The last two decades have witnessed a period of constitutional change without precedent in the United Kingdom’s contemporary history, and prominent constitutionalists have suggested that these transformations signified primarily a legalisation of the British constitutional settlement. The present research hence offers a review of the most salient and impactful instances of constitutional change since 1997 with the aim of assessing in what ways the UK could be transitioning from a more political to a more legal constitutional framework. It highlights a greater reliance on legal devices to regulate constitutional processes and more frequent resort to judicial mechanisms of constitutional control. Indeed, the virtual entrenchment of various classes of norms (ECHR rights, common law constitutional rights and principles, Thoburn-‘constitutional statutes’) suggests the formation in British public law of a ‘bloc de constitutionnalité’ that could serve as basis for increasingly genuine forms of constitutional review. Concurrently, British courts are performing more of the functions of constitutional courts and appear willing to assume the role of constitutional guardian ascribed to the judiciary in a legal-constitutional model. Overall, the political constitution and its core principle of parliamentary sovereignty seem to be under challenge, particularly in judicial and jurisprudential debates grounded in the influential theory of common law constitutionalism. We therefore argue that the British constitution can no longer be described as exclusively ‘political’ and that there is at least some evidence of a trend towards legal constitutionalism in the UK.

The Constitution stipulates that its value-commitments are to inform the interpretation of statutes and the development of the common law and customary law. Legislative construction and law-application generally are therefore to be perceived as involving an axiological dimension. Three hermeneutical traditions are dealt with to the end of clarifying the approaches to be adopted in everyday legal• argumentation. The study culminates in the adduction of leads for substantive !juridical argument in the process of statutory interpretation and in handling common-law and customary-law sources. These leads are shown to be functional byi way of a critical discussion of recent case law and a conspectus of contemporary t~ought bearing on the nature of customary law. The social dimension of the legal process is throughout underscored as a factor of significance. Concomitantly, it is rcigistered that the jurisprudence of formalism, so marked an attitude of a previous time, should be abjured to the extent that it is disdainful of value-commitment. Conformably, literalist and literalist-cumintentionalist perceptions as well as kindred stances are berated. The penultimate chapter of this thesis suggests an encompassing approach to the interpretation of statutes, comprised of a systematic tabulation of insights previously garnered. The fmal chapter postulates that common law and customary law are not to be dealt with upon an interchangeable basis, inasmuch as the sources go out from radically divergent premises. It then proceeds to elaborate a conceptual framework for dealing respectively with each of these sources. / Law / LL.D.

The Constitution stipulates that its value-commitments are to inform the interpretation of statutes and the development of the common law and customary law. Legislative construction and law-application generally are therefore to be perceived as involving an axiological dimension. Three hermeneutical traditions are dealt with to the end of clarifying the approaches to be adopted in everyday legal• argumentation. The study culminates in the adduction of leads for substantive !juridical argument in the process of statutory interpretation and in handling common-law and customary-law sources. These leads are shown to be functional byi way of a critical discussion of recent case law and a conspectus of contemporary t~ought bearing on the nature of customary law. The social dimension of the legal process is throughout underscored as a factor of significance. Concomitantly, it is rcigistered that the jurisprudence of formalism, so marked an attitude of a previous time, should be abjured to the extent that it is disdainful of value-commitment. Conformably, literalist and literalist-cumintentionalist perceptions as well as kindred stances are berated. The penultimate chapter of this thesis suggests an encompassing approach to the interpretation of statutes, comprised of a systematic tabulation of insights previously garnered. The fmal chapter postulates that common law and customary law are not to be dealt with upon an interchangeable basis, inasmuch as the sources go out from radically divergent premises. It then proceeds to elaborate a conceptual framework for dealing respectively with each of these sources. / Law / LL.D.

This study sets out to examine whether the "new'' provincial governments in South Africa are in practice functioning as "quasi-federal" power bases. The study starts with an appraisal of the core constitutional concepts critical to provincial government as a prelude to the enquiry into the practical status of the provincial governments. An enquiry is made into the application of certain provisions of the interim Constitution pertaining to provincial government. Thereafter certain provisions of the final Constitution pertaining to provincial government are compared with the corresponding provisions of the interim Constitution. The issue of provincial powers in practice and the problems experienced by provincial governments are also dealt with. The study concludes that provincial governments are currently not functioning as "quasi-federal" power bases and that it is even doubtful whether that situation will present itself in the foreseeable future. / Law / LL. M.

Submitted by William Justo Figueiro (williamjf) on 2015-08-20T19:14:20Z No. of bitstreams: 1 26e.pdf: 3123063 bytes, checksum: 91eac5f61a9072639b39059f05dacdcb (MD5) / Made available in DSpace on 2015-08-20T19:14:20Z (GMT). No. of bitstreams: 1 26e.pdf: 3123063 bytes, checksum: 91eac5f61a9072639b39059f05dacdcb (MD5) Previous issue date: 2012-11-26 / Nenhuma / A presente tese doutoral tem por mote a problematização do constitucionalismo em tempos de mundialização. Sob o aporte filosófico-metodológico da hermenêutica gadameriana, o texto é redigido nos contornos da dialética, para a qual dois a dois os capítulos são articulados, compondo uma paisagem em que muitos tons se sobrepõem entre os opostos. Assim, parte-se no primeiro capítulo aos pilares do Estado Liberal de Direito para, no capítulo seguinte, indicar-se a conformação política e social do Estado Democrático de Direito, inaugurado sob os próprios esquemas, na interação entre Estado, Constituição e Sociedade Civil. Se a gênese do constitucionalismo que tem suas bases no Estado nacional, estas passam a ser desafiadas pelas novas dinâmicas pós-nacionais, ou melhor, pela mundialização, entendida como zeitgeist contemporâneo. A mundialização é esquadrinhada nos capítulos terceiro e quarto, sendo aquele destinado à sua caracterização enquanto processo descendente e hegemônico, para, na sequência, desvelar-se os aspectos ascendentes, de baixo para cima, pela temática da universalização dos Direitos Humanos e da Sociedade Civil global. O quinto capítulo volta o foco ao constitucionalismo, sob a dinâmica da internacionalização do Direito Constitucional de um lado, e da constitucionalização do direito internacional de outro, oferecendo uma leitura doutrinária a esse respeito. Por fim, enceta-se alguns condicionantes do constitucionalismo pós-nacional, que mesmo profundamente desafiado, tem, nos seus próprios elementos fundantes – Paz, Direitos Humanos e Democracia-, condições de reafirmar sua centralidade para um projeto civilizatório que ainda se institui em busca das promessas da modernidade, mas, para tanto, devem perquirir formas alternativas de legitimidade que, atentas ao diálogo transconstitucional, também projetem a Sociedade Civil ao cenário pós-nacional. / This doctoral thesis addresses the problem of constitutionalism in an era of globalization. Based on the philosophical and methodological contribution of Gadamer’s hermeneutics, the text is written mirroring the principles of dialectics. The chapters are articulated in twos, comprised of a landscape with many shades overlapping between opposites. The first chapter refers to the pillars of the liberal state of law. In the second chapter, we indicate the conformation of the political and social democratic state of law, inaugurated under its own designs as a result of the interaction between state, constitution and civil society. Departing from the principle that the genesis of constitutionalism has its basis in the national state, they are now being challenged by the new post-national dynamics, or rather by globalization, understood as the contemporary zeitgeist. Globalization is discussed in the next two chapters. The third chapter characterizes globalization as a descending and hegemonic process, while the fourth chapter reveals its ascending aspects through the theme of human rights and the universalization of a global civil society. The fifth chapter focuses on constitutionalism and offers a doctrinaire reading about it by having, on one hand, the dynamics of the internationalization of constitutional law and the constitutionalization of international law, on the other. Lastly, some constraints of post-national constitutionalism begin to be defined. Even deeply challenged, post-nationalism has, in its own founding elements - peace, human rights and democracy - conditions to reassert its centrality to a civilizing project that is still based on the philosophical assumptions of modernity and on the expectations arising from it. To meet this end, however, alternative forms of legitimacy should be sought: they must not only draw attention to a transconstitutional dialogue, but also project civil society into a post-national scene.

Made available in DSpace on 2016-04-26T20:19:57Z (GMT). No. of bitstreams: 1 Carolina Nobre Castello Branco.pdf: 1311017 bytes, checksum: 758c84b88d2fa6d21918a73421610327 (MD5) Previous issue date: 2011-03-25 / Conselho Nacional de Desenvolvimento Científico e Tecnológico / This study aims to evaluate the role of Constitucional Justice in the implementation of Fundamental Rights. To that end, it was established as a starting point the changes brought about by new ideas discussed in contemporary constitutionalism. The increasing concern over the effectiveness of Fundamental Rights and the expansion of the substantive content of the Constitution imposes a more comprehensive role of Constitutional Justice and the need to recast their understanding of the interpretative function. Therefore, this work is divided into three distinct stages. At first, the approach begins on the analysis of the relationship between the State and the Constitution, and its gradual evolution to the formation of constitutional state and thus of contemporary constitutionalism. Then, the study proposes the analysis of the 'new' Constitutional Law, approaching the several terminologies that have been adopted to define the actual moment of changing of the conception of ideas about Constitution and its consequences brought to the Law on the theme of constitutionalization of the law and in seeking the concretization of Fundamental Rights. Finally, the study focuses on the activities of the Constitutional Justice and the identification of its relationship to contemporary constitutionalism in attaining Fundamental Rights / Este estudo tem por objetivo principal verificar a participação da Justiça Constitucional na concretização dos Direitos Fundamentais. Para tanto, estabeleceu-se como ponto de partida as mudanças trazidas pelos novos ideais discutidas no constitucionalismo contemporâneo. A crescente preocupação com a efetividade dos Direitos Fundamentais e a ampliação do conteúdo material da Constituição impõe uma atuação cada vez mais abrangente da Justiça Constitucional e a necessidade de reformulação da compreensão de sua função interpretativa. Assim, o trabalho divide-se em três etapas distintas. Em um primeiro momento, a abordagem se inicia na análise da relação existente entre o Estado e a Constituição, bem como sua gradativa evolução até a formação do Estado Constitucional e, consequentemente, do constitucionalismo contemporâneo. Em seguida, o estudo propõe a análise do novo‟ Direito Constitucional, abordando as diferentes terminologias que vem sido adotadas para definir o atual momento de mudança de concepção das idéias sobre Constituição e suas consequências trazidas para o Direito na temática da constitucionalização do Direito e na busca pela concretização dos Direitos Fundamentais. Por fim, o estudo se concentra nas atividades da Justiça Constitucional e a identificação da sua relação com o constitucionalismo contemporâneo para fins de concretização dos Direitos Fundamentais

This study sets out to examine whether the "new'' provincial governments in South Africa are in practice functioning as "quasi-federal" power bases. The study starts with an appraisal of the core constitutional concepts critical to provincial government as a prelude to the enquiry into the practical status of the provincial governments. An enquiry is made into the application of certain provisions of the interim Constitution pertaining to provincial government. Thereafter certain provisions of the final Constitution pertaining to provincial government are compared with the corresponding provisions of the interim Constitution. The issue of provincial powers in practice and the problems experienced by provincial governments are also dealt with. The study concludes that provincial governments are currently not functioning as "quasi-federal" power bases and that it is even doubtful whether that situation will present itself in the foreseeable future. / Law / LL. M.

In this thesis the constitutional policies of the three Commoner Estates (Priests, Burghers and Peasants) of the Swedish Riksdag between the years 1660 and 1682 is examined. While many previous historians have focused on the power-struggle between the Crown and the nobility, the Commoner Estates have been presumed to be staunch supporters of absolutism. I argue that the picture is far more complex. Case-studies of a number of political negotiations that concerned the distribution of political power show that the Commoners were flexible in their constitutional policies. When they sensed they were in a strong position, they were explicit in their demand for a say in political decisions. But when they were weak, they were deferential to the government. If there is one constant in their policies it is not blind reverence to royalties: the thesis show that they could sacrifice the interests of powerless members of the royal family in favour of security and defence of Protestant faith. In comparison, the Commoners were more eager to protect the rights of their own Estates and of the Riksdag as a whole. One important feature of Commoner politics was the willingness of Priests, Burghers and Peasants to co-operate, which sometimes made them quite influential. In the thesis the relations between the Estates are examined. I also have endeavoured to examine the political institutions, the rules that governed politics in the Riksdag during the period. It is observed that the institutional structures were quite complex and unclear, which gav an advantage to well-oriented Estates like the Priests and the Nobility in comparison with the Peasants. The Priests also was the best organized Estate of the Commoners. Other factors that favoured the clergy was that they were led by politically experienced bishops; that they had common privileges that all priests were interested in defending; and that they were strengthened and united by their religious ideology.

This thesis examines the treatment of the theme of justice in the works, both poetry and prose, of Andrew Marvell and, in a final chapter, the justice of certain aspects of his behaviour. In order to do this, it seeks to locate particular works in the context of contemporary debates or discussions as to ancient rights, the ancient constitution (and competing theories as to the king's power) and the disagreement between Hugo Grotius and John Selden on the subject of the legal status of the sea and, more generally, the laws of nature and nations. !e discussion of the justice of his behaviour offers a reinterpretation of the Chancery pleadings and other records in a cluster of cases arising after Marvell's death out of the collapse of a bank in which his friend, Edward Nelthorpe, was a partner. It is argued that these records have, up to now, been misunderstood. The thesis concludes that Marvell's work evinces an ambiguity about justice, with the poetry tending to give voice to his scepticism, while the sense that justice might be at least partly achievable is more likely to appear in the prose works. The conclusion as to his actions is also a matter of some ambivalence: while the evidence does not show that he colluded in a fraud on the bank's creditors, the suspicion that he behaved badly towards his wife is complicated by a lingering uncertainty that he had, in fact, married.

This dissertation examines the idea of constitutionalisation of international law in light of concerns of fragmentation. It focuses on the dynamic of fragmentation in the international legal system. It shows that arguments about constitutionalism do not represent a remedy to the phenomenon of fragmentation. Consequently, the dissertation advances arguments of integrity of international law. Further, the dissertation examines new developments in constitutionalisation practices that support a normative, teleological approach to constitutionalisation in the international legal system. The dissertation offers insights on both the autonomy of the concept of international constitutionalism and the idea of fragmentation as a universally recognised characteristic of modern international law. It offers recommendations on how to address charges of fragmentation in international law in light of the dominant conception of modern international law.