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2021 | Buch

Introduction: The City as a Multifaceted and Dynamic Constitutional Entity Kapitel lesen Erstes Kapitel lesen

European Yearbook of Constitutional Law 2020

The City in Constitutional Law

herausgegeben von: Prof. Ernst Hirsch Ballin, Prof. Gerhard van der Schyff, Maarten Stremler, Prof. Maartje De Visser

Verlag: T.M.C. Asser Press

Buchreihe : European Yearbook of Constitutional Law

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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Über dieses Buch

The European Yearbook of Constitutional Law (EYCL) is an annual publication devoted to the study of constitutional law. It aims to provide a forum for in-depth analysis and discussion of new developments in the field, both in Europe and beyond. This second volume examines the constitutional positioning of cities across space and time. Unrelenting urbanisation means that most people are, or soon will be, living in cities and that city administrations become, in many respects, their quintessential governing units. Cities are places where State power is operationalised and concretised; where laws and government policies transform from parchment objectives to practical realities. In a similar vein, cities are also places for the realisation of the constitutional rights and liberties enjoyed by individuals.

The book is organised around three sets of relations that await further unpacking in theory as well as practice: that between cities and other institutions in the national constitutional architecture; that between cities and their inhabitants; and that between cities and international organisations. The contributions to this book show the marked diversity in the role and powers available to cities in Europe and beyond, and identify principles and approaches to help stipulate new ways of thinking about the legal role and relevance of cities going forward.

Ernst Hirsch Ballin is distinguished university professor at Tilburg University and vice-dean for research of Tilburg Law School. Gerhard van der Schyff is associate professor at Tilburg Law School, Department of Public Law and Governance. Maarten Stremler is lecturer at Maastricht University, Faculty of Law, Department of Public Law. Maartje De Visser is associate professor at SMU School of Law, Singapore.

Inhaltsverzeichnis

Frontmatter
Chapter 1. Introduction: The City as a Multifaceted and Dynamic Constitutional Entity
Abstract
The inaugural edition of this Yearbook was devoted to a veritable classic in constitutional law, viz. judicial power.
Maartje De Visser, Ernst Hirsch Ballin, Gerhard van der Schyff, Maarten Stremler

Cities Within National Power Structures

Frontmatter
Chapter 2. Cities and the Dutch Constitution
Abstract
Were mayors to rule the world, cities would be their vehicle. And a strong vehicle at that. All over the world, cities are growing. Compared to their more rural neighbours, cities probably have never had much to complain about in the department of self-assurance.
Wytze van der Woude
Chapter 3. Modes of Urban Autonomy—The Constitutional Characteristics of Self-governance in Amsterdam, Paris and Hamburg
Abstract
Big cities are complex, dense, diverse societies. The governing institutions of modern cities are confronted with urgent problems concerning for example traffic and transport, public safety, environment and climate, and social inequality. Taking on these issues requires effective and legitimate urban government. Although many big cities face similar challenges, the constitutional and legal arrangements that create the institutions and powers of urban governments differ greatly. Three cases are presented here: Amsterdam is a ‘standard’ decentralized authority; Paris has a special legal status; Hamburg is a Land in the German federation. A brief analysis of these three cities shows that cities may be relevant and distinct from a constitutional point of view, in terms of institutions, powers, and legitimacy. Based on the analysis, I propose two hypotheses concerning the constitutional foundations of urban government.
Gert-Jan Leenknegt
Chapter 4. Reanimating Brussels—The Beating Heart of the Belgian Federation
Abstract
The constitutional framework of Brussels is characterized by a plethora of different governing bodies and an excessive fragmentation of competences. Leaving the EU aside, the Brussels territory is governed by no less than six governments with formal legislative power. The fragmented division of powers between the federal State, the Brussels-Capital Region and the Communities, and the 19 Brussels municipalities, impedes an efficient and coherent metropolitan governance. This chapter explores the relationship between different echelons of government in Brussels, the type and scope of autonomous powers of the Capital Region and its special position as the capital of Belgium. Section 4.2 elaborates on the main characteristics and some of the fundamental flaws of Brussels’ constitutional framework. Section 4.3 proposes to simplify Brussels’ complicated multilayered institutional framework by reinforcing the Brussels-Capital Region. The proposal consists of a combination of the transfer of certain community competences to the regional level and an integration of the municipalities in the Region, allowing the latter to develop a uniform and integrated policy for the entire territory of Brussels.
Johan Lievens, Karel Reybrouck
Chapter 5. How Much Local Autonomy Is Good for a City? An Analysis of the Peruvian Constitutional Design for Cities and Its Effects in the Case of the Lima Metropolitan Area
Abstract
The decentralization reform that started in Peru in 2002, which divided the country into regions, provinces and districts, was initially regarded as a just and long-postponed project. However, while the constitution grants all local governments political, economic and administrative autonomy, the rapid population growth many cities have experienced since then calls for the reevaluation of the whole design. This is especially the case for the Lima Metropolitan Area, of which the population has more than doubled since the 1980s. This chapter analyses the effects that being divided into various autonomous districts can have for the governance of a metropolis. We argue that the division causes practical difficulties for reasons rooted in the Peruvian constitutional design, and that this fragmentation hinders the provision of public services, reduces long-term planning and may cause spending inefficiencies. A reexamination of this flawed constitutional design for its cities could be the first step for Peru to finally adapt to its new urban reality as well as to keep up with future changes.
Alberto Cruces Burga, Andrés Devoto Ykeho
Chapter 6. Comparative Constitutional Politics in the Chinese Special Administrative Regions of Hong Kong and Macau
Abstract
Hong Kong and Macau are cosmopolitan former Western European dependencies in East Asia that became autonomous Special Administrative Regions of the People’s Republic of China toward the end of the twentieth century. The Basic Law and the Lei Básica, Hong Kong’s and Macau’s contemporary constitutional charters, were designed to serve as jurisdictional firewalls that prevent the dissolution of the minuscule Regions into the far more powerful and populous Chinese mainland, whose Leninist polity officially rejects almost every fundamental value shared by English and Portuguese constitutional law that has been indigenised into the Regions. Notwithstanding the striking resemblance of the Basic Law and the Lei Básica, constitutional politics in Hong Kong and Macau could not be more different. This chapter identifies the root of this discrepancy not just in history and political culture, but also in two oft-overlooked differences between the charters in relation to electoral reform and the executive-legislative relationship. Both Regions, for all their autonomy, are not sovereign states; their relationship with mainland China critically shapes their divergent trajectories of constitutional development. The chapter closes by explaining why assimilating the Regions into the mainland, turning them into little more than two of China’s over six hundred cities, is neither supported by the law, nor in the ultimate political interests of the People’s Republic.
Eric C. Ip
Chapter 7. A Tale of Three Cities—The Stadtstaat in German Constitutional Law
Abstract
German cities, as distinct legal entities, share a rich history going back to Roman times. They are a very visible feature of the country’s multipolar brand of federalism, though formally part of the second tier of (state) government, and shape not only the daily lives of many citizens but also their legal interaction with public authorities in a wide range of policy areas. This chapter examines the status of cities under German constitutional law, focusing on the three city-states (Stadtstaaten) of Berlin, Hamburg and Bremen. These Stadtstaaten are not only municipalities but also Länder (states) and as such participate in the dynamics and safeguards of German federalism. For historical reasons, they enjoy considerable constitutional, legislative, administrative and judicial independence. At the same time, there is an ongoing debate, motivated by questions of economic viability, on a merger of these Stadtstaaten with other states. Berlin, Hamburg and Bremen are also struggling to preserve their national constitutional prerogatives in relation to the European Union. In another noteworthy development, citizens are increasingly invoking socio-economic guarantees at state level, which offer more protection than the German Basic Law (Grundgesetz, BL).
Jörg Fedtke

Cities and Citizens

Frontmatter
Chapter 8. The Constitution and the City: Reflections on Judicial Experimentalism Through an Urban Lens
Abstract
This chapter invites scholars to pay attention to the role that cities play in the enforcement of social economic rights (SERs), focusing on a type of decisions that some authors have called judicial experimentalism. Experimental justice refers to a judicial approach through which the courts, rather than rendering a final resolution on a case, pursue solutions through the promotion of dialogue and negotiation between governments and affected populations. Gathering insights from socio-legal studies, legal geography and critical urbanism, the chapter proposes an interdisciplinary framework for analysis and a set of research questions that could aid experimental scholars in broadening their research agendas in order to understand the limits and possibilities of SERs structural cases in the global South.
Natalia Angel-Cabo
Chapter 9. Urban Governance and the Right to a Healthy City
Abstract
The broad ambit of the right to health, which is typically understood to embrace ‘a wide range of socio-economic factors that promote conditions whereby people can lead a healthy life’ and to extend to ‘underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and sanitation, safe and healthy working conditions, and a healthy environment’, has long been a prime example of the interdependence of rights.
Marius Pieterse
Chapter 10. Topical Storm Approaching: Regulating Public Assemblies and Responding to Online Falsehoods in the City State of Singapore
Abstract
The ‘right to the city’ is a right of the city’s denizens to have a say in shaping and using their urban environment. Recognizing the city as the locus of technological development and innovation, scholars have also begun theorizing about a ‘digital right to the city’, the right of citizens to play an active role in managing the way they create and control the information relating to how they experience and use the city. Against this backdrop, this chapter considers two aspects of Singapore law—the Public Order Act (Cap 257A, 2012 Rev Ed) and the Protection from Online Falsehoods and Manipulation Act 2019 (No 18 of 2019)—that impinge upon the (digital) right to the city, and the more traditional constitutional rights to free speech and assembly. It seeks to assess the extent to which these civil liberties might impact upon the way the laws are interpreted and applied, and also considers whether there are ways in which aspects of the laws might be reimagined to give better effect to the right to the city in both its forms.
Jack Tsen-Ta Lee
Chapter 11. The City of London: Dominance, Democracy, and the Rule of Law?
Abstract
London has been, historically, the unchallenged cultural, political, and legal centre of power in the UK. Yet, despite its dominance, it was unable to dominate the processes associated with the UK’s departure from the EU. In this short comment, I argue that the inability of the city to dominate the not-city—the term I adopt to describe everywhere in the UK that is not part of the city as described here—can, and should, be seen in Rule of Law positive terms.
Paul Burgess

Cities and the International Arena

Frontmatter
Chapter 12. Accelerating Cities, Constitutional Brakes? Local Authorities Between Global Challenges and Domestic Law
Abstract
Increasingly, local authorities around the world invoke international law to tackle global challenges autonomously while distancing themselves from national laws and policies, sometimes stimulated by international authorities. This chapter addresses the relevance of national constitutional arrangements for the way in which the resulting conflicts are, or are not, resolved. More specifically, how do domestic courts respond to ‘accelerating cities’ invoking international law as they oppose policies of the national government? Discussing cases from Germany, Turkey, France, the Netherlands and Spain, we offer an initial exploration of how such cases have the potential to challenge the constitutional order in federal and unitary states alike. At the same time, ‘accelerating cities’ are confronted with ‘constitutional brakes’—barriers in national constitutional and administrative rules. Our analysis suggests that national courts may permit harmless symbolic acts, but step down, or even create a ‘backlash’ in the case of more consequential actions. Given the potential in local engagement with international law, and the rise of the phenomenon, it is urgent to set up systematic and detailed investigations and comparisons of the dynamics of local government law in different countries and how they are shaped by an invocation of international law in general, and human rights law in particular.
Barbara Oomen, Moritz Baumgärtel, Elif Durmuş
Chapter 13. European Cities Between Self-government and Subordination: Their Role as Policy-Takers and Policy-Makers
Abstract
More than three decades after the entry into force of the European Charter of Local Self-government our chapter sets out to assess to what extent European cities are, in their roles as policy-makers and policy-takers, truly self-governing. Thereby we look at cities that fulfil three criteria: that they are located in a federal country in a broad sense, in a country with legal entrenchment of both the Charter and post-Lisbon EU law and that these city governments assume additional responsibilities which are elsewhere, mostly in rural areas, performed by specific umbrella entities (e.g. the Landkreise in Germany, Landbezirke in Austria and province in Italy). Section 13.2 of this chapter clarifies concepts and terminology of local self-government. These are rather controversial so that we need to explain our view on these issues. Section 13.3 presents a framework of legal standards for local self-government, derived from the Charter and, to a lesser extent, from EU law, regarding the twin roles of cities as both policy-makers and policy-takers. These European standards then form the lens through which Sect. 13.4 analyses how these roles are played by Germany’s kreisfreie Städte (“county-free cities”), Austria’s Statutarstädte (“cities with own statute”) and Italy’s città metropolitane (“metropolitan cities”). Section 13.5 concludes by assessing the extent to which these cities can thereby be considered as self-governing local authorities.
Karl Kössler, Annika Kress

Constitutional Law in the Age of the City

Frontmatter
Chapter 14. Urbanization, Megacities, Constitutional Silence
Abstract
Urban agglomeration is one of the most significant demographic and geopolitical phenomena of our time. The figures are striking. In 1900, approximately 150 million people, fewer than 10% of the world population, lived in cities.
Ran Hirschl
Chapter 15. Constitutional Law, Federalism and the City as a Unique Socio-economic and Political Space
Abstract
This chapter builds upon the increased importance that cities have acquired in recent years. To this end, cities can be seen as the engines of development, innovation, cultural and social interaction, expressing the tensions between diversity and social cohesion. Being places of conflict and innovation, of solidarity and cohabitation of diverse people, cities are faced with unique challenges. Yet, they remain largely neglected as autonomous subjects in constitutional law and federalism theory. In proposing a definition of cities as unique socio-economic and political spaces, strategic for building new modes of governance and reconcile diversity and social cohesion, the chapter invites a more substantive reflection on the role and place of cities in constitutional law, and sketches a preliminary normative agenda for future constitutional reforms in this sense.
Erika Arban
Metadaten
Titel
European Yearbook of Constitutional Law 2020
herausgegeben von
Prof. Ernst Hirsch Ballin
Prof. Gerhard van der Schyff
Maarten Stremler
Prof. Maartje De Visser
Copyright-Jahr
2021
Electronic ISBN
978-94-6265-431-0
Print ISBN
978-94-6265-430-3
DOI
https://doi.org/10.1007/978-94-6265-431-0

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