Constitutionalism in Fragmented Societies: the Integrative Function of Liberal Constitutionalism and Its Challenges

Author(s):  
Sarah Song

Chapter 1 begins with the role that political theory can play in public debate about immigration. Political theory can identify values and principles that can serve as guides to public judgment, clarify the sources of our disagreement, and perhaps even reduce the extent of disagreement about specific issues. The chapter then discusses four key dynamics in the politics of immigration: majoritarian politics, nationalism, capitalism, and liberal constitutionalism. It presents the idea of associative obligations and advances an intermediate position on immigration between closed borders and open borders rooted in an ethic of membership. It concludes with a roadmap of the book.


2016 ◽  
Vol 50 (6) ◽  
pp. 1966-2008 ◽  
Author(s):  
BENJAMIN SCHONTHAL

AbstractThis article examines the history and effects of Buddhist constitutionalism in Sri Lanka, by which is meant the inclusion of special protections and status for Buddhism in the island's 1972 and 1978 constitutions, alongside guarantees of general religious rights and other features of liberal constitutionalism. By analysing Sri Lankan constitutional disputes that have occurred since the 1970s, this article demonstrates how the ‘Buddhism Chapter’ of Sri Lanka's constitution has given citizens potent opportunities and incentives for transforming specific disagreements and political concerns into abstract contests over the nature of Buddhism and the state's obligations to protect it. Through this process, a culture of Buddhist legal activism and Buddhist-interest litigation has taken shape. This article also augments important theories about the work of ‘theocratic’ or religiously preferential constitutions and argues for an alternative, litigant-focused method of investigating them.


2018 ◽  
Vol 2 (2) ◽  
pp. 104-133 ◽  
Author(s):  
Anna Młynarska-Sobaczewska

Preambles are parts of constitutions, which are visibly neglected in legal theory and constitutional law. They are defined as solemn introductions to constitutions, which indicate the sovereign, historical and political context of increasing the new constitutional order, main aims and principles – the foundation of constitution. Such elements are also commonly apparent in most of post communist constitutions of European states. The article shows the integrative function of these preambles, achieved by using clauses creating and maintaining the identity of political community. The clauses with this function are identified as: statements regarding national and cultural heritage, declaration of sovereign as people or nation, and expression of common aims and fundamental principles of community. The article investigates these elements in texts of preambles to post-communist constitutions and indicates their role as tending to create the national identity.


Author(s):  
Bruce K. Rutherford

This chapter observes that the path of institutional change advocated by market liberals shares important areas of agreement with the reforms advocated by supporters of liberal constitutionalism and Islamic constitutionalism. Each of these groups favors the creation of a more liberal state with effective constraints on its power, a clear and unbiased legal code, and protection of civil and political rights. However, there is no comparable degree of consensus on the value of broadening public participation in politics. This fact suggests that liberalism and democracy have become de-linked in the Egyptian case. Liberalism is likely to progress steadily in the future, while democracy is likely to advance slowly and unevenly. This trajectory may eventually lead to democracy at some point in the future, particularly if liberalism enhances the private sector's independence from the state and leads to a more autonomous and politically active middle class. However, this outcome is not inevitable.


Author(s):  
Bruce K. Rutherford

This chapter studies the emergence of liberal constitutionalism in Egypt. It examines the historical foundations of Egyptian liberalism in the late nineteenth and early twentieth centuries, and observes that this conception of governance became tightly integrated into the development of the legal profession. As a consequence, lawyers and judges became the most dedicated advocates of liberal reform. The Bar Association played a leading role in promoting the liberal cause for most of the twentieth century. However, changes in its membership and steady regime repression eventually fragmented the Bar and undermined its effectiveness. The judiciary, in contrast, has retained a strong sense of liberal identity and has developed a robust conception of liberal constitutionalism. In order to understand this approach to law and politics, the chapter studies the decisions of Egypt's major courts (the Supreme Constitutional Court, the administrative courts, and the Court of Cassation). It uses this body of jurisprudence to analyze the judiciary's views with regard to four core elements of constitutionalism: the rule of law, constraints on state power, protection of basic rights, and public participation in governance.


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