Constitutionalism and the rule of law: Bridging idealism and realism

Tilburg University

Constitutionalism and the rule of law

Adams, Maurice; Meuwese, Anne; Hirsch Ballin, Ernst

Publication date:

2017

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Link to publication in Tilburg University Research Portal

Citation for published version (APA):

Adams, M., Meuwese, A., & Hirsch Ballin, E. (Eds.) (2017). Constitutionalism and the rule of law: Bridging idealism and realism. Cambridge University Press.

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CONSTITUTI

ONALI

SM

AND

THE

RULE

OF

LAW

Bridging

_{Idealism and Realism}

Edited

by

MAURICE

ADAMS

Tilburg University

ANNE

MEUWESE

Tilburg University

ERNST

HIRSCH

BALLIN

Tilburg University, IJniversity of Amsterdam

List of Contributors

Acknowledgements

CONTENTS

pagevr x

PART

I

Realism and Idealism in Constitutionalism and the Rule of Law: Theory and

History

I

1

The Ideal and the Real in the Realm of Constitutionalism

and the Rule of Law:

.tn

Introduction

3

MAURICE ADAMS, ERNST HIRSCH BALLIN AND ANNE MEUWESE

2

Tempering

Power

34

MARTIN KRYGIER

3

Between the 'Real' and the'Right': Explorations along the

Institutional-Constitutional

Frontier

60

PETER L. LINDSETH

4

The Emergence of the Rule of Law in Western Constitutional History Revising Traditional

Narra.tives

94

RANDALL LESAFFER AND SHAVANA MUSA

PART

II

The Rule of Law in Country-Specific Settings:

Case Studies in Reconciling Realism and

Idealism l2l

5

Rule of Law, Democracy and Human Rights: The Paramountcy of

Moderation

123

SUMIT BISARYA AND W. ELL.OT BULMER

6

The Need for Realism: Ideals and Practice in Indonesia's

Constitutional

History

159

ADRIAAN BEDNER

vt CONTBNTS

7

Constitutionalism d la

Rwandaise

195

NICK HULS

8

Between Promise and Practice: Constitutionalism in South

Africa More Than TwentyYears after the Advent

of

Democracy

226

PIERRE DE VOS

9

Idealism and Realism in Israeli Constitutional

Law

257 ADAM SHINAR

10 Idealism and Realism in Chinese Constitutional Theory

and

Practice

294

FENG LIN

1l

Realism and Idealism in the Italian Constitutional

Culture

326 JOnc r,urnBn

12 Constitutional Culture in the Netherlands: A Sober

Affair

358

MAURICE ADAMS AND GERHARD VAN DER SCHYFF

13 Illiberal Rule of Law? Changing Features of Hungarian

Constitutionalism

386

clnon

errru

rdrn

PART

III

Transnational Phenonena and International

Dwelopments

417

14 The EU and the Rule of Law

_-

Naivet6 or a Grand

Design?

419

DIMITRY KOCHENOV

15 Constitutional Coups in EU

Law

446

KIM LANE SCHEPPELE

16 Peer Review in the Context of Constitutionalism

and the Rule of

Law

479 ANNE MEUWESE

17 Constitutional Correlates of the Rule of Law

TOM GINSBURG AND MILA VERSTEEG

506

CONTRIBUTORS

MAURTcB ADAMs is Professor of General _{]urisprudence and professor}

of Democratic _{Governance and Rule of Law ('vfonds' chair) at the Law}

School of Tilburg University (the Netherlands).

ERNST

HrRscH

BALLTN

is

professor

_of

_Dutch

_and

_European

constitutional Law

at

Tilburg university and professor

_of

_Human

Rights Law at the university of _{Amsterdam (both in the Netherlands).}

ADRTAAN BEDNER

is

Associate professor

_of

_{Indonesian Law and}

Society

at

the

van

vollenhoven Institute

for

Law, Governance and

Development at _{the Law school of Leiden university (the Netherlands).}

suMrr

BrsARyA

iS senior project _Manager

_for

_the

_constitution

Building Programme at the Internationar Institute for _{Democrary and} Electoral Assistance _{(IDEA) in The Hague (the}

_Netherr;;t

--ELLror

BULMER is a programme _{Officer in the constitution Buirding}

Programme at the Internationar Institute for Democrury-.nJEr".tora

Assistance _{(IDEA) in The Hague (the}

_{Netherlands).}

'

--ToM

GrNsBunc

_{is the Leo spitz} professor _{of Internationar Law} and

Professor of political _{science at the university of}

_{chic.g";;J;;ember}

of the American _{Academy of Arts and Sciences.} NrcK H

uls

is Honorary professor _{in Socio-Legal}

studies at the Erasmus school

of

Law and

Leiden universiry

_taiv

_school

_(both-in

_the

Netherlands) since his retirement

in

2ill4.

He

is

arso an Honorary

Professor _{at the University of pretoria ichoor of}

Law _{(south Africa).}

DrMrrRy

KocHENov_is visiting _{professor and Martin and Kathreen}

crane Fellow in Law and pubric _{ahairs at the woodrow wirson} schoor,

vllr LIST C,F CONTRIBUTORS

Princeton University (USA). He holds a Chair of EU Constitutional Law

in Groningen (the Netherlandr,).

MARTTN KRvcIER is Gordon Samuels Professor

of

Law and Social

Theory at the University of New South Wales (Australia).

R A N D A L L L E s A F F E R is Professor of Legal History at Tilburg University

(the Netherlands) and part-time Professor of International and European Legal History at the University of Leuven (Belgium).

FENG LrN is Professor of Law at the City University of Hong Kong and

Director of the Centre for Chinese and Comparative Law.

p E r E R L. L I N D s E r n is Olimpiad S. Ioffe Professor of International and

Comparative

Law and

Director

of

International Programs

at

the University of Connecticut School of Law (USA).

In

2014 he was Royal Netherlands Academy of Arts and Sciences (KNAW) Visiting Professor at Tilburg University (the Netherlands).

l6Rc

r.urnen

is Professor of European and Comparative Public Law at the Law School of Tilburg University (the Netherlands).

A N N E M B u w E s E is Professor of European and Comparative Public Law

at the Law School of Tilburg University (the Netherlands).

sHAVANA MUsA is a Lecturer in Law at the University of Manchester

(United Kingdom).

KrM

LANE scHEppELE is the Laurance S. Rockefeller Professor

of

Sociology and International .A.ffairs

in

the Woodrow Wilson School

and

the

University Center

for

Human

Values

at

Princeton

University (USA).

cERHARD vAN DER scHyFF is Associate Professor in the Department

of

Public Law, |urisprudence and Legal History at the Law School

of

Tilburg University (the Netherlands).

ADAM sHTNAR is Assistant Professor at the Rad4mer School of Law,

LIST OF CONTRI:}UTORS

G AB o R A T r r L A r dr

s

is chair at the Department of Constitutional Law,

University of Debrecen and lecturer at the Edtvds Lor6nd University in

Budapest and the Rajk L6szl6 College

for

Advanced Studies

(all

in

Hungary).

MrLA

vERstrec

is

Professor

of

Law at the University

of

Virginia

School of Law (USA).

pTBRRE

_DE

_vos

_holds

_the

_Claude

_Leon

Foundation

Chair

in

Constitutional Governance at the Faculty of Law

of

the University

of

Cape Town (South Africa).