South Africa's Experience in Constitution-Building
This chapter draws on a brief history of the constitution-making process in South Africa to highlight five particular aspects of constitution-building. Noting that the process of constitution-making has become a key element in political transitions and post-conflict settlements in the post-cold war era, it is argued that the process of building a constitutional democracy encompasses a far broader range of issues than the drafting and adoption of a new constitution. The chapter identifies and discusses five sources of variation in constitution-building processes that impact the different issues enabling the building of a constitutional democracy. First, there is a temporal dimension, which may be characterised as being both macro and micro in scope, in that the general historic timing of a democratic transition as well as the specific time-frames within the process of constitution-making, all have clear consequences for the choices available to the parties. Second, there is a question of process in which the specific process of constitution-building, chosen from a range of historic options, is deployed by the parties to achieve specific advantages over their opponents but can also serve as a means to ensure that the political transition proceeds. Third, participation in the constitution-building process is an aspect that is important both for those who are active in the actual constitution-making process as well as the broader society that is called upon to accept and legitimate the constitutional product as the basis of a future social compact. Fourth, the recognition and use of constitutional principles is an important element of constitution-building in this era. Finally, the substantive choices inherent in a constitution-building process involve alternative institutional designs and substantive elements of the constitution, all of which have a significant impact on the overall process of constitution-building.
The legitimacy of highest courts' rulings : judicial deliberations and beyond
Introduction: from Legitimacy to Leadership.- The Comparative Enterprise.- Transforming Deliberations.- What Do We Lack?.- A Socio-Legal Analysis of The Legitimacy of Highest Courts.- Comparing Judicial Reasoning on a Formalism/Policy Axis: Problematizing and Contextualizing 'Formalism' in Mitchel Lasser's judicial Deliberations.- 'In Good Faith': Re-Imagining Comparative Law Discourse.- Formal and Substantial Justification in Legal Decisions: Some Critical Questions From an Argumentative Perspective.- The Subtleties of the French, Belgian and Dutch Cassation Courts.- 8 Formal and Informal Determinative Factors in the Legitimacy of Judicial Decisions: The Point of View of the French Court of Cassation.- But Pasteur Was French: Comments on Mitchel Lasser's 'the European Pasteurization of French Law'.- Filtering Applications, Number of Judgments Delivered and Judicial Discourse by Supreme Courts: Some Thoughts Based on the French Example.- A Commentary on Lasser'S Analysis From the Belgian Court of Cassation's Perspective.- Legitimacy and Democracy Through Adjudication: Comparative Reflections on the Argumentative Practice of the French and Belgian cour de Cassation.- Judicial Reasoning and Legitimacy of the Dutch Supreme Court.- the Legitimacy of The Decisions of the Dutch Supreme Court in Criminal Cases.- The Perspective of the Annotator: Some Observations About the Organisation and Format of the Judgments and Decisions of the Criminal Division of the Supreme Court of the Netherlands, and the Role of the Annotator.- 16 The Perspective of a Cassation Attorney in Criminal Cases.- Legitimacy of the Ruling: A Formal Approach.- Challenges to the Legitimacy of Courts.- Courts in a Quest for Legitimacy: A Comparative Approach.- Another Turn of the Screw: An Evaluation of Lasser'S judicial Deliberations in the Light of the Practices of Constitutional Review in France, Germany and the United States.- From Traditional Judicial Styles to Verdict Industries Inc..- A Comparison Between Wrongful Dismissal Cases in the Netherlands and California: A Quest for Transparency of Judicial Decisions.- The Dutch Supreme Court Versus the Lower Courts: Summary Dismissal and the Catalogue of Viewpoints.- Functions of Judicial Opinion: A View from a Post-Communist European State.- The ECtHR and its Peculiar 'Problematic'.- Judicial Deliberations: the Strasbourg Perspective.- Judicial Legitimacy in an Internationalized World.- Judicial Deliberations in the European Court of Human Righs.- Legitimacy of European Court of Human Rights Judgments: Procedural Aspects.- Judicial Deliberations, Legitimacy and Human Rights Adjudication.
The Area of Freedom, Security and Justice ten years on: Successes and future challenges under the Stockholm Programme. CEPS Paperbacks. June 2010
This book celebrates the tenth anniversary of the Area of Freedom, Security and Justice (AFSJ) by bringing together the views of key practitioners and policy-makers who have played an outstanding role in thinking about and shaping EU policies on freedom, security and justice. 
 
Ten years ago, the member states transferred competences to the EU for law and policy-making in the fields of immigration, asylum and border controls, and began the transfer process for criminal justice and policing. This decade of European cooperation on AFSJ policies has experienced very dynamic convergence, the enactment of a large body of European law and the setting-up of numerous EU agencies working in these domains. Such dynamism in policy-making has not been without challenges and vulnerabilities, however. As this collective volume shows, the main dilemmas that lie ahead relate to an effective (while more plural) institutional framework under the Treaty of Lisbon, stronger judicial scrutiny through a greater role for national courts and the Court of Justice in Luxembourg, better mechanisms for evaluating and monitoring the implementation of EU AFSJ law and a more solid fundamental rights strategy. The contributions in this volume address the progress achieved so far in these policy areas, identify the challenges for future European cooperation in the AFSJ and put forward possible paths for making more progress in the next generation of the EU’s AFSJ.