When is secession legitimate?

<p>Secession claims are not sufficiently dealt with at international law. Similarly theoretical analyses of the moral justifications for secession widely differ, with little scholarly agreement on, for example, whether there is a primary right to secede, a remedial right only, or no right to secede at all. This paper reviews the scholarly debate on legal, moral and constitutional legitimacy of secession, and develops five criteria for assessing the overall legitimacy of a secession claim: (1) nationhood and claim to territory; (2) self-determination and autonomy; (3) treatment at the hands of the state; (4) viability of the proposed state ; and (5) position of the existing state. Applying these criteria to three very different but equally topical possible secession claims - Scotland from the United Kingdom, Catalonia from Spain, and Novorossiya from Ukraine - the interplay between these criteria is demonstrated.</p>

When is secession legitimate?

<p>Secession claims are not sufficiently dealt with at international law. Similarly theoretical analyses of the moral justifications for secession widely differ, with little scholarly agreement on, for example, whether there is a primary right to secede, a remedial right only, or no right to secede at all. This paper reviews the scholarly debate on legal, moral and constitutional legitimacy of secession, and develops five criteria for assessing the overall legitimacy of a secession claim: (1) nationhood and claim to territory; (2) self-determination and autonomy; (3) treatment at the hands of the state; (4) viability of the proposed state ; and (5) position of the existing state. Applying these criteria to three very different but equally topical possible secession claims - Scotland from the United Kingdom, Catalonia from Spain, and Novorossiya from Ukraine - the interplay between these criteria is demonstrated.</p>

Revisiting the legitimacy question of the Nigerian 1999 Constitution

This article revisits the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy. This theoretical and pragmatic approach introduces a refreshing angle to the debate, revealing the paucity of any attempt to ascribe any legitimacy claim to a constitution with a doubtful normative claim and fraudulent attribution of its source and legitimacy to the people. The author finds the consent basis of constitutional legitimacy as most attractive to a divided state like Nigeria, and concludes by advocating the adoption of a blend of the principles of the constituent assembly and post sovereign constitution-making models for the production of a new people-driven and inclusive constitution to meet the needs of the Nigerian people.

From Public Participation to Constitutional Legitimacy: Evidence from Tunisia

Does public participation in constitution-making processes enhance constitutional legitimacy? Using an original public opinion survey conducted in Tunisia shortly after the adoption of the 2014 Constitution, this article examines whether public participation in constitution-making activities enhances perceived constitutional legitimacy. The results show that participants are more likely to support the constitution and its institutions than non-participants. We argue that participation increases constitutional literacy among the general public and this increased knowledge impacts the respondents’ perception of the constitution. The empirical findings confirm normative assumptions of participatory model of the democratic theory and suggest that inclusive and participatory constitutional reform processes, in contrast to an elitist approach, are more likely to yield democratic constitutional outcomes which are supported by larger segments of the society.

Prime ministerial autonomy and intra-executive conflict under semi-presidentialism

This article answers why intra-executive conflict varies across semi-presidential democracies. The literature verifies that intra-executive competition tends to be higher when the president holds less power to dismiss the cabinet, coexists with a minority government, or the president’s party is not represented in the cabinet. This paper, therefore, integrates these factors to construct an index of prime ministerial autonomy, proposing that its relationship with the probability of intra-executive conflict is represented by an inverted U-shaped curve. That is, when the prime minister is subordinated to an elected president, or conversely, enjoys greater room to manoeuvre in the executive affairs of the government, the likelihood of conflict is low. In contrast, significant confrontation emerges when the president claims constitutional legitimacy to rein in the cabinet, and controls the executive to a certain degree. This study verifies hypotheses using data on seventeen semi-presidential democracies in Europe between 1990 and 2015.

Some Reflections on the Constitutional Review in Albania in a Comparison Key

In this study we will try to analyze the foundations of the Constitution as a pillar and as a guarantee for its solidity. The study will also address the need for revision of the constitution as a fundamental element of its existence and continuity. Particular emphasis will be given to the comparison of the constitutions of the most important countries in the world as regards the procedures and limits to the constitutional revision. In this sense, the constitutions of some Balkan Peninsula countries will be analyzed to draw a comparison and analyze the Albanian Constitution as regards the procedure for its revision. The study intends to analyze the procedures for the revision of the Constitution as well as the explicit and implicit limits to these revisions. In the Constitutional revision in Albania in 2016, the role of the Constitutional Court on the control of the constitutional legitimacy of constitutional revision laws was clarified. Formal constitutionality is usually emphasized since the Albanian constitutional reform underlined that the Constitutional Court in Albania could express itself on the constitutionality of the Constitutional revision law only from a formal point of view. Received: 2 January 2021 / Accepted: 27 February 2021 / Published: 7 March 2021

Skype kids and the price elasticity of demand: constructing the common law constitution

In 2017, the Supreme Court held that it was unlawful to charge a British citizen earning £15,000 a year approximately £160 to bring a claim to an employment tribunal, but lawful to prevent their partner from living with them in the UK. This article analyses these two decisions in relation to the Common Law Constitution (CLC). It shows that there was a profound discrepancy in the judicial approach, with structurally different tests employed at sharply different intensities, despite the two cases raising similar legal issues and both plausibly involving interests which have been protected at common law. It is argued that the CLC is being used as guise to promote a distinctive ideology, focused on a set of court-centred norms. This article questions the constitutional legitimacy of this development, which privileges certain norms whilst marginalising others, especially those conducive to the interests of the poor and equal citizenship.

Legislative Capacity & Administrative Power Under Divided Polarization

Conventional wisdom holds that party polarization leads to legislative gridlock, which in turn disables congressional oversight of agencies and thus erodes their constitutional legitimacy and democratic accountability. At the root of this argument is an empirical claim that higher levels of polarization materially reduce legislative productivity as measured by the number of laws passed or the number of issues on the legislative agenda addressed by those laws, both of which are negatively associated with party polarization. By focusing on the content of statutes passed rather than their number, this essay shows that in the era of party polarization and divided government, Congress has actually 1) enacted an ever growing volume of significant regulatory policy (packaged into fewer laws); 2) increasingly employed implementation designs intended to limit bureaucratic and presidential power; and 3) legislated regulatory policy substance in greater detail (reducing bureaucratic discretion) when relying on litigation and courts as a supplement or alternative to bureaucracy. This essay thereby complicates, both empirically and normatively, the relationship between Congress and administrative power in the era of party polarization and divided government.

The Constitutional Court of the Russian Federation as a subject of constitutional responsibility

The subject of the article is justification of the main elements of the constitutional responsibility of the Russian Constitutional Court in the context of constitutional reform. The purpose of the article is confirmation or refutation of the hypothesis that the Constitutional Court must be subject to constitutional responsibility. The methodology. The author uses methods of complex analysis of legislation, synthesis, as well as formal-logical and formal-legal methods. The main results, scope of application. Russia as a democratic state excludes the existence of legally irresponsible subjects of state power. It concerns the Constitutional Court of the Russian Federation. Legal irresponsibility characterizes only the absolute monarchy. The article comprehensively examines the problem of responsibility of the Constitutional Court of the Russian Federation, the reasons for the poor development of this institution in legislation and academic literature are also considered. The reasons for the Constitutional Court's dependence on the President of the Russian Federation as a "guarantor of the Constitution of the Russian Federation" have been systemized. The author considers duumvirate of guarantors of constitutional legitimacy as a nonsense. The reasons for the Constitutional Court's peculiar use of the law of the legislative initiative are considered. This initiative was used only in the direction of increasing the term of the powers of judges of the Constitutional Court from 65 up to 70 years. The life-long status of the President of the Court is seen as a violation of the principle of equality of judges, which is the most important guarantee of the independence of the Constitutional Court. Constitutional reform-2020 completed the process of dependence of the Constitutional Court on the President of the Russian Federation and the "second government" - the Administration of the Russian President. Some constitutional and legal torts of the Constitutional Court of the Russia are considered also. The author comes to the conclusion that judges of the constitutional court have a special responsibility - political, moral and historical. The main questions are need to be resolved: who has the right to state the torts of the constitutional court and what are the consequences of this statement?

Authenticity:The Ultimate Challenge in the Quest for Lasting Constitutional Legitimacy†

The recent upsurge of populism has prompted a wave of theoretical reflections on constitutional democracy. Echoing Max Weber’s sociology of legitimate authority, Bruce Ackerman’s Revolutionary Constitutions: Charismatic Leadership and the Rule of Law stands out from the crowd by providing an ambitious trichotomy of constitutional legitimacy—revolutionary, establishmentarian and elitist—with a focus on the revolutionary pathway. Engaging with Ackerman’s theoretical modelling of the relationship between constitutionalism and legitimate authority, I argue that the resurgence of popular sovereignty, as embodied in We the People in populist rhetoric indicates the centrality of authenticity in constitutional democracy as constitutional authenticity is underpinned by the ethics of being true to the people’s originality. Yet, with the ethics of authenticity assuming its pathological form, the focus has been shifting from making sense of the constitution to the people’s self-identification with individual politicians. The latest wave of populism crystallises the anti-ethics of authenticity in our quest for lasting constitutional legitimacy.