Unamendable Constitution?: Unamendability in Constitutional Democracies 1st ed. 2018 [Kõva köide]

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This book examines the subject of constitutional unamendability from comparative, doctrinal, empirical, historical, political and theoretical perspectives. It explores and evaluates the legitimacy of unamendability in the various forms that exist in constitutional democracies.

Modern constitutionalism has given rise to a paradox: can a constitutional amendment be unconstitutional? Today it is normatively contested but descriptively undeniable that a constitutional amendment—one that respects the formal procedures of textual alteration laid down in the constitutional text—may be invalidated for violating either a written or unwritten constitutional norm. This phenomenon of an unconstitutional constitutional amendment traces its political foundations to France and the United States, its doctrinal origins to Germany, and it has migrated in some form to all corners of the democratic world. One can trace this paradox to the concept of constitutional unamendability. Constitutional unamendability can be understood as a formally entrenched provision(s) or an informally entrenched norm that prohibits an alteration or violation of that provision or norm. An unamendable constitutional provision is impervious to formal amendment, even with supermajority or even unanimous agreement from the political actors whose consent is required to alter the constitutional text. Whether or not it is enforced, and also by whom, this prohibition raises fundamental questions implicating sovereignty, legitimacy, democracy and the rule of law.


The Forms of Unamendability 1(28)
Richard Albert
Bertil Emrah Oder
Part I The Legitimacy and Limits of Unamendability
Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability
29(34)
Yaniv Roznai
A Constitution for Eternity: An Economic Theory of Explicit Unamendability
63(26)
Konstantinos Pilpilidis
Conventions of Unamendability: Covert Constitutional Unamendability in (Two) Politically Enforced Constitutions
89(34)
Gert Jan Geertjes
Jern Uzman
Credible Commitment or Paternalism? The Case of Unamendability
123(26)
Stephan Michel
Ignacio N. Cofone
Part II Unamendability Around the World
Constitutional Falsehoods: The Fourth Judges Case and the Basic Structure Doctrine in India
149(20)
Chintan Chandrachud
Unamendability in Israel: A Critical Perspective
169(26)
Mazen Masri
Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and for All?
195(36)
Ridwanul Hoque
Unamendability as a Judicial Discovery? Inductive Learning Lessons from Hungary
231(28)
Fruzsina Gardos-Orosz
Amending the Unamendable: The Case of Article 20 of the German Basic Law
259(22)
Serkan Koybasi
Debating Unamendability: Deadlock in Turkey's Constitution-Making Process
281(32)
Oya Yegen
The Unamendability of Amendable Clauses: The Case of the Turkish Constitution
313(32)
Tarik Olcay
Brazil in the Context of the Debate Over Unamendability in Latin America
345(20)
Juliano Zaiden Benvindo
Unamendable Constitutional Provisions and the European Common Constitutional Heritage: A Comparison Among Three Waves of Constitutionalism
365
Valentina Rita Scotti
Richard Albert is Professor of Law at the University of Texas at Austin. He writes about constitutional change, including amendment, replacement, interpretation and revolution. His publications have been translated into Chinese, Hungarian, Portuguese, Russian and Spanish. He is author of "Formas y funcion de la enmienda constitucional" (Externado 2017) and co-editor of "Canada in the World: Comparative Perspectives on the Canadian Constitution" (Cambridge 2017) and "The Foundations and Traditions of Constitutional Amendment" (Hart 2017). He is also co-editor of the new Oxford Series in Comparative Constitutionalism, co-editor of the Routledge Series on Comparative Constitutional Change, book reviews editor for the American Journal of Comparative Law, co-editor of I-CONnect, and chair-elect of the AALS Section on Comparative Law. A former law clerk to the Chief Justice of Canada, he holds law and political science degrees from Yale, Oxford and Harvard. Bertil Emrah Oder is Dean and Professor of Constitutional law at Koc University Law School. She is an expert in comparative constitutional law, European Union law and international human rights law. Dean Oder holds memberships in the International Association of Constitutional Law, the International Society of Public Law, the Constitution Builders Network, the German Turkish Colloquium for Public Law, the International Law Association ILI-Istanbul, and is a founding member of the Association for Research and Application of Constitutional Law. She has served as consultant of UN Women and published two monographs: Constitution and Constitutionalism in the European Union (Anahtar Publishing: 2004) and Methods of Interpretation in Constitutional Adjudication (Beta Publishing: 2010). She has also published two textbooks: Cases & Materials on Constitutional Law for Active Learning (Beta Publishing: 2001) (co-authored) and Constitutional Law in Practice (Beta Publishing: 2008 and 2013) (coauthored). And she has published dozens of articles, editorials and book chapters on various subjects in public law. Fluent in English, German and Turkish, Dean Oder holds degrees from the University of Istanbul, Marmara University (Turkey), and the University of Cologne (Germany).

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