Peter M. Shane
This article looks at constitutions. The status and function of constitutions are discussed in the first section of the chapter. It then discusses implementing key founding bargains and structuring the exercise of power. The next sections talk about creating affirmative government obligations, constitutional interpretation and change, the modes of argument, and interpretation and legitimacy. The article ends with several directions for future research on the subject.
Josep M. Colomer
This article studies comparative constitutions. It begins with a look at the origins and evolution of constitutional models. The next section concentrates on the constitutional regime typologies. The last section of the article is about constitutional consequences.
The distinctive feature of federalism is to locate the central and constituent governments' respective claims of organizational autonomy and jurisdictional authority within a set of privileged legal norms that are beyond the arena of daily politics. For the most part, the debate about the role of the judiciary as federal umpire has taken place within two separate disciplinary compartments: comparative politics and law. Building on recent efforts to bring these two disciplines closer, this article provides a fresh look at three common criticisms of granting the central judiciary power to protect federalism. It argues that political safeguards of federalism are insufficient, that concerns about judicial bias are overstated, and that the particular limitations on the judiciary's ability to implement the principles of substantive subsidiarity, instrumental subsidiarity, and integration should inform judicial doctrine more systematically than they currently do.
John Ferejohn, Frances Rosenbluth, and Charles R. Shipan
This article studies comparative judicial politics, and presents a systematic definition of judicial independence. It presents theoretical explanations — positive and normative — for judicial independence, and examines judicial systems in a classificatory way. The article concludes with a list of the authors' ideas for empirical research.
This chapter explores the opportunities present in the Rome Statute to promote justice for victims of sexual and gender-based violence in the International Criminal Court (ICC). It focuses on the concept of complementarity to show the ICC’s potential for reform and to catalyze the prosecution of international crimes (genocide, crimes against humanity and war crimes). It then describes the ICC’s broader approach to sexual violence and gender, as well as the domestic impact of this jurisprudence. The chapter concludes by suggesting that the Rome Statute’s standards should be introduced into national law. This could create broader benefits for women and victims of sexual and gender-based violence beyond the prosecution of criminal perpetrators.
Peter H. Russell
Canada is one of the oldest constitutional democracies in the world. Its founding Constitution, the British North America Act (BNA Act) was enacted by the British Parliament in 1867. While the name, status, and method of amending the Constitution have changed and additions have been made to the Canadian Constitution, the substantive provisions of the original Constitution have changed very little since 1867. Although there has been little change to the founding Constitution, it does not mean that Canada's constitutional system has been frozen in time. This article discusses the evolution, patriation, and developments of the Canadian Constitution. The evolution of the Canadian Constitution has been have been affected not by formal constitutional amendments, but rather by less-formal instruments of constitutional change. These changes include “unwritten” constitutional conventions, changes in political practice, judicial decisions interpreting the constitutional text, and ordinary legislation establishing institutions and regulating governmental practice. These informal changes produced an independent and continental federation Canada that its founding fathers would barely recognize.
This article discusses constitutionalism, particularly the two main schools of constitutional theorizing: coordination theories and contractarian theories. It then tries to determine what constitutions can do for the people, before focusing on the two main problems of modern constitutional democracy. The first is the nature of representative democracy, while the second is the problem of placing enforceable limits on government.
Geoffrey Brennan and Alan Hamlin
This article looks at constitutions as expressive documents. Two concepts are the main focus of this article: the constitution and the notion of expressiveness. The article tries to clarify these concepts by appeal of a contrast, which will be between a constitution as a legal document and the more general idea of a constitution, which is envisaged by the Constitutional Political Economy (CPE). It also tries to clarify the notion of expressive activity, followed by a discussion on the issue of how expressiveness operates in electoral politics. Finally, a simple two-by-two matrix is used to explore the role of expressive elements in constitutions.
James B. Kelly and Christopher P. Manfredi
The judiciary plays a prominent role in the maintenance and development of the Canadian constitutional system. Apart from maintaining the rule of law and the administration of justice, the courts and the members of the judiciary are important constitutional actors, as they provide interpretation of the federal division of powers and the Canadian Charter of Rights and Freedoms. Understanding the evolution of Canadian federalism is incomplete without considering the decisions of the Judicial Committee of the Privy Council (JCPC), Canada's highest court until 1949, and the Supreme Court of Canada after the abolition of the JCPC. This article discusses the structure and functions of the court system of the Supreme Court of Canada. The first section discusses the constitutional basis of the court system in Canada and the boundaries of judicial responsibilities between provincial and federal governments. The second section focuses on the appointment of judges and the reform movements by the federal and provincial governments since the 1960s. The third section discusses the Supreme Court of Canada and the three significant events that formed this institution: the abolition of appeals to the JCPC in 1949; the eradication of appeals as of right in 1975; and the entrenchment of the Canadian Charter of Rights and Freedoms in 1982. The last section discusses the courts and their contribution to the evolution of Canadian federalism and the Canadian Charter of Rights and Freedom.
John M. Carey
Elections in the wake of dramatic transitions from authoritarian regimes to democracy may confront voters with choices that are unattractive or bewildering, or both. This chapter examines the conditions that produce tractable sets of party options for voters, presents cross-national data on the choice sets and competitiveness in elections after dramatic transitions, and examines how the electoral formula used in proportional elections can affect electoral outcomes. The chapter argues that, in transitional contexts characterized by high uncertainty, electoral rules that reward economies of moderate scale, such as the Hare quota formula, can encourage the development of attractive choice sets. As democracies and party systems develop, however, the case for electoral rules that confer representational bonuses on winning parties gains traction.