Constitutional values are too unstable and conflictual to provide for normative foundations of constitutional organisations. Values actually may become sources of legitimacy deficits and even illegitimacies themselves. National and post-national constitutions, therefore, require further institution-building and constitution-making to transform values into autonomous structures and semantics such as constitutional rights and supranational or transnational constituent polities....
Constitutional vs Statutory Bills of Rights with Weak-Form Judicial Review
Weak-form judicial review allows legislatures to override judicial decisions on rights through the ordinary lawmaking process. It can be incorporated into a bill of rights that is constitutionally entrenched, as with the Canadian Charter of Rights and Freedoms, or an unentrenched statute, as with the NZ Bill of Rights Act and UK Human Rights Act....
Constitutionalism and Development in Asian Hybrid Regime
This chapter highlights the practice of constitutionalism in hybrid regimes. In the contemporary world, constitutionalism is practiced by not only democratic countries but also authoritarian states for the sake of economic development. This chapter addresses the following questions: First, why would authoritarian regimes accept the idea of constitutionalism and legality? Second, what makes authoritarian constitutionalismfunctional...
Criticising the courts: from ‘foreign‘ judges to ‘dinosaur‘ judges
Court criticism often boils down to clashes between the principles of democracy and the rule of law, but severe criticism may challenge judicial authority and threaten the rule of law. And yet, certain types of criticism are more acceptable than others. This paper argues that collective criticism represents a more acceptable type of condemnation. Here...
Democratic basic order as the object of protection of party dissolution procedures in Germany and Korea
Party dissolution procedures are considered as one means to protect the identity of a constitution. In this regard Article 21(2) of the German constitution stipulates that parties shall be unconstitutional, if they by reason of their aims or the behavior of their adherents seek to undermine or abolish the free democratic basic order or to...
Deterrence or Deference? The Constitutional Court under the Rise of Populism in Serbia
Since the populist administration took power in 2012, emerging constitutional democracy in Serbia has been gradually changed for Schmitt‘s identity and plebiscitary conception of democracy. A shift towards ‘the political guardian of the constitution‘ was justified by the claim that the consent of the majority was the crucial ground of legitimation in politics, while the...
Distinguishing Freedom of Religion from Religious Non-Discrimination
In this paper, we argue that, while they are often conflated, the right to freedom of religion and the right against religious discrimination are in fact distinct human rights. We identify two facets of religion: religion as viewed from the committed perspective of the adherent and religious group membership as seen from the non-committal/public point...
Do Welfare States Have a ‘Freedom to Fund‘? On Conditional Cash Transfers and Political Speech
Can the state condition financial support for artistic speech upon the content of the speech? In Israel, the government has begun to use its cash transfer mechanisms to either penalize or incentivize political speech in ideologically controversial contexts, and legal controversy ensued. The article locates cash-transfer strategies pertaining to political speech in a broader typology...
Election Commissions and Democratic Decline
This paper considers the role that election commissions may play in facilitating or resisting democratic decline. Common across cases of decline are attempts by regimes to capture or eliminate independent institutions that have the capacity to check political power. Capture of the judiciary is a well-recognized tool of would-be authoritarians. This paper argues that similar...