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.
Solomon Benatar, David Sanders, and Stephen Gill
This chapter analyses the political influences that shaped reform of healthcare service provision and financing during four decades of neoliberal capitalist dominance, with its emphasis on individualism, consumerism, competitiveness, and the capitalist market in determining social needs and healthcare priorities. New financing sources and market competition, which shaped adoption of reforms, are contrasted with earlier reform efforts that were premised on the socialisation of risk and the universalisation of healthcare provision on an equitable basis for all. Transformation of state forms promoted the market and substantially weakened capacities to provide for basic needs. Controversy over these outcomes has coincided with astounding increases in global inequality, particularly since the 2008 global financial meltdown, with devastating and unequal effects on the health of populations. The chapter concludes by returning to the quest for universal health coverage by reaffirming the “Health for All” principles of social justice and solidarity within a ‘post-Washington consensus’.
Krishna Ravi Srinivas
The legal status of plant genetic resources has been subject to numerous international agreements and laws over the centuries. The “common heritage of mankind” approach enabled free access but proved unworkable because of conflicts over intellectual property rights. The Convention on Biological Diversity (1992) recognized sovereign rights of nations over genetic resources within their territory. The Trade Related Intellectual Property Rights Agreement under auspices of the World Trade Organization mandated intellectual property protection for plant varieties, but synchronizing such rights has proved problematic. Many developing countries have enacted sui generis regimes to comply with TRIPS requirements. The International Union for the Protection of New Varieties of Plants Convention provides models that have changed over time. With the advent of agricultural biotechnology and availability of intellectual property rights for plant components, patents relating to plant genetic resources have increased. As plant genetic resources are subject to many overlapping treaties, the regime governing them is becoming more complex, resulting in inconsistencies and disputes. While the rights of plant breeders and the private seed industry are well protected in formal agreements, the rights of farmers, who have nurtured diversity in plant genetic resources, developed varieties of crops with different traits, and contributed to exchange and conservation of plant genetic resources, are left to the discretion of nation-states. Farmers’ rights are mentioned in many international legal instruments, but no binding treaty or convention mandates protecting and promoting the rights of working farmers.
The phenomenon of governance in areas of limited statehood has had a particularly strong impact on the development of international law after 1990. If—on a large scale—states lack the capacity to control the means of violence and to implement and enforce central decisions it is most likely that this bears serious consequences for the international legal order. The chapter inquires into these consequences and analyses the changing discourses about statehood. As a response to the phenomenon of limited statehood, the international community had to address the challenge how and to what extent external actors could step in in order to perform government functions. This triggered debates about the legal basis and about the legal limits for such activities. While the period after 1990 was characterized by approaches which relativized the sovereignty of fragile states, more recent developments point to a re-emphasis of state consent
The judicialization of politics—the reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies—is arguably one of the most significant phenomena of late twentieth- and early twenty-first-century government. Armed with newly acquired judicial review procedures, national high courts worldwide have been frequently asked to resolve a range of issues from the scope of expression and religious liberties and privacy to property, trade and commerce, education, immigration, labor, and environmental protection. This article analyzes the scope, nature, and causes of the judicialization of politics, as well as judicial behavior, recent jurisprudence of courts and tribunals worldwide, and the judicialization of “mega-politics” or “pure” politics—the transfer to courts of contentious issues of an outright political nature and significance. Questions of pure politics include electoral processes and outcomes, restorative justice, regime legitimacy, executive prerogatives, collective identity, and nation building. These developments reflect the demise of the “political question” doctrine, and mark a transition to what is termed “juristocracy.”
Sebastian M. Saiegh
This chapter examines the lawmaking process in democratic countries, focusing on how the government and cross-pressured legislators interact with each other. It considers how the possibility of success or failure is influenced by uncertainty and how incentives may drive legislators to change their voting intentions. It discusses the factors that allow chief executives to enact policy changes through statute law, as well as the role and influence of governments and legislatures in creating law. In particular, it highlights two major factors that shape lawmaking: the unpredictability of legislators’ voting behavior, and the availability of resources to engage in vote-buying. It also looks at the influence of vote-buying on winning coalitions.
Abby Peterson and Mattias Wahlström
Social movement protest and repression are inextricably joined. In this chapter we make a case for conceptualizing repression as the governance of domestic dissent. Repression or policing contention is a dispersed mechanism for the governance of the dominant political and economic order. In order to survey the vast literature on repression our model for understanding the forms of governing dissent departs from three conceptual dimensions. The scale dimension denotes the geographic and operational scale of the governance of dissent. The institutional dimension tackles the identity of the actors governing dissent—from actors more or less tightly linked to the national government to private security and civil society actors that act more or less independently of any state. Finally, the functional dimension addresses the ways that dissent is governed—ranging from subtle forms of channeling, through intimidation and symbolic violence, to violent coercion at the other end of the spectrum.
Rebecca Bill Chavez
The rule of law is a broad concept that encompasses many areas including judicial autonomy, access to justice, human rights, and property rights. It entails the equality of all citizens under the law and predictability in the application of rules and regulations. The past decade has witnessed a growing recognition by political scientists that an independent judiciary can bolster both political and economic development. As nations struggle to consolidate democracy, we have witnessed a surge of promising new scholarship on the conditions under which the rule of law emerges and endures. Judicial independence and the rule of law constitute important bulwarks against the erosion of democratic institutions. According to the separation of powers approach, the rule of law becomes possible when no single actor or group of actors has sufficient power to dominate. In addition, the burgeoning literature on the construction of the rule of law includes impressive scholarship on the key role of non-state actors, particularly of civil society and the international community.
This chapter describes the history of the law of armed conflict and its relevance to women. The law of armed conflict has not been heavily scrutinized by feminists but its provisions offer feminists many challenges. This chapter explores how, despite theoretically seeming to benefit women, these provisions from assumptions around combatancy status to civilian protection depict a gendered vision of women, reinforce destructive gender stereotypes, and fail to address systemic gender discrimination. The chapter concludes by exploring feminist encounters with the law of armed conflict and the extent to which protections for women in situations of armed conflict have improved over time. It also describes challenges that lie ahead and provides suggestions for feminist scholarship to probe further.
Julia S. O'Connor
This chapter utilizes labor market change, in particular the objective of increasing female labor market participation and change in gender-equality decision-making machinery, to provide the lens through which it is possible to identify progress in, and barriers to, transformations of the state in a gender equality/woman friendly direction. It concludes that core OECD states can be characterized as gender equality awareness states, some more so than others, but the movement to gender equality states is constrained by failure to address broader structures of inequality. The state has been pervasive, and, at some times and in some locations, dominant, in changing gender relations, but it has always been subject to the dominant political orientation, including the gender representativeness of parliaments and the pressure, or lack thereof, from civil society, in particular the equality-oriented women’s movement. These factors largely explain variation in the institutionalization of equality structures and outcomes.
Gary J. Bass
This article reviews the state of the field in three crucial issues about war crimes tribunals: victors' justice, outlawing war, and the trade-off between peace and justice. In all three, the tension between the partiality of politics and the impartiality of law is stark and enduring. Although international tribunals are often billed as simply the extension of the domestic rule of law, there is no set legitimate authority in place in international relations. Even the permanent International Criminal Court is brand new, and its permanence is hardly guaranteed. The question of who judges is particularly salient because of the weak consensus on underlying values in the international system. The ad hoc tribunals for the former Yugoslavia and Rwanda did not formally include aggression in their charters. The world is in the bizarre position of pursuing an international legal order that enshrines the key tenets of jus in bello, while largely ignoring jus ad bellum.