In this volume marking the Sesquicentennial of Confederation in Canada, leading scholars and jurists discuss the evolution of the Canadian Constitution since the British North America Act 1867; the role of the Supreme Court in interpreting the Constitution as a 'living tree' capable of application to new legal issues; and the growing influence of both the Constitution, with its entrenched Charter of Rights and Freedoms, and the decisions of the Court on other constitutional courts dealing with a wide range of issues pertaining to human rights and democratic government. The contributors assess how the Canadian Constitution accommodates the cultural diversity of the country's territories and peoples while ensuring the universal applicability of its provisions; the role of the Court in interpreting and applying the Constitution; and the growing global influence of the Constitution and decisions of the Court on legislatures and courts in other countries.
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
From Parchment to Practice explores the set of problems that arise when a new constitution has been adopted. All new constitutions must manage a balance or tension between two forces: aspirations for social and political transformation on the one hand and demands for preservation of old interests and institutions on the other. The period following the initial adoption of a new constitution, is the conceptual, temporal, and institutional bridge between the past and future. It is the moment when the transformative and the preservative forces in constitutional design can come into the sharpest conflict. Through a series of case studies, this volume analyzes the variable nature of these type of conflicts - and the diverse means through which they are mediated, whether successfully or not.
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
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
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.
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
The Indian Supreme Court is widely seen as a vanguard of progressive social change. Yet there are no systematic studies of whether its progressive decisions actually improve the lives of the relatively disadvantaged. This book presents the first collection of original empirical studies on the impact of the Indian Supreme Court's most progressive decisions. Combining original datasets with in-depth qualitative research, the chapters provide a rigorous examination of the conditions under which judicial decisions can make a difference to those in need. These studies reveal that the Indian Supreme Court, like its US counterpart, is largely constrained in its efforts. Yet, through the broad sweep of constitutional rights in the Indian Constitution, the Court's procedural innovations, and its institutional independence, the Indian Supreme Court can sometimes make a difference - in the lives of those most in need.
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
