scholarly journals Public Participation in African Constitutionalism

2019 ◽  
Vol 22 ◽  
pp. 1-7
Author(s):  
Werner Menski
Keyword(s):  
Public Participation ◽  
Constitutional Law ◽  
Fine Tuning ◽  
Comparative Constitutional Law ◽  
Responsible Governance ◽  
Constitution Making

This review explores why public participation in constitution-making matters for cultivating responsible governance and for fine-tuning justice, focused on immensely rich African evidence within a broader comparative constitutional law context.  

scholarly journals Territory and Power in Constitutional Transitions

2019 ◽  
Keyword(s):  
Case Studies ◽  
Constitutional Law ◽  
Full Range ◽  
Political Mobilization ◽  
Constitutional Design ◽  
Comparative Constitutional Law ◽  
Territorial Politics ◽  
Salient Regions ◽  
Realist View ◽  
Constitution Making

This volume explores the full range of challenges that different kinds of territorial cleavages pose for Constitution-making processes and constitutional design. It provides seventeen case studies of countries going through periods of intense constitutional engagement in which the issue of how to deal with the politics of territory is important. It is unique in that its cases include the full gamut of types of territorial cleavages—small distinct territories, bi-communal countries, highly diverse countries with many politically salient regions, and countries where territorial politics is important but secondary to other bases for political mobilization. While the volume draws significant normative conclusions, it is based on a highly realist view of the implications not only of the territorial and other salient political cleavages in the country (the country’s “political geometry”) but also of the power-configurations that lead into periods of constitutional engagement, so that processes differ depending on whether the preceding politics has been peaceful or violent and whether a victor, military or political, has emerged or whether there is a stalemate or diffused political power. Its thematic chapters on Constitution-making processes and constitutional design, along with the final synthetic chapter, draw original conclusions from the comparative analysis of the case studies and relate these to the literature, both in political science and comparative constitutional law. There are clear lessons that should help practitioners in analyzing their own challenges in dealing with territorial cleavages as well as in considering possible approaches to constitution-making and constitutional design.

scholarly journals Negotiating Gender Rights and Gender Relations in the Constitutionmaking Process in Egypt: Towards a ‘Thick’ Constitutional Guarantee for Women’s Rights

1970 ◽  
pp. 43-54
Author(s):  
Naoko Kuwahara
Keyword(s):  
Constitutional Law ◽  
Gender Relations ◽  
Status Quo ◽  
Women's Issues ◽  
Japanese Experience ◽  
Comparative Constitutional Law ◽  
The Status ◽  
Gender Perspectives ◽  
And Gender ◽  
Constitution Making

The purpose of this article is to explore gender-sensitive constitution-making. I will examine the constitution-making process in Egypt, as well as the constitutions themselves, from comparative constitutional law and gender perspectives, and I will then include the Japanese experience. Constitutionalizing or legalizing women’s issues is one of the most controversial or challenging legal areas because women’s issues are often assumed to be matters deeply embedded in tradition or culture, and therefore, it has been held that changing the status-quo relating to women’s issues will erode the tradition or culture which should be protected.

scholarly journals Introduction: The C Word

2014 ◽  
Author(s):  
Hirschl Ran
Keyword(s):  
Intellectual History ◽  
Constitutional Law ◽  
Constitutive Laws ◽  
Legal Scholarship ◽  
Comparative Aspect ◽  
Comparative Constitutional Law ◽  
Constitutional Jurisprudence ◽  
Constitution Making

From its beginnings as a relatively obscure and exotic subject studied by a devoted few, comparative constitutionalism has developed into one of the more fashionable subjects in contemporary legal scholarship, and has become a cornerstone of constitutional jurisprudence and constitution-making in an increasing number of countries worldwide. Despite this tremendous renaissance, the “comparative” aspect of comparative constitutional law, as a method and a project, remains blurry and under-theorized. The introduction sets out the main arguments and structure of the book. The intellectual history and analytical underpinnings of comparative constitutional inquiry are charted and the various types, aims, and methodologies of engagement with the constitutive laws of others through the ages are probed. The introduction also surveys in a nutshell arguments developed in the book as to how and why comparative constitutional inquiry has been, and perhaps ought to be more extensively, pursued by academics and jurists worldwide.

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.

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.

scholarly journals Constitutional law and international law at the turn of the century

2017 ◽  
Vol 1 (1) ◽  
pp. 1 ◽  
Author(s):  
JA Frowein
Keyword(s):  
World War Ii ◽  
World War I ◽  
International Law ◽  
Constitutional Law ◽  
The United States ◽  
Fundamental Rights ◽  
Strong Impact ◽  
World War ◽  
Constitutional Courts ◽  
Constitution Making

Constitutional law and international law operate in simultaneous conjunction and reciprocal tension. Both fields seem to have overcome the great challenges of destruction and neglect in the course of the 20th century. Both after World War I and World War II the world experienced new waves of constitution making. In both cases the current German constitutions (the Weimar Constitution of 1919 and the Grundgesetz of 1949) were influential. Characteristic of constitution-making in this century, is the final victory of liberal constitutions based on the rule of law, the Rechtsstaat, fundamental rights, meaningful control of public powers and the establishment of constitutional courts. Following the destruction of World War II, the notion of the Sozialstaat emerged strongly in Germany. In contrast to the Constitution of the United States of America, the principle of the responsibility of the state for social justice has emerged in almost all new constitutions, including Russia, Poland, South Africa, Spain, Italy and Portugal. Where courts are given the mandate to interpret bills of rights, fundamental rights have been developed into foundation stones of the legal system. The presence in a Bill of Rights of restrictive clauses, is important for its analysis. Generally restrictive clauses in new constitutions try to limit the possibilities of restriction. The importance of constitutional rules establishing and legitimizing the political organs, must not be overlooked. Of particular importance is the degree of control over the head of state, a positive attitude among political actors towards the constitution and the protection of the interests of minorities in a democratic system. In the field of Public International Law much of Kant's ideal of an international confederation of peace has been realized. Since 1990 the United Nation's Security Council has shown the potential of becoming a directorate for the community ofnations. International law has also been instrumental in the worldwide recognition of human rights. Especially in Europe, Convention Law has had a strong impact. Furthermore, global and regional systems of regulation have tended to alter the legal attitude towards state sovereignty. It may be that the South African constitutional approach in terms of which international law is subject to constitutional and other national law, is not in line with international tendencies.

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