Constitutions, Courts and History

Historical Narratives in Constitutional Adjudication
Author: 
ISBN: 
978-963-7326-38-7
cloth
$47.95 / €44.95 / £40.00
ISBN: 
978-963-7326-32-5
paperback
$24.95 / € 21.95 / £18.99
Publication date: 
2005
354 pages 360

Emphasizes the role history and historical narratives play in constitutional adjudication. Uitz provocatively draws attention to the often-tense relationship between the constitution and historical precedence highlighting the interpretive and normative nature of the law. Her work seeks to understand the conditions under which references to the past, history and traditions are attractive to lawyers, even when they have the potential of perpetuating indeterminacy in constitutional reasoning. Uitz conclusively argues that this constitutional indeterminacy is obscured by 'judicial rhetorical toolkits' of continuity and reconciliation that allow the court's reliance on the past to be unaccounted for. Uitz' rigorous analysis and extensive research makes this work an asset to legal scholars and practitioners alike.
The inquiry in this volume appeals to observers of constitutional adjudication, may they be reading constitutional jurisprudence from the quarters of constitutional law, constitutional history, political science or history departments.

Preface and Acknowledgements
INTRODUCTION
Constitutional Adjudication Haunted by Indeterminacy

CHAPTER ONE
Historical Narratives in Constitutional Reasoning: Intuitions and Myths Revisited
1.1. History and tradition as accounts of the past: the need for a better distinction, or time to adopt a (not so) new methodology?
1.2. Common-law reasoning, Edmund Burke, and conservative/liberal ideals
1.3. Conclusion: towards a better understanding of historical narratives

CHAPTER TWO
An Overview of Arguments Used in Constitutional Adjudication
2.1. The limits of textualism in constitutional reasoning
2.2. Courts reaching beyond the text: means of construction outside the constitutional text
2.3. Arguments from context: the trace of the past, history, and traditions in constitutional cases
2.4. Conclusion: variety and recurring traits in constitutional argument

CHAPTER THREE
The Constitutional Text in the Light of History
3.1. Constitutions on their pasts; courts on the past of their constitutions
3.2. One Pole: the constitutional text calling for an inquiry into history
3.3. The middle of the continuum: a brief overview
3.4. The other pole: history as constitutional text in the Québec secession reference
3.5. Summary of findings: towards disenchantment

CHAPTER FOUR
Behind Historical Narratives: The Promise of Continuity
4.1. On the vices and virtues of continuity in constitutional adjudication
4.2. Constructing constitutional continuity from the building blocks of preferred pasts
4.3. Seeing continuity and making it make a difference: lessons from transitional justice jurisprudence
4.4. Conclusion without closure: deceived by continuity in constitutional reasoning

CHAPTER FIVE
The Fruits of Reconciliation: A Bittersweet Harvest
5.1. The many faces of reconciliation and their many implications
5.2. Canada: continuity and reconciliation rhetoric hand in hand
5.3. Reconciliation winning over continuity in Hungarian transitional justice jurisprudence
5.4. Indigenous people in the maze of reconciliation: the suppressed subject revisited
5.5. Conclusion: the unfulfilled promise of reconciliation

CONCLUSION
Bibliography
Index

"... focuses on the concept of historical narrative, the role played by the history and traditions of a people or nation... views supreme judicial decision making when courts look to history for continuity and stability, including many comparative examples. Relying on French, Canadian, Hungarian, and Czech examples, the author shows that reliance on history may serve a legitimating purpose, but may also be deceptive. Summing Up: Recommended. Comparative law collections; graduate students, researchers, faculty, and practitioners."