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Oxford Law Citator
Contents
Expand All
Collapse All
Preliminary Material
Acknowledgements
Contents
Notes on the Contributors
General Editors
Contributors
List of Abbreviations
Main Text
Introduction
I The History of Comparative Constitutional Law
II Comparative Constitutional Law: Uses, Purposes, and Challenges
1 Uses
2 Purposes
3 Challenges
III Constitutional Borrowing and Transplantation
IV Methodology
V Structure and Organization of the Handbook
Part I History, Methodology, And Typology
Ch.1 Comparative Constitutional Law: A Contested Domain
A Comparative Constitutional Law: A Continental Perspective
I Premises, Object, and Purposes
II The Evolutionary Paths
1 The ‘Positivist Legal Method’
2 Expansion I: Reality, Theory, and Great Narratives
3 Expansion II: Seizing the Crown
III Europeanization within the European Legal Area
1 Diagnosis: Crisis and Opportunity
2 Prognosis: Ius Publicum Europaeum by Comparative Constitutional Law
Bibliography
B Comparative Constitutional Analysis in United States Adjudication and Scholarship
I On the Uses of Comparative Constitutionalism: Comparing Observer and Participant Perspectives
II The Scholarly Controversy over the Proper Uses and Scope of Comparative Constitutionalism
III The American Controversy over Citation of Foreign Authorities
1 The American Unenumerated Rights Tradition and the Dispute over Homosexual Constitutional Rights
2 The Battle over Citations to Foreign Law in Bowers and Lawrence
3 The Controversy over Foreign Authorities in a Broader Context
IV The Implications for Comparative Constitutionalism of the American Controversy over Citations to Foreign Legal Authorities
V Conclusion
Bibliography
Ch.2 Comparative Constitutional Law: Methodologies
I Comparative Constitutional Scholarship
1 Classificatory Work: ‘Families’, Regional, Emerging
2 Historical Work and the Migration of Constitutional Ideas
3 Universalist Search for Just or Good Principles
4 Functionalism and Consequentialism; Positive and Normative
5 Contextualism, Expressivism, and Self-Reflection
II Courts
1 Doctrinal Demands, Self-Reflection, and Expressive Comparisons
2 Scholars and Courts
III Constitutional Legislators
IV Methodological Challenges
Bibliography
Ch.3 Carving Out Typologies and Accounting for Differences Across Systems: Towards a Methodology of Transnational Constitutionalism
I Introduction: The Transnational Context of Comparative Constitutionalism
1 Methodological Orientation
2 The Influence of Transnational Law on Comparative Constitutional Law
II Constitutionalism in World Society: Post-National, Post-Territory, Post-State?
1 Space
2 Time
3 Governance in Space and Time
III The Form and Substance of Constitutionalism
IV Societal Constitutionalism: Law’s Troubled Relation to Society
Bibliography
Ch.4 Types of Constitutions
I The Problem with Typologies
II Identifying the Object
III The Constitution as Law
1 The Legal Character of the Constitution
2 Specialized in Regulating Public Power
3 Comprehensive Regulation
4 Supremacy
5 Legitimating Principle
IV Constitutions as Expressions of Political Ideas
1 Liberal-Democratic Constitutions
2 Liberal Non-Democratic Constitutions
3 Non-Liberal Democratic Constitutions
4 The Social or Welfare State Constitution
5 Socialist Constitutions
V A New Distinction: National and International Constitutions
Bibliography
Ch.5 Constitutionalism in Illiberal Polities
I Illiberal Constitutionalism as a Category
1 The Range of Constitutionalisms: The Generic and the Particular
2 Liberal Constitutionalism and its Discontents
3 Anatomy of Constitutionalism in an Illiberal Polity
4 Mixed Constitutionalism
II Illiberal Constitutionalisms: A Typology
1 Theocratic Constitutionalism
2 Communitarian Constitutionalism: Cultural Imperatives, Developmentalist Priorities
III Constitutions and Constitutionalism: The Possibility and Limits of Constitutionalism in Illiberal Polities
Bibliography
Ch.6 Constitutionalism and Impoverishment: A Complex Dynamic
I Introduction
II Impoverishment and its Pervasiveness
III The Imperatives of Development and Poverty Eradication: Skepticism about Constitutionalism and the Appeal of ‘Developmental States’
IV The Symbiotic Relationship between Development and Freedom: Sen’s Scholarly Work and Empirical Assessments
V Country Case Studies: Ethiopia and India
1 Ethiopia
2 India
VI Conclusion
Bibliography
Ch.7 The Place Of Constitutional Law in the Legal System
I What is Constitutional Law?
II General Views on the Place of Constitutional Law
III The Place of Constitutional Law in Specific Parts of the Legal System
1 Rights versus Structure
2 Constitutional Law and the Private Sphere
3 Constitutional Law and Positive Rights
Bibliography
Part II Ideas
Ch.8 Constitutions and Constitutionalism
I Introduction
II Realism and Idealism in Constitutional Theory
III A Preliminary Example
IV Drill and Discipline
V The Paradox of Limited Power
VI Monarchical Constitutions
VII Cognitive Constitutionalism
VIII Insulation through Abdication
IX Joint Agency and Corruption
X Constitutionalism and Democracy
XI Judicial Review
XII Conclusion
Bibliography
Ch.9 Constitution
I Must a Constitution be Autochthonous?
1 Constitutions and the Demos
2 Constitutional Borrowing
II The Constitution’s Boundaries
1 Constitutional Usages and Conventions
2 The Constitution ‘Outside’ the Constitution
3 Operative and Sham Constitutions
III Constitutional Stability
1 Incentives for Stability
2 Constitutional ‘Regimes’ and their Persistence
3 The Stability of Constitutional Usages and Conventions
IV Conclusion
Bibliography
Ch.10 Rule of Law
I Introduction
II Anatomies of the Rule of Law
1 Institutions
2 Rules
3 Procedures
III What’s the Point?
IV Negative or Positive?
V The Administrative State
VI Contexts and Conclusions
Bibliography
Ch.11 Democracy
I Histories
II Varieties of Constitutional Democracy
1 Direct Democracy
2 Representative Democracy
3 Deliberative Democracy
III Dangers and Precautions
1 Tyrannical Majorities
2 Political Extremism
3 States of Emergency
4 Secrecy
IV Perspectives
Bibliography
Ch.12 Conceptions of the State
I Introduction
II Two Distinct Ways of Viewing the Relationship between Constitution and State
1 The State as a Presupposition of the Constitution
2 A Constitution Thought of Without the State: The Rule of Law Imposes its Vision of a Simple ‘Government’ of Public Affairs
III State, Sovereignty, and Federalism: Can the State be Thought of as Anything Other than the Unitary State?
1 Sovereignty as a Criterion of the State and the Tropism of the Unitary State
2 Federalism is Perceived Differently in the Two Constitutional Traditions
IV The State as an Institution: Asymmetric Treatment
1 Objectivization of Power by the State Conceived of as an Institutionalized Power (or Juristic Person)
2 Institutionalization or Perpetuation of Power
3 The Impersonalization of Power: Rulers Represent the State
4 The Anglo-American Conception or the Non-Institutionalized State
V Conclusion
Bibliography
Ch.13 Rights and Liberties as Concepts
I Rights and Liberties in General
1 Will and Interest Theory
2 A Three-Stage Model of Rights
3 A System of Basic Legal Positions and Relations
(a) Rights to Something
(b) Liberties
(c) Powers
II Constitutional and Human Rights
1 Constitutional Rights
(a) Formal Concept
(b) Procedural Concept
(c) Substantial Concept
2 Human Rights
(a) The Concept of Human Rights
(b) The Justification of Human Rights
III The Construction of Constitutional Rights
1 Rules and Principles
2 Proportionality
3 The Rule Construction
4 The Principles Construction
Bibliography
Ch.14 Constitutions and the Public/Private Divide
I Public/Private (and Allied) Classifications in Constitutional-Legal Doctrine: A Brief Survey
1 Types of Laws
2 Object Fields: Powers of Decision
3 Object Fields: Matters to be Decided
4 The Question of the ‘Reality’ of Public/Private
II The ‘Ghost’ Conjecture
1 ‘Dualist’ Constitutionalism
2 Inspirations and Implications of Dualism
3 Test Drive: Dualism Modified?
4 Test Drive: Resilience to Critique?
5 The Case of South Africa
III Comparison Functional and Taxonomic
1 Left–Right Scalar Cross-Country Comparison and the ‘Relative Autonomy of Law’
2 From ‘Functional’ to ‘Taxonomic’ Comparison: British Constitutionalism
Bibliography
Ch.15 State Neutrality
I Preliminaries
II Neutrality as Non-Discrimination
III Neutrality as Shared Reasons
IV Objections to Liberal Neutrality
V Neutrality as Non-Discrimination Revisited
VI Neutrality as Shared Reasons Revisited
VII Religious Neutrality
Bibliography
Ch.16 The Constitution and Justice
I Procedural Justice
1 Rawls, the Constitution, and (Imperfect) Procedural Justice
2 Justice and the Constitution: The Liberal View
(a) Bill of Rights
(b) Checks and Balances
II Libertarianism and Egalitarianism on Substantive Justice
III The Republican Alternative
1 Against the Procedural Approach
2 Social Rights
Bibliography
Ch.17 Sovereignty
I Sovereignty of the State
1 Internal Sovereignty of the State
2 External Sovereignty
(a) External Sovereignty in Classical International Law
(b) External Sovereignty in Contemporary International Law
II Sovereignty in the State
1 The Existence of a Sovereign
2 The Holder of Sovereignty in the State
III Conclusion
Bibliography
Ch.18 Human Dignity and Autonomy in Modern Constitutional Orders
I Human Dignity: Hopes and Doubt
II Dignity and the Antinomy of Human Rights
III The Quest for Dignity
1 The Point and Perils of Historical Reflection
2 Dignity in History: Some Tentative Observations
IV The Content of Human Dignity as a Legal Concept
1 The Scope of Dignity
(a) Elements of Concretization
(b) The Cosmopolitan Framework
(c) Dignity as a Subjective Right
(d) Personal Scope: The Bearer of the Right
(e) Objective Element of the Law
(f) Horizontal Effect
(g) Positive Duties and Rights; Procedural Elements
(h) Beginning, Diachronical Continuity, and End
2 Interference
3 Limitations and Justification
4 Relation to Other Fundamental Rights and the Political Order
V Problems and Solutions
1 The Scope of Dignity
(a) Content and Legitimacy
(b) Dignity and Autonomy
(c) Dignity: Widely or Narrowly Defined?
(d) Subjective Right, Objective Law, Personal Scope
(e) Horizontal Effect, Positive Duties and Rights, Procedural Elements
(f) Beginning, Diachronical Continuity, and End
2 Interference, Limitations, and Justification
3 Dignity, Other Fundamental Rights, and the Structure of the Body Politic
VI The Universalist Stance: Yet Another Particularism?
Bibliography
Ch.19 Gender in Constitutions
I Analytical Framework
II Application
1 Difference and Dominance
2 Coercion and Consent
3 Public and Private
4 Morality and Politics
Bibliography
Part III Process
Ch.20 Constitution-Making: Process and Substance
I Introduction
II Constituent Power and the Legitimacy of Constitution-Making
III Launching Constitutions
1 Models of Ex Nihilo Creation
(a) The Revolutionary Version
i The Idea of the Constituent Assembly
ii Mixed Constitution-Making in Times of Mass Democracy (the Emergence of the Referendum)
(b) Nation-State-Building Constitutions
i State-Building as an Act of National Sovereignty
ii Constitution-Making as an International Effort
2 Constitution-Making ‘By the Rules’
IV The Drafting Process
V The Process of Certification and Ratification of Constitutions
VI Between Amendment and Constitutional Change: Protection of Unamendable Provisions
1 The Amending Process and its Meaning
2 Substantive Limitations to the Amending Process
Bibliography
Ch.21 States of Emergency
I Introduction
II Constitutional Design/Constitutional Practice
III The Derogation Model
IV Conclusion
Bibliography
Ch.22 War Powers
I Introduction
II United Kingdom
1 The Crown as the Sole Decision-Maker
2 Prospects of Modernization
III The United States
1 Ambiguous Allocation of War Powers
2 War Powers Resolution
IV France
1 The President, the Commander-in-Chief
2 Authorization by Parliament
3 Prohibition of Aggressive Wars
V Germany
1 The Military under the Basic Law
2 The Military Deployment Case
3 The Parliamentary Participation Act
VI Japan
1 Article 9 and the Self-Defence Forces
2 UN Peacekeeping Operations Act
VII Conclusion
Bibliography
Ch.23 Secession and Self-Determination
I Introduction: A Comprehensive Theory of Secession
II Justifying Secession: Theoretical Views
III Secession and Self-Determination in International Law and in the International Practice
IV Secession and the Constitution
Bibliography
Ch.24 Referendum
I Theory of Referendums
1 The Constitutional Debate
2 Referendum and Democracy
II Provisions for Referendums
1 Typologies
2 Country Variations: Existence of Provisions
3 Country Variations: Types of Referendums
III Practice
1 History
2 Practice
IV Judicial Review
1 The Juridicization of the Referendum
2 Types of Judicial Review
3 Country Profiles
V Concluding Remarks
Bibliography
Ch.25 Elections
I Introduction
II The Right to Participate
1 Age
2 Mental Capacity
3 Citizenship and Residency
4 Felons and Ex-Felons
5 Voter Identification Laws
III Political Parties
IV Campaign Finance
V Conclusion
Bibliography
Part IV Architecture
Ch.26 Horizontal Structuring
I Introduction
II History
III Executive and Legislative Power
1 Presidential versus Parliamentary Systems: The Basic Distinction
(a) Presidential Systems
i The United States: The Classic Presidential System
ii Latin American Countries: Troubled Presidentialism
iii Presidentialism in Eastern Europe and the Former Soviet Union: Renewed Promise or Renewed Threat?
iv South Korea
(b) Parliamentary Systems
i United Kingdom: Westminster Model
ii Constrained Parliamentarianism: The Examples of Germany and South Africa
(1) Germany
(2) South Africa
(c) Hybrid or Semi-Presidential Systems
i France
ii Other Semi-Presidential Systems
(d) Normative Arguments about Parliamentary versus Presidential Systems
(e) Judicial Review of Executive Appointments and Removal
2 Beyond the Presidential versus Parliamentary Debate: Other Issues in the Structuring of Executive and Legislative Power
(a) Subdivision of Legislative Power
(b) Subdivision of Executive Power
(c) Boundaries and Overlap between Legislative and Executive Power
i Legislation versus Administrative Regulation
ii Conflicts between the Executive and the Legislature over Policy
iii Power over Foreign Affairs
iv Executive versus Legislative Control of Emergency Powers
IV The ‘Least Dangerous Branch’? The Judiciary and Separation of Powers
1 Judicial Independence and ‘The Judicial Branch’?
2 Judicial Review
3 Jurisdiction and Justiciability
(a) Advisory Opinions
(b) The Political Question Doctrine
V Conclusion
Bibliography
Ch.27 Federalism: Theory, Policy, Law
I Introduction
II Federalism—Federation—Confederation
1 Capturing ‘Federalism’
2 The Territory of ‘Federation’
3 Beyond ‘Confederation’
III The Origins of Federal Systems
IV Why Federalism?
1 The Benefits of Local Power
(a) Voice
(b) Community
(c) Expertise
(d) Risk
2 The Benefits of Central Power
(a) Cost Savings
(b) Inter-Jurisdictional Difficulties
(c) Intra-Jurisdictional Difficulties
3 Subsidiarity Redux: Instrumental or Intrinsic?
V Sustaining Federalism
1 Incentive-Compatible Federalism
2 The Role of Political Parties
VI Does Federalism Deliver?
1 Policy Stability
(a) Demos- Constraint and the Status Quo
(b) Which Demos?
(c) What Constraint?
2 Polity Stability
(a) Fate Follows Formation?
(b) Back to Politics
VII Federalism All the Way?
1 Federalism All the Way Down?
2 Federalism All the Way Up?
VIII Conclusion
Bibliography
Ch.28 Internal Ordering in the Unitary State
I Different Meanings of the Word ‘State’
II The Unitary State and the Nation
1 Civic and Ethnic Conceptions
2 National Minorities and their Territorial Relevance
III The Organization of the State’s Territory
1 Centralist Tendencies and the Prefects
2 The Autonomy of the Local Government: Examples of Constitutional Provisions
3 Regions with Legislative Powers in the Unitary States and other Regional Solutions
IV The Organization of the Central Executive Branches of the State: The Role of the Parliament
V The Droit Administratif and the Advent of the Sozialer Rechtstaat
VI The Hierarchical Structure of the Executive: Civil Servants
Bibliography
Ch.29 Presidentialism
I Concepts
II History and Evolution
1 The Birthplace of Presidentialism: The United States of America (1787)
2 The First Expansion of Presidentialism: Latin America (Nineteenth Century)
3 The Struggle against Colonialism and the Challenges of Development: Africa, the Middle East, and Asia (Twentieth Century)
4 The Compromise between Past and Present: The Former Soviet Union and the ex-Socialist Countries after 1989
III Debates
IV Trends and Positions
V Comparative Perspective and Recapitulation
Bibliography
Ch.30 Parliamentarism
I The British Origins
II Continental Europe’s Original Version
III How a Common Consent was Finally Reached on the Meaning of ‘Parliamentarism’
IV The Waves of Democratization and the Worldwide Diffusion of the Parliamentary System
V Forms of Government and Separation of Powers
VI The Status of Member of Parliament
VII Differences and Analogies within the Family of Parliamentary Systems
1 Making and Unmaking Governments
2 Legislative Function
3 Controlling Functions
VIII Is Parliamentarism Declining?
Bibliography
Ch.31 The Regulatory State
I Introduction
II The Political Economy of Delegation
III Independent Agencies
IV Administrative Procedures, Public Participation, and Technocratic Analysis
1 Cost–Benefit Analysis
2 Public Participation in the Regulatory Process
V Judicial Review
VI Conclusions
Bibliography
Part V Meanings/Textures
Ch.32 Constitutional Interpretation
I Interpretive Methodologies and the Rule of Law
II Comparing Interpretive Methodologies
1 The United States
2 Canada
3 Australia
4 Germany
5 India
6 South Africa
III Explaining the Differences
1 The Nature and Age of the Constitution
2 Legal Culture
3 Judicial Appointments and Homogeneity
4 Political Culture
5 ‘The Felt Necessities of the Time’
Bibliography
Ch.33 Proportionality (1)
I A Triad of Justice
1 Proportionality and Justice
2 The Elements of Proportionality
3 Approaches to Proportionality Analysis
II Steps of Proportionality Analysis
1 Categorically Prohibited Means
2 Legitimacy of the End
3 Fitness or Suitability
4 Necessity
5 Balancing
III The Structure of Proportionality Analysis
1 A Right Order for Proportionality Analysis?
2 General or Particular Proportionality Analysis?
3 The Range of Proportionality Analysis
IV Evolution, Constitutional Foundation, and Distribution of the Principle of Proportionality
1 The Evolution of the Principle of Proportionality
2 The Constitutional Foundation of the Principle of Proportionality
3 Distribution of the Principle of Proportionality
V The Strength of Rights and Freedoms in Proportionality Analysis
1 Strength through the State’s Interest in Rights and Freedoms
2 Strength through the Exclusion of Reasons
3 Strength through Imposition of the Burden of Proof
4 Strength through Balancing
VI The Future of Proportionality Analysis
1 Proportionality Analysis and Judicial Activism
2 The Standardizing Effect of the Principle of Proportionality
Bibliography
Ch.34 Proportionality (2)
I The Distinction between a Constitutional Right’s Scope and Limitations on It
1 Scope and Limitation
2 Scope of the Constitutional Right and Clash of Competing Rights
3 The Role of Proportionality
4 The Legal Sources of Proportionality
II The Elements of Proportionality
1 Preliminary Remarks
2 Proper Purpose
3 Rational Connection
4 Necessity
5 Proportionality Stricto Sensu —Balancing
(a) The Social Importance of the Purpose and of Avoiding the Limitation on the Constitutional Right
(b) The Rule of Balancing
(c) Development of the Proportionality Stricto Sensu Element (Balancing)
III The Zone of Proportionality
1 Legislator and Judge
2 The Zone of Proportionality and the Margin of Appreciation
IV Assessing Proportionality
1 The Importance of Proportionality
2 Criticism of Proportionality and Responses to It
3 Alternatives to Proportionality
(a) Proportionality Determined by the Legislator
(b) US Categorization
Bibliography
Ch.35 Constitutional Identity
I The Concept
II The Place and Function of Constitutional Identity
III The Identity of Constitutional Models
1 The German Constitutional Model
2 The French Constitutional Model
3 The American Constitutional Model
4 The British Constitutional Model
5 The Spanish Constitutional Model
6 The European Transnational Constitutional Model
7 The Post-Colonial Constitutional Model
IV Identity and Constitution-Making
1 The Revolution-Based Model
2 The Invisible British Model
3 The War-Based Model
4 The Pacted Transition Model
5 The Transnational Model
6 The Internationally Grounded Model
V Identity through Constitutional Interpretation
VI The Problem of Identity in Supranational Constitutions
Bibliography
Ch.36 Constitutional Values and Principles
I Introduction
II Principles: Universal Aspirations and Practical Accommodations
III Values: Finding Constitutional Meaning in ‘Local Habits’
IV Conclusion: Values, Principles, and the Debate Over Foreign Sources
Bibliography
Part VI Institutions
Ch.37 Ensuring Constitutional Efficacy
I Introduction
II Constitutional Courts versus Parliamentary Sovereignty
1 Evolution Towards Judicial Review
2 The Alternative Model: Parliamentary Sovereignty
III Non-Judicial Methods and Constitutional Efficacy
1 Preparing Legislation
2 Parliament as Guardian of the Constitution
(a) On Supervision
(b) On Lawmaking
(c) Multilevel Governance and Subsidiarity
3 Promulgation: The Head of State as Co-Guardian of the Constitution
IV Judicial Review and Constitutional Efficacy
1 Judicial Review ex ante
2 Judicial Review ex post
(a) Constitutional Courts
i Abstract Review
ii Disputes between State Organs
iii Concrete Review and Preliminary Reference
iv Constitutional Complaint
(b) Decentralized Judicial Review
V Conclusion
Bibliography
Ch.38 Constitutional Courts
I Introduction
II Origins, Models, Diffusion
III Design and Functions
1 Functional Logics and Commitment
2 Jurisdiction
3 Appointment and Composition
IV Effectiveness and Impact
1 Effectiveness
2 Democratic Transition
3 Constitutional Lawmaking
VI Conclusion: Legitimacy Discourses
Bibliography
Ch.39 Judicial Independence as a Constitutional Virtue
I Introduction
II Preliminary Questions and Methodological Perspectives
1 Judicial Independence: An Essentially Contested Solution Concept
2 The Intrinsic Value of Judicial Independence and the Concept of Judicial Virtue
3 Delimiting the Scope of Judicial Independence
III The Comparative Law of Judicial Independence
1 Judicial Independence and the Politics of Institutional Design
(a) Insurance Theory
(b) Commitment Theory
(c) Rule of Law Theory
2 Contexts for Judicial Independence
(a) Authoritarianism and Its Effects on Judicial Independence
(b) The Influence of Cultural Norms Downplaying Adjudication
(c) A Commitment in Civil and Political Society to Judicial Independence
(d) Civil Law versus Common Law
3 The Virtues of Judging
IV Conclusion
Bibliography
Ch.40 The Judiciary: The Least Dangerous Branch?
I Introduction: The Judiciary in Comparative Perspective
II The Normative Foundations of Judicial Power
1 Separation of Powers and the Judiciary
2 The Rule of Law and the Judiciary
3 The Judiciary, Sovereignty, and Statehood
4 The Judiciary as an Impartial Arbiter
III Conclusions: The Least Dangerous Branch?
Bibliography
Ch.41 Political Parties and the Constitution
I Introduction
II Political Parties and the Party Space
III Shaping the Party Space
1 Designing Legislative Elections
2 Designing Presidential Elections
3 Fostering (Constitutionally) Party-Based Leadership
III Comparative Configurations: Parties and Constitutional Dynamics
IV An Empirical Illustration: Parties and the Weimar Constitution
V Conclusion
Bibliography
Part VII Rights
Ch.42 Freedom of Expression
I The Constitutional Significance of Free Expression
II Constitutional Freedom of Expression Clauses
III Interpreting Freedom of Expression Clauses
1 The Scope of Freedom of Expression
2 The Character of Freedom of Expression
3 The Censorship Ban
IV Balancing Freedom of Expression and Other Interests
1 Hate Speech
2 Libel and the Infringement of Privacy
3 Pornography
V Freedom of Expression and the Media
Bibliography
Ch.43 Freedom of Religion
I The Changing Meaning of Freedom of Religion
II Reasons for and Justifications of Freedom of Religion
III What is Religion?
IV What is Protected as Religious Freedom?
V Accommodation
VI Models of Church–State Relations
Bibliography
Ch.44 Due Process
I The Troubled History of the Constitutional Due Process Clause
II Concepts of Due Process
III The Rise and Fall of Adversarial Due Process in England and the United States
IV The Global Revolution in Due Process
V Conclusion
Bibliography
Ch.45 Associative Rights (The Rights to the Freedoms of Petition, Assembly, and Association)
I Introduction: Historical and Socio-Political Context
II The Right to Petition for the Redress of Grievances
III The Right to the Freedom of Assembly
1 Historical Background and Present-Day Constitutional Foundations
2 The Physical Dimension of Assemblies and its Constitutional Implications
IV The Right to the Freedom of Association
1 Historical Conditions
(a) Constitutional Origins
(b) The Twentieth Century: Modern Mass Democracy: the ‘Society of Organizations’
2 Constitutional Guarantees on National Levels
3 International Guarantees of the Freedom of Association
4 The Scope of the Freedom of Association
5 Legal Design, Legal and Factual Restrictions of the Freedom of Association
(a) Legally Imposed Membership
(b) Restrictions for the Public Service
(c) The Faint Borderline Between Freedom of Association and Conspiracy
(d) Factual State Interferences
Bibliography
Ch.46 Privacy
I Introduction
II Basic Issues
1 What Is It?
(a) Space
(b) Relations
(c) Subject Matter
2 What Does it Cover?
(a) The Sources of the Right
(b) The Scope of the Right
(c) Negative and Positive Obligations
III The Protection of the Right to Privacy
1 How is it Protected?
2 What Limits Can it Have?
IV Conclusion
Bibliography
Ch.47 Equality
I Key Equality Guarantees
II The Status of a Right to Equality
III The Content of a Right to Equality
IV The Scope: Who Bears the Right to Equality?
V The Test
VI The Inequalities
VII The Reach
VIII The Binding Force of a Right to Equality
Bibliography
Ch.48 Citizenship
I Citizenship Matters
II On Becoming a Citizen: The Legal Dimension
1 Jus Soli : The Territoriality Principle
2 Jus Sanguinis : The Parentage Principle
3 Emergent Trends: Borrowing, Dual Nationality, and the Loss of Citizenship
4 Naturalization: The Return of Culture
III Piercing into the Future: Citizenship’s New Frontiers
Bibliography
Ch.49 Socio-Economic Rights
I Introduction
II The Essential Objections to Socio and Economic Rights
III A Response to the Critics
IV Enforcement: The Scope for Relief
V Weak Rights/Weak Review
VI Stronger Forms of Right and Relief
VII Conclusion
Bibliography
Ch.50 Economic Rights
I Introduction
II Economic Liberalism
III The Weimar Legacy
IV Social Democracy Renewed
V Workers’ Rights
VI Trade Union Rights
VII Economic Rights and the ‘New Democracies’
VIII Economic Rights and Liberal Democracies
IX Back to Lochner ?
X Conclusion
Bibliography
Part VIII Overlapping Rights
Ch.51 The Constitutionalization of Abortion
I From Constitutional Politics to Constitutional Law
II Foundational Frameworks and their Evolution: United States and Germany
1 The 1970s
2 The 1990s
III Contemporary Constitutional Frameworks
1 Respecting Women’s Dignity: Periodic Legislation
2 Protecting Life/Protecting Women: Indications Legislation
3 Protecting Life/Respecting Women: Result-Open Counseling
Bibliography
Ch.52 Immodest Claims and Modest Contributions: Sexual Orientation in Comparative Constitutional Law
I Introduction
II Military Service: Functionalism Ascendant
III Sodomy Cases: Expressivism Ascendant
IV Marriage and Relationship Recognition: Functionalism and Expressivism
1 Functionalism
2 Expressivism
V Conclusion
Bibliography
Ch.53 Group Rights in Comparative Constitutional Law: Culture, Economics, or Political Power?
I Introduction
II Group Rights in Political Theory
1 Group Rights Protect Culture
2 Group Rights are Held by Specific Groups
3 Group Rights as Collective Rights
4 Group Rights and Internal Minorities
(a) National Minorities
(b) Indigenous Peoples
(c) Religious Minorities
III Group Rights in Comparative Constitutional Law
1 Demands for Group Rights are Rooted Not Just in Claims to Protect Culture
2 Group Rights are Demanded by a Diverse Set of Groups
3 Group Rights and Representation
4 Group Rights versus Individual Rights
(a) Group Rights Discriminate Against Non-Members
(b) Under-Inclusiveness of Group Rights
(c) Compelled Identification and Association
IV Conclusion
Bibliography
Ch.54 Affirmative Action
I The Constitutionalization of Affirmative Action and its Side Effects
1 Affirmative Action for Politically Dominant Yet Economically Disadvantaged Groups: Malaysia and South Africa
2 Identifying the Disadvantaged: The Indian Dilemma
II The Non-Constitutionalization of Affirmative Action and its Side Effects
1 The Soft, Gender-Focused, ‘Discrimination-Blocking’ EU Affirmative Action Model
2 A Pattern of Diversion: The (Exceptional) US Affirmative Action Regime
III Conclusion
Bibliography
Ch.55 Bioethics and Basic Rights: Persons, Humans, and Boundaries of Life
I Bioethics and Human Rights
1 The Influence of Normative Bioethics
2 Is There a Common European Approach?
3 The European Convention of Human Rights and Biomedicine
4 Bioethics and the European Convention on Human Rights
5 Bioethical Considerations in National Constitutions
II The Jurisprudence of Core Bioethical Questions
1 Beginning of Life and Reproductive Rights in Light of New Technologies
2 Informed Consent Rules and Reproductive Rights
3 Concept of Procreative Liberties and Bioethics in US Jurisprudence
4 Research on Human Embryos and on Embryonic Stem Cells
5 End of Life Decisions in Europe
6 End of Life Cases in the United States and Other Jurisdictions
7 Extending Basic Rights to Human Tissues and Cells
III Conclusions
Bibliography
Part IX Trends
Ch.56 Internationalization of Constitutional Law
I Introduction
II Trends
1 Incorporation of International Human Rights into Domestic Constitutions
2 Convergence and Comparativism of National Constitutions
3 Constitutional Devolution or Treaty-Becoming Constitutions: Federalism, Autonomous Regions, and Indigenous Rights
III Driving Forces
1 The Expansion of the Global Market
2 The Global Triumph of Rights-Based Discourse
3 The Emergence of Transnational Networks
IV Divergent Practices
1 Regionalization Rather Than Internationalization
2 Partial Internationalization: Power, Politics, or Cherry-Picking
3 Persistent National Reticence towards Internationalization
V Debates
1 Democratic Accountability
2 Rule of Law
3 Checks and Balances
VI Prospects
Bibliography
Ch.57 The European Union’s Unresolved Constitution
I Introduction: Imagining the Non-State Polity in Constitutional Terms
II The Possibility of European Union Constitutional Law
1 In the Shadow of the State: The Specific, the Relational, and the General
2 The Ambivalent Legacy of State Constitutionalism
3 Framing the Modern Constitutional Polity
4 Distinguishing EU Constitutionalism: The Unresolved Constitution
III The Trajectory of EU Constitutionalism
1 The Elements of ‘Thin’ Constitutionalism
(a) The Formal Sub-Register
(b) The Jurisdictional Sub-Register
(c) The Integrative Sub-Register
(d) The Institutional Register
2 The Strengths and Limitation of Thin Constitutionalism
(a) The Centrality of Law
(b) The Exhaustion of the Legal Paradigm
IV The Future of the Unresolved Constitution
Bibliography
Ch.58 The Constitutionalization of Public International Law
I Mapping the Territory
II The Emergence of a Hierarchy of Norms within International Law
1 Jus Cogens Obligations
2 Erga Omnes Obligations
3 Obligations Under (Article 103 of) the UN Charter
III Partial Constitutionalization of the International Legal Order
1 The Constitutionalization of International Organizations
2 Constitutionalization through Transgovernmental Networks
3 Constitutionalization of the International Legal Order as a Whole
(a) The Special Status of the UN Charter
(b) Decentralized Enforcement of the International Constitutional Order
IV Conclusion
Bibliography
Ch.59 Jurisprudence of the European Court of Human Rights and the Constitutional Systems of Europe
I Introduction
II The Status of the European Convention of Human Rights in Domestic Constitutional Systems
1 Introduction
2 The United Kingdom
3 Germany
4 France
5 Belgium
III The Status and Implementation of the Judgments of the European Court of Human Rights
1 Introduction
2 The United Kingdom
3 Germany
4 France
5 Belgium
IV Conclusion
Bibliography
Ch.60 Militant Democracy
I Introduction
II A Very Brief Intellectual and Constitutional History
III Varieties of Militancy
IV Contesting and Constraining Militant Democracy
Bibliography
Ch.61 Constitutionalism and Transitional Justice
I Introduction
II Transitional Justice Obligations and Constitutional Norms
1 Truth-Telling
2 Prosecutions
3 Reparations and DDR Mechanisms
4 Institutional Reform and Non-Judicial Sanctions
III The Relation of International Standards Embodied in Transitional Justice to Constitutional Norms and Processes
IV Conclusion
Bibliography
Ch.62 Islam and the Constitutional Order
I The Setting: Three Arcs of Crisis
II International Perspectives
1 The Personal Logic of Islamic/Middle Eastern Law
2 ‘The Shi‘i International’
3 Sunni Internationalism
III Domestic Perspectives
1 Constitution and Symbols
2 Islam in Constitutional Courts
3 The Personal Logic of Middle Eastern Law, Again
IV Epilogue: Emerging Hopes
Bibliography
Ch.63 Constitutional Transplants, Borrowing, and Migrations
I Introduction
II Terminology: The Battle of Metaphors
III The Missing Legacy of Comparative Law
1 The Transplants Debate in Comparative Law
2 Transplants in Private and Public Law
IV The Anatomy of Constitutional Transplants
1 Object
2 Timing
3 Motivations
4 Patterns
V The Justification of Constitutional Transplants: The Case of Foreign Law
VI Conclusion: The Problem of Convergence
Bibliography
Ch.64 The Use of Foreign Law in Constitutional Interpretation
I Introduction: The Migration of Constitutional Ideas
II Normative Underpinning: Is It Legitimate?
III Jurisprudential Aspects: Why It Happens?
IV Case Studies: How Far and Where It Happens?
1 Germany
2 Israel
3 Hungary
4 South Africa
V Conclusions: Transnationalization of Constitutional Interpretation?
Bibliography
Further Material
Index
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List of Abbreviations
Edited By: Michel Rosenfeld, András Sajó
From:
The Oxford Handbook of Comparative Constitutional Law
Edited By: Michel Rosenfeld, András Sajó
Content type:
Book content
Product:
Oxford Constitutions of the World [OCW]
Series:
Oxford Handbooks
Published in print:
17 May 2012
ISBN:
9780199578610
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3.237.205.144