DEMOCRATISATION JURISPRUDENCESKETCHING THE CONTOURS OF A FLEDGLING CONCEPT

Constitutional Law Discussion Group

22 April 2014 Tom Gerald Daly T.G.Daly@sms.ed.ac.uk

Gaining a better understanding of constitutional adjudication in new democracies and its impact on the democratisation process

OVERALL AIM OF THESIS

Constitutional Courts

Constitutional Courts

Legal Literature – confusion Comparative Constitutional Law Transitional Justice Law & Politics Judicial Politics

Political science literature3 temporal phasesTransition to democracy Consolidation of democracy

‘Post-consolidation’

DEMOCRATISATION Pro-democracy protests Bahrain

1 Legal Theory – democratic jurisprudence – transitional jurisprudence

2 Constitutional theory – spectrum of constitutionalism

3 Transitional Justice – entrenchment of the new constitution – disentrenchment of the old constitution4 Comparative constitutional law – activities of constitutional courts in

new democracies worldwide – different function of constitutional

courts in new democracies

EXISTING SCHOLARSHIP Adoption of the New Tunisian Constitution January 2014

Middle-Level theoretical approach Applicable across a variety of states Key decisions of a constitutional court related to construction of the essentials of a democratic constitutional order

Transition to electoral democracy – adoption of new constitution – establishment of new constitutional court

DEMOCRATISATION JURISPRUDENCE

Constitutional Court of Spain

DISTINGUISHING FEATURES

Time Tempo Context

Content

Constitutional Court of Mongolia

CONTENT

Maximal---

Minimal

Entrenchment of the new constitution   1. Maintaining the coherence of the constitutional order 2. Deciding fundamental power dispersal disputes 3. Settling the basic rules of the electoral system 4. Protection of core fundamental rights

Disentrenchment of the prior legal-constitutional regime  5. Articulating the relationship between the old and new constitutional order 6. Addressing transitional justice questions 7. Addressing/eliminating authoritarian legislation Institution-building  8. Delineating the Court’s jurisdiction 9. Addressing crises

THESIS OUTLINE

Part One: Conceptual & Comparative work – Critical Literature Review – Democratisation Jurisprudence concept

Part Two: Domestic Democratisation Jurisprudence

– South America as a region – Brazil (case-study)

Part Three: International Democratisation Jurisprudence

– South America as a region – Brazil (case-study) Supreme Federal Court of

Brazil