Satrio on Between Two Worlds: Indonesia and the Spectre of the Dharmic-Infusted Constitutional Structure

Abdurrachman Satrio, Faculty of Law Universitas Trisakti; The Institute for Migrant Rights, is publishing Between Two Worlds: Indonesia and the Spectre of the Dharmic-Infused Constitutional Structure in Asian Comparative Comparative Constitutional Law 3: Constitutional Structure (Ngoc Son Bui, Mara Malagodi, and Christopher Michael Roberts, eds., Hart Publishing, 2025). Here is the abstract.

In examining constitutional structures, most constitutional law scholars and political scientists often focus on questions such as: does the structure use a presidential or parliamentary system of government? Federalism or unitary? Bicameral or unicameral? And how was the judicial review mechanism exercised? Essentially, the discussion of constitutional structure emphasises the governance of relations between different branches. Moreover, there are no clear benchmarks or standards in designing a constitutional structure. Every country’s constitutional design will be greatly influenced by various factors and challenges that it faces. For example, a post-colonial state usually imitates the constitutional structures of its former colonial masters. Or, how a country whose society is divided along socio-cultural backgrounds such as ethnicities, religions, and languages, usually tends to adopt various constitutional mechanisms that can guarantee an equal share of power among each group in its society, such as federalism or bicameralism. The text above has highlighted that in developing their constitutional structure, a country is mainly affected by the challenges or conditions in their respective societies. Hence, in this chapter, I want to explain Indonesia’s constitutional structure design and the constitutional framers’ motivations in developing such a structure. However, it should be noted that I want to demonstrate their motivation from the way they ‘interpret the world in which they are immersed,’ without being trapped by common errors that often caught many scholars studying the Indonesian constitutional system, that is to observe Indonesia selectively with Western eyes, which makes them not considering any conceptual difference regarding the meaning and practice of the Indonesian Constitution as something worth to be clarified.

Download the chapter from SSRN at the link.

Wan on the Constitutionalization of Happiness: A Global and Comparative Inquiry

Trevor Wan, University of Hong Kong, Faculty of Law, has published Constitutionalization of Happiness: A Global and Comparative Inquiry. Here is the abstract.

Happiness and well-being are now explicitly enshrined in a myriad of national constitutions. As of 2022, the terms "happiness" and "well-being" form part of the constitutional lexicon of more than 20 and 110 states respectively. These "happiness provisions" epitomize the phenomenon of the "constitutionalization of happiness," which denotes the process of elevating happiness to the constitutional echelon, thereby bearing discernible legal and political implications. An audit of all happiness provisions reveals that they boil down to three categories-happiness as a national objective, happiness as a policy paradigm, and the pursuit of happiness as a human right. The meaning and jurisprudential landscape of happiness provisions within a specific constitutional framework is molded by, on top of the semantic and structural configuration, a dynamic interplay among three factors, which include the indigenous and socio-cultural conception of happiness of that state, interpretations put forward by judges and other constitutional actors, and transnational influences such as the migration of constitutional ideas and jurisprudence. This article draws upon an extensive array of case studies, covering among others Bhutan, Bolivia, Ecuador, Japan, Korea, and Nigeria, to illustrate the breadth and diversity that enliven the universe of happiness provisions.

Download the article from SSRN at the link.

Dyzenhaus and Poole on The Old Commonwealth Model of Constitutionalism @LSEnews @UofTLaw

David Dyzenhaus, University of Toronto Faculty of Law and Department of Philosophy, and Thomas M. Poole, London School of Economics, Law School, have published The Old Commonwealth Model of Constitutionalism as LSE Legal Studies Working Paper No. 11/2023. Here is the abstract.

Comparative constitutional law is prone to two types of error. ‘Thin’ or overly formal accounts overlook important substantive dimensions of law and constitutions. ‘Thicker’ accounts often subsume the legal within politics or culture. Both types of error share a tendency towards presentism which stems, we argue, from insufficient consideration of the ‘jurisprudential perspective’ - the basic framework of legality which structures constitutional order and the ‘internal point of view’ that accompanies it, whereby actors within a legal order understand their association in terms of rights and duties. We turn to an older school of inquiry to see what such inquiry might entail. ‘Commonwealth comparative constitutional law’ explored questions of legality and sovereignty in the context of a collapsing British Empire. We assess the contribution of R.T.E. Latham, D.V. Cowen, Edward McWhinney and Geoffrey Marshall in the context of the Voters Rights legislation and litigation in 1950s South Africa in particular, and conclude by reflecting on the potential of this style of scholarship in our own era, where questions of sovereignty, exclusion and faux legality resurface in new and troubling forms.

Download the text from SSRN at the link.

Tugendhat on Slavery and Comparative Law in Eighteenth Century England @LawLeicester

Michael Tugendhat, Leicester Law School, has published Slavery and Comparative Law in Eighteenth Century England as University of Leicester School of Law Research Paper No. 17-08. Here is the abstract.

This paper addresses the contemporary criticism to the European Court of Human Rights in the UK by underscoring how the English law on human rights has been positively influenced by the laws of other European countries, in the same fashion as English law has traditionally influenced such foreign laws. The means for this analysis is a case-study on the introduction of the French law on slavery and the subsequent implementation of such principles in England. Slavery had been abolished in France since the early 1300s. Moorish slaves brought to France were being freed from at least 1571, as was recorded by Jean Bodin in 1576. In England, slavery had practically disappeared at the sunset of the Middle Ages. It resurfaced in the French and American colonies in the New World in the 1600s. In the period 1730-1790 French courts, citing Bodin, freed over 200 slaves brought to France from the colonies. In Somerset v Stewart, 1772, English courts finally held that slavery was not recognised by English law, which led to the termination of slavery in England once and for all; and it was the influence of French courts’ decisions on the bestowal of freedom to foreign slaves that led to the reasoning of the English Court.

Download the article from SSRN at the link.

Hesselink on Private Law and the European Constitutionalization of Values

Martijn W. Hesselink, University of Amsterdam, Centre for the Study of European Contract Law (CSECL), has published Private Law and the European Constitutionalisation of Values as Amsterdam Law School Research Paper No. 2016-26 and Centre for the Study of European Contract Law Working Paper Series No,. 2016-07. Here is the abstract.

According to the CFREU, the EU is founded on the general values such as values of human dignity, freedom, equality and solidarity. In addition, the TEU refers to a more political set of foundational values, ie respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. These references could be understood as purely ornamental, or as irrelevant in any case for private law. Indeed, it is true that the Court of Justice so far has never made any references to these values in private law cases. Still, the Court already has shown boldness before in the context of the interpretation and review of secondary EU law in private law cases, when it discovered general principles of EU law and general principles of civil law. Therefore, it should not be excluded that the Court may be tempted one day to follow the example of the German constitutional court that famously understands its national constitution as expressing an objective system of constitutional values. This paper explores what such an understanding of private law as an instrument for furthering common European values would entail and examines whether such an ethical reading of European private law would be desirable. It argues that the promotion by the EU of a set of official values through its laws is not compatible we the respect we owe each other in a society characterised by reasonable pluralism. In addition, it points to further difficulties, both of a moral and a practical nature, of the idea of advancing ethical values through private law. It concludes that although it is very well thinkable that the values to which the TEU and the Charter refer will one day be interpreted as an objective value system with (indirect) horizontal effects, the Court of Justice nevertheless should refrain from going down that road.

Download the article from SSRN at the link.

Creeping Americanization: Canadian Constitutional Practice and the Influence From South of the Border

David Schneiderman, University of Toronto Faculty of Law, has published ‘Introduction’ to Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture in Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture (University of Toronto Press, 2015). Here is the abstract.

Situated between two different constitutional traditions, those of the United Kingdom and the United States, Canada has maintained a distinctive third way: federal, parliamentary, and flexible. Yet in recent years it seems that Canadian constitutional culture has been moving increasingly in an American direction. Through the prorogation crises of 2008 and 2009, its senate reform proposals, and the appointment process for Supreme Court judges, Stephen Harper’s Conservative government has repeatedly shown a tendency to push Canada further into the US constitutional orbit. Red, White, and Kind of Blue is a comparative legal analysis of this creeping Americanization, as well as a probing examination of the costs and benefits that come with it. Comparing British, Canadian, and American constitutional traditions, David Schneiderman offers a critical perspective on the Americanization of Canadian constitutional practice and a timely warning about its unexamined consequences.

Download the Introduction from SSRN at the link.

Constitutional Review In Europe

Now available in paperback from Hart Publishing:

Maartje de Visser, Constitutional Review in Europe: A Comparative Analysis (hardcover, 2013, paperback 2015). 

Here is a description of the contents from the publisher's website.

Constitutions serve to delineate State powers and enshrine basic rights. Such matters are hardly uncontroversial, but perhaps even more controversial are the questions of: Who should uphold the Constitution? How should constitutional review be organized? These two questions are the subject of this book, which offers a comprehensive comparative analysis of how eleven representative European countries answer these questions, as well as a critical appraisal of the EU legal order in light of these national experiences. Where possible, the book endeavors to identify Europe's common and diverse constitutional traditions of constitutional review. The raison d'etre, jurisdiction, and composition of constitutional courts are explored and, so too, are core features of the constitutional adjudicatory process. Yet, this book also deliberately draws attention to the role of non-judicial actors in upholding the Constitution, as well as the complex interplay among constitutional courts and other actors at the national and European level. The Member States featured are Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland, and the UK. The book will be of interest to practitioners, academics, and students in constitutional law. (Series: European and National Constitutional Law - Vol. 1)

 

Comparative Constitutional Law and Global Values

Now available:

An Inquiry Into the Existence of Global Values :Through the Lens of Comparative Constitutional Law (Dennis Davis, Alan Richter, and Cheryl Saunders, Hart Publishing, 2015). Here is a description of the contents from the publisher's website.

The world appears to be globalising economically, technologically and even, to a halting extent, politically. This process of globalisation raises the possibility of an international legal framework, a possibility which has gained pressing relevance in the wake of the recent global economic crisis. But for any international legal framework to exist, normative agreement between countries, with very differing political, economic, cultural and legal traditions, becomes necessary.
This work explores the possibility of such a normative agreement through the prism of national constitutional norms. Since 1945, more than a hundred countries have adopted constitutional texts which incorporate, at least in part, a Bill of Rights. These texts reveal significant similarities, which are examined in this book. From these national studies the work analyses the rise of constitutionalism since WWII, and charts the possibility of a consensus of values which might plausibly underpin an effective and legitimate international legal order.

The Right To Freedom of Assembly

Orsolya Salait has published The Right to Freedom of Assembly: A Comparative Study (Hart Publishing, 2015). Here is a description of the contents from the publisher's website.

Assembly is natural to people, and it reflects and shapes cultural values. People do it for many reasons: noble or base, dangerous or innocent, social or political, strategic or communicative. But, despite the general significance of assembly, the right to freedom of assembly was often subjugated to the right to freedom of expression, both in courts and in legal scholarship. Regarding freedom of assembly, this comparative study examines five influential jurisdictions in Western human rights jurisprudence and reveals the similarities and inconsistencies between them. It also exposes their shortcomings, such as the United States' narrowly-focused content neutrality and public forum, the UK's blanket bans based on intangible and distant harm, Germany's preventative restrictions and viewpoint discrimination, and France's uncertain status and opaque judicial reasoning. Such divergence among European States hinders the development of a consistent assembly doctrine by the European Court of Human Rights. The book argues that it is time for jurisprudence to recognize values specific to freedom of assembly and move away from a narrow focus on expression.

European and U. S. Influences on Latin American Administrative Law

Ricardo Perlingeiro, Universidade Federal Fluniense (UFF), has published A Historical Perspective on Administrative Jurisdiction in Latin America: Continental European Tradition versus US Influence. Here is the abstract.

From the perspective of US influence, this text analyses the history of administrative jurisdiction, starting from the 19th Century, in the 19 Latin American countries of Iberian origin (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela). The analysis includes the US unified judicial system and procedural due process of law to decisions by the administrative authorities, the fertile field of primary jurisdiction, which is in conflict with the Continental European tradition firmly established in Latin American administrative law. While setting out the contradictions of administrative jurisdiction in Latin American countries that result from importing rules without putting them in the proper context, the text seeks to identify trends and create perspective to build a model of administrative justice specific to Latin America, drawing on the experiences acquired in the United States and Continental Europe.

The article contents: Introduction. 1 Administrative jurisdiction: judicial, non-judicial and hybrid models. 1.1 Constitution of Cadiz of 1812. Junta Grande of 1811 (Argentina). Belgian Constitution of 1831. Reglamento para el Arreglo de la Autoridad Ejecutiva Provisoria de Chile (1811). Law of 16 and 24 August 1790. Ley de Santamaría Paredes. Administrative Court of the Land of Baden of 1863. 1.2 Lack of independence of French administrative litigation and the unified judicial system in Latin America in the 19th Century. La justice déléguée of 1872. 1.3 The unified judicial system in Latin America in the 19th Century and questions of governance. 1.4 The specialization of jurisdiction in Europe and the emergence of administrative law. 1.5 The evolution of the unified judicial system in the USA: Interstate Commerce Commission (ICC) of 1887. 1.6 Models of administrative jurisdiction in Latin America in the 19th and 20th Centuries. 1.6.1 Hybrid (judicial and non-judicial) administrative jurisdiction: Honduras, Brazil. 1.6.2 Non-judicial administrative jurisdiction: Bolivia, Panama, Dominican Republic, Colombia, Guatemala, Ecuador, Uruguay, Mexico. 1.6.3 Dualist judicial jurisdiction: Colombia, Nicaragua, Panama, Ecuador, Guatemala, Dominican Republic. 1.6.4 Monist judicial jurisdiction (uninterrupted period): Chile, Argentina, Venezuela, Paraguay, Mexico, Costa Rica, Peru, El Salvador, Cuba, Brazil. 1.6.5 Monist judicial jurisdiction (limited period): Colombia, Guatemala, Dominican Republic. 1.6.6 Monist judicial jurisdiction (intermittent periods): Nicaragua, Honduras, Ecuador, Panama, Bolivia. 1.6.7 Monist judicial jurisdiction (currently in effect and having specialized entities): Chile, Argentina, Venezuela, Paraguay, Mexico, Costa Rica, Peru, El Salvador, Cuba, Bolivia, Brazil, Panama, Nicaragua, Honduras and Ecuador. 1.7 Developmental and comparative framework of the independent administrative jurisdiction under the Latin American Constitutions. 2 Administrative decisions preceded by due process of law. 2.1 Signs of US due process of law in Latin America: The 5th (1791) and 14th (1868) Amendments of the US Constitution. 2.2 Origin of due process of law: Magna Carta of 1215, Liberty of Subject Act (28 Edward 3) of 1354, Observance of Due Process of Law Act (42 Edward 3) of 1368. 2.3 Right to a fair trial on the international scene: US Bill of Rights of 1789, Universal Declaration of Human Rights of 1948, European Human Rights Convention of 1950, International Covenant on Political and Civil Rights of 1966, African Charter on Human and Peoples’ Rights of 1981, Charter of Fundamental Rights of the European Union of 2000, American Convention on Human Rights of 1969. 2.4 Due process of law in Latin American laws and constitutions. 2.5 Case law of the European and Inter-American Courts of Human Rights: independence and impartiality in non-judicial administrative proceedings, and due process of law prior to administrative decisions. 2.6 Distinction between the judicial processo administrativo, non-judicial processo administrativo and procedimento administrativo. 2.7 Administrative due process prior to decisions by administrative authorities in Latin America. Closing considerations.

The full text is not available from SSRN. 

Drafting Foundational Documents: Think Before You Label?

Brian Christopher Jones, Academia Sinica--Institutum Iurisprodentiae (IIAS), is publishing Preliminary Warnings on 'Constitutional' Idolatry in Public Law (October 2015). Here is the abstract.

Contemporary societies covet the notion of a written constitution. Yet should Britain choose to draft one, can I offer this important suggestion: please, call it anything but a “Constitution”. This statement is only slightly made in jest; in fact, it is quite serious. Constitutional fetishism, constitutional worship or “constitutional idolatry”, as Michael Klarman refers to it, is nothing to take lightly. While there has been a copious amount of commentary on the prospects and potential form of a UK written constitution, in addition to its history and evolution, the possibility of constitutional fetishism or constitutional idolatry becoming a significant factor throughout the citizenry, in the political arena, and especially in constitutional review and adjudication, appears to have been left out of the discussion. This is unfortunate, because the enactment of a codified Constitution will have an impact upon all these aspects in one way or another, and the potential development of some form of constitutional worship should be further discussed and debated before any action is taken.

Although it is acknowledged that enacting any type of foundational document, whatever called, encompasses particular implications, this piece contends that attaching the word “constitution” to a foundational document enhances such consequences, leading to a more distinctive “constitutional” fetishism. Difficulties arise because over centuries the word “constitution” has evolved from a largely structure-based meaning into a widely expansive symbolic meaning. Beyond merely delineating the structure of a state, the word now carries a variety of connotations. Some see it as the ultimate illustration of “we the people” popular sovereignty or as a vindication of the rule of law, while others see it as the completion or ultimate formation of a state or a government. Indeed contemporary constitutions, and especially Constitutions, serve highly symbolic functions that can manifest into significant issues for law, politics and the wider democratic state. Nowadays the word “constitution” is often used as a legal, political, and psychological truncheon: it has been employed to have ordinary documents masquerade as constitutions, been brazenly used to hollow out jurisdiction, and also been applied to have legislators think in legal, as opposed to political, terms. Given some of the rhetoric in the UK surrounding the possibility of a written constitution coming into being (i.e., “A New Magna Carta”, “Constitution Carnival”), this article concentrates on a few acute examples of “constitutional” fetishism the US is currently grappling with; problems which could become substantially more relevant if a founding British document is enacted.

Download the article from SSRN at the link.

Eight Hundred Years of Magna Carta

Thomas J. McSweeney, William & Mary Law School, has published Magna Carta, Civil Law, and Canon Law in Magna Carta and the Rule of Law (Daniel Magraw et al., eds.; 2014). Here is the abstract.

With the 800th anniversary of Magna Carta approaching, interest has been piqued in the charter, which influenced the development of the common law in its early stages. One debate surrounding the charter is the degree to which Roman and canon law influenced the text. This debate has important implications for the identity of the common law. We tend to think of common law as an English institution, very different from those continental civil-law systems that trace their ancestry back to medieval Roman and canon law. If Roman and canon law influenced the charter, it could serve as evidence that the early common law was not so insular in its outlook as we have thought, and that it really should be placed in a broader European context.

Roman and canon law — collectively called the ius commune in the Middle Ages — certainly made their mark on Magna Carta, but this paper argues that the elements of the ius commune that found their way into Magna Carta were inserted not to influence the early development of the common law, as many scholars have assumed, but rather because ius commune, and more particularly canon law, was a political language that appealed to various important constituencies in England and abroad. Appeals to canon law in Magna Carta were more likely placed there to elicit support from the papacy than to reform English law. This paper places Magna Carta in the longer context of the Church reform movement and its instantiation in England — the Becket dispute — and argues that Magna Carta’s ius commune-influenced provisions were attempts by English actors to give universal significance to their local disputes.

Download the essay from SSRN at the link.

Religious Symbols and Constitutional Meaning

Frederick Mark Gedicks, Brigham Young University Law School, and Pasquale Annicchino, European University Institute, Robert Schuman Centre for Advanced Studies (RSCAS), have published Cross, Crucifix, Culture: An Approach to the Constitutional Meaning of Religious Symbols. Here is the abstract.

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning or whether, at least, the confessional meaning is somehow absent. Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent.
The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What matters, however, is not the possibility that secular meaning is present or confessional meaning absent, but whether whether this presence or absence is historically and culturally authentic. Courts largely ignore this, routinely appealing to history and culture to justify government use of confessional symbols without undertaking a serious investigation of either history or culture.
Drawing on the work of C.S. Peirce, we propose that courts ask three successive questions in religious symbol cases: (1) Is the ordinary meaning of the symbol confessional or otherwise religious? (2) Does the immediate context in which the symbol is displayed suggest a possible historical, cultural, or other secular meaning? (3) Is this alternate secular meaning authentically present and genuinely recognized in the history and culture of the place where the symbol is displayed?
We illustrate this approach with Salazar v. Buono, in which the USSCt upheld government display of a Christian cross, and Lautsi & Others v. Italy, in which the ECtHR deferred to Italian court decisions upholding government display of a Catholic crucifix. While the USSCt in Buono and the Italian courts in Lautsi imagine conceivable nonconfessional meanings for the confessional symbol at issue, neither meaning can be found in American or Italian history or culture. In Lautsi, thjerefore, the ECtHR ends up deferring to a nonexistent Italian “tradition.”
Judical denial of obvious confessional meaning and invention of substitute secular meanings for confessional symbols betrays a cultural schizophrenia: Majoritarian religions rail against the secularization of culture and its subversion of belief, yet they insist that their confessional symbols remain at home in this culture. But confessional symbols no longer fit in mainstream culture as confessional — hence their redefinition as secular, even and especially by the majoritarian religions that use them. Ironically, judicial secularization of these symbols to validate their use by government is likely to accelerate and entrench the very secularization that such religions deplore.

Download the paper from SSRN at the link. Via Legal Theory Blog.

Separation of Powers in Eastern European Democracies

Cristina E. Parau, University of Oxford, Department of Politics and International Relations, and J. Wittmeier Bains are publishing Constitutional Designs: Lessons We Can Learn from the Early American Republic in the Romanian Journal of Comparative Law. Here is the abstract.

This article addresses the vexed question of who should have the “last word” in saying what a democratic constitution means in controversies between the Judiciary and the other Branches of government. The aim is to contribute to debates in post-Communist Central and Eastern Europe (CEE), which to date have been dominated by the paradigm of a Constitutional Court (CC) with monopoly power to expound the constitution. This institutional configuration sits uneasily with the separation of powers and checks and balances – shibboleths which are nonetheless poorly understood in CEE. It is believed that the American Founders, who invented these practical mechanisms in their modern and now universally accepted forms, may offer particularly fruitful insights which constitutional designers everywhere could learn from.

Download the full text of the article from SSRN at the link. 

The US Constitutional Model and Chinese Legal History

Jedidiah Kroncke, Harvard Law School, has published An Early Tragedy of Comparative Constitutionalism: Frank Goodnow & the Chinese Republic. Here is the abstract.

This article recovers a lost episode in the neglected early history of American comparative constitutionalism. In 1913, pioneering comparative lawyer Frank Goodnow was sent to China to assist the new Chinese Republic in the writing of its first constitution. Goodnow’s mission reflected the growing interest of America in China’s legal development in this era, and his constitution-writing project won broad support from the American legal profession. Goodnow’s tenure ultimately generated great controversy when he advised China to adopt constitutional monarchy rather than continue on as a republic. This article describes this controversy and how American international engagement was increasingly shaped in the early 20th century by the attempted export of American legal models as a presumptively altruistic mechanism of modernization. Goodnow’s allegiance to comparative legal science agitated against this more parochial view of legal internationalism, and in the end he was excommunicated from American foreign policy affairs.



More broadly, this article shows how the early history of American comparative constitutionalism had its roots in the early 20th century American discourse on colonial administration. Goodnow and other American lawyers of the era turned to indirect engagements with foreign legal reform only after the popular rejection of colonialism that had been already constitutionally sanctioned by the now infamous Insular Cases. This article further argues that these colonial roots and Goodnow’s feckless misadventure in China hold key lessons for today’s comparative constitutionalists. It provides a vivid example of how the technocratic illusion of engaging in depoliticized legal reform abroad is self-defeating and untenable. Further, it warns against the inherent tensions between a methodologically coherent comparative law and the desire to export American constitutional models abroad, and how such tensions can undercut clear-sighted American understanding of foreign legal developments.

Download the paper from SSRN at the link.

The Development of Western Constitutional Ideas

Jean LeClair, Université de Montréal Faculty of Law, has published L'Avènement Du Constitutionnalisme En Occident: Fondements Philosophiques Et Contingence Historique (The Advent of Western Constitutionalism: Philosophical Foundations and Historical Contingency) in volume 41 of the Revue de droit de l'Université de Sherbrooke (2011). Here is the abstract.

Pour le bénéfice des non-initiés aux arcanes du droit constitutionnel occidental, l’auteur, après avoir brièvement décrit les notions de droit constitutionnel et de constitutionnalisme, s’attarde à retracer les idées-force qui, en Occident, ont rendu possible l’avènement de ces notions. Par la suite, il examine la trajectoire historique empruntée plus spécifiquement par les constitutionnalismes anglais, français et américain. L’auteur cherche ainsi à démontrer que, malgré la contingence historique du constitutionnalisme canadien, les principes philosophiques qui en sont à la source tirent leur origine de ce qu’on pourrait appeler un « patrimoine intellectuel occidental.

For the benefit of those unacquainted with the arcane features of Western Constitutional law, the writer, after briefly describing the notions of “constitutional law” and “constitutionalism”, seeks to set out the fundamental ideas which have enabled these notions to develop in the Western World. He then examines the historical trajectory of British, French and American constitutionalism. In so doing, the author seeks to underline that, notwithstanding the historical contingency of Canadian constitutionalism, the philosophical ideas upon which it is grounded may be described as originating from a “Western intellectual patrimony.”

Download the article from SSRN at the link. (NB: Text is in French).

Conciling the Jurisprudential Meanings of Human Dignity

Neomi Rao, George Mason University School of Law, has published Three Concepts of Dignity in Constitutional Law, at 86 Notre Dame Law Review 183 (2011). Here is the abstract.

The U.S. Supreme Court and constitutional courts around the world regularly use the term human dignity when deciding cases about freedom of speech, reproductive rights, racial equality, gay marriage, and bioethics. Judges and scholars treat dignity as an important legal value, but they usually do not explain what it means and often imply that it has one obvious core meaning. A close review of constitutional decisions, however, demonstrates that courts do not have a singular conception of dignity, but rather different conceptions based on how they balance individual rights with the demands of social policy and community values. Using the insights of political theory and philosophy, this Article identifies three concepts of dignity used by constitutional courts and demonstrates how these concepts are fundamentally different in ways that matter for constitutional law. In contentious cases, the concepts of dignity will often conflict. If constitutional courts continue to rely on human dignity, judges must choose between different understandings of dignity. This Article provides the groundwork for making these choices and defending a concept of dignity consistent with American constitutional traditions.

Download the article from SSRN at the link.

The Constitution of Cadiz

Matthew C. Mirow, Florida International University College of Law, has published Codification and the Constitution of Cádiz in Estudios Jurídicos en Homenaje al Profesor Alejandro Guzmán Brito (Patrício-Ignacio Carajal and Massimo Miglietta, eds.; Edizioni dell’Orso, 2012).

This study seeks to explore the private law side of the Constitution of Cádiz, in particular its use and reference to the legal revolution of codification that was well underway by 1812. By engaging questions of codification and private law, this study explores the relationship between private law and public law at a transformative moment in both areas. In public law, unwritten, ancient constitutions were just beginning to be replaced by written constitutions attempting to limit government and to define individual rights. In private law, centuries of the ius commune tradition were being reorganized and shaped into codes. Thus, an examination of the idea and place of codification in the Constitution of Cádiz should reveal clues about these important changes.

First, this study discusses the placement of Article 258, the constitutional article referring to codes, within the text of the Constitution itself. It then addresses other aspects of the Constitution that point towards codification as a logical outgrowth of the political and legal transformations contemplated by the Constitution. The third topic addressed here is the way Article 258 came into the Constitution through the reports of the debates in the Cortes and what these statements reveal about the perception of codes at the Cortes. This study ends with some concluding comments about the place of the Constitution of Cádiz in the history of Latin American codification.

Download the text from SSRN at the link.