Is there evidence of constitutionalism in classical Confucian political thought? In Sungmoon Kim's book on Confucian virtue politics, he argues that that Mencius (Mengzi, fourth century BCE) and Xunzi (third century BCE) are constitutionalists in the following sense: they expressed a commitment to creating durable institutions, one of whose primary aims is to constrain the exercise of legitimate political authority and facilitate good and proper uses of political authority. But for many political thinkers, the sort of constitutionalism that (...) really matters is the sort that entails a commitment to "constitutional remedies." Roughly, a constitutional remedy is some sanctioned means of enforcing the constraints or correcting political authorities who fail to abide by them. Moreover, it is often thought that the remedies should be entrenched – that is, widely recognized and regarded as beyond the legitimate power of the political authorities to change easily. Most decent political thinkers are constitutionalists in the the weak sense that they think there should be durable institutions that constrain abuses of power and facilitate good uses of power. Fewer go so far as to say that there should be entrenched checks and balances on that power, so that people's well-founded objections have something more than just rhetorical force against abuses of power. -/- In this paper, I examine whether Mencius and Xunzi would qualify as constitutionalists in the robust sense that presupposes entrenched remedies. I find that Mencius has some political commitments that might make him friendlier to aristocratic remedies than to democratic ones, but that his reluctance to divide political authority among non-ideal agents makes it difficult to know whether he would accept constitutional remedies of any sort. And my findings with respect to Xunzi are similar, but a modicum more hopeful: at best, Xunzi could be stretched to underwrite some aristocratic constitutional remedies, and he seems somewhat more open to dividing power among non-ideal agents. Neither Mencius nor Xunzi were robust constitutionalists, but it is historically and philosophically informative to ask how near they came to robust constitutionalism, and in which respects they fell short of it. -/- In the course of developing and justifying my interpretation, I call attention to two considerations in assessing an historical thinker's commitment to robust constitutionalism: first, whether the thinker invokes the threat of rebellion as a way of countenancing it or merely as a descriptive claim about likely consequences of bad governance; second, whether non-ideal political agents are empowered to check abuses of power. Only when the thinker actually countenances rebellion and allows that non-ideal political agents can check abuses can the thinker be plausibly described as a robust constitutionalist. (shrink)

This brief essay contrasts two modes of constitutional change: abusive constitutional projects that seek to erode democracy and restorative constitutional projects that aim to repair eroded democratic constitutional orders. Constitutional democracies are eroded and restored via the same mechanisms: formal processes of constitutional amendment and replacement, legislative amendment, changes to executive policies and practices (or respect for conventions), and processes of judicial decision-making. Under the right conditions, abusive uses of these mechanisms for antidemocratic ends can be reversed by (...) prodemocratic or restorative uses. The more difficult question is what kinds of political discourses are most likely to sustain successful processes of democratic rebuilding. In recent work, we have pointed to the role sometimes played by liberal democratic discourses as purported justifications for processes of abusive constitutional change: we label this the rise of “abusive constitutional borrowing.” Less well understood are the kind of discourses likely to sustain successful democratic healing or rebuilding. Often, the most popular discourse is a restorative one, which focuses on repairing damage caused by authoritarians and returning to a constitutional status quo ante. In this essay, we discuss the advantages and disadvantages of restorative constitutionalism as a response to prior episodes of democratic erosion. (shrink)

This dissertation argues that the current tendency to define liberal constitutionalism in terms of the impersonal and formalistic ideals of the rule of law diverges from early liberal theories of constitutionalism, which were sensitive to the occasional need for extra-legal discretionary exercises of power to deal with the unpredictable contingencies of politics. This understanding of politics shaped the constitutional and political thought of liberal thinkers from John Locke, David Hume, and William Blackstone to Alexander Hamilton, James Madison, and (...) other Federalists who defended the extraordinary powers of the American presidency. Since these early liberals recognized that it would sometimes be necessary for an executive to perform extraordinary actions in response to unforeseeable events, they were reluctant to place excessive legal checks on executive power. Consequently, they emphasized the importance of limiting executive power to those with "fit characters." In particular, they looked to those politico-moral virtues associated with republicanism to supplement and enhance the constitutional machinery of government that was designed with the ordinary course of politics in mind. Although early liberal theorists and the designers of the American Constitution abandoned many of the core principles of republicanism, particularly its reliance on a virtuous and active citizenry as the best guarantee of free government, they preserved a place for distinctively republican virtues such as patriotism and disinterestedness in the office of the executive. In fact, the Federalists made the American presidency the primary repository of republican virtue in the new government. The first century of liberal constitutional theorists was actually skeptical of the ability of impersonal institutional devices such as the separation of powers and checks and balances to secure a free and effective government without the presence of fit characters. Since formal institutions are imperfect and often inadequate---both in dealing with political contingencies and in checking the executive---these thinkers supplemented legal and institutional safeguards with character requirements to minimize potential abuses of largely indeterminate executive powers irreducible to law. An abiding conviction that uncertainty is the only certainty in politics led them to prefer flexible approaches rather than the rigid formulas in theorizing constitutionalism. (shrink)

The world is experiencing a crisis of constitutional democracies. Populist leaders are abusing constitutional mechanisms, such as formal procedures of constitutional change, in order to erode the democratic order. The changes are, very often, gradual, incremental, and subtle. Each constitutional change, on its own, may not necessarily amount to a serious violation of essential democratic values. Yet, when examined in the context of an ongoing process, such constitutional changes may prove to be part of the incremental, gradual process of democratic (...) erosion in which the whole is greater than the sum of its parts. This Article explores how courts can respond to such constitutional changes. We argue the Unconstitutional Constitutional Amendment Doctrine should be adapted to respond to existing constitutional practices that utilize incremental and subtle amendments to dismantle the democratic order. We suggest that an aggregated judicial review should be developed. We must also rethink the automatic immunity – the result of two hundred years of revolutionary constitutional theory – provided to complete constitutional replacement from constitutional restrictions and scrutiny. Finally, as opposed to the instinct to require judicial self-restraint with respect to constitutional changes that concern the judiciary itself, we suggest that this is perhaps the type of changes that require strictest scrutiny. (shrink)

The article takes up the difficult problem of the so-called disobedience of judges against the background of the experiences of the Polish departure from constitutional democracy in 2015–2020. The special role and responsibility of a judge in the state imposes restrictions on her freedom of opinion in the public sphere. Openly manifesting opposition to government policy, which in the case of an ordinary citizen is only the implementation of human rights and freedoms, may be described as controversial and contrary to (...) applicable ethical regulations. The main thesis of this paper is the assertion that although judges who act as impartial arbitrators in disputes should generally refrain from ostentatiously opposing the actions of political authorities, they are not deprived of the possibility of protest. Also in the exercise of office, and not outside the sphere of their duties, judges should take into account overriding moral values that should be implemented by the legal order, and not the values or declarations guiding the government policies. The integrity of the judge, which prescribes restraint in statements and actions in the public sphere, as well as the care for the dignity of the office held, should not be confused with absolute subordination to the legislature or the executive, even if the judge is obliged to apply the law. The traditional attitude of the members of the judiciary, consisting in focusing only on the application of the law in individual cases and the lack of any political involvement, is being reviewed in the face of the spread of majoritarianism and the law abuse as normal techniques of exercising public authority. The disobedience of judges—although difficult to defend at first sight—may seem to be the only possible way to draw public attention to the corruption of the state system. The ‘disobediant’ judges can even be assigned the role of ‘whistleblowers’, which should help to ease their legal liability or their future rehabilitation. (shrink)

Recent republican debates about judicial review have focused on whether courts deliver legitimate forms of political contestation about rights. These ‘political constitutionalists’ frame the separation of powers as a matter of ‘friction’. The rival approach emphasizes whether the expertise and capacity of courts can ‘efficiently’ get certain jobs done to secure different ends. These rival approaches inform debates about judicial review and bills of rights. This article argues that emphasizing political contestation fails to address the problem of complicity between the (...) branches. Judicial politics in the USA, Canada, the UK and New Zealand suggests that judicial complicity with the political branches lets political actors escape democratic accountability for policy choices related to rights. Courts enable this by abusing the power to interpret law to help political factions protect or reform the status quo. As such, liberty can have something to fear from the judiciary when it does not act alone. (shrink)

In addition to this much-needed clarification of the uses and abuses of the term "modernity," Yack here provides a fresh look at familiar modern ideas and practices such as nationalism, constitutionalism, and liberal democratic politics. Our world, the author suggests, offers us far stranger and more unexpected combinations that are dreamt of in modernist and postmodernist philosophies. His critique of the tendency to treat modernity as an integrated and coherent whole will expand the reader's vision to take in the (...) broader landscape of surprising and inconsistent features in the social and political world that surrounds us. The Fetishism of Modernities will be of interest to social, political and cultural theorists, intellectual historians and philosophers, as well as anyone with a stake in current debates about modernity and postmodernity. (shrink)

Among the most prominent and significant political and legal developments since the end of the Cold War is the proliferation of mechanisms for addressing the complex challenges of transition from authoritarian rule to human rights-based democratic constitutionalism, particularly with regards to the demands for accountability in relation to conflicts and abuses of the past. Whether one thinks of the Middle East, South Africa, the Balkans, Latin America, or Cambodia, an extraordinary amount of knowledge has been gained and processes instituted (...) through transitional justice. No longer a byproduct or afterthought, transitional justice is unquestionably the driver of political change. In Globalizing Transitional Justice, Ruti G. Teitel provides a collection of her own essays that embody her evolving reflections on the practice and discourse of transitional justice since her book Transitional Justice published back in 2000. In this new book, Teitel focuses on the ways in which transitional justice concepts have found legal expression, especially through human rights law and jurisprudence, and international criminal law. These essays shed light on some of the difficult choices encountered in the design of transitional justice: criminal trials vs. amnesties, or truth commissions; domestic or international processes; peace and reconciliation vs. accountability and punishment. Transitional justice is considered not only in relation to political events and legal developments, but also in relation to the broader social and cultural tendencies of our times. (shrink)

There is widespread agreement that democracy today faces unprecedented challenges. Populism has pushed governments in new and surprising constitutional directions. Analysing the constitutional system of illiberal democracies and illiberal phenomena in 'mature democracies' that are justified in the name of 'the will of the people', this book explains that this drift to mild despotism is not authoritarianism, but an abuse of constitutionalism. Illiberal governments claim that they are as democratic and constitutional as any other. They also claim that they (...) are more popular and therefore more genuine because their rule is based on conservative, plebeian and 'patriotic' constitutional and rule of law values rather than the values liberals espouse. However, this book shows that these claims are deeply deceptive - an abuse of constitutionalism and the rule of law, not a different conception of these ideas. (shrink)

In this article the author analyzes the first written constitutions adopted at the end of the eighteenth century (the Constitution of the United States of 1787, the Constitution of Polish – Lithuanian State and the Constitution of France of 1791). These constitutional acts mark the beginning of the era of constitutionalism. These are the constitutions of the first phase (‘wave’) of constitutional development, which laid the foundations for the further establishment of constitutionalism in the world. The history of (...) the first modern constitutions confirms that the nations adopt constitutions in order to protect individuals from possible abuses of state power. The essence of constitutional regulation is the restriction of this power. The three countries differ in many ways, but all had certain tradition of the restriction of powers. The first modern constitutions established the separation of powers and protected classical individual rights. They have become an example for the authors of later constitutions. These constitutions propose legal standards for constitutional development. Each of these constitutions is an original system of principles and norms. (shrink)

Constitutionalism offers a governance order a set of normative values including, amongst others, the rule of law, divisions of power and democratic legitimacy. These normative values regulate the relationship between constituent and constituted power holders. Such normative constitutional legal orders are commonplace in domestic systems but the global constitutionalisation debate seeks to identify a constitutional narrative beyond the state. This book considers the manner in which the global constitutionalisation debate has neglected constitutionalism within its proposals. It examines the (...) role normative constitutionalism plays within a constitutionalisation process, and considers the use of community at both the domestic and global governance levels to identify the holders of constituent and constituted power within a constitutional order. In doing so this analysis offers an alternative narrative for global constitutionalisation based within normative constitutionalism. (shrink)

This chapter deals with a brief word about the Christian doctrine of Incarnation. The doctrine of the Incarnation, which takes Jesus Christ to be a person fully human and fully divine, requires a slight modification of constitutionalism. Constitutionalism seems to have an advantage over mind‐body dualism about Christ's nature: his human nature is wholly material and his divine nature is wholly immaterial. The chapter also focuses on Christian doctrines of resurrection of the dead. Next, it discusses St Thomas (...) Aquinas's views in particular, and points to a few difficulties it has. It shows how constitutionalism can avoid Thomas's difficulties and provides an understanding of the doctrine of resurrection without immaterial souls. Aquinas gives a way to distinguish between Smith's and Brown's souls between death and the general resurrection. Separated souls are individuated by the bodies that they long for. Each separated soul has an affinity for the body with which it was united during earthlylife. (shrink)

Crown under Law is an investigation of the constitutional idea through an exploration of the political thought of Richard Hooker and John Locke. It should appeal to academics within a number of disciplines including history of ideas, political philosophy, philosophy of law, and theology.

Most of the world’s constitutions contain clauses guaranteeing sex equality, and many also extend the special protection of the state to mothers. The constitutional protection of motherhood is undertheorized and neglected in global constitutional discourse, perhaps because jurisdictions like the United States view the special protection of women as contrary to gender equality. This Essay explores the feminist meanings and possibilities of constitutional motherhood clauses, by focusing on Germany, where they originated in 1919. While motherhood clauses have had complex relationships (...) with a range of feminist agendas, they solidified the notion that social reproduction was a subject for constitutional lawmaking. Addressing twenty-first century gender inequalities requires a more robust engagement of women’s disproportionate burdens in social reproduction. Having opened up a constitutional discourse around the challenges of social reproduction, motherhood clauses and gender equality guarantees can drive the search for new solutions. (shrink)

For the last two years journalists have asked whether Donald Trump is a Machiavellian “prince.” But a truly “Machiavellian” prince would never be suspected as such. He would follow Machiavelli’s advice always to appear to be merciful, faithful, humane, honest, and religious. Trump does not manifest any of these qualities. To prevent him from enacting dangerous policies, Machiavelli would advise us to rely on the checks and balances established by our constitution. Some critics have argued that the constitutional checks are (...) no longer effective, because the American people have become corrupt. The problem, however, is not popular corruption so much as a lack of leadership and imagination in designing remedies for the weakening of the constitutional checks that have resulted from changes in election laws and advances in modern technology. (shrink)

This chapter contains sections titled: Introduction The Weakest Meaning of “Constitutionalism” Constitutionalism as a Theory Particular and General Constitutionalism Explicit and Implicit Constitutions Constitutionalism and Written Constitutions Constitutionalism and Constraint Empowerment and Authority Democracy: Constraint or Empowerment? Constitutionalism versus Democracy Popular Sovereignty Judicial Review of Legislation Concluding Remark Notes.

The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, (...) the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law. (shrink)

Despite mounting evidence that abusive supervision triggers interpersonal aggression, much remains unknown regarding the underlying causal mechanisms within this relationship. We explore the role of turnover intentions as a mediator in the relationship between abusive supervision and subsequent supervisor-rated interpersonal aggression. We use a sample of 324 supervisor–subordinate dyads from nine organizations and find support for this mediation effect. Furthermore, we find that power-distance orientation and perceived human resource support climate, as important boundary conditions, independently interact with (...) class='Hi'>abusive supervision to weaken this positive impact on turnover intentions, thereby reducing interpersonal aggression. We also find via turnover intentions that abusive supervision intensifies interpersonal aggression among high power-distance-oriented individuals when the HR support climate is perceived to be low. Theoretical and practical implications are discussed. (shrink)

The standard opinion is that the force of the constitution hinges on the fact that it is willingly endorsed by the people or, at least representative of the people. This Article challenges this view. More specifically, I differentiate between two types of legitimation: representational legitimation and non-representational or reason-based legitimation. While representational legitimation rests on the fact that the constitution is representative of who the people are or what they want, reason-based constitutions are based on the judgement that the constitution (...) is just or, at least grounded in reason. I also show that some of the puzzles in constitutional theory can be resolved by acknowledging the significance of the latter type of legitimation. For instance, I illustrate that constitutions that were not adopted freely by the nations and could not have been characterized as representative of the people such as the German Constitution can still be legitimate. To put it provocatively: the legitimation of a constitution need not rest on the conviction that it represents the people whom it governs; it may simply rest on the belief that it is a good or just constitution. Representational legitimacy is only one form of legitimacy but not the only one. (shrink)

This review of Madhav Kkhosla’s book, India’s Founding Moment, sees his approach as one of “best lights” understandings, that is, an effort to identify and explain the conceptual underpinnings of India’s founding constitution in their best lights. Khosla emphasizes as key the ways in which the constitution’s requirements of full adult suffrage, its intense specificity of language, and its strongly centralized government form, all contribute conceptually to the creation of the democratic citizen of India—a citizen whose rights across the country (...) were secured by a common constitution and central government, whose knowledge of and ability to exercise rights were enhanced by the constitution’s codified approach, and a citizen whose capacities to participate in democratic processes would be developed by the exercise of democratic rights. The review focuses attention on choices about suffrage, comparing India’s with the less inclusionary founding impulses of the United States constitution. It explores nuances of how codification would and would not promote exercises of citizenship rights, noting the importance of adjudication in the construction of the “common knowledge” to which the founders aspired. And the review argues that today, as more illiberal, authoritarian regimes are on the rise, the book’s emphasis on the importance of ideas, words, and common knowledge in constructing liberal, democratic politics is of urgent contemporary importance. (shrink)

This book focuses on Andrew Arato’s democratic theory and its relevance to contemporary issues such as processes of democratization, civil society, constitution-making, and the modern Executive. Andrew Arato is -both globally and disciplinarily- a prominent thinker in the fields of democratic theory, constitutional law, and comparative politics, influencing several generations of scholars. This is the first volume to systematically address his democratic theory. Including contributions from leading scholars such as Dick Howard, Ulrich Preuss, Hubertus Buchstein, Janos Kis, Uri Ram, Leonardo (...) Avritzer, Carlos de la Torre, and Nicolás Lynch, this book is organized around three major areas of Arato´s influence on contemporary political and social thought. The first section offers a comprehensive view of Arato’s scholarship from his early work on critical theory and Western Marxism to his current research on constitution-making and its application. The second section shifts its focus from the previous, comprehensive approach, to a much more specific one: Arato´s widespread influence on the study of civil society in democratization processes in Latin America. The third section includes a previously unpublished work, ‘A conceptual history of dictatorship (and its rivals,)’ one of the few systematic interrogations on the meaning of a political form of fundamental relevance in the contemporary world. Critical Theory and Democracy will be of interest to critical and social theorists, and all Arato scholars. (shrink)

Modern dünyada Anayasalcılık düşüncesinin siyasi iktidarın sınırlandırılması ve insan haklarının güvence altına alınması şeklinde iki temel işlevinin bulunduğunda herhangi bir şüphe yoktur. Buna karşın iktidarın sınırlandırılmasının netice bakımından insan haklarına olumlu etkilerinin olacağını da söylemek mümkündür. Medine Vesikası, İslam tarihinin en önemli belgelerinden biri olma özelliğine sahiptir. İslam dininin peygamberi Hz. Muhammed’in Medine’ye hicret ettikten sonra, şehirde yaşayan farklı din, kültür ve ırktan insanlar arasında birlik, barış ve adaletin sağlanması için kabul edilen bir vesikadır. Anayasa, devletin işleyişini ve yetki dağılımını (...) düzenlemektedir. Medine Vesikası’nda, şehir devletinin idari, yargısal ve askeri işleyişine dair kurallar yer almaktadır. Medine Vesikası’nda, şehir devletinin üyelerinin can, mal, din, vicdan gibi temel haklarına saygı gösterilmesi istenmiştir. Ayrıca farklı din ve kültürlere mensup insanların kendi geleneklerine göre yaşamalarına izin verilmiştir. Medine Vesikası’nda da şehir devletinin üyelerinin birbirleriyle ve Peygamber ile karşılıklı olarak bazı haklarını devrettikleri görülmektedir. Medine Vesikası’nın tarihte bilinen ilk yazılı Anayasa olduğu dahi ileri sürülmektedir. Bu çalışmada Anayasa hukuku bağlamında Medine Vesikası’nın Anayasal niteliği ele alınacaktır. (shrink)

Rule of law and constitutionalist ideals are understood by many, if not most, as necessary to create a just political order. Defying the traditional division between normative and positive theoretical approaches, this book explores how political reality on the one hand, and constitutional ideals on the other, mutually inform and influence each other. Seventeen chapters from leading international scholars cover a diverse range of topics and case studies to test the hypothesis that the best normative theories, including those regarding the (...) role of constitutions, constitutionalism and the rule of law, conceive of the ideal and the real as mutually regulating. (shrink)

Research Articles Michael Zuckert, Social Philosophy and Policy, FirstView Article.

This article examines Cicero’s treatment of libertas and its constitutional underpinnings in Pro Rabirio perduellionis reo. In Pro Rabirio, Cicero offers a concentrated discussion of libertas in which he downplays its relationship with popular institutions and procedures and emphasizes instead its strong correlation with social and political consensus. Indeed, for Cicero, libertas is more closely associated with the qualitative characteristics of peaceable association than any particular constitutional order. By characterizing libertas as an experience of calm security that goods citizens enjoy (...) when they are consistently and effectively protected against by injury at the hands of moral degenerates, Cicero makes it possible to distance libertas from provocatio and auxilium, the two major legal and institutional mechanisms associated with libertas in the Roman context, and forge a much stronger connection with the self-regulating activity of the Roman ruling elite. (shrink)

In _Sociocybernetics and Political Theory in a Complex World_, Roberto Mancilla offers new takes on known ideas of political and constitutional theory; the advent of information technology and globalization puts them in crisis, as many stem from centuries past.