"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Sunday, November 27, 2011

SSRN: Weekly Round up of Articles on Constitutional Law

Separation of Powers Under the American Legal System and Islamic Law

Mohamed Abdelaal

Indiana University, School of Law, Indianapolis; Alexandria University - Faculty of Law


Separation of Powers is well-established principle in all modern-democratic legal systems. In the abstract, this principle is a constitutional principle in which every state is eager to draw its features in its own constitution.

The Separation of Powers is a term that invented by the French political philosopher Baron de Montesquieu after being first introduced by the ancient Greeks and developed by the Roman Empire.

The principle is a mere attempt to a draft a model of governance that reinforces the democratic aspects in the state by dividing the state into three branches “executive, legislature, and judiciary”. The principle is to arm each branch with some tools whereby each branch can check the powers of the other and guarantee that no branch will intervene in the functions of the other.

In this paper, the author expound briefly the borders of this principle in both the American Legal System and Islamic Law, in an attempt to shed light over the emergence of this principle and the mechanism that shapes its working field in the two systems.

Governance, Accountability and the Market in Hungary's New Fundamental Law

Marton Varju

University of Hull - School of Law


In 2010 and 2011, Hungary enjoyed the privilege of drafting a new constitution in which the complexities of modern Hungarian society, the demands concerning the regulation of the economy and society, the new arrangements for the use of public power and accountability, and the constitutional responses to the challenges of European and global governance could be expressed. The declared intention was to create a constitution which would conclude the 20 years of transition, and provide the fundamental political, legal and social arrangements for a fresh start. In this process, the drafters had the advantage to consider the wealth of knowledge and experience available in global and European constitutionalism, and enjoyed the political support of a stable majority government. The conditions were ideal for a conceptually open, transparent and deliberative constitution making process. This, however, was never realized owing to the time constraints dictated by a government having set its mind to overhaul the complete constitutional system for which the new constitution would provide the foundations.

The new Fundamental Law and its disappointing provisions concerning the system of governance, accountability and the relationship between the state and the market provide an excellent opportunity to discuss the conceptual limitations of constitutions and the etymological boundaries of constitutional texts. 'Constitutions are replete with gaps, silences, and abeyances' and in developing rules and institutions mistake a part of the political, social and economic order for the whole. The main question is whether the 'fundamental mismatch' between constitutions and newer paradigms of governance and accountability could be overcome and these paradigms could be expressed in the constitutional text.

Entrenching Provisions in Australia: Are They Effective?

Mark Humphery-Jenner

University of New South Wales (UNSW) - School of Banking and Finance; Tilburg University - European Banking Center


The author seeks to analyze the Australian position on whether one ‘legislature can bind a subsequent legislature’ by passing entrenching provisions. The focus is on federal jurisdiction. Entrenching provisions (EPs) purport to insulate a statute from subsequent legislative action. They may do this by making amendments/repeals conditional on either achieving a supermajority in parliament (a super-majority EP, or SEP) and/or a pre-requisite such as a time-limit being met (a pre-requisite EP, or PEP). It is argued that: First, SEPs are invalid as contrary to Constitution Section 23 and Section 40. Second, PEPs are valid if they are ‘with respect to’ an enumerated Section 51 power. This is met if they are for the purpose of achieving the Section 51 power. This imports notions of the PEP being ‘reasonably proportionate’ to the exercise of the Section 51 power; and thus, excludes ‘extreme’ types of entrenchment, such as indefinite entrenchment. Third, there is no other implicit constitutional bar to EPs.

The Senate and the Constitution

Vikram D. Amar

University of California, Davis - School of Law

Yale Law Journal, Vol. 97, No. 6, p. 1111, May 1988


The United States Senate has largely been ignored in legal literature. No pieces have provided a systematic analysis of the Senate’s place and function in the constitutional scheme. The Senate plays a critical role both in constitutional interpretation and societal value pronouncement. In considering the Senate’s role in these areas, this essay considers four constitutional processes: legislation, impeachment, appointment and amendment. In considering the Senate’s role in these four processes, this essay will also reveal the special policy functions it was intended to perform.

Thickening the Rule of Law in Transition: Lessons from the Constitutional Entrenchment of Economic and Social Rights in South Africa

Evelyne Schmid


This chapter examines the ability of the South African Constitutional Court to apply economic and social rights (ESR) and whether the constitutionalization of ESR represents a mechanism capable of entrenching a substantive or ‘thick’ conception of the rule of law. The chapter considers ‘transformative constitutionalism’ and its ability to fulfill the ambitions of setting out to establish a society based on social justice and fundamental human rights. The South African jurisprudence after the constitutionalization of human rights, in particular ESR, has been praised by the international community. Nevertheless, the central tenets of the chapter are two cautionary findings. First, the analysis cautions against using constitutional change alone to enhance the rule of law after conflict or oppressive rule. Although constitutional adjudication in South Africa has had positive outcomes, modifying the place accorded to international law in the domestic legal system is largely insufficient for the realization of ESR and the ‘thick’ conception of the rule of law envisioned by the drafters of the 1996 Constitution. Second, the chapter finds that a domestic belief in the relevance of international and national legal norms was decisive in the South African experience. The constitutional empowerment of domestic courts to apply international legal principles would not, by itself, explain the practice of national courts insisting on the implementation of rights recognized in international law. Moreover, a number of unique factors related to the actors and process leading to the constitutional transformation in South Africa contribute to explain the remarkable transition towards an international law-friendly constitution. While the empowerment of domestic courts in South Africa provides lessons for other states, those lessons are primarily ones regarding limitations, complexities, and context-specific issues that arise in the empowerment of domestic courts to apply international legal principles in situations of transition.

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