SPECIAL ISSUE: Towards urban constitutionalism ? Exploring constitutional rule and rule of law challenges in the urban age (Hague Journal on the Rule of Law XV (2023)

 

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Urban Constitutionalism and the Rule of Law: Historical Perspectives and Contemporary Challenges (M. Adams, D. De ruysscher, M.L.P. Groenleer, G. Leenknegt & G. van der Schyff) (OPEN ACCESS)
DOI 10.1007/s40803-023-00192-2

Abstract:

The 21st century may safely be called the ‘urban era’. The year 2007 marked the moment when for the first time in modern history, over 50% of the world’s population lived in urban areas. By the year 2050 almost 70% of humanity is projected to be urban, i.e., a human settlement with usually a high population density and an infrastructure of built environment. While the role of large cities, metropolitan areas and urban regions has been increasing, the political domain of the states, of which these cities or regions constitutionally form part, seems to be continuously shrinking. And although the rise of the urban is unlikely to lead to the disappearance of the sovereign-state model, the idea of states as having final authority is seriously challenged. This is caused by at least two simultaneously occurring trends: the transfer of tasks and responsibilities upwards, to the international and supranational level, through processes of globalization and a development downwards, to the local and regional level (or even the neighborhood or district), through processes of decentralization and regionalization. These combined trends have been called glocalization, a process exemplary for the complexity of modern society, in which authority shifts from hierarchy to networks, and the autonomy and unity of the central and sovereign state are under pressure. This special issue is the fruit of a workshop organized at Tilburg Law School on 25 November 2022, dedicated to the exploration of several constitutional and rule of law challenges posed by what we have dubbed urban constitutionalism.

The Rule of Law in Cities of the Medieval Low Countries: Community-Building in Context (D. De ruysscher) (OPEN ACCESS)
DOI 10.1007/s40803-023-00197-x
Abstract:

Urban communities were established in the twelfth and thirteenth century with the aid of legal concepts that comprised early notions of the rule of law. Cities were envisaged as “communes”, which referred to popular sovereignty. In a first period, urban citizenship was flexible and closely related to place of residence. From around 1220 this model came under increasing pressure. In order to safeguard the interests of the most affluent citizens, large guilds were established. Status determined rights, and there were significant inequalities even among citizens. Ideas of democratic democracy and the civic virtues of citizenship were fostering reforms after 1250. Existing urban governments were expanded to include councils and burgomasters. A framework of checks and balances developed because the commune, now considered as the body of citizens and residents, was seen as a force coexisting with metropolitan institutions. The medieval examples show that, in response to economic and even global conditions, community-building and rule-of-law thinking were solutions offering a “unity-in-diversity”.

A Primacy of Privileges? Urban Constitutionalism, the Rule of Law and Late Medieval Bruges (Niels Fieremans)
DOI 10.1007/s40803-023-00193-1
Abstract:

This article explores the possibilities and limits of urban constitutionalism and its relation to the rule of law for fifteenth century Bruges. Late medieval Bruges was a city of great prominence where several important trade flows came together. Providing adequate justice was a top priority for the aldermen. Scholars have traditionally stressed the importance of privileges in providing this security. Privileges granted a theoretical protection but also entailed other deviations from the general rule. The grant of privileges lay the foundation of an unequal treatment of merchants. This article argues that, though these privileges were essential in protecting merchants, the aldermen of Bruges did not grant far-reaching procedural advantages to merchant communities. In doing so, the aldermen of Bruges ensured that certain basic notions, such as access to the aldermen of Bruges, equal opportunities before this court and the prevalence of Flemish law over foreign law, were present. In the city’s belief that proper justice equalled the common good, some embryonic notions of the rule of law become apparent. However, we should not overextend this argument. The city depended on these merchant communities. Therefore, the city was more susceptible to the leverage of the merchant communities, than, for example, the state. Bruges refused demands for procedural advantages for the most part of the fifteenth century, but once the presence of these communities became indispensable, the city had to give in and alter its legal framework.

 

Was There a Rule of Law in Early Modern Amsterdam? Mercantile Customary Law as a Test (Marco in 't Veld) (OPEN ACCESS)
DOI 10.1007/s40803-023-00194-0
Abstract:

This contribution intends to shed light on the development of the rule of law, particularly by questioning the existence of such rule of law in early modern Amsterdam. In literature, thinner and thicker definitions are given, mostly presented as a continuum. This contribution will focus on mercantile customary law as it is a legal source that hardly fits in the literature-based categories. The importance of customary law seems to have decreased parallel with the bureaucratization of law; similarly this legal source can be considered as relatively democratic as it was based on the consent of a certain community. This ambiguity was also part of an old debate among legal historians. Some have indeed argued that custom was indeed solely based on the tacit consent of communities while others claimed that custom was a legalistic source in the sense that it provided formal rules of decision often written down in a way very similar to law books. This debate runs parallel to the question to what extend merchants made use of public institutions in the organisation of their trades. With regard to early modern Amsterdam, this contribution argues on the basis of a variety of primary sources that lawyers and proctors had a relatively advanced legal system at their disposal in which moral convictions played an important role. The example of the city’s weigh house will be used to elaborate on the precise way the institutional and legal frameworks were applied in mercantile practice. It will be concluded that many mercantile customary norms can be linked to institutions like the weigh house, but that this institutionalisation was not necessarily at odds with a continuation or even development of democratic elements. Especially the guilds functioned as a vehicle that helped to articulate tacit customs while having a great influence on Amsterdam politics at the same time. For this reason it should be seriously considered that Amsterdam already had a relatively advanced legal system that was dependent on bureaucratic institutions in the early modern period. Such system should be considered as an important step towards the presence of the rule of law.

The Scope of City Autonomy in the Constitutions of the Netherlands and the United Kingdom: Informality, Subsidiarity, Identity (Gert Jan A. Geertjes) (OPEN ACCESS)
DOI 10.1007/s40803-023-00195-z
Abstract:

One of the main issues in the debate on urban constitutionalism is how constitutions can recognize the increasingly important role of cities in relation to the nation-state. This paper examines what we talk about when we talk about city autonomy. This is a pressing question, particularly in the context of European unitary states. This paper pays special attention to the context of two of such states, namely the Netherlands and the United Kingdom (especially England). First, it explores the notion of subsidiarity, which implies that consideration should be given to the distinctiveness of the city as regards the allocation of power to the central and regional levels respectively. However, this idea in itself cannot justify the case for city autonomy, as the claim that the attribution of autonomous powers to cities may improve the quality of decision-making in the state as a whole needs additional empirical evidence. Second, it investigates the concept of city autonomy by exploring the fuzziness of the notion of the city. In addition, it introduces the concept of ‘spatial identities’ in order to explain the interdependence of (large) cities and their surrounding (rural) areas. Lastly, it concludes that if the importance of cities as constitutional actors is to be increased, it should be done so in an informal way rather than by the introduction of formal constitutional arrangements both from a pragmatic and a normative perspective.

Rule of Law Through the ‘Urban Turn’ in South African Constitutionalism (Marius Pieterse) (OPEN ACCESS)
DOI 10.1007/s40803-023-00196-y
Abstract:

The 1996 South African Constitution transformed municipalities from creatures of statute into an interdependent sphere of government, thereby enabling South African cities to carve out a space for autonomous urban governance, which is closely associated with the progressive realisation of socio-economic rights. This article considers how South African courts have deployed, reconfigured and channelled the rule of law in intergovernmental relations disputes, disputes concerning the developmental obligations of local government and socio-economic rights disputes, in order to fortify urban autonomy, to substantively guide its exercise and to ensure dynamic accountability for urban local governments’ role in ensuring the progressive realisation of socio-economic rights.

Market-Engaging Institutions: The Rule of Law, Resilience and Responsiveness in an Era of Institutional Flux (Nandini Ramanujam & Francesca Farrington) (OPEN ACCESS)
DOI 10.1007/s40803-023-00190-4
Abstract:

This article analyses the institutional conditions required to support a strategic state in being responsive to the changing demands of a market-economy, whilst maintaining a credible commitment to long-term policy goals. This article identifies a key pillar of a market economy that we believe is crucial to promoting inclusive economic growth; we term these institutions market-engaging institutions. We propose that market-engaging institutions may form a bridge between the flexibility required by a dynamic market economy and the stability demanded by the rule of law. We define market-engaging institutions as those institutions that facilitate greater political participation for marginalized groups, manage technological disruptions, and support human capital formation. Examples include social partnership agreements, collective bargaining coverage, trade union membership, education and training services, and research and development programmes. We suggest that mobilizing these institutions necessitates credible commitment. Further, we argue that through its commitment to the non-arbitrary administration of general rules the rule of law is an essential condition for signalling the state’s credible commitment. However, at times the requirement for the state to be flexible to the changing needs of market actors may conflict with the rule of law’s demand for constancy and stability. This article examines the delicate balancing act required to sustain a strategic, responsive, and credible state in an era of institutional flux.

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