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.

scholarly journals Comparative Constitutional Theory

2019 ◽  
Vol 22 ◽  
pp. 1-6
Author(s):  
Francois Venter
Keyword(s):  
Constitutional Law ◽  
Constitutional Theory ◽  
Advanced Students ◽  
Comparative Constitutional Law ◽  
Law Library ◽  
Edward Elgar

This contribution is a review of the research handbook in comparative constitutional law, titled Comparative Constitutional Theory edited by Gary Jacobsohn and Miguel Schor. It was published in 2018 by Edward Elgar Publishing. Every law library worthy of the name should acquire it for the benefit of constitutional scholars and advanced students of constitutional comparison.  

Taming the Incumbency Advantage: Innovative Constitutional Designs from the "South"

2021 ◽  
Author(s):  
Adem Abebe
Keyword(s):  
Constitutional Law ◽  
Institutional Design ◽  
Constitutional Reform ◽  
Incumbency Advantage ◽  
Discussion Paper ◽  
Constitutional Design ◽  
Comparative Constitutional Law ◽  
The World ◽  
Reform Processes ◽  
Design Options

This Discussion Paper was drafted for an International IDEA webinar on Taming the Incumbency Advantage (25 May 2021), the first of a series on innovative constitutional design options. It has been revised and updated to reflect contributions from webinar participants: Professor Juvence F. Ramasy (Madagascar), Professor Ridwanul Hoque (Bangladesh) and Professor Gabriel Negretto (Latin America), among others. The webinar series seeks to identify, discuss, profile and showcase the ‘hidden treasures’ of innovative constitutional/institutional design options—including from the Global ‘South’—with potential to help tackle emerging and recurrent challenges facing societies around the world. The goal is not to promote any specific institutional design, but rather to enrich conversations about constitutional reform processes and share comparative constitutional law and practice insights among academic and practitioners’ communities.

With a little help from the courts: the promises and limits of weak form judicial review of social and economic rights

2009 ◽  
Vol 5 (4) ◽  
pp. 417-431
Author(s):  
Adam Shinar
Keyword(s):  
Civil Society ◽  
Social Welfare ◽  
Judicial Review ◽  
Constitutional Law ◽  
Weak Form ◽  
Constitutional Theory ◽  
Economic Rights ◽  
Welfare Rights ◽  
Comparative Constitutional Law ◽  
Theory Project

This is a review of Mark Tushnet’s Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. The review outlines the main arguments in the book and then moves to elaborate on two preconditions which are necessary for Tushnet’s project to succeed: the existence of a strong civil society and an institutional willingness to implement social welfare rights. In addition, this review seeks to situate the book within Tushnet’s broader constitutional theory project. In particular, the review attempts to reconcile this work with Tushnet’s 1999 Taking the Constitution Away from the Courts, a work that initially seems to be diametrically opposed to his new book.

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.

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.

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