Aharon Barak’s Concept of Human Dignity and the Notion of Dignity in Jurisprudence of Polish Constitutional Court

Israeli scholar and judge, Aharon Barak rejects the position that dignity is an axiomatic, universal concept. Moreover, he is in favor of “spacious” understanding of the right to dignity, making it a vast and broad category. The aim of the paper is to examine whether the concept of dignity presented by Barak is useful to understand the approach to human dignity as a legal concept in those Central European legal systems which have been influenced by German constitutional theory. In that regard the jurisprudence of Polish Constitutional Court is examined. The author is not fully convinced by Barak’s approach to dignity. The conclusion is drawn, however, that Barak is right when claiming that the status of an absolute right granted to the right to dignity means also that its scope is defined in a restrictive way.

The Concept of the ‘Living Constitution’ in Russian Constitutional Theory and Practice

In discussing the concept of the ‘living constitution’ in Russian constitutional theory and practice, this paper shows that the Russian concept of the living constitution differs from U.S. or European approaches to evolutive interpretation. The Russian concept has its roots in Soviet and pre-revolutionary Russian constitutional thinking. It reduces the normative power of the Constitution but allows an interpretation according to changing social conditions and gives the legislator a broad margin of appreciation. Whereas the 1993 Russian constitutional reform had been regarded as a paradigm shift with the intention to break with the past by declaring that the Constitution shall have supreme judicial force and direct effect, the paper also gives answers to the complexity of constitutional change and legal transplants and the role of constitutional theory and practice for the functioning of the current authoritarian regime in Russia.

Global Intellectual Property Protection and New Constitutionalism

The constitutionalisation of intellectual property law is often framed as a benign and progressive integration of intellectual property with fundamental rights. Yet this is not a full or even an adequate picture of the ongoing constitutionalisation processes affecting IP. This collection of essays, written by international experts and covering a range of different areas of intellectual property law, takes a broader approach to the process. Drawing on constitutional theory, and particularly on ideas of ‘new constitutionalism’, the chapters engage with the complex array of contemporary legal constraints on intellectual property law-making. Such constraints arising in international intellectual property law, human rights law (including human rights protection for right-holders), investment treaties, and forms of private ordering.

Filtering Populist Claims to Fight Populism

The new wave of populism that has emerged over the last five years in Europe and in the US urgently needs to be better understood in a comparative and historical context. Using Italy – including the experiment of a self-styled populist coalition government – as a case study, this book investigates how populists in power borrow, use and manipulate categories of constitutional theory and instruments of constitutional law. Giuseppe Martinico goes beyond treating constitutionalism and populism as purely antithetical to dive deeply into the impact of populism on the activity of some instruments of constitutional democracy, endeavoring to explore their role as possible fora of populist claims and targets of populist attacks. Most importantly, he points to ways in which constitutional democracies can channel populist claims without jeopardizing the legacy of post-World War II constitutionalism. This book is aimed at academics and practicing lawyers interested in populism and comparative constitutional law.

We the people? - Theorising constitutional democratic legitimacy to reflect on and enrich New Zealand's constitution

<p>This paper explores the concept of constitutional democratic legitimacy and the democratic legitimacy of New Zealand’s constitution in particular. In so doing, it considers Bruce Ackerman’s constitutional theory in We the People, Volume 1: Foundations and the criticisms it has provoked to develop a theoretical framework of three constitutional models (monism, dualism and rights foundationalism) that can be used to assess constitutional democratic legitimacy. It then utilises this framework as a tool for analysing New Zealand’s constitutional arrangements, observing that New Zealand has a particularly sophisticated monist constitution, noting s 268 of the Electoral Act 1993 and the adoption of MMP voting as particular institutional examples. Nevertheless, it is recognised that New Zealand’s constitution may still be critiqued in terms of its claim to democratic legitimacy through the alternative perspectives of monism (focusing on remaining flaws in New Zealand’s electoral system), dualism (focusing on the absence of avenues for binding public constitutional participation) and rights foundationalism (focusing on the constitutional place of the Treaty of Waitangi). Alternative suggestions for reform are offered.</p>

We the people? - Theorising constitutional democratic legitimacy to reflect on and enrich New Zealand's constitution

<p>This paper explores the concept of constitutional democratic legitimacy and the democratic legitimacy of New Zealand’s constitution in particular. In so doing, it considers Bruce Ackerman’s constitutional theory in We the People, Volume 1: Foundations and the criticisms it has provoked to develop a theoretical framework of three constitutional models (monism, dualism and rights foundationalism) that can be used to assess constitutional democratic legitimacy. It then utilises this framework as a tool for analysing New Zealand’s constitutional arrangements, observing that New Zealand has a particularly sophisticated monist constitution, noting s 268 of the Electoral Act 1993 and the adoption of MMP voting as particular institutional examples. Nevertheless, it is recognised that New Zealand’s constitution may still be critiqued in terms of its claim to democratic legitimacy through the alternative perspectives of monism (focusing on remaining flaws in New Zealand’s electoral system), dualism (focusing on the absence of avenues for binding public constitutional participation) and rights foundationalism (focusing on the constitutional place of the Treaty of Waitangi). Alternative suggestions for reform are offered.</p>

The city in the constitutional imagination

This article reviews Ran Hirschl’s City, State, a study of ‘the great constitutional silence concerning one of the most significant phenomena of our time: urban agglomeration and the rise of megacities’ and which maintains that the solution to contemporary urban problems crucially depends on a ‘constitutional emancipation’ of the city. The article argues that Hirschl is unable to deliver on his major claim. Launching his thesis on a skewed account of the development of the political role of the city, a one-sided presentation of the constitutional order of the modern state, and a failure to appreciate the impact of urbanization on the city’s standing as a unit of government, Hirschl ignores the work of public lawyers on the challenges of metropolitan government and argues, unconvincingly, that these challenges can be resolved once we turn to the abstractions of constitutional theory.

Institutions for Protecting Constitutional Democracy: An Analytic Framework, with Special Reference to Electoral Management Bodies

Constitutional theory dating to Montesquieu identified three branches of government, each with a specific function: the legislature enacted general rules, the executive enforced the rules, and the judiciary resolved disputes about the rules’ meaning and application. Every government had to have these branches in some form; that is, the branches were necessary elements in a governance structure. In addition, the branches were exhaustive: that is, taken together they did everything a government could do.