Comparative Constitutional History
Volume Two: Uses of History in Constitutional Adjudication
Published on 8. December 2022
Book
Hardback
392 pages
978-90-04-43705-0 (ISBN)
Description
Constitutions are a product of history, but what is the role of history in interpreting and applying constitutional provisions? This volume addresses that question from a comparative perspective, examining different uses of history by courts in determining constitutional meaning. The book shows that there is considerable debate around the role of history in constitutional adjudication. Are, for example, historical public debates over the adoption of a constitution relevant to reading its provisions today? If a constitution represents a break from a prior repressive regime, should courts construe the constitution's provisions in light of that background? Are former constitutions relevant to interpreting a new constitution? Through an assessment of current practices the volume offers some lessons for the future practices of courts as they adjudicate constitutional cases.
Contributors are: Mark D. Rosen, Jorge M. Farinacci-Fernos, Justin Collings, Jean-Christophe Bedard-Rubin, Cem Tecimer, Angel Aday Jimenez Aleman, Ana Beatriz Robalinho, Keigo Obayashi, Zoltan Szente, Shih-An Wang, and Diego Werneck Arguelhes.
Contributors are: Mark D. Rosen, Jorge M. Farinacci-Fernos, Justin Collings, Jean-Christophe Bedard-Rubin, Cem Tecimer, Angel Aday Jimenez Aleman, Ana Beatriz Robalinho, Keigo Obayashi, Zoltan Szente, Shih-An Wang, and Diego Werneck Arguelhes.
More details
Series
Language
English
Place of publication
Leiden
Netherlands
Target group
Professional and scholarly
Product notice
sewn/stitched
Cloth over boards
Dimensions
Height: 234 mm
Width: 155 mm
Thickness: 22 mm
Weight
721 gr
ISBN-13
978-90-04-43705-0 (9789004437050)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Classification
Persons
Francesco Biagi is Senior Assistant Professor of Comparative Public Law at the University of Bologna Department of Legal Studies. His latest publications include: European Constitutional Courts and Transitions to Democracy (Cambridge University Press 2020); "Constitution Drafting After the Arab Spring: A Comparative Overview", 29 Indiana Journal of Global Legal Studies 1 (2022).
Justin O. Frosini is Associate Professor of Comparative Public Law at the Bocconi University in Milan and Adjunct Professor of Constitutional Law at Johns Hopkins University. He earned his law degree and his doctorate from the University of Bologna. His latest book is Dalla Sovranita del Parlamento alla Sovranita del Popolo. La rivoluzione costituzionale provocata dalla Brexit (Wolters Kluwer-Cedam, 2020).
Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law at the University of Illinois at Urbana-Champaign where he also serves as Director of the Program in Constitutional Theory, History and Law. He earned undergraduate and law degrees from Harvard University and his doctorate from Yale University.
Justin O. Frosini is Associate Professor of Comparative Public Law at the Bocconi University in Milan and Adjunct Professor of Constitutional Law at Johns Hopkins University. He earned his law degree and his doctorate from the University of Bologna. His latest book is Dalla Sovranita del Parlamento alla Sovranita del Popolo. La rivoluzione costituzionale provocata dalla Brexit (Wolters Kluwer-Cedam, 2020).
Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law at the University of Illinois at Urbana-Champaign where he also serves as Director of the Program in Constitutional Theory, History and Law. He earned undergraduate and law degrees from Harvard University and his doctorate from Yale University.
Content
Acknowledgments
List of Tables
Notes on Contributors
Introduction
??Francesco? ?Biagi??, ??Justin O?. ?Frosini?? and ??Jason? ?Mazzone?????
Part 1?
Framing the Problem?
1?History Limit or License in Constitutional Adjudication???
??Mark D?. ?Rosen?????
2?When History Requires the Use of History in Constitutional Adjudication
??Jorge M.? ?Farinacci-Fern?o?s?????
3?Memory as Mantle Evil Pasts and Judges' Power in Germany and South Africa??
??Justin? ?Collings??????
Part 2?
Historical Precedents and Inter-constitutional Interpretation?
4?Comparing Constitutional Historicities The Case of Precedents in Canada and the United States??
??Jean-Christophe? ?B?e?dard-Rubin?????
5?Inter-constitutional Interpretation A Case Study of the Articles of Confederation??
??Cem? ?Tecimer??????
Part 3?
A Matter of Narratives?
6?Janus' Third Face? The Spanish Constitutional Court at the Crossroads of History??
??A?ngel Aday? ?Jim?e?nez Alem?a?n?????
7?Competing Narratives The Use of Historical Arguments in Constitutional Interpretation in Brazil??
??Ana Beatriz? ?Robalinho?????
8?Manipulating Constitutional, Legislative and Judicial History Incremental Judicial Activism in the Japanese Supreme Court??
??Keigo? ?Obayashi??????
Part 4?
New Democracies and Illiberal Regimes?
9?How Not to Use History in Constitutional Interpretation The Aborted Resurrection of the Historical Constitution in Hungary??
??Zolt?a?n? ?Szente?????
10?Using the Authoritarian Past for Constitutional Interpretation in New Democracies The Example of the Taiwan Constitutional Court??
??Shih-An? ?Wang?????
?Conclusion Which History, Whose Past???
??Diego Werneck? ?Arguelhes??????
Index
List of Tables
Notes on Contributors
Introduction
??Francesco? ?Biagi??, ??Justin O?. ?Frosini?? and ??Jason? ?Mazzone?????
Part 1?
Framing the Problem?
1?History Limit or License in Constitutional Adjudication???
??Mark D?. ?Rosen?????
2?When History Requires the Use of History in Constitutional Adjudication
??Jorge M.? ?Farinacci-Fern?o?s?????
3?Memory as Mantle Evil Pasts and Judges' Power in Germany and South Africa??
??Justin? ?Collings??????
Part 2?
Historical Precedents and Inter-constitutional Interpretation?
4?Comparing Constitutional Historicities The Case of Precedents in Canada and the United States??
??Jean-Christophe? ?B?e?dard-Rubin?????
5?Inter-constitutional Interpretation A Case Study of the Articles of Confederation??
??Cem? ?Tecimer??????
Part 3?
A Matter of Narratives?
6?Janus' Third Face? The Spanish Constitutional Court at the Crossroads of History??
??A?ngel Aday? ?Jim?e?nez Alem?a?n?????
7?Competing Narratives The Use of Historical Arguments in Constitutional Interpretation in Brazil??
??Ana Beatriz? ?Robalinho?????
8?Manipulating Constitutional, Legislative and Judicial History Incremental Judicial Activism in the Japanese Supreme Court??
??Keigo? ?Obayashi??????
Part 4?
New Democracies and Illiberal Regimes?
9?How Not to Use History in Constitutional Interpretation The Aborted Resurrection of the Historical Constitution in Hungary??
??Zolt?a?n? ?Szente?????
10?Using the Authoritarian Past for Constitutional Interpretation in New Democracies The Example of the Taiwan Constitutional Court??
??Shih-An? ?Wang?????
?Conclusion Which History, Whose Past???
??Diego Werneck? ?Arguelhes??????
Index