Oxford Comparative Constitutionalism – serie

More than half of the world's population lives in cities; by 2050, it will be more than three quarters. Projections suggest that megacities of 50 million or even 100 million inhabitants will emerge by the end of the century, mostly in the Global South. This shift marks a major and unprecedented transformation of the organization of society, both spatially and geopolitically. Our constitutional institutions and imagination, however, have failed to keep pace with this new reality. Cities have remained virtually absent from constitutional law and constitutional thought, not to mention from comparative constitutional studies more generally. As the world is urbanizing at an extraordinary rate, this book argues, new thinking about constitutionalism and urbanization is desperately needed. In six chapters, the book considers the reasons for the "constitutional blind spot" concerning the metropolis, probes the constitutional relationship between states and (mega)cities worldwide, examines patterns of constitutional change and stalemate in city status, and aims to carve a new place for the city in constitutional thought, constitutional law and constitutional practice.

How are foreign relations constitutionally structured in federal unions? How does the foreign affairs constitution of the European Union - itself a federal union in all but name - compare to that of other federal unions? Foreign Relations Federalism: The EU in Comparative Perspective addresses these questions. It offers a comparative analysis of the constitutional framework in which foreign relations are conducted in four federal unions: the United States, Canada, Belgium, and the European Union. The EU takes up a special position in the book. Over a decade since the Treaty of Lisbon entered into force, the EU's foreign affairs constitution continues to evolve. New institutional practices emerge and cases continue to be brought before the Court of Justice of the European Union. The pace of constitutional change is fast, and there is a sustained need for critical and constructive legal analysis of that change. By comparing the constitutional experience of the EU to that of other federal unions, Foreign Relations Federalism contributes to fulfilling this need. It is a must-read for anyone interested in the EU's constitutional development, the role of the EU in foreign affairs, and the constitutional treatment of foreign relations in federal unions other than the EU.

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.

What makes a constitution difficult to amend? Many assume it's the stringency of the amendment rules, as seen with the U.S. Constitution. However, Mexico, with similar rules, has one of the most amended constitutions globally. So, if it's not the stringency of the rules, what is it?The Politics of Constitutional Rigidity: Unveiling Pathways to Change in Mexico focuses on Mexico as a case study to explore the non-institutional factors that influence the relative ease of amendment to its constitution. This book proposes a new analytical framework for understanding constitutional change, suggesting that both formal and informal changes occur within an 'economy of change.' This framework highlights how the interplay of political parties, party systems, constitutional culture, and key political actors' decisions influence political entrenchment.Timely and original, The Politics of Constitutional Rigidity offers a systematic study of constitutional change and challenges dominant approaches to constitutional rigidity.

Politicized Religion and the Reframing of Fundamental Rights provides a systematic account of how recent politicization of religion has been used by proponents of illiberal nationalism and populism to reframe constitutional and human rights in exclusionary anti-pluralist ways. This reframing enhances the rights of those who belong to the majority religion or are steeped in its culture, at the expense of the rights of women, sexual minorities, and adherents to minority religions. The book is composed of two parts. Part I draws on history as well as political and constitutional theory to examine the ideal of 'institutional secularism' as an areligious means to safeguard pluralism by separating the state from religion. Illiberal nationalists and populists attack institutional secularism as anti-religious and tend to equate it with 'ideological secularism', a conception of the good that rejects transcendence. Part II deploys comparative constitutional analysis to understand the ways in which fundamental rights have been illiberally reframed throughout a wide array of jurisdictions ranging from Europe to Russia, the United States, India, Turkey, and several African states. Special emphasis is also placed on the increasing role of transnational NGOs in spreading and coordinating such illiberal reframing. Through these combined approaches it becomes clear that the politicization of religion undertaken by contemporary nationalists and populists differs significantly from previous attempts to inject more religion into the affairs of the state, most notably in its new appropriation of the language of constitutional rights. Nevertheless, the book argues that pluralism can still be safeguarded through a renewed recourse to institutional secularism or by insistence on the staunch protection of ideological secularism to match its religions counterparts.

Law is fast globalizing as a field, and many lawyers, judges and political leaders are engaged in a process of comparative "borrowing". But this new form of legal globalization has darksides: it is not just a source of inspiration for those seeking to strengthen and improve democratic institutions and policies. It is increasingly an inspiration - and legitimation device - for those seeking to erode democracy by stealth, under the guise of a form of faux liberal democratic cover. Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy outlines this phenomenon, how it succeeds, and what we can do to prevent it. This book address current patterns of democratic retrenchment and explores its multiple variants and technologies, considering the role of legitimating ideologies that help support different modes of abusive constitutionalism.An important contribution to both legal and political scholarship, this book will of interest to all those working in the legal and political disciplines of public law, constitutional theory, political theory, and political science.

A Theory of African Constitutionalism asks and seeks to answer why we need a new theoretical framework for African constitutionalism and how this could offer us better theoretical and practical tools with which to understand, improve, and assess African constitutionalism on its own terms. By locating constitutional studies in Africa within the experiences, interactions, and contestations of power and governance beginning in precolonial times, the book presents the development and transformation of African constitutional systems across time and place, along with the attendant constitutional designs and practices ranging from the nature and operation of the African state to its vertical and horizontal government structures, to its constitutional rights regime. This title offers both a theoretically and comparatively rich, historically and contextually informed, and temporally and spatially extensive account of the nature, travails, and incremental successes of African constitutionalism with detailed case studies from Nigeria, Ethiopia, and South Africa. A Theory of African Constitutionalism provides scholars, policymakers, governments, and constitution builders in Africa and beyond with new insights for reimagining the purpose, substance, and scope of constitutions and constitutionalism.

Within democratic states, parliaments have always been regarded as playing a pivotal role in the creation of rules. Through its composition, parliament represents the opinions and interests of society, which it serves through the legislative process. But in an increasingly globalized world, nation-states are confronted with issues that require international cooperation, expert knowledge and flexibility to resolve. Rather than taking the lead, parliaments are increasingly settling for a managerial position and have begun to outsource their rulemaking powers (and other constitutional responsibilities) rather than exercising them themselves.Outsourcing Rulemaking Powers identifies the shared constitutional principles that determine the limits to the outsourcing of rulemaking powers. It asks fundamental questions of its readers, such as: which powers should be outsourced? And to whom? What mechanisms are in place to guarantee the quality of the rules they make? Through the examination of multiple countries, this book argues that there should be minimal legal safeguards to which all rules must heed, in particular those made by autonomous public or private actors. Offering a bridge between traditional constitutional law and transnational private law, this book will be of interest to both practitioners and scholars within the global communities of comparative constitutionalism, global administrative law and transnational private law.

More than half of the world's population lives in cities; by 2050, it will be more than three quarters. Projections suggest that megacities of 50 million or even 100 million inhabitants will emerge by the end of the century, mostly in the Global South. This shift marks a major and unprecedented transformation of the organization of society, both spatially and geopolitically. Our constitutional institutions and imagination, however, have failed to keep pace with this new reality. Cities have remained virtually absent from constitutional law and constitutional thought, not to mention from comparative constitutional studies more generally. As the world is urbanizing at an extraordinary rate, this book argues, new thinking about constitutionalism and urbanization is desperately needed. In six chapters, the book considers the reasons for the "constitutional blind spot" concerning the metropolis, probes the constitutional relationship between states and (mega)cities worldwide, examines patterns of constitutional change and stalemate in city status, and aims to carve a new place for the city in constitutional thought, constitutional law and constitutional practice.

Since 2015, Poland's populist Law and Justice Party (PiS) has been dismantling the major checks and balances of the Polish state and subordinating the courts, the civil service, and the media to the will of the executive. Political rights have been radically restricted, and the Party has captured the entire state apparatus. The speed and depth of these antidemocratic movements took many observers by surprise: until now, Poland was widely regarded as an example of a successful transitional democracy. Poland's anti-constitutional breakdown poses three questions that this book sets out to answer: What, exactly, has happened since 2015? Why did it happen? And what are the prospects for a return to liberal democracy? These answers are formulated against a backdrop of current worldwide trends towards populism, authoritarianism, and what is sometimes called 'illiberal democracy'. As this book argues, the Polish variant of 'illiberal democracy' is an oxymoron. By undermining the separation of powers, the PiS concentrates all power in its own hands, rendering any democratic accountability illusory. There is, however, no inevitability in these anti-democratic trends: this book considers a number of possible remedies and sources of hope, including intervention by the European Union.

This volume makes a timely intervention into a field which is marked by a shift from unipolar to multipolar order and a pluralization of constitutional law. It addresses the theoretical and epistemic foundations of Southern constitutionalism and discusses its distinctive themes, such as transformative constitutionalism, inequality, access to justice, and authoritarian legality. This title has three goals. First, to pluralize the conversation around constitutional law. While most scholarship focuses on liberal forms of Western constitutions, this book attempts to take comparative law's promise to cover all major legal systems of the world seriously; second, to reflect critically on the epistemic framework and the distribution of epistemic powers in the scholarly community of comparative constitutional law; third, to reflect on - and where necessary, test - the notion of the Global South in comparative constitutional law. This book breaks down the theories, themes, and global picture of comparative constitutionalism in the Global South. What emerges is a rich tapestry of constitutional experiences that pluralizes comparative constitutional law as both a discipline and a field of knowledge.

After the collapse of the Soviet bloc, there are only five socialist or communist countries left in the world – China, Cuba, Laos, North Korea, and Vietnam – which constitute about one-quarter of the world’s population. Yet, there is little scholarship on their constitutions. These countries have seen varying socioeconomic changes in the decades since 1991, which have led in turn to constitutional changes. This book will investigate, from a comparative and interdisciplinary perspective, how and why the constitutional systems in these five countries have changed in the last three decades.The book then breaks the constitutional changes down into four questions: what are the substantive contents of constitutional change, what are the functions, what are the mechanisms, and what are the driving forces? These questions form a framework to process the changes the five countries have gone through, such as making new constitutions, amending current ones, introducing more rights, allowing citizens to engage in changes, enacting legislation, and defining the constitutional authority of the three state branches and their relationship with the Communist Party. While all five countries have adapted their constitutional systems, the degree, mechanisms, and influential factors are not identical and present considerable variations. This book examines and explores these differences and how they developed.Constitutional Change in the Contemporary Socialist World offers a comprehensive and holistic view of an understudied and overlooked area of constitutional law, essential for anyone studying or working in law, politics, or policy.

Since the Second World War, constitutional justice has spread through much of the democratic world. Often it has followed in the wake of national calamity and historical evil - whether fascism or communism, colonialism or apartheid. Unsurprisingly, the memory of such evils plays a prominent role in constitutional adjudication. This book explores the relationship between constitutional interpretation and the memory of historical evil. Specifically, it examines how the constitutional courts of the United States, Germany, and South Africa have grappled, respectively, with the legacies of slavery, Nazism, and apartheid.Most courts invoke historical evil through either the parenthetical or the redemptive mode of constitutional memory. The parenthetical framework views the evil era as exceptional - a baleful aberration from an otherwise noble and worthy constitutional tradition. Parenthetical jurisprudence reaches beyond the evil era toward stable and enduring values. It sees the constitutional response to evil as restorative rather than revolutionary - a return to and reaffirmation of older traditions. The redemptive mode, by contrast, is more aggressive. Its aim is not to resume a venerable tradition but to reverse recent ills. Its animating spirit is not restoration, but antithesis. Its aim is not continuity with deeper pasts, but a redemptive future stemming from a stark, complete, and vivid rupture. This book demonstrates how, across the three jurisdictions, the parenthetical mode has often accompanied formalist and originalist approaches to constitutional interpretation, whereas the redemptive mode has accompanied realist and purposive approaches. It also shows how, within the three jurisdictions, the parenthetical mode of memory has consistently predominated in American constitutional jurisprudence; the redemptive mode in South African jurisprudence; and a hybrid, parenthetical-redemptive mode in German constitutional jurisprudence. The real-world consequences of these trends have been stark and dramatic. Memory matters, especially in constitutional interpretation.

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.

Peace referendums', which seek to manage conflict between warring groups, are increasingly common. Yet they remain erratic forces—liable as often to aggravate as to resolve tensions. This book argues that, despite their risks, referendums can play useful roles amid armed conflict. Drawing on a distinctive combination of the fields of deliberative democracy, constitutional theory and conflict studies, and relying on comparative examples (eg, from Algeria, Colombia, New Caledonia, Northern Ireland, Papua New Guinea, and South Africa), the book shows how peace referendums can fulfil their promise as genuine tools of conflict management.

Over the past two decades, liberal constitutionalism has been in decline. Yet some courts - including the U.S. Supreme Court, the Supreme Court of India, and the Hong Kong Court of Final Appeal - have continued to progressively realize the rights of lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons. How can the seeming paradox of LGBTQ+ rights advancement amid liberal constitutional regression be understood? And what, in turn, does that tell us about the state of liberal constitutionalism and rights adjudication?Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment addresses these questions by exploring rights adjudication within the broader context of declining liberal constitutionalism within the U.S., India, and Hong Kong. By analysing landmark LGBTQ+ rights judgments and topical case studies in increasingly challenging political and institutional contexts, this book provides detailed, qualitative accounts of constitutionalism in these jurisdictions over the past two decades. Progressive and original, this book explores how courts often use LGBTQ+ rights to demonstrate their rhetorical commitment to liberal and global constitutionalism, even as their judgments may fall short of, or even undermine, those ideals.

Over the past two decades, the field of comparative constitutional law has emerged as a major domain of scholarly inquiry. It has also been a notable feature in judicial practice. Many of the world's leading courts are now composed of at least some members who engage with comparative materials, and thinking comparatively has developed into one of the most significant ways of engaging in constitutional analyses. Redefining Comparative Constitutional Law: Essays for Mark Tushnet reflects upon the field of comparative constitutional law. Among the most prominent figures in the development of the field in its ongoing renaissance has been Mark Tushnet. This book uses the occasion of Professor Tushnet's recent retirement from Harvard Law School to think critically about the field. Each essay takes up one of Professor Tushnet's major recent themes which focuses on variations within liberal constitutionalism and the possibility of other forms of constitutionalism that find articulation under other political regimes.In this book, leading scholars contribute to the debate over the nature of the field, including the role of empiricism and language; discussions of democracy and entrenchment; analyses of rights and courts; consideration of constitutional design; and explorations of the extent to which there are varieties of constitutionalism. At a moment of renewed stress and political debate over the relationship between democracy and constitutionalism, Redefining Comparative Constitutional Law: Essays for Mark Tushnet offers timely insights into comparative analyses of constitutional rights. Academics and students alike will benefit from the essays that range across both methodological questions and substantive analysis in the development of constitutions throughout the globe.

With the majority of the global population still living under surprisingly stable autocratic regimes, we can assume that regime stability is the ultimate objective of autocratic leadership. However, this stability is continually challenged, so autocrats deploy various instruments to defend their hegemonic power.Constitutional Change under Autocracy examines one such instrument, the strategic use of constitutional amendments to reinforce regime stability. Through a large-N comparative analysis and illustrative case studies of Azerbaijan, Mexico, and the German Democratic Republic (GDR), this book demonstrates that constitutional amendments are far more than technical legal adjustments. Instead, they serve as deliberate tools for consolidating power, managing internal rivalries, and mitigating external threats. By enhancing - or attempting to enhance-regime legitimacy, these amendments can play a pivotal role in stabilizing autocratic regimes.Insightful and analytical, this book reflects on the implications of the instrumentalization of law and challenges our expectations about the role of constitutions under autocracy.

The appointment of former politicians to constitutional courts is a global phenomenon. While ex-politician appointees may bring status, visibility, knowledge, and political awareness to the job, their previous roles may influence their assessment of legislations' constitutionality. Ex-Ministers as Constitutional Judges sheds light on this practice in four of the world's oldest and most established constitutional courts: Austria, France, Germany, and Italy.Weaving together legal, political, sociological, and historical sources, including press articles, surveys, and interviews with constitutional judges and high-level personnel, the book provides the first comprehensive exploration of ex-politicians becoming constitutional court judges. It analyses the advantages and disadvantages such personalities bring to constitutional courts, as well as assessing what limitations supranational law may set for such participation. Whereas the participation of ex-ministers does not seem to have posed serious structural issues to constitutional courts so far, this volume posits that the risks have been underestimated. In this context, Ex-Ministers as Constitutional Judges ultimately suggests normative steps for minimizing such risks and strengthening the independence and impartiality of constitutional courts in view of democratic and constitutional backsliding.

What is the significance of sex characteristics and gender identity in public law? Why are these personal attributes important for the legal relationship between the person and public authorities? What happens when people do not conform to the assumptions about sexual anatomy and gender identity that are presupposed in the law? Gender Diversity in Public Law explores these questions through an extensive analysis of jurisdictions across Europe, Latin America, and Asia. By integrating comparative law with gender and constitutional studies, the volume examines how gender diversity is both recognized and regulated in different legal systems. This book shows that sex characteristics and gender identity are central to public law. It demonstrates that legal systems are not based solely on the existence of men and women. Instead, they rely on the presence of men, women, and nonbinary individuals, each characterized by specific physical and identity traits. When people exhibit sex characteristics and/or a gender identity that defy legal assumptions and definitions, public law intervenes and actively shapes the subjects it requires. At the same time, legal systems are gradually becoming more inclusive of gender diversity, and this book investigates how emerging models of recognition are transforming public law to recognize gender-diverse people. Gender Diversity in Public Law offers a comparative perspective on the complex relationship between gender diversity and public law, shedding light on a crucial aspect of this field-one that has remained largely understudied until now.

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-by encouraging courts to orient choices about constitutional construction toward promoting democratic responsiveness, or countering forms of democratic monopoly, blind spots, and burdens of inertia. At the same time, 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. This translates into courts embracing a 'weakened' approach to judicial finality, or 'weak-strong' judicial review and remedies, as well as a nuanced approach to the making of judicial implications, a 'calibrated' approach to judicial scrutiny or judgments about proportionality. Dixon further argues that courts should look for ways to increase the legitimacy of their decisions-through careful choices about their framing, and the timing and selection of cases. 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.

Law is a fast globalizing field and many lawyers, judges, and political leaders are engaged in a process of comparative 'borrowing'. But this new form of legal globalization has dark sides. It is not just a source of inspiration for those seeking to strengthen and improve democratic institutions and policies, it is increasingly an inspiration - and legitimation device - for those seeking to erode democracy by stealth under the guise of faux liberal democratic cover. Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy outlines this phenomenon, how it succeeds, and what we can do to prevent it. It addresses current patterns of democratic retrenchment and explores its multiple variants and technologies, considering the role of legitimating ideologies that help support different modes of abusive constitutionalism. An important contribution to both legal and political scholarship, this book will be of interest to those working in the legal and political disciplines of public law, constitutional theory, political theory, and political science.