This article aims to explore the relationship between unamendability and constitutional resilience. Inspired by Roznai’s theory on the limits of amendment powers, this article seeks to examine how such limits may function as a mechanism of constitutional resilience exploring how unamendability may impact the resilience of a constitution, allowing it to withstand crises while retaining its core functions. The key question is whether entrenchment enhances resilience through its protective shield or, by contrast, fetters resilience by foreclosing adaptability – what does not bend often breaks. The complex relationship between unamendability and constitutional resilience unfolds in the context of different amendment patterns. |
Search result: 94 articles
Human Rights Literature Reviews |
Hungary |
Journal | East European Yearbook on Human Rights, Issue 1 2019 |
Authors | Alexandra Sipos PhD |
Author's information |
Article |
Constitutional Resilience and UnamendabilityAmendment Powers as Mechanisms of Constitutional Resilience |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | constitutional change, constitutional resilience, unamendability, constitutional identity |
Authors | Xenophon Contiades and Alkmene Fotiadou |
AbstractAuthor's information |
Article |
From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | unconstitutional constitutional amendment, constitutional law, constitutional principles, constituent power, Israel, judicial review |
Authors | Suzie Navot and Yaniv Roznai |
AbstractAuthor's information |
Israel has no one official document known as ‘the Constitution’ and for nearly half a century was based on the principle of parliamentary sovereignty. Still, since the ‘constitutional revolution’ of the 1990s, Israel’s supreme norms are expressed in its basic laws and laws are subject to judicial review. This situation is the result of the enactment of two basic laws dealing with human rights in 1992 – which included a limitation clause – and of a judicial decision of monumental significance in 1995, the Bank Hamizrahi case. In that decision, the Supreme Court stated that all basic laws – even if not entrenched – have constitutional status, and therefore the currently accepted approach is that the Knesset indeed dons two hats, functioning as both a legislature and a constituent authority. The novelty of the Bank Hamizrahi decision lies in its notion of a permanent, ongoing constituent authority. The Knesset actually holds the powers of a constitutional assembly, and legislation titled ‘Basic-Law’ is the product of constituent power. Though it is neither complete nor perfect, Israel’s constitution – that is, basic laws – addresses a substantial number of the issues covered by formal constitutions of other democratic states. Furthermore, though this formal constitution is weak and limited, it is nonetheless a constitution that defends the most important human rights through effective judicial review. |
Article |
Limited Constitutional Amendment Powers in Austria? |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | total revision, amendment, constitutional principles |
Authors | Manfred Stelzer |
AbstractAuthor's information |
In Austria, constitutional amendments can be attained rather easily. A two-thirds majority in parliament allows for engineering constitutional amendments. The Austrian constitution only knows one exception to its flexibility: the principles of the constitution (‘Verfassungsprinzipien’). When the constitutional principles were to be affected by formal amendment in terms of a ‘total revision’ (‘Gesamtänderung’), a higher threshold needs to be met in order to engineer an amendment. In addition to a two-thirds majority in parliament, a referendum is required. Two questions are of particular interest: First, when does a constitutional amendment amount to a total revision and what are its limits? Second, and even more important, which core principles are recognized by the Austrian constitution and what is their content? These questions may be briefly outlined. |
Article |
Unamendability and Constitutional Identity in the Italian Constitutional Experience |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | Unamendability, constitutional identity, republic, counterlimits, European integration, Italy |
Authors | Pietro Faraguna |
AbstractAuthor's information |
The article explores the historical roots of the explicit unamendable clause(s) in the Italian Constitution. Following, it explores the scholarly debate over the interpretation of unamendable provisions. The article investigates theories of implicit unamendability of the Italian Constitution, and, in particular, it analyses the crucial role played by the Constitutional Court of Italy (ICC) and the principles that characterize Italian constitutional identity. Furthermore, the article explores the other side of constitutional identity, namely the theory of ‘counterlimits.’ The ICC specified that constitutional identity not only sets a limit to constitutional amendment powers but also sets ‘counterlimits’ to the entry of external norms (i.e., supranational and international law) in the domestic legal system. Finally, the article draws some conclusions and argues that the two sides of constitutional identity, although legally and logically independent, mutually reinforce each other and, ultimately, reinforce the counter-majoritarian nature of unamendability. |
Article |
Constitutional Narcissism on the Couch of PsychoanalysisConstitutional Unamendability in Portugal and Spain |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | unamendable/ eternity clauses, de jure and de facto constitutional change, constitutional narcissism, foundational design, helicopter founding fathers, constitutional alma mater |
Authors | Catarina Santos Botelho |
AbstractAuthor's information |
Comparing the Portuguese Constitution, which has the longest unamendable clause in the world, with the silence of the Spanish Constitution regarding the language of eternity is indeed a fascinating exercise. Each state’s quantum of constitutional change seems to be quite different. One can wonder how two neighbouring states that share a heavy history of right-wing dictatorships and transitioned to democracy forty years ago opted for such dissimilar constitutional designs. However, appearances are often misleading, and an effort should be done to unveil this curious mismatch. |
Article |
A View on the Future of Judicial Review of Constitutional Amendments in TurkeyAn Invitation to Judicial Dialogue |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | basic structure doctrine, Constitutional Court of Turkey, constitutional identity, judicial dialogue, immunity amendment, unconstitutional constitutional amendments |
Authors | Ali Acar |
AbstractAuthor's information |
In this article, I discuss and analyse the Turkish case concerning judicial review of constitutional amendments in light of a recent decision by the Constitutional Court of Turkey (CCT). In the said decision, the CCT rejected carrying out judicial review over a controversial constitutional amendment, which lifted MPs’ parliamentary immunity. This decision urges to consider its implications for the possible future cases. I refer to comparative constitutional law with the hope to shed more light on the Turkish example and grasp it comprehensively. In this respect, I illustrate the most crucial arguments developed by the Supreme Court of India (SCI), the Bundesverfassungsgericht (BVG), and the Conseil Constitutionnel (FCC) in their case law. Based on the comparative account, I draw some lessons for the CCT and invite it to get into a judicial dialogue with other supreme/constitutional courts with regard to the issue. |
Article |
Judicial Review of Constitutional Amendments in TurkeyThe Question of Unamendability |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | judicial review of constitutional amendments, constitutional unamendability, judicial activism, competitive authoritarianism, abusive constitutionalism |
Authors | Ergun Özbudun |
AbstractAuthor's information |
This article deals with the judicial review of constitutional amendments, which has been a hotly debated constitutional and political issue in Turkey, particularly with regard to the unamendable provisions of the constitution. Since its creation by the Constitution of 1961, the Turkish Constitutional Court has followed a markedly activist and tutelarist approach regarding this issue and annulled several constitutional amendments arguing that they violated the unamendable provisions of the Constitution. Recently, however, the Court adopted a self-restraining approach. This shift can be explained as part of the political regime’s drift towards competitive authoritarianism and the governing party’s (AKP) capturing almost total control over the entire judiciary. |
Article |
Transitional Constitutional Unamendability? |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | transitional constitutionalism, constitutional unamendability, decline of constitutional democracy, constitution-making in Hungary, the Hungarian Constitutional Court |
Authors | Gábor Halmai |
AbstractAuthor's information |
This article discusses the pros and cons for a suggestion to use unamendable provisions in transitional constitutions to protect the integrity and identity of constitutions drafted after a democratic transition. The presumption for such a suggestion could be that most democratic constitution-making processes are elite-driven exercises in countries with no or very little constitutional culture. The article tries to answer the question, whether in such situations unamendable constitutional provisions can help to entrench basic principles and values of constitutionalism with the help of constitutional courts reviewing amendments aimed at violating the core of constitutionalism. The article investigates the experiences of some backsliding constitutional democracies, especially Hungary, and raises the question, whether unamendable constitutional provision could have prevented the decline of constitutionalism. |
Article |
|
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | constitutional amendments, constitutional law, constitutional politics, constitutionalism, entrenchment clauses, eternity clauses |
Authors | Michael Hein |
AbstractAuthor's information |
‘General entrenchment clauses’ are constitutional provisions that make amendments to certain parts of a constitution either more difficult to achieve than ‘normal’ amendments or even impossible, i.e., legally inadmissible. This article examines the origins of these clauses during the American Revolution (1776-77), their migration to the ‘Old World’, and their dissemination and differentiation on the European continent from 1776 until the end of 2015. In particular, the article answers three questions: (1) When, and in which contexts, did general constitutional entrenchment clauses emerge? (2) How have they migrated to and disseminated in Europe? (3) Which constitutional subjects do such clauses protect, and thus, which main functions do they aim to fulfil? |
Article |
Civil Society Perspectives on the Criminal Chamber of the African Court of Justice and Human Rights |
Journal | African Journal of International Criminal Justice, Issue 1-2 2018 |
Keywords | Malabo Protocol, African Court, Criminal Chamber, International and Transnational Crimes, African Union |
Authors | Benson Chinedu Olugbuo LLB BL LLM Ph.D. |
AbstractAuthor's information |
In June 2014, African Heads of States and Governments adopted the Protocol on the Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights in Malabo, Equatorial Guinea. The Malabo Protocol seeks to expand the jurisdiction of the African Court to international and transnational crimes. This development raises fundamental issues of jurisdiction, capacity, political will and regional complementarity in the fight against impunity in the African continent. The paper interrogates the role of Civil Society Organisations in the adoption and possible operationalisation of the Court in support of the efforts of the African Union to end human rights abuses and commission of international and transnational crimes within the continent. |
Article |
The European Court of Human Rights and the Central and Eastern European States |
Journal | East European Yearbook on Human Rights, Issue 1 2018 |
Keywords | Case law regarding Central and Eastern Europe, ECHR, human rights, reform, European system of Human Rights |
Authors | András Baka |
AbstractAuthor's information |
At the time of its creation and during the following 30 years, the European Court of Human Rights was a Western European institution. It was not until the sweeping political changes in 1989-1990 that the Central and Eastern European countries could join the European system of individual human rights protection. The massive and relatively rapid movement of accession of the ‘new states’ to the European Convention on Human Rights had a twofold effect. On the one hand it led to a complete reform of the human rights machinery of the Council of Europe, changing the structure and the procedure. A new, permanent and more efficient system emerged. What is even more important, the Court has had to deal with not only the traditional questions of individual human rights but under the Convention new issues were coming to the Court from applicants of the former eastern-bloc countries. On the other hand, being part of the European human rights mechanism, these countries got a chance to establish or re-establish the rule of law, they got support, legal standards and guidance on how to respect and protect individual human rights. The article addresses some of these elements. It also points out that public hopes and expectations towards the Court – especially nowadays in respect of certain countries – are sometimes too high. The Court has its limits. It has been designed to remedy certain individual injustices of democratic states following common values but cannot alone substitute seriously weakened democratic statehood. |
Article |
Politics and PragmatismThe Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights |
Journal | East European Yearbook on Human Rights, Issue 1 2018 |
Keywords | Constitutional Court of the Russian Federation, European Court of Human Rights, Russia |
Authors | Bill Bowring |
AbstractAuthor's information |
After the highly controversial YUKOS judgment of 19 January 2017, on 23 May 2017 the Constitutional Court of the Russian Federation (CCRF) delivered a warmly received judgment, in which the provisions of the administrative offences legislation prohibiting stateless persons to challenge the reasonableness of their detention in special detention facilities was found to be unconstitutional. The CCRF was addressed by leading Russian human rights advocates. The judgment referred not only to Article 22 of the Russian Constitution but also to the analogous Article 5 of the ECHR. The judgment paid special attention to case-law: Guzzardi v. Italy (1980), Kemmache v. France (1994), Kurt v. Turkey (1998), Aleksei Borisov v. Russia (2015), and Z.A. v. Russia (2017), as well as Alim v. Russia (2011), Shakurov v. Russia (2012) and Azimov v. Russia (2013). Indeed, Strasbourg jurisprudence has played a central role in the development of the CCRF’s jurisprudence since Russia’s ratification of the ECHR in 1998. This article analyses and seeks to explain what in the author’s view is the CCRF’s serious engagement with a body of pan-European quasi-constitutional law, with which Russian jurists feel surprisingly comfortable and experienced. Is there really a cultural incompatibility between Russian and ‘Western’ approaches to human rights law? |
Article |
Perspectives on Comparative FederalismThe American Experience in the Pre-incorporation Era |
Journal | European Journal of Law Reform, Issue 2-3 2018 |
Keywords | 14th amendment, anti-federalists, Barron v. Baltimore (1833), Board of Education and other Cases (1954), Civil Rights Cases (1883), Bill of Rights, Brown v. Constitutional Convention (1787), Federalists, Holmes v. Jennsion (1840), Plessy v. Ferguson (1896), The Federalist (1787-1788) |
Authors | Kenneth R. Stevens |
AbstractAuthor's information |
Today the Bill of Rights is understood to limit not only the federal government but also the power of the states to infringe on the civil liberties of citizens. This was not always the case. In the early days of the republic, most Americans feared federal authority far more than the states. This remained the case until passage of the 14th amendment to the Constitution followed by a series of interpretations over the years by the Supreme Court that broadened its scope. Some delegates at the convention of 1787 and other critics during ratification complained that the Constitution did not include a bill of rights, but others objected that the people needed such protections from government power. It became clear, however, that ratification could not be attained without inclusion of a Bill of Rights, which were adopted as amendments in 1791. In 1833, the Supreme Court ruled, in Barron v. Baltimore, that the provisions of the Bill of Rights imposed restrictions only on the federal government and not on the states. Passage of the 14th amendment in 1868 made the Bill of Rights restrictions on the states. Over the years, federal courts increasingly broadened the authority of the Bill of Rights as limitations on the states. |
Article |
Federalization through Rights in the EUA Legal Opportunities Approach |
Journal | European Journal of Law Reform, Issue 2-3 2018 |
Keywords | EU Charter of Fundamental Rights, Federalization, Integration, Legal change, Legal opportunities, Litigation, Scope of application |
Authors | Marie-Pierre Granger |
AbstractAuthor's information |
While academic contributions abound on the reach and impact of the European Union (EU) system of fundamental rights protection, and notably on the desirability of a more or less extensive control of Member States’ actions in light of the rights protected by the EU Charter of Fundamental Rights, there have been few attempts to explain the dynamics of integration-through-rights in the EU. This article proposes an explanatory framework inspired by a legal opportunities approach, which emphasizes the relevance of national and EU legal opportunities, and interactions between them, in determining the actual scope and pace of federalization through rights in the EU. It suggests that the weaker the legal opportunities for fundamental rights protection are at the domestic level, the greater the federalizing pressure is, and call for more empirical comparative studies to test this framework out. |
Article |
The Architecture of American Rights ProtectionsTexts, Concepts and Institutions |
Journal | European Journal of Law Reform, Issue 2-3 2018 |
Keywords | American constitutional development, American legal history, Architecture, Bill of Rights, Congress, constitutional interpretation, constitutionalism, discrimination, due process, equal protection, equality, institutions, statutes, U.S. Constitution, 14th Amendment |
Authors | Howard Schweber |
AbstractAuthor's information |
This article examines the architecture of American rights protections. The term ‘architecture’ is used to convey the sense of a structure system with points of entry, channels of proceeding, and different end points. This structural understanding is applied to the historical development of national rights protections in the United States in three senses: textual, conceptual and institutional. The development of these three structured systems – architectures – of rights reveals dimensions of the strengths, limitations and distinctive character of the American rights protections in theory and in practice. |
Editorial |
The EU Bill of Rights’ Diagonal Application to Member StatesComparative Perspectives of Europe’s Human Rights Deficit |
Journal | European Journal of Law Reform, Issue 2-3 2018 |
Authors | Csongor István Nagy |
Author's information |
Article |
|
Journal | European Journal of Law Reform, Issue 2-3 2018 |
Keywords | Article 2 and 7 TEU, democratic backsliding, Hungary, infringement procedure, rule-of-law mechanism |
Authors | Gábor Halmai |
AbstractAuthor's information |
This article deals with the backsliding of liberal democracy in Hungary, after 2010, and also with the ways in which the European Union (EU) has coped with the deviations from the shared values of rule of law and democracy in one of its Member States. The article argues that during the fight over the compliance with the core values of the EU pronounced in Article 2 TEU with the Hungarian government, the EU institutions so far have proven incapable of enforcing compliance, which has considerably undermined not only the legitimacy of the Commission but also that of the entire rule-of-law oversight. |
Article |
Incorporation Doctrine’s Federalism CostsA Cautionary Note for the European Union |
Journal | European Journal of Law Reform, Issue 2-3 2018 |
Keywords | Bill of Rights, Charter of Fundamental Rights, diversity of human flourishing, federalism, incorporation, individual liberty, jurisdictional competition |
Authors | Lee J. Strang |
AbstractAuthor's information |
In this article, I first briefly describe the U.S. Supreme Court’s decades-long process of incorporating the federal Bill of Rights against the states. Second, I argue that incorporation of the Bill of Rights has come with significant costs to federalism in the United States. Third, I suggest that the American experience provides a cautionary note for the European Union as it grapples with the question of whether and to what extent to apply the Charter of Fundamental Rights to its constituent nations. I end by identifying options available to the European Union to avoid at least some of this harm to federalism while, at the same time, securing some of the benefit that might be occasioned by incorporating the Charter. |
Article |
From Legal Imposition to Legal InvitationFrom Transplants to Mutual Learning, Benchmarks and Best-Practice-Inspiration |
Journal | European Journal of Law Reform, Issue 1 2018 |
Keywords | legal transplants, comparative constitutional law, endurance of constitutions, transposition of EU directives, Councils for the Judiciary |
Authors | Wim J.M. Voermans |
AbstractAuthor's information |
Ever since Alan Watson published his thought-provoking book on legal transplant, legal scholars seem to have imported their own ‘do-institutions-matter’ debate. Strong positions have been taken in the debate on the possibility of legal transplants. Some deem context-free legal transplants impossible or at least unwarranted, whereas others rally for a more liberal stance. Bob and Ann Seidman were always working at the heart of this most topical, scholarly debate – one of the most interesting debates on the crossroads of law and (political) societies in our age of globalization. This article tries to get at the heart of the debate on legal transplants, which is rooted in the immediate wake of decolonization and the ideological strife during the Cold War. Since then the world has changed dramatically. We now live in the age of globalization and possibilities for mass communication, information sharing and cooperation in ways unfathomable 40 years ago. This has undoubtedly had an impact on how jurisdictions learn and borrow legal concepts, rules and solutions from one another. Have these new developments and experiences outdated the legal-transplant debate or is it still relevant? The article argues that Bob and Ann Seidman’s position in the debate is still very relevant for present-day practices of legal borrowing and legal transplants. Key to this is their notion of contextual legal-legitimacy. |