The Possibility of Constitutional Theory

2017 ◽  
Author(s):  
Dimitrios Kyritsis
Keyword(s):  
Constitutional Law ◽  
Legal Positivism ◽  
Political Regime ◽  
Constitutional Theory ◽  
Legal Systems ◽  
Moral Question ◽  
Political Morality ◽  
Government Power ◽  
History Of ◽  
State Coercion

This chapter sets out the main tenets of moralized constitutional theory, which supplies the methodology of the book. According to moralized constitutional theory the purpose of constitutional law is to buttress the legitimacy of a political regime by furnishing standing assurances that government power will be used properly. Although moralized constitutional theory maintains that contentious constitutional law issues are ultimately determined by principles of political morality, it is compatible with both legal positivism and anti-positivism. Moreover, it does not ignore either the history of different legal systems or considerations of political exigency to which constitutions are also sensitive. But it insists that the overarching reason history and political exigency matter is a moral one. Nor does moralized constitutional theory block reform. It is only meant to answer the pressing moral question under what conditions state coercion is warranted here and now.

Deveolpment of Constitutional Law on the Territory of Ukranie (IX-XIII Centuries)

2021 ◽  
pp. 1006-1014
Author(s):  
Oksana Pylypchuk
Keyword(s):  
Eighteenth Century ◽  
Constitutional Law ◽  
Political Regime ◽  
Democratic State ◽  
History Of ◽  
The Times ◽  
Grand Duchy Of Lithuania ◽  
History Of Formation ◽  
Grand Duchy ◽  
Submission Date

The article is devoted to the history of formation and development of Ukrainian constitutionalism. It is shown that during the times of Kievan Rus and the Galicia-Volyn principality monarchical states with elements of a democratic state and political regime were formed on Ukrainian lands. It is highlighted that the formation of the Ukrainian nation and its path to its own state was carried out under the conditions of aristocratic democracy of the Grand Duchy of Lithuania and the Polish-Lithuanian Commonwealth. It is emphasized that the Ukrainian people in the XV century became part of a large European society, which became the basis for the emergence of constitutional ideas in the Ukrainian ethnic lands, the creation of the Cossacks and the revival of their own Ukrainian state in the former Kievan Rus. It is noted that the results of the development of Ukrainian constitutionalism in the eighteenth century was presented in the Constitution of Hetman P. Orlyk in 1710, which became one of the most democratic constitutions in Europe at that time. Fecha de envío / Submission date: 25/02/2021 Fecha de aceptación / Acceptance date: 19/04/2021

The Real Standard Picture, and How Facts Make It Law: a Response to Mark Greenberg

2019 ◽  
Author(s):  
Jeffrey Goldsworthy
Keyword(s):  
Constitutional Law ◽  
Communication Theory ◽  
Legal Positivism ◽  
Legal Systems ◽  
The Real ◽  
Legal Principles ◽  
Impact Theory ◽  
Standard Picture ◽  
Anglo American ◽  
Theory Of Law

Abstract Mark Greenberg has attempted to refute what he regards as a popular metaphysical thesis about how law is constituted. He calls it the “Standard Picture,” and it includes a “Communication Theory.” His own “Moral Impact Theory” of law is built partly on that attempted refutation. I defend positions that are very close to the Standard Picture and Communication Theory, albeit different in important respects. In particular, they are not primarily metaphysical theses, although they have metaphysical implications. They are actual fundamental doctrines of constitutional law in Anglo-American legal systems, which I call Legislative Supremacy and Legislative Intention. I argue that: (a) these doctrines, and their metaphysical implications, vindicate much of the Standard Picture, and explain why so many theorists have been attracted to it; (b) the doctrines are inconsistent with Greenberg’s Moral Impact Theory; and (c) the best theory of what makes them part of the law is legal positivism: in other words, facts about legal practices make them law. In arguing for (a) and (b), I examine in detail and respond to Greenberg’s account of the legal principles and practice of statutory interpretation. I distinguish between three kinds of interpretation: clarifying, supplementing and rectifying. In arguing for (c), I contend that legal positivism satisfies Greenberg’s (questionable) insistence that any metaphysical account of what constitutes law must satisfy a “rationality requirement.”

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.

State-run celebration of Liberation Day in Czechoslovakia (based on audiovisual sources)

2019 ◽  
pp. 251-268
Author(s):  
Timur Gimadeev
Keyword(s):  
Political Development ◽  
Communist Regime ◽  
Political Regime ◽  
The Political ◽  
Historical Experience ◽  
History Of ◽  
Post War ◽  
The 1960S ◽  
The Military

The article deals with the history of celebrating the Liberation Day in Czechoslovakia organised by the state. Various aspects of the history of the holiday have been considered with the extensive use of audiovisual documents (materials from Czechoslovak newsreels and TV archives), which allowed for a detailed analysis of the propaganda representation of the holiday. As a result, it has been possible to identify the main stages of the historical evolution of the celebrations of Liberation Day, to discover the close interdependence between these stages and the country’s political development. The establishment of the holiday itself — its concept and the military parade as the main ritual — took place in the first post-war years, simultaneously with the consolidation of the Communist regime in Czechoslovakia. Later, until the end of the 1960s, the celebrations gradually evolved along the political regime, acquiring new ritual forms (ceremonial meetings, and “guards of memory”). In 1968, at the same time as there was an attempt to rethink the entire socialist regime and the historical experience connected with it, an attempt was made to reconstruct Liberation Day. However, political “normalisation” led to the normalisation of the celebration itself, which played an important role in legitimising the Soviet presence in the country. At this stage, the role of ceremonial meetings and “guards of memory” increased, while inventions released in time for 9 May appeared and “May TV” was specially produced. The fall of the Communist regime in 1989 led to the fall of the concept of Liberation Day on 9 May, resulting in changes of the title, date and paradigm of the holiday, which became Victory Day and has been since celebrated on 8 May.

Riccardo Saccenti, Debating Medieval Natural Law: A Survey. Notre Dame, IN: University of Notre Dame Press, 2016, XIII, pp. 155.

Mediaevistik ◽  
2018 ◽  
Vol 31 (1) ◽  
pp. 318-320
Author(s):  
Scott L. Taylor
Keyword(s):  
Twentieth Century ◽  
Natural Law ◽  
Natural Rights ◽  
Legal Positivism ◽  
Great Chain Of Being ◽  
History Of ◽  
History Of Concepts ◽  
Hans Kelsen ◽  
University Of Notre Dame ◽  
Conceptual Shift

Saccenti’s volume belongs to the category of Begriffsgeschichte, the history of concepts, and more particularly to the debate over the existence or nonexistence of a conceptual shift in ius naturale to encompass a subjective notion of natural rights. The author argues that this issue became particularly relevant in mid-twentieth century, first, because of the desire to delimit the totalitarian implications of legal positivism chez Hans Kelsen; second, in response to Lovejoy’s The Great Chain of Being and its progeny; and third, as a result of a revival of neo-Thomistic and neo-scholastic perspectives sometimes labelled “une nouvelle chrétienté.”

Кarabakh region of the Republic of Azerbaijan in 1950–1960

2021 ◽  
Vol 2021 (01) ◽  
pp. 212-217
Author(s):  
Nazim Mammadov
Keyword(s):  
Economic Consequences ◽  
Political Regime ◽  
History Of ◽  
The Republic

Years of 1950—1960 are a difficult, contradictory period of creation in the history of the Fatherland, the Кarabaкh region of Azerbaijan. During these years, the Soviet political regime was further strengthened in the Azerbaijan SSR. Over the years, the heavy economic consequences of the 1941—1945 war were eliminated. New industrial centers appeared in the Azerbaijan SSR, in particular in the Кarabaкh region of the country.

History of the Word "Democracy" in Canada and Québec: A Political Analysis of Rhetorical Strategies

2010 ◽  
Vol 6 (1) ◽  
Author(s):  
Francis Dupuis-Déri
Keyword(s):  
The United States ◽  
Political Elite ◽  
Political Regime ◽  
The Political ◽  
Rhetorical Strategies ◽  
Founding Fathers ◽  
Discursive Strategies ◽  
Political Analysis ◽  
History Of ◽  
The Masses

An examination of the speeches of modern Canada’s “founding fathers” reveals that they were openly antidemocratic. How did a regime founded on anti-democratic ideas come to be positively identified with democracy? Drawing on similar studies of the United States and France, this analysis of the history of the term democracy in Canada shows that the country’s association with democracy was not due to constitutional or institutional changes that might have justified re-labelling the country’s political regime. Rather, it was the result of discursive strategies employed by the political elite to strengthen its ability to mobilize the masses during the World Wars.

“Opting Out”: An Experiment with Jurisdiction in Northern Nigeria

1964 ◽  
Vol 8 (1) ◽  
pp. 20-28
Author(s):  
S. S. Richardson
Keyword(s):  
African State ◽  
Northern Region ◽  
Regional Government ◽  
Northern Nigeria ◽  
Legal Systems ◽  
Opting Out ◽  
Strong Case ◽  
The North ◽  
History Of ◽  
The Government

With the commencement of the Native Courts (Amendment) Law, 1961, the Government of the Northern Region of Nigeria abolished “opting out”, an experiment with jurisdiction which must surely be unique within the history of modern legal systems and therefore worthy of recording before the facts are obscured and lest any other African state, faced with similar difficulties, is tempted to adopt this expedient as a temporary palliative to meet a similar situation. It is all the more desirable to publish the facts since the strong case for abolition presented by the Northern Regional Government is in danger of being lost by default. On 14th October, 1961, the Daily Service in Nigeria published a bitter attack on the Native Courts (Amendment) Law, 1961, under the title “The light goes out in the North”.

Rights

2011 ◽  
Author(s):  
Kenneth Pennington
Keyword(s):  
Human Rights ◽  
Natural Law ◽  
Natural Rights ◽  
Legal Positivism ◽  
Individual Rights ◽  
Legal Systems ◽  
Human Beings ◽  
Group Rights ◽  
Constitutional Jurisprudence ◽  
Theological Thought

One of the most notable characteristics of Western societies has been the development of individual and group rights in legal, theological, and philosophical thought of the first two millennia. It has often been noted that thinkers in Non-Western societies have not had the same preoccupation with rights. The very concept of rights is laden with numerous problems. Universality is the most basic and difficult. If human rights are only a product of Western ideas of justice, they cannot have universality. In an age that is dominated by conceptions of law embracing some form of legal positivism, many scholars recognize only individual rights that have been established by the constitutional jurisprudence of individual countries or their legal systems. Historically, the emergence of rights in European jurisprudence is intimately connected with the terms ius naturale and lex naturalis in Western jurisprudence and theological thought. Human beings may never agree on universal rules of a natural law, but they might agree on universal precepts that shape the penumbra of rights surrounding natural rights.

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