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Article

Conservative Christianity’s alignment with the Republican Party at the end of the 20th century is one of the most consequential political developments, both for American religion and American party politics. In the proceeding four decades, what has been the nature of this relationship? The inclusion-moderation thesis suggests that once religious movements are integrated into political parties, their interests are often co-opted by broader party interests and their positions moderate. For the Christian right in the U.S. there is mixed evidence for the inclusion-moderation process. Considering all the evidence, the most apt description is that conservative Christianity has transformed the Republican Party, and the Republican Party has transformed conservative Christianity. With its inclusion in the Republican Party, the Christian right has moderated on some aspects. The movement has become more professional, more attuned to the more widely accepted, secular styles of democratic politics, and more engaged in the broader goals and positions of the party. Conservative Christianity has also failed to fully achieve some of its most important goals and has lost some of its distinctiveness. In these ways, the party has changed the Christian right. At the same time, the Christian right has altered Republican politics. National candidates have changed their positions on important social issues, including abortion, gay rights, and religious freedom. The party’s platforms and judicially strategies have been strongly affected by movement’s interests, and conservative Christian activists have come to be central to the Republican Party. It’s stability and strength within the party have given the movement power. In these areas, the Christian right has evangelized the Republican Party rather than moderated. A fair assessment is that for the Christian right there has been partial but quite incomplete adherence to the inclusion-moderation process.

Article

Chris Hanretty

Courts in the United Kingdom have evolved gradually over the past 700 years. The modern court system is sophisticated, displaying both specialization by area of law and regional differentiation. The English and Welsh court system, for example, is separated from the Scottish and Northern Irish court systems. Across all different jurisdictions within the UK, courts display moderate to high levels of de facto judicial independence without many guarantees of de jure judicial independence. Appointment to the courts system since the reforms of 2005 is strongly apolitical; this, coupled with a weak form of fundamental rights review, means that debates about judicial politics have been limited. Particularly sensitive issues arise in relation to courts’ handling of multilevel governance, and more particularly the relationship between the Westminster Parliament and the devolved assemblies in Scotland and Wales, and between the Westminster Parliament and the Court of Justice of the European Union. Because of the gradual introduction of human rights guarantees in domestic law, and progressive devolution of power from center to periphery, UK courts offer lessons for those interested in the introduction of rights catalogs and in theories of constitutional review.

Article

Attempts to analyze and understand how European law developed from a set of international treaties in the 1950s to a constitutional, proto-federal legal order, accompanied by a constitutional legal discourse today, has been a key concern in European studies in the last three decades. Legal scholars, political scientists, and sociologists have explored this from their specific disciplinary viewpoints and have produced a rich literature of sophisticated theoretical as well as empirical studies. Since the mid-2000s, historians have also finally—after years of negligence—taken an interest in European law and produced a new body of archive-based studies of the history of European law from 1950 to 1993. Based on primary sources drawn from private, national, and European archives, historians have contributed with much new empirical information and managed to uncover the social, political, and legal forces that have shaped European law in a qualitatively new way. The central argument is that the constitutionalization of European law was part of the broader battle over the political and institutional soul of the European construction. Even though the ECJ successfully constructed a European legal order that resembled and worked as a proto-federal constitution, the project ultimately suffered a defeat in not being able to codify this achievement in the Maastricht Treaty as part of a broader step toward a federal Europe.

Article

The International Criminal Court (ICC) has generated considerable controversy since it came into force in 2002, principally because of its overriding focus on African conflict situations and suspects. This has led to accusations that the ICC is a neocolonial meddler in African affairs, wielding undue and unaccountable influence over the domestic political arena. Drawing on the author’s field research in Uganda and the Democratic Republic of Congo since 2006 this article contends that the neocolonialism critique of the ICC exaggerates the power of the Court while underestimating the capacity of African states to use the ICC to their own ends. Delivering distanced justice from The Hague with limited expertise on African societies and spending scant time in the field, the ICC has failed to grapple sufficiently with complex political dynamics “on the ground.” Combined with the Court’s heavy reliance on state cooperation, these factors have enabled African governments to use the ICC to target their political and military enemies while protecting themselves from prosecution. This has also emboldened African states in continuing to commit atrocity crimes against civilians, especially during periods of mass conflict and fraught national elections. While claiming to hover above the political fray, the ICC has become heavily politicized and instrumentalized by African states, with lasting and damaging consequences for the practice of national politics across Africa. To avoid being willfully used by African governments, the ICC must bolster its political expertise and become politically savvier. Rather than claiming to be neutral while hovering above the domestic terrain, the ICC must embrace its inherently political nature and deliver justice in a way that improves rather than undermines the practice of national and community-level politics across Africa.

Article

In a liberal conception of democracy, courts play an important role in facilitating the rule of law by controlling the abidance to rules and by holding the political branches of government accountable. The power of constitutional review is a crucial element for exercising horizontal accountability. Courts across Africa are vested with the power of constitutional review, and, generally speaking, their independence has substantially increased since the beginning of the 1990s—although African courts enjoy overall less independence than the global average for courts’ independence. Within the African region, the level of judicial independence varies widely, between contexts that rarely allow judicial independence and contexts where courts have more power to challenge the government. Furthermore, across the continent, African courts experience undue interference—which frequently takes place informally. Informal interference can occur through the biased appointments of judges, verbal and physical threats, violent attacks, the payment of bribes, or the ouster of sitting judges. Informal networks—held together by ties based on shared educational trajectories, common leisure activities, religion, kinship relations, or political affiliations—are the channels through which such pressure can be transmitted. Yet judges also can actively build informal networks: namely, with the legal community, civil society, and international donors, so as to insulate themselves against undue interference and to increase institutional legitimacy. Research has shown that the agency of judges and courts in signaling impartial decision-making, as well as in reaching out to society, is crucial to constructing legitimacy in the African context. In contrast, the explanatory power of electoral competition as an incentive for power holders to support judicial independence is not straightforward in the context of Africa’s political regimes, where the prospect of losing office is associated with financial, and in some cases even physical, insecurity. However, research on judicial politics in Africa is still only preliminary, because the field requires more comparative studies in order to fully reveal the political repercussions on Africa’s judiciaries as well as to delineate the scope conditions of the prominent theories explaining judicial independence.

Article

Axel Tschentscher

Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system. Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.