Strong popular sovereignty and constitutional legitimacy

2017 ◽  
Vol 19 (3) ◽  
pp. 354-374 ◽  
Author(s):  
George Duke
Keyword(s):  
Rule Of Law ◽  
Primary Source ◽  
Normative Theory ◽  
Popular Sovereignty ◽  
Constituent Power ◽  
The Rule Of Law ◽  
Normative Concepts ◽  
Liberal Constitutionalism ◽  
Constitutional Legitimacy ◽  
Minimal Constraint

Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and central assumptions of liberal constitutionalism. Foremost among these assumptions are the need to reconcile disagreement regarding controversial matters of common concern and the value of the rule of law. The weakness of such critiques, however, is that they presuppose a commitment to liberal principles and values that an advocate of strong popular sovereignty need not share. In this paper, I argue that recourse to liberal assumptions is unnecessary in order to demonstrate the inability of a theory of strong popular sovereignty to issue in a viable account of constitutional legitimacy. Theories of constitutional legitimacy grounded in strong popular sovereignty and constituent power, I contend, simply lack the basic resources for an adequate theory of constitutional legitimacy because they do not offer normative grounds for an assessment of whether any particular constitution is or is not legitimate. The paper is structured in three sections. Section 1 demonstrates that Carl Schmitt’s theory of constitutional legitimacy – which remains the primary source of contemporary appeals to strong popular sovereignty and constituent power – sustains a normative interpretation. Section 2 then develops a minimal constraint on an adequate normative theory of constitutional legitimacy. Finally, in Section 3, I demonstrate why a normative account of constitutional legitimacy based on strong popular sovereignty and constituent power is, at least without supplementation from normative concepts derived from a weaker conception of popular sovereignty, unable to meet this constraint.

scholarly journals Introduction: Populist constitutionalism: Varieties, complexities, and contradictions

2019 ◽  
Vol 20 (3) ◽  
pp. 291-295 ◽  
Author(s):  
Paul Blokker ◽  
Bojan Bugaric ◽  
Gábor Halmai
Keyword(s):  
Rule Of Law ◽  
Union Member ◽  
Special Issue ◽  
Constituent Power ◽  
Constitutional Politics ◽  
The Rule Of Law ◽  
Complex Relation ◽  
Established Democracies ◽  
European Union Member States ◽  
Fundamental Values

AbstractThe intense engagement of populists with constitutionalism—a phenomenon originally related to experiences in Latin America—is increasingly evident in some of the new European Union member states. But the populist phenomenon is clearly not confined to more recently established democracies. Populist constitutionalism stands for a number of distinctive tendencies in constitutional politics and practices which frequently are in tension with—and may even threaten—fundamental values, human rights, representative democracy, and the rule of law. The relation between populism and constitutionalism is, however, not necessarily one of anti-thesis, but rather manifests itself in distinctive ways, depending on specific contexts and variations. In this special issue, we argue that populist constitutionalism is best analyzed in a comparative, and historically and contextually attuned manner. The special issue wants to contribute to understandings of populist constitutionalism, which are both theoretically more robust and able to comparatively reflect on a diversity of “really existing” cases. The various contributions discuss central dimensions to the populist phenomenon. These pertain in particular to: (a) The varieties of populist engagement with constitutionalism; (b) a deeper understanding of the populist mindset; (c) the position-taking and reaction of constitutional scholars to populism; (d) the complex relation and overlap of populism with illiberalism and authoritarianism; and (e) the central nature of constituent power in populist projects.

scholarly journals The Principle of Sovereignty as the Main Principle of Democracy, between the Political Pluralism and the Electoral System in the Parlamentary Republic of Albania

2020 ◽  
Vol 9 (6) ◽  
pp. 184
Author(s):  
Ismail Tafani ◽  
Darjel Sina
Keyword(s):  
Rule Of Law ◽  
Party System ◽  
Essential Element ◽  
Electoral System ◽  
Fundamental Principle ◽  
Popular Sovereignty ◽  
Political Pluralism ◽  
The Rule Of Law ◽  
Constitutional Principle ◽  
Democratic Principle

Popular sovereignty is the foundation of the principle of democracy for the existence and functioning of the rule of law. In the Parliamentary Republic of Albania based on political pluralism for nearly three decades, this essential element of the democratic principle seems to be as fragile as the principle itself. The basic concept of the functionality of the rule of law in Albania under the Constitution is the separation and balancing of powers. Although the constitutional provision for the separation and balancing of powers is clear and based on Montesquieu’s conception of the development of the principle of democracy and the prohibition of abuse that each of the powers could inflict on each other, the separation and balancing of powers in Albania seems to be impossible. Albania as a country with a culture of not very long political pluralism, instead it comes from a rather long-term mono-party system where the development of the electoral process was more of a holiday than a race. However, the sovereignty of the people enshrined in today's constitution and yesterday's constitution seems more like a slogan than a fundamental principle of constitutional order. In these years of political pluralism between the test of many electoral systems coupled with constitutional and legal changes, the implementation of the principle of popular sovereignty to consolidate the democratic principle remains clearly a utopia for Albanian society. After each election process debates reopen the need for reforming the electoral system in general and managing the process in particular. The purpose of this paper through a comparative analysis is to identify the elements that impede the observance of the fundamental constitutional principle of popular sovereignty either directly or indirectly through elected representatives to consolidate the rule oflaw in Albania.

scholarly journals ASAS-ASAS BANTUAN HUKUM DAN PERAN HAKAM DALAM PENEGAKAN HUKUM: STUDI KRITIS ATAS TAFSIR AL-QURAN SURAT AL-NISÂ’ AYAT 35

Asy-Syari ah ◽  
2015 ◽  
Vol 18 (2) ◽  
Author(s):  
Didi Kusnadi
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Islamic Law ◽  
Primary Source ◽  
Critical Study ◽  
Legal Aid ◽  
The Rule Of Law ◽  
Universal Principles ◽  
The Law

This paper explains the bases of legal aid in Islamic law through a critical study on the concept of hakam reduced from the Quranic interpretation Surah al-Nisâ’ verse 35. As a primary source of Islamic law, the Quran is believed guarantying the universal principles of Islamic law that is relevant with law enforcement. It is also implemented practically and comprehensively in the line of the bases of legal aid and developed it into the concept of hakam. Therefore, it can be seen as one of Islamic law contribution within the rule of law in Indonesia through the concept of hakam which can be formed for development of legal aid concept and its application within the law of legal aid in Indonesia.

Constitutionalism under Stress

2020 ◽  
Keyword(s):  
Doctoral Students ◽  
Rule Of Law ◽  
Public Reason ◽  
Liberal Democracies ◽  
Constitutional Review ◽  
The Rule Of Law ◽  
Comparative Constitutional Law ◽  
Liberal Constitutionalism ◽  
Western Democracies ◽  
The Eu

This volume is designed to mark the outstanding legacy of Professor Wojciech Sadurski’s scholarship in the field of comparative constitutional law. It provides a rich palette of chapters that aim to rethink the state of the art in this field, in light of the latest challenges to the foundations of liberal constitutionalism. Edited by former doctoral students of Professor Sadurski, the volume transcends the celebration of his major academic contributions by linking his pioneering writings, inter alia on Central and Eastern Europe (CEE), to core dilemmas in the turbulent state of the rule of law in western democracies. It consolidates contributions by numerous current and former students, as well as colleagues and friends around the globe in admiration of his didactic style, tireless work, civil dedication, and priceless commentary influencing the work of generations of constitutional scholars. Besides drawing on Wojciech’s fields of interest, the book aims to provide a full overview of the crucial dilemmas in dealing with the current decline of liberal democracies and populist challenges to the rule of law throughout Europe—events that he predicted early on in his writings about the Jörg Haider affair in Austria and the introduction of Article 7 TEU by the Amsterdam Treaty. The major themes of the chapters are thus as follows: 1. Populism and democratic decline in CEE; 2. The EU role: Article 7 TEU vis-à-vis the rule of law in Hungary and Poland; 3. Constitutional review and militant democracy: between public reason and new forms of populism.

The People Shall Be Judge

2011 ◽  
Vol 39 (6) ◽  
pp. 749-776 ◽  
Author(s):  
Miguel Vatter
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Popular Sovereignty ◽  
Political Judgment ◽  
The Rule Of Law ◽  
The People ◽  
Civil Condition

This essay offers an interpretation of Kant’s republicanism in light of the problem of political judgment. Kant is sometimes thought to base his conception of law on an idea of sovereignty drawn from Hobbes and Rousseau, which would leave little room for popular contestation of the state. In this essay, I reconstruct Kant’s account of the rule of law by bringing out the importance of his theory of judgment. I argue that for Kant the civil condition is ultimately characterized by a contest between the judgment of the sovereign and the judgment of the people, which corresponds to the determinative and reflective employments of political judgment, respectively. On this view, popular sovereignty is ultimately located in the people’s power to judge politically and contest publicly the state.

The Ethos of the Rule of Law in the International Legal Discourse: Portrait of an Outsider

2008 ◽  
Vol 10 (1) ◽  
pp. 29-49
Author(s):  
Mónica García-Salmones
Keyword(s):  
Rule Of Law ◽  
Theoretical Work ◽  
The Rule Of Law ◽  
Course Of Action ◽  
Political Events ◽  
Ethical Agency ◽  
Liberal Constitutionalism ◽  
The Times ◽  
Mandate System ◽  
International Rule

AbstractThe constitutional principles of the state under the rule of law require, as a precondition, that a normal situation exists. The article argues that this Schmittian idea can be transposed to an international debate on the international rule of law. The constitutional reforms proposed by Schmitt in 'Legality and Legitimacy' focusing in his search for an ethos of law were in the concrete situation of Weimar, neither attuned to the legal spirit of the times (positivism) nor suited to taking a course of action in the midst of tumultuous political events. However, as a theoretical work on liberal constitutionalism 'Legality and Legitimacy' contributes to the discussion on the lack of inherent rationality of the liberal (international) rule of law: the ethos of the rule of law is an outsider. The final part of the article uses the example of the mandate system of the League of Nations to support the claim that the value of a descriptive thesis of the vulnerability of the rule of law to power, lies in enabling a more realistic approach, in terms of ethical agency and power relations, to the margins of the rule of law or the grey zones.

Democratizing the Doctrine of Unconstitutional Constitutional Amendments: The Puzzle of Amending the Judiciary Branch

ICL Journal ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Catalina Torres-Artunduaga ◽  
Santiago García-Jaramillo
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Constitutional Courts ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
The Rule Of Law ◽  
Dialogic Approach ◽  
The Subject ◽  
Conceptual Foundations

AbstractThe increasing interest of legal academia on the doctrine of Unconstitutional Constitutional Amendments and its growing enforcement by the judiciary in different jurisdictions has started to normalize a doctrine that was considered controversial and extraordinary. This paper seeks to cast some doubts on the use of this doctrine, especially when the Court that enforces it is the subject of the amendment itself. In the first section it will question the conceptual foundations of the doctrine by recourse to legal theory, focusing not only on the idea of constituent power, but also on those of the rule of law and accountability. In the second section, some comparative cases of unconstitutional constitutional amendments will be analyzed, focusing on those where the judiciary itself was the subject of the amendment. Finally, from a normative and conceptual standpoint, a dialogic approach to the application of the doctrine will be proposed, to mitigate the fact that Constitutional Courts can become an unaccountable accountability-holder.

scholarly journals Democracy, Constitutionalism and the Rule of Law: Beholden to Constituent Power

2021 ◽  
Author(s):  
◽  
Ivan Sage
Keyword(s):  
Rule Of Law ◽  
Constituent Power ◽  
The Rule Of Law ◽  
The People ◽  
Egalitarian Society ◽  
Parliamentary Supremacy ◽  
The Government ◽  
Principle Of Legality ◽  
Ultimate Principle ◽  
Constitution Making

<p>Democratic government serves two purposes, both requiring that the substantive element of the rule of law be adhered to. A living constitution is required by a government to able to maintain civil society, which is the main occupation of the rule of law and, secondly, the rule of law also vouchsafes rights and freedoms. Hence, the rule of law enforced by the courts is the factor that controls the constitution, and increasingly this includes controlling the government, both the legislature and executive. This paper considers the capacities of democracy, constitutionalism and the rule of law, in the context of both New Zealand’s unwritten and America’s written constitutions, with the view of locating the constitution making power (constituent power). The power that makes and changes the constitution was originally found with the people, parliament, and the executive. However, a modern formulation of the rule of law that seeks to replace parliamentary supremacy as the ultimate principle of legality appears to be arising. An egalitarian society is becoming the preferred option by all parties. In this context, the constitution making power will be with the vessel that is working towards creating such a society. To that end, the paper recommends a Constitutional Commission for New Zealand that would review legislation for constitutionality, including adherence to the rule of law. The objective of the Constitutional Commission would be to recommend the review of law for constitutionality, including adherence to the rule of law.</p>

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