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Year 2010 x
Article

Access_open Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords constitutionalism, globalization, democracy, modernity, postnational
Authors Neil Walker
AbstractAuthor's information

    The complexity of the relationship between democracy and modern constitutionalism is revealed by treating democracy as an incomplete ideal. This refers both to the empirical incompleteness of democracy as unable to supply its own terms of application – the internal dimension – and to the normative incompleteness of democracy as guide to good government – the external dimension. Constitutionalism is a necessary response to democratic incompleteness – seeking to realize (the internal dimension) and to supplement and qualify democracy (the external dimension). How democratic incompleteness manifests itself, and how constitutionalism responds to incompleteness evolves and alters, revealing the relationship between constitutionalism and democracy as iterative. The paper concentrates on the iteration emerging from the current globalizing wave. The fact that states are no longer the exclusive sites of democratic authority compounds democratic incompleteness and complicates how constitutionalism responds. Nevertheless, the key role of constitutionalism in addressing the double incompleteness of democracy persists under globalization. This continuity reflects how the deep moral order of political modernity, in particular the emphasis on individualism, equality, collective agency and progress, remains constant while its institutional architecture, including the forms of its commitment to democracy, evolves. Constitutionalism, itself both a basic orientation and a set of design principles for that architecture, remains a necessary support for and supplement to democracy. Yet post-national constitutionalism, even more than its state-centred predecessor, remains contingent upon non-democratic considerations, so reinforcing constitutionalism’s normative and sociological vulnerability. This conclusion challenges two opposing understandings of the constitutionalism of the global age – that which indicts global constitutionalism because of its weakened democratic credentials and that which assumes that these weakened democratic credentials pose no problem for post-national constitutionalism, which may instead thrive through a heightened emphasis on non-democratic values.


Neil Walker
Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, United Kingdom.

Shami Chakrabarti
Shami Chakrabarti is Director of Liberty.
Article

Act of Parliament: The Role of Parliament in the Legislative Process

A Commonwealth Perspective

Journal European Journal of Law Reform, Issue 1-2 2010
Keywords parliament, legislation, pre-legislative scrutiny, supremacy of parliament, delegated legislation, Uganda, legislative process
Authors Denis Kibirige Kawooya
AbstractAuthor's information

    Whereas making law is one of the principal functions of Parliament, Parliament plays a very limited role in the legislative process. In Uganda, like in many commonwealth jurisdictions due to the role the Constitution has given to Parliament, the legislature should take a more active role in the legislative process. The paper examines the legislative authority of Parliament, the concept of Parliamentary supremacy, pre-legislative scrutiny and whether Parliament should be involved in the scrutiny of delegated legislation.


Denis Kibirige Kawooya
Denis Kibirige Kawooya is a Senior State Attorney in the Ministry of Justice and Constitutional Affairs, Uganda, a member of the Commonwealth Association of Legislative Counsel, Uganda Law Society, East African Law Society and an Advocate of the High Court of Uganda.

Ann-Sophie Vandenberghe
Ann-Sophie Vandenberghe is Assistant Professor of Law and Economics, Rotterdam Institute of Law and Economics, Erasmus School of Law.
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