Oxford Constitutional Theory – serie

"Legitimation by Constitution" is the phrase, coined by distinguished authors Frank Michelman and Alessandro Ferrara, for a key idea in Rawlsian political liberalism of a reliance on a dualist form of democracy-a subjection of ground-level lawmaking to the constraints of a higher-law constitution that most citizens could find acceptable as a framework for their politics-as a response to the problem of maintaining a liberally just, stable, and oppression-free democratic government in conditions of pluralist visionary conflict. Legitimation by Constitution recalls, collects, and combines a series of exchanges over the years between Michelman and Ferrara, inspired by Rawls' encapsulation of this conception in his proposed liberal principle of legitimacy. From a shared standpoint of sympathetic identification with the political-liberal statement of the problem, for which legitimation by constitution is proposed as a solution, these exchanges consider the perceived difficulties arguably standing in the way of this proposal's fulfillment on terms consistent with political liberalism's defining ideas about political justification. The authors discuss the mysteries of a democratic constituent power; the tensions between government-by-the-people and government-by-consent; the challenges posed to concretization by judicial authorities of national constitutional law; and the magnification of these tensions and challenges under the lenses of ambition towards transnational legal ordering. These discussions engage with other leading contemporary theorists of liberal-democratic constitutionalism including Bruce Ackerman, Ronald Dworkin, and Jürgen Habermas.

Ernst-Wolfgang Böckenförde (1930-2019) was one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court (1983-1996), Böckenförde was a major contributor to contemporary debates in legal and political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the constitutional status of the state of emergency, citizenship rights, bioethical politics, and the challenges of European integration. His writings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and holder of a trusted public office, Böckenförde has influenced the way academics and citizens think about law and politics. During his tenure on the Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions on the deployment of missiles, the law on political parties, the regulation of abortion, and the process of European integration.This second volume in the first representative edition in English of Böckenförde's writings brings together his essays on religion, law, and democracy. The volume is organized in five sections: I. the Catholic Church and Political Order; II. State and Secularity; III. the Theology of Law and its Relation to Political Theory; IV. Norms and the Principle of Human Dignity; and V. Excerpts from a biographical interview. Sections I, II, III, and IV are preceded by an editors' introduction to the articles as well as running editorial commentary to the work.

This title offers a unique approach to constitutionalism, focusing on the paradoxical relationship between principles and rules from the perspective of systems theory. It presents a critical counterpoint to Ronald Dworkin's principle-based theory, and in particular to Robert Alexy's idea of optimizing balancing. Instead of ceding to the compulsion of an optimizing balancing, it suggests the possibility of a comparative or at least 'satisficing' balancing, considering the precariousness of legal rationality. The book also reverses Dworkin's metaphor, associating rules with Hercules and principles with the Hydra. It takes constitutional principles seriously, criticizing the abuse of principles by the legal and constitutional doctrine and practice, and pointing out their relationship of complementarity and tension with rules. Finally, it offers an alternative model to the recent legal and constitutional theory on the basis of certain assumptions of the systems theory. It deals especially with the paradox of the circular and reflexive relationship between constitutional principles and rules: the former refers primarily to the openness and adequacy of legal system to society and thus to substantive argumentation; the second refers primarily to the closure and consistency of legal system and thus to formal argumentation.

In recent years a series of scandals have challenged the traditional political reliance on public constitutional law and human rights as a safeguard of human well-being. Multinational corporations have violated human rights; private intermediaries in the internet have threatened freedom of opinion, and the global capital markets unleashed catastrophic risks. All of these phenomena call for a response from traditional constitutionalism. Yet it is outside the limits of the nation-state in transnational politics and outside institutionalized politics, in the 'private' sectors of global society that these constitutional problems arise. It is widely accepted that there is a crisis in traditional constitutionalism caused by transnationalization and privatization. How the crisis can be overcome is one of the major controversies of modern political and constitutional theory. This book sets out an answer to that problem. It argues that the obstinate state-and-politics-centricity of traditional constitutionalism needs to be counteracted by a sociological approach which, so far, has remained neglected in the constitutional debate. Constitutional sociology projects the questions of constitutionalism not only onto the relationship between public politics and law, but onto the whole society. It argues that constitutionalism has the potential to counteract the expansionist tendencies of social systems outside the state world, particularly of the globalized economy, science and technology, and the information media, when they endanger individual or institutional autonomy. The book identifies transnational regimes, particularly in the private area, as the new constitutional subjects in a global society, rivals to the order and power of nation states. It presents a model of transnational, societal constitutional fragments that could bring the values of constitutionalism to bear on these private networks, examining the potential horizontal application of human rights in the private sphere, and how such fragments could interact. An original and provocative contribution to the literature on modern constitutionalism, Constitutional Fragments is essential reading for all those engaged in transnational political theory.

The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, even in countries with little or no tradition of direct democracy. This is the first book by a constitutional theorist to address the implications of this development for constitutional democracy in a globalizing age, when many of the older certainties surrounding sovereignty and constitutional authority are coming under scrutiny.The book identifies four substantive constitutional processes where the referendum is regularly used today: the founding of new states; the creation or amendment of constitutions; the establishment of complex new models of sub-state autonomy, particularly in multinational states; and the transfer of sovereign powers from European states to the European Union. The book, as a study in constitutional theory, addresses the challenges this phenomenon poses not only for particular constitutional orders, which are typically structured around a representative model of democracy, but for constitutional theory more broadly.The main theoretical focus of the book is the relationship between the referendum and democracy. It addresses the standard criticisms which the referendum is subjected to by democratic theorists and deploys both civic republican theory and the recent turn in deliberative democracy to ask whether by good process-design the constitutional referendum is capable of facilitating the engagement of citizens in deliberative acts of constitution-making. With the referendum firmly established as a fixture of contemporary constitutionalism, the book addresses the key question for constitutional theorists and practitioners of how might its operation be made more democratic in age of constitutional transformation.

Ernst-Wolfgang Böckenförde (b. 1930) is one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court (December 1983 - May 1996), Böckenförde has been a major contributor to contemporary debates in legal and political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the rights of the enemies of the state, the constitutional status of the state of emergency, citizenship rights, and challenges of European integration. His writings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and thus holder of one the most important and most trusted public offices, Böckenförde has influenced the way in which academics and citizens think about law and politics. During his tenure as a member of the Second Senate of the Federal Constitutional Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions pertaining to the deployment of missiles, the law on political parties, the regulation of abortion, and the process of European integration. In the first representative edition in English of Böckenförde's writings, this volume brings together his essays on constitutional and political theory. The volume is organized in four sections, focusing respectively on (I) the political theory of the state; (II) constitutional theory; (III) constitutional norms and fundamental rights; and (IV) the relation between state, citizenship, and political autonomy. Each of these feature introductions to the articles as well as a running editorial commentary to the work. A second volume will follow this collection, focusing on the relation between religion, law, and democracy.

Ernst-Wolfgang Böckenförde (b. 1930, d. 2019) is one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court (December 1983 - May 1996), Böckenförde has been a major contributor to contemporary debates in legal and political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the rights of the enemies of the state, the constitutional status of the state of emergency, citizenship rights, and challenges of European integration. His writings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and thus holder of one the most important and most trusted public offices, Böckenförde has influenced the way in which academics and citizens think about law and politics. During his tenure as a member of the Second Senate of the Federal Constitutional Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions pertaining to the deployment of missiles, the law on political parties, the regulation of abortion, and the process of European integration. In the first representative edition in English of Böckenförde's writings, this volume brings together his essays on constitutional and political theory. The volume is organized in four sections, focusing respectively on (I) the political theory of the state; (II) constitutional theory; (III) constitutional norms and fundamental rights; and (IV) the relation between state, citizenship, and political autonomy. Each of these feature introductions to the articles as well as a running editorial commentary to the work. A second volume will follow this collection, focusing on the relation between religion, law, and democracy. A companion volume entitled Religion, Law, and Democracy is also being published.

Food, water, health, housing, and education are as fundamental to human freedom and dignity as privacy, religion, or speech. Yet only recently have legal systems begun to secure these fundamental individual interests as rights. This book looks at the dynamic processes that render economic and social rights in legal form. It argues that processes of interpretation, enforcement, and contestation each reveal how economic and social interests can be protected as human and constitutional rights, and how their protection changes public law. Drawing on constitutional examples from South Africa, Colombia, Ghana, India, the United Kingdom, the United States and elsewhere, the book examines innovations in the design and role of institutions such as courts, legislatures, executives, and agencies in the organization of social movements and in the links established with market actors. This comparative study shows how legal systems protect economic and social rights by shifting the focus from minimum bundles of commodities or entitlements to processes of value-based, deliberative problem solving. Theories of constitutionalism and governance inform the potential of this approach to reconcile economic and social rights with both democratic and market principles, while addressing the material inequality, poverty and social conflict caused, in part, by law itself.

Since the end of the Second World War and the subsequent success of constitutional judicial review, one particular model of constitutional rights has had remarkable success, first in Europe and now globally. This global model of constitutional rights is characterized by an extremely broad approach to the scope of rights (sometimes referred to as 'rights inflation'), the acceptance of horizontal effect of rights, positive obligations, and increasingly also socio-economic rights, and the use of the doctrines of balancing and proportionality to determine the permissible limitations of rights. Drawing on analyses of a broad range of cases from the UK, the European Court of Human Rights, Germany, Canada, the US, and South Africa, this book provides the first substantive moral, reconstructive theory of the global model. It shows that it is based on a coherent conception of constitutional rights which connects to attractive accounts of judicial review, democracy and the separation of powers. The first part of the book develops a theory of the scope of rights under the global model. It defends the idea of a general right to personal autonomy; a right to everything which, according to the agent's self-conception, is in his or her interest. The function of this right is to acknowledge that every act by a public authority which places a burden on a person's autonomy requires justification. The book concludes by demonstrating a theory of the structure of this justification which offers original and useful accounts of the important doctrines of balancing and proportionality.

The idea of the separation of powers is still popular in much political and constitutional discourse, though its meaning for the modern state remains unclear and contested. This book develops a new, comprehensive, and systematic account of the principle. It then applies this new concept to legal problems of different national constitutional orders, the law of the European Union, and international institutional law. It connects an argument from normative political theory with phenomena taken from comparative constitutional law. The book argues that the conflict between individual liberty and democratic self-determination that is characteristic of modern constitutionalism is proceduralized through the establishment of different governmental branches. A close analysis of the relation between individual and collective autonomy on the one hand and the ways lawmaking through public institutions can be established on the other hand helps us identify criteria for determining how legislative, administrative, and judicial lawmaking can be distinguished and should be organized. These criteria define a common ground in the confusing variety of western constitutional traditions and their diverse use of the notion of separated powers. They also enable us to establish a normative framework that throws a fresh perspective on problems of constitutional law in different constitutional systems: constitutional judicial review of legislation, limits of legislative delegation, parliamentary control of the executive, and standing. Linking arguments from comparative constitutional law and international law, the book then uses this framework to offer a new perspective on the debate on constitutionalism beyond the state. The concept permits certain institutional insights of the constitutional experiences within states to be applied at the international level without falling into any form of methodological nationalism.

Popular sovereignty - the doctrine that the public powers of state originate in a concessive grant of power from 'the people' - is perhaps the cardinal doctrine of modern constitutional theory, placing full constitutional authority in the people at large, rather than in the hands of judges, kings, or a political elite. Although its classic formulation is to be found in the major theoretical treatments of the modern state, such as in the treatises of Hobbes, Locke, and Rousseau, this book explores the intellectual origins of this doctrine and investigates its chief source in late medieval and early modern thought. Long regarded the principal source for modern legal reasoning, Roman law had a profound impact on the major architects of popular sovereignty such as François Hotman, Jean Bodin, and Hugo Grotius. Adopting the juridical language of obligations, property, and personality as well as the model of the Roman constitution, these jurists crafted a uniform theory that located the right of sovereignty in the people at large as the legal owners of state authority. In recovering the origins of popular sovereignty, the book demonstrates the importance of the Roman law as a chief source of modern constitutional thought.

Constitutional politics has become a major terrain of contemporary struggles. Contestation around designing, replacing, revising, and dramatically re-interpreting constitutions is proliferating worldwide. Starting with Southern Europe in post-Franco Spain, then in the ex-Communist countries in Central Europe, post-apartheid South Africa, and now in the Arab world, constitution making has become a project not only of radical political movements, but of liberals and conservatives as well. Wherever new states or new regimes will emerge in the future, whether through negotiations, revolutionary process, federation, secession, or partition, the making of new constitutions will be a key item on the political agenda.Combining historical comparison, constitutional theory, and political analysis, this volume links together theory and comparative analysis in order to orient actors engaged in constitution making processes all over the world. The book examines two core phenomena: the development of a new, democratic paradigm of constitution making, and the resulting change in the normative discussions of constitutions, their creation, and the source of their legitimacy. After setting out a theoretical framework for understanding these developments, Andrew Arato examines recent constitutional politics in South Africa, Hungary, Turkey, and Latin America and discusses the political stakes in constitution-making. The book concludes by offering a systematic critique of the alternative to the new paradigm, populism and populist constituent politics.

Constitutionalism has become a byword for legitimate government, but is it fated to lose its relevance as constitutional states relinquish power to international institutions? This book evaluates the extent to which constitutionalism, as an empirical idea and normative ideal, can be adapted to institutions beyond the state by surveying the sophisticated legal and political system of the European Union. Having originated in a series of agreements between states, the EU has acquired important constitutional features like judicial review, protections for individual rights, and a hierarchy of norms. Nonetheless, it confounds traditional models of constitutional rule to the extent that its claim to authority rests on the promise of economic prosperity and technocratic competence rather than on the democratic will of citizens. Critically appraising the European Union and its legal system, this book proposes the idea of 'functional constitutionalism' to describe this distinctive configuration of public power. Although the EU is the most advanced instance of functional constitutionalism to date, understanding this pragmatic mode of constitutional authority is essential for assessing contemporary international economic governance.

Contemporary democracies have granted an expansive amount of power to unelected judges that sit in constitutional or supreme courts. This power shift has never been easily squared with the institutional backbones through which democracy is popularly supposed to be structured. The best institutional translation of a 'government of the people, by the people and for the people' is usually expressed through elections and electoral representation in parliaments.Judicial review of legislation has been challenged as bypassing that common sense conception of democratic rule. The alleged 'democratic deficit' behind what courts are legally empowered to do has been met with a variety of justifications in favour of judicial review. One common justification claims that constitutional courts are, in comparison to elected parliaments, much better suited for impartial deliberation and public reason-giving. Fundamental rights would thus be better protected by that insulated mode of decision-making. This justification has remained largely superficial and, sometimes, too easily embraced.This book analyses the argument that the legitimacy of courts arises from their deliberative capacity. It examines the theory of political deliberation and its implications for institutional design. Against this background, it turns to constitutional review and asks whether an argument can be made in support of judicial power on the basis of deliberative theory.

Constitutionalism: Past, Present, and Future will offer a definitive collection of Professor Dieter Grimm's most important scholarly writings on constitutional thought and interpretation. The essays included in this volume explore the conditions under which the modern constitution could emerge; they treat the characteristics that must be given if the constitution may be called an achievement, the appropriate way to understand and interpret constitutional law under current conditions, the function of judicial review, the remaining role of national constitutions in a changing world, as well as the possibility of supra-national constitutionalism.Many of these essays have influenced the German and European discussion on constitutionalism and for the first time, much of the work of one of German's leading scholars of public law will be available in the English language.

Can constitutional amendments be unconstitutional? The problem of 'unconstitutional constitutional amendments' has become one of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. This book describes and analyses the increasing tendency in global constitutionalism to substantively limit formal changes to constitutions. The challenges of constitutional unamendability to constitutional theory become even more complex when constitutional courts enforce such limitations through substantive judicial review of amendments, often resulting in the declaration that these constitutional amendments are 'unconstitutional'.Combining historical comparisons, constitutional theory, and a wide comparative study, Yaniv Roznai sets out to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments.

What is the effect of revolutions on legal systems? What role do constitutions play in legitimating regimes? How do constitutions and revolutions converge or clash? Taking the Arab Spring as its case study, this book explores the role of law and constitutions during societal upheavals, and critically evaluates the different trajectories they could follow in a revolutionary setting. The book urges a rethinking of major categories in political, legal, and constitutional theory in light of the Arab Spring. The book is a novel and comprehensive examination of the constitutional order that preceded and followed the Arab Spring in Egypt, Tunisia, Libya, Morocco, Jordan, Algeria, Oman, and Bahrain. It also provides the first thorough discussion of the trials of former regime officials in Egypt and Tunisia. Drawing on a wide range of primary sources, including an in-depth analysis of recent court rulings in several Arab countries, the book illustrates the contradictory roles of law and constitutions. The book also contrasts the Arab Spring with other revolutionary situations and demonstrates how the Arab Spring provides a laboratory for examining scholarly ideas about revolutions, legitimacy, legality, continuity, popular sovereignty, and constituent power.

Constituent power is the power to create new constitutions. Frequently exercised during political revolutions, it has been historically associated with extra-legality and violations of the established legal order. This book examines the relationship between constituent power and the law. It considers the place of constituent power in constitutional history, focusing on the legal and institutional implications that theorists, politicians, and judges have derived from it.Commentators and citizens have relied on the concept of constituent power to defend the idea that electors have the right to instruct representatives, to negate the doctrine of parliamentary sovereignty, and to argue that the creation of new constitutions must take place through extra-legislative processes, including primary assemblies open to all citizens. More recently, several Latin American constitutions explicitly incorporate the theory of constituent power and allow citizens, acting through popular initiative, to trigger constitution-making episodes that may result in the replacement of the entire constitutional order.Constitutional courts have also at times employed constituent power to justify their jurisdiction to invalidate constitutional amendments that alter the fundamental structure of the constitution and thus amount to a constitution-making exercise. Some governments have used it to defend the legality of attempts to transform the constitutional order through procedures not contemplated in the constitution's amendment rule, but considered participatory enough to be equivalent to 'the people in action', sometimes sanctioned by courts.Building on these findings, Constituent Power and the Law argues that constituent power, unlike sovereignty, should be understood as ultimately based on a legal mandate to produce a particular type of juridical content. In practice, this makes it possible for a constitution-making body to be understood as legally subject to popularly ratified substantive limits.

Can a constitutional democracy commit suicide? Can an illiberal antidemocratic party legitimately obtain power through democratic elections and amend liberalism and democracy out of the constitution entirely? In Weimar Germany, these theoretical questions were both practically and existentially relevant. By 1932, the Nazi and Communist parties combined held a majority of seats in parliament. Neither accepted the legitimacy of liberal democracy. Their only reason for participating democratically was to amend the constitution out of existence. This book analyses Carl Schmitt's state and constitutional theory and shows how it was conceived in response to the Weimar crisis. Right-wing and left-wing political extremists recognized that a path to legal revolution lay in the Weimar constitution's combination of democratic procedures, total neutrality toward political goals, and positive law. Schmitt's writings sought to address the unique problems posed by mass democracy. Schmitt's thought anticipated 'constrained' or 'militant' democracy, a type of constitution that guards against subversive expressions of popular sovereignty and whose mechanisms include the entrenchment of basic constitutional commitments and party bans.Schmitt's state and constitutional theory remains important: the problems he identified continue to exist within liberal democratic states. Schmitt offers democrats today a novel way to understand the legitimacy of liberal democracy and the limits of constitutional change.

Originally the constitution was expected to express and channel popular sovereignty. It was the work of freedom, springing from and facilitating collective self-determination. After the Second World War this perspective changed: the modern constitution owes its authority not only to collective authorship, it also must commit itself credibly to human rights. Thus people recede into the background, and the national constitution becomes embedded into one or other system of 'peer review' among nations.This is what Alexander Somek argues is the creation of the cosmopolitan constitution. Reconstructing what he considers to be the three stages in the development of constitutionalism, he argues that the cosmopolitan constitution is not a blueprint for the constitution beyond the nation state, let alone a constitution of the international community; rather, it stands for constitutional law reaching out beyond its national bounds. This cosmopolitan constitution has two faces: the first, political, face reflects the changed circumstances of constitutional authority. It conceives itself as constrained by international human rights protection, firmly committed to combating discrimination on the grounds of nationality, and to embracing strategies for managing its interaction with other sites of authority, such as the United Nations. The second, administrative, face of the cosmopolitan constitution reveals the demise of political authority, which has been traditionally vested in representative bodies. Political processes yield to various, and often informal, strategies of policy co-ordination so long as there are no reasons to fear that the elementary civil rights might be severely interfered with. It represents constitutional authority for an administered world.

Beyond the People develops a provocative, interdisciplinary, and meta-theoretical critique of the idea of popular sovereignty. It asks simple but far-reaching questions: Can 'imagined' communities, or 'invented' peoples, ever be theorized without, at the same time, being re-imagined and re-invented anew? Can polemical concepts, such as popular sovereignty or constituent power, be theorized objectively? If, as this book argues, the answer to these questions is no, theorists who approach the figure of a sovereign people must acknowledge that their activity is inseparable from the practice of constituent imagination. Though widely accepted as important, even vital, for the development of political concepts, the social practice of imagination is almost always presumed to operate either historically or impersonally, but seldom individually. Those who theorize the figures of popular sovereignty do not see that they are, in effect, 'conjurors' of peoplehood. This book invites constitutional, international, normative, and other political and legal theorists of sovereign peoplehood to embrace the conjuring-side of their professional identities, as a way of exploring the possibility of moving beyond eternally recurring, insolvable, and increasingly irrelevant questions. Instead of asking: Who is the people? What is the function of constituent power? Where may the people exercise its right to self-determination? Beyond the People asks the reader to consider the prospect of a riskier and more adventurous theoretical road, that opens with the question: What do I as a 'theorist-imaginer', or 'conjuror of peoplehood', assume, anticipate, and aspire to as I theorize the vehicles that mediate the assumptions, anticipations, and aspirations of others? This question is examined throughout the book as it interrogates the idea of peoplehood beyond disciplinary boundaries, showing how polemical, visual, affective, conceptual, and allegorical language critically shapes our idea of peoplehood. It offers a nuanced account of the contested relationship between the social imaginary of peoplehood on the ground, and the imaginative practices of the professional 'conjurors' of peoplehood in the academy.

Never in human history has so much attention been paid to human movement. Global migration yields demographic shifts of historical significance, profoundly shaking up world politics as has been seen in the refugee crisis, the Brexit referendum, and the 2016 US election.The Cultural Defense of Nations addresses one of the greatest challenges facing liberalism today: is a liberal state justified in restricting immigration and access to citizenship in order to protect its majority culture? Liberal theorists and human rights advocates recognize the rights of minorities to maintain their unique cultural identity, but assume that majorities have neither a need for similar rights nor a moral ground for defending them. The majority culture, so the argument goes, "can take care of itself." However, with more than 250 million immigrants worldwide, majority groups increasingly seek to protect what they consider to be their national identity. In recent years, liberal democracies have introduced proactive immigration and citizenship policies that are designed to defend the majority culture.This book shifts the focus from the prevailing discussion of cultural minority rights and, for the first time, addresses the cultural rights of majorities. It proposes a new approach by which liberal democracies can welcome immigrants without fundamentally changing their cultural heritage, forsaking their liberal traditions, or slipping into extreme nationalism. Disregarding the topic of cultural majority rights is not only theoretically wrong, but also politically unwise. With forms of "majority nationalism" rising and the growing popularity of extreme right-wing parties in the West, the time has come to liberally address contemporary challenges.

In this book Bosko Tripkovic develops a theory of value-based arguments in constitutional adjudication. In contrast to the standard question of constitutional theory that asks whether the courts get moral answers wrong, it asks a more fundamental question of whether the courts get the morality itself wrong. Tripkovic argues for an antirealist conception of value -one that does not presuppose the existence of mind-independent moral truths- and accounts for the effect this ought to have on existing value-based arguments made by constitutional courts.The book identifies three dominant types of value-based arguments in comparative constitutional practice: arguments from constitutional identity, common sentiment, and universal reason, and explains why they fail as self-standing approaches to moral judgment. It then suggests that the appropriate moral judgments emerge from the dynamics between practical confidence, which denotes the inescapability of the self and the evaluative attitudes it entails, and reflection, which denotes the process of challenging and questioning these attitudes.The book applies the notions of confidence and reflection to constitutional reasoning and maintains that the moral inquiry of the constitutional court ought to depart from the emotive intuitions of the constitutional community and then challenge these intuitions through reflective exposure to different perspectives in order to better understand and develop the underlying constitutional identity. The book casts new light on common constitutional dilemmas and allows us to envisage new ways of resolving them.

Ernst-Wolfgang Böckenförde (1930-2019) was one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court (1983-1996), Böckenförde was a major contributor to contemporary debates in legal and political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the constitutional status of the state of emergency, citizenship rights, bioethical politics, and the challenges of European integration. His writings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and holder of a trusted public office, Böckenförde has influenced the way academics and citizens think about law and politics. During his tenure on the Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions on the deployment of missiles, the law on political parties, the regulation of abortion, and the process of European integration.This second volume in the first representative edition in English of Böckenförde's writings brings together his essays on religion, law, and democracy. The volume is organized in five sections: I. the Catholic Church and Political Order; II. State and Secularity; III. the Theology of Law and its Relation to Political Theory; IV. Norms and the Principle of Human Dignity; and V. Excerpts from a biographical interview. Sections I, II, III, and IV are preceded by an editors' introduction to the articles as well as running editorial commentary to the work.

Popular sovereignty - the doctrine that the public powers of state originate in a concessive grant of power from "the people" - is the cardinal doctrine of modern constitutional theory, placing full constitutional authority in the people at large, rather than in the hands of judges, kings, or a political elite. This book explores the intellectual origins of this influential doctrine and investigates its chief source in late medieval and early modern thought - the legal science of Roman law.Long regarded the principal source for modern legal reasoning, Roman law had a profound impact on the major architects of popular sovereignty such as François Hotman, Jean Bodin, and Hugo Grotius. Adopting the juridical language of obligations, property, and personality as well as the classical model of the Roman constitution, these jurists crafted a uniform theory that located the right of sovereignty in the people at large as the legal owners of state authority. In recovering the origins of popular sovereignty, the book demonstrates the importance of the Roman law as a chief source of modern constitutional thought.

This book addresses the question of social constitutionalism, especially with regard to its role in the contemporary European project. For reasons of history and democracy, Europeans share a deep commitment to social constitutionalism. But in the contemporary European constitutional debate, constitutionalism and social democracy have become antagonists, with the survival of the one seeming to require sacrifice of the other. This book challenges the common view that constitutionalization means de-politicization. It argues that courts can exert a more indirect, creative, and agenda-setting role in the process of an ongoing clarification of the meaning of a right. The CJEU and the ECtHR - as courts beyond the nation state - are able to constructively re-open and re-politicize controversies that may appear settled at the national level in their constitutionalizing jurisprudence. And, crucially, our understanding of shared European constitutional principles is itself subject to revision and reconsideration as we accumulate experiences of dealing with diverse national contexts. By examining the jurisprudence of the CJEU and the ECtHR, the book demonstrates that in domain after domain, ranging from the protection of the vulnerable in the European social market to the guarantee of freedom of conscience, which in Europe emerged after many centuries of religious persecution, both courts can enhance and deepen democracy and thereby encourage the liberal project of constitutionalism beyond the state. Over time, once interpretive answers have become established in practice, courts can then move towards stronger forms of judicial intervention that consolidate best practice. It is this democratic and experimental process which lies at the heart of the distinctive model of contemporary Euroconstitutionalism.

Constitutionalism: Past, Present, and Future is the definitive collection of Dieter Grimm's most influential writings on constitutional thought and interpretation. The essays included in this volume explore the conditions under which the modern constitution could emerge; they treat the characteristics that must be given if the constitution may be called an achievement, the appropriate way to understand and interpret constitutional law under current conditions, the function of judicial review, the remaining role of national constitutions in a changing world, as well as the possibility of supra-national constitutionalism.Many of these essays have influenced the German and European discussion on constitutionalism and for the first time, much of the work of one of German's leading scholars of public law will be available in the English language.

Can constitutional amendments be unconstitutional? The problem of 'unconstitutional constitutional amendments' has become one of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. This book describes and analyses the increasing tendency in global constitutionalism to substantively limit formal changes to constitutions. The challenges of constitutional unamendability to constitutional theory become even more complex when constitutional courts enforce such limitations through substantive judicial review of amendments, often resulting in the declaration that these constitutional amendments are 'unconstitutional'.Combining historical comparisons, constitutional theory, and a wide comparative study, Yaniv Roznai sets out to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments.

Public law has been conceived in many different ways, sometimes overlapping, often conflicting. However in recent years a common theme running through the discussions of public law is one of loss. What function and future can public law have in this rapidly transforming landscape, where globalized states and supranational institutions have ever-increasing importance?The contributions to this volume take stock of the idea, concepts, and values of public law as it has developed alongside the growth of the modern state, and assess its continued usefulness as a distinct area of legal inquiry and normativity in light of various historical trends and contemporary pressures affecting the global configuration of law in general.Divided into three parts, the first provides a conceptual, philosophical, and historical understanding of the nature of public law, the nature of private law and the relationship between the public, the private, and the concept of law. The second part focuses on the domains, values, and functions of public law in contemporary (state) legal practice, as seen, in part, through its relationship with private domains, values, and functions. The final part engages with the new legal scholarship on global transformation, analysing the changes in public law at the national level, including the new forms of interpenetration of public and private in the market state, as well as exploring the ubiquitous use of public law values and concepts beyond the state.