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Constitutional Violence

Legitimacy, Democracy and Human Rights

Constitutional Violence
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If constitutional legitimacy is based on violence, what does this mean for democracy?

Almost every state in the world has a written constitution. The great majority of these declare the constitution to be the law controlling the organs of the state. We tend to label western liberal political systems as ‘constitutional democracies’, dividing the system into a domain of politics where the people rule and a domain of law that is set aside for a trained elite. Legal, political and constitutional practices demonstrate that constitutionalism and democracy seem to be irreconcilable. Is good government feasible and is a constitutional system the best device to rule a country? Can the public and legal sovereignties be reconciled?

Antoni Abat i Ninet strives to resolve these apparently exclusive realms of power, using as case study their various avatars across the globe. The American constitutional experience that has dominated western constitutional thought is here challenged as quasi-religious doctrine and the book argues that human rights and democracy must strive to deactivate the ‘invisible’ but very real violence embedded in our seemingly sacrosanct constitutions.

Antoni Abat i Ninet is Assistant Professor of Constitutional and Comparative and Public Law at the ESADE Law School at the University Ramon Llull, Barcelona.

Key Features:

INTERDISCIPLINARY – Adopts an interdisciplinary approach from law, politics and sociology that goes beyond the mainly legal genre of scholarship on the subject; sheds light to the multifaceted ways in which the ECHR system and its Strasbourg-based judicial arm penetrate and interact with national legal and political orders

NATIONAL PERSPECTIVE – Covers eight country-based case studies on state implementation and domestic impact of the ECtHR judgements in a wide array of case law ranging from property legislation, fair trial and other aspects of the judicial system, to the protection of civil liberties such as family or private life and religious freedom, among others

FOCUS ON DISADVANTAGED SOCIAL ACTORS – Explores how and why various disadvantaged or vulnerable social actors take recourse to the ECtHR to pursue different rights claims vis-à-vis states, and the extent and conditions under which the respective judgments influence rights-expansive legal and policy reform domestically

INSTITUTIONAL IMPLEMENTATION AND SOCIAL MOBILISATION – Combines a top-down perspective of the official institutions and actors involved in the national implementation of the ECtHR’s judgements, with an interest in the bottom-up processes of mobilisation of Convention rights in the ECtHR by a variety of individual and social actors in pursuit of policy and political-social change

ANALYTIC AND NOT MERELY DESCRIPTIVE – Does not merely describe the configuration of national-level structures and actors responsible for the implementation of the ECtHR’s case law and measures adopted by authorities in response to adverse judgments; it furthermore probes into the variable responses of national authorities to different kinds of judgments and rights issues and seeks to identify and analyse the factors and conditions that influence variable patterns of domestic implementation and legal or policy reform.

Keywords

Human rights; legal mobilisation; courts and politics; European integration; European Convention of Human Rights; minorities

Subject: Law

Edinburgh University Press; December 2012
201 pages; ISBN 9780748669554
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