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The Architecture of Constitutional Amendments: History, Law, Politics

Edited by: Richard Albert

ISBN13: 9781509959082
Published: May 2023
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £90.00
Paperback edition not yet published, ISBN13 9781509959129



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This book blends deep engagement with constitutional theory and close attention to real-life political practice to explore how the choices political actors make in codifying constitutional amendments exert consequences on the operation of the constitution in relation to democracy, the rule of law, and the separation of powers.

It answers the following questions:

  • Should constitutions append amendments sequentially to the end of the text?
  • Should they embed amendments directly into the existing text, with notations about what has been modified and how?
  • Should constitutions 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 this question of central significance to the operation of constitutions: where in the constitution to codify amendments once they are ratified? This innovative book is the first to explain why the placement of constitutional amendments concerns more than mere aesthetics. It involves 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 constitutional design in every region of the world, this book features 18 contributors 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.

Subjects:
Constitutional and Administrative Law
Contents:
Introduction
Richard Albert (University of Texas, USA)

Part I: Uses and Misuses of the Integrative Model
1. Codification of Constitutional Amendments as a Symbol for Transitions: A Case Study from Hungary
Eszter Bodnár (University Eötvös Loránd, Hungary)
2. Opting for the Primacy of Politics: An Inquiry into the History of Switzerland's Choices in Codifying Constitutional Amendments
Caspar Pfrunder (University of St Gallen, Switzerland)
3. The Integrative Model of Constitutional Amendment in Indonesia as a Constitutional Communication
Rosa Ristawati and Radian Salman (both at Airlangga University, Indonesia)

Part II: Seen and Unseen in the Invisible Model
4. The Traces of Formalism: The Spanish Invisible Model of Constitutional Codification
Patricia García Majada (Max Plank Institute for Comparative Public Law and International Law, Germany)
5. Between Accessibility and Oblivion: Strengths and Weaknesses of the 'Invisible' Dutch Constitutional Amendment Model
Reijer Passchier (Leiden University, the Netherlands)
6. Georgia's Model of Constitutional Amendment Codification
Malkhaz Nakashidze (Batumi Shota Rustaveli State University, Georgia)

Part III: Form and Function in Hybrid Models
7. Caught Between: On the Distinctive (or Not) Character of Mexico's Model of Amendment Codification
Jaime Olaiz-González (Universidad Panamericana Law School, Mexico)
8. When Temporary Becomes Indefinite: Legitimacy, Path Dependency and Taiwan's Hybrid Approach to Codifying Constitutional Amendment
Hui-Wen Chen (National Taiwan University, Taiwan)
9. Practically Invisible or Formally Appendative: A Socio-Legal View of Poland's Model of Constitutional Amendment Codification
Emilia Kowalewska (Polish Academy of Sciences' Institute of Political Studies and Graduate School for Social Research, Poland)
10. Codification of Constitutional Amendments in Kenya: A Synthesis of Modified Integrative and Invisible Models
Patriciah Waithera Joseph (High Court of Kenya)
11. 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)
12. Two Models of Codification, One Constitution: Between Trust and Distrust of Constitutional Interpretations in Albania
Arta Vorpsi (University of Tirana, Albania)
13. The Codification of Constitutional Amendments in Brazil: Beyond the Appendative and Integrative Models
Bruno Santos Cunha (USA)
14. The Odd Case of Paraguay's Model for Incorporating Constitutional Amendments
Diego Moreno Rodríguez-Alcalá (Paraguay)
15. Codifying Secularism in the Bangladesh Constitution
Sharowat Shamin (University of Dhaka, Bangladesh)
16. De-Codifying Amendments in Ethiopia: A Move towards Unwritten Constitution?
Zelalem Eshetu Degifie (Wollo University, Ethiopia)