Constitutional unamendability: an evaluative justification

Olcay, Tarik (2018) Constitutional unamendability: an evaluative justification. PhD thesis, University of Glasgow.

Abstract

This thesis studies the justifications for constitutional unamendability. First, it introduces the basic concepts and distinctions regarding constitutional unamendability, and explains its theoretical and judicial origins, and the arguments against constitutional unamendability. Then, it conceptualises the most common justification of unamendability as ‘the organic justification’ by drawing on Carl Schmitt’s distinction between the constitution and constitutional laws. The thesis criticises the organic justification for its reliance on the idea of constituent power and for indifference to the substantive constitutional content protected by unamendability. The thesis then advances the idea of ‘evaluative constitutional unamendability’. It does so by drawing on Lon Fuller’s distinction of the morality of aspiration and the morality of duty, his idea of the purposefulness of the legal enterprise, and John Finnis’s methodology of attention to evaluation in description. The thesis presents constitutionality as a quality and conceptualises constitutional unamendability as constitutionalism’s morality of duty. The thesis also introduces a case study on Turkey. It studies the birth and entrenchment of the core values of the Turkish constitution, and how they have become the norms of reference in assessing the constitutionality of constitutional amendments. The thesis argues that the Turkish Constitutional Court has adopted the organic justification in its conceptualisation of constitutional unamendability and in its interpretation of its authority over constitutional amendments. It also hypothesises that the Turkish Constitutional Court could have struck down the 2017 constitutional amendment from the perspective of evaluative constitutional unamendability.

• Item Type: Thesis (PhD)
• Qualification Level: Doctoral
• Keywords: Constitutional law, constitutional theory, comparative constitutional law, constitutional amendment, constitutional unamendability, unconstitutional constitutional amendments, constituent power, constitutionalism, constitutionality, natural law, Carl Schmitt, Lon Fuller, John Finnis, the Turkish constitution, the Turkish Constitutional Court.
• Subjects: K Law > K Law (General)
• Colleges/Schools: College of Social Sciences > School of Law
• Supervisor's Name: Christodoulidis, Professor Emilios and Tomkins, Professor Adam
• Date of Award: 2018
• Embargo Date: 18 December 2024
• Depositing User: Mr Tarik Olcay
• Unique ID: glathesis:2018-38979
• Copyright: Copyright of this thesis is held by the author.
• Date Deposited: 18 Dec 2018 16:40
• Last Modified: 15 Nov 2023 15:18
• URI: https://theses.gla.ac.uk/id/eprint/38979