Modernity believed that processes of secularization and rationalization are universally applicable. What is taking place in the 21st century, however, suggests that the reverse, a process of de-secularization, is becoming the hallmark of the present age. In the case of Islamic civilization, in which law is shari'a, the challenge to secularization takes the form of a process of shari'atization. This is not the traditional or inherited shari'a, restricted to civil matters and to a penal code, but an invented shari'a, one which also claims to be a constitutional law. Moreover, the constructed shari'atized constitutional law, in conflict with secular constitutionalism and appearing to offer no middle way, has been universalized to engender an international conflict between secularization and de-secularization. Since, for most Muslims, Islam without shari'a is unthinkable, this article examines the potential for religious reform of the shari'a in the direction of cultural change, freedom and democratic constitutionalism.
Allan C. Hutchinson and Joel Colón-Ríos
The relationship between democracy and constitutions is a long and fractious one. Those who lean towards the constitutionalist side have tended to perceive democracy as a threat to political order and the preservation of important values, whereas those who take a more democratist stance tend to treat constitutions as elite hindrances to popular rule as much as anything else. In this paper, we will give the constitutionalist thesis a broader theoretical and political scrutiny. By way of explanation, we will address and recommend the possibilities and problems for putting into practical operation such an anti-constitutionalist stance; the recent experience of the U.S. State of California offers itself as a good forcing-ground for these ideas. In short, from a democratic standpoint, the challenge for the citizenry is not so much about defining the values of constitutions, but constitutions whose change is outside the scope of popular decision making, supposed to exclusively take place through judicial interpretation or through an amendment formula designed precisely to make change difficult and unlikely. Too often, constitutions place checks and limits on democratic participation in the name of some other set of vaunted truths or elite-favouring values. For the strong democrat, it is formal constitutions and their institutional paraphernalia that do more to inhibit and dull democracy's emancipatory potential than to nurture and fulfil it.
These modern constitutions that have been adopted largely in the Global South enshrine a set of divergent values and rights that embrace both political philosophical concerns relating to liberty as well as distributive equality. This article seeks to grapple with the approach to distributive justice that can best give expression to the multiple normative commitments of these constitutions as well as key institutional features thereof. I argue for these societies to adopt what I term a two-tier theory of distributive justice: these theories require a set pattern or threshold to be achieved in a certain domain but also allow for a tolerable variation in resource distribution in another domain. I seek to show how two of the foremost egalitarian liberal theories of distributive justice – that of Ronald Dworkin and John Rawls – exemplify this structure as well as the resources they have to address the problems thereof. I then argue that a two-tier structure of a theory of distributive justice can help explain and reconcile key features of these modern constitutions. In particular, I shall seek to show the manner in which such theories conform to understandings of the role of a constitution, and the importance of preserving space for democratic decision-making. At the same time, two-tier theories assist in delineating the appropriate role constitutional courts should play in addressing the distribution of economic resources in society. These theories also have important implications for the role of the state and markets. Such a structure, I shall conclude, gives effect to a particular conception of equality as well as liberty and so manages to reconcile these two normative values.
Recognition of a right of resistance to oppression clearly helped modern Western polities accept constitutional forms of order. Drawing on Locke's canonical discussion in the Second Treatise, influential Anglo-American political theorists also suggest that the establishment of modern constitutional states required outlawing resistance practices. A francophone perspective, however, raises a problem for such generalizations about modern Western political philosophy and practice: the French “résistance” differs in meaning from the English “resistance” in important ways. Reconstructing the histories of the cognate concepts, I show that “résistance” emerged out of feminized discourses concerning moral conscience and that, as a result, excluding résistance from politics seems implausible, a conclusion that sheds light on the discussion of résistance in the Declaration of the Rights of Man and Citizen. The article closes with the suggestion that, following the Second World War, French understandings of “résistance” may have influenced American politics and thought in unrecognized ways.
Rights, Democracy and Law
Christopher F. Zurn
This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for the institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata.
Siseko H. Kumalo
The historical debate, in African philosophy, on personhood has been characterised by radical and moderate communitarianism seen through the scholarship of Menkiti (1984) and Gyekye (1997) and continues contemporarily with scholars considering its implications on contemporary conceptions of rights.
Responding to Chemhuru’s compatibilist view that, he maintains, safeguards and guarantees individual rights, I showcase how his conception of the community as prior to the individual betrays his project. Using the African Charter on Human and Peoples Rights to contextualise rights discourse in Afro-communitarianism, Chemhuru avers that once collective rights have been gained, individuals can claim their rights. I critique this position to suggest that Chemhuru undermines his own project of compatibilism through placing the community prior to the individual. Using the Civil Union Act (2006) as a legislative framework that safeguards and guarantees individual human rights, I test Chemhuru’s compatibilist view. I conclude by highlighting the divergences between constitutionalism and Afro-communitarianism.
E. P. Thompson, C. L. R. James, and the Afterlives of Internationalism
In 1983, H. O. Nazareth directed a film called Talking History, which brought together E. P. Thompson and C. L. R. James in conversation. The soundtrack was composed by Spartacus R, former bassist for the Black Rock band, Osibisa. Over the twenty years since the publication of The Making of the English Working Class in 1963, Thompson had confronted several questions around colonialism, law, and constitutionalism that had not found emphasis in The Making. Talking History marks a unique point in the trajectory of Thompson's engagement with some of those questions, while simultaneously revealing the limits of that engagement. In addition to being a useful window into the political worldview of James and Thompson in the early 1980s, the film is also demonstrative of the afterlives of internationalism in the twentieth century. This article argues that revisiting internationalism, as a practice of political activism and critical dialogue, with its possibilities and limits, allows us to carefully rethink some of our contemporary political and intellectual practices.
Law in Transnational Economic Transactions ( Oxford : Hart Publishing ), 17 – 40 . Kjaer , P. F. ( 2011 ), ‘ The concept of the political in the concept of transnational constitutionalism ’, in C. Joerges and R. Tommi (eds), After
Jason Bartholomew Scott
. “ Abolition Constitutionalism .” Harvard Law Review 133 ( 1 ). https://harvardlawreview.org/2019/11/abolition-constitutionalism/ . Scott , Jason Bartholomew . 2019a . “ Death on Repeat: Violence, Viral Images and Questioning the Rule of Law in
of social science research in South Africa. 2 See Ramose, M. B., 2001, ‘An African Perspective on Justice and Race’; Ramose, M. B., 2002 , ‘I Conquer, Therefore I Am the Sovereign: Reflections upon Sovereignty, Constitutionalism, and Democracy in