Pub Date : 2021-10-04DOI: 10.1017/S2045381721000125
Alberto Coddou Mc Manus
Abstract Ius Constitutionale Commune in Latin America (ICCAL) is an academic endeavour that attempts to provide an account of the original Latin American path of transformative constitutionalism, comprising elements from national, transnational and international legal orders, and where the law is placed at the service of the normative trinity of constitutionalism, namely the rule of law, democracy and human rights. In this regard, ICCAL speaks of an Inter-American law that represents a new legal phenomenon, in a region where constitutionalist ideas have allegedly claimed new traction. In this article, I develop two main critiques that can be deemed challenges for an academic project that is still ‘under construction’, and provide an intellectual map of Latin American constitutionalism that could address these critiques and serve as a roadmap for studying potential Latin American contributions to debates around global constitutionalism.
{"title":"A critical account of Ius Constitutionale Commune in Latin America: An intellectual map of contemporary Latin American constitutionalism","authors":"Alberto Coddou Mc Manus","doi":"10.1017/S2045381721000125","DOIUrl":"https://doi.org/10.1017/S2045381721000125","url":null,"abstract":"Abstract Ius Constitutionale Commune in Latin America (ICCAL) is an academic endeavour that attempts to provide an account of the original Latin American path of transformative constitutionalism, comprising elements from national, transnational and international legal orders, and where the law is placed at the service of the normative trinity of constitutionalism, namely the rule of law, democracy and human rights. In this regard, ICCAL speaks of an Inter-American law that represents a new legal phenomenon, in a region where constitutionalist ideas have allegedly claimed new traction. In this article, I develop two main critiques that can be deemed challenges for an academic project that is still ‘under construction’, and provide an intellectual map of Latin American constitutionalism that could address these critiques and serve as a roadmap for studying potential Latin American contributions to debates around global constitutionalism.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"11 1","pages":"110 - 138"},"PeriodicalIF":0.0,"publicationDate":"2021-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44274520","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 : 2021-09-13DOI: 10.1017/S2045381721000162
J. O. Arowosegbe
Abstract This article revisits the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy. This theoretical and pragmatic approach introduces a refreshing angle to the debate, revealing the paucity of any attempt to ascribe any legitimacy claim to a constitution with a doubtful normative claim and fraudulent attribution of its source and legitimacy to the people. The author finds the consent basis of constitutional legitimacy as most attractive to a divided state like Nigeria, and concludes by advocating the adoption of a blend of the principles of the constituent assembly and post sovereign constitution-making models for the production of a new people-driven and inclusive constitution to meet the needs of the Nigerian people.
{"title":"Revisiting the legitimacy question of the Nigerian 1999 Constitution","authors":"J. O. Arowosegbe","doi":"10.1017/S2045381721000162","DOIUrl":"https://doi.org/10.1017/S2045381721000162","url":null,"abstract":"Abstract This article revisits the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy. This theoretical and pragmatic approach introduces a refreshing angle to the debate, revealing the paucity of any attempt to ascribe any legitimacy claim to a constitution with a doubtful normative claim and fraudulent attribution of its source and legitimacy to the people. The author finds the consent basis of constitutional legitimacy as most attractive to a divided state like Nigeria, and concludes by advocating the adoption of a blend of the principles of the constituent assembly and post sovereign constitution-making models for the production of a new people-driven and inclusive constitution to meet the needs of the Nigerian people.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"11 1","pages":"27 - 54"},"PeriodicalIF":0.0,"publicationDate":"2021-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45178486","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 : 2021-07-01DOI: 10.1017/S2045381720000325
Chien-Chih Lin
Abstract In contrast with the decline of liberal constitutionalism around the world, liberal constitutionalism seems to be resilient in Taiwan. Weaving together several threads of history, law and politics, this article first argues that foreign legal education and identity concerns explain why judicial review and constitutional development more broadly in Taiwan have not only flourished but mirrored both German and American constitutional jurisprudence. Second, it maintains that the case of Taiwan poses another challenge to the concept of global constitutionalism since the number of referenced jurisdictions is quite limited.
{"title":"Global constitutionalism in Taiwan","authors":"Chien-Chih Lin","doi":"10.1017/S2045381720000325","DOIUrl":"https://doi.org/10.1017/S2045381720000325","url":null,"abstract":"Abstract In contrast with the decline of liberal constitutionalism around the world, liberal constitutionalism seems to be resilient in Taiwan. Weaving together several threads of history, law and politics, this article first argues that foreign legal education and identity concerns explain why judicial review and constitutional development more broadly in Taiwan have not only flourished but mirrored both German and American constitutional jurisprudence. Second, it maintains that the case of Taiwan poses another challenge to the concept of global constitutionalism since the number of referenced jurisdictions is quite limited.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"10 1","pages":"275 - 289"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48348425","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 : 2021-07-01DOI: 10.1017/S2045381720000210
A. Dziedzic
Abstract Studies of global constitutionalism have focused on the transnational movement of constitutional law through the citation of foreign judgments. However, little attention has been paid to the movement of constitutional judges themselves. This article considers how the foreign judges who sit on courts of constitutional jurisdiction in Pacific island states can be understood as part of the phenomenon of global constitutionalism. It identifies three ways in which foreign judges can be agents of global constitutionalism: as mechanisms for the diffusion of constitutional ideas, as expressions of global constitutional values and as objects of transnational legal transfer. An empirical analysis comparing the citation practices of local and foreign judges in constitutional cases in nine Pacific states suggests that the use of foreign judges on constitutional courts does contribute to the international movement of constitutional ideas. However, a critical analysis of foreign judges as expressions and objects of global constitutionalism sheds light on a range of tensions in the role of constitutional judges and understandings of global constitutionalism.
{"title":"Foreign judges of the Pacific as agents of global constitutionalism","authors":"A. Dziedzic","doi":"10.1017/S2045381720000210","DOIUrl":"https://doi.org/10.1017/S2045381720000210","url":null,"abstract":"Abstract Studies of global constitutionalism have focused on the transnational movement of constitutional law through the citation of foreign judgments. However, little attention has been paid to the movement of constitutional judges themselves. This article considers how the foreign judges who sit on courts of constitutional jurisdiction in Pacific island states can be understood as part of the phenomenon of global constitutionalism. It identifies three ways in which foreign judges can be agents of global constitutionalism: as mechanisms for the diffusion of constitutional ideas, as expressions of global constitutional values and as objects of transnational legal transfer. An empirical analysis comparing the citation practices of local and foreign judges in constitutional cases in nine Pacific states suggests that the use of foreign judges on constitutional courts does contribute to the international movement of constitutional ideas. However, a critical analysis of foreign judges as expressions and objects of global constitutionalism sheds light on a range of tensions in the role of constitutional judges and understandings of global constitutionalism.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"10 1","pages":"351 - 366"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45041946","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 : 2021-07-01DOI: 10.1017/S2045381721000010
Y. Shin
Abstract Through the analytical framework of ‘transnational constitutional engagement’, this article examines the dynamically developing practices of the South Korean Constitutional Court as it engages with international and foreign elements, both within and beyond constitutional adjudication processes. Diverse underlying factors and orientations in varied contexts, and the complex interactions between them, are responsible for shaping the modes of a local constitutional actor’s engagement with the transnational. In the vertical aspect, the court adopts international human rights law as a substantive standard of constitutional review through a version of cosmopolitan constitutional interpretation, while it has nevertheless exhibited ambiguity and incoherency in concrete applications. The horizontal aspects of transnational engagement include the court’s practice of referencing foreign law and cases in constitutional adjudication. The vibrancy and the evolving patterns of its citation practice reflect the court’s growing self-perception vis-à-vis the world – although limitations remain, such as geographical asymmetries among referenced jurisdictions. The court has also been enthusiastic in interacting with various transnational counterparts beyond adjudication processes, demonstrating eminent leadership in regional network-building among constitutional courts in Asia. With both cosmopolitan aspirations and nationalist ambitions playing a role in their shaping, the modes of transnational constitutional engagement are not to be generalized, but require contextualization, and the relevant practices should be subject to constant evaluations for their contribution in producing sound and effective concretizations of the values of global constitutionalism.
{"title":"Transnational constitutional engagement: A contextualization of global constitutionalism by the Constitutional Court of South Korea","authors":"Y. Shin","doi":"10.1017/S2045381721000010","DOIUrl":"https://doi.org/10.1017/S2045381721000010","url":null,"abstract":"Abstract Through the analytical framework of ‘transnational constitutional engagement’, this article examines the dynamically developing practices of the South Korean Constitutional Court as it engages with international and foreign elements, both within and beyond constitutional adjudication processes. Diverse underlying factors and orientations in varied contexts, and the complex interactions between them, are responsible for shaping the modes of a local constitutional actor’s engagement with the transnational. In the vertical aspect, the court adopts international human rights law as a substantive standard of constitutional review through a version of cosmopolitan constitutional interpretation, while it has nevertheless exhibited ambiguity and incoherency in concrete applications. The horizontal aspects of transnational engagement include the court’s practice of referencing foreign law and cases in constitutional adjudication. The vibrancy and the evolving patterns of its citation practice reflect the court’s growing self-perception vis-à-vis the world – although limitations remain, such as geographical asymmetries among referenced jurisdictions. The court has also been enthusiastic in interacting with various transnational counterparts beyond adjudication processes, demonstrating eminent leadership in regional network-building among constitutional courts in Asia. With both cosmopolitan aspirations and nationalist ambitions playing a role in their shaping, the modes of transnational constitutional engagement are not to be generalized, but require contextualization, and the relevant practices should be subject to constant evaluations for their contribution in producing sound and effective concretizations of the values of global constitutionalism.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"10 1","pages":"256 - 274"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47836098","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 : 2021-07-01DOI: 10.1017/S2045381720000246
C. Saunders
Abstract This article explores the extent to which (if at all) the concept of a constitution is undergoing change in the conditions of globalization that characterize the early decades of the twenty-first century, to an extent that might be described as transformation. The question is prompted both by familiar manifestations of the interdependence of domestic constitutional and international law and practice, and by the interpretation placed on them by some of the literature on global constitutionalism. Some – although by no means all – of the literature and the experience on which it draws relate to the extent of transnational influence on the way in which constitutions now are made or changed: constitution transformation in the narrow, or more particular, sense. The article seeks to answer this question with reference to global constitutional experience, including – critically – experience in Asia, as one of the largest and most diverse regions of the world, too often omitted from studies of this kind. To this end, the article considers whether the concept of a constitution can be regarded as having been globally shared in any event; examines the phenomena associated with globalization that might suggest a paradigm change; and considers the arguments that mitigate against change, at least on a global scale. In exploring these factors, it necessarily considers the extent to which states in different regions of the world diverge in their experiences of the internationalization of constitutional law. The article concludes that, on balance, it is not plausible to argue that the generic concept of a constitution has changed, with global effect. It does, however, acknowledge that current conditions of globalization present a series of challenges for national constitutions. Responding to them might itself be regarded as an exercise in global constitutionalism.
{"title":"Constitution transformation","authors":"C. Saunders","doi":"10.1017/S2045381720000246","DOIUrl":"https://doi.org/10.1017/S2045381720000246","url":null,"abstract":"Abstract This article explores the extent to which (if at all) the concept of a constitution is undergoing change in the conditions of globalization that characterize the early decades of the twenty-first century, to an extent that might be described as transformation. The question is prompted both by familiar manifestations of the interdependence of domestic constitutional and international law and practice, and by the interpretation placed on them by some of the literature on global constitutionalism. Some – although by no means all – of the literature and the experience on which it draws relate to the extent of transnational influence on the way in which constitutions now are made or changed: constitution transformation in the narrow, or more particular, sense. The article seeks to answer this question with reference to global constitutional experience, including – critically – experience in Asia, as one of the largest and most diverse regions of the world, too often omitted from studies of this kind. To this end, the article considers whether the concept of a constitution can be regarded as having been globally shared in any event; examines the phenomena associated with globalization that might suggest a paradigm change; and considers the arguments that mitigate against change, at least on a global scale. In exploring these factors, it necessarily considers the extent to which states in different regions of the world diverge in their experiences of the internationalization of constitutional law. The article concludes that, on balance, it is not plausible to argue that the generic concept of a constitution has changed, with global effect. It does, however, acknowledge that current conditions of globalization present a series of challenges for national constitutions. Responding to them might itself be regarded as an exercise in global constitutionalism.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"10 1","pages":"237 - 255"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44546153","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 : 2021-07-01DOI: 10.1017/S2045381720000374
N. Bui
Abstract This special issue of Global Constitutionalism discusses how global constitutionalism influences Asia-Pacific jurisdictions and how they respond. This introductory article presents the theme and structure of this issue, explains the Asia-Pacific’s unique contribution to global constitutionalism and offers a synthetic argument. It conceptualizes global constitutionalism as the global diffusion of common constitutional ideas, institutions and doctrines rooted in comparative constitutional law and public international law. On that base, it argues that constitutional design, adjudication and discourse in many Asia-Pacific jurisdictions are influenced by global constitutionalism. The influence results in not only convergence but also resistance to global constitutionalism in the regions. The regional experience presents critical challenges for global constitutionalism, and hence its effective operation significantly depends on its situation within the region’s axiological, institutional and social contexts.
{"title":"Global constitutionalism: Asia-Pacific perspectives","authors":"N. Bui","doi":"10.1017/S2045381720000374","DOIUrl":"https://doi.org/10.1017/S2045381720000374","url":null,"abstract":"Abstract This special issue of Global Constitutionalism discusses how global constitutionalism influences Asia-Pacific jurisdictions and how they respond. This introductory article presents the theme and structure of this issue, explains the Asia-Pacific’s unique contribution to global constitutionalism and offers a synthetic argument. It conceptualizes global constitutionalism as the global diffusion of common constitutional ideas, institutions and doctrines rooted in comparative constitutional law and public international law. On that base, it argues that constitutional design, adjudication and discourse in many Asia-Pacific jurisdictions are influenced by global constitutionalism. The influence results in not only convergence but also resistance to global constitutionalism in the regions. The regional experience presents critical challenges for global constitutionalism, and hence its effective operation significantly depends on its situation within the region’s axiological, institutional and social contexts.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"10 1","pages":"221 - 236"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46793706","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 : 2021-07-01DOI: 10.1017/S2045381721000149
A. Lang
Abstract This article argues that this special section reveals a practical global constitutionalism, or one that integrates a liberal constitutional set of ideas with the histories and practices of Asian states.
{"title":"Global constitutionalism: A practical universal","authors":"A. Lang","doi":"10.1017/S2045381721000149","DOIUrl":"https://doi.org/10.1017/S2045381721000149","url":null,"abstract":"Abstract This article argues that this special section reveals a practical global constitutionalism, or one that integrates a liberal constitutional set of ideas with the histories and practices of Asian states.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"10 1","pages":"367 - 375"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46297997","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 : 2021-07-01DOI: 10.1017/S2045381720000271
Samuli Seppänen
Abstract This article argues that the governance project of the Chinese Communist Party (CCP) oscillates between rule-based formalism and anti-formalist scepticism about rule-based governance. In this dichotomy, anti-formalist arguments support CCP leaders’ efforts to maintain and increase the Party’s influence over the judiciary and other state organs, which is a key justification for the Party’s power. Formalist language, in contrast, supports Party leaders’ attempts to constrain lower-level cadres’ uses of power within the Party. Formalist language is particularly prominent in the writings of Party ideologues on the interpretation of the Party’s internal regulations, including the CCP Constitution. At the same time, Party ideology also provides for various anti-formalist arguments about rule-based governance within and outside the Party. Paradoxical as it may be, the Party leadership seeks to exert rule-transcending political leadership through formal rules. While the focus of this article is on China, it argues that other illiberal regimes may also be studied in terms of similar, potentially incoherent approaches to rule-based governance.
{"title":"Formalism and anti-formalism in the Chinese Communist Party’s governance project","authors":"Samuli Seppänen","doi":"10.1017/S2045381720000271","DOIUrl":"https://doi.org/10.1017/S2045381720000271","url":null,"abstract":"Abstract This article argues that the governance project of the Chinese Communist Party (CCP) oscillates between rule-based formalism and anti-formalist scepticism about rule-based governance. In this dichotomy, anti-formalist arguments support CCP leaders’ efforts to maintain and increase the Party’s influence over the judiciary and other state organs, which is a key justification for the Party’s power. Formalist language, in contrast, supports Party leaders’ attempts to constrain lower-level cadres’ uses of power within the Party. Formalist language is particularly prominent in the writings of Party ideologues on the interpretation of the Party’s internal regulations, including the CCP Constitution. At the same time, Party ideology also provides for various anti-formalist arguments about rule-based governance within and outside the Party. Paradoxical as it may be, the Party leadership seeks to exert rule-transcending political leadership through formal rules. While the focus of this article is on China, it argues that other illiberal regimes may also be studied in terms of similar, potentially incoherent approaches to rule-based governance.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":"10 1","pages":"290 - 306"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43489516","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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