Constitutional Design and the Optimal Level of Deliberation in a Society

Deliberative democracy is a project that has strong normative implications for constitutional design, but its procedural nature leads to preoccupations about how fundamental rights might be ensured. Rawlsian perspectives highlight the importance of core principles that deliberation cannot override, while Habermas defends that an optimal procedure leads to an endogenous observation of minorities rights. In this paper, I present a game-theoretical model to analyze whether variations in the costs for deliberation and heterogeneity in society might cause welfare enhancements. If there are no minorities – all groups have the same probability of being non-majoritarian in an important issue – lower costs of deliberation always increase social welfare. Nonetheless, if there are minority groups, it is not possible to ensure they will not suffer from distortions in the deliberation process led by elites unless costly Rawlsian consensus rules are enacted.

The right to resist: changing the paradigm from the obligation to obey, to the right to participate.

It will be argued that the right to resist can be considered as a non-institutional device of constitutional correction in cases of disagreement. In general the right to resist must be understood from the paradigm of participation and not from the paradigm of obedience. The constitution is a way that citizens have both to constitute and regulate power. Secondly, disagreement is enough for this right to emerge and it could be invoked for all of those who share the disagreement. Third, the right to resist is founded in the right of participation and therefore it must be considered as a characteristic element of the current constitutional dialogue and not the ‘last resort’. Two objections to this position must be addressed. Fourth resistance and rebellion are differentiated. While rebellion seeksto break with the existing constitutional pact, the resistance seeks to correct the current constitutional pact. Finally, some ideas will be advanced about legitimacy, democracy and resistance.

Citizen-led inquiries as a form of resilience in the global and national order: opportunities and challenges

In this paper I will provide an overview of the characteristics of “citizen-led inquires,” also called “unofficial truth projects” or “civil society truth commission initiatives,” including their normative framework; key aspects in which they differ from official truth commissions; and some of the underlying factors why they are created. I will use three case studies: the Greensboro Truth and Reconciliation Commission, the North Carolina Commission on Inquiry, and the Poverty Truth Commission in Scotland to analyze opportunities and challenges presented by these inquiry processes. I will relate the topic to the theme of the ICON-S conference by addressing whether these commissions partly respond to increasing popular distrust in government, identified as one challenge that is being faced by public law and whether they represent resistance in the global and national public law order.

Parliamentary Sovereignty and the Locus of Constituent Power in the United Kingdom

This paper argues that parliamentary sovereignty’s assimilation of constituent power—the ultimate power in a legal order to create and posit a constitution— has stultified the development of British constitutional law. The result is a deeply ideological, as distinct from oft-heralded pragmatic, constitutional structure that is incapable of confronting the systemic challenges the UK currently faces. By conceptualising a more antagonistic relation between the Crown in Parliament and ‘the People’ by questioning the democratic credentials of the former, this paper contends that the UK constitutional order can be re-invigorated. This re-appraisal, however, also requires the interrogation of the notion of ‘the People’ in the UK constitutional order itself.

Constitutional Origins and Liberal Democracy: The Impact of Elite Cooperation and Mass Participation

This paper examines the impact of different modalities of constitution-making on democratic regimes. It argues that the dispersion of power that makes possible elite cooperation not only facilitates the creation of legal limits on state action but also provide opposition parties and citizens alike with the means to make institutional constraints on executive power and civil liberties effective. We also propose that the effect of inclusive constitutional agreements should be larger during the critical early years of life of the new constitution, when the balance of power among the political forces that created the constitution tends to remain stable. We find support for these arguments using an original global dataset on the origins of constitutions adopted or implemented under democracy between 1900 and 2015 and a difference-in-differences design of quantitative analysis that allows us to isolate the differential impact of certain features of constitution-making on liberal democracy.

Constituent Power 2.0

The notion of constituent power is one of the conceptual cornerstones of constitutional law. It is rooted in the constitutional legal theory of the beginning of the 20th century. More than hundred years later, the political and social environment has deeply changed. The fourth industrial revolution generates new democratic practices in terms of participation and constitution-drafting. Recently, new experiences have still flourished all around the world, and especially in Europe and in the Global South.

This paper aims to present these new technological developments and to analyze their effects in the framework of the constitution-making. The question of participation will be analyzed through the use of new instruments – algorithms – and tools – apps. One the other side, the question of constitution-drafting will be addressed through the issue of the authors and material sources of law, which are made accessible through digital data platform.