This chapter considers how Gary Jacobsohn’s concept of ‘constitutional identity’ can ‘travel’ from the discipline of law to that of international relations, with a particular focus on how it can inform analyses of the ‘ontological security’ of states. The concept of ontological security is used to understand subjectivity and focuses on managing anxiety in the constitution of self-identity. When a state is ontologically insecure this can challenge its ability to do, act, and be. Using a case study of Timor-Leste, this chapter argues that a constitution – and the constitutional identity it generates – can contribute to creating a sense of ontological (in)security for a state and its people. A constitution can provide answers to existential questions and help to define a state’s self-identity by narrating a sense of biographical continuity and by establishing the institutions and practices that build the routines required to create a protective cocoon for a state’s citizenry.

The concept of material constitution is helpful to understand how particular constitutional orders are created and operate, inviting observers to look beyond the formal constitution, showing the shortcomings of the exclusive focus on the formal constitution and offering tools to enquire into the underpinning materiality. While the material study of a particular constitution requires a detailed thorough research of the forces that condition a material constitutional order, we can show the usefulness of the enquiry through selected aspects of a constitutional order. This chapter aims to do that by explaining the military’s role in constitution-making in Turkey. While the military is a defining constitutional actor in Turkey, recognition of this in the formal constitution is very limited. Only through accounting for the constitutional role of the military can the materiality of the Turkish Constitution be grasped and a more accurate description of the Turkish constitutional order be provided. Through an overview of its role in the making and re-making of the 1961 and 1982 Constitutions, the military is introduced as an ordering force in the Turkish Constitution, explaining the military’s constituent and ongoing authority over the constitutional order and its role in guaranteeing the fundamental political objectives of that order.

This chapter describes the application of the principle of proportionality in the case law of the Constitutional Court of Ecuador in a context that is highly favorable to its use, given the presence in the Constitution of 2008 of an amplified rights catalog, the reception of international human rights instruments into the constitutional block, and the explicit authority granted to the Court to resort to proportionality analysis to solve tensions and conflicts between rights. On the basis of decisions produced between 2008 and 2019, the authors show that the Constitutional Court has applied the method with different goals in mind and with regards an ample variety of subject matters covering civil and political rights but also economic, social, cultural and environmental rights. While the authors point out that the method has received inadequate uses, case law analysis also shows that it has been used to protect traditionally discriminated–against social groups, displaying a transformative potential.

Chapter 3 describes a participatory turn, which, since the 1990s, has demanded women’s equal representation, including through access to constitution-making and, facilitated by the adoption of gender quotas, to decision-making positions. Coinciding in time with movements in favor of participatory forms of constitution-making and in favor of the recognition of the pluralistic and multinational composition of most modern states, this chapter examines the ways in which the participatory turn compelled women across the globe to fight in order to have their voices heard in constitution-making processes, to enshrine new understandings of democracy (such as parity democracy), and to be actively involved as members of their distinctive cultural, religious, or ethnic communities. Under the influence of evolving universal and regional human rights standards, a notion of substantive equality, more focused on actual opportunities to participate, rather than the mere holding of rights, is becoming constitutionally prevalent in many systems, which now compel state powers to go beyond formal equality by proactively addressing the persistent forms of gender discrimination and stereotyping still undermining women´s constitutional status.

This chapter has two objectives: (1) to introduce the topic and discuss its importance, and (2) to provide roadmap of the book with a brief discussion of what each chapter covers.

Though constitutional drafting is a national affair, it is not isolated from the international legal setting in which it is embedded. Sometimes, the process of drafting itself may be directly governed by international law (for example, a United Nations mandate). On other occasions, constitutional design may be influenced by incentives generated by international law (such as EU membership). Either way, the creation of a new constitution invariably requires reflection upon the status and role of international law in the normative hierarchy of a country. Using Sudan as a case study, this chapter explores the significant role played by international law in the drafting of the Comprehensive Peace Agreement and the Interim National Constitution of 2005.

This chapter uses recent developments in Hungary to examine how the equivalent of political revolution can occur through changes that are, taken individually, in compliance in the constitution but collectively amount to wholesale transformation of the constitutional order. It confronts the question of what limits, if any, exist on constitutional revolutions of this type.

This chapter begins by surveying the current literature on constitutional design constitutions for divided societies and constitutional approaches to power sharing. It pays particular attention to the view that constitutions are best understood not as contracts, but rather as coordination devices. An implication of this view for constitutional design is that, in deeply divided societies, successful coordination (and thus successful constitution-writing) may be easier to achieve if the constitution deliberately leaves certain divisive constitutional questions unresolved, with the understanding that those questions will be resolved incrementally over time. Against this theoretical background, the chapter uses the history and constitutional history of Afghanistan to illuminate the challenges of developing a constitution that can coordinate politics in a deeply divided society, and it evaluates the pros and cons of different approaches to constitutional design in such contexts.

The ideas and practices of constitutions and constitutionalism were first imported into China in the late 19th century. There were three eras of constitution-making in modern Chinese history: the last decade of Qing imperial rule, the republican era, and the communist era. Dr Sun Yat-sen, founding father of the Republic of China (RoC), developed a three-stage theory of China’s political development in which the last stage was to be constitutionalism (xianzheng). Although this was realized in theory when the RoC Constitution of 1946 was enacted, the Constitution became largely suspended as the RoC regime moved to Taiwan and introduced martial law after its defeat by the Communists in the Chinese Civil War. The People’s Republic of China (PRC) was established in the Mainland, which witnessed a new era of constitution-making under the Soviet Union’s influence. However, even today, the discussion of “constitutionalism” (xianzheng) is still discouraged by the PRC regime, although the concepts of the (socialist) Rule of Law and human rights have been affirmed by constitutional amendments. This chapter will review and assess the history of constitution-making in modern China and the discourse of constitutional law scholarship in contemporary China, and it will explore how the case of China both illuminates and challenges conventional understandings of the meaning and significance of constitutions and constitutionalism in the contemporary world.

This chapter provides historically informed analysis of the double protection of property rights and property as an institution in the Irish Constitution, and of the property ideology that generated that duality. It addresses the nature of the property rights guarantees, their drafting history, and their relationship as developed thorugh judicial interpretation. It analyses the fascinating origins of the progressive framing of constitutional property rights in the Irish constitutional context, and shows how the drafters sought to establish a division of labour whereby the courts would protect property rights with the interpretation and application of private ownership's 'social aspect' would primarily be a matter for the legislature. Subsequent chapters build on this insight by showing how that division of labour has largely been respected by judges in interpreting constitutional property rights adjudication, and how a complex dual committment to both private ownership and redistribution to secure social justice continues to animate Irish constitutional property law, both inside and beyond the courts.