Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system.
Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.
This is an advance summary of a forthcoming article in the Oxford Research Encyclopedia of Politics. Please check back later for the full article.
Referendums are puzzling because they are ubiquitous. Described in the theoretical literature as “veto-player institutions,” referendums are used as frequently by autocratic dictators as they are employed in constitutional democracies. As an institution championed by both Hitler and Churchill, as well as Augusto Pinochet and Woodrow Wilson it is not surprising that political scientists of an earlier generation felt that they defied all attempts to develop testable hypotheses and that referendums—in the words of Arend Lijphart from his 1984 book Democracies—“fail to fit any clear universal pattern.”
More recently, beginning in the 1990s, however scholars from both historical institutional as well as rational choice schools have begun to develop testable propositions as well as they have advanced explanations as to the origins, practice and consequences of the increased use of referendums. Further, in addition to general theories of voting behaviour in referendums, an emerging literature has been established, which has investigated the policy consequences of referendums. These consequences include, lower levels of inequality, higher levels of trust in government and lower levels of public spending. Compared to an earlier period characterised by ideographic single country studies, and a general pessimism regarding the prospect of developing general theories, the study of referendums has entered a ‘revolutionary’ phase in the Kuhnian sense of the word. While no general paradigm has emerged, scholars are increasingly confident that general recurrent patterns exist and that it is possible to develop law-like statements about the emergence, use, and implications of the use of the referendum.
Cyanne E. Loyle
Armed conflict is ultimately about the violent confrontation between two or more groups; however, there is a range of behaviors, both violent and nonviolent, pursued by governments and rebel groups while conflict is ongoing that impacts the course and outcomes of that violence. The use of judicial or quasi-judicial institutions during armed conflict is one such behavior. While there is a well-developed body of literature that examines the conditions under which governments engage with the legacies of violence following armed conflict, we know comparatively little about these same institutions used while conflict is ongoing.
Similar to the use of transitional justice following armed conflict or post-conflict justice, during-conflict transitional justice (DCJ) refers to “a judicial or quasi-judicial process initiated during an armed conflict that attempts to address wrongdoings that have taken or are taking place as part of that conflict” (according to Loyle and Binningsbø). DCJ includes a variety of institutional forms pursued by both governments and rebel groups such as human rights trials, truth commissions or commissions of inquiry, amnesty offers, reparations, purges, or exiles.
As our current understanding of transitional justice has focused exclusively on these processes following a political transition or the termination of an armed conflict, we have a limited understanding of how and why these processes are used during conflict. Extant work has assumed, either implicitly or explicitly, that transitional justice is offered and put in place once violence has ended, but this is not the case. New data on this topic from the During-Conflict Justice dataset by Loyle and Binningsbø suggests that the use of transitional justice during conflict is a widespread and systematic policy across multiple actor groups. In 2017, Loyle and Binningsbø found that DCJ processes were used during over 60% of armed conflicts from 1946 through 2011; and of these processes 10% were put in place by rebel groups (i.e., the group challenging the government rather than the government in power).
Three main questions arise from this new finding: Under what conditions are justice processes implemented during conflict, why are these processes put in place, and what is the likely effect of their implementation on the conflict itself? Answering these questions has important implications for understanding patterns of government and rebel behavior while conflict is ongoing and the impacts of those behaviors. Furthermore, this work helps us to broaden our understanding of the use of judicial and quasi-judicial processes to those periods where no power shift has taken place.