Several problems disquieting the developing world render the post-colonial state unstable, with recurrent, often violent conflict. The seeming incurable vulnerability of the nation-state construct reflects inherent problems in its basic constitutional philosophy for managing diverse identities in the global South. It suggests an incapacity for equality and justice, undermining the moral legitimacy of the colonial-state model. This is illustrated using Central Nigeria or Nigeria’s ‘Middle- Belt’ through numerous identities, largely veiled in non-recognition and misrecognition by the colonial and post-colonial state and its conflicts. The baggage of colonialism stalks the developing world through unjust socio-political orders. Therefore, the post-colonial liberal constitution (using Nigeria’s 1999 Federal Constitution) and mechanisms it imbibes for managing diversity (Consociationalism, Federalism/Federal Character, Human Rights, Citizenship), is exposed to be seriously misconceived epistemically and cartographically. I argue that effective peacebuilding in the global South is impossible without Cognitive Justice, which is 'the equal treatment of different forms of knowledge and knowers, of identities’. I articulate a political constitutional philosophy grounded upon Cognitive Justice as a conception of justice, advancing normative and conceptual frameworks for just post-colonial orders. This provides foundations for a proposed reconceptualisation and restructuring of the institutional and structural make-up of the post-colonial state through a ground-up constitution remaking process, for new orders beyond colonially stipulated delimitations. In search of appropriate constitutional designs, I engage Multiculturalism, National Pluralism and Plurinational State scholarship by Western Political Philosophers and Constitutional Theorists (Kymlicka, Taylor, Tully, Keating, Tierney, Norman, Anderson, and Requejo etc), as they address particularly the UK, Canadian and Spanish cases, as well as Awolowo’s philosophies. I also engage recent plurinational constitutional designs operational in Ecuador and Bolivia, and propose that the latter hold more appropriate conceptual and structural pointers for effective peacebuilding in the troubled, pluralist global South.

本文主旨在探討中華民國憲政改革的關鍵時期，民國七十九～八十一年的三次憲改會議，包括七十九年國事會議、八十年一屆國民大會二次臨時會、八十一年二屆國民大會一次臨時會，論述重點有兩方面：（一）憲政制度的修改是否合乎法理，（二）現實政治權力的運作過程如何影響憲政治度的走向。全文共分五章，略述如下：第一章：緒論。說明研究動機與方法。第二章：憲政改革背景。說明國民政府、中華民國政府時期立憲與行憲的歷程。第三章：國是會異。說明國是會議的召開經過。第四章：一機關兩階段修憲。說明一屆國大二次臨時會、二屆國大一次臨時會的集會內容。第五章：結論。思考我國中央政府體制的走向。

In this dissertation I examine whether the First Ministers' Coferences (FMCs) and political accords negotiated at these meetings from 1983-1987 assisted in transforming Canadian constitutionalism. During the period 1983-1987, four FMCs were held to consider Aboriginal peoples' place in a new Constitutional order. These meetings renegotiated the relationship between indigenous and non-indigenous peoples in Canada by reconsidering some of the assumptions permeating Canadian constitutionalism. The FMCs involved direct dialogues betwen heads of federal government, provincial governments and the four main Aboriginal organisations. Political accords were used in these FMCs to direct the dialogues and to identify when mutually acceptable constitutional associations had been achieved. Tully's reconceptualisation of constitutionalism will be used to evaluate the extent to which Canadian constitutionalism was transformed. He argues that constitutionalism is an activity or process of ongoing dialogues between diverse cultures. He further suggests that three conventions operate to enable these intercultural dialogues to recognise and accommodate cultural diversity. These conventions are mutual recognition, consent and cultural continuity. In order to identify whether constitutionalism was transformed, I consider whether the relationship between indigenous and non-indigenous peoples was altered to further recognise and accommodate cultural diversity. This will be demonstrated by examining whether Tully's three conventions were adopted and advanced during the FMCs between 1983-1987. I conclude that the FMCs and the negotiation around political accords adopted and promoted Tully's three conventions, thereby further recognising and accommodating indigenous Canadians and thus transforming Canadian constitutionalism.

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The Chartist movement was the mass-movement for constitutional reform in mid-nineteenth-century Britain. Chartism is one of the most written about subjects in modern British history, yet the ideas of the movement remain strangely neglected. This thesis tackles this problem by examining Chartist ideas along a broad front. By examining the political thought of a movement, rather than a select number of highly educated intellectuals, this thesis also makes a statement about how to study popular political ideas. Chapter One locates the foundations of Chartist political thought in the movement’s social and cultural context. It asks what the Chartists read and were able to read, how they viewed knowledge and education, and the religious basis of Chartist intellectualism. Chapter Two turns to Chartist political theory, in particular, the Chartist interpretation of the British constitution. It is shown that Chartists drew on a sophisticated conception of the common law that rooted the British Constitution in natural law. Chapter Three considers Chartism’s economic ideas, which, it is argued, must be understood in relation to their understanding of classical political economy. Chapter Four examiners Chartist natural-right arguments alongside the ideas of non-Chartist radicals. Finally, Chapter Five traces the careers of a number of Chartists and the influence of Chartist ideas in America. It also attempts to take account of what Chartism meant to Americans. By considering these topics, this thesis provides a clearer impression of why ideas were important to the Chartists, what sort of ideas the Chartists held, and the legacies of Chartist ideas for democratic politics later in the century.

Empirical studies in the sub-field of European state-building within political science have centered on material or institutional explanations for the development of the modern state. These cross-case analyses ignore key distinctions amongst cases, such as the importance of ideational factors in the modernizing process. This case study of the development of the British state looks at how changes in the conceptualization of the state and the nature of constitutionalism evolved over the course of the 17th century through the political writings of several influential theorists. This evolutionary process highlights distinctions in British constitutionalism between the personalist Union of the Crowns and the constitutionalist parliamentary Acts of Union. This study concludes with a discussion of the Scottish independence movement and the possible effects of the 2014 referendum on the British state.

The various independent chiefdoms that make up present day Malawi had a new constitution imposed over all of them by the British government without their consent. This new superimposed constitution was never really embraced by the various tribal groups. Its tenets were never internalised by the people and this lack of internalisation has continued to this day. The elite of the day decided which principles would govern the country. Successive elite groups in different periods of Malawi’s history have imposed their brand of constitutionalism on a hapless people. They have dutifully put in writing the constitutional principles without intending to apply them. Malawi is a nation that embraced constitutionalism with one reason only, that is, to gain acceptance from its peers in the international community. Throughout its history from pre-colonial times to the present, the general population has never been involved in framing the principles which govern and shape the destiny of the nation. A small group of people has always decided what the constitution should contain. The dominant man of the moment (the big man) and his political party decide what constitutionalism is to be. They govern the country through patronage. The president and a small group around him use state resources to promote their agenda often at the expense of the constitution they swore to uphold. The political leaders do not differentiate between resources of the state, the private sector and their ruling party and they often use them to peddle influence to promote their programs that are sometimes in violation of the constitution. When the president “donates” state resources to the poor communities, he tells them that he used his own money to buy the item he is donating, for example an ambulance, and nobody dares to contradict him. Only in financial matters has the nation demonstrated some marked commitment to the rule of law. The incentive for the government to comply with the law is much higher because about 80 percent of its capital budget is financed from external sources through donations, loans and grants from western nations. Government tends to take action against public officers who do not follow constitutionally laid down principles. Its commitment to the rule of law on social and political governance issues is not consistent. It appears to pick and choose which constitutional principles it will adhere to. In conclusion, it is difficult for Malawi to experience a government that adheres to the principles of constitutionalism because its widespread poverty helps entrench a system of patronage. This system has created a nation that tolerates serious abuses of its constitution. Transformative constitutionalism appears to offer the best hope for Malawi’s future. The nation needs a judiciary that is more innovative and bold in interpreting, upholding and enforcing its own constitutional tenets. Only then will the nation be on a sound footing to realise the benefits of constitutionalism for its people. / Dissertation (LLM)--University of Pretoria, 2011. / Jurisprudence / LLM / Unrestricted

This thesis concerns a philosophical analysis of originalism in a context that has not yet received sufficient attention: in the context of old constitutional regimes. Through this lens, I argue that originalism becomes something lesser in that both the normative justification and legitimacy originalism once held begins to withdraw from the theory’s principled commitments. In other words, the nature of old constitutions begins to reject a normative argument for an originalist approach. The thesis bases this analysis on one originalist theory in particular for the sake of brevity: Lawrence Solum’s public meaning originalism. It proceeds through two avenues of argument: originalism as it relates to 1) historical analysis and the interpretation-construction distinction and 2) stare decisis and democratic legitimacy. Taken together, these avenues point to originalism’s fading normative justification and legitimacy in light of the challenges that old constitutions and their characteristics pose for the judicial philosophy. / Thesis / Master of Arts (MA)

Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2016-11-16T11:50:15Z No. of bitstreams: 1 Zélia Maria Cardoso Montal.pdf: 13216804 bytes, checksum: bdfcae6c69fa471def945825ccd88d34 (MD5) / Made available in DSpace on 2016-11-16T11:50:15Z (GMT). No. of bitstreams: 1 Zélia Maria Cardoso Montal.pdf: 13216804 bytes, checksum: bdfcae6c69fa471def945825ccd88d34 (MD5) Previous issue date: 2016-09-24 / Although the idea of constitutionalism dates back to antiquity, the Constitutionalism in the form conceived today emerged as a political, social, philosophical and cultural movement to question the political domain and for the establishment of documents which consolidate liberal principles, aimed at countering the absolutism and seeking the limitation of Power the division of powers and the guarantee of rights. So, for Constitutionalism the aim lies in the protection that is won in favor of individuals, and the Constitution is the written document on which the legal system is based and reasoned, freedoms are declared, rights are established and limits of political power are set. The classic or liberal Constitutionalism, thought during the absolutist regime in the eighteenth century with the aim to recognize and make positive the rights of freedom and equality has evolved over the centuries and new rights were incorporated into the Constitutional Charters. Therefore we have new ways of conceiving Constitutionalism: liberal or classical, contemporary or neoconstitutionalism. Latin America, which was subjected to a colonization of exploitation, was forced to accept the determination of the metropolis, also with regard to the legal system and institutions. Thus, the Constitutionalism of Eurocentric and North American origin, by the colonizers imposed, was very distanced from the social, cultural experienced by the peoples of the region. This distance between the abyssal Latin American reality and the constitutional postulates, determined the rise of social movements, especially peoples of peasant indigenous origin - who had their cultures violently erased - movements that demand the rescue of their own history and recognition of their identities. Thus a constitutional movement appears to meet new social demands, which calls for another conception of the state with emphasis on plurinationality, on interculturalism, on legal pluralism and suggests an ecocentric turn, breaking the traditional anthropocentric logic and presenting the good life philosophy and the constitutionalisation of the rights of nature. The innovations introduced by this new thinking represent the way to a Decolonization Constitutionalism aiming at the emancipation of peoples of peasant indigenous origin and the achievement of a decent life in harmony, respect and balance with nature / Embora a ideia de Constitucionalismo remonte à Antiguidade, ele, na forma hoje concebida, surgiu como movimento político, social, filosófico e cultural para questionar o domínio político e destinado ao estabelecimento de documentos que consolidassem os princípios liberais, voltado a contrapor-se ao absolutismo e a buscar a limitação do Poder, a divisão de poderes e a garantia de direitos. Portanto, para o Constitucionalismo o fim está na proteção que se conquista em favor dos indivíduos, sendo a Constituição o documento escrito pelo qual a ordem jurídica é fundada e fundamentada, em que são declaradas as liberdades, instituídos os direitos e fixados os limites do poder político. O Constitucionalismo Clássico ou liberal, pensado durante o regime absolutista no século XVIII com o objetivo de reconhecer e positivar os direitos de liberdade e igualdade, evoluiu no decorrer dos séculos e novos direitos foram incorporados às Cartas Constitucionais. Bem por isso, têm-se novas formas de se conceber o Constitucionalismo: Liberal ou Clássico, Contemporâneo ou NeoConstitucionalismo. A América Latina, submetida que foi a uma colonização de exploração, viu-se obrigada a aceitar a determinação das metrópoles, inclusive no que se refere ao ordenamento jurídico e às instituições. Dessa forma, o Constitucionalismo, de origem eurocêntrica e norte-americana, imposto pelos colonizadores, muito se distanciava da realidade social e cultural vivenciada pelos povos da região. Essa distância abissal entre a realidade latino-americana e os postulados constitucionais determinou o surgimento de movimentos sociais, sobretudo dos povos originários indígenas campesinos – que tiveram suas culturas violentamente apagadas –, movimentos que reivindicam o resgate da própria história e o reconhecimento de suas identidades. Desponta, assim, para atender às novas demandas sociais, um movimento constitucional que preconiza outra concepção do Estado com ênfase na plurinacionalidade, na interculturalidade, no pluralismo jurídico e sugere uma virada ecocêntrica, rompendo a lógica antropocêntrica tradicional e apresentando a filosofia do bem viver e a constitucionalização dos direitos da natureza. As inovações introduzidas por este novo pensar representam o trilhar rumo a um Constitucionalismo Descolonizador objetivando a emancipação dos povos originários indígenas campesinos e a concretização de uma vida digna em harmonia, respeito e equilíbrio com a natureza

Emergente a partir do final do século XX, o constitucionalismo popular enquanto campo acadêmico, tem buscado desconstruir a narrativa que legitima a afirmação da supremacia do judicial review estadunidense. Segundo seus expoentes, o melhor desenho envolveria a interpretação política, e não legal, da Constituição. Selecionados os exemplos de Larry Kramer, Mark Tushnet e Jeremy Waldron, o trabalho buscará abordar seus argumentos desde um ponto de vista individual, mas também os elementos que lhes são comuns. Nesse sentido, além da ofensiva à revisão judicial, busca-se identificar os debates que se fazem presentes, e atravessam o campo, tais como a utilidade de um tribunal que traga estabilidade ao sistema político, a ideia de melhor intérprete, a questão contramajoritária e o ideal de autogoverno democrático, em uma sociedade contemporânea atravessada pelo desacordo. Considerados os argumentos, busco chamar a atenção para a parcialidade do pensamento dominante, cuja recepção se ampara sobre bases problemáticas. / Since the late twentieth century, popular constitutionalism has risen as an academic field that seeks deconstructing the narrative that justifies the affirmation of the supremacy of the American judicial review. According to its supporters, the best design for it would not involve the legal, but the political interpretation of the constitution. Selecting the examples of Larry Kramer, Mark Tushnet and Jeremy Waldron, this work aims at addressing their statements not only as individual points of view, but also considering the elements they have in common. In this sense, besides being an assault on judicial review, this texts focuses on identifying the debates that arise and crisscross the field, such as the usefulness of a court which brings stability to the political system, the idea of best constitutional decision-making, the countermajoritarian difficulty, and the ideal of democratic self-government in a contemporary society pervaded by disagreement. Taking such issues into consideration, I propose drawing attention to the bias of mainstream constitutional thinking, whose reception lies on problematic bases.