Confronted by major global problems, our 'foremost challenge', according to the 1995 report of the Commission on Global Governance, is to develop the vision of a better world - one more democratic, secure and sustainable. The report concludes with a call for 'a global civic ethic' - for commitment by all to a set of globally protective responsibilities. The thesis asks, what does this challenge imply? How to achieve an effective response? What provisions, in principle, ought to be instituted to meet the Commission's call? The call is a tall order: for a quantum leap from passive, rights-oriented, civic culture to one based on global responsibility. The thesis is not concerned with the probability of such shift occurring. The premise is that if we believe that the call ought to be met, that it commands an ethical response from all, we ought first to comprehend the ethical and practical complications, and second, seek to comply with them. The thesis is concerned with the first obligation. It requires an inquiry disciplined by moral reasoning and persistent focus on the long range, world future. It has led the thesis into somewhat underdeveloped terrains. The call to enact global civic responsibilities implicitly entreats us to recognise the validity and gentle power of Kant's categorical imperative, to unleash it from its remote, theoretical mountaintop and allow it to reign supreme as the preeminent, constitutional principle for personal and global governance. The thesis argues that this recognition will require, and result in , a new, education-led constitutionalism centred on civic integrity development. Logically derived from the Golden Rule, the categorical imperative and its universality and moral autonomy constraints are adopted by the inquiry, somewhat experimentally, as a methodological discipline. For it is argued that such discipline should be cultivated by the new, education-based constitutionalism. This requires persistent, uncompromising focus on the universal ought. Where ought leads, the inquiry follows, even when it invokes an apparently 'unrealistic' future beyond the margins of current educational and constitutional practice. The new constitutionalism appears vaguely outlined on the horizon, largely beyond political and educational experience. The thesis moves towards this horizon to consider grounding assumptions and transit impediments, with the goal, above all, to determine the more prominent, 'in principle' landmarks toward which the world's educational resources could be steered. The term constitution is min imally defined as a paramount, overarching strategy of mutual protection, not bound to current national constitutions, territories, and identities, nor to familiar constitution-making processes. Invoked by growing recognition of global interdependence and mutual risk, it stands for inclusive protection, ideally of, by and for 'We the People of the World'. The Commission's recommendation that people should deliberate on 'the vision of a better world' has been pursued by futurists since the 1960s. Their pioneering ventures are examined in chapter 2 and found contributive yet insufficient to meet the constitutional requirements implied by the Commission's challenge. Various conceptual and practical obstacles impede effective response to the challenge. These preoccupy much of chapter 2 and indeed the whole thesis. The new constitutionalism presupposes, as does prevailing national constitutionalism, that despite cultural differences, there are certain universal interests that all want protected. Most would want r eliable protection against preventable mayhem, slaughter and environmental destruction. It is argued in chapter 3 that while the universalist assumption can reasonably withstand relativist scepticism, universal interests remain to be identified. Upon examination of notable identification procedures it is asked 'should this be left to social researchers'? Arguments are raised to suggest that, as a civic harm preventative measure, all people should be constitutionally required to identify these interests. Universal interests cannot be protected while people take no responsibility for their protection. Were the Commission's call for globally responsible civic culture taken seriously, what would this imply for world political economy? Chapter 4 undertakes an exercise in future-oriented normative inquiry to explore world constitutional implications in outline. Revealed on the horizon is a new economic game with new words: the priactive constitution. The exercise demonstrates the challenging nature of the substant ive ethical agenda confronting deliberants of the new constitutionalism. What right does one have to participate in world constitutional deliberations and consider such agendas? Chapter 5 argues that one has a right, and a responsibility to do so. The arguments appeal to the democratic ideal, political legitimacy, the Golden Rule, the defence role of citizenship and the fact that each imposes the world constitutional order on all. But the participatory right and responsibility cannot be exercised without universally accessible constitutional fora, procedures and education. The theoretical ideals of deliberative democracy are summoned. The current technical feasibility of creating an Internet-based system of democratic deliberative provisions is illustrated in the Appendix. Even were such provisions made available, a key impediment to effective response to the Commission's call is that most work-committed adults are unlikely to volunteer substantial time for the learning engagement. Given the unacceptability of political coercion, chapter 6 considers the moral proposition that youngsters worldwide be submitted to the learning challenge in their years of compulsory education. The literature on moral justifications for compulsory education reveals considerable disagreement. These justifications seem anyhow unrelated to curriculum priorities that are actually imposed on captive audiences. As highlighted by the World Trade Centre attack, the world's people have little constitutional protection against deceptive doctrines conveyed in distant classrooms. A key problem for global governance is whether the world's teachers should not be constitutionally obligated to promote and exemplify globally protective responsibilities. Chapter 6 argues that universal compulsory education can be ethically justified for the protection of universal interests only when civic integrity development is maintained as the curriculum priority. This would develop global civic responsibilities in teachers and students through exercising their participation in world constitutional deliberation under the counterindoctrination constraints of the categorical imperative. It would entail deliberation on universal interests in view of global threats, alternative normative strategies to protect those interests, and public disclosure of normative commitments. Moreover, by tapping the real interests of students, adult literacy expectations, linguistic, moral, ecological and political, could be more readily met. But such educational strategy might not suffice to assure reliable enactment of civic responsibilities. It is argued that 'school' might need replacing or augmenting with environmentally rich learning settings that could enable chosen norms to be experienced and demonstrated. The thesis concludes that implementation of the new, education-centred constitutionalism implied by the Commission's call will first require an engaged response from educators. It is recommended that a global network be established linking key persons in schools and university faculties who will take responsibility for activating curriculum and community response to the Commission's call and, in the first instance, engage themselves in civic integrity development to acquire facilitator competencies.

In this dissertation I will argue that what I call critical veneration of the American Constitution is necessary to realizing the aspirations we, as American citizens, have set for ourselves in the Declaration of Independence and the Preamble to the Constitution. I begin from James Madison’s concept of blind veneration, which he argues in the 14th Federalist is dangerous because it blinds people to the necessity of changing governments to suit new or changed peoples. However, Madison does not support critical veneration either. Rather, he is a proponent of what I call cautious veneration: “‘The people…ought to be enlightened, to be awakened, to be united, that after establishing a government they should watch over it, as well as obey it.’” I call this cautious veneration because it involves more active and critical thought than blind veneration, but it falls short of the evaluative and normative standards that I associate with critical veneration. Madisonian cautious veneration is tethered more tightly to the existing Constitution than to aspirations set forth in the Constitution: in particular, the promise of continual moral and political improvement achieved over the historical span of the American project, so long as it should last. Critical veneration, on the other hand, must be joined with a theory of aspirational constitutionalism, which requires simultaneous reverence for the Constitution and critique of that Constitution’s inadequacies in order to push the country forward towards realizing its aspirations. / text

The 1992 decision of the High Court of Australia to uphold the claim of the Meriam people was welcomed as beginning a new era where the unique status of Aboriginal and Torres Strait Islander peoples would gain recognition. Intense debate and activity ensued with federal parliament adopting a legislative framework to recognise native title and the Council for Aboriginal Reconciliation considering its broader constitutional implications. Fourteen years on though much of the promise of Mabo lies unfulfilled. This thesis draws upon the work of Canadian philosopher James Tully. He writes of contemporary constitutionalism in Western society and its inability to give more than superficial recognition to cultural difference. He locates the problem as lying with the dominant language of modern constitutionalism. This language provides for two main forms of recognition: the equality of self-governing nation states and the equality of individual citizens. Tully locates a way forward through the presence of another constitutional language. Common constitutionalism has enabled an accommodation of cultural differences guided by its three conventions of mutual recognition, continuity, and consent. Moreover, it is beneficial to analysing other studies about the ability of common law to recognise the claims of Indigenous people. Tully’s contribution is applied to an examination of the Mabo events in a way that takes account of Australia’s constitutional traditions. The aim is to clarify the languages employed by the representatives of Australia’s institutions of governance and whether this places obstacles in the way of recognising Aboriginal and Torres Strait Islander peoples. The inquiry considers the events prior to the High Court’s decision, the Keating government’s response, and the Howard Government’s native title changes. Other chapters examine the constitutional language used by Aboriginal and Torres Strait Islander peoples and the significance of the Council of Aboriginal Reconciliation. The central argument of this study is that once it is accepted that the claims of Indigenous people in Australia are constitutional, it becomes possible to appreciate that these were largely voiced through the language of human rights and common constitutionalism. In contrast, when the claims were considered by the High Court and federal parliament significant aspects were articulated through the modern constitutional language. Another thread running through the events was a desire to confront and overcome the influence of the language of White Australia. The thesis concludes by considering the significance of the findings for a settlement between Aboriginal and Torres Strait Islander peoples and other Australians.

Thesis advisor: R. Shep Melnick / In what seems like the blink of an eye, transgender rights has catapulted from a nonissue in American politics to the peak of the culture wars. Scholarship on the transgender rights movement has proliferated rapidly in recent years, most of it sympathetic to the cause but some of it critical. Missing from this literature, however, is a serious examination of how courts and agencies have justified their efforts to advance what Vice President Joe Biden in 2012 called “the civil rights issue of our time.” This dissertation tries to fill that gap. Through an in-depth analysis of court precedents and agency pronouncements, and an examination of the assumptions behind regulators’ redefinition of male and female, it suggests that noble intentions have led civil rights institutions into a thicket of interpretive difficulties and regulatory dilemmas. First, judges and administrators have declared biological sex a “stereotype,” but have offered virtually no explanation for why this is so. This has resulted in regulatory peculiarities, including: courts relying on “stereotypes” when invalidating policies that they deem stereotypical; agencies instructing schools to adopt conflicting definitions of male and female; and government officials unable or unwilling to explain why separating restrooms and athletic teams by a non-physical understanding of sex is necessary in the first place. The deeper reason for these peculiarities, I argue, is a failure to articulate a coherent account of what makes us sexed beings. Second, civil rights officials have argued that their interpretation of federal law finds unambiguous support in a body of court rulings that condemn stereotyping. The problem with this argument, I suggest, is that the precedents that are cited actually say the opposite of what they are made out to say. They say that sex is biological, and that transgender women are biological men who fail to live up to social expectations about maleness. By invoking the abstract notion “stereotype,” regulators hide their break with precedent from citizens and perhaps also from themselves. Transgender regulation thus raises important questions about legal interpretation in relation to constitutional government, and about the role of the legal profession within liberal democracy. This dissertation challenges two dominant narratives about transgender rights. According to one, transgender rights is part and parcel of a broader postmodernism that is tearing through American institutions and weakening the foundations of Western societies. According to the other, transgender rights is a logical extension of the original civil rights revolution and a fulfillment of liberalism’s deeper humanitarian impulses. I argue that transgender regulations are more “conservative” than those who decry (or hope for) postmodernism believe, but more postmodern than those who appeal to liberal equality seem willing to acknowledge. / Thesis (PhD) — Boston College, 2020. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: Political Science.

No description available.

Joining in the search for a post-apartheid South African jurisprudence, this dissertation departs from transformative constitutionalism, as formulated by Karl Klare. Transformative constitutionalism is a long-term project of bringing about social change through the interpretation and enactment of the constitution. Because the project envisions transformation not as single occurrence but as a continuous process, it requires a legal culture that is conducive to this change. Legal culture pertains to the way in which law and legal concepts are approached. The suggestion is that there is a continuation of a formalistic legal culture in South Africa, and this continuation of formalism stifles the transformation envisioned by the South African Constitution and the project of transformative constitutionalism. The idea of continuation emphasises the momentum of legal culture and is related to institutional inertia. This dissertation links conservatism, positivism, formalism and other related concepts with the notion of spectacle as outlined in the work of Njabulo Ndebele and proposes that South African legal culture is a continuation of spectacle by looking at approaches to history, constitutionalism, democracy and rights. The spectacle, like formalism, prefers the determinate, values display and emphasises the external - it is an overt and celebratory mode devoid of thought. Because the spectacle and the continuation of a legal culture of spectacle stifles transformative constitutionalism, the submission is that there should be a refusal of spectacle in South African legal culture and a return to the ordinary. The notion of refusal comes from an article by Karin Van Marle, and links with a critical and slower approach. Ndebele introduces rediscovery of the ordinary, which is related to the concept of the everyday. Opposed to the spectacle, refusal and the ordinary favours contemplation and commemoration. This leads to a view on approaching history, constitutionalism, democracy and rights as refusal of spectacle and rediscovery of the ordinary. It is an attempt to rethink South Africa’s legal culture in order to move closer to the aims of transformative constitutionalism. Following the aesthetic turn in South African jurisprudence, this dissertation makes use of literary examples to illustrate the arguments. Ndebele’s The Cry of Winnie Mandela and Eben Venter’s Horrelpoot introduce the themes of storytelling, travelling and post-colonialism and aptly expands on the call for a refusal of spectacle. / Dissertation (LLM)--University of Pretoria, 2009. / Jurisprudence / LLM / Unrestricted

This thesis focuses on the development of the Iranian nation and state from 1811 to 1941. Both of these developments occurred in response to Iran's encounter with the European powers, specifically Russia and Great Britain. Government-led reforms opened the possibility for the development of Iranian nationalism, as Iranian students were in England and brought back the first printing press with them to Iran in 1815. The introduction of the printing press was significant to the development of the Iranian nation-state, as an increase in journals and periodicals introduced contemporary European political ideas to Iranians. This increased the calls to replicate the customs and norms of European society in Iran, ultimately leading to the Constitutional Revolution of 1906. The Constitutional Revolution established a Parliament in Iran that was politically weak and held little power in the provinces outside of Tehran. Tribal authority increased throughout Iran, and the Russians and British eventually occupied Iran from 1911 to 1917. The establishment of Reza Shah's rule in 1921 introduced a new centralized Iranian state that was legitimated by the nation and established its rule over the tribes. It is also during Reza Shah's rule that the conception of the Iranian nation begins to change. / Master of Arts / This thesis focuses on the development of the Iranian nation and state from 1811 to 1941. Both of these developments occurred in response to Iran’s encounter with the European powers, specifically Russia and Great Britain. Government-led reforms opened the possibility for the development of Iranian nationalism, as Iranian students were in England and brought back the first printing press with them to Iran in 1815. The introduction of the printing press was significant to the development of the Iranian nation-state, as an increase in journals and periodicals introduced contemporary European political ideas to Iranians. This increased the calls to replicate the customs and norms of European society in Iran, ultimately leading to the Constitutional Revolution of 1906. The Constitutional Revolution established a Parliament in Iran that was politically weak and held little power in the provinces outside of Tehran. Tribal authority increased throughout Iran, and the Russians and British eventually occupied Iran from 1911 to 1917. The establishment of Reza Shah’s rule in 1921 introduced a new centralized Iranian state that was legitimated by the nation and established its rule over the tribes. It is also during Reza Shah’s rule that the conception of the Iranian nation begins to change.

The theory of constitutional pluralism suggests that interacting legal orders that are (or claim to be) constitutional in nature need not—and should not—necessarily be regarded as being hierarchically arranged, with one ‘on top of’ the others. Rather, the relationships between the orders can be conceived of heterarchically. However, there is an assumption in much of the literature that the ‘interface norms’ that regulate the relationships within such a heterarchy are universal by nature, capable of undifferentiated application across differing constitutional orders. This thesis examines whether interface norms are in fact universal by nature, or whether they are relationship- and context-dependent, taking as its field of study three interacting legal orders—those of Ireland, the European Union, and the European Convention on Human Rights. It uses an established model of constitutional pluralism based on ‘coordinate constitutionalism’ to test the assumption of universality across three constitutional frames: the ‘vertical’ relationship between Ireland and the European orders, the ‘horizontal’ relationship between the European orders, and the ‘triangular’ panoply of state, Union and Convention. Having analysed the interface norms at work in these relationships, both in isolation and in the round, the thesis concludes that these norms are not in fact universal, and that different conceptions of constitutional pluralism need to pay much greater attention to the specific nature of any given constitutional order and its relationship with other orders in the constitutional heterarchy.

No description available.

Amidst the global wave of democratization, modernization, and economic engagement during the 1980s and 1990s, the traditional tenets of constitutionalism have proven to be unwieldy dogma for States undergoing periods of rapid transition. In order to retain the administrative capacity to steer – rather than merely adapt to – political and social change, numerous transitioning States have adopted a new paradigm of constitutionalism, namely transitional constitutionalism, characterized by a centralized and streamlined structure of governance. However, in many instances, including Korea’s post-division transitional history, this model has demonstrably undermined fundamental human rights protections. In this thesis, I propose a hybrid constitutional paradigm for unification in Korea (another form of State transition) which seeks to balance the dual objectives of effective governance and human rights protection. I do so by examining and critiquing the core principles of traditional and transitional constitutionalism, outlining the human rights issues that the unified Korea will likely confront in its constitutional trajectory based on an analysis of Korea’s political, social, cultural, and constitutional history, and finally proposing a hybrid model of constitutionalism that utilizes an institutional approach to prevent violations of human rights in the unified Korea while allowing the State to retain governmental efficiency during transition. / Thesis (Master, Law) -- Queen's University, 2013-09-30 11:35:33.362