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45 results

Page 1 of 3

  • 22 - Deconstructing Constitutional Identity in Light of the Turn to Populism

  • from Part IV - Emerging Trends
  • Edited by Ran Hirschl, University of Toronto, Yaniv Roznai, Reichman University, Israel
  • Book:
    Deciphering the Genome of Constitutionalism
    Published online:
    14 March 2024
    Print publication:
    21 March 2024, pp 286-299

  • Summary

    Constitutional identity, although remaining distinct from national identity, does like the latter carve out an imagined community. It must process and reprocess material to promote a vision that integrates the ethnos and the demos in a constitutionally viable manner. In this pursuit, the elaboration of constitutional identity relies on three principal interpretive devices: negation, metaphor, and metonymy. The objective is to integrate the polity as a whole, the individuals subject to the constitution, and the plurality of groups within the nation that possess a legitimate claim to constitutional recognition. The resulting construct must draw on national identity to reinforce unity and depart from the latter where necessary to maintain constitutional integrity – e.g., to deescalate ethnic strife within the polity by banning ethnic-based political parties. The turn to populism poses a challenge that calls upon reframing constitutional identity. Indeed, as populism by its very nature casts only part of the people as the people, and labels those not included as the enemy, it calls for disaggregating and recombining existing liberal constitutional identities. We illustrate the adverse effect of populism’s recourse to ethnic cleavages and to religion in reframing constitutional identity through the salient example of Viktor Orban’s Hungary.

  • 2 - Judicial Politics versus Ordinary Politics

  • from Part I - Democratic Legitimacy of Judicial Power
  • Edited by Christine Landfried
  • Book:
    Judicial Power
    Published online:
    27 January 2019
    Print publication:
    07 February 2019, pp 36-65

  • Summary

    Democratic politics are built upon the politics are built upon the majority principle, but no contemporary constitutional democracy can live on that principle alone. To sustain key anti-majoritarian pillars of democracy, such as fundamental rights, it is often necessary to override majority politics through deployment of an anti-majoritarian institution – typically, the Constitutional or Supreme Court. In certain countries, like the United States, all major divisive political issues, such as abortion and same-sex marriage, typically end up before the courts. Accordingly, courts cannot avoid being in politics, but are judicial politics similar to ordinary politics? I defend the thesis that judges have a politics of their own that is distinguishable from ordinary politics, but that often blends and overlaps with the latter. Judicial politics concern the ideals, ideology, practices, and procedures of adjudication. In some exceptional cases, judges stray from their judicial politics and lapse into ordinary politics. Far from undermining the thesis I defend, these exceptional cases reinforce it by highlighting the bounds between what ought to be judicially permissible and what would cross the line of legitimate judicial politics.

The Conscience Wars
  • Rethinking the Balance between Religion, Identity, and Equality
  • Edited by Susanna Mancini, Michel Rosenfeld
  • Published online:
    20 June 2018
    Print publication:
    05 July 2018
  • In this work, Professors Mancini and Rosenfeld have brought together an impressive group of authors to provide a comprehensive analysis on the greater demand for religions exemptions to government mandates. Traditional religious conscientious objection cases, such as refusal to salute the flag or to serve in the military during war, had a diffused effect throughout society. In sharp contrast, these authors argue that today's most notorious objections impinge on the rights of others, targeting practices like abortion, LGTBQ adoption, and same-sex marriage. The dramatic expansion of conscientious objection claims have revolutionized the battle between religious traditionalists and secular civil libertarians, raising novel political, legal, constitutional and philosophical challenges. Highlighting the intersection between conscientious objections, religious liberty, and the equality of women and sexual minorities, this volume showcases this political debate and the principal jurisprudence from different parts of the world and emphasizes the little known international social movements that compete globally to alter the debate's terms.

  • Equality and the Dialectic Between Identity and Difference

  • Michel Rosenfeld
  • Journal:
    Israel Law Review / Volume 39 / Issue 2 / Summer 2006
    Published online by Cambridge University Press:
    04 July 2014, pp. 51-80

  • Modern equality as derived from the Enlightenment has always had problems with difference. Whereas feudalism set inequality as the baseline, modern society sets equality as the baseline, but allows for unequal treatment based on differences. Thus, differences among the sexes have been invoked to treat women as inferiors and racial differences to deprive racial minorities of equal treatment. Liberalism has countered these moves by promoting a conception of equality as identity according to which race or gender-based differences are irrelevant for purposes of political participation or employment. More recent claims for equality based on identity politics which call for a type of equality that accounts for differences pose vexing problems for liberalism. How should liberalism handle this? By creating exceptions to generally applicable laws? By promoting group-based autonomy and self-government at the risk ofbalkanizing the polity? Or, on the contrary, by rejecting demands for recognition of differences and reinforcing equality as identity? After analyzing the dialectic of equality, this Article argues that, based on commitment to the premise that all human beings share an equal status for possessing the same capacity for moral choice, pluralism offers a better framework than liberalism for the best possible reconciliation of identity and difference. This implies a departure from the monolithic nation-state toward multi-layered interconnected centers of collective autonomy and self-government.

Law, Justice, Democracy, and the Clash of Cultures
  • A Pluralist Account
  • Michel Rosenfeld
  • Published online:
    05 June 2012
    Print publication:
    26 September 2011
  • The Cold War ideological battle with universal aspirations has given way to a clash of cultures as the world concurrently moves toward globalization of economies and communications and balkanization through a clash of ethnic and cultural identities. Traditional liberal theory has confronted daunting challenges in coping with these changes and with recent developments such as the spread of postmodern thought, religious fundamentalism and global terrorism. This book argues that a political and legal philosophy based on pluralism is best suited to confront the problems of the twenty-first century. Pointing out that monist theories such as liberalism have become inadequate and that relativism is dangerous, the book makes the case for pluralism from the standpoint of both theory and its applications. The book engages with thinkers, such as Spinoza, Kant, Hegel, Rawls, Berlin, Dworkin, Habermas and Derrida and with several subjects that are at the center of current controversies.

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