Comparative political process theory

2020 ◽  
Author(s):  
Stephen Gardbaum
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Political Process ◽  
The United States ◽  
Normative Theory ◽  
Representative Democracy ◽  
Process Theory ◽  
Constitutional Court ◽  
Political Processes ◽  
Political Process Theory

Abstract What, if anything, do recent constitutional court decisions requiring a legislature to create a customized presidential impeachment procedure, invalidating a government’s prorogation of parliament, rejecting the disbanding of an independent anticorruption unit, and striking down legislation for inadequate deliberation have in common? They are all examples of courts protecting the political processes of representative democracy against threats or failures. Yet none of these various types of failure appear in the work that is synonymous with a political process theory of judicial review: John Hart Ely’s Democracy and Distrust. This article argues that when we look beyond the United States and at the comparative context generally, a political process theory has a great deal of relevance and application to constitutional law and courts around the world, both descriptively and normatively. Especially now when the structures and processes of representative democracy are under assault in so many places. However, for comparative purposes, Ely’s account takes too narrow a view of what types of political process failures exist and are of concern, and what types of judicial review or other protective mechanisms they may call for. It is also an interpretive theory of one system, but what is needed in the comparative context is a broader, normative theory of the role of courts and other actors in protecting democratic politics. Accordingly, suitably expanded and adapted, a comparative political process theory can make a valuable contribution to the field of comparative constitutional law. This article seeks to explore and further develop such a theory.

James Bryce and the Australian Constitution

2015 ◽  
Vol 43 (2) ◽  
pp. 177-200
Author(s):  
Stephen Gageler
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Development ◽  
Practical Operation ◽  
Responsible Government ◽  
Shed Light

James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.

Dieter Grimm

2020 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
Constitutional Law ◽  
The United States ◽  
Public Intellectual ◽  
Law School ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
European Democracy ◽  
Humboldt University ◽  
Post War ◽  
Constitutional Adjudication

Dieter Grimm is one of Germany’s foremost scholars of constitutional law and theory with a high international reputation and an exceptional career. He teaches constitutional law at Humboldt University Berlin and did so simultaneously at the Yale Law School until 2017. He was one of the most influential justices of the German Constitutional Court where he served from 1987 to 1999 and left his marks on the jurisprudence of the Court, especially in the field of fundamental rights. He directed one of the finest academic institutions worldwide, the Wissenschaftskolleg zu Berlin (Institute for Advanced Study). He is also well known as a public intellectual who speaks up in questions of German politics and European integration. This book contains a conversation that three scholars of constitutional law led with Dieter Grimm on his background, his childhood under the Nazi regime and in destroyed post-war Germany, his education in Germany, France, and the United States, his academic achievement, the main subjects of his research, his experience as a member of a leading constitutional court, especially in the time of seminal changes in the world after the fall of the Berlin Wall, and his views on actual challenges for law and society. The book is an invaluable source of information on an outstanding career and the functioning of constitutional adjudication, which one would not find in legal textbooks or treatises. Oxford University Press previously published his books on Constitutionalism. Past, Present, and Future (2016) and The Constitution of European Democracy (2017).

WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?

2010 ◽  
Vol 28 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Moral Rights ◽  
Constitutional Change ◽  
Principal Function ◽  
Fundamental Law

AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

scholarly journals Labor Unrest and Incipient Collective Bargaining in China

2016 ◽  
Vol 12 (01) ◽  
pp. 159-187 ◽  
Author(s):  
Sarosh Kuruvilla ◽  
Hao Zhang
Keyword(s):  
Collective Bargaining ◽  
Political Process ◽  
Process Theory ◽  
Future Developments ◽  
The Future ◽  
Political Process Theory ◽  
Chinese Workers

ABSTRACTIn this paper, we argue that both labor unrest and collective bargaining are increasing in China. Using McAdam's political process theory, we argue that Chinese workers are striking more and offensively in support of their economic demands. We identify the state's interests in promoting collective bargaining, and through an analysis of union and employers’ organizations, attempt to predict the future trajectory of collective bargaining in China. Using new data about strikes, we confirm our argument that strikes in China are increasing. Based on very limited past and current research, we create a taxonomy of baseline collective bargaining in China against which future developments can be compared.

Activist Christians, the Human Rights Movement, and Democratization in Latin America

2020 ◽  
pp. 216-236
Author(s):  
Nick Rowell
Keyword(s):  
Human Rights ◽  
Latin America ◽  
Political Process ◽  
National Level ◽  
Church Leaders ◽  
Process Theory ◽  
Christian Church ◽  
Diverse Range ◽  
Human Rights Movement ◽  
Political Process Theory

This chapter is a critical literature review of recent social science research describing and analyzing the participation of Christian churches in various phases of the human rights movement in Latin America. Spanning the period from 1964 to the present, such human rights activism took place in the contexts of authoritarian rule, civil war, democratic transitions, and the consolidation of democracy. The chapter focuses on the influence of Christian church leaders, laity, organizations, and resources on the origins, growth, and maturation of human rights-oriented social movement organizations (SMOs). Drawing on Douglas McAdam, Sidney Tarrow, and Charles Tilly’s work on political process theory, this literature emphasizes the invaluable role of religious organizations in providing space, resources, protection, and framing to nascent human rights movements in the region during the 1960s-70s. Even so, the literature also grapples with the diverse range of political stances taken by Christian church leaders and activists, both within and across national-level cases. With the maturation of the movement and the transition to democracy, political process theory remained relevant, but failed to capture some of the key challenges and opportunities experienced by Christian activists, as opposed to social activists in general. Thus, scholarship shifted focus to organized religion’s capacity to build social capital and sustain meaningful Christian social and human rights activism.

Constitutional Adjudication and Democracy

1999 ◽  
Vol 33 (2) ◽  
pp. 193-215 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
Decision Making ◽  
19Th Century ◽  
Judicial Review ◽  
United States Of America ◽  
Constitutional Law ◽  
World Wide ◽  
The United States ◽  
Long Period ◽  
The 19Th Century ◽  
Constitutional Adjudication

Constitutional adjudication is as old as democratic constitutionalism. But for a long period of time, the United States of America remained alone in subjecting democratic decision-making to judicial review. While constitutions had become widely accepted already in the 19th century, it took almost two hundred years until constitutional adjudication has gained world-wide recognition. In the 19th century, only Switzerland entrusted its Supreme Court with competencies in the field of constitutional law, yet, not including review of federal legislation. All other attempts to introduce constitutional adjudication failed. This is also true for Germany where the constitution of 1849 had provided for judicial review in an ample manner. But the constitution adopted by the revolutionary Paulskirchen Assembly did not enter into force because the monarchs refused their consent after the revolution had been put down.

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