Constitutions are often likened to the ‘rules of the game’ in a polity. This deceptively simple metaphor contains three constitutional functions: it settles what kind of ‘game' is being played; it defines how it is played, and it describes who the players are and why they play. Comparative constitutional law is most comfortable with the exegesis of the ‘what' and 'how:' differences between forms of government and normative restrictions. In contrast, foundational questions of ‘who’ and ‘why’ are harder to encompass with the standard tools of the discipline, thus ignoring symbolic assertions often found in preambles. But these foundational myths are particularly important for societies undergoing rapid change; societies where the concept and practice of modern statehood remains an ill-fitting, sharply contested transplant. This presentation looks at the ‘usable past’ presented in constitutional documents that posit Islam as defining who may participate in public life and why
Are [preambles] truly non-operative?” With this question, Prof. Frosini begins his book on constitutional preambles. It is not surprising that the preamble of the Iranian constitution, as the world’s longest preamble, holds particular fascination for Frosini. With fourteen different sections, each with a separate title, the preamble covers most controversial issues of the country, e.g. the reasons for the Islamic revolution, the foundations of an Islamic government, the role of women in society, the freedom and dignity of mankind, the rejection of bureaucracy born out of an autocratic governments. However, the relevance and legal value of the Iranian preamble is a matter of dispute. This presentation provides a historical analysis of the function and legal status of the Iranian preamble considering its interpretive dynamics for transforming the country’s political arena.
What is the formal character and which is the political relevance of a preamble? It is widely understood that preambles deserve maximum attention, as their content reveals definitions, objectives and core values of the constitutional orders involved. My opinion, however, goes the other way. I argue that it is, instead, because of the form – because of their formal nature- that preambles are essential constitutional pieces. At least it looks like this for those of us who foster a theoretical-political outlook toward the Pouvoir Constituant's decision making process.
In short, the existence, connection, and justification of the Constitution, the State and the derived legal order, are precisely the epitome of the preamble´s formal character. The conceptual and the practical implications of such category is also another profile that will be developed and brought to discussion by the panel.
This presentation will use the scholarship regarding constitutional preambles, especially Professor Frosini’s work, to explore preambles in ordinary statutes. Why and when do preambles appear in legislation? To what extent are insights about constitutional preambles applicable to statutory preambles? Can statutory preamble support important public law and constitutional principles, particularly principles that need buttressing in an age of illiberal democracies and “democratic decay”? In addressing these and related questions, the primary case study will be the Canadian federal experience.