Full Description
This innovative book blends constitutional theory with real-life political practice to explore the impact of codifying constitutional amendments on the operation of the constitution in relation to democracy, the rule of law, and the separation of powers.
It draws from comparative, historical, political and theoretical perspectives to answer questions all constitutional designers should ask themselves:
- Should the constitution append amendments sequentially to the end of the text?
- Should it embed amendments directly into the existing text, with notations about what has been modified and how?
- Should it instead insert amendments into the text without indicating at all that any alteration has occurred?
The book examines the 3 major models of amendment codification - the appendative, the integrative, and the invisible models - and also shows how some jurisdictions have innovated alternative forms of amendment codification that combine elements of more than 1 model in a unique hybridisation driven by history, law, and politics.
Constitutional designers rarely consider where in the constitution to codify amendments once they are ratified. Yet this choice is pivotal to the operation of any constitution. This groundbreaking book shows why the placement of constitutional amendments goes well beyond mere aesthetics. It influences how and whether a people remembers its past, how the constitutional text will be interpreted and by whom, and whether the constitution will be easily accessible to the governed.
A global tour of the high stakes of constitution-making, this book features 18 diverse and outstanding scholars from around the world - across Africa, America, Asia and Oceania, and Europe - raising new questions, opening our eyes to new streams of research, and uncovering new possibilities for constitutional design.
Contents
List of Contributors
Introduction: How Should Constitutions Codify Amendments?, Richard Albert (University of Texas at Austin, USA)
1. The Traces of Formalism: The Spanish Invisible Model of Constitutional Codification, Patricia García Majado (University of Oviedo, Spain)
2. The Presentist Portuguese Constitution, Catarina Santos Botelho (Universidade Católica Portuguesa, Portugal)
3. Caught Between: On the Distinctive Character of Mexico's Model of Amendment Codification, Jaime Olaiz-González (Universidad Panamericana Law School, Mexico)
4. The Incorporation of Amendments in Paraguayan Constitutionalism, Diego Moreno (Catholic University of Asunción, Paraguay)
5. The Codification of Constitutional Amendments in Brazil: Beyond the Appendative and Integrative Models, Bruno Santos Cunha (The Ohio State University Moritz College of Law, USA)
6. The Form of Constitutional Amendments in Japan, Masahiko Kinoshita (Kobe University, Japan)
7. When Temporary Becomes Indefinite: Legitimacy, Path Dependency and Taiwan's Hybrid Approach to Codifying Constitutional Amendment, Hui-Wen Chen (University of Warwick, UK)
8. Amendment Politics in South Korea: Invisible Constitutional Replacements in 1960 and 1962, Jeong-In Yun (Korea University, Republic of Korea)
9. Crafting Amendments During Political Upheaval: Amendment Models and Constitutional Stability in Afghanistan, Shamshad Pasarlay (Max Planck Foundation for International Peace and the Rule of Law, Germany)
10. Codifying Secularism in the Bangladesh Constitution, Sharowat Shamin (SOAS University of London, UK)
11. The Integrative Model of Constitutional Amendment in Indonesia as a Constitutional Communication, Rosa Ristawati (Airlangga University, Indonesia), Radian Salman (Airlangga University, Indonesia)
12. The Amalgamation of Amendment Codification Models in Ethiopia: A Move towards Unwritten Constitution, Zelalem Eshetu Degifie (Wollo University, Ethiopia)
13. Amendment Codification in Switzerland: Codifying an Evolving Culture of Constitutional Pragmatism, Caspar Pfrunder (University of St. Gallen, Switzerland)
14. Between Accessibility and Oblivion: Strengths and Weaknesses of the "Invisible" Dutch Constitutional Amendment Model, Gert-Jan Leenknegt (Tilburg University, the Netherlands), Reijer Passchier (The Open University, UK, and Leidan University, the Netherlands)
15. Codification of Constitutional Amendments as a Symbol for Transitions: A Case Study from Hungary, Eszter Bodnár (ELTE Eötvös Loránd University, Hungary, and Lecturer at the University of Victoria, Canada)
16. One Constitution, Two Models of Codification: Between Trust and Distrust of Constitutional Interpretations in Albania, Arta Vorpsi (Tirana University, Albania)
17. Georgia's Model of Constitutional Amendment Codification, Malkhaz Nakashidze (Batumi Shota Rustaveli State University, Georgia)
