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Constitutional Violence

Constitutional Violence: Legitimacy, Democracy and Human Rights

Antoni Abat i Ninet
Copyright Date: 2013
Pages: 192
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  • Book Info
    Constitutional Violence
    Book Description:

    If constitutional legitimacy is based on violence, what does this mean for democracy?Almost every state in the world has a written constitution. The great majority of these declare the constitution to be the law controlling the organs of the state. We tend to label western liberal political systems as ‘constitutional democracies’, dividing the system into a domain of politics where the people rule and a domain of law that is set aside for a trained elite. Legal, political and constitutional practices demonstrate that constitutionalism and democracy seem to be irreconcilable. Is good government feasible and is a constitutional system the best device to rule a country? Can the public and legal sovereignties be reconciled?Antoni Abat i Ninet strives to resolve these apparently exclusive realms of power, using as case study their various avatars across the globe. The American constitutional experience that has dominated western constitutional thought is here challenged as quasi-religious doctrine and the book argues that human rights and democracy must strive to deactivate the ‘invisible’ but very real violence embedded in our seemingly sacrosanct constitutions.Key Features:*INTERDISCIPLINARY – Adopts an interdisciplinary approach from law, politics and sociology that goes beyond the mainly legal genre of scholarship on the subject; sheds light to the multifaceted ways in which the ECHR system and its Strasbourg-based judicial arm penetrate and interact with national legal and political orders*NATIONAL PERSPECTIVE – Covers eight country-based case studies on state implementation and domestic impact of the ECtHR judgements in a wide array of case law ranging from property legislation, fair trial and other aspects of the judicial system, to the protection of civil liberties such as family or private life and religious freedom, among others *FOCUS ON DISADVANTAGED SOCIAL ACTORS – Explores how and why various disadvantaged or vulnerable social actors take recourse to the ECtHR to pursue different rights claims vis-à-vis states, and the extent and conditions under which the respective judgments influence rights-expansive legal and policy reform domestically*INSTITUTIONAL IMPLEMENTATION AND SOCIAL MOBILISATION – Combines a top-down perspective of the official institutions and actors involved in the national implementation of the ECtHR’s judgements, with an interest in the bottom-up processes of mobilisation of Convention rights in the ECtHR by a variety of individual and social actors in pursuit of policy and political-social change*ANALYTIC AND NOT MERELY DESCRIPTIVE – Does not merely describe the configuration of national-level structures and actors responsible for the implementation of the ECtHR’s case law and measures adopted by authorities in response to adverse judgments; it furthermore probes into the variable responses of national authorities to different kinds of judgments and rights issues and seeks to identify and analyse the factors and conditions that influence variable patterns of domestic implementation and legal or policy reform.

    eISBN: 978-0-7486-6955-4
    Subjects: Law, Philosophy

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-viii)
    Mark Tushnet
  4. 1 Introduction
    (pp. 1-7)

    This book is the result of an extended process of thinking that began with the draft of my paper ‘Playing at being Gods’.¹

    After this work I started to focus my interest on the main issues addressed in this book: constitutional legitimacy and the relationship between democracy and constitutions. The topics analysed in this book emerged progressively as a consequence of thinking about the preceding issues. The first question to be developed, constituting the opening premise, was that of the origins and influences of the religious discourse in the configuration of the modern constitutional system. Particularly important were the sacred...

  5. 2 Sovereignty and Constitution
    (pp. 8-39)

    This chapter provides a critical introduction by establishing an analytical baseline. A fundamental premise of the book’s argument is that current constitutional legitimacy is ultimately based on violence. The first issue of this chapter considers the fundamentally religious character of the secular constitution – which eventually became what we understand as the modern American Constitution – and the undemocratic character of constitutions in general. I contend that the founding of a constitutional doctrine supported by religious language was not fortuitous. This consecrated supra-legitimacy seeks to coerce the freedom of the people by requesting compliance instead of participation. Chapter 2 deals with this...

  6. 3 Democracy
    (pp. 40-89)

    This chapter asks whether the disjunction between democracy and sovereignty might have its roots in the vagueness of the concept of democracy. Democracy is a concept that has had various meanings throughout history. Despite this difficulty it is essential to pin down the meaning of democracy because of its relationship with the main object of this book. If democracy is the only way to legitimise constitutionalism then we need to know what democracy means. The chapter starts by discussing an etymological and historical definition of democracy in an attempt to specify the semantic indeterminacy (Derrida) that affects the notion. The...

  7. 4 Legal Violence
    (pp. 90-113)

    This chapter analyses the relationship between violence, legitimacy and law, and constitutionalism from a theoretical perspective. The first issue that arises in the study of this question is why the people obey the law, and the role that legitimacy plays in voluntary compliance. The doctrine answers this question with various theories, such as the ‘habit of obedience’, ‘risk of punishment’ or the role of authority. After considering this issue, the chapter deals with the intimate and long-standing relationship between violence and law. The starting point is a definition of legal violence and the role that legitimacy plays in order to...

  8. 5 Comparing Constitutional Violence
    (pp. 114-170)

    This chapter is an empirical demonstration of current constitutional violence and how symbolic and theoretical constitutional violence affects people. It examines comparative constitutional violence and legal realism, and it shows why constitutional violence is important and looks at the theory and the practice.

    The chapter begins with an example of American constitutional violence based on the application of the death penalty in Puerto Rico: in contravention of the articles of the Puerto Rican Constitution; the expressed will of the people; the declared position of Puerto Rico’s elected politicians (governor, senate and municipalities); and, finally, in contravention of international human rights...

  9. Afterword
    (pp. 171-178)

    The first conclusion that I want to emphasise is the understanding of human rights as a democratic feature. As Chapter 3 concludes, democracy, as a system, cannot be limited to a simple election method cloistered within borders. Democracy must be interpreted and enforced with a human rights baseline.

    The five examples of legal violence expounded in this book demonstrate that constitutional enforcement is violent because it is illegitimate. In this sense, state or constitutional illegitimate force is plain violence. My point is that we cannot assume the legitimacy of the state (Schmitt) or constitutional violence (Kelsen) based on theological theories....

  10. Bibliography
    (pp. 179-189)
  11. Index
    (pp. 190-192)