Inferring Mechanisms for Global Constitutional Progress

Constitutions help define domestic political orders, but are known to be influenced by two international mechanisms: one that reflects global temporal trends in legal development, and another that reflects international network dynamics such as shared colonial history. We introduce the provision space; the growing set of all legal provisions existing in the world's constitutions over time. Through this we uncover a third mechanism influencing constitutional change: hierarchical dependencies between legal provisions, under which the adoption of essential, fundamental provisions precedes more advanced provisions. This third mechanism appears to play an especially important role in the emergence of new political rights, and may therefore provide a useful roadmap for advocates of those rights. We further characterise each legal provision in terms of the strength of these mechanisms

Subnational Environmental Constitutionalism and Reform in New York State

The State of New York’s constitution was perhaps the first in the world to embody environmental constitutionalism, most directly in what is known as its “Forever Wild” mandate from 1894. In contrast to many subnational environmental provisions, courts in New York have regularly enforced Forever Wild. New York’s Constitution also contains a remarkable mandate that every twenty years voters decide whether to hold elections for delegates to convene a convention to amend the state’s constitution, with the next such opportunity on November 7, 2017. This article explores how subnational constitutionalism from around the world informs discussions about whether and how to amend the charter, and has three parts. Part I provides a primer to the field of subnational environmental constitutionalism. Part II explores the opportunities and challenges in enforcing existing subnational environmental provisions. Part III then examines a case study involving language to consider at a constitutional convention for the State of New York

Rethinking the transition process in Syria: constitution, participation and gender equality

A just and sustainable peace for Syria can only be attained through the equal participation of women\u2019s rights defenders at the negotiation table and throughout the transitional process. Understanding the legal framework within which such participation takes place \u2013 and the challenges of promoting women\u2019s rights through a gender-responsive constitution \u2013 is crucial. This publication, resulting from a collaboration between Euromed Feminist Initiative and the University of Padova, builds on the knowledge of academics and advocates, shedding new insights on those challenges. It aims at supporting institutional efforts being made to guarantee women\u2019s participation in the Syrian reconstruction, as well as advocacy initiatives carried out to ensure women\u2019s participation in political and economic decision-making in the country\u2019s future

Human Capabilities and Human Authorities: A Comment on Martha Nussbaum’s Women and Human Development

What does it mean to be truly human? And, relatedly, what does it mean to be treated as truly human, and with dignity, by the state, or community, of which one is a part? To be fully human, Martha Nussbaum has argued for the better part of two decades, and argues in greater detail in “Women and Human Development”, is not only to be rational, and not only to be happy, but also to be capable - capable, for example, of loving others, of thinking rationally about one\u27s own life, of engaging in dignified labor, of interacting with the natural and political environment, of participating in a society\u27s cultural life. A truly human life is defined by, or perhaps constituted by, these capabilities; to lack anyone of them is in some way to lack a fundamental pillar of one\u27s humanity. Therefore, she continues, a citizen in a constitutional government is treated as fully human by the state when that person\u27s fundamental capabilities - the capabilities which define her humanity - are, at least minimally, protected, promoted or nurtured by the state\u27s governing authorities. Constitutional governments, then, whatever else they do, must protect, promote, or create whatever conditions are necessary for citizens to possess these fundamental capabilities . . . I will highlight and then amplify what I think is missing or underplayed in Nussbaum\u27s treatment of capabilities and women, and that is the role that authority plays - and the role it should and should not play - in guiding states toward a recognition of their obligation to nurture, promote, or protect women\u27s - and men\u27s and children\u27s - human capabilities

The Transnational Constitution of Europe’s Social Market Economies: A Question of Constitutional Imbalances?

Throughout its history the European integration process has not undermined but rather strengthened the autonomy of Member States vis-à-vis wider societal interests in relation to political economy, labour markets and social provisions. Both the ‘golden age nation state’ of the 1960s as well as the considerable transformations of Member State political economies over the past decades, and especially after the euro-crisis, was to a considerable degree orchestrated through transnational, most notably European, arrangements. In both cases the primary objective has been to strengthened state capacities of public power and law against the encroachment of private interests into the state. In spite of this continuity considerable changes can however be observed in the substantial economic policies advanced due to the switch from a Keynesian to a monetarist economic paradigm. It is suggested that the debate on constitutional imbalances between the EU’s economic and social constitutions should be seen in this light

Societal constitutionalism : alternatives to state-centred constitutional theory

Englische Fassung: Societal Constitutionalism: Alternatives to State-centred Constitutional theory? ("Storrs Lectures 2003/04" Yale Law School) In: Christian Joerges, Inge-Johanne Sand und Gunther Teubner (Hg.) Constitutionalism and Transnational Governance. Hart, Oxford 2004, 3-28. Und in: Ius et Lex 2004, S.31-50. Französische Fassung: Constitutionalisme sociétal et globalisation: Alternatives à la théorie constitutionelle centrée sur l'État. Themis 2005 (im Erscheinen) Italienische Fassung: Costituzionalismo societario: alternative alla teoria costituzionale stato-centrica. In: Gunther Teubner, Costituzionalismo societario. Armando, Roma 2005 (im Erscheinen). Spanische Fassung: Globalización y constitucionalismo social: alternativas a la teoría constitucionalista centrada en el Estado". In: Carlos Gómez-Jara Díez (Hg.), Teoría de sistemas y Derecho penal: Fundamentos y posibilidades de aplicación. Granada: Comares, 2005 (im Erscheinen) und in: Cancio Meliá und Bacigalupo Saggese (Hg.) Derecho penal y política transnacional. Barcelona: Atelier, 2005 (in Erscheinen)und in: Gunther Teubner, El Derecho como sistema autopoiético de la sociedad global, herausgegeben von Carlos Gómez-Jara Diez. Bogotá: Universidad Externado de Colombia, 2005 (im Erscheinen) und Lima: ARA Editores, 2005 (im Erscheinen) Polnische Fassung: Konstytucjonalizm spoleczny: Alternatywy dla teorii konstitucyjnej nakierowanej na panstwo. Ius et Lex 3, 2004, S.5-27

The Self-Destruction of Yugoslavia

The self-destructiveness of the former Yugoslav federal system has not yet received its appropriate place in numerous accounts of the causes of Yugoslavia’s disintegration. This essay explores the self-destructive mechanism of the former Yugoslav socialist federal system. Its main thesis is that it was the institutional composition of the former Yugoslavia that was largely responsible for the cleavages in the 1980s, which caused the mutually exclusive ethnic nationalisms of today. In other words, the crisis, the subsequent ethnonational homogenization and the dissolution of the federal state were a natural outcome of the constitutional foundations of the system. When in the 1980s, republican elites defined national self-determination not politically, in terms of citizens’ rights, but ethnically, in terms of group rights, they were closely following the Constitution. They recognized that insistence on primordial social, national and cultural differences in the country could be used to legitimize political power within their respective federal units. This insistence on the ethnic principle radicalized inter-ethnic relations in the country to the extent that the destruction of Yugoslavia became inevitable