Socialist Constitutional History

2020 ◽  
pp. 86-138
Author(s):  
Ngoc Son Bui
Keyword(s):  
Economic Reforms ◽  
Soviet Bloc ◽  
Traditional Values ◽  
Constitutional History ◽  
Institutional Adjustment ◽  
Independent States ◽  
Five Elements ◽  
Constitutional System ◽  
Constitutional Identity ◽  
Constitution Making

This chapter examines constitutional history in the five socialist countries. Their constitutional history can be analytically divided into three periods: pre-socialist, Soviet-era, and transitional. During the pre-socialist period, the five countries had their own constitutional history, which was predominantly informed by traditional values (e.g. Confucianism in China, Vietnam, and Korea, and Buddhism in Laos) and liberal modern values, although some socialist ideas were also partially adopted in some cases, such as the 1946 Constitution of Vietnam. In the Soviet era, except for the belated constitution-making in Laos, the four other countries made, replaced, or amended the socialist constitutions which were predominantly informed by five elements of socialist constitutional identity. Immediately after the collapse of the Soviet bloc, the five countries adapted their socialist constitutional system in the early 1990s in a transition with three separate elements: independent states, economic reforms, and institutional adjustment. The examination of socialist constitutional history has implications for comparative constitutional history.

scholarly journals CONSTITUTION-MAKING AS INTERGOVERNMENTAL RELATIONS.A Case Study of the 1980 Canadian Constitutional Negotiations

1969 ◽  
Vol 1 (1) ◽  
Author(s):  
Adam D. McDonald
Keyword(s):  
Constitutional History ◽  
Canadian History ◽  
Pierre Trudeau ◽  
Political Landscape ◽  
History Of ◽  
Charlottetown Accord ◽  
Constitution Making

The Constitution Act, 1982 is a document that profoundly changed the Canadian political landscape. It brought home the highest law of the land; it provided Canadians a mechanism to change their Constitution; it created a Charter of Rights and Freedoms, entrenched within the Constitution, out of the reach of one government. Perhaps its most important legacies, however, are the seemingly permanent isolation of Quebec and the primacy of place in Canadian history it gave Pierre Trudeau. This paper will examine the constitutional history of Canada with a view to determining what made the 1980 negotiating sessions successful when the sessions that led to both the Meech Lake Accord and the Charlottetown Accord were not. It is important, however, to note that the word “successful” is used in the sense that an agreement was reached. Unlike Meech and Charlottetown, the repatriated constitution did not have unanimity among the participants. The question that comes to mind is this: if the governments did not really agree in 1981, why was a Constitution ratified? More importantly, are there lessons that can be drawn from this agreement that can be applied to the failed accords of the Mulroney era?

scholarly journals MODERNISATION AND AVANT-GARDE IN CENTRAL-EASTERN EUROPE (1918–1939)

Muzealnictwo ◽  
2018 ◽  
Vol 59 ◽  
pp. 198-202
Author(s):  
Andrzej Szczerski
Keyword(s):  
World War I ◽  
Eastern Europe ◽  
Traditional Values ◽  
Avant Garde ◽  
Central Eastern Europe ◽  
Political Reality ◽  
The Status ◽  
Independent States ◽  
New Ideas ◽  
The One

The establishment of new independent states in Central and Eastern Europe after 1918 not only brought changes in European geopolitical reality, but also initiated many cultural processes, stimulated by the need for modernisation of the region. They aimed at strengthening the identity of individual states based on their civilizational advancement. It was possible thanks to political independence, which many central European nations gained for the first time in their history. Their expected growth was not only to confirm their right of existence, but also of being among the leading states in Europe. Within the Old Continent the central and eastern part of Europe turned out to be a domain of modernisation par excellence. Here its progression, on the one hand, was most awaited, on the other – raised the greatest controversy. Arts and artists had their particular role in this process; it was their mission to spread the new ideas, calling for a change of the status quo. Instead of simply adopting the already existing patterns of modernity they tried, however, to work out their original concepts of reforms, based on an attempt to reconcile modernity with traditional values, which were found worth preserving within individual cultures. These processes were supported by representatives of both the avant-garde and the more moderate modernisation, which resulted in peaceful coexistence of radical programmes and endeavours to find conservative definitions of modernism. “New Europe” in the years 1918–1939 was in favour of modernity, pursuing consistently civilizational advancement, with the good use of tools brought about by the new political reality and, first and foremost, the national independence gained by many states in the aftermath of World War I.

scholarly journals Parliamentary sovereignty as a barrier to a Treaty-based partnership

2021 ◽  
Author(s):  
◽  
Lydia O'Hagan
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Current Approach ◽  
Constitutional History ◽  
Public Power ◽  
Constitutional Review ◽  
Parliamentary Sovereignty ◽  
Legal Effect ◽  
Treaty Of Waitangi ◽  
Constitutional System

<p>The Treaty of Waitangi has repeatedly been affirmed as New Zealand’s founding document, yet our constitutional arrangements rest on the untrammelled principle of parliamentary sovereignty. This paper argues that the doctrine of parliamentary sovereignty is contrary to the sharing of powers provided for in the Treaty, as it concentrates ultimate law-making authority in one body. New Zealand’s constitutional history is canvassed briefly, with a specific focus on the Treaty and the basis of British Crown’s acquisition of sovereignty over New Zealand. It is noted that the current place of the Treaty within New Zealand’s constitution is within the vast powers of parliament - the Treaty can only have legal effect to the extent that Parliament provides for. After looking at examples from statute and common law it is concluded that, rather than limiting parliamentary sovereignty, the current approach ultimately reinforces the absolute and indivisible power of parliament. As such, it is a barrier to a Treaty partnership between the Crown and Maori. To truly give effect to the Treaty a change in the way in which public power in New Zealand is configured and exercised is necessary. Three models for Treaty-based constitutional reform are therefore discussed. The current constitutional review provides Iwi and the Crown with an opportunity to look beyond the confines of the doctrine of parliamentary sovereignty and forge a unique constitutional system that gives effect to the Treaty as New Zealand’s founding document.</p>

Constitution-Making under UN Auspices

2020 ◽  
Author(s):  
Vijayashri Sripati
Keyword(s):  
United Nations ◽  
Rule Of Law ◽  
Transitional Justice ◽  
League Of Nations ◽  
Comprehensive Treatment ◽  
Constitutional History ◽  
Post Cold War ◽  
History Of ◽  
Judicial Security ◽  
Constitution Making

As an 18th century ‘standard of civilization,’ the Western liberal constitution has since been integral to public international law and colonial trusteeship. This book is the first comprehensive treatment of the ostensible purposes why international organizations have internationalized this Constitution: from the League of Nations in Danzig, to the UN starting from Libya in 1949, and from 1989-2018, in more than forty poor states including most recently in Colombia and The Gambia. This pioneering study sets the Constitution’s internationalization via United Nations Constitutional Assistance (UNCA) at centre-stage. The Constitution’s salience makes its post-1989 rise via UNCA the most significant post-Cold War development, one which has spawned and shaped all other legal and political developments. For example, the internationalization of this Constitution (subsumed under the ‘rule of law’ label) drives the famed post-1989 rule of law movement, shaping all sectors from electoral, judicial, security, and parliamentary to international criminal and transitional justice. This Constitution’s internationalization is traced, from France’s drafting of Turkey’s 1856 monetary laws, British lawyer, Travis Twiss’ drafting of Congo’s 1885 constitution to the constitutional assistance offered by the League of Nations during the inter-war period and from 1949, by its successor, the United Nations and through a combined historical international constitutional framework, UNCA’s legitimacy is appraised. Through this new constitutional history of trusteeship, Sripati demonstrates that creating an equitable order requires considering seriously why sovereign states’ constitution-making is being internationalized. The book concludes by arguing that UNCA continues its trusteeship role. UNCA makes a new fiscally oriented addition to the ‘standards of civilization’: ‘transparent, inclusive and participatory’ constitution-making.

Concepts of National and Constitutional Identity in Croatian Constitutional Law

2017 ◽  
Vol 42 (4) ◽  
pp. 263-293
Author(s):  
Jurij Toplak ◽  
Djordje Gardasevic
Keyword(s):  
Minority Language ◽  
Constitutional Court ◽  
Parliamentary Elections ◽  
Future Developments ◽  
National Minorities ◽  
Legal Context ◽  
Constitutional System ◽  
The Right ◽  
Constitutional Jurisprudence ◽  
Constitutional Identity

The Croatian Constitutional Court recently rendered two important decisions concerning two national minorities’ rights: the right to vote in parliamentary elections; and the right to use minority language. In both decisions, the Court relied on a newly developed concept of Croatian national identity. This article explores and critically explains the wider social, political and legal context that has produced the emergence of the idea of a constitutional identity in Croatian constitutional jurisprudence. In addition, it evaluates the potential effects this new constitutional concept may have for future developments in Croatia’s political and constitutional system. This article also compares Croatian and Slovenian solutions to certain questions as the Slovenian Constitutional Court has ruled on strikingly similar issues, but arrived at different conclusions.

scholarly journals Shaken or Stirred? Polish Constitutional (Dis)continuity between 1917–2017

2019 ◽  
Vol 60 (1) ◽  
pp. 95-118
Author(s):  
Marcin Michał Wiszowaty
Keyword(s):  
Political System ◽  
Research Question ◽  
Past Century ◽  
Constitutional History ◽  
Main Research ◽  
The Past ◽  
History Of ◽  
Constitutional Identity ◽  
Made In

Abstract The purpose of this paper is to answer the main research question “is there a constitutional continuity in Poland or even the Polish constitutional identity or rather there was a permanent discontinuation in last 100 years of Polish history of state?” For this purpose, the Polish constitutional history in the 20th and 21st centuries has been analyzed with respect to the changes made in the Polish political system over the past century from republican and democratic governments with a strong parliament to governments more akin to the monarchy, with a strong presidency, and even autocratic. Looking for sources of Polish political inspiration references are made to the legacy of the Polish-Lithuanian Commonwealth.

The Precarious Future of the Ethiopian Constitution

2013 ◽  
Vol 57 (2) ◽  
pp. 215-233 ◽  
Author(s):  
Gedion T Hessebon
Keyword(s):  
Political Forces ◽  
Constitutional Reforms ◽  
Constitutional System ◽  
Ruling Party ◽  
Constitution Making

AbstractThe current Ethiopian Constitution suffers from a severe lack of legitimacy. It lacks legitimacy as a result of a constitution-making process that was not inclusive, as well as the subsequent serious lack of integrity and vitality in the constitutional system. Therefore, if the ruling party, which is also the “author” of the constitution, were to lose its hegemonic position, which is predicated on its control of the security and military apparatus, there is a strong likelihood that there would be calls from significant political forces for a new constitution to be adopted. Such calls should not be heeded. Instead of adopting a new constitution, the current constitution's lack of legitimacy should be remedied by comprehensive constitutional reforms that would still maintain the basic architecture and cornerstones of the current constitution.

Constitutional Identity

2018 ◽  
Author(s):  
Bosko Tripkovic
Keyword(s):  
Two Dimensions ◽  
Moral Judgments ◽  
Moral Value ◽  
Constitutional System ◽  
Constitutional Adjudication ◽  
In Virtue Of ◽  
Constitutional Identity ◽  
Made In

The chapter examines the metaethical foundations of the argument from constitutional identity. This argument locates the source of value in a set of deep and self-identifying evaluative commitments that develop in a society in virtue of the fact that it has a constitution. Drawing on comparative constitutional practice, the chapter argues that constitutional identity has two dimensions: general constitutional identity relies on the notion that constitutions entail common evaluative commitments that are applicable in any constitutional system of government, and particular constitutional identity relies on specific values discernible from moral judgments that have been made in local constitutional practices. The chapter contends that the argument from constitutional identity incorporates the tension between the emotive-local and reasonable-universal dimension of moral value, and extends into other types of value-based arguments in constitutional reasoning. The chapter concludes that constitutional identity cannot be a self-standing source of value in constitutional adjudication.

Australian Indigenous Constitutions: Recognition and Renewal

2016 ◽  
Vol 44 (3) ◽  
pp. 337-361 ◽  
Author(s):  
Anna Dziedzic ◽  
Mark McMillan
Keyword(s):  
Legal System ◽  
Three Dimensions ◽  
Indigenous Law ◽  
Indigenous Nations ◽  
Constitutional System ◽  
Do So ◽  
Constitution Making

The Anglo-Australian legal system has not readily recognised Indigenous constitutions. The absence of such recognition does not, however, deny that Australia's Indigenous nations have had constitutions for thousands of years and continue to do so. In this article, we explain how Indigenous laws, institutions and systems of authority are constitutional. Using the constitutions of the Gunditjmara peoples and Ngarrindjeri nation as examples, we identify three dimensions of Indigenous constitutions in Australia: first, the foundation of Indigenous constitutions in the continuing and inherent authority of Indigenous nations; secondly constitutional features deriving from Indigenous law; and thirdly the use in Indigenous constitutions of institutions and processes that also have status under Australian law. We suggest that this new understanding of Indigenous constitutions provides a basis for contributing to current efforts in Indigenous constitution-making and to the development of a more inclusive understanding of the Australian constitutional system.

Secession and post-sovereign constitution-making after 1989: Catalonia, Kosovo, and Quebec

2019 ◽  
Vol 17 (2) ◽  
pp. 461-469
Author(s):  
Sujit Choudhry
Keyword(s):  
Self Determination ◽  
Constitutional Democracy ◽  
Constitutional Politics ◽  
New Model ◽  
Unilateral Declaration ◽  
The Supreme Court ◽  
Before And After ◽  
Independent States ◽  
The Right ◽  
Constitution Making

Abstract The year 1989 marked the return of the right to self-determination to center stage in constitutional politics. It was at the root of demands for constitutional democracy; it was also invoked by minority nations to make claims for secession and independent states. That year also marked the emergence of a new model of “post-sovereign” constitution-making that rejects the idea of a sovereign people who can act unilaterally with unlimited power. While this new model was developed in the context of transitions to constitutional democracy, before and after 1989, minority nations have relied on the unilateral declaration of independence as a foundational act of constitution-making, which is firmly rooted in the pre-1989 sovereign mindset. Drawing on the example of the Supreme Court of Canada’s judgment in the Quebec Secession Reference, I sketch how we might complete the legacy of 1989 by extending the project of post-sovereign constitution-making to secession.

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