Constitutional Violence: Legitimacy, Democracy and Human Rights

By Antoni Abat I Ninet | Go to book overview

5
Comparing Constitutional Violence

MAINTAINING AND FOUNDATIONAL CONSTITUTIONAL
VIOLENCE

Doctrinae quidem verae esse possunt; sed auctoritas, non veritas,
facit legem.1

This chapter is an empirical demonstration of current constitutional violence and how symbolic and theoretical constitutional violence affects people. It examines comparative constitutional violence and legal realism, and it shows why constitutional violence is important and looks at the theory and the practice.

The chapter begins with an example of American constitutional violence based on the application of the death penalty in Puerto Rico: in contravention of the articles of the Puerto Rican Constitution; the expressed will of the people; the declared position of Puerto Rico’s elected politicians (governor, senate and municipalities); and, finally, in contravention of international human rights conventions. American constitutional violence is inflicted on Puerto Rico in two different ways: first, through the application of an extradition clause in the American constitution (inter-state rendition clause), which provides for the extradition of a criminal back to the state where he or she has committed a crime; and, second, through the enforcement of capital punishment on Puerto Rican soil, in contravention of the will of the people of Puerto Rico and the constitution of the Commonwealth of Puerto Rico. In both examples the American constitution is violently enforced.

French constitutional violence is also analysed in two interrelated cases; the first deals with the constitutional accommodation of the debate between ‘national sovereignty’ and ‘popular sovereignty’ and its consequences for the entire French legal system. This example reveals how French constitutional violence produces violent homogenisation through constitutional legitimacy. The second example is strict case law and shows how the state apparatus has interpreted and enforced national identity in everyday issues.

Turkish and Chilean constitutional violence are then analysed and shown to be clearly affected by the French understanding of constitutionalism and

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Constitutional Violence: Legitimacy, Democracy and Human Rights
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • 1- Introduction 1
  • 2- Sovereignty and Constitution 8
  • 3- Democracy 40
  • 4- Legal Violence 90
  • 5- Comparing Constitutional Violence 114
  • Afterword 171
  • Bibliography 179
  • Index 190
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