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Global Constitutionalism and Its Challenges to the Westphalian Constitutional Law

ISBN13: 9781509914883
Published: May 2018
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £60.00
Paperback edition , ISBN13 9781509941186

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Westphalian constitutionalism has shaped our understanding of politics, socio-political institutions and personal and political freedom for centuries.

It is historically based in the foundations of Western modernity, such as humanism and rationalism, and is organized around familiar principles of national sovereignty, the rule of law, the separation of powers and democracy. But since the end of the 20th century global constitutionalism has gradually emerged, challenging both the constitutional ideology and the constitutional design of Westphalian constitutional law.

This book critically assesses the structural and functional transformations in the Westphalian constitutional tradition produced by the emergence of supranational and global constitutionalism. In so doing, it evaluates the theory of global constitutionalism, its legal and socio-political limits, and important issues concerning the supranational constitutionalism of the EU.

This leads to an articulation of the constitutional theory of the emerging post-Westphalian constitutionalism, examining its development during a period of significantly increased access to and sharing of information, increased mobility and more open statehood, as well as the rise of human rights and its encounter with populism and nationalism.

It will be of great interest to scholars of constitutional law and theory, particularly those with an interest in globalization and supranationalism.

Constitutional and Administrative Law
Part I. General Constitutional Theory of Global Constitutionalism
1. Global Constitutionalism and Normative Hierarchies
Jean-Bernard Auby
I. The Basic Problem: The Disorder Created by the Multiplication and Dispersion of Legal Producers and of Places of Production of Law in the Global Space
II. Theories of Global Constitutionalism as Efforts to Instil some Order and Values into the Normative Disorder of Legal Globalisation
III. The Problem of Normative Hierarchies in Legal Globalisation
IV. Global Constitutionalism and Links between Legal Orders
V. Global Constitutionalism and Normative Arrangements
VI. Global Constitutionalism and Dissemination of the Rule of Law’s Fundamental Principles
VII. Conclusion: Necessity and Limits of Global Constitutionalism

2. The Challenges to Westphalian Constitutional Geometry in the Age of Supranational Constitutionalism, Global Governance and Information Revolution
Martin Belov
I. Taking Constitutional Geometry Seriously
II. Geometrical Explanatory Paradigms in Westphalian Constitutional Law
III. Post-Westphalian Challenges of Supranational Constitutionalism, Global Governance and Information
Revolution to the Constitutional Geometry of Westphalian Constitutional Law
IV. Conclusion

3. Overcoming False Dichotomies: Constitutionalism and Pluralism in European and International Studies
Giuseppe Martinico
I. Aims and Structure
II. Constitutionalism According to Krisch
III. Questioning this Reconstruction
IV. Italian Constitutionalism between Resistance and Openness
V. The Italian Constituent Process and its Relevance
VI. External Openness
VII. Final Remarks

Part II. Limits to Global Constitutionalism
4. Counter-developments to Global Constitutionalism
Konrad Lachmayer
I. The Road Towards Constitutional Authoritarianism
II. The Threats to Global Constitutionalism
III. Between Societal and Civic Constitutionalism

5. Romanian Tendential Constitutionalism and the Limits of European Constitutional Culture
Manuel Gutan
I. Failure of the European Model of Civic Constitutionalism
II. The European Constitutional Convergence and the Limits of the European Constitutional Transplant
III. Factors Explaining the Poor Romanian Score in Endorsing Civic Constitutionalism
IV. Romanian Tendential Constitutionalism
V. Conclusions

Part III. Issues of European Supranational Constitutionalism
6. The Limits of Sovereignty Pooling: Lessons from Europe
Balázs Fekete
I. An Evergreen Problem Re-exposed
II. Keohane’s Idea of Pooled Sovereignty
III. Sovereignty Pooling in EU Constitutional Law
IV. The Nightfall of Sovereignty Pooling in Europe?

7. EU Agencies in the Internal Market: A Constitutional Challenge for EU Law
Marta Simoncini
I. Introduction
II. EU Agencies in the Complex Nature of the EU Integration Process
III. The Constitutional Value of the Meroni Doctrine
IV. The Constitutional Challenges to EU Agencies
V. Final Remarks