Published by De Gruyter

Volume 12 Issue 2 -

Issue of ICL Journal

Contents
Journal Overview

Publicly Available June 16, 2018

Articles

June 16, 2018

Constitutional Preambles as Narratives of Peoplehood

Adeno Addis

Page range: 125-181

Abstract

Most constitutions start with a preamble. A constitutional preamble is a text designed to introduce the rest of the constitution. Often, it is also meant to give a concise statement of the nature of the system that the constitution establishes. While they may differ in style and length, most preambles seem to perform two primary functions. First, they declare or identify the source of authority for the document. In most preambles, it is ‘we the people’ that is invoked as the legitimate source of authority. Second, most preambles engage in an explicit attempt to project an identity for ‘we the people.’ At times, the people is defined through an extended historical biography. At other times, it is the presumed common ethnic origin or religious membership that is said to establish the bond, whether the people is territorially bound or not. Still at other times, it is the existence of common political and moral principles that is thought to make up the core constitutive elements of who the people are. Whatever the strategy, preambles attempt to imagine a usable political identity for the people, its collective agency. ‘The people’ are viewed with sufficient agency capable of ‘ordaining’ or ‘granting’ the constitutional document to themselves. Of course, in many cases ‘we the people’ are the very creation of the document itself. Under this account, the ‘people’ are simultaneously the author and product of the constitution. In this sense, preambles are performative in nature: they constitute the people as they at the same time declare that the people are their authors. Through a close study of the constitutional preambles of all countries currently in existence, this article explores how preambles narrate a politically serviceable identity for ‘the people’. Whatever else they are meant to do, preambles are narratives of peoplehood. The formal legal status of preambles might be uncertain, but what is not in doubt and what has largely been neglected is the fact that preambles are also means through which a people attempts to imagine and solidify its identity. As Benedict Anderson long ago explained, an imagined identity is neither true nor false—it simply is. This article explores the processes by which this imagining takes place and the purposes for which it is adopted.

June 16, 2018

The Relationship Among the International Rule of Law, Spontaneous Order, and Economic Development

Nadia E Nedzel

Page range: 183-211

Abstract

The Rule of Law and economic development are widely regarded as necessary for a successful society, but defining the international rule of law and explaining the relationship with economic development has proven elusive. This article begins with explanations posited by Hayek and others, but brings a fresh perspective grounded in a multidisciplinary and contextual approach that includes history, philosophy, economics, and law. Properly defined, the rule of law refers to a specific understanding of the relationship between the individual and government. The common law conception of the rule of law (as opposed to the civilian Rechtsstaat or L’État de Droit ) is historically more supportive of economic development, but modern international descriptions and definitions confuse the two. Based on empirical economic studies and historical legal anthropology, the common law understanding focused on limited government and individual freedom from interference has proven more likely to encourage entrepreneurship and hence economic development on a long-term basis.

Notes and Essays

June 16, 2018

Case Note: Belcacemi and Oussar v Belgium App no 37798/13 (ECtHR, 11 July 2017)

Jasper Doomen

Page range: 213-223

Abstract

The freedom of the individual can easily come into conflict with his or her obligation to integrate in society. The present case provides a good example. That some restrictions of citizens’ freedoms must be accepted for a state to function and, more basically, persist is evident and that, as a consequence, certain demands, incorporated in criminal law, are made from citizens is acceptable. The issue to what extent such restrictions are justified has increasingly become a topic of discussion. The present case raises a number of important questions with respect to the right to wear a full-face veil in public if the societal norm is that the face should be visible, the most salient of which are whether women should be ‘protected’ from unequal treatment against their will and to what extent society may impose values on the individual. I will argue that the Belgian law places unwarranted restrictions on citizens and that the values behind it testify to an outlook that is difficult to reconcile with the freedom of conscience and religion.

Constitutional Developments

June 16, 2018

Austrian Constitutional Court Somewhere under the Rainbow: Marriage Equality and the Role of the Austrian Constitutional Court

Judgment of 4 December 2017, G 258-259/2017

Christa Pail

Page range: 225-231

Abstract

In 2010, Austria introduced the Registered Partnership as the only form of legal recognition for same-sex couples while marriage is limited to heterosexual couples. In a recent judgment, the Austrian Constitutional Court decided this limitation to be unconstitutional. Due to numerous legal changes in the last years, the legal framework governing registered partnerships and marriage became nearly identical. By upholding different terms for the same kind of relationship, same-sex partners are presented unequal to different-sex couples and forced to show their sexual orientation even in situations where sexual orientation should be irrelevant. This puts them at risk of discrimination. The Court considers this as a violation of the principle of equality.

Book Review

Open Access June 16, 2018

New Book on ‘Constitutionalism’ in an Illiberal State: András L Pap, Democratic Decline in Hungary: Law and Society in an Illiberal Democracy (Routledge 2018)

Nóra Chronowski

Page range: 233-238

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About this journal

Objective
The Vienna Journal on International Constitutional Law (ICL Journal) is dedicated to the advancement of legal knowledge in the field of International Constitutional Law. Advised by a body of distinguished jurists the Journal publishes high-standard peer-reviewed contributions by scholars and legal professionals from around the globe. 　

Topics

European Constitutional Law
Public International Law
Constitutionalization of International Law
Internationalization of Constitutional Law
Migration of Constitutional Ideas
Legal Theory
Comparative Constitutional Law

By linking these select perspectives the Journal endorses an approach towards a coherent understanding of International Constitutional Law, thus preparing the ground for novel answers to the challenges of a changing global legal framework. The Journal addresses the global scientific community, scholars and researchers in various disciplines working in the field of International Constitutional Law. Moreover, the Journal provides information on recent constitutional developments relevant to practitioners as well as academics, particularly by monitoring the case law of Constitutional Courts in Central and Eastern Europe.

Article formats
Research articles, notes & essays, reports, book reviews.

Volume 12 Issue 2 -

Issue of ICL Journal

Frontmatter

Constitutional Preambles as Narratives of Peoplehood

Abstract

The Relationship Among the International Rule of Law, Spontaneous Order, and Economic Development

Abstract

Case Note: Belcacemi and Oussar v Belgium App no 37798/13 (ECtHR, 11 July 2017)

Abstract

Austrian Constitutional Court Somewhere under the Rainbow: Marriage Equality and the Role of the Austrian Constitutional Court

Judgment of 4 December 2017, G 258-259/2017

Abstract

New Book on ‘Constitutionalism’ in an Illiberal State: András L Pap, Democratic Decline in Hungary: Law and Society in an Illiberal Democracy (Routledge 2018)