional rights have been violated. The state should be present to give full constitutional rights to its citizens. The Constitutional Court needs an additional authority to maintain the supremacy of the constitution. additional authority as a preventive mechanism is Judicial Preview. The French state places Judicial Preview as an authority of the Constitutional Council. Austria and Germany apply Judicial Preview as a preventive measure for losses that can occur if the Draft Law is passed. A renewal of the Constitutional Law to perfect existing ones makes the prospect of Judicial Preview in Indonesia an Urgency for immediate implementation.Keywords: Constitutional Court, Authority, Judicial Preview AbstrakMahkamah Konstitusi merupakan lembaga negara yang memiliki kewenangan pengujian Undang-Undang terhadap Undang-Undang Dasar (Judicial Review). Dalam mengeluarkan putusannya Mahkamah Konstitusi beberapa kali bertindak sebagai Positif Legislator. Potensi terjadinya kekosongan hukum sebagai implikasi dicabutnya suatu Undang-Undang sangatlah besar. Ditambah dengan lambatnya pembentukan Undang-Undang oleh lembaga legislatif (DPR) serta kualitas peraturan yang kurang. Pembuatan Undang-Undang saat ini tidak memperhatikan cita hukum yang berakar pada Pancasila sehingga produk hukum yang dihasilkan kehilangan maknanya. Hal ini mengakibatkan banyak masyarakat yang dilanggar hak konstitusionalnya. Negara seharusnya hadir untuk memberikan hak konstitusional secara penuh kepada warga negaranya. Untuk mencegah hal tersebut maka Mahkamah Konstitusi membutuhkan suatu kewenangan tambahan untuk menjaga tegaknya supremasi konstitusi. Kewenangan tambahan sebagai mekanisme preventif tersebut berupa Pengujian Rancangan Undang-Undang (Judicial Preview). Perancis menempatkan Judicial Preview sebagai kewenangan dari Constitutional Council. Austria dan Jerman juga memberlakukannya sebagai tindakan pencegahan. Pembangunan Hukum Konstitusi untuk menyempurnakan yang sudah ada menjadikan prospek Pengujian Rancangan Undang-Undang di Indonesia menjadi urgensi untuk segera diterapkan.Kata Kunci: Mahkamah Konstitusi, Kewenangan, Judicial Preview

Semi-Presidentialism

2020 ◽  
pp. 314-338
Author(s):  
Sophie Boyron
Keyword(s):  
Comparative Politics ◽  
Early Identification ◽  
Constitutional Law ◽  
Regime Type ◽  
Fifth Republic ◽  
Comparative Constitutional Law ◽  
The World ◽  
Presidential Regimes

This chapter discusses semi-presidentialism, a relative newcomer to the disciplines of both comparative constitutional law and comparative politics. It first retraces the early transformation of the regime of the French Fifth Republic from parliamentary to semi-presidential regime. Secondly, the chapter analyses the early identification of this regime type and the difficulties encountered in defining it. The attempts to assess this regime are then examined. Afterwards, the chapter sketches the migration of semi-presidentialism around the world so as to understand its present spread. Finally, it suggests broadening the basis for the classification of semi-presidential regimes by highlighting the key role played by institutions other than the executive and legislature.

scholarly journals Funciones secundarias de la Corte Constitucional colombiana: una aproximación a la decisión sobre excusas a los emplazamientos cursados por el Congreso // Colombian Constitutional Court’s ancillary powers: an approa ch to its decisions regarding refusal to attend congress’ hearings

2018 ◽  
Vol 1 (102) ◽  
pp. 373
Author(s):  
Rodrigo González Quintero ◽  
Luis Javier Moreno Ortiz
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Comparative Law ◽  
Case Law ◽  
Judicial Power ◽  
Review System ◽  
Control Functions ◽  
Constituent Assembly ◽  
Comparative Constitutional Law

Resumen:Este artículo se centra en la poco explorada cuestión las competencias secundarias de la Corte Constitucional colombiana, en especial sobre la competencia de decidir sobre las excusas a los emplazamientos que hace el Congreso en ejercicio de su control político y público. Para este propósito se estudia el origen de esta competencia en la Asamblea Nacional Constituyente, se la analiza en el contexto de otras experiencias constitucionales y se considera,a partir de fuentes teóricas (normativas y doctrinales) y evidencia empírica(estudio de casos), dos hipótesis sobre su naturaleza y alcance, para concluirque se trata de una competencia jurisdiccional, que se concreta en una providencia judicial que hace tránsito a cosa juzgada, y que puede tenerse comouna modalidad especial del control de constitucionalidad.Abstract:This article is focused on the ill studied topic of the Colombian Constitutional Court’s ancillary powers, and especially on its decisions regarding a person’s refusal to attend hearings related to Congress’ control functions. Thus, the text begins with the origins of this power discussed at the constituent assembly, then analyzing it in Comparative Constitutional Law. Also taking into account both theoretical and practical elements — such as doctrine, norms and case law—, it does propose two hypotheses concerning its character and effects, concluding that entails an exercise of judicial power with res iudicata force and that it comprises a especial type of judicial review.Summary:Introduction. I. An Approach to the Colombian Judicial Review System. II. Ancillary Powers to Judicial Review: Debates and Adoption at the Constitutional Assembly. III. Ancillary Powers to Judicial Review in the Constitutional Court’s Case Law. IV. Ancillary Powers to Judicial Review in Comparative Law. V. Constitutional Court’s Decisions regarding Excuses for Subpoenas. Nature. Holdings. VI. Conclusions. Bibliography 

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