Constitutionalism

Liberalism is a term employed in a dizzying variety of ways across the humanities and social sciences. This essay seeks to reframe how the liberal tradition is understood. I start by delineating different types of response – prescriptive, comprehensive, explanatory – that are frequently conflated in answering the question “what is liberalism?” I then discuss assorted methodological strategies employed in the existing literature: after rejecting “stipulative” and “canonical” approaches, I outline a contextualist alternative. On this (comprehensive) account, liberalism is best characterised as the sum of the arguments that have been classified as liberal, and recognised as such by other self-proclaimed liberals, over time. In the remainder of the article I present an historical analysis of shifts in the meaning of liberalism in Anglo-American political thought between 1850 and 1950, focusing in particular on how John Locke came to be seen as a liberal. I also explore the emergence of the category of "liberal democracy". I argue that the scope of the liberal tradition was massively expanded during the middle decades of the twentieth century, such that it came to be seen by many as the constitutive ideology of the West. This capacious (and deeply confusing) understanding of liberalism was produced by a conjunction of the ideological wars fought against “totalitarianism” and assorted developments in the social sciences. Today we both inherit and inhabit it.

"States remain a central form of ordering but only one among several. In the transnational space, a wide range of autonomous public- and private-norm producing organizations and regimes operates, which is not, or only partly controlled, by states. The consequence is that the contemporary world is characterized by a multiplicity of overlapping normative orders that rely on different organizational principles: for example, some are territorially bound and some are functionally delineated. Governance structures have emerged as the form through which the multiplicity of orders is linked together. They are inter-contextual forms which simultaneously serve as buffer zones and transmission belts between these orders. As such, governance structures can be understood as institutional mechanisms that fulfill the function of ensuring the societal embeddedness of autonomous normative orders in the wider world through increased reflexivity.

The type of law which has emerged in order to structure the governance phenomenon reflects the societal function of governance structures. Transnational law is an “in between worlds” law in the sense that a central aspect of transnational law is the framing of learning processes capable of ensuring mutual adaptability between normative orders. As such transnational law fulfills a different function than nation-state law which in essence remains oriented towards the upholding of already established normative expectations. As governance structures are the no man’s land between normative orders, they possess an intrinsic political quality. They are the battlefields were the delineation of normative orders are established and continuously reaffirmed. Grasping the kind of political processes unfolding within governance structures is however conditioned by the development of a concept of the political which reflects the inter-contextual function of governance structures.
"

"The aim of this essay is to demonstrate that the penetration and reception of the theories of natural law were linked to the strategies implemented by a small state, whose survival seemed dependent on the application of a neutrality policy capable of safeguarding commercial activity, and somehow even on the evoked foundation of a federal system with other small states.

Works by Antinori (1711) and Averani (1721-22) in particular and, most especially, those by Buondelmonti (1737, 1741 and 1755) reveal that a process of selecting  natural law theories was under way; balanced as a result of the expected European circulation of these Tuscan works, this selection process was sometimes politically oriented towards dealing with the questions of succession, at other times to drawing an up-to-date picture of civil society, and at still other times to advocating the neutrality option and a specific role for neutral nations in international relations.

An early result that emerged by my research is that different members of the ruling class used Grotius’s teaching relating to international relations to promote and pay tribute to the Grand Duchy within the international political society. The image of the Tuscan Grand Duchy appears to have been founded on the steady public appreciation of the principle stare pactis: thanks to this norm of conduct, the Tuscan ruling class tried to earn their small neutral State a reputation for impartiality and, above all, trustworthiness.
"

L’articolo intende ricostruire in chiave critica l’attuale regolamentazione relativa allo sport in ambito europeo e derivante dal Trattato di Lisbona, sottolineandone incongruenze, lacune e contraddizioni, sostanzialmente derivanti dall’ormai consueto tacito dialogo intercorrente tra il legislatore di Bruxelles e la Corte di Giustizia dell’Unione Europea: in particolare, si rimarca come il diritto europeo, in forza della sentenza Meca – Medina della stessa CGUE, riduca, rectius, sia costretta a ridurre anche l’attività sportiva al rango di attività economica ai fini della comprensione della stessa all’interno dell’orbita normativa dell’ordinamento UE. Ciò si spiega facendo rimando all’architettura fondamentalmente mercantilistica e d economicistica caratterizzante già dalle proprie origini il comparto normativo – istituzionale medesimo, a nulla sostanzialmente valendo i reiterati quanto sterili tentativi, di matrice dunque essenzialmente politica, compiuti al livello extraterritoriale in esame di caratterizzare l’azione dell’UE anche in direzioni aliene rispetto a rationes e finalità di mercato

In his "Notes on the State of Virginia," Thomas Jefferson offered his mature thoughts on the new science of republican politics. Read as a unified work of political literature, Jefferson's "Notes" confronts and overturns authoritative, yet corrupting claims of the Bible and Enlightenment science which serve to obscure or distort inquiry into nature (natural laws and natural rights) as the proper ground for republican government.

Global financial and political crisis had brought up new challenges to the great achievements of classical and contemporary constitutionalism. When topics like immigration and the fight against terrorism are on the table, the phrase “by all means possible”, rather than an odd reference, becomes widely common. The current measures adopted by governments against the foreign, as well the increasingly participation of local governments in the international community, has waken contentions that politics has been detached from the so-called “national identity”. Apparently, these messages are coming along from extremist political views on the ground that we need to recover our identity and to restore the nation from the shameful present. However, these calls are based on a particular concept of ‘political community’ and ‘people’ that is being built outside of the democratic Constitution: meaning ideas that in the long run appeals to the exclusion of those who are not part of the nation or who do not follow the nation because of their conscience or accidental characteristics, despite the existence of constitutional values that stand for the opposite. In the present paper, I would like to discuss the thesis that we cannot longer stand for a nation-state argument (proper of the national sovereignty tradition) to see who belong or not to the political community on the grounds of accidental or irrelevant characteristics and instead, we should stand for the ‘People-based Constitution’ as a symbol of our political commitment to the very ideals of constitutionalism. In order, to properly advance the argument, I will argue that political tolerance is essential to maintain the political community (I); and how the political approach of the concept ‘people’, allows us to promote political equality and freedom to effectively achieve Constitutional-State, instead of a nation-State (II).

The use of constitutional language and concepts has enjoyed a widespread expansion in recent decades. From the relatively narrow confinement within national constitutional law discourses it has, in the wake of globalisation, crept into almost all legal sub-disciplines as well as into political science, international relations and sociology. Does this development mark the triumph of constitutionalism or is it rather an indication of its demise taking the form of an increasingly desperate attempt to maintain the constitutional outlook in the face of structural developments which threaten to undermine state-based constitutional orders? This crucial question, which goes to the core of the future of democracy and the rule of law, is the topic of this brilliantly edited volume.

"""This pioneering research offers a sweeping new interpretation of the complex and seemingly contradictory nature of Indian democracy and polity. In contrast to much of existing scholarship, it joins the colonial and postcolonial periods in Indian history into a seamless narrative. "India in the Shadows of Empire" explains the postcolonial Indian polity by presenting an alternative historical narrative of the British Empire in India and India's struggle for independence. It pursues this narrative along two major trajectories. On the one hand, it focuses on the role of imperial judicial institutions and practices in the making of both the British Empire and the anti-colonial movement under the Congress, with the lawyer as political leader. On the other hand, it offers a novel interpretation of Gandhi's non-violent resistance movement as being different from the Congress. It shows that the Gandhian movement, as the most powerful force largely responsible for India's independence, was anchored not in western discourses of political and legislative freedom but rather in Indic traditions of renunciative freedom, with the renouncer as leader. This volume offers a comprehensive and new reinterpretation of the Indian Constitution in the light of this historical narrative. "India in the Shadows of Empire" contends that the British colonial idea of justice and the Gandhian ethos of resistance have been the two competing and conflicting driving forces that have determined the nature and evolution of the Indian polity after independence.

Ambitious, original, and thought-provoking, this book will be indispensable for students and scholars of Indian history, the British Empire, legal-constitutional history, political science, and sociology. It will also interest anybody seeking a broad understanding of the mainsprings of modern Indian history and politics.

Review: "This is a truly original and path-breaking book in more ways than one can list. It provides an innovative history of the construction of the idea of justice and its institutional locations in modern India...It presents a refreshingly original reading of the relationship between discourses of law, justice, and sovereignty. In doing so it opens up a veritable new research agenda on the relationship between power and politics in Indian history. The book contains a wealth of new archival material. But it also brings freshness to familiar material. The book is unfailingly stimulating and will transform your thinking about how power is legitimized and contested."--Pratap Bhanu Mehta, President, Center for Policy Research, New Delhi """