Origins and Pathways of Constitutionalism

In: Philipp Dann & Arun K. Thiruvengadam (eds.), Democratic Constitutionalism in India and the European Union: Comparing the Law of Democracy in Continental Polities, Cheltenham (Edward Elgar Publ.), 2021, 75–103

29 Pages Posted: 29 Jul 2020 Last revised: 19 Dec 2023

See all articles by Jürgen Bast

Jürgen Bast

University of Giessen - Department of Law

Arun K. Thiruvengadam

NLSIU Bangalore

Date Written: July 1, 2020

Abstract

The present chapter reflects on the origins and pathways of Indian and European constitutionalism. With the concept of constitutionalism, the authors make reference to a practical discourse involving both professional actors and laymen regarding the legal foundations of the respective polity – its constitution. Both India and Europe have developed their own brands of constitutionalism, neither of which replicates the blueprints of ‘limited government’ or ‘popular sovereignty’ drawn by the American or French revolutions.

The main argument of this chapter concerns the role of judicial institutions. Undisputedly, both the Indian Supreme Court and the European Court of Justice have played a crucial role in shaping their respective constitutional orders. However, the authors contrast the conventional, court-centred narrative with a more complex view on the interplay between judicial and political actors. In this context, they make an attempt at reconstructing the ‘original view’ of the framers on the constitutional project as a whole, and the appropriate role of the Judiciary.

The resulting constitutional experiments build on a unique blend of liberal and post-liberal ideas. Both foundational documents enshrine an aspirational program of social change while preserving the constitutionalist commitment to democratic self-government and the rule of law – albeit the content of these programs differs and, as a matter of fact, adopts contrasting perspectives in its assessment of the role of nationalism to achieve the respective goals. A common theme is a more interventionist, or ‘activist’, understanding of constitutionalism as compared to classic conceptions. Both constitutional orders have laid down an aspirational program of social change – of economic progress, social equality, and cultural openness – to be implemented by representative or independent institutions, as the case may be. The authors argue that in view of contemporary authoritarian threats to its foundations, the future of constitutionalism in India and Europe might depend on the renewal of these original ideas.

Keywords: Constitutionalism, constitutional law, comparative law, EU law, Constitution of India, Supreme Court of India, Court of Justice of the EU

undefined

JEL Classification: K33, H10

Suggested Citation

Bast, Jürgen and Thiruvengadam, Arun K., Origins and Pathways of Constitutionalism (July 1, 2020). In: Philipp Dann & Arun K. Thiruvengadam (eds.), Democratic Constitutionalism in India and the European Union: Comparing the Law of Democracy in Continental Polities, Cheltenham (Edward Elgar Publ.), 2021, 75–103 , Available at SSRN: https://ssrn.com/abstract=3642530 or http://dx.doi.org/10.2139/ssrn.3642530

Jürgen Bast (Contact Author)

University of Giessen - Department of Law ( email )

Licher Str. 64
Giessen, 35394
Germany

Arun K. Thiruvengadam

NLSIU Bangalore ( email )

Nagarbhavi
Bangalore, KS Karnataka 560072
India

HOME PAGE: http://https://www.nls.ac.in/

0 References

    0 Citations

      Do you have a job opening that you would like to promote on SSRN?

      Paper statistics

      Downloads
      184
      Abstract Views
      1,020
      Rank
      334,594
      PlumX Metrics
      Plum Print visual indicator of research metrics
      • Usage
        • Abstract Views: 1012
        • Downloads: 184
      • Captures
        • Readers: 1
      see details