Interpreting constitutions in divided societies

Lerner, Hanna

doi:10.4337/9781788110600.00013

Cited by 2 publications

(15 citation statements)

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“…In Colombia, the constitutional court has been active in protecting individual and minority rights as well as controlling potential abuses of power-garnering significant popular support (Dixon, 2017). In other contexts, however, judicial intervention in controversial issues may generate political backlash and weaken the court's legitimacy (Lerner, 2018). Constitutional courts may instead work in a more passive and deferential manner, in relation to other state institutions.…”

Section: Approaches and Characteristics Of Constitutional Courtsmentioning

confidence: 99%

“…Unsettled issues: Constitutional drafters in deeply divided societies often refrain from making clear-cut choices on controversial foundational issues (e.g. national identity or relations between religion and state) in order to prevent overt conflict (Lerner, 2018). After the Arab Spring in the Middle East, for example, constitution drafters intentionally left some foundational issues undecided (Lerner, 2018).…”

Section: Sequencingmentioning

confidence: 99%

“…national identity or relations between religion and state) in order to prevent overt conflict (Lerner, 2018). After the Arab Spring in the Middle East, for example, constitution drafters intentionally left some foundational issues undecided (Lerner, 2018). In some cases, an interim constitution can allow time for such controversial issues to be addressed, ideally in a way that will enable the process of finalising a permanent constitution to be undertaken in a more conducive, peaceful environment (Rodrigues, 2017).…”

Section: Sequencingmentioning

confidence: 99%

“…In some cases, an interim constitution can allow time for such controversial issues to be addressed, ideally in a way that will enable the process of finalising a permanent constitution to be undertaken in a more conducive, peaceful environment (Rodrigues, 2017). Constitutional drafters have facilitated the establishment of a constitutional court to address issues about the character of the state that are unresolved at the constitution-making stage (Lerner, 2018). Lack of constitutional clarity on contentious foundational issues can, however, lead to confusion over which branch of government should take the lead in dealing with such issues-risking conflict between the legislature and the judiciary (Lerner, 2018).…”

Section: Sequencingmentioning

confidence: 99%

“…Constitutional drafters have facilitated the establishment of a constitutional court to address issues about the character of the state that are unresolved at the constitution-making stage (Lerner, 2018). Lack of constitutional clarity on contentious foundational issues can, however, lead to confusion over which branch of government should take the lead in dealing with such issues-risking conflict between the legislature and the judiciary (Lerner, 2018).…”

Section: Sequencingmentioning

confidence: 99%

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Constitutional Courts: Approaches, Sequencing, And Political Support

Haider¹

2022

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This rapid review looks at various constitutional courts established in transitional, fragile and conflict-affected contexts—the approaches adopted, sequencing in their establishment, and experiences with political support. There are few comprehensive accounts in the literature, however, of constitutional courts and their role in judicial review in the contexts of transition and/or as key actors in ‘building democracy’ (Daly, 2017a; Sapiano, 2017). Further, scholars have tended to focus on a relatively small number of case studies from the immediate post-Cold War era, such as South Africa and Colombia (Daly, 2017a). Discussion on the sequencing and steps adopted in establishing a constitutional court in fragile and conflict-affected states (FCAS), or on incentives that have swayed political elites to support these courts, is even more limited. Nonetheless, drawing on various academic and NGO literature, including on countries that transitioned from authoritarianism, this report offers some discussion on sequencing in relation to the constitution-making process and the establishment of the courts; and general reasoning for why constitutional courts may be supported by political actors.

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Section: Approaches and Characteristics Of Constitutional Courtsmentioning

confidence: 99%

Section: Sequencingmentioning

confidence: 99%

Section: Sequencingmentioning

confidence: 99%

Section: Sequencingmentioning

confidence: 99%

Section: Sequencingmentioning

confidence: 99%

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Constitutional Courts: Approaches, Sequencing, And Political Support

Haider¹

2022

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Rights Constitutionalism and the Challenge of Belonging: An Empirical Inquiry into the Israeli Case

Alexander

2022

Law Soc. Inq.

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Rights constitutionalism faces a global crisis of legitimacy, and recent years have seen a surge in scholarship on the crisis. The vast majority of analyses focus on broad structural factors and processes. This article takes a different approach: sociological and bottom up. I use qualitative discourse analysis to examine how social actors in Israel justified their antagonism toward rights constitutionalism in three cases where judicial intervention for human rights encountered exceptional public opposition and political backlash. The analysis reveals that social actors used discourses of belonging—both liberal and non-liberal—to challenge rights constitutionalism as a constraint on democratic politics, when they perceived rights protection as conflicting with or undervaluing boundaries of collective identity. Based on these findings, I introduce a new concept—the challenge of belonging—that expresses the normative tension between individual rights and collective belonging. By highlighting the ethical dimension of social opposition to rights constitutionalism, the sociological approach allows a nuanced understanding of such opposition. The challenge of belonging can account for mixed attitudes in the same polity and even in the same social group on rights-oriented judicial intervention, and it points to a common normative thread linking attacks on liberal constitutionalism in vastly different sociopolitical settings.

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Interpreting constitutions in divided societies

Cited by 2 publications

References 0 publications

Constitutional Courts: Approaches, Sequencing, And Political Support

Constitutional Courts: Approaches, Sequencing, And Political Support

Rights Constitutionalism and the Challenge of Belonging: An Empirical Inquiry into the Israeli Case

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