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Author : Rosalind Dixon,Theunis Roux
Publisher : Cambridge University Press
Page : 471 pages
File Size : 52,5 Mb
Release : 2018-04-19
Category : History
ISBN : 9781108415330
Evaluates the successes and failures of the 1996 South African Constitution following the twentieth anniversary of its enactment.
Author : Sandra Liebenberg
Publisher : Juta and Company Ltd
Page : 572 pages
File Size : 41,7 Mb
Release : 2010
Category : Business & Economics
ISBN : 0702184802
Drawing on a wide range of interdisciplinary resources, this scholarly work provides an in-depth and thorough analysis of the socio-economic rights jurisprudence of the newly democratic South Africa. The book explores how the judicial interpretation and enforcement of socio-economic rights can be more responsive to the conditions of systemic poverty and inequality characterising South African society. Based on meticulous research, the work marries legal analysis with perspectives from political philosophy and democratic theory.
Author : Rosalind Dixon,Tom Ginsburg
Publisher : Edward Elgar Publishing
Page : 384 pages
File Size : 54,5 Mb
Release : 2017-06-30
Category : Electronic
ISBN : 9781785369216
This book provides unique insights into the practice of democratic constitutionalism in one of the world’s most legally and politically significant regions. It combines contributions from leading Latin American and global scholars to provide ‘bottom up’ and ‘top down’ insights about the lessons to be drawn from the distinctive constitutional experiences of countries in Latin America. In doing so, it also draws on a rich array of legal and interdisciplinary perspectives. Ultimately, it shows both the promise of democratic constitutions as a vehicle for social, economic and political change, and the variation in the actual constitutional experiences of different countries on the ground – or the limits to constitutions as a locus for broader social change.
Author : Charles M Fombad,Nico Steytler
Publisher : Oxford University Press
Page : 353 pages
File Size : 47,7 Mb
Release : 2024-05-22
Category : Law
ISBN : 9780198906308
This book in the Stellenbosch Handbooks in African Constitutional Law series provides a critical analysis of existing paradigms, concepts, and normative ideologies of modern African constitutional identity.
Author : Alicia Pastor y Camarasa
Publisher : Taylor & Francis
Page : 228 pages
File Size : 49,5 Mb
Release : 2024-06-14
Category : Law
ISBN : 9781040035757
This book examines the largely neglected but crucial role of transnational actors in democratic constitution-making. The writing or rewriting of constitutions is usually a key moment in democratic transitions. But how exactly does this take place? Most contemporary comparative constitutional literature draws on the concept of constituent power – the power of the people – to address this moment. But what this overlooks, this book argues, is the important role of external, transnational actors who tend to play a crucial role in the process. Drawing on sociolegal methodologies but informed by new legal realism, this book develops a new theoretical framework for examining the involvement of such actors in constitution-making. Empirically grounded, the book uncovers a more comprehensive picture of how constitution-making unfolds on the ground. Illuminating the power dynamics at play during the legal process, it reveals not only the wide range of external actors involved but also the continuity between decolonisation and post-Cold War constitution-making. This book, the first to provide an in-depth examination of external actor involvement in constitution-making, will appeal to scholars of constitutional law, sociolegal studies, law and development, and transitional justice.
Author : Randy E. Barnett
Publisher : Princeton University Press
Page : 448 pages
File Size : 47,6 Mb
Release : 2013-11-24
Category : Law
ISBN : 9780691159737
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a "presumption of liberty" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. As clearly argued as it is insightful and provocative, Restoring the Lost Constitution forcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.
Author : Swati Jhaveri,Tarunabh Khaitan,Dinesha Samararatne
Publisher : Bloomsbury Publishing
Page : 536 pages
File Size : 40,7 Mb
Release : 2023-06-01
Category : Law
ISBN : 9781509948864
South Asia has had a tumultuous and varied experience with constitutional democracy that predates the recent rise in populism (and its study) in established democracies. And yet, this region has remained largely ignored by constitutional studies and democracy scholars. This book addresses this gap and presents a contribution to the South Asia-centric literature on the topic of the stability and resilience of constitutional democracies. Chapters deal not only with relatively well known South Asian countries such as India, Bangladesh, Pakistan, and Sri Lanka, but also with countries often ignored by scholars, such as Bhutan, Nepal, Maldives, and Afghanistan. The contributions consider the design and functioning of an array of institutions and actors, including political parties, legislatures, the political executive, the bureaucracy, courts, fourth branch / guarantor institutions (such as electoral commissions), the people, and the military to examine their roles in strengthening or undermining constitutional democracy across South Asia. Each chapter offers a contextual and jurisdictionally-tethered account of the causes behind the erosion of constitutional democracy, and some examine the resilience of constitutional institutions against democratic erosion.
Author : Rosalind Dixon,Tom Ginsburg,Adem Abebe
Publisher : Edward Elgar Publishing
Page : 419 pages
File Size : 49,8 Mb
Release : 2022-12-06
Category : Law
ISBN : 9781839106897
This timely book is a crucial resource on the rich diversity of African constitutional law, making a significant contribution to the increasingly important field of comparative constitutional law from a historically understudied region. Offering an examination of substantive topics from multiple jurisdictions, it emphasises issues of local importance while also providing varied perspectives on common challenges across the continent.
Author : TT Arvind,Richard Kirkham,Daithí Mac Síthigh,Lindsay Stirton
Publisher : Bloomsbury Publishing
Page : 479 pages
File Size : 40,6 Mb
Release : 2021-02-25
Category : Law
ISBN : 9781509930340
In this book, leading experts from across the common law world assess the impact of four seminal House of Lords judgments decided in the 1960s: Ridge v Baldwin, Padfeld v Minister of Agriculture, Conway v Rimmer, and Anisminic v Foreign Compensation Commission. The 'Quartet' is generally acknowledged to have marked a turning point in the development of court-centred administrative law, and can be understood as a 'formative moment' in the emergence of modern judicial review. These cases are examined not only in terms of the points each case decided, and their contribution to administrative law doctrine, but also in terms of the underlying conception of the tasks of administrative law implicit in the Quartet. By doing so, the book sheds new light on both the complex processes through which the modern system of judicial review emerged and the constitutional choices that are implicit in its jurisprudence. It further reflects upon the implications of these historical processes for how the achievements, failings and limitations of the common law in reviewing actions of the executive can be evaluated.
Author : Rosalind Dixon
Publisher : Oxford University Press
Page : 321 pages
File Size : 44,8 Mb
Release : 2023-01-18
Category : Law
ISBN : 9780192689719
Democratic dysfunction can arise in both 'at risk' and well-functioning constitutional systems. It can threaten a system's responsiveness to both minority rights claims and majoritarian constitutional understandings. Responsive Judicial Review aims to counter this dysfunction using examples from both the global north and global south, including leading constitutional courts in the US, UK, Canada, India, South Africa, and Colombia, as well as select aspects of the constitutional jurisprudence of courts in Australia, Fiji, Hong Kong, and Korea. In this book, Dixon argues that courts should adopt a sufficiently 'dialogic' approach to countering relevant democratic blockages and look for ways to increase the actual and perceived legitimacy of their decisions—through careful choices about their framing, and the timing and selection of cases. By orienting judicial choices about constitutional construction toward promoting democratic responsiveness, or toward countering forms of democratic monopoly, blind spots, and burdens of inertia, judicial review helps safeguard a constitutional system's responsiveness to democratic majority understandings. The idea of 'responsive' judicial review encourages courts to engage with their own distinct institutional position, and potential limits on their own capacity and legitimacy. Dixon further explores the ways that this translates into the embracing of a 'weakened' approach to judicial finality, compared to the traditional US-model of judicial supremacy, as well as a nuanced approach to the making of judicial implications, a 'calibrated' approach to judicial scrutiny or judgments about proportionality, and an embrace of 'weak – strong' rather than wholly weak or strong judicial remedies. Not all courts will be equally well-placed to engage in review of this kind, or successful at doing so. For responsive judicial review to succeed, it must be sensitive to context-specific limitations of this kind. Nevertheless, the idea of responsive judicial review is explicitly normative and aspirational: it aims to provide a blueprint for how courts should think about the practice of judicial review as they strive to promote and protect democratic constitutional values.
Author : Silvia Suteu
Publisher : Oxford University Press
Page : 272 pages
File Size : 50,5 Mb
Release : 2021-05-20
Category : Law
ISBN : 9780192602602
This book analyses unamendability in democratic constitutionalism and engages critically and systematically with its perils, offering a much-needed corrective to existing understandings of this phenomenon. Whether formalized in the constitutional text or developed as part of judicial doctrines of implicit unamendability, eternity clauses raise fundamental questions about the core democratic commitments underpinning any given constitution. The book takes seriously the democratic challenge eternity clauses pose and argues that this goes beyond the old tension between constitutionalism and democracy. Instead, eternity clauses reveal themselves to be a far more ambivalent constitutional mechanism, one with greater and more insidious potential for abuse than has been recognized. The 'dark side' of unamendability includes its propensity to insulate majoritarian, exclusionary, and internally incoherent values, as well as its sometimes purely pragmatic role in elite bargaining. The book adopts a contextual approach and brings to the fore a variety of case studies from non-traditional jurisdictions. These insights from the periphery illuminate the prospects of unamendability fulfilling its intended aims - protecting constitutional democracy foremost among them. With its promise most appealing in transitional, post-conflict, and fragile democracies, unamendability reveals itself, counterintuitively, to be both less potent and potentially more dangerous in precisely these contexts. The book also places the rise of eternity clauses in the context of other significant trends in recent constitutional practice: the transnational embeddedness of constitution-making and of constitutional adjudication; the rise of popular participation in constitutional reform processes; and the ongoing crisis of democratic backsliding in liberal democracies.
Author : Erin F. Delaney,Rosalind Dixon
Publisher : Edward Elgar Publishing
Page : 464 pages
File Size : 42,7 Mb
Release : 2018-09-28
Category : Law
ISBN : 9781788110600
Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. This edited volume brings together the leading scholars of constitutional law and politics to provide a comprehensive overview of judicial review, covering theories of its creation, mechanisms of its constraint, and its comparative applications, including theories of interpretation and doctrinal developments. This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.
Author : Helena Alviar García,Günter Frankenberg
Publisher : Edward Elgar Publishing
Page : 400 pages
File Size : 51,6 Mb
Release : 2019
Category : Law
ISBN : 9781788117852
The contributions to this book analyse and submit to critique authoritarian constitutionalism as an important phenomenon in its own right, not merely as a deviant of liberal constitutionalism. Accordingly, the fourteen studies cover a variety of authoritarian regimes from Hungary to Apartheid South Africa, from China to Venezuela; from Syria to Argentina, and discuss the renaissance of authoritarian agendas and movements, such as populism, Trumpism, nationalism and xenophobia. From different theoretical perspectives the authors elucidate how authoritarian power is constituted, exercised and transferred in the different configurations of popular participation, economic imperatives, and imaginary community.
Author : Tom Ginsburg,Aziz Z. Huq
Publisher : Cambridge University Press
Page : 325 pages
File Size : 50,5 Mb
Release : 2020-04-30
Category : Law
ISBN : 9781108487733
Asks how the 'parchment' promises of a written constitution are translated into political practice, working through the many problems of constitutional implementation after adoption.
Author : Michael Gordon,Adam Tucker
Publisher : Bloomsbury Publishing
Page : 480 pages
File Size : 42,7 Mb
Release : 2022-02-10
Category : Law
ISBN : 9781509924660
The New Labour government first elected in 1997 had a defining influence on the development of the modern UK constitution. This book combines legal and political perspectives to provide a unique assessment of the way in which this major programme of constitutional reform has changed the nature of the UK constitution. The chapters, written by leading experts in UK public law and politics, analyse the impact and legacy of the New Labour reform programme some 20 years on from the 1997 general election, and reveal the ways in which the UK constitution is now, to a significant extent, the 'New Labour constitution'. The book takes a broad approach to exploring the legacy of the New Labour years for the UK constitution. The contributors evaluate a range of specific substantive reforms (including on human rights, devolution, freedom of information, and the judicial system), changes to the process and method of constitutional reform under New Labour, the impact on key institutions (such as the judiciary and Parliament), and a number of wider constitutional themes (including national security, administrative justice, and the relationship between the Labour Party and constitutionalism). The book also reflects on the future challenges for the constitution constructed by New Labour, and the prospects for further constitutional reform. In bringing together this range of perspectives to reflect on the implications of the New Labour era of reform, this book offers a critical examination of a foundational period in the development of the contemporary UK constitution.