There are national constitutional examples that are so diverse in origin, character and scope as to create a constitutional spectrum consisting of shades of constitutionalism. What unities those diverse constitutional examples is the adherence to certain specific principles.Constitutional normativity is challenged by the supranational example. In addition, there is the complementing dimension of influencing the content, interpretation and judicial perception of constitutional rules through the formation of common principles of understanding.Those take the form of a co-owned constitutional space by the national and the post-national examples. The constitutional discourse is 3-dimensional: national, post-national and co-owned.The discourse should be about the debate and the process of constitutionalism as a fluid never-ending phenomenon rather than about constitutions as rigid insulated entities. What remains contentious is the sovereignty issue as the origin of constitutionalism.
The increase intersection between constitutional law and law philosophy trabsforma the single orientation of each subject. Technically, this approach is not a subject, neither an issue of consideration by philophers. The state of art in constitutional interpretation call for more than a soft knowledge in moral and polical philosophy. Today democratic questions are raised for scholars who have to dive in deep political philosophy arena, whereareas of many non-philosophers by nature found lack of properties. Thus, in the begging of 21 century, not only the barrier non exist anymore, but also a new trend of both realms raise propoer answers and ways to political and moral debates in the center of justification. The presentation explores the gains and possibilities of a subject (constitutional-philosophy) oriented to case resolution with philosophic approarch of themes that are challenged and examined by constitutional courts.
This paper argues that there is a risk of neo-formalism in certain types of empirical research on constitutionalism and judicial review. The risk is driven by the dependence of empirical legal research on quantifiable variables, such as the text of constitutions. The paper outlines the risk through discussion of several examples of neo-formalist empirical research, and proposes some solutions. The paper is relevant to current debates on comparative methodology and the purpose and future direction of comparative constitutional studies.
In Ernst Fraenkel’s account, the Dual State is characterized by two relatively autonomous spheres: the normative and the prerogative one (or what some have called the “deep state”). In the prerogative State, the State acts with discretion and its actions are not subject to judicial review. Most constitutions are characterized by coexisting liberal and authoritarian layers of normativity. In times of crisis, the authoritarian “deep constitution” may take over the normative constitution, with the courts starting to act in a “schizophrenic” manner. When authoritarian constitutions are defined as having “the form of a constitution, but without fully articulated institutions of limited government”, limited government is wrongfully associated with liberal constitutions and miss the fact that institutions of limited government always coexist with authoritarian “deep” features. The comparative cases of Thailand, Pakistan and Turkey fully exhibit such constitutional fluidity.
This paper is going to discuss institutional design issues regarding indigenous people’s right to participate or consent, including the nature and scope of this right, and the relationship among various kinds of participation. In addition to clarify the nature of indigenous people’s right to participation or consent through study on international legal documents, this project will analyze above issues through decisions made by Inter-American Court of Human Rights and make comparisons to cases happening in Taiwan. Tentatively, this paper contends either the scope or choices of indigenous people’s right to participate or consent should be bound by the nature of indigenous people’s self-determination and not be over-intervened by the state’s sovereignty. We should clarify an optimal scope and kind of indigenous people’s political participation case by case depending on the influential degree by governmental or private actions.