Constitutional Listening

This article explores a particular methodology of comparative constitutional analysis that it calls constitutional listening. Derived from the interpretive principle of charity, constitutional listening involves interpreting constitutional discourse of other polities in their best light. This includes not simply polities whose constitutional structures and values resemble our own, but perhaps even more importantly, polities and constitutional systems whose values and structures seem alien to us. The value of this methodology, it is argued, lies in its ability to expand our understanding of the diversity of experiences that have gone into the human project of constitutionalism, and in the diversity of human possibilities that the project provokes. The utility of this methodology will be demonstrated by applying it to the debate surrounding the drafting of the Property Law in the People\u27s Republic of China ca. 2006–2007

Constitutional Listening

This article explores a particular methodology of comparative constitutional analysis that it calls constitutional listening. Derived from the interpretive principle of charity, constitutional listening involves interpreting constitutional discourse of other polities in their best light. This includes not simply polities whose constitutional structures and values resemble our own, but perhaps even more importantly, polities and constitutional systems whose values and structures seem alien to us. The value of this methodology, it is argued, lies in its ability to expand our understanding of the diversity of experiences that have gone into the human project of constitutionalism, and in the diversity of human possibilities that the project provokes. The utility of this methodology will be demonstrated by applying it to the debate surrounding the drafting of the Property Law in the People\u27s Republic of China ca. 2006–2007

On the limits of constitutional liberalism: in search of a constitutional reflexivity

Analyses of comparative constitutional law are frequently framed by a particular vision of constitutionalism that we call the 'structural-liberal' vision. This vision sees the purpose of constitutional as being one of limiting state power - its ‘liberal’ component - which is done through the construction of a particular set of institutional architectures - such as judicial constitutional review, judicial protection and enforcement of fundamental rights, separation of powers, rule of law, etc. - its 'structural component.' In this paper, we argue that such analyses are incomplete. The structural-liberal vision is but one of a number of ways of conceptualizing constitutionalism. It is the product of a particular time and place, and reflects the particular concerns and experiences of that time and place. Conversely, there are other kinds of important constitutional concerns and experiences that the structural liberal-vision renders invisible. These include processes of constitutional emergence and evolution, and symbiotic relationships between constitutionalism and other aspects of the regulatory environment (such as the economic structure of the state). In order to be complete, analyses of comparative constitutional law need to be more attentive to the distinctive concerns and experiences of the subjects of their attention. This involves allowing the subject system to speak for itself within the context of the larger, human discussion of constitutionalism - an analytic methodology that we call constitutional reflexivity

Introduction

Martin Loughlin’s Foundations of Public Law offers a radical reworking of public law scholarship, converting it into an interdisciplinary enquiry into the political character of the state. Bringing public law into conceptual and discursive interplay with political theory, political sociology and state theory, Foundations explores the core legal-political relation as it evolves with the evolution of the modern state. The project raises a number of questions that are critically interrogated in this special issue. Does Foundations neglect the emancipatory and normative potential of public law? Does it fully capture the material forces at work in conditioning the evolution of the state and its law? Does public law, at least in its administrative branches, depend upon a foundation at all? And, at its most basic, is an enquiry into the foundations of public law misguided in light of the plurality of its forms

China’s transition and the limits of the American constitutional perspective

The standard frameworks used to evaluate constitutional systems are not well suited to exposing transitional capacity. The constitutional problems that Minxin Pei’s Trapped in Transition focuses on do not reveal the system’s eventual capacity to transcend them. There is significant potential for constitutional development in China. The constitutional system is rapidly inter-penetrating other political and social systems within China’s civil and political environment. There has been a recent explosion in constitutional discourse across all sectors of Chinese society, giving rise to experimentation and diffusion of constitutional innovations. We might therefore conclude that China, while deficient in many respects, also enjoys a significant capacity to find solutions for its constitutional problems.</p

Do We Really Need a `Pluralist Jurisprudence??

10.1080/20414005.2017.1446416Transnational Legal Theory84381-39

On the limits of constitutional liberalism: in search of constitutional reflexivity

Constitutionalism Beyond Liberalism bridges the gap between comparative constitutional law and constitutional theory. The volume uses the constitutional experience of countries in the global South - China, India, South Africa, Pakistan, Indonesia, and Malaysia - to transcend the liberal conceptions of constitutionalism that currently dominate contemporary comparative constitutional discourse. The alternative conceptions examined include political constitutionalism, societal constitutionalism, state-based (Rousseau-ian) conceptions of constitutionalism, and geopolitical conceptions of constitutionalism. Through these examinations, the volume seeks to expand our appreciation of the human possibilities of constitutionalism, exploring constitutionalism not merely as a restriction on the powers of government, but also as a creating collective political and social possibilities in diverse geographical and historical settings. Combines theoretical and comparative constitutional analysis, putting together two sets of discourses that are usually separate, enabling theory and practice to be mutually enhanced Theoretically comparative, providing the reader with a better understanding of the possibilities of constitutionalism Geographically comparative, enabling the reader to see how constitutional theory can transcend national and cultural differences