Liberal Constitutionalism - Between Individual and Collective Interests s
Loading...
Date
2017
Authors
Bień-Kacała, Agnieszka
Csink, Lóránt
Milej, Tomasz
Serowaniec, Maciej
Journal Title
Journal ISSN
Volume Title
Publisher
Wydział Prawa i Administracji/Faculty of Law and Administration Uniwersytetu Mikołaja Kopernika w Toruniu/ Nicolaus Copernicus University in Toruń ul. Władysława Bojarskiego
Abstract
Can a democracy work without liberalism? Or in other
words, is the concept of governing and being governed in turns
sustainable without respecting individual rights? Or is a
democracy doomed to be hijacked by authoritarian rulers, if not
backed by robust mechanisms of individual rights protection, by
a rule of law and as system, in which – as James Madison wanted
– an ambition is made to counteract ambition and the abuses of
government are controlled? A standard answer of the so-called
‘Western’ constitutionalism is still a clear ‘no’.
The present volume offers study material on countries
and historical situations, in which this clear ‘no’ faces challenges.
It traces trajectories of democracy’s development as it embraced
and rejected liberal ideas. The contribution by Timea Drinoczi
and Agnieszka Bien-Kacała does it with respect to Hungary and
Poland, while the contribution by Tomasz Milej focuses on Kenya
and Tanzania. But before embarking on the developments in
particular countries, Wojciech Włoch takes the reader through the
contemporary thought on the relationship between democracy
and liberalism. He argues from the philosophical perspective that
the liberal ideal of equal rights of individuals enables a democracy
to thrive and prosper. Tomasz Milej takes up this point showing
on the examples of Kenya and Tanzania how the attempts to base
a democratic regime on illiberal pillars eventually lead to a
collapse of the same. In this vein, Timea Drinoczi and Agnieszka
Bien-Kacała make a strong case against theorising violations of
constitutional stipulations and disenfranchisement of judiciaries
as some new concepts of democracy or political constitutionalism
as opposed to the legal one; one of the terms they prefer to
describe the departure from the liberal democracy is abusive
constitutionalism. On such a dialogue focuses Faith Kabata
documenting a poor record of Kenya in implementing of the UN
monitoring bodies recommendations and even obstructionism by
the state executive organs regarding civil and political rights. Her
study shows that these rights were best implemented when
individuals took their cases to the courts and that the biggest
obstacle to the implementation was a lack of social and political
internalisation of certain human rights provisions. Aren’t those
internalisation deficits the same ones that derailed the liberal
democracy – at least temporarily – in Hungary and Poland? One
could look from this perspective at the failure of the direct
democracy instruments to enhance people’s participation in
public matters, as discussed by Zbigniew Witkowski and Maciej
Serowaniec in the Polish context.
Those more general accounts are supplemented by three
case studies on a sensitive area of clash between the collective
and individual interest. The contributions by Lóránt Csink and
Réka Török, by István Sabjanics and by Václav Stehlík examine
the relationship between the national security concerns and the
individual freedoms. Quite interestingly, Stehlík’s research
shows that the readjustment away from the individual movement
rights towards the protection of national security concerns has
also found its way into the case law of the Court of Justice if the
European Union.
Description
Book
Keywords
Citation
Bień-Kacała, A., Csink, L., Milej, T., & Serowaniec, M. (2017). Liberal constitutionalism-between individual and collective interests. Wydział Prawa i Administracji Uniwersytetu Mikołaja Kopernia w Toruniu.