Pub Date : 2022-10-07DOI: 10.1017/S2045381722000193
Kelty McKerracher
Abstract The survival and resurgence of Indigenous legal orders and constitutional traditions in Canada, as elsewhere, disrupt the normative hegemony of the liberal state and articulate a constitutionalism that accounts for a plurality of laws. How can state and non-state legal orders interact across vastly different normative worlds? How can their interaction address the colonial power imbalance and what role should recognition play in this relationship? This article draws on the work of Ralf Michaels on relational legal pluralism and Aaron Mills on Anishinaabe constitutionalism to explore how a legally plural society must embrace Michaels’ challenge of constitutive external recognition: the idea that legal orders mutually constitute each other through recognition without interfering with each other’s factual status as law. External recognition is consistent with strong legal pluralism and is distinct from recognition within the multicultural liberal state, a form of weak legal pluralism and continued colonialism. Mills’ discussion of treaty, rather than contract, as a foundation for shared political community assists in imagining a constitutionalism with/in Canada in which distinct legal orders can mutually constitute each other without domination. Linkage norms may help to establish reciprocal relations among state law and Indigenous legal orders, and the enactment of such ‘tertiary rules of recognition’ from within Indigenous legal orders may itself shift the balance of power.
{"title":"Relational legal pluralism and Indigenous legal orders in Canada","authors":"Kelty McKerracher","doi":"10.1017/S2045381722000193","DOIUrl":"https://doi.org/10.1017/S2045381722000193","url":null,"abstract":"Abstract The survival and resurgence of Indigenous legal orders and constitutional traditions in Canada, as elsewhere, disrupt the normative hegemony of the liberal state and articulate a constitutionalism that accounts for a plurality of laws. How can state and non-state legal orders interact across vastly different normative worlds? How can their interaction address the colonial power imbalance and what role should recognition play in this relationship? This article draws on the work of Ralf Michaels on relational legal pluralism and Aaron Mills on Anishinaabe constitutionalism to explore how a legally plural society must embrace Michaels’ challenge of constitutive external recognition: the idea that legal orders mutually constitute each other through recognition without interfering with each other’s factual status as law. External recognition is consistent with strong legal pluralism and is distinct from recognition within the multicultural liberal state, a form of weak legal pluralism and continued colonialism. Mills’ discussion of treaty, rather than contract, as a foundation for shared political community assists in imagining a constitutionalism with/in Canada in which distinct legal orders can mutually constitute each other without domination. Linkage norms may help to establish reciprocal relations among state law and Indigenous legal orders, and the enactment of such ‘tertiary rules of recognition’ from within Indigenous legal orders may itself shift the balance of power.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46032429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-04DOI: 10.1017/S2045381722000119
E. Rashwan
Abstract This article explores the transitional justice (TJ) dilemmas after revolutions have overthrown autocratic regimes through developing a model that uses a law and economics methodology. The article seeks to answer two questions: Why do post-revolution regimes resort to or ignore TJ policies towards former autocratic regimes? And why is it difficult to adopt and apply welfare-enhancing TJ mechanisms in practice, including popular suggestions within the TJ literature to portray the civil society organizations as the key solution to TJ dilemmas? To answer these questions, the article provides a theoretical positive analysis of the scenarios and dilemmas of TJ. It argues that TJ should function both as an internalization mechanism of negative externalities of the violations of the past-regime, and a form of constitutional arrangements as an ex ante incentives structure to prevent the repetition of these violations. However, due to asymmetric information problems, behavioural biases and the constitutional nature of TJ, the ‘TJ momentum’ precludes most of the traditional solutions for this principal–agent problem.
{"title":"The ugly truth behind transitional justice in the post-revolution phase: A constitutional law and economics analysis","authors":"E. Rashwan","doi":"10.1017/S2045381722000119","DOIUrl":"https://doi.org/10.1017/S2045381722000119","url":null,"abstract":"Abstract This article explores the transitional justice (TJ) dilemmas after revolutions have overthrown autocratic regimes through developing a model that uses a law and economics methodology. The article seeks to answer two questions: Why do post-revolution regimes resort to or ignore TJ policies towards former autocratic regimes? And why is it difficult to adopt and apply welfare-enhancing TJ mechanisms in practice, including popular suggestions within the TJ literature to portray the civil society organizations as the key solution to TJ dilemmas? To answer these questions, the article provides a theoretical positive analysis of the scenarios and dilemmas of TJ. It argues that TJ should function both as an internalization mechanism of negative externalities of the violations of the past-regime, and a form of constitutional arrangements as an ex ante incentives structure to prevent the repetition of these violations. However, due to asymmetric information problems, behavioural biases and the constitutional nature of TJ, the ‘TJ momentum’ precludes most of the traditional solutions for this principal–agent problem.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46833297","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-28DOI: 10.1017/S2045381722000120
A. Zysset
Abstract Scholars of global constitutionalism have recently come to examine international criminal law (ICL) and its associated institutions, in particular the International Criminal Court (the ICC). This article prolongs these efforts by pointing to and remedying two deficits of that project with particular emphasis on the Rome Statute crimes. First, how does one account for the role of the international trial in global constitutionalist terms? Second, can global constitutionalism insightfully explain the content and scope of these crimes – that is, both their substantive definition and the predominant modes of liability developed by the ICC? This article answers both questions affirmatively and offers an account of their nexus. It first shows that the Rome Statute crimes are often perpetrated through a hierarchically organized apparatus of control, and interprets their global constitutional significance via the principle of constituent power. It then makes use of Antony Duff’s relational account of criminal liability to offer an account of the international trial. In the international context, one can conceive of the trial as allowing state or state-like authorities to call each other to account, which renders justice to the core function of enabling and limiting political authority on which global constitutionalism centres.
{"title":"International crimes through the lens of global constitutionalism","authors":"A. Zysset","doi":"10.1017/S2045381722000120","DOIUrl":"https://doi.org/10.1017/S2045381722000120","url":null,"abstract":"Abstract Scholars of global constitutionalism have recently come to examine international criminal law (ICL) and its associated institutions, in particular the International Criminal Court (the ICC). This article prolongs these efforts by pointing to and remedying two deficits of that project with particular emphasis on the Rome Statute crimes. First, how does one account for the role of the international trial in global constitutionalist terms? Second, can global constitutionalism insightfully explain the content and scope of these crimes – that is, both their substantive definition and the predominant modes of liability developed by the ICC? This article answers both questions affirmatively and offers an account of their nexus. It first shows that the Rome Statute crimes are often perpetrated through a hierarchically organized apparatus of control, and interprets their global constitutional significance via the principle of constituent power. It then makes use of Antony Duff’s relational account of criminal liability to offer an account of the international trial. In the international context, one can conceive of the trial as allowing state or state-like authorities to call each other to account, which renders justice to the core function of enabling and limiting political authority on which global constitutionalism centres.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46250677","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-16DOI: 10.1017/S2045381722000107
David Vitale, Raphaël Girard
Abstract This article adds nuance to current understandings of the relationship between the populist leader and the public by using the concept of trust. Merging the literature on populism with the growing scholarship on trust from philosophy, psychology and other social sciences, it argues that following on from the populist leader’s appeals to similarity, the populist–public relationship involves an intertwining of two forms of public trust: the public’s trust in the populist and the public’s trust in itself (what we term ‘public self-trust’). Contrary to what political and constitutional theorists have recognized as a tension between public self-trust and the public’s trust in its political representatives, we contend based on the scholarship on trust that in the populist–public relationship these two forms of trust can be mutually reinforcing. This mutual reinforcement, we suggest, has the potential to create a positive feedback loop of public trust that, given the value of public trust to political leaders, empowers the populist.
{"title":"Public trust and the populist leader: A theoretical argument","authors":"David Vitale, Raphaël Girard","doi":"10.1017/S2045381722000107","DOIUrl":"https://doi.org/10.1017/S2045381722000107","url":null,"abstract":"Abstract This article adds nuance to current understandings of the relationship between the populist leader and the public by using the concept of trust. Merging the literature on populism with the growing scholarship on trust from philosophy, psychology and other social sciences, it argues that following on from the populist leader’s appeals to similarity, the populist–public relationship involves an intertwining of two forms of public trust: the public’s trust in the populist and the public’s trust in itself (what we term ‘public self-trust’). Contrary to what political and constitutional theorists have recognized as a tension between public self-trust and the public’s trust in its political representatives, we contend based on the scholarship on trust that in the populist–public relationship these two forms of trust can be mutually reinforcing. This mutual reinforcement, we suggest, has the potential to create a positive feedback loop of public trust that, given the value of public trust to political leaders, empowers the populist.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49325947","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-21DOI: 10.1017/s2045381722000181
Jacob Eisler, Susan Kang, R. Forst, K. Kenkel, Helen Kinsella
Editorial Board Mathias Albert, University of Bielefeld, Germany Richard Bellamy, University College, London, UK Duncan Bell, University of Cambridge, UK Seyla Benhabib, Yale University, USA Armin v. Bogdandy, Max Planck Institute, Heidelberg, Germany Jutta Brunnée, University of Toronto, Canada Wen-Chen Chang, National Taiwan University, Taiwan Carlos Closa, Center for Public Goods and Policies, Madrid, Spain Jean L. Cohen, Columbia University, USA Yasmin Dawood, University of Toronto, Canada Gráinne de Búrca, New York University, USA Avigail Eisenberg, University of Victoria, Canada Karin Fierke, St Andrews University, UK Ezzedine Choukri Fishere, American University of Cairo, Egypt GLOBAL CONSTITUTIONALISM
{"title":"GCN volume 11 issue 2 Front matter","authors":"Jacob Eisler, Susan Kang, R. Forst, K. Kenkel, Helen Kinsella","doi":"10.1017/s2045381722000181","DOIUrl":"https://doi.org/10.1017/s2045381722000181","url":null,"abstract":"Editorial Board Mathias Albert, University of Bielefeld, Germany Richard Bellamy, University College, London, UK Duncan Bell, University of Cambridge, UK Seyla Benhabib, Yale University, USA Armin v. Bogdandy, Max Planck Institute, Heidelberg, Germany Jutta Brunnée, University of Toronto, Canada Wen-Chen Chang, National Taiwan University, Taiwan Carlos Closa, Center for Public Goods and Policies, Madrid, Spain Jean L. Cohen, Columbia University, USA Yasmin Dawood, University of Toronto, Canada Gráinne de Búrca, New York University, USA Avigail Eisenberg, University of Victoria, Canada Karin Fierke, St Andrews University, UK Ezzedine Choukri Fishere, American University of Cairo, Egypt GLOBAL CONSTITUTIONALISM","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47027018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-11DOI: 10.1017/S2045381722000016
G. De Gregorio
Abstract This article examines the reasons for different constitutional approaches to platform governance across the Atlantic. By adopting a comparative perspective under the lens of digital constitutionalism, it analyses the move from converging to diverging strategies of the United States and the European Union to address platform governance. From a liberal approach inspired by the US framework at the end of the last century, the European Union has moved towards a constitutional democratic strategy as demonstrated, for instance, by the launch of the Digital Services Act. On the other side of the Atlantic, the United States has reacted to the consolidation of platform governance by maintaining a liberal approach based on a vertical paradigm driven by the First Amendment. Given these democratic and liberal approaches, this article explains how the different constitutional premises of the United States and the European Union have produced diverging responses to the power of online platforms, thus underlining different expressions of digital constitutionalism across the Atlantic. The first section of the article introduces the rise of digital constitutionalism as the primary research angle to study the trans-Atlantic approaches to platform governance. The second section compares the European and US responses to the rise of platform powers. The third section focuses on the implications of these different constitutional strategies on a global scale.
{"title":"Digital constitutionalism across the Atlantic","authors":"G. De Gregorio","doi":"10.1017/S2045381722000016","DOIUrl":"https://doi.org/10.1017/S2045381722000016","url":null,"abstract":"Abstract This article examines the reasons for different constitutional approaches to platform governance across the Atlantic. By adopting a comparative perspective under the lens of digital constitutionalism, it analyses the move from converging to diverging strategies of the United States and the European Union to address platform governance. From a liberal approach inspired by the US framework at the end of the last century, the European Union has moved towards a constitutional democratic strategy as demonstrated, for instance, by the launch of the Digital Services Act. On the other side of the Atlantic, the United States has reacted to the consolidation of platform governance by maintaining a liberal approach based on a vertical paradigm driven by the First Amendment. Given these democratic and liberal approaches, this article explains how the different constitutional premises of the United States and the European Union have produced diverging responses to the power of online platforms, thus underlining different expressions of digital constitutionalism across the Atlantic. The first section of the article introduces the rise of digital constitutionalism as the primary research angle to study the trans-Atlantic approaches to platform governance. The second section compares the European and US responses to the rise of platform powers. The third section focuses on the implications of these different constitutional strategies on a global scale.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49629729","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-29DOI: 10.1017/S2045381721000277
Ruji Auethavornpipat
Abstract In 2019, Thailand ratified the International Labour Organization Work in Fishing Convention to protect migrant fishers. The Thai government vigorously promoted the Convention among its constituents. Yet, despite the government’s proactivity, such norms have been weakened upon local translation. This phenomenon is not readily explained by existing norms research that pays scant attention to norms in the domestic space. To address this oversight, this article unpacks domestic processes of norm validation and makes a two-step argument. First, it argues that norm validation is crucial for instigating domestic implementation by allowing stakeholders to deliberate and contest the ‘appropriate’ application of norms. Second, it argues that the locally acquired normative understanding, as influenced by norm antipreneurs, or actors who defend the status quo, weakens norm implementation while the norms’ discursive strength is retained. In presenting the findings, this article contributes to the norms literature by illuminating a new life given to validated norms. The contribution also interrogates norms’ global–local dynamics by scrutinizing norm contestation and the extent to which it generates an internalized sense of legal obligation to implement international norms.
{"title":"Norm contestation and the weakening of migrant fisher protection in Thailand","authors":"Ruji Auethavornpipat","doi":"10.1017/S2045381721000277","DOIUrl":"https://doi.org/10.1017/S2045381721000277","url":null,"abstract":"Abstract In 2019, Thailand ratified the International Labour Organization Work in Fishing Convention to protect migrant fishers. The Thai government vigorously promoted the Convention among its constituents. Yet, despite the government’s proactivity, such norms have been weakened upon local translation. This phenomenon is not readily explained by existing norms research that pays scant attention to norms in the domestic space. To address this oversight, this article unpacks domestic processes of norm validation and makes a two-step argument. First, it argues that norm validation is crucial for instigating domestic implementation by allowing stakeholders to deliberate and contest the ‘appropriate’ application of norms. Second, it argues that the locally acquired normative understanding, as influenced by norm antipreneurs, or actors who defend the status quo, weakens norm implementation while the norms’ discursive strength is retained. In presenting the findings, this article contributes to the norms literature by illuminating a new life given to validated norms. The contribution also interrogates norms’ global–local dynamics by scrutinizing norm contestation and the extent to which it generates an internalized sense of legal obligation to implement international norms.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47886917","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-28DOI: 10.1017/S2045381721000241
S. Steininger
Abstract This article investigates how the European and Inter-American human rights regimes have developed communication practices to create loyalty. It argues that communication departments exercise essential functions, in particular by creating diffuse support for international courts. By relying on theoretical analyses developed by Albert O. Hirschman and David Easton, it identifies how international courts can create loyalty through, first, fostering awareness about the existence of the court among the general public, and, second, the establishment of supportive communities around the court through shared practices. By drawing on semi-structured interviews, the comparative analysis of the European and Inter-American human rights regime illustrates both the professionalization of communication actors and the evolution of specific communication strategies in times of backlash. The empirical insights derived from semi-structured interviews with communication officials highlight how they have succeeded in expanding their audiences, but struggle with activating communities of practice. Ultimately, the rise of visual media formats and story-telling narratives might be the most promising tool to portray a more positive and engaging image of the institution.
摘要本文研究了欧洲和美洲人权制度如何发展沟通实践以创造忠诚。它认为，通讯部门行使基本职能，特别是通过为国际法院提供广泛支持。根据阿尔伯特·赫希曼(Albert O. Hirschman)和大卫·伊斯顿(David Easton)的理论分析，本文确定了国际法院如何通过以下方式来培养忠诚:首先，培养公众对法院存在的认识;其次，通过共享实践，在法院周围建立支持性社区。通过采用半结构化访谈，对欧洲和美洲人权制度的比较分析说明了传播行动者的专业化和在强烈反对时期具体传播战略的演变。从对传播官员的半结构化采访中获得的经验见解强调了他们如何成功地扩大了受众，但在激活实践社区方面却遇到了困难。最终，视觉媒体格式和故事叙事的兴起可能是描绘该机构更积极、更吸引人形象的最有希望的工具。
{"title":"Creating loyalty: Communication practices in the European and Inter-American human rights regimes","authors":"S. Steininger","doi":"10.1017/S2045381721000241","DOIUrl":"https://doi.org/10.1017/S2045381721000241","url":null,"abstract":"Abstract This article investigates how the European and Inter-American human rights regimes have developed communication practices to create loyalty. It argues that communication departments exercise essential functions, in particular by creating diffuse support for international courts. By relying on theoretical analyses developed by Albert O. Hirschman and David Easton, it identifies how international courts can create loyalty through, first, fostering awareness about the existence of the court among the general public, and, second, the establishment of supportive communities around the court through shared practices. By drawing on semi-structured interviews, the comparative analysis of the European and Inter-American human rights regime illustrates both the professionalization of communication actors and the evolution of specific communication strategies in times of backlash. The empirical insights derived from semi-structured interviews with communication officials highlight how they have succeeded in expanding their audiences, but struggle with activating communities of practice. Ultimately, the rise of visual media formats and story-telling narratives might be the most promising tool to portray a more positive and engaging image of the institution.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44994954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-28DOI: 10.1017/S2045381722000041
Dana Burchardt
Abstract The notion of legal space is increasingly being used to address the challenges of multiple and overlapping spheres of legality that the notion of legal order cannot capture. This article shows how legal space can serve as an alternative (or at least complementary) concept to legal order in view of the limitations of the latter. It sketches out a notion of legal space that is inspired by topology, an approach that analyses the qualitative nature of spaces. It is concerned with understanding the ways in which legalities interact, rather than with ‘measuring’ their spatial dimensions. A topology-inspired approach to legal space can contribute to conceptualizing, in a novel manner, the inner structure of legal spaces, the boundaries of these spaces and their interrelations with other spaces. It offers an analytical toolkit for better understanding multiple legalities, providing categories to characterize sets of legal elements as well as phenomena such as overlaps and hybridity. It is conceptually less constrained than the concept of legal order, and thus allows us to address various bodies of law ranging from classical domestic law, EU law and international law to global administrative law, corporate social responsibility law, platform law and lex sportiva.
{"title":"The concept of legal space: A topological approach to addressing multiple legalities","authors":"Dana Burchardt","doi":"10.1017/S2045381722000041","DOIUrl":"https://doi.org/10.1017/S2045381722000041","url":null,"abstract":"Abstract The notion of legal space is increasingly being used to address the challenges of multiple and overlapping spheres of legality that the notion of legal order cannot capture. This article shows how legal space can serve as an alternative (or at least complementary) concept to legal order in view of the limitations of the latter. It sketches out a notion of legal space that is inspired by topology, an approach that analyses the qualitative nature of spaces. It is concerned with understanding the ways in which legalities interact, rather than with ‘measuring’ their spatial dimensions. A topology-inspired approach to legal space can contribute to conceptualizing, in a novel manner, the inner structure of legal spaces, the boundaries of these spaces and their interrelations with other spaces. It offers an analytical toolkit for better understanding multiple legalities, providing categories to characterize sets of legal elements as well as phenomena such as overlaps and hybridity. It is conceptually less constrained than the concept of legal order, and thus allows us to address various bodies of law ranging from classical domestic law, EU law and international law to global administrative law, corporate social responsibility law, platform law and lex sportiva.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49326107","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-24DOI: 10.1017/S2045381722000077
Mariano C Melero
Abstract This article offers a critical discussion of two influential positions in contemporary legal and political theory, which will be referred to as ‘political constitutionalism’ and ‘strong popular sovereignty’. Despite their important differences, both share a sceptical approach to the dominant constitutional practice in liberal democracies, hence they are brought together here under the term ‘weak constitutionalism’. They both highlight the political dimension of the constitution, arguing that democratic legitimacy requires institutional arrangements that give the people and/or their representatives the last word in settling fundamental issues of political morality. By contrast, this article underlines the legal dimension of the constitution as the repository of the moral principles that make possible a practice of public justification in constitutional states. It is from this second constitutional dimension that the critical arguments are developed, both against the desire to take the constitution away from the courts and the aspiration to recognize the constituent power as pre-legal constitution-making faculty.
{"title":"Weak constitutionalism and the legal dimension of the constitution","authors":"Mariano C Melero","doi":"10.1017/S2045381722000077","DOIUrl":"https://doi.org/10.1017/S2045381722000077","url":null,"abstract":"Abstract This article offers a critical discussion of two influential positions in contemporary legal and political theory, which will be referred to as ‘political constitutionalism’ and ‘strong popular sovereignty’. Despite their important differences, both share a sceptical approach to the dominant constitutional practice in liberal democracies, hence they are brought together here under the term ‘weak constitutionalism’. They both highlight the political dimension of the constitution, arguing that democratic legitimacy requires institutional arrangements that give the people and/or their representatives the last word in settling fundamental issues of political morality. By contrast, this article underlines the legal dimension of the constitution as the repository of the moral principles that make possible a practice of public justification in constitutional states. It is from this second constitutional dimension that the critical arguments are developed, both against the desire to take the constitution away from the courts and the aspiration to recognize the constituent power as pre-legal constitution-making faculty.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41760523","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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