Table Of ContentCONSTITUTIONALISM
AND DEMOCRACY
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CONSTITUTIONALISM
and DEMOCRACY
Transitions in the
Contemporary World
The American Council of Learned Societies
Comparative Constitutionalism Papers
EDITORS
DOUGLAS GREENBERG
STANLEY N. KATZ
MELANIE BETH OLIVIERO
STEVEN C. WHEATLEY
New York Oxford
OXFORD UNIVERSITY PRESS
1993
Oxford University Press
Oxford New York Toronto
Delhi Bombay Calcutta Madras Karachi
Kuala Lumpur Singapore Hong Kong Tokyo
Nairobi Dar es Salaam Cape Town
Melbourne Auckland Madrid
and associated companies in
Berlin Ibadan
Copyright © 1993 by Oxford University Press, Inc.
Published by Oxford University Press, Inc.
200 Madison Avenue, New York, NY 10016
Oxford is a registered trademark of Oxford University Press
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording, or otherwise,
without the prior permission of Oxford University Press.
Library of Congress Cataloging-in-Publication Data
Constitutionalism and democracy: transitions in the contemporay
world: the American Council of Learned Societies comparative
constitutionalism papers / edited by Douglas Greenberg . . . [et al.].
p. cm.
Papers from a series of international conferences organized by the
American Council of Learned Societies.
Includes bibliographical references (p. ) and index.
ISBN 0-19-507107-7
1. Representative government and representation—Congresses.
2. Democracy- Congresses. 3. Constitutional history— Congresses.
4. Constitutional law Congresses. I. Greenberg, Douglas.
II. American Council of Learned Societies.
JF1051.C635 1993 321.8 dc20 92-22633
4689753
Printed in the United States of America
on acid-free paper
Contents
Contributors, ix
Introduction, xv
I Transitions
1. Constitutions, Constitutionalism, and Democracy, 3
Walter F. Murphy
2. Constitutionalism in Europe Since 1945: Reconstruction and
Reappraisal, 26
Nevil Johnson
3. Transition to Democracy, Corporatism, and Presidentialism with
Special Reference to Latin America, 46
Carlos Santiago Nino
4. Constitutions Without Constitutionalism: Reflections on an African
Political Paradox, 65
H.W.O. Okoth-Ogendo
II Human Rights
5. Human Rights in Constitutional Order and in Political Practice
in Latin America, 85
Hugo E. Fruhling
6. The National Question, Secession and Constitutionalism: The Mediation
of Competing Claims to Self-Determination, 105
Abdullahi An-Na'im
7. European Courts and Human Rights, 126
Ludger Kuhnhardt
vi Contents
8. Social Movements, Constitutionalism, and Human Rights: Comments
from the Malaysian and Indonesian Experiences, 139
Daniel S. Lev
III Pluralism and Nationalism
9. Uses and Usurpation of Constitutional Ideology, 159
Radhika Coomemswamy
10. Social Movements and Constitutionalism: The African Context, 172
Mahmood Mamdani
11. The Theory of the State in the Third World and the Problematics
of Constitutionalism, 186
Yash Ghai
12. Constitutionalism and The Nationalist Discourse: The Indian
Experience, 197
Tapan Raychaudhuri
IV Institutional Arrangements
13. Reconstructing Political Space: Militarism and Constitutionalism
in Africa, 215
Eboe Hutchful
14. Providing for the Common Defense: What Latin American Constitutions
Have to Say About The Region's Armed Forces, 235
Juan Rial
15. Parliamentary Democracy in Europe 1992: Tentative Questions
and Answers, 349
Joseph H. H. Weiler
V Constitutional Conundrums in Europe
16. The Necessity and Impossibility of Simultaneous Economic
and Political Reform, 267
Jon Elster
17. Parliamentary Crisis and How to Strengthen Democracy, 275
Klaus von Beyme
18. Iberian Case Study: The Constitutionalism of Democratization, 287
]ordi Sole Tura
Contents vii
19. The Role of the State: Contradictions in the Transition to Democracy, 300
Lena Kolarska-Bobinska
20. Perspectives on the Current Constitutional Situation in Poland, 312
Wiktor Osiatynski
21. Rule by Law in East Central Europe: Is The Emperor's New Suit a
Straightjacket?, 321
Andras Sajo and Vera Losonci
VI Reflections on Constitutionalism
22. Latin America: Constitutionalism and the Political Traditions of Liberalism
and Socialism, 339
Atilio A. Boron
23. Constitutionalism: A Timely Revival, 354
Julio Faundez
24. The Crisis of Constitutionalism: South Asian Perspectives, 361
Neelan Tiruchelvam
25. Constitutionalism in Africa: Some Conclusions, 366
Samuel C. Nolutshungu
Index, 379
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Contributors
Abdullahi Ahmed An-Na'im is the incoming director of Africa Watch of Human Rights
Watch, New York, after serving for a year as Olaf Palme Professor of Law, University
of Uppsala, Sweden. He was formerly Associate Professor of Law at the University of
Khartoum, the Sudan, and Professor of Human Rights at the University of Saskatchewan,
Canada. Mr. An-Na'im is a co-editor of Human Rights in Africa: Cross-Cultural
Perspectives (Washington D.C.: The Brookings Institution, 1990); author of Toward an
Islamic Reformation: Civil Liberties, Human Rights and International Law (Syracuse:
Syracuse University Press, 1990); and editor of Human Rights in Cross-Cultural Perspectives
(Philadelphia: University of Pennsylvania Press, 1991).
Atilio A. Boron is Founder and Director of the Center for European-Latin American
Research (EURAL) in Buenos Aires, Argentina. Mr. Boron has held many teaching
positions in Argentina and abroad, most recently serving as Titular Professor of the Chair
of Political Theory at the University of Buenos Aires, from August 1986 to the present,
and as Tinker Professor of Latin American Affairs at Columbia University, New York,
in the fall of 1987.
Radhika Coomaraswamy is a director of the International Centre for Ethnic Studies,
Working Committee member of the Sri Lanka Civil Rights Movement, and was recently
appointed to the Presidential Commission on Youth Unrest. She is author of Sri
Lanka—Anglo American Constitutional Traditions in a Developing Society (New Delhi:
Vikas, 1984).
Jon Elster is Professor of Political Science and Philosophy at the University of
Chicago, and Adjunct Professor of Economics at the University of Oslo in Norway. His
most recent publications are Psychologie Politique (Paris: Minvit, 1990), The Cement of
Society (Cambridge: Cambridge University Press, 1989), and Solomonic Judgements
(Cambridge: Cambridge University Press, 1989).
Julio Faundez teaches international law at Warwick University, where he is Director
of the International Economic Law Programme. His recent books include Marxism and
Democracy in Chile (New Haven: Yale University Press, 1988), Independent Namibia:
Succession to Treaty Rights and Obligations (Lusaka, Zambia: United Nations Institute
for Namibia, 1989), and Malvinas Hoy (Buenos Aires: Puntosur, 1989, co-editor with
Atilio Boron). He has served as legal consultant to the United Nations Centre on
Transnational Corporations, the United Nations Institute for Namibia, and the Inter-
