constitutional order
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2022 ◽  
pp. 146349962110663
Author(s):  
Gregory Feldman

This article argues that Schmitt's “state of exception” is only one expression of the deeper sovereign phenomenon, specifically the human capacity to inaugurate new beginnings in shared space. Sovereign action thus includes anything from Schmitt's vertically-imposed state of exception, which eliminates political subjecthood, to the thrill of horizontally-arranged movements, which enable it. To make this argument, the article foregoes the idea of the bounded, internally coherent liberal subject in favor of a relational subject, who is both internally divided and inherently tied to others. The subject's instability and relationality make new beginnings possible and renders sovereign action promising, even if risky. An unexpected example of this fuller view of sovereignty appears in an undercover police team in southern Europe that investigates global human smuggling and trafficking rings. Based on extensive ethnographic research, this article shows how they often act on their own ethical judgments, reached by considering the standpoints of people tied to their investigations, rather than through obedience to law, policy, or superior command. Acting outside constitutional order, these investigators, (re)constitute themselves as particular persons through their joint actions and simultaneously constitute modest sovereign spaces, however tentatively.


2022 ◽  
pp. 019145372110668
Author(s):  
Lasse Thomassen

This article examines the connection between populism and post-foundationalism in the context of contemporary debates about populism as a strategy for the Left. I argue that there is something “populist” about every constitutional order, including liberal democratic ones. I argue so drawing on Chantal Mouffe’s theories of hegemony, agonistic democracy, and left populism. Populism is the quintessential form of post-foundational politics because, rightly understood, populism constructs the object it claims to represent, namely the people. As such, it expresses the fact that, because there is no ultimate foundation, politics consists in the construction of contingent foundations. I develop this argument through readings of Jan-Werner Müller and Chantal Mouffe, showing the differences between their respective post-foundational approaches. I show that Müller cannot uphold the distinction between populism and democracy in the way he seeks to do, but I also argue that this does not mean that we must jettison all normativity, only that it requires that we rethink normativity in hegemonic terms.


2022 ◽  
Author(s):  
Alma Laiadhi

Tunisia is considered a success story of the so-called Arab Spring. In 2014, the country adopted a new constitution and enshrined women's rights in it. Has the constitutional process and the 2014 constitution created a ‘gender-equitable constitutional order’? This thesis critically analyses developments in Tunisia through the lens of gender equity. It traces historical constitutional developments in the Mediterranean region and addresses the role of Islam. Alma Laiadhi iden-tifies a form of ‘femopatriotism’ in gender issues and shows to what extent elements of gender-equitable constitutionalism have emerged in Tunisia—including in its constitutional reality.


2021 ◽  
Vol 2 (16) ◽  
pp. 99-121
Author(s):  
Mykola Anatoliiovych Rubashchenko

The article provides a comparative analysis of the criminal legislation of post-Soviet countries in terms of criminalization of public calls to commit criminal offenses. The criminal codes of the following countries have been studied: Azerbaijan, Belarus, Armenia, Georgia, Estonia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, the Russian Federation, Tajikistan, Turkmenistan and Uzbekistan. Common features of criminalization of public appeals in the named post-Soviet countries are established. Their distinctive features in comparison with the Ukrainian variant of regulation are defined. The list of subsequent crimes in the studied codes is not the same, but there are those whose public appeals are typical of the criminal codes of the vast majority of countries, namely – to: a) aggressive war, b) terrorist crimes, c) encroachments on the constitutional order and territorial integrity, d) mass riots. Unlike many European countries, the criminal codes of post-Soviet countries do not provide for universal types of public appeals (ie appeals to crime in general). The maximum of universalization here is calls only for crimes of a certain kind, for example, calls for terrorist crimes or crimes against the state. That is, it is mostly a case-by-case approach to the criminalization of public appeals – responsibility is established for public appeals to certain actions. In addition, the article draws attention to the following: a) the degree of punishment of public calls, that is, the penalties contained in sanctions (unqualified or «simple» public calls  are mostly punishable by up to 3 years in prison or up to 5 years), b) the differentiation of responsibilities (aggravating circumstances), c) system and placement of special types of public calls in the structure of special parts of criminal codes.


2021 ◽  
Vol 16 (31) ◽  
pp. 145-160
Author(s):  
Dominik Židek

This article aims to analyse the constitutional order of Czechia and the decision-making practice of the courts to define the legal means of environmental protection at the constitutional level. The aim is also to provide the reader with an essential insight into environmental protection in Czechia at the constitutional level so that the legal regulation and decision-making practice can be compared with other countries.


2021 ◽  
pp. 1-22
Author(s):  
Tofigh Maboudi ◽  
Ghazal P. Nadi ◽  
Todd A. Eisenstadt

Abstract Since the third wave of democracy, term limits have become a popular fixture of most constitutions intended to constrain the executive. Yet, recent constitutional reforms around the world show that presidents seeking re-election sometimes overturn the entire constitutional order to extend their power. What is the impact of these constitutional manipulations on the longevity of the executive in office? Using survival analysis of all political leaders and national constitutions from 1875 to 2015, this article demonstrates, for the first time, that when ‘authoritarian-aspiring’ presidents remove constitutional term limits, they increase their stay in office by more than 40%. Our findings contrast with a widely held position in the comparative authoritarian literature suggesting that dictators survive longer under institutional constraints. On the contrary, we argue that by removing constitutional barriers, rulers consolidate more power at the expense of their most ambitious allies and can stay in power longer.


ICL Journal ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Paul Gragl

Abstract Sophocles’ Antigone has been studied intensely for more than two thousand years, but it was especially Hegel’s allegorical use of this tragedy in several of his works (first and foremost the Phenomenology of Spirit) that added yet another fascinating facet to its possible reading: the birth of the legal order and therewith a constitutional system from the conflict between two normative orders. In this contribution, I interpret the dialectic structure of Antigone in a manner in which each normative position – both Antigone’s and Creon’s – are equally justified and thereby antithetic in the ethical world of the Greek polis. It is therefore only by transcending this tragic conflict between the human and the divine orders that we can transform necessary externalities (‘fate’) into a process of a legal status which eventually allows individuals to become the authors of the law itself and thus to guarantee their freedom. I denote this reading of Hegel’s Antigone as ‘symmetrical’, since it accepts both positions – Antigone’s divine law and Creon’s human law – as equal and makes freedom and justice only possible through the law. This means that an ‘asymmetrical’ reading, giving prevalence to either position (for instance, found in Goethe or Habermas) and localizing freedom and justice beyond the law, can never effectively result in a legal status that would allow individual persons to become legal persons.My principal argument consequently is that only a symmetrical view of this normative conflict can justifiably be regarded as making a constitutional order possible in the first place. It is feasible only in a dynamic-genealogical fashion (ie, by constantly generating this order through conflict and the transcending of this conflict through mutual recognition) that concurrently also respects individuals as particular individuals, not just as formal equals among equals, by allowing them to realize their personalities and to find themselves through the arts, science, and philosophy. This is more than a merely formal or negative constitution which recognizes every person as equal and free, but disregards their particularities; this is a material and positive constitution that can guarantee both equality and self-actualization. Such a constitutional order guarantees an identity of universal laws and individuality, and accordingly offers individuals a solution to the conflicting ethical orders of the ancient polis in which they would otherwise remain trapped.


Author(s):  
Martin Loughlin

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.


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