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Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy [Kõva köide]

(Professor of Law, University of New South Wales), (Mason Ladd Professor, FSU College of Law)
  • Formaat: Hardback, 240 pages, kõrgus x laius x paksus: 242x164x19 mm, kaal: 520 g
  • Sari: Oxford Comparative Constitutionalism
  • Ilmumisaeg: 08-Jul-2021
  • Kirjastus: Oxford University Press
  • ISBN-10: 0192893769
  • ISBN-13: 9780192893765
  • Formaat: Hardback, 240 pages, kõrgus x laius x paksus: 242x164x19 mm, kaal: 520 g
  • Sari: Oxford Comparative Constitutionalism
  • Ilmumisaeg: 08-Jul-2021
  • Kirjastus: Oxford University Press
  • ISBN-10: 0192893769
  • ISBN-13: 9780192893765
Law is fast globalizing as a field, and many lawyers, judges and political leaders are engaged in a process of comparative "borrowing". But this new form of legal globalization has darksides: it is not just a source of inspiration for those seeking to strengthen and improve democratic
institutions and policies. It is increasingly an inspiration - and legitimation device - for those seeking to erode democracy by stealth, under the guise of a form of faux liberal democratic cover.

Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy outlines this phenomenon, how it succeeds, and what we can do to prevent it. This book address current patterns of democratic retrenchment and explores its multiple variants and technologies, considering
the role of legitimating ideologies that help support different modes of abusive constitutionalism.

An important contribution to both legal and political scholarship, this book will of interest to all those working in the legal and political disciplines of public law, constitutional theory, political theory, and political science.

Arvustused

Dixon and Landau document the extent to which autocratic leaders have figured out how to convert independent courts and written rights guarantees into tools for consolidating power, repressing the opposition, and sidelining minorities. They support this account with a remarkable range of empirical examples, drawn from virtually all regions of the constitutional world. * Thomas M. Keck, Law & Social Inquiry * The richness of the theoretical construction of the argument and the painstaking presentation of examples from different countries constitute the main contributions of this ambitious book. * Jorge González - Jácome, Associate Professor of Law, University of the Andes *

1 Introduction: A Dark Side of Comparative Constitutional Law
1(22)
A The Rhetorical Triumph of Liberal Democratic Constitutionalism
3(8)
B The New Authoritarianism and Shifting Patterns of Constitutional Borrowing
11(5)
C The Significance of Abusive Constitutional Borrowing
16(4)
D The Plan of the Rest of this Book
20(3)
2 Democracy and Abusive Constitutional Change
23(13)
A Abuse and Democracy
23(5)
B Democracy and Liberalism
28(3)
C The Many Forms of Abusive Constitutional Change
31(4)
D Conclusion
35(1)
3 The Concept and Scope of Abusive Constitutional Borrowing
36(20)
A The Who and What of Abusive Constitutional Borrowing
37(3)
B Constitutional Comparison and Borrowing
40(2)
C A Typology of Constitutional Borrowing
42(3)
D Four Modes of Abusive Constitutional Borrowing
45(10)
1 Sham Borrowing
45(2)
2 Abusive Selective Borrowing
47(2)
3 Abusive Acontextual Borrowing
49(2)
4 Abusive Anti-Purposive Borrowing
51(4)
E Conclusion
55(1)
4 The Abuse of Constitutional Rights
56(25)
A Hate Speech and Memory Laws in Rwanda, Poland, and Russia
59(7)
B Voting Rights in Hungary and Fiji
66(5)
C Gender Rights and Quotas in Rwanda
71(3)
D Environmental Rights in Ecuador
74(6)
E Conclusion
80(1)
5 Abusive Judicial Review: Abusive Borrowing by and of Constitutional Courts
81(35)
A Defining and Situating Abusive Judicial Review
83(4)
B Abusive Judicial Review as a Regime Strategy: The Abuse of Judicial Review
87(7)
C Weak and Strong Forms of Abusive Judicial Review
94(4)
1 Weak Abusive Judicial Review
94(2)
2 Strong Abusive Judicial Review
96(2)
D Abusive Judicial Review in Action: Two Case Studies
98(14)
1 Venezuela and the Suppression of the Congress
98(5)
2 Cambodia, Thailand, and Militant Democracy
103(9)
E The Limits of a Strategy of Abusive Judicial Review
112(3)
F Conclusion
115(1)
6 The Abuse of Constituent Power
116(36)
A Constituent Power and Constitution-Making in Latin America
117(12)
1 Pro-Democratic Usage: Colombia (1991)
120(2)
2 Abusive Usages: Venezuela (1999) and Ecuador (2008)
122(3)
3 Abusive End Game: The Venezuelan `Constituent Assembly' of 2017
125(4)
B The Unconstitutional Constitutional Amendment Doctrine and Presidential Re-Election in Latin America
129(12)
1 Democratic Hedging in Colombia
131(1)
2 Abusive Usage Elsewhere in Latin America
132(4)
3 A Constitutional Right to Re-Election: The Logic of Abusive Usage
136(5)
C International Supports for Constituent Power
141(10)
1 Unconstitutional Government Norms in Fiji
141(3)
2 Constitutional Identity in Eastern Europe
144(7)
D Conclusion
151(1)
7 The Abusive Borrowing of Political Constitutionalism and Weak-Form Judicial Review
152(24)
A Political Constitutionalism and its Relatives
153(5)
B The Abusive Borrowing of Political Constitutionalism in Eastern Europe
158(8)
C Israel and the Abusive Borrowing of the New Commonwealth Model
166(8)
D Conclusion
174(2)
8 Can Abusive Borrowing Be Stopped?
176(33)
A Monitoring and Sanctioning Abuse
180(13)
1 Toward Global Legal Realism
182(4)
2 The Design of Monitoring Institutions
186(2)
3 The Level of Response: Transnational Norms vs International Law
188(2)
4 Avoiding Anti-Imperialist Backlash and Other Pitfalls
190(3)
B Abuse-Proofing Liberal Democratic Norms
193(10)
1 Abuse as Grounds for Elimination?
193(3)
2 How to Abuse-Proof
196(4)
3 The Problem of (Proto-) Abuse by Liberal Democratic States
200(3)
C Debating and Defending Liberal Democracy: Contestation and Respect for the Democratic Minimum Core
203(6)
Index 209
Rosalind Dixon is a Professor of Law at UNSW, Sydney, Australia. She is co-editor, with Tom Ginsburg, of a leading handbook, Comparative Constitutional Law (Edward Elgar, 2011) and related volumes, Comparative Constitutional Law in Asia (Edward Elgar, 2014), and Comparative Constitutional Law in Latin America (Edward Elgar, 2017). Professor Dixon is a Manos Research Fellow, Director of the Gilbert + Tobin Centre of Public Law, Deputy Director of the Herbert Smith Freehills Initiative on Law and Economics, Co-Director of the UNSW New Economic Equality Initiative (NEEI), and academic co-lead of the Grand Challenge on Inequality at UNSW. She was recently elected as co-president of the International Society of Public Law.

Professor Landau is a recognized scholar on constitutional theory, constitutional design and comparative constitutional law. His recent work has focused on a range of issues with contemporary salience both in the United States and elsewhere around the world, including constitutional change and constitution-making, judicial role and the enforcement of rights, impeachment, and the erosion of democracy. His scholarship is interdisciplinary, combining insights from law and political science. Professor Landau has published in leading law journals including the University of Chicago Law Review, the Iowa Law Review, the George Washington Law Review, and the Harvard International Law Journal. He has previously published several books and edited volumes with Oxford University Press and Edward Elgar Press.