There are at least two potential Weimar Moments in Polish constitutional history. The constitution of 1921 faced the particular task of rebuilding a nation. For that purpose, it featured a strong parliamentary component. However, it lasted only for five years before constitutions with greater presidential powers replaced it. The 1990s brought the desire to regain independence and democracy while keeping and expanding social equality. Transformative constitution of the 1997. Sought international ascertainment in European integration. However, this desire, together with financial vulnerability, exposed it to the influence of neoliberal constitutionalism, leading to insoluble contradictions. The paper will analyse to what extent the current constitutional crisis in Poland has been framed by them.
A democratic government should be restricted by law. That’s the main idea of constitutionalism. The procedures established to take social decisions in a constitutional democracy must respect some limitations, like fundamental rights. The logic of constitutionalism is the logic of the procedural.
The legitimacy (justice or fairness) of a procedure can be explained using the scheme proposed by Rawls. There are procedures whose results can be evaluated with reference only to the rules that define the procedure itself. Additionally, there are procedures that can be examined with regard to criteria external to them. In this paper I will the quasi-pure procedural approach that admits that is substantive (not procedural) criteria external to political procedures, like human rights principles, but these criteria and the demands that derives from these, can be justified and applied in very different ways or admit varying degrees of compliance.
The presentation will address first, briefly, how Italian legal culture approached the Weimar Model over the 20s and 30s, focusing then on what substantive influence it has had on the Italian Constitution. The Ministry for the constituent, as a matter of fact, published in 1946 a series of documents called “Text and Constitutional Documents” and one of them was the Weimar Constitution. The debates of the constituent assembly therefore reveal the circulation of ideas and shed light on current constitutional developments.
The discourse of legal constitutionalism has put forward the pre-commitment argument to defend the constitutional rigidity of institutions and procedures as well as non-availability of rights.
In defending that position appears the re-commitment arguments that are related to the anthropological position that carries a pessimistic understanding of the nature of human beings maintains a strong presumption about individual and collective irrationality, which could lead to a pernicious majority.
However, against the logic of pre-commitment – the discourse of legal constitutionalism –, has emerged, some reasonable criticism from a normative political theory point of view, which present itself as an integral proposal, whose essential basis is the existence of reasonable disagreements and an anthropological understanding of the nature of human beings, which is opposed to the pessimistic conception.
Several distinct social and political sectors were represented in the constituent process leading to the Portuguese Constitution, resulting in a negotiated text that tried to balance conflicting interests, establishing a specific and coherent equilibrium between majority and minorities in the different areas of collective life. From that balance, a few original constitutional features emerged; they constitute the backbone of national constitutional identity: a ‘mixed’ form of government with a dominant parliament, a very strong fundamental rights catalogue, including many social and economic rights, a central place given to work and worker’s rights.The European integration process and the last decades’ political and social changes pose some challenges to national constitutions and the Portuguese is not an exception. My paper will reflect upon the path to balance between past and present, openness and the safeguarding of national fundamental consensus.
Venezuela is one of the richest countries in natural resources in the world, one of the biggest in mines and the largest in proven reserves of hydrocarbons. Notwithstanding, it is paradoxically immersed in a terrible and complex humanitarian, political, economic and social crisis; maybe one of the worst worldwide.
This dramatic situation is the product of several factors, being one of the principal of them a massive, systematic and widespread corruption, which became a sort of “public policy”, with an almost total impunity, except for taking advantage of corruption prosecution (which in many cases just only reaches the imputation phase). This proposal, intends to analyze this unfortunate paradigmatic case, having in consideration not only the interaction and linkages between democracy and rule of law with corruption, but also the effects of this scourge against human rights, as well as its possible legal and judicial implications from this perspective.
To be confirmed.
Please note: Prof Mollers has confirmed his interest in presenting a paper on this panel. The panel was put together quite quickly, and he has not managed to submit his paper title or abstract in time for deadline. He has asked that this panel be scheduled either on the Wednesday or the Thursday as he has to leave on the Thursday evening. He also points out that he is already on a panel.
Globalization is considered to have made nation-states lose, or are losing their “sovereign” character in national and international politics, due to the emergence of administrative political entities that are disputing this political power such as large companies (multinationals) or private corporations. In this sense, ¿How can be building a theoretical possibility of a global constitutionalism in non-state legal scenarios, based on the construction of a proposal for a mandatory protection, within the framework of Globalization? This paper aims to reflect on the possibilities of building this theory, having in account the relationship between democracy and constitutionalism, in the context of no state legal scenarios, global chains of supply or production, and big private corporations.
Against the charge that majoritarian decisionmaking processes might feed populism, in this paper I claim that political constitutionalism stands as a superior kind of constitutionalism for democratic societies than its liberal or legal alternative. In doing so I will argue that political constitutionalism is at odds with, and better than, the wide range of experiences labelled under the term ‘populism’. In the first part of the paper, I examine different approaches to the phenomenon of ‘populism’ and I critically analyse how constitutional theory approaches the relation between populism and constitutionalism. In this, my critique to the most common reaction from constitutional law to populism is twofold. On the one hand, I criticise the persistent faith in courts as safeguards of democracy endorsed by legal constitutionalism. On the other hand, I criticize the lack of analytical value of the term ‘populism’ for the goals of constitutional theory.
The aim of this paper is to soften the contrast between the moral theory of liberal constitutionalism and the various competing normative accounts of constitutionalism that, for ease of reference, I shall call collectively political. It will be argued that this contrast is to a great extent the result of both sides unnecessarily taking extreme positions and misunderstanding (some of) their own theoretical commitments. Once some of those commitments are relaxed and others jettisoned, we will see that the choice between the two views is not either-or.
More specifically, against standard liberal constitutionalist accounts it will be claimed that there is no mysterious constitutional logic that necessitates the existence of constitutional review of primary legislation. And against standard political constitutionalist accounts it will be claimed that it is not necessarily an affront to political equality to give this kind of power to unelected judges.