bluuebunny/crossref_metadata_2025_split huggingface dataset:
The Misconceived Quest for the Elusive Right Answer or Dedication to a Process, Not a Result
Authors: Waluchow W. J. 
Published: July 2021

Abstract
This chapter assesses whether the exercise of judicial discretion in answering pivotal legal questions is necessarily illegitimate in a constitutional democracy. It argues that legitimacy does not necessitate existing right answers and a rejection of judicial discretion. This argument rests on two factors: first, the difficulty of determining, in any particular case, whether there is a right answer and what that might be; and second, the fact that judicial discretion does not consist in unbridled choice on the part of one who exercises it. The answer to the interpretative concerns over constitutional judges should not be overcome by relying on the idea of a unique correct answer, but rather by a dedication to the decision-making process. The chapter then considers the idea of the 'Community Constitutional Morality', under which each legal system instantiate a set of moral values embedded in its constitution, from which judges should not depart. It is the constitution and the local social practice that determines such 'constitutional morality', and not an ideal set of external objective morality. This idea mitigates the 'counter-majoritarian' objection, as judicial review would reflect the commitments deeply held by the society where it is being exercised.
The Machinery of International Law and Democratic Backsliding
Authors: Ginsburg Tom 
Published: July 2021

Abstract
This chapter focuses on the abuse of international rights to political participation so as to facilitate a leader's remaining in office beyond the constitutionally mandated term. This involves not only the abuse of the interpretation of rights, but also the abuse of the doctrine of unconstitutional constitutional amendments, which has spread around the world in recent years. How does this happen and what, if anything, can international law do about it? After introducing a motivating case — the famous decision of the Colombian Constitutional Court in the second re-election decision, in which courts stood for the protection of democracy — the chapter examines recent 'bad' cases in which rights and constitutional amendments are abused to extend leaders' terms. It surveys recent developments in the law of term limits, and briefly proposes a normative interpretation of the right to political participation which ought to be consistent with the emerging doctrine. The chapter suggests that there is an emerging consensus, at least in some regions of the world, that there are limits in states' ability to modify term limits unconditionally.
Between the Explicit and Implicit Limits? An Analysis of Judicial Review of the Constitutional Amendment Doctrine in Colombia
Authors: Cantillo Linares 
Published: July 2021

Abstract
This chapter illustrates the Colombian Constitutional Court's explicit and implicit powers to undertake the judicial review of constitutional amendments. It begins by describing and analysing the 'explicit' procedural limits of the Colombian 1991 Constitution and the doctrine about the implicit unamendability. Through a quantitative analysis of both types of judicial review, the chapter demonstrates how the two approaches have developed in Colombia, and how in that context, there is an inverse relationship between the claims based on implicit limits (increasing behaviour) and those of explicit limits (decreasing behaviour). It then sheds some insights on the discretion that judges deploy when enforcing these implicit limits. The chapter raises some criticism on the fact that the Colombian Court does not have a clear interpretation on its own competence and scope to review constitutional amendments. It also claims that the excessive use of the doctrine of implicit unamendability has the undesired effect of focusing only in these principles, thus 'relaxing' procedural judicial review, giving the idea of less strict examination of the compliance with the rules governing the constitutional amendment process, and thus decreasing the quality in deliberation.
Constitutional Rights without the Notion of OptimizationLimiting Judicial Activism in the Realm of Social and Economic Rights
Authors: Tschentscher Axel 
Published: July 2021

Abstract
This chapter argues that apex courts should not take the place of the legislative or the executive branch. It takes a critical stance towards the notion of optimization that legal principles entail. Optimization results in judicial activism that, in turn, shifts the power from politics to courts. The chapter then looks at some decisions by the German Federal Constitutional Court considered 'activist decisions' in the realm of socio-economic rights, and compares their follow-up with the Colombian experience. It suggests that judges must play a rather modest role and limit themselves to a case-by-case rationale even if social rights are systematically under-enforced. The chapter also calls the courts' attention to be aware of the financial restrictions of their countries. Finally, it asks courts to create incentives for the legislatures and executive branch to commit with social and economic rights, and insists that follow-up measures should not be taken by apex courts, but rather by the political branches.
The Court’s Dilemma in Social Rights’ Enforcement
Authors: Ferraz Octávio Luiz Motta 
Published: July 2021

Abstract
This chapter presents a critical approach towards the role that many courts are assuming in the protection of socio-economical rights in the Latin American context. It argues that the proper role of courts must necessarily vary according to the formulation of the social right in question. As a general rule, the more absolute and specifically formulated the right — or its corresponding obligation — the higher the institutional competence (legitimacy and competency) of courts will tend to be, and vice versa. When obligations are stated in vague fashion, such as the right to housing, health, and education in Colombia, Brazil, and South Africa, the room left for interpreting contending definitions is not only ample, but it often involves the intractable question of social policy design that must be studied by the executive and legislative branches. The chapter then contends that courts should play, at most, a complementary role. It invites courts to take more creative approaches in the enforcement of socio-economic rights.
How can Rights be Individuated?
Authors: Bilchitz David 
Published: July 2021

Abstract
This chapter focuses on how courts should individuate social and economic rights. Although all rights can be judicially enforced, judges must have a different approach to each right; there are substantial differences even among social and economic rights themselves. Analysing the recent Dladdla case of the South African Court, the chapter argues that it is not possible to confine human interests regarding housing to bare survival, but other dimensions of the right to housing come into play. In this sense, it seems to take the stance of the 'interest theory' of rights, according to which despite their canonical formulations, rights have a dynamic character due to ever-evolving interest and duties that rights are there to protect and impose. This dynamism is even clearer in pluralist societies, where disagreement on those interest and duties flourishes. The chapter then calls the attention on how courts should do their job in regards to the interpretation and enforcement of socio-economic rights; it suggests taking an 'integrated' approach, which acknowledges the interconnection of the various rights.
The Resilient Constitution
Authors: Dyzenhaus David , Diamond Alma 
Published: July 2021

Abstract
This chapter evaluates the so called 'transitional constitution' of South Africa and the 'permanent constitution' of Colombia. Through a comparative approach, it contends that constitutions are better understood in terms of their resilience rather than either being transitional or permanent, and that a 'resilient constitution' is the one capable of springing back even after being subjected to extreme pressure, as long as leaders maintain their commitment to governing within the limits of the law. In this sense, the differences between the Colombian transitional justice and the South African case do not stem primarily from the 'permanence' of its Constitution, but rather from the difficulties and tensions inherent to any transitional justice process, because it derives from some of the very rights it is designed to promote. The chapter then details how the jurisprudence of the Colombian Constitutional Court on transitional matters can be understood as having moved from an understanding of the Constitution as permanent, to one of resilience that does not represent a new power grabbed by the Court. Rather than that, it signals an understanding of the role of the Court in maintaining a constitutional order even in the face of existential threats to it.
Judging the Justice of the Colombian Final Agreement
Authors: Murphy Colleen 
Published: July 2021

Abstract
This chapter studies the text of the Colombian peace agreement (also known as the Final Agreement), arguing that the justice component of this agreement depends on the extent to which the envisioned transitional process contributes to social transformation. Despite the fact that societies emerging from periods of conflict or repression characteristically try to address past wrongs using processes that are not criminal punishment, there is a deep disagreement as to whether true justice is achieved with alternative measures such as amnesty or a truth commission. To that extent, justice, in transitional circumstances, is not aimed at giving perpetrators what they deserve, but rather in transforming the political relationships among citizens and between citizens and officials, and in doing so in a just manner by treating victims and perpetrators fairly. The chapter then explains that the justice process outlined in the Final Agreement is comprehensive. By drawing on the cases of Northern Ireland and South Africa, it discusses the temporal dimension of transitional justice and the constitutional changes that occur in the pursuit of it.
Righting Wrongs or Wronging Rights?
Authors: Acosta-Navas Diana 
Published: July 2021

Abstract
This chapter highlights one of the classical and most disputed debates in transitional literature: the ethical justification of the transitional justice measures, as opposed to its legal dimensions. By employing a conceptual analysis to spell out the 'retributive' and 'holistic' conceptions of justice, it argues that both views fail to fully tailor their normative framework to the empirical conditions in which such institutions are implemented (e.g. large-scale wrongdoings and institutional weakness). In this sense, the chapter draws out a proposal that synthesizes the motivating concerns behind both positions, and attempts to overcome the diagnosed flaws, by drawing a conceptual bridge between the two opposing views. Rather than advocating for one position or the other, it tries to articulate the crucial insights of both views in light of the victims' right to justice. It suggests that transitional justice measures should be oriented towards creating appropriate conditions to enable and legitimize the future exercise of standardized procedures for redress.
International and Foreign Law in Domestic Constitutional Law
Authors: Ndulo Muna 
Published: July 2021

Abstract
This chapter illustrates the role of international and foreign law in domestic constitutional law. Through the case analysis of South Africa (a post conflict state) and the United States (often seen as a country that is not too friendly to international and foreign legal systems), it discusses the role of international and foreign law in reconciling the regional development of the rule of law in a country, by working closely together with domestic constitutional law. The domestic courts both in the United States and South Africa, whenever they deem it appropriate, do consider international and foreign law in the resolution of disputes before them. The conditions under which each jurisdiction may resort to foreign or international law, as well as the criteria used for taking them into consideration, vary. However, most importantly, this practice should be encouraged as it promotes the uniform interpretation of international law and the progressive advancement of norms world-wide, which are aspects that are especially important in the field of human rights.
The Changing Role and Reception of International Law in Domestic Constitutional Law
Authors: Fuchs Marie-Christine 
Published: July 2021

Abstract
This chapter addresses the changing role and reception of international law into domestic constitutional jurisdictions in Latin America and Europe. It begins by presenting a descriptive analysis of the differences between Europe and Latin America. Despite the existence of the 'conventionality control' doctrine developed in Latin America by the Inter-American Court of Human Rights (ICtHR), the European context seems more complex and diverse due to the 'three spheres of human rights protection': the European Court of Human Rights (ECtHR), the European Court of Justice (ECJ), and the national constitutional courts. The chapter then argues that, despite the fact that the multilevel architecture of protection provides States with a large range of opportunities for improving the effective protection of human rights both in Europe and Latin America, in practice, the most relevant level of guaranteeing such protection still seems to be at the domestic constitutional level. After exploring the 'conventionality control' and the application of the 'constitutionality block' doctrine developed by the Colombian Constitutional Court, it turns to examine the 'margin of appreciation doctrine'. Paradoxically, this doctrine, introduced by the ECtHR, has recently regained power both in Europe and Latin America as a bedrock of the 're-birth' of nationalistic movement.
Introduction
Authors: Socher Johannes 
Published: July 2021

Abstract
The book provides a detailed assessment of Russia’s state practice in the post-Soviet space with the aim to ascertain a distinct Russian approach to the right of peoples to self-determination, illustrated by seven case studies on the secessionist conflicts over Abkhazia, Chechnya, Crimea, Nagorno-Karabakh, South Ossetia, Tatarstan, and Transnistria. As such, it may serve as a detailed documentation of the raw material necessary to form and identify rules of customary international law, produced by one particular state. Beyond that, it seeks to test the accuracy of and give substance to Lauri Mälksoo’s general assessment in Russian Approaches to International Law that the ‘evolution of Moscow’s legal argumentation and views in these complex cases … has not followed some overarching legal principle but reflected changing power politics. Until 2014, Russia claimed that sovereignty trumped self-determination but in 2014 partly destroyed its own earlier argumentation by its own actions in Ukraine.’ Finally, this book is a contribution to what Mälksoo calls the ‘debatable nexus’ between legal scholarship and state practice of international law in Russia, that is the open question of to what extent international law as an academic discipline continues to be subjugated to the raison d’état in Russia.
Russia, the Right to Self-Determination and Secession
Authors: Socher Johannes 
Published: July 2021

Abstract
Chapter 3 is the second of three chapters analysing Russia’s post-Soviet state practice with regard to the right to self-determination. It argues that prior to Kosovo’s declaration of independence in 2008, Russia’s state practice in the four major secessionist conflicts outside the Russian Federation’s territory (Abkhazia and South Ossetia in Georgia, Nagorno-Karabakh in Azerbaijan, and Transnistria in Moldova) was relatively consistent, notwithstanding valid critique of hypocrisy. With the recognition of Abkhazia and South Ossetia as independent states shortly after Kosovo’s declaration of independence, Russia’s approach arguably changed, although the underlying legal view was consistent with its position in the Kosovo case in front of the International Court of Justice, where Russia did not deny Kosovo recognition because of a different view on self-determination and secession but because it refused to accept the logic of some states which viewed Kosovo as a ‘special’ or ‘unique’ case that cannot be compared with other secessionist conflicts. The case studies furthermore show that Russia started to construct its own legal framework to justify its actions.
Final Conclusions
Authors: Socher Johannes 
Published: July 2021

Abstract
The book concludes with the suggestion that Russia’s approach to the right of peoples to self-determination may be best understood not only in terms of Russian power politics disguised as legal rhetoric but can be seen as evidence of traits of a regional (re-)fragmentation of international law. Even basic agreement on what self-determination as a concept of international law means and what role related concepts such as territorial integrity, secession, referendum, or the prohibition of the use of force do or should play in that context seems almost unattainable, to the effect that international law as a single epistemological frame is arguably in a similar danger as during Soviet times. Today, apart from Lauri Mälksoo’s work and occasional contributions by a handful of other scholars in the West, analyses of Russia’s post-Soviet state practice and doctrine in the international legal discourse usually confine themselves to assess the legality of Russia’s actions in terms of positive international law. Such a limited approach fails to attempt to understand diverging views on international law, something which was perceived as self-evident during the Cold War period.
Defining the Statesman by Division
Authors: Mié Fabián 
Published: July 2021

AbstractChapter 3 discusses the two main reasons for finding the initial sequence of divisions in the Statesman (258b-268d) faulty: formal failures having to do mainly with the limitations of dichotomy, and the insufficient distinction of the statesman from his rivals. This sequence of divisions is considered in detail, controverting this negative assessment and defending the method of diairesis as a useful procedure for grasping kinds. It is argued that it is not the method of division, but the model of rearing humans, that is responsible for the shortcomings of the resulting definition. The interpretation is supported with a review of the methodological remarks on division in the Phaedrus and Statesman.
Kingly Intertwinement
Authors: Murr Dimitri El 
Published: July 2021

AbstractChapter 12 discusses final section of the Statesman (308b10-311c10), where Plato applies the paradigm of weaving to elucidate the statesman’s task. This chapter examines in detail what this ‘royal intertwining’ consists in. Plato distinguishes carefully between the tasks assigned to education and those assigned to statesmanship: although these tasks are so tightly connected as to make education an art even more precious than the precious arts of rhetoric, strategy, and the judiciary, they differ nonetheless in nature and scope. In addition to supervising education and the precious subordinate arts, statesmanship is crucially involved in choosing the officeholders involved in these forms of expertise. ‘The intertwining that belongs to kingship’ (Plt. 306a1: basilikē sumplokē), which the Visitor seeks to unravel in the concluding pages of the dialogue, amounts to giving prescriptions to these officeholders with the aim of maintaining concord and friendship between the two antagonistic character types in the city.
Introduction
Authors: Näsström Sofia 
Published: July 2021

AbstractThe Introduction presents the main content of the book, namely how a shift from sovereignty to spirit changes our understanding of what democracy is. Itbegins by clarifying the key concept of the book: “the spirit.” With this basic conceptual vocabulary in place, it describes the overall argument about the spirit of democracy, how it emancipates us from a state of self-incurred tutelage by sharing and dividing uncertainty about the future equally. It spells out the significance of this interpretation for the corruption, disintegration, and renewal of democracy. The Introduction ends with a note on the status of the argument, and a brief description of the chapters that follow.
Social Rights
Authors: Näsström Sofia 
Published: July 2021

AbstractThe chapter examines the corruption, disintegration, and renewal of democracy in relation to social rights, with particular attention given to the neoliberal choice revolution in social and public services. It shows that reforms undertaken to empower citizens by making them personally responsible for private and public life pave the way for a corruption of democracy that risks ending in democratic disintegration; in a so called “market for monarchy” where individuals are encouraged to compete for status and titles. In order to turn the corruption of democracy into a call for democratic renewal, it is not more “responsibility talk” that is called for, a common response in liberal and republican thought. On the contrary, the task is to release citizens from the burdens engendered by the choice revolution, and render them free to begin anew.
Conclusion
Authors: Näsström Sofia 
Published: July 2021

AbstractThe final chapter of the book takes stock, and asks what light it can shed on the present crisis of democracy: What can one see or do with this new conceptualization of democracy as spirit that one could not see or do before? Conversely, what issues have been framed out of vision? The chapter goes through the major findings in the shift from sovereignty to spirit, with a specific focus on how it reorients the discussion on populism, elitism, and the resurgence of authoritarianism. It also touches upon three major issues that fall beyond the scope of the book, namely how the spirit of democracy relates to the state, the nation, and the market respectively.
From Disaster to Belief
Authors: Jenkins Philip 
Published: July 2021

Abstract
Throughout history, climate-related disasters commonly had wide-ranging religious consequences. As climate conditions have changed over time, they have affected human affairs and shaped attitudes. At times those conditions might have promoted prosperity, abundant food supplies, fertility, and general contentment. Quite frequently, though, we can identify periods of acute harm, either short-lived, such as that of 1739–1742, or much longer-lasting, such as the repeated hammer blows during the prolonged cooling period that has been termed the Little Ice Age. This chapter describes the complex means by which climate affects human societies and thereby drives religious change, often on a revolutionary scale. It especially stresses the “apocalyptic” consequences: famine, plague, war, and death.
God’s Anger and the Demons Within
Authors: Jenkins Philip 
Published: July 2021

Abstract
The first major period of climate shock to be studied was the early fourteenth century, especially the years between 1310 and 1325. This involved a broad and lasting era of climatic change, a time of global cooling that marked the onset of the so-called Little Ice Age. Societies around the world suffered times of shocking paranoia and conspiracy-mongering. They responded with persecutions of minorities and dissidents, leading to purges and expulsions on an appalling scale. Whole populations suffered bitter times of exile and diaspora, and those changes did much to create our familiar maps of the great faiths and their geographical concentrations. In Europe, modern ideas of witchcraft were born.