The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just (...) Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism. (shrink)

The transformation of international law has provoked a burgeoning literature on various conceptual and normative questions, such as the nature and legitimacy of international authorities. Constitutional and international scholars have so far been attracted to domestic normative theories such as constitutionalism, democratic legitimacy, and the rule of law. This attraction often comes at the expense of a more fundamental and prior question: How best to carry out this normative investigation and which normative theory to put into use in assessing (...) the moral value of international authorities? This “meta-theoretical question” invites us to investigate the methodology of transnational constitutional theorizing by prompting discussions on which normative theory is more suitable for application at the international level. This review article brings into dialogue two recently published books (Sadurski’s Constitutional Public Reason and Mac Amhlaigh’s New Constitutional Horizons) that partially address this meta-theoretical question by prompting us to reflect on how best to conduct transnational constitutional theorizing. (shrink)

As a metaphysic of human persons, constitutionalism in its most general form is the view that human persons are constituted by their bodies, but are not strictly identical to them. The relation between human persons and their bodies is that of constitution, a type of unity relation whose relata are strictly nonidentical; “constitution is not identity”, as the phrase goes. As the literature on constitutionalism is plentiful the proponents and critics of the view are many the author will (...) interact principally (though not exclusively) with the brand of constitutionalism defended by Lynne Rudder Baker. Constitutionalism runs afoul of an independently plausible principle regarding the relationship between persons and their mental lives, what Andrew Bailey has called the priority principle. The principal motivating factor behind the priority principle is that human persons are the ultimate source or originator of their mental lives. (shrink)

Thomas Sattig has argued recently that constitutionalism renders determinism about the actual world false, just in virtue of ordinary facts about ordinary middle-sized material objects. However, it seems that, if determinism about the actual world is false, this should be so for reasons of physics rather than in virtue of ordinary facts about ordinary objects. This is the problem of cheap indeterminism. Sattig also claims, however, that constitutionalists can solve this problem if they abandon an attractive and promising solution (...) to the classical grounding problem affecting their view. In this paper I argue that, against his claims, constitutionalists can solve the problem of cheap indeterminism and the grounding problem simultaneously. (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 article presents a plebeian strand of republican constitutional thought that recognises the influence of inequality on political power, embraces conflict as the effective cause of free government, and channels its anti-oligarchic energy through the constitutional structure. First it engages with two modern plebeian thinkers – Niccolò Machiavelli and Nicolas de Condorcet - focusing on the institutional role of the common people to resist oppression through ordinary and extraordinary political action. Then it discusses the work of two contemporary republican thinkers (...) – Philip Pettit and John McCormick – and contrasts their models of ‘contestatory’ and ‘tribunician’ democracy. Finally, I incorporate a political economy lens and propose as part of republican constitutionalism not only contestatory and tribunician institutions but also anti-oligarchic basic rules to keep inequality and corruption under control. (shrink)

This essay analyzes neo-liberal economic agreements and legal and political frameworks or what has been called the “new constitutionalism,” a governance framework that empowers market forces to reshape economic and social development worldwide. The article highlights some consequences of new constitutionalism for caring institutions specifically, and for what feminists call social reproduction more generally: the biological reproduction of the species; the reproduction of labor power; and the reproduction of social institutions and processes associated with the creation and maintenance (...) of communities. New constitutional governance frameworks fundamentally reshape conditions under which the care of human beings takes place. Caring institutions once governed by enabling professions geared to universal care are now determined increasingly by market values and private forces, and driven directly by the profit motive. This is one of the reasons why neo-liberalism is increasingly contested in both the North and the global South. (shrink)

This paper has several aims. Its main interpretive task is to argue that the democratic aspirations of contemporary critical theory are informed and haunted by an essentially Hegelian conception of constitutional order that I describe in part 1, according to which the modern state represents an institutional structure that integrates society through rational activity by mediating between the different interests of various social strata, connecting them in a common enterprise—haunted, because this Hegelian vision of making individuals free and “at home” (...) in the modern world, reconciled to it by virtue of being able to comprehend their social order as the work of their own shared reasons, remains a griping one, but one that critical theorists starting with the Left Hegelians view as increasingly implausible under modern social conditions. In section 2, I trace the decline of confidence in the prospects for the rational/mediational integration of society Hegel envisioned through Horkheimer and Adorno, and discuss some relevant aspects of Habermas’s initial reception of their views. Section 3 argues that the conceptions of democratic constitutional politics offered by Habermas and Benhabib should be read as attempts to recover, in a critical manner and under changed conditions, Hegel’s idea of social order as the product of rational activity. Along the way, I will make three interpretive and critical points: first, the existence of this link to Hegelian conceptions of constitutionalism demonstrates that interpretations of Habermas’s later work that read him as having broken with the tradition of Left Hegelianism are overstated—my reading of Habermas highlights his essentially Hegelian proceduralism and the social theoretic dimension of his work, and should challenge people who think of him as a neo-Kantian moralist. Second, this Left Hegelian social theoretic backdrop provides a stronger normative justification for the practice of democratically rearticulating constitutional norms—along with its apparent demotion of the stabilizing virtues of the rule of law—than the contextual one that some legal theorists have so far offered. Thirdly, I will comment on the shortcomings of Habermas’s conception of democratic constitutionalism, as well as Benhabib’s modified concept of “democratic iterations,” along with some brief suggestions on how this set of ideas should be developed. (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)

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)

Constitutionalism: Past, Present, and Future will offer a definitive collection of Professor Dieter Grimm's most important scholarly writings on constitutional thought and interpretation. The essays included in this volume explore the conditions under which the modern constitution could emerge; they treat the characteristics that must be given if the constitution may be called an achievement, the appropriate way to understand and interpret constitutional law under current conditions, the function of judicial review, the remaining role of national constitutions in a (...) changing world, as well as the possibility of supra-national constitutionalism.Many of these essays have influenced the German and European discussion on constitutionalism and for the first time, much of the work of one of German's leading scholars of public law will be available in the English language. (shrink)

Neither the historical tradition of American constitutionalism nor those who have theorized about it have promoted political or theoretical designs hospitable to the valorization or promotion of democratic virtue. This article illustrates this point by canvassing practical interpretations of the American constitution, from the document of 1787–1791 to Bush v. Gore, and theoretical interpretations from Madison to Rawls, Dworkin, Ackerman, Elster, Holmes, and other contemporary theorists of liberal constitutionalism and natural law. Exposing these roadblocks to the theory and (...) practice of democratic virtue in America, it argues, provides a critical corrective to current debates about the relationship between constitutionalism and democracy. (shrink)

The threat of terrorism once again raises some of the classic questions about constitutionalism: is it possible for constitutions to do what they aim to do—channel and control political power in such a way as to make it safe and beneficent for those under its rule but also competent to govern? Does not terrorism reraise the Schmittian problem of “the exception”, i.e., the situation of emergency that necessarily escapes all constitutional limitations? Although they did not face the problem of (...) terrorism as we know it, the American founders developed three different models of constitutionalism, embodying three different ways of responding to emergent circumstances and yet remaining bound to the constitutionalist aspiration. We develop the main outlines of the three models both conceptually and historically and show how they continue to be relevant to current discussions of constitutionalism in the age of terror. Finally, we make a tentative effort to judge which of the three models is most able to do what constitutions should do in difficult times. (shrink)

SummaryThe Admonition Controversy, largely between Thomas Cartwright and John Whitgift has proven fecund ground for intellectual historians analysing the religious dimension to early-modern political ideas. This paper argues that the religious dimension of Cartwright's mixed constitutionalism needs better explanation, rather than just noting that his ecclesiastical mixed constitutionalism mirrors his political mixed constitutionalism. This paper tracks Cartwright's progressive, dialogical unfolding of his mixed constitutionalism in response to Whitgift's attempt to derive episcopacy from the fact of English (...) monarchy, effectively discrediting the Admonition to Parliament. Furthermore, the essay outlines how the Cartwright–Whitgift debate led Cartwright to emphasise a parliamentarist mixed constitution when most of his contemporaries, especially the more famous mixed constitutionalist, Thomas Smith, portrayed the English parliament leaning noticeably towards the monarch. This analysis accepts that religious polemic was a major driving force in the normalisation of parliamentarism, yet seeks to show exactly how this worked out in one of the most important church–state disputes in Elizabethan England. (shrink)

Investigates, by way of Derrida's engagements with Kant, how the foundations of modern constitutionalism can be differently conceived to address some of the challenges of the twenty-first century.

As South Africa’s governing party between 1994 and 2024, the African National Congress (ANC) was in poll position to use the powers of state to effect the imaginary of the 1996 Constitution. This imaginary provides for the overturning of colonial and apartheid legacies to actualise the human potential of those previously excluded on the basis of race, gender, class, and sexuality. Due to a failure of political imagination, merely the top echelons of economic relations of power were deracialised. Most of (...) the population, and therefore most black people, remain mired in poverty. This failure opened the door to a discourse of anti-constitutionalism aimed at securing impunity for a predatory power elite. Instead of constitutional failure, as anti-constitutionalist detractors would have it, the lack of substantive change should be ascribed to the ANC’s policy decision to embrace a neoliberal form of capitalism, while paradoxically continuing with post-socialist adherences. These are identified as the ‘two-stage theory’ of historical change, which is unpacked along with the related ‘national democratic revolution’ and ‘colonialism of a special type’. How the post-socialist imaginary gave succour to clashing ANC factions is shown–and how it created a political culture at best ambivalent to substantive democracy as envisaged in the 1996 Constitution, and at worst authoritarian. Lubricated by an ethno-racial populism akin to that seen elsewhere on the globe, anti-constitutionalism found policy expression in the new uMkhonto weSizwe Party, founded by former president of the ANC and of South Africa, Jacob Zuma, the main accused in South Africa’s grand corruption known as state capture. (shrink)

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)

This book provides insights into the viability of the idea of global constitution. Global constitutionalism has emerged as an alternative paradigm for international law. However, in view of the complex and varied structure of contemporary constitutionalism, in reality it is extremely difficult to use constitutional law to provide a new paradigm for international law. The book argues that the cultural paradigm can offer functional tools for the global constitutionalism discourse. In other words, global constitutionalism could be (...) handled in the context of a global "constitutional culture" instead of a global constitution. This would provide a more realistic basis for discussing global constitutionalization of a society as diverse as the international community, where a globalized polity and a globalized legal system have not yet been achieved. (shrink)

The central argument of this book is that liberalism, constitutionalism, and democracy, as well as, specifically, liberal constitutional democracy all work, when they do, because they serve the mutual advantage of the politically effective groups in the society through coordination of those groups on a political and, perhaps, economic order. These arguments are applied both to the early history of constitutional developments in the United States and to contemporary transitions from autocratic regimes to market democracies. A subsidiary claim is (...) that constitutional political institutions and democratic procedures generally require not so much active support as merely acquiescence in order to survive and work. These are explanatory theses, not normative claims, but they have relevance for normative claims if one takes seriously some relative of Kant's dictum that ought implies can. If we are to insist that some form of government is normatively right for a particular society, we must be able to say that it would or could work for that society. It is commonly argued that what makes democracy right is that it works by consent. If so, it is such a distressingly minimal form of consent—acquiescence—as to be normatively disqualified. If we rule out mere acquiescence as adequate for consent, it seems likely that no credible argument can be adduced to defend liberal constitutional democracy in any detail on grounds of consent or contractarianism. Hence, concern for workability, which should be central to any moral assessment of principles of social order, undercuts the entire consent school of political theory. (shrink)

The eleven essays in this volume, supplemented by an editorial introduction, centre around three overlapping problems. First, why would a society want to limit its own sovereign power by imposing constitutional constraints on democratic decision-making? Second, what are the contributions of democracy and constitutions to efficient government? Third, what are the relations among democracy, constitutionalism, and private property? This comprehensive discussion of the problems inherent in constitutional democracy will be of interest to students in a variety of social sciences. (...) It illuminates particularly the current efforts of many countries, especially in Latin America, to establish stable democratic regimes. (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)

In writing the essay on “factions” in The Federalist Papers, James Madison was able to point to one of the major purposes of the new United States Constitution, namely, to deal with the emergence of conflicting interests in the new commercial society. This represents the transformation from classical constitutionalism with its focus on virtue to modern constitutionalism with its preoccupation with the mediation of interests. As such, this transformation points to the reconstruction of the domain of the political.

How is legitimacy to be secured for constitution-like legal orders operating beyond the state? Some scholars recommend connecting aspects of global law to human rights adjudication and enforcement by adopting their preferred method for resolving conflicts, namely, proportionality analysis. Adopting a frame of analysis widely embraced by apex courts might generate the requisite regime legitimacy, it is argued. This turns out to be a strategy that is difficult to pursue in the realm of international investment law, a global legal order (...) made up of over 3,300 investment and regional treaties, enforced by private systems of dispute resolution, that incorporates standards of treatment familiar to national constitutional law. By undertaking an analysis of statements made by relevant actors in the field, principally investment lawyers and arbitrators, we learn that there is not that much interest in taking up proportionality analysis, despite the legitimacy problems that continue to dog the system. Whatever the purported advantages of turning to proportionality, it turns out that investment lawyers and arbitrators are not so interested in embracing logics other than one preoccupied with owing solicitude to foreign investors. This reluctance renders investment law a less legitimate, and therefore less sustainable, form of constitution-like global law. (shrink)

The theory and practice of constitutionalism is tightly interwoven with references and appeals to values. However, these references and appeals frequently remain undertheorized and are seldom connected directly to philosophical theories of value. This chapter outlines some ways in which such connections might be established.

The article examines the compatibility of agonistic democracy and populism as well as their relationship to the idea of constitutionalism. The first part shows that Chantal Mouffe’s recent attempts to reconcile her normative approach of an agonistic pluralism with a populist style of politics are not fully convincing. Although there are undeniable commonalities between an agonistic and a populist understanding of politics – the appreciation of conflict, the rejection of moralistic and juridical modes of conflict resolution etc. – the (...) populist mode of the construction of the people (and the denunciation of political opponents as enemies of the people) risks impeding the transformation of antagonistic into agonistic modes of political contest. The tensions between agonism and populism are especially evident in matters of constitutionalism. This topic is examined in the second part of the article, which provides some ideas for reducing the normative and institutional blind spots of contemporary theories of agonistic democracy. It focuses on elementary principles for an agonistic concept of democratic constitutionalism that differs from the populist view of the relationship between politics and law, especially in respect of its interpretation of the concept of ‘resistibility’ of legal norms. (shrink)

Constitutionalism in an Age of Diversity James Tully. these ambassadors from Haida Gwaii conciliate the goods which appear irreconcilable to us? To discover the answer, and learn our way around on this strange common ground, we need to ...

This chapter contains section titled: What Constitutions Are What Constitutions Do Are Constitutions Desirable? References.

The very idea of the draft European Union (EU) Constitutional Treaty was reexamined after the failed French and Dutch referendums and the Treaty of Lisbon (also known as the Reform Treaty) was drafted and entered into force on 1 December 2009 after it’s ratification by all 27 member states. The traditional notion of a Constitution as a national legal document establishing the social contract and a moral minimum for a particular socially unified group still prevails in legal and political thinking. (...) Indeed, the European Union has some constitutional elements, but absence of the so called ‘European demos’ prevents us from recognizing the founding treaties as a real ‘European constitution’ in the proper sense of the word. The author agrees with the decision to exclude the term ‘Constitution’ from the title and contents of the new Reform Treaty. The author also suggests that softer terms, like ‘European constitutional order’ and ‘European Constitutionalism’ might better reflect the scope of contemporary European integration than the term of ‘a Constitution for Europe’. A rethinking of the ‘constitutional core’ of the Lisbon Treaty was inspired following the so-called Lisbon judgments of Czech, Latvian and German constitutional courts. (shrink)

Global constitutionalism : positivism and international law -- International trade law : theories and practices in negotiations -- Making rules in the WTO : negotiations from Doha to Bali -- North-South controversy : developed and developing countries in the WTO -- Self-determination and minority rights under international law -- Human right : the interlocutor of global constitutionalism -- Asian approaches to international law -- The future of international law.

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)

This is the second volume in a sub-series of specially commissioned collaborative volumes on key topics at the heart of contemporary philosophy of law that will be appearing regularly within Cambridge Studies in Philosophy and Law. A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as: why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? Why should one generation (...) feel bound by the constitution of an earlier one? The volume will be of particular importance to those in philosophy, law, political science and international relations interested in what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation. (shrink)

Constitutionalism and the Rule of Law are related ideas about how the powers of government and of state officials are to be limited. The two ideas are sometimes equated. But constitutionalism, generally understood, usually refers to various constitutional devices and procedures, such as the separation of powers between the legislature, the executive and the judiciary, the independence of the judiciary, due process or fair hearings for those charged with criminal offences, and respect for individual rights, which are partly (...) constitutive of a liberal democratic system of government. The Rule of Law, on the other hand, embodies certain standards that define the characteristic virtues of a legal system as such. (shrink)

Drawing upon Hannah Arendt's and Carl Schmitt's theories on the relationship between nomos and boundary, this paper revisits how constitutionalism and political power are reconciled as constitutional ordering. It first analyzes constitutionalism in the light of political modernity. Indicating that political power grounded by constitutions is omnipotent, complementing and completing constitutionalism, the paper contends that an omnipotent constitutional ordering is anything but an unleashed Leviathan. It is argued that constitutional omnipotence is framed and thus constrained by a (...) constitutional nomos, the matrix of which is a dual delimitation of boundaries, generational, and jurisdictional. (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)

Globalization is a topic of some anxiety among international lawyers. On the one hand, its fluid dynamics — fragmentation, deformalization and empire — undermine traditional diplomatic rules and institutions. On the other hand, the effort to reimagine international law in purely managerial terms appears intellectually shallow and politically objectionable. To avoid marginalization and instrumentalization, many lawyers have begun to think about international problems through a constitutional vocabulary and have often cited Kant in that connection. This Article argues that, while it (...) is always possible to grasp the world through a constitutional vocabulary, this does not provide determinate answers to international problems. Instead of an institutional architecture or a set of legal rules, constitutionalism is best seen as a mindset — a tradition and a sensibility about how to act in a political world. Contrary to a widespread assumption, Kant’s political writings may also be read in this fashion and, if so, a meaningful international transformation might necessitate not only legislative or institutional intervention but a professional and perhaps spiritual regeneration. (shrink)

We know that law is a major enabler of the human activities that cause climate change, biodiversity destruction, and related ecosocial crises. We also turn to the law to regulate, mitigate, and attempt to transform these unsustainable human activities and systems. Yet, these regulatory regimes are often “recaptured” or “overridden” in turn by the very anthropogenic processes causing the crises. The resulting vicious cycles constitute the global trilemma of the twenty-first century that is rapidly rendering the living earth uninhabitable for (...) humans, in radically unequal ways, and for thousands of other species. Integral, non-violent, sustainable democratic constitutionalism is one modest, experimental, trial-and-error response to this trilemma. (shrink)

(1992). Chaos and constitutionalism: Toward a post‐modern theory of social evolution. World Futures: Vol. 34, Evolutionary Models in the Social Sciences, pp. 131-156.

ABSTRACT This article examines the prominent Japanese postwar thinker Maruyama Masao’s critical engagement with his contemporary German legal theorist Carl Schmitt. Maruyama engaged with Schmitt’s decisionistic notion of “the political” and sovereignty since he found it useful in addressing the pathological elements of Japanese political culture, namely, the widespread political passivity and fatalistic ethos of the Japanese public. In his view, such a “decision-avoiding” political culture, which had contributed to the rise of fascism in interwar and wartime Japan, posed a (...) fundamental threat to the viability of Japan’s postwar democracy. Although Maruyama objected to Schmitt’s authoritarian theory of political leadership, he nevertheless believed Schmitt provided important insights into the key concepts of modern politics, such as political agency and the constituent power of the people. In his efforts to foster political subjectivity and liberal individuality in postwar Japan, Maruyama attempted to strike a balance between two extremes: Schmittian normless decisionism, on the one hand, and a politically naïve liberal constitutionalism, on the other. I conclude by suggesting that the hitherto overlooked intellectual affinity between Maruyama and one of the leading Weimar-era constitutional theorists—Hermann Heller—can enrich our understanding of Maruyama’s unceasing effort to formulate and insist on the imperative role of political subjectivity and liberal individuality in consolidating liberal democracy in postwar Japan. (shrink)

Among contemporary forms of constitutionalism, Luigi Ferrajoli’s Garantismo may be considered as the rather unfashionable attempt to build up a comprehensive and multi-layered theory, which still takes seriously the positivist heritage. This paper offers, in brief outline, a synthetic view of the social setting, the philosophical background, and the basic features of this conception of constitutionalism, when compared with legal positivism and other mainstream forms of (neo)constitutionalism.

At first sight constitutionalism appears to be a key concept in public law discourse in the United Kingdom. It appears in all the major academic discussions from the rule of law and judicial review to the ‘new constitutional settlement’ and in relation to constitutional culture. And yet attempts to define the scope, meaning and role of constitutionalism remain vague. This article discusses the different fields in which constitutionalism is discussed and the different meanings that are attributed to (...) the concept. It shows that constitutionalism is routinely conflated by public law scholars with other constitutional values and principles, like the rule of law or separation of powers. This article argues that constitutionalism should either be conceived as distinct from those concepts or, failing that, can safely be eliminated from public law discourse. The article concludes by asking whether a nuanced and normative discussion of constitutionalism could have any meaningful application in the United Kingdom constitution. (shrink)

There are two dominant schools of thought addressing problems of cosmopolitanism and conflict: democratic national sovereigntism, inspired by Hegel, and global constitutionalism, inspired by Kant and reformulated by Habermas. This paper develops a third position by reading Adorno's critique of both theoretical traditions. Rather than compromising between these camps, Adorno triangulates between them. Critically illuminating their respective deficiencies in view of the changing conditions of a globalized modern world has critical implications for cosmopolitics. Although largely negative, Adorno's critique provides (...) an important framework for a contestatory reformulation of cosmopolitanism, one that is better equipped to confront societal and political global conflicts insufficiently reflected in sovereigntist and global constitutionalist models. (shrink)

The overall aim of this thesis is to assess the legitimacy of constitutional laws and bills of rights within the framework of procedural epistemic democracy. The thesis is divided into three sections. In the first section, I discuss the relevance of an epistemic argument for democracy under the circumstances of politics: I provide an account of reasonable disagreement and explain how usual approaches to the authority of decision-making procedures fail to take it seriously. In the second part of the thesis, (...) I provide an account of the epistemic features of democracy and of the requirements of democratic legitimacy. I develop a revised pragmatist argument for democracy which relies on three presumptive aims of decision-making: justice, sustainability and concord. In the third and last section, I first argue for the desirability of constitutionalism. I then explain why constitutionalism, as it is usually understood, is incompatible with my procedural epistemic account of democratic legitimacy. In the last chapter, I offer a two-pronged solution to the apparent incompatibility of constitutionalism and epistemic democracy. I first argue for the appropriateness of political constitutionalism, as opposed to legal constitutionalism, in understanding the relationship between rights and democracy. I then provide an account of rights protection and judicial review compatible with epistemic democratic legitimacy. Finally, I use the notion of pragmatic encroachment to explain how constitutional laws can achieve normative supremacy through the increased epistemic credentials of the procedure. (shrink)