International Journal of Constitutional Law最新文献

{"title":"Dialogic incrementalism in deeply divided societies","authors":"Shamshad Pasarlay","doi":"10.1093/icon/moae042","DOIUrl":"https://doi.org/10.1093/icon/moae042","url":null,"abstract":"\u0000 A number of the world’s “deeply divided” societies are mired in violent conflicts which often grow out of historic tensions between the nation’s ethno-religious or linguistic groups. Elites within these societies tried to end these conflicts by drafting a constitution that would address the underlying grievances which fuel intergroup conflict. In many cases, however, rather than promoting peaceful political engagement, the process of constitution drafting seemed only to aggravate existing conflicts and create fresh sources of political unrest. Some deeply divided polities have avoided these worst-case outcomes by deploying an “incrementalist” approach to making constitutions. This approach asserts that deeply divided societies need not, and indeed should not, try to answer all constitutional questions. Rather, they can defer the most divisive questions for later resolution. By doing this, incrementalism focuses attention on issues over which some measure of agreement can be forged and enables constitutional ratification under fraught conditions. Critics have, however, identified two real problems with the incrementalist approach: first, once ethnopolitical elites agree to defer important questions, new developments may empower one group and allow it to stop good-faith negotiations and impose its preferred constitutional settlements. Second, the constitution’s open questions may not be resolved in a timely manner, and the lingering ambiguities can produce fresh sources of conflict. This article asks whether one can design constitution-making processes in a way that harvests the benefits of incrementalism while avoiding the problems associated with it. The article suggests that the experiences of Afghanistan and Iraq indicate that there is a particular type of constitutional incrementalism which is more likely than others to accomplish this. It describes three Afghan constitutions, each of which embraced, implicitly, the logic of incrementalism. Of these, however, only one allowed constitutional questions to be addressed in a dialogic fashion. By imposing a process of what I call “dialogic incrementalism,” Afghanistan’s 1931 Constitution helped generate a stable constitutional order. Further, the article suggests that the drafting of Iraq’s 2005 Constitution shows that dialogic incrementalism can be a conscious design option.","PeriodicalId":514482,"journal":{"name":"International Journal of Constitutional Law","volume":"9 12","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141920817","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}

{"title":"Democracy and defections","authors":"Madhav Khosla, Milan Vaishnav","doi":"10.1093/icon/moae037","DOIUrl":"https://doi.org/10.1093/icon/moae037","url":null,"abstract":"\u0000 Within comparative constitutional law, there is an emerging consensus that political fragmentation has weakened political parties and hindered the functioning of legislative bodies. This article examines legal efforts to curb fragmentation in parliamentary systems by prohibiting floor crossing, or “defections”—a constitutional approach that concentrates power within party leaders. It conducts a detailed case study of India, exploring what is arguably the most extensive experiment in anti-defection law and its impact on accountability and representation. The article goes on to analyze similar laws in Israel and South Africa, highlighting the challenges of self-regulation. After evaluating the limitations of narrow anti-defection laws—such as the one in Pakistan—it proposes that the drawbacks of legislating party unity through formal defection regulation may prompt a reconsideration not only of legislatures but also political parties and political polarization. While some scholars have viewed attempts to stem fragmentation as a solution for limiting polarization, this article suggests the opposite: sharpening polarization, when coupled with norm-based internal party controls, may well tame the excesses of fragmentation, especially in non-programmatic multiparty systems. Although there are difficult tradeoffs here, as polarization can have independent (adverse) effects, the broader lessons of anti-defection laws deserve to be reckoned with. Ultimately, however, what the widespread adoption of anti-defection laws might primarily reveal is the nature of our faith—or lack thereof—in the promise of a certain form of parliamentary politics.","PeriodicalId":514482,"journal":{"name":"International Journal of Constitutional Law","volume":"21 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141646174","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}

{"title":"Marcelo Lozada Gomez, Review of César Rodríguez-Garavito, Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action","authors":"Marcelo Lozada Gómez","doi":"10.1093/icon/moae028","DOIUrl":"https://doi.org/10.1093/icon/moae028","url":null,"abstract":"","PeriodicalId":514482,"journal":{"name":"International Journal of Constitutional Law","volume":" 41","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140999898","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}

{"title":"Ruth Houghton, Review of Ruth Rubio-Marín, Global Gender Constitutionalism and Women’s Citizenship: A Struggle for Transformative Inclusion","authors":"Ruth Houghton","doi":"10.1093/icon/moae024","DOIUrl":"https://doi.org/10.1093/icon/moae024","url":null,"abstract":"","PeriodicalId":514482,"journal":{"name":"International Journal of Constitutional Law","volume":"30 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140659016","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}

{"title":"State-centered liberal constitutionalism: An underappreciated legacy of “China’s Constitutional Court”","authors":"Zhaoxin Jiang","doi":"10.1093/icon/moae021","DOIUrl":"https://doi.org/10.1093/icon/moae021","url":null,"abstract":"","PeriodicalId":514482,"journal":{"name":"International Journal of Constitutional Law","volume":"140 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140369303","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}

{"title":"Antoine Parry, Review of Sara Iglesias Sánchez & Maribel González Pascual, eds. Fundamental Rights in the EU Area of Freedom, Security and Justice","authors":"Antoine Parry","doi":"10.1093/icon/moae014","DOIUrl":"https://doi.org/10.1093/icon/moae014","url":null,"abstract":"","PeriodicalId":514482,"journal":{"name":"International Journal of Constitutional Law","volume":"77 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140251686","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}

{"title":"The “constitutional court of China”? Setting the record straight","authors":"Ming‐Sung Kuo","doi":"10.1093/icon/moae008","DOIUrl":"https://doi.org/10.1093/icon/moae008","url":null,"abstract":"","PeriodicalId":514482,"journal":{"name":"International Journal of Constitutional Law","volume":"48 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140444815","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}

{"title":"El proceso constituyente en Islandia: Un caso de éxito sin final feliz","authors":"R. Núñez","doi":"10.1093/icon/moad083","DOIUrl":"https://doi.org/10.1093/icon/moad083","url":null,"abstract":"\u0000 The drafting of the new constitution in Iceland has been the subject of numerous studies. Most of them highlight the success of the initiative, pointing to the set of innovative mechanisms incorporated into the process. However, we cannot ignore that the process did not achieve its goal of changing the Constitution. The reasons, which can serve as lessons for other processes of this nature, can be found in the initiation of the project during a deep crisis; the lack of clear objectives; the absence of a clear definition of tasks; the confusion between participation and deliberation, which generated some expectation confusion and progressive disillusionment, and the gap between the mobilized society and public representatives.","PeriodicalId":514482,"journal":{"name":"International Journal of Constitutional Law","volume":" 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139789543","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}

{"title":"El proceso constituyente en Islandia: Un caso de éxito sin final feliz","authors":"R. Núñez","doi":"10.1093/icon/moad083","DOIUrl":"https://doi.org/10.1093/icon/moad083","url":null,"abstract":"\u0000 The drafting of the new constitution in Iceland has been the subject of numerous studies. Most of them highlight the success of the initiative, pointing to the set of innovative mechanisms incorporated into the process. However, we cannot ignore that the process did not achieve its goal of changing the Constitution. The reasons, which can serve as lessons for other processes of this nature, can be found in the initiation of the project during a deep crisis; the lack of clear objectives; the absence of a clear definition of tasks; the confusion between participation and deliberation, which generated some expectation confusion and progressive disillusionment, and the gap between the mobilized society and public representatives.","PeriodicalId":514482,"journal":{"name":"International Journal of Constitutional Law","volume":"37 9","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139849423","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}

{"title":"Populismo constituyente, democracia y promesas incumplidas: el caso de la Convención Constitucional Chilena (2021-2022)Constituent Populism, Democracy, and Failed Promises: The Case of the Chilean Constitutional Convention (2021-2022)","authors":"Samuel Issacharoff, Sergio Verdugo","doi":"10.1093/icon/moae003","DOIUrl":"https://doi.org/10.1093/icon/moae003","url":null,"abstract":"\u0000 Mechanisms of popular participation, such as constitutional conventions and citizen assemblies, emerge as a near-universal canon of every political discussion on how constitutions should change. This article offers a cautionary approach to the way these participatory mechanisms work in constitution-making. In democratic contexts including populist narratives and representative institutions functioning in flawed ways, constitution-making can fail not simply despite the existence of participatory mechanisms but in part because of them. We identify two types of failures. First, the authoritarian failure, which consists of constitution-making processes that lead to authoritarian outcomes or become part of democratic backsliding or abusive processes. Second, the activation failure, by which constitutions are not passed. We claim that this later failure can likely occur when reforms attempt to bypass established, functioning institutional actors, whatever their flaws, and use a comparative approach to the Chilean Constitutional Convention (2021-2022) as an example.","PeriodicalId":514482,"journal":{"name":"International Journal of Constitutional Law","volume":"32 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139800111","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}