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Relationship Between Constitution And Constitutionalism Pdf

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I largely agree with many of the conclusions and insights generated by his essay. To this I fully agree. As is evident from many of the points raised by Walker, in particular the assumption that the relationship between constitutionalism and democracy is iterative, which is to say that the meaning of these concepts changes within their contextual dynamics over time, our concern is with a topic which is historical in nature, as all politics is essentially historical.

Constitutions, constitutionalism and democracy are historical phenomena, both in practice and in the manner in which we can understand and theorize them. Hence, it is important to trace the historical constitutional configurations in discourse on constitutionalism and democracy.

I submit that these questions when posed in the context of globalization bedevil thought that remains within that tradition, making globalization intractable to constitutional analysis.

This provides, Walker asserts, the key to understanding how in its original conception modern constitutionalism came to stand in tension with democracy, in as much as the law and the constitution in the age of absolutism were an instrument rather than the source of sovereign power, whereas modern constitutionalism reversed this relationship.

If I understand the paper correctly, the beginning of this modern constitutionalism in this sense is historically located in the 18th century with the rise of constitutional documents towards the end of that century and in the early 19th century. There can be no doubt about the contrast between absolutism and modern constitutionalism as sketched, but I firstly submit that the tension antedates the 18th century and goes back to earlier roots, and secondly that the tension is inherent in the nature and object of constitutions.

To argue this, I recall that as an institutional arrangement democracy is not only about creating and modifying political decisions, but one manner of dealing with how one government is succeeded by another; but earlier forms of constitutionalism had the same concern. These leges are rules concerning their election or rules of inheritance — what we would now call constitutional legal norms.

The constitutional order was indeed thought of as incomplete without recognition of such values. In France as well as in the Low Lands religious liberty was a major issue, spawning the wars of religion in France and the Dutch Revolt in the Low Lands. In order to enable a broadening of the intellectual horizon with a view to the development of constitutional thought in the context of globalization, I insist on the distinction between two archetypal constitutional traditions.

The continental European constitutional tradition on which Walker leans, is mainly of French revolutionary pedigree. It has strong inclinations towards exclusivism and sovereigntist thought, based as it is on the nation and popular sovereignty.

The revolutionary constitution aims to do away with some crucial contrasting aspect of the past and forms a blueprint for the future; exclusiveness and autonomy are two of the core concepts within this constitutional paradigm. There is a different constitutional tradition as well.

That is the tradition in which constitutions are incremental, take up the historical events into an overall longer term constitution that codifies rather than modifies. The prototype is the British constitution. I would argue that the Netherlands constitutional system fits not into the French revolutionary type of constitution, but belongs to the British incremental type, while probably the Scandinavian constitutions, though not uniformly, are varieties of the evolutionary type.

Elsewhere I have argued that the EU constitution is bound also to belong to this type. Wouters, L. Verhey and Ph. Kiiver eds. It would seem that some of the first four of the seven dimensions of the relationship between democracy and constitutionalism as distinguished by Walker are articulated in a manner that is predicated on the particular continental European constitutional tradition. As this specific tradition has particular problems with globalization in its various manifestations including European integration within the context of the European Union , it would seem that reiterating them from the perspective of this tradition in the context of globalization will not yield relevant insights.

To the contrary, these problems do not apply to constitutions belonging to that other constitutional tradition, and hence these should not pose a problem for theorizing globalization either from the point of view of this alternative tradition. This is a question that cannot be answered for the British constitution. And the same goes for the Dutch, who have a series of prototypes on such different moments that it is impossible to tell which is the first.

Some say the prototype is that of the Grondwet Constitution of , as the Netherlands Ministry of the Interior claims, while others say it is the Constitution of And in fact, we have celebrated anniversaries of the Constitution of as if that is still the original of the present constitution as it celebrated its th anniversary; while recently we celebrated the anniversary of that of the fully revised Constitution of which changed its text unrecognizably as compared to that of only two clauses are the same except for spelling and punctuation.

The reason that the dates of and are disputed is because the amendment of was not in accordance with the procedure prescribed in the Constitution of The same is true of the Grondwet of These were no mere accidents inspired and justified by historical contingencies. The issue of the power to amend the constitution which is nearest to the original constitution making power is not taken to be a serious issue in present-day Dutch constitutional politics either.

Thus, with the exception of a handful of senators who in the end swallowed their criticisms by not acting upon them, nobody really cared much that the amendments eventually adopted in and 6 x Concerning the temporary replacement of ill and pregnant members of parliament and of provincial and municipal councils , the provision on public education in mixed public and private school premises Art. An Act of Parliament shall be passed stating that an amendment to the Constitution in the form proposed shall be considered.

The Lower House shall be dissolved after the Bill referred to in the first paragraph has been published. After the new Lower House has assembled , the two Houses of the States General shall consider, at second reading, the Bill referred to in the first paragraph. The Bill shall be passed only if at least two thirds of the votes cast are in favour. The irregular amendments have neither been based on nor led to revolts or any other constitutional stalemate, while the one revolt the separation of the Belgians has been quietly passed over.

The redemptive power of historical reception seems in these cases much stronger and more decisive than the question of the credentials of who had the original power. This is because in this constitutional tradition constitutions have, instead of the ambition to modify the polity, the more modest role of codifying changes. This proves the relative irrelevance of the pouvoir constituant argued from outside the classic continental European constitutional tradition.

These constitutions, after all, originated in a situation of which it is hard to say that they were determined by the democratic mandate of the makers of the constitution: they had none. Secondly, they were neither guided by legally valid substantive constitutionalist rules nor by principles guiding their operation. There is no empirical necessity that the incompleteness of democracy is supplemented by constitutionalist rules or principles either.

After all, even if there were a truly revolutionary, constitutional moment, then that is the moment at which the makers of the constitution are unbound by previous constitutional arrangements, rules and principles.

This point is central in the controversy among German constitutional lawyers as to whether the so-called Ewigkeitsklausel eternity or perpetuity clause of the Grundgesetz also binds the makers of the true Constitution Verfassung provided for under Article of the Grundgesetz. Article Grundgesetz states that the Grundgesetz ceases to be valid on the day on which a Verfassung enters into force which has been adopted by a free decision of the German people as Verfassungsgeber a true pouvoir constituant.

Innerhalb der Ordnung des Grundgesetzes jedenfalls sind die Staatsstrukturprinzipien des Art. In the case law of the BVerfG the democracy principle expressed in Article 20 and 38 GG entails the requirement of the continued existence of substantive powers of the Bundestag German Parliament under the EU Treaties. If this, as the BVerfG suggests in the same judgment, could only be brought about by an act of the German people under Article GG, then this amounts to saying that the democracy principle can be set aside by the Verfassungsgeber.

Saying this is implying that democratic thought as well as constitutionalist thought are part of and embedded in broader moral discourses. The greatest challenge of globalization to national constitutional orders is the issue of democracy.

Clearly, globalization has by definition challenged the territorial dimensions of government inherent in most state forms of government. As I see it, the major problem in this connection is the representational issue. This cannot be disengaged from the issues concerning membership and stakeholdership, which are inextricably wound up with issues of demarcation in the globalizing context I will remark on this below.

Many questions arise that are very hard to answer. Who is responsible? Who is accountable and towards whom? Within discrete and mutually exclusive polities this may provide a satisfactory manner of fitting in ideas typical for the continental European tradition, like that of the popular will and popular sovereignty. Is the empowerment of the EU institutions, which have a remit that at least geographically is larger than that of any of the Member States, to be classified as delegation of existing powers originally residing in Member States, or is it the attribution of new powers that the Member States did not originally possess?

It may well be argued that it is the latter because no Member State was able to take decisions binding on the others, whereas the EU institutions can. Taking this view, I surmise, would run counter to typically continental European constitutional approaches which cannot go beyond the idea that power can only derive from a delegating act of a people or a nation, as is confirmed both by the Lissabon Urteil 17 x See n.

This state of affairs may be intellectually dissatisfying, but it is practically much to be preferred over an accountability that rigidly adheres to principal-agent relations as privileged channels of communication. In this regard, it is my opinion that bounded communities though with variously defined boundaries can never be dispensed with either in principle or in practice.

This is for a number of reasons. Secondly, much of decision-making in or generated in non-state contexts requires implementation in state contexts, factually or because the state possesses means for enforcement which are lacking in non-state contexts.

Walker argues, correctly, that state constitutionalism as a response to the double incompleteness of state democracy is no more than a particular and ultimately contingent architectural formation. Reaching these conclusions, I submit, is not only possible by reference to a Taylorian moral order of modernity — appealing as this foundational approach is — but can also be achieved by means of a broader historical understanding of the varieties of available constitutional traditions, which do not all conceive of political power and order in a context of exclusive autonomous state polities.

The relationship between constitutionalism and democracy remains open, ambivalent and contingent on the varieties of orders and the mutual relationships between these orders also on that analysis.

Report an error Suggestions? Eleven Journals. Username Password Forgot your password? Netherlands Journal of Legal Philosophy Discussion The Globalizing Turn in the Relationship Between Constitutionalism and Democracy Some Reiterations from the Perspective of Constitutional Law Keywords constitutional law , constitutionalism , historic constitutions , revolutionary constitutions , pouvoir constituant irrelevance of Authors Leonard F.

This article has been viewed times. This article been downloaded 0 times. Suggested citation Leonard F. Leonard F. Dit artikel wordt geciteerd in. Noten 1 Walker, in this issue, English issues. Netherlands Journal of Legal Philosophy.

Difference Between Constitution and Constitutionalism

Constitution consists of arrangements that determine the political, legal and social structures by which the society is to be governed. Constitutional provisions are considered to be fundamental law. Constitutional law is supreme law in our country. If the constitutional law itself is inadequate then the rule of law and democracy of the country will be affected. The modern structure of India is divided into three organs i.

Reshaping the British Constitution pp Cite as. Britain has been going through a phase of profound constitutional change in the wake of the measures enacted since in pursuance of the reform agenda of the Blair Government. In particular those closely involved in the politics of constitutional reform regularly assert the crucial importance of constitutional modernisation for the future prosperity and political harmony of the country. This stems in part from the fact that the British constitution is not to a large extent expressed in the categories of binding and potentially enforceable legal norms, but derives instead mainly from the continuing practices of institutions and the conclusions drawn from them. This confers upon it something of the elusiveness inherent in all traditional codes of behaviour as well as rendering it a highly political matter, so much so that it is often impossible to distinguish what purports to be a constitutional statement from what is in fact no more than an assertion of a passing political preference. It is precisely because there is so much uncertainty and ambiguity in talking about the British constitution that it is desirable to preface any study of what have so far been regarded as the principal features of that constitution and of the ways in which it is now being changed with some consideration of constitutions in general, of what is involved in having a constitution, and with that mode of thinking about the ordering of social life which has often been referred to as constitutionalism.


Similar lessons can be drawn from other countries with a codified constitution. Relations between the French president and his prime minister depend very much.


Constitutions and Constitutionalism

I largely agree with many of the conclusions and insights generated by his essay. To this I fully agree. As is evident from many of the points raised by Walker, in particular the assumption that the relationship between constitutionalism and democracy is iterative, which is to say that the meaning of these concepts changes within their contextual dynamics over time, our concern is with a topic which is historical in nature, as all politics is essentially historical.

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Difference Between Constitution and Constitutionalism

This article discusses the following: realism and idealism in constitutional theory; drill and discipline; the paradox of limited power; monarchical constitutions; cognitive constitutionalism; insulation through abdication; joint agency and corruption; constitutionalism and democracy; and judicial review. Keywords: constitutional theory , limited power , monarchical constitutions , cognitive constitutionalism , abdication , democracy , judicial review. Introduction Realism and Idealism in Constitutional Theory

This article explains the concept of constitutionalism and how it has been applied in the Indian Constitution. Constitutionalism is a philosophy which is essential for a democratic setup. It ensures that the freedoms of the individual are given primacy and the State does not encroach upon the liberty of the citizen.

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I largely agree with many of the conclusions and insights generated by his essay. To this I fully agree. As is evident from many of the points raised by Walker, in particular the assumption that the relationship between constitutionalism and democracy is iterative, which is to say that the meaning of these concepts changes within their contextual dynamics over time, our concern is with a topic which is historical in nature, as all politics is essentially historical. Constitutions, constitutionalism and democracy are historical phenomena, both in practice and in the manner in which we can understand and theorize them. Hence, it is important to trace the historical constitutional configurations in discourse on constitutionalism and democracy.

However this doctrine is far from a coherent set of normative propositions. Rather it consists of a dynamic but loose cluster of ideas and principles formulated in the course of the eighteenth century, the diverse interpretation of which spawned different institutional arrangements in national contexts. These conceptual ambiguities surrounding constitutionalism obfuscate the diverse meanings of the constitution. While the constitution has been traditionally regarded as an emanation of constitutionalism, their symbiotic relationship was far from evident in the second half of the twentieth century. A proliferation of written constitutions without an accompanying intent to embrace the ideas of constitutionalism in new states provoked anguish amongst constitutional theorists. This disillusionment, however, reflected a lack of understanding of the multiple role constitutions play in different polities. In new states, the constitution is developed not only to limit but also to create and organise the state.

Constitutionalism form the core of good government in the modern democratic world to check on the powers of the different organs of government and the protection of liberty and fundamental rights of individuals within that sovereign territory. All efforts are made by the developed and the developing countries in upholding the rule of law, which are quaranteed through the constitution, to promote democracy for a just and fair society.

The concepts of constitution and constitutionalism refer to the legal framework of a country. Constitutionalism recognizes the need of limiting concentration of power in order to protect the rights of groups and individuals. In such system, the power of the government can be limited by the constitution — and by the provisions and regulations contained in it — but also by other measures and norms. In order to understand the two concepts — as well as their similarities and differences — it is important to understand their history and evolution.

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Academic and policy engagements with constitutions and constitutionalism have the State, and thus maintains a proper connection between the different.

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