The renewed interest on political realism can offer a new reading of the traditional dichotomy between normative and realist conception of constitutionalism. The purpose of this article is to analyse ...this renewed discussion, especially by focusing on the relationship between “political realism” and “political constitutionalism,” in the light of some theorists and authors—such as Richard Bellamy and Jeremy Waldron. After a brief introduction in which political realism will be discussed, especially through Bernard Williams’ reinterpretation, the article proposes a rereading of democratic constitutionalism from the classical dichotomy between normativism and realism in political theory. The focus will be set on three key issues: 1. Richard Bellamy’s constitutional theory in a realist perspective; 2. An insight of legal constitutionalism under a normative banner; 3. A brief conclusion in which the risks of a majoritarian and populist constitutionalism will be discussed.
Constitutions and other legal frameworks are expected to ensure the protection of the fundamental and collective rights of citizens. In this respect, the regulation of political parties is a global ...phenomenon, which symbolises multi-party democracy, the rule of law and good governance. This article examines the phenomenon of the constitutional and legal regulation of political parties in the Central African Republic (hereafter CAR) and Senegal, two francophone countries with different trajectories and experiences of multi-party democracy. It identifies possible challenges and shortcomings of the regulation of political parties in the two countries, especially in relation to the actual implementation of the existing national frameworks. The article attempts to suggest possible frameworks for an effective implementation of the constitutional and legal rights of political parties, including the constitutionalisation of the enforcement mechanisms, which would undeniably protect the position of political parties in constitutional democracies. In conclusion, the article highlights the role of an independent judiciary in the promotion and protection of the constitutional and legal status of all political parties in the CAR and Senegal.
durante las últimas dos décadas Venezuela ha estado sometida a un proceso de cambios políticos muy importantes. En tal lapso se ha aprobado la Constitución de la República Bolivariana de Venezuela ...(1999) y luego han tenido lugar diversos intentos orientados a reformarla y enmendarla. Además, su texto ha sido interpretado mediante los diferentes mecanismos de control constitucional que ella prevé. Sin embargo, el Tribunal Supremo de Justicia venezolano desde el 2015 ha producido, en sus diferentes Salas, al menos cien sentencias en las cuales se ha influido progresivamente sobre las competencias o atribuciones del poder legislativo; es decir, la Asamblea Nacional. Este trabajo pretende examinar si la sentencia 001 de la Sala Electoral del Tribunal Supremo de Venezuela, del siete de diciembre de 2016 y sus subsecuentes resoluciones judiciales, configuran un caso del llamado ‘constitucionalismo abusivo’ que afecta el derecho fundamental a la tutela judicial y efectiva de las personas afectadas por el citado precedente constitucional. La relevancia de tal precedente es tal que se podría afirmar que en él se consuma la debacle institucional venezolana. Con todo, esa decisión judicial no cayó del cielo, sino que es el resultado final de un ejercicio abusivo de la función judicial que ha emprendido el Tribunal Supremo venezolano desde hace años, como se argumentará en el presente trabajo.
The practice of virginity testing in southern Africa has caused a conflict between advocates of culture and proponents of universal human rights. Recently, the 'virginity bursaries', also known as ...the 'maiden bursaries', caused an outcry from proponents of universal human rights, who declared the criterion (virginity testing) used for bursaries unlawful, discriminatory and unconstitutional. On the other side of the debate, cultural relativists defended the virginity bursaries by outlining moral and pedagogical justifications for virginity testing. The arguments by both sides highlight that it is not easy to resolve the discursive and ideological questions around virginity testing. As a result, drawing from Pierre Bourdieu's theory of contested fields and 'habitus', the aim of this philosophical article is to explore the discourses that surround virginity testing - the cornerstone of the virginity bursaries - as a means of illustrating the conflicting positions within gender studies about traditional/cultural practices. Our aim is neither to provide an empirical account of the experience of virginity testing, nor to resolve the debate, but to explore some of the possible approaches to virginity testing and the major philosophical conflicts between human rights and traditionalist approaches.
Los diferentes significados de populismo no hacen sino certificar la necesidad de redefinir la democracia. Y aquí no valen los plañideros: el populismo ha vuelto para quedarse. Por eso debemos ...esclarecer sus «razones»; y -desde la izquierda posmarxista- nada mejor que contrastar la obra de Laclau y Mouffe. También el repaso a las diferentes maneras de entender los movimientos populistas nos permitirá asomarnos a su construcción del pueblo frente al antipueblo. Pero será el constitucionalismo el que nos resuelva la paradoja de la democracia: de un lado, poder popular absoluto; de otro, gobierno para los integrantes del pueblo y, con ello, límite jurídico al ejercicio del poder. De poco sirve decantarnos por una concreta definición del populismo (ideología blanda, discurso, estrategia política, patología), pero sí cabe observar su simbiosis con la democracia. Y, precisamente, con la máxima vox populi, vox dei, la redención populista se convierte en su enemigo más mortífero. Desde aquí, el populismo o se reeduca con su anclaje constitucional en la dignidad de la persona y en el rule of law, o desde la totalización popular del poder y su encarnación personalizada, la democracia tiene los días contados.
In an age of profound democratic anxiety, significant academic attention has been paid to the crisis in constitutional democracy. Constitutional lawyers, however, are still grappling with the ...relationship between public law and the current actual and perceived threats facing constitutional democracy in countries worldwide. This Introduction considers how the articles in this special volume address three pressing questions. How should we should define the current threats to democracy, and populist challenge? Second, how might public law be a potential cause or contributing factor? Third, how might public law still provide some answers to the contemporary challenges to constitutional democracy? In Prof Dixon’s view, constitutional democracy is a good worth preserving and there are models of at least relative “success” in the current constitutional universe. But Prof Dixon shares the view of many contributors to the special volume that the challenge is immense, and urgent, and that there are no easy solutions.
The article seeks to demonstrate how traditional African approaches to justice pervade the Child Justice Act 75 of 2008 (CJA) in ways that provide young offenders the possibility to have their ...dignity restored, by affording them an opportunity to take responsibility for their wrongful conduct. The article argues that this approach to justice underscores African values of Ubuntu and restorative justice in addressing offending in terms of the CJA. In the final analysis, the author argues that the successful implementation of these approaches will depend partly on how innovative officers in judicial proceedings are in using African models of justice, the values of the Constitution, and the lived experiences of children in conflict with the law.
This article puts in the centre the increasingly notable discrepancy between constitutional democracy as a form and its actual practice in Central Europe, with a particular focus on Slovenia. It does ...so by following Martin Krygier who has long insisted with regard to the rule of law that "we would do well to explore the sociology of the rule of law." As he has noted, "this is a social science that does not quite yet exist". As a result, especially lawyers have satisfied themselves with studying the rule of law in conceptual terms, limiting themselves to drawing a laundry list of formal requirements that an ideal concept of the rule of law should meet here and there, indeed everywhere. What has been too often neglected, however, by academics and institutional actors alike, is a social dimension of the rule of law. The formal legal-institutional architecture of the rule of law has too often ignored the broader social context, wherein, rather than in the legal institutions themselves, lies "a great deal that matters most to whether law can rule." The same conclusion as to the rule of law can be applied to a wider notion of constitutional democracy. Lest we are left with a partial, superficial or even flawed understanding of the concept, our focus must be centred on the constitutive social considerations of constitutional democracy. The latter's sociological dimension shall not remain outside legal theory, as it has been too often the case so far. To prevent that this article explores the following question: what is it in the Central European societies, such as Hungary, Poland and Slovenia, that inhibits the formal infrastructure of constitutional democracy to deliver its intended effects in practice? In pursuit of the answers, the article will be broken down into three parts. First, we are going to explain the concept of constitutional democracy as it has developed both in the Slovenian constitutional practice and in theory. Having passed the conceptual threshold, the next part will outline the main elements of the sociology of constitutional democracy, as applied to the Slovenian case. Of course, due to the space constraints the discussion will be necessarily schematic and will be used to respond to the main research question of this article, which boils to the identification of the main social factors that hinder the actual emergence of constitutional democracy in Slovenia. Finally, the article will close down with some normative proposals for improving the state of constitutional democracy in Central Europe in the not so distant future., This article puts in the centre the increasingly notable discrepancy between constitutional democracy as a form and its actual practice in Central Europe, with a particular focus on Slovenia. It does so by following Martin Krygier who has long insisted with regard to the rule of law that “we would do well to explore … the sociology of the rule of law.” As he has noted, “this is a social science that does not quite yet exist”. As a result, especially lawyers have satisfied themselves with studying the rule of law in conceptual terms, limiting themselves to drawing a laundry list of formal requirements that an ideal concept of the rule of law should meet here and there, indeed everywhere. What has been too often neglected, however, by academics and institutional actors alike, is a social dimension of the rule of law. The formal legal-institutional architecture of the rule of law has too often ignored the broader social context, wherein, rather than in the legal institutions themselves, lies “a great deal that matters most to whether law can rule.” The same conclusion as to the rule of law can be applied to a wider notion of constitutional democracy. Lest we are left with a partial, superficial or even flawed understanding of the concept, our focus must be centred on the constitutive social considerations of constitutional democracy. The latter’s sociological dimension shall not remain outside legal theory, as it has been too often the case so far. To prevent that this article explores the following question: what is it in the Central European societies, such as Hungary, Poland and Slovenia, that inhibits the formal infrastructure of constitutional democracy to deliver its intended effects in practice? In pursuit of the answers, the article will be broken down into three parts. First, we are going to explain the concept of constitutional democracy as it has developed both in the Slovenian constitutional practice and in theory. Having passed the conceptual threshold, the next part will outline the main elements of the sociology of constitutional democracy, as applied to the Slovenian case. Of course, due to the space constraints the discussion will be necessarily schematic and will be used to respond to the main research question of this article, which boils to the identification of the main social factors that hinder the actual emergence of constitutional democracy in Slovenia. Finally, the article will close down with some normative proposals for improving the state of constitutional democracy in Central Europe in the not so distant future.
Debate about the TRC has become necessary in South Africa today, 20 years since the final Report was handed over to government on 29 October 1998. Assessment of its efficacy and longer-term value is ...being undertaken, unfortunately, within an environment of intense disillusionment about the promise of constitutional democracy. This paper sets out the environment in which the TRC was established in 1996, its legal and constitutional frameworks, its achievements for creating a climate of reconciliation, for granting amnesty to perpetrators of human rights violations, and for setting a reparations framework. South Africans are conscious of grinding poverty and inequality, pervasive racism, and unfulfilled aspirations of the democratic settlement of 1994. What value, then was the TRC? This paper attempts a fair assessment, seeks to be honest about its grandiose claims, and undertakes a philosophical, political and ethical analysis of its achievements. Drawing on many studies on the TRC it seeks to chart a more rational course than some, noting that circumstances in Africa are such that the TRC is being revisited, The Gambia, for example, being the latest country that has introduced the TRC. Others may follow suit: Zimbabwe, the Democratic Republic of Congo, Burundi, to name a few.
Worldwide democratic institutions are threatened by right-wing reactions. The fear for a loss of power brings about a paradigm shift from democratic sensitivity to autocratic control. Political ...leaders tend to become more reactionist, populistic and despotic. Conservative reactions hamper processes of democratisation. Besides the migrant crisis, democracy in South Africa staggers under escalating forms of state capture, fraud, violence, mismanagement and undisciplined social behaviour. Plato’s exposition of the ‘democratic type’ and his criticism of Athenian populism are used to reveal possible weaknesses in our current democratic dispensation. Within the political arena, voices for a new and fresh approach to processes of democratisation is assessed and discussed. Thus, the reference to a plea for constitutional democracy (Helen Zille), and cooperative democracy that should include radical attitudinal change (Cyril Ramaphosa). It is argued that an anthropology, based on the passio Dei, can provide a spiritual basis for a new ethos and thus contribute to the establishment of a compassionate habitus of caring. In this regard, practical theology should focus on an ecclesial presence that is ‘redemptively pervasive’ and directed by the bowel categories of ta splanchna.
PDF
