Denis J. Galligan

Discretionary powers : a legal study of official discretion

One noticeable feature of modern legal systems is the extent to which power is conferred upon government officials and agencies to be exercized at their discretion, according to policy considerations, rather than according to precise legal standards. This book is a legal and jurisprudential analysis of discretionary power in modern legal systems, with particular emphasis on the consequences of discretion in the relationship between the individual and the state.

Theoretical Perspectives on the Social and Political Foundations of Constitutions

This is the opening essay in a forthcoming collection on the social and political foundations of constitutions. The collection includes both theoretical perspectives on the social and political foundations of constitutions and a series of in-depth case studies of different constitutional systems, including Japan, Ireland, Bulgaria, Nigeria, Romania, Ecuador, Argentina, South Sudan, and Egypt. In this essay, we provide an analysis of different theoretical approaches to the social and political understanding of constitutions: constitutions as expressions of national values; constitutions as transnational values and products of diffusion; constitutions as a product of democratic values and the people; constitutions as manifestations of power; constitutions as social coordination; and constitutions as social contracts. We contrast these theoretical perspectives with the findings from the case studies in the collection, in this way combining the theoretical and the empirical.

The People, the Constitution, and the Idea of Representation

Modern constitutions are presented as a declaration of how the people are to be governed. Analysis of the texts shows that the people in the main hand over the conduct of government to representatives and officials, over whom they have very limited constitutional control or accountability: see “The Sovereignty Deficit of Modern Constitutions.” If all political power derives from the people, and if self-government is the motivating principle of democracy, both ideas taken for granted in constitutional thought, then why do the people hand over government in this way to representatives and officials? The normal explanation is that effective and efficient government so requires. It is usually added that this does not detract from people’s being self-governing; it means only that they govern themselves through representatives. The aim of this essay is to propose an alternative understanding of the constitutions of democratic nations and in particular the place of the people within them. The argument is that the place of the people derives from constitutional conventions, traditions, and social understandings, which are markedly different from the dynamics of self-government. By drawing on the British, American, and French experience, and their social and historical settings, an alternative interpretation is proposed. This essay is part of a larger work on the social foundations of the people in the constitution, which has three parts: what the texts say about the people, the ideas on which the texts are based; and the social context from which such ideas have emerged. The first issue is examined in The Sovereignty Deficit of Modern Constitutions (above), the second begins but not ends with this essay, while the third part is the main subject of a book currently in preparation.

Social and Political Foundations of Constitutions: List of Contributors

Part I. Introduction: 1. Theoretical perspectives on the social and political foundations of constitutions Denis Galligan and Mila Versteeg Part II. Theoretical Perspectives: 2. Why a constitution? Russell Hardin 3. Constitutions as mission statements Jeff King 4. Transnational constitutions Benedikt Goderis and Mila Versteeg 5. The people, the constitution, and the idea of representation Denis Galligan 6. The strategic foundations of constitutions Ran Hirschl 7. Constitutions as contract, constitutions as charter Tom Ginsburg Part III. Case Studies: 8. Accidental constitutionalism: the political foundations and implications of constitution making in Israel Adam Shinar 9. The myth of imposed constitutionalism in Japan David S. Law 10. Social, political, and philosophical foundations of the Irish constitutional order Paul Brady 11. South Sudans dualistic constitution Kevin L. Cope 12. New Zealand David Erdos 13. The juristic republic of Iran Binesh Hass 14. Neo-Bolivarian constitutional design: comparing the 1999 Venezuelan, 2008 Ecuadorian, and 2009 Bolivian constitutions Phoebe King 15. The constitution as agreement to agree: the social and political foundations (and effects) of the 1971 Egyptian constitution Clark Lombardi 16. Explaining the constitutionalization of social rights: Portuguese hypotheses and a cross national test Pedro Magalhaes 17. Popular constitution making: the case of Iceland Anne Meuwese 18. Romanias transnational constitution: a tradition of elite learning and self-empowerment Christina Parau 19. The social and political foundations of the Nigerian constitution Charles H. Parkinson 20. The once and future democracy: Argentina at the bar of constitutionalism Miguel Schor 21. A battle between law and society in Micronesia Brian Z. Tamanaha 22. Constitutionalism of shallow foundations: the case of Bulgaria Daniel Smilov 23. The shifting foundations of the European Union constitution Neil Walker.

Social and Political Foundations of Constitutions: Case Studies

Part I. Introduction: 1. Theoretical perspectives on the social and political foundations of constitutions Denis Galligan and Mila Versteeg Part II. Theoretical Perspectives: 2. Why a constitution? Russell Hardin 3. Constitutions as mission statements Jeff King 4. Transnational constitutions Benedikt Goderis and Mila Versteeg 5. The people, the constitution, and the idea of representation Denis Galligan 6. The strategic foundations of constitutions Ran Hirschl 7. Constitutions as contract, constitutions as charter Tom Ginsburg Part III. Case Studies: 8. Accidental constitutionalism: the political foundations and implications of constitution making in Israel Adam Shinar 9. The myth of imposed constitutionalism in Japan David S. Law 10. Social, political, and philosophical foundations of the Irish constitutional order Paul Brady 11. South Sudans dualistic constitution Kevin L. Cope 12. New Zealand David Erdos 13. The juristic republic of Iran Binesh Hass 14. Neo-Bolivarian constitutional design: comparing the 1999 Venezuelan, 2008 Ecuadorian, and 2009 Bolivian constitutions Phoebe King 15. The constitution as agreement to agree: the social and political foundations (and effects) of the 1971 Egyptian constitution Clark Lombardi 16. Explaining the constitutionalization of social rights: Portuguese hypotheses and a cross national test Pedro Magalhaes 17. Popular constitution making: the case of Iceland Anne Meuwese 18. Romanias transnational constitution: a tradition of elite learning and self-empowerment Christina Parau 19. The social and political foundations of the Nigerian constitution Charles H. Parkinson 20. The once and future democracy: Argentina at the bar of constitutionalism Miguel Schor 21. A battle between law and society in Micronesia Brian Z. Tamanaha 22. Constitutionalism of shallow foundations: the case of Bulgaria Daniel Smilov 23. The shifting foundations of the European Union constitution Neil Walker.

Social and Political Foundations of Constitutions: Frontmatter

Part I. Introduction: 1. Theoretical perspectives on the social and political foundations of constitutions Denis Galligan and Mila Versteeg Part II. Theoretical Perspectives: 2. Why a constitution? Russell Hardin 3. Constitutions as mission statements Jeff King 4. Transnational constitutions Benedikt Goderis and Mila Versteeg 5. The people, the constitution, and the idea of representation Denis Galligan 6. The strategic foundations of constitutions Ran Hirschl 7. Constitutions as contract, constitutions as charter Tom Ginsburg Part III. Case Studies: 8. Accidental constitutionalism: the political foundations and implications of constitution making in Israel Adam Shinar 9. The myth of imposed constitutionalism in Japan David S. Law 10. Social, political, and philosophical foundations of the Irish constitutional order Paul Brady 11. South Sudans dualistic constitution Kevin L. Cope 12. New Zealand David Erdos 13. The juristic republic of Iran Binesh Hass 14. Neo-Bolivarian constitutional design: comparing the 1999 Venezuelan, 2008 Ecuadorian, and 2009 Bolivian constitutions Phoebe King 15. The constitution as agreement to agree: the social and political foundations (and effects) of the 1971 Egyptian constitution Clark Lombardi 16. Explaining the constitutionalization of social rights: Portuguese hypotheses and a cross national test Pedro Magalhaes 17. Popular constitution making: the case of Iceland Anne Meuwese 18. Romanias transnational constitution: a tradition of elite learning and self-empowerment Christina Parau 19. The social and political foundations of the Nigerian constitution Charles H. Parkinson 20. The once and future democracy: Argentina at the bar of constitutionalism Miguel Schor 21. A battle between law and society in Micronesia Brian Z. Tamanaha 22. Constitutionalism of shallow foundations: the case of Bulgaria Daniel Smilov 23. The shifting foundations of the European Union constitution Neil Walker.