This book offers an in-depth account of the failure of popular constitution making in Turkey from 2011 to 2013, which was an anomaly in the otherwise authoritarian history of Turkish constitutional politics. The authors demonstrate that, even in unfavorable conditions, constitution making that brings together different stakeholders can potentially lead to significant improvement of constitutional regimes. Long-standing societal divides regarding cultural and religious diversity, which were evident in political parties' negotiations, played a significant role in the failure of the process in Turkey. Most notably, the ruling AKP's insistence on establishing a presidential system - supported by neither other political parties nor the public - destabilized the process and exacerbated distrust among the drafters. Unfavorable procedures, particularly an unrealistic deadline and the unanimity principle, prevented consensus and allowed the AKP to hijack the process. The process was a missed
How does the selection of judges influence the work they do in important constitutional courts? Does mixed judicial selection, which allows more players to choose judges, result in a court that is more independent and one that can check powerful executives and legislators? Existing literature on constitutional courts tends to focus on how judicial behaviour is motivated by judges' political preferences. Lydia Brashear Tiede argues for a new approach, showing that, under mixed selection, institutions choose different types of judges who represent different approaches to constitutional adjudication and thus have different propensities for striking down laws. Using empirical evidence from the constitutional courts of Chile and Colombia, this book develops a framework for understanding the factors, external and internal to courts, which lead individual judges, as well as the courts in which they work, to veto a law.
Comparative scholarship on judicial review has paid a lot of attention to the causal impact of politics on judicial decision-making. However, the slower-moving, macro-social process through which judicial review influences societal conceptions of the law/politics relation is less well understood. Drawing on the political science literature on institutional change, The Politico-Legal Dynamics of Judicial Review tests a typological theory of the evolution of judicial review regimes - complexes of legitimating ideas about the law/politics relation. The theory posits that such regimes tend to conform to one of four main types - democratic or authoritarian legalism, or democratic or authoritarian instrumentalism. Through case studies of Australia, India, and Zimbabwe, and a comparative chapter analyzing ten additional societies, the book then explores how actually-existing judicial review regimes transition between these types. This process of ideational development, Roux concludes, is
This volume brings together essays by many of the leading scholars of comparative constitutional design from many perspectives to collectively assess what we know - and do not know - about the design process as well as particular institutional choices concerning executive power, constitutional amendment processes and many other issues. Bringing together positive and normative analysis, this volume provides state of the art in a field of growing theoretical and practical importance.
It is widely assumed that a well-designed and well-implemented constitution can help ensure religious harmony in modern states. Yet how correct is this assumption? Drawing on groundbreaking research from Sri Lanka, this book argues persuasively for another possibility: when it comes to religion, relying on constitutional law may not be helpful, but harmful; constitutional practice may give way to pyrrhic constitutionalism. Written in a lucid and direct style, and aimed at both specialists and non-specialists, Buddhism, Politics and the Limits of Law explains why constitutional law has deepened, rather than diminished, conflicts over religion in Sri Lanka. Examining the roles of Buddhist monks, civil society groups, political coalitions and more, the book provides the first extended study of the legal regulation of religion in Sri Lanka as well as the first book-length analysis of the intersections of Buddhism and contemporary constitutional law.
In Towering Judges: A Comparative Study of Constitutional Judges, Rehan Abeyratne and Iddo Porat lead an exploration of a new topic in comparative constitutional law: towering judges. The volume examines the work of nineteen judges from fourteen jurisdictions, each of whom stood out individually among their fellow judges and had a unique impact on the trajectory of constitutional law. The chapters ask: what makes a towering judge; what are the background conditions that foster or deter the rise of towering judges; are towering judges, on balance, positive or detrimental for constitutional systems; how do towering judges differ from one jurisdiction to another; how do political and historical developments relate to this phenomenon; and how does all of this fit within global constitutionalism? The answers to these questions offer important insight into how these judges were able to shine to an uncommon degree in a profession where individualism is not always looked on favourably.
Constitutions in authoritarian regimes are often denigrated as meaningless exercises in political theater. Yet the burgeoning literature on authoritarian regimes more broadly has produced a wealth of insights into particular institutions such as legislatures, courts and elections; into regime practices such as co-optation and repression; and into non-democratic sources of accountability. In this vein, this volume explores the form and function of constitutions in countries without the fully articulated institutions of limited government. The chapters utilize a wide range of methods and focus on a broad set of cases, representing many different types of authoritarian regimes. The book offers an exploration into the constitutions of authoritarian regimes, generating broader insights into the study of constitutions and their functions more generally.
As religious polarisation in society deepens, political actors and policy-makers have begun to struggle with questions on the role of the dominant religion and how religion influences constitutional commitments and development. By focusing on Indonesia, Malaysia and Sri Lanka, Constitutions, Religion and Politics in Asia demonstrates how constitution-making and the operation of constitutional arrangements involving religion cannot be separated from the broader political dynamics of society. Although constitutions establish legal and political structures of government institutions and provide tools for rights protection, they do not operate in a vacuum divorced from the games of power and the political realities surrounding them. Here, Shah sets out how constitutions operate and evolve, and demonstrates how constitutional provisions can produce unintended consequences over time. A vital new source of scholarship for students and scholars of law and religion, and comparative
Since the rise of the nation-state in the nineteenth century, constitutions have been seen as an embodiment of national values and identity. However, individuals, ideas, and institutions from abroad have always influenced constitutions, and so the process is better described as transnational. As cross-border interaction is increasing in intensity, a dominant transnational legal order for constitutions has emerged, with its own norms, guidelines and shared ideas. Yet both the process and substance of constitution-making are being contested in divergent and insurgent constitutional orders. Bringing together leading scholars from the United States, Europe, Latin America, and Asia, this volume addresses the actors, networks, norms and processes involved in constitution-making, as well as the related challenges, from a transnational and comparative perspective. Drawing from the research on transnational legal orders, this work explores and examines constitution-making in every region of
Comparative constitutional law has a long pedigree, but the comparative study of constitution-making has emerged and taken form only in the last quarter-century. While much of the initial impetus came from the study of the American and French constituent assemblies in the late eighteenth century, this volume exemplifies the large comparative scope of current research. The contributors discuss constituent assemblies in South East Asia, North Africa and the Middle East, Latin America, and in Nordic countries. Among the new insights they provide is a better understanding of how constituent assemblies may fail, either by not producing a document at all or by adopting a constitution that fails to serve as a neutral framework for ordinary politics. In a theoretical afterword, Jon Elster, an inspirational thinker on the current topic, offers an analysis of the micro-foundations of constitution-making, with special emphasis on the role of crises-generated passions.
Judges often behave in surprising ways when they re-interpret laws and constitutions. Contrary to existing expectations, judges regularly abandon their own established interpretations in favor of new understandings. In Reconstructing Rights, Stephan Stohler offers a new theory of judicial behavior which demonstrates that judges do not act alone. Instead, Stohler shows that judges work in a deliberative fashion with aligned partisans in the elected branches to articulate evolving interpretations of major statutes and constitutions. Reconstructing Rights draws on legislative debates, legal briefs, and hundreds of judicial opinions issued from high courts in India, South Africa, and the United States in the area of discrimination and affirmative action. These materials demonstrate judges' willingness to provide interpretative leadership. But they also demonstrate how judges relinquish their leadership roles when their aligned counterparts disagree. This pattern of behavior indicates
Many constitutions include provisions intended to limit the discretion of governments in economic policy. In times of financial crises, such provisions often come under pressure as a result of calls for exceptional responses to crisis situations. This volume assesses the ability of constitutional orders all over the world to cope with financial crises, and the demands for emergency powers that typically accompany them. Bringing together a variety of perspectives from legal scholars, economists, and political scientists, this volume traces the long-run implications of financial crises for constitutional order. In exploring the theoretical and practical problems raised by the constitutionalization of economic policy during times of severe crisis, this volume showcases an array of constitutional design options and the ways they channel governmental responses to emergency.
Outside the United States, Norway's 1814 constitution is the oldest still in force. Constitutional judicial review has been a part of Norwegian court decision-making for most of these 200 years. Since the 1990s, Norway has also exercised review under the European Convention of Human Rights (ECHR). Judicial review of legislation can be controversial: having unelected judges overruling popularly elected majorities seems undemocratic. Yet Norway remains one of the most democratic countries in the world. How does Norway manage the balance between democracy and judicial oversight? Author Anine Kierulf tells the story of Norwegian constitutionalism from 1814 until today through the lens of judicial review debates and cases. This study adds important insights into the social and political justifications for an active judicial review component in a constitutional democracy. Anine Kierulf argues that the Norwegian model of judicial review provides a useful perspective on the dichotomy of
Constitutions worldwide inevitably have 'invisible' features: they have silences and lacunae, unwritten or conventional underpinnings, and social and political dimensions not apparent to certain observers. The Invisible Constitution in Comparative Perspective helps us understand these dimensions to contemporary constitutions, and their role in the interpretation, legitimacy and stability of different constitutional systems. This volume provides a nuanced theoretical discussion of the idea of 'invisibility' in a constitutional context, and its relationship to more traditional understandings of written versus unwritten constitutionalism. Containing a rich array of case studies, including discussions of constitutional practice in Australia, Canada, China, Germany, Hong Kong, Israel, Italy, Indonesia, Ireland and Malaysia, this book will look at how this aspect of 'invisible constitutions' is manifested across different jurisdictions.
