Federal Law Review最新文献_第9页

Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni 宪法文本、权威意图与隐含权利——对阿兰和阿尔西奥尼的回应

Federal Law Review Pub Date : 2020-11-15 DOI: 10.1177/0067205X20973479

J. Crowe

引用次数: 0

‘Maranga Ake Ai’ The Heroics of Constitutionalising Te Tiriti O Waitangi/The Treaty of Waitangi in Aotearoa New Zealand “Maranga Ake Ai”Te Tiriti O Waitangi立宪的英雄事迹/新西兰奥特亚的《怀唐伊条约》

Federal Law Review Pub Date : 2020-10-05 DOI: 10.1177/0067205x20955105

J. Ruru, Jacobi Kohu-Morris

引用次数: 3

Love in the High Court: Implications for Indigenous Constitutional Recognition 高等法院之爱:对原住民宪法承认之启示

Federal Law Review Pub Date : 2020-10-04 DOI: 10.1177/0067205X211016584

Shireen Morris

{"title":"Love in the High Court: Implications for Indigenous Constitutional Recognition","authors":"Shireen Morris","doi":"10.1177/0067205X211016584","DOIUrl":"https://doi.org/10.1177/0067205X211016584","url":null,"abstract":"This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’ limited findings on Indigenous sovereignty, demonstrating the extent to which this is predominantly a political question that cannot be adequately resolved by courts. Surviving First Nations sovereignty can best be recognised and peacefully reconciled with Australian state sovereignty through constitutional reform authorised by Parliament and the people. The article then discusses political ramifications. It argues that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore intended to address such concerns. Similarly, objections that this case introduced a new, race-based distinction into the Constitution are misplaced. Such race-based distinctions already exist in the Constitution’s text and operation. The article then briefly offers high-level policy suggestions addressing two practical issues arising from Love. With respect to the three-part test of Indigenous identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent threats of deportation like those faced by Love and Thoms.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"410 - 437"},"PeriodicalIF":0.0,"publicationDate":"2020-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X211016584","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46676007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation 土著宪政与法院外争端解决：一种邀请

Federal Law Review Pub Date : 2020-09-10 DOI: 10.1177/0067205X20955069

K. Drake

{"title":"Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation","authors":"K. Drake","doi":"10.1177/0067205X20955069","DOIUrl":"https://doi.org/10.1177/0067205X20955069","url":null,"abstract":"The Supreme Court of Canada’s jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facilitates dispute resolution between Canadian governments and Indigenous peoples grounded in Indigenous constitutionalism. To avoid a pan-Indigenous approach, this article focuses on Anishinaabe constitutionalism as one example of Indigenous constitutionalism. It highlights points of contrast between Anishinaabe constitutionalism’s and liberalism’s foundational norms and dispute resolution procedures. This article argues that a hybrid institution—combining features of both liberalism and Indigenous constitutionalism—would merely reproduce the constitutional capture of Aboriginal rights jurisprudence. It also illustrates how the procedures of talking circles—which are one means of giving effect to persuasive compliance—promote the voice of all involved. Finally, this article argues that from the perspective of Anishinaabe constitutionalism, the non-binding nature of the processes offered by the new institution would be a strength, not a drawback.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"570 - 585"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20955069","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49459247","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Pervasive Constitution: The Constitution Outside of the Courts 普适宪法：法院之外的宪法

Federal Law Review Pub Date : 2020-09-10 DOI: 10.1177/0067205X20955064

Gabrielle Appleby, Vanessa MacDonnell, Eddie Synot

{"title":"The Pervasive Constitution: The Constitution Outside of the Courts","authors":"Gabrielle Appleby, Vanessa MacDonnell, Eddie Synot","doi":"10.1177/0067205X20955064","DOIUrl":"https://doi.org/10.1177/0067205X20955064","url":null,"abstract":"The constitution pervades the governance practices of a state, far beyond its application and interpretation in the courts. This Special Issue draws together a field of scholarship that considers these extrajudicial dimensions of constitutional practice to reveal a very different constitution to the juridified version. It is a more complex, dynamic and pervasive vision of the constitution, focused on the ongoing relationships of a broader set of constitutional institutions and actors. These relationships are mediated by the legal and political dimensions of the constitution and by the narratives and symbolism that grow up around it. In this introduction, we explore three themes of the pervasive constitution: the importance of constitutional narratives and symbols, the multiplicity of constitutional actors and the relational nature of constitutionalism. This recalibrated understanding of the constitution reveals constitutional actors and power dynamics that are often invisible in more traditional accounts of constitutionalism. This recalibration is particularly important in addressing contemporary constitutional challenges. In settler systems hoping to decolonise, courts have proven important but insufficient sites of constitutional change, and it is in political spaces that new constitutional stories can be told, stories which acknowledge the full sovereignty of Indigenous peoples and their claim to territory. In countries experiencing democratic backsliding, extrajudicial actors have been championed as the backstops to democracy and human rights. We argue that only by understanding the space outside the courts will we appreciate the breadth of new constitutional possibilities.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"437 - 454"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20955064","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43586968","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

A First Nations Voice: Institutionalising Political Listening 第一民族的声音:制度化的政治倾听

Federal Law Review Pub Date : 2020-09-10 DOI: 10.1177/0067205X20955068

Gabrielle Appleby, Eddie Synot

引用次数: 2

Constitutional Resistance in Populist Times 民粹主义时代的宪政抵抗

Federal Law Review Pub Date : 2020-09-10 DOI: 10.1177/0067205X20955102

Paul Blokker

{"title":"Constitutional Resistance in Populist Times","authors":"Paul Blokker","doi":"10.1177/0067205X20955102","DOIUrl":"https://doi.org/10.1177/0067205X20955102","url":null,"abstract":"The article departs from the discussion of constitutional mobilisation—the ‘process by which social actors employ constitutional norms and discourses to advocate for constitutional change’ 1 —to introduce the concept of constitutional resistance—the public invocation of constitutional norms and principles, in defence of a distinctive view of constitutionalism, in opposition to governing or reform action by the authorities. Constitutional mobilisation and resistance are theorized on an interdisciplinary and conceptual basis, suggesting that the study of the critical role of societal actors in constitutional politics and in ‘constituent conflicts’ remains so far underexplored. The analysis of constitutional resistance is particularly relevant in the contexts of authoritarian societies or democratic societies that face increasing populist and authoritarian challenges. The article first briefly explores various scholarly approaches that provide considerable contributions for the development of a political sociology of constitutional mobilisation. It subsequently discusses constitutional mobilisation and focuses in particular on constitutional resistance, a so far undiscussed dimension of constitutional mobilisation, exemplifying the latter by briefly exploring the cases of Italy and Poland.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"511 - 528"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20955102","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43580475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

Political Constitutionalism: Individual Responsibility and Collective Restraint 政治宪政:个人责任与集体约束

Federal Law Review Pub Date : 2020-09-10 DOI: 10.1177/0067205X20955100

Yee-Fui Ng

引用次数: 0

The Australian Constitution as Symbol 作为象征的澳大利亚宪法

Federal Law Review Pub Date : 2020-09-10 DOI: 10.1177/0067205X20955076

Dylan Lino

引用次数: 0

The Constitutional Role of Electoral Management Bodies: The Case of the Australian Electoral Commission 选举管理机构的宪法作用：以澳大利亚选举委员会为例

Federal Law Review Pub Date : 2020-09-10 DOI: 10.1177/0067205X20955097

Paul Kildea

引用次数: 1