IACL World Congress, Mexico
Workshop 3: Media and Constitutional Principles
The general topic of Workshop 2 should rely on the following presumptions:
- The word ‘media’ include any kind of mediatic communication (newspaper, broadcasting, internet, and so on);
- The development and diversification of media within a specific constitutional context depends on whether and to what extent freedoms of expression and of communications are ensured within there.
The general topic may include the following questions:
- The development and diversification of media reflects values such as liberty and democracy lying at the core of constitutionalism, and is crucial both for the formation and information of citizens-electors. On the other hand, media exert a huge albeit informal power not only on representations of the public sphere but also on political agenda. What kind of problems does this double function of media pose for the constitutional conceptions?
- The dilemma exposed under a) may correspond to a paradox in contemporary States, according to their authoritarian or democratic foundations. While in the former media are strongly restricted through censorship and other limitations, and are perceived from an increasing part of the people as necessary means for liberty and democracy, in the latter media, whose freedom is constitutionally protected, are sometimes believed to disseminate conformism, or at least to discourage free formation of diverse representations and opinions. This perception, however, is considered irrelevant from other scholars on constitutional grounds, to the extent that it is just the consequences of the exertion of freedom of expression, not the encroachment on the principle itself. Should constitutionalists restrain themselves from inquiring into these consequences? If not, which solutions might be envisaged for enhancing diversity of representations and opinions on the mediatic scene?
- Mediatic instruments, however, function very differently one from another and stimulate different reactions on the receiver in terms of her capability of interacting, and therefore on the public at large. For example, while the television is usually expected to bring about rather passive reactions, the web’s functioning is founded on interactions with the receiver, with the related enthusiasm of some about ‘e-democracy’. Should these differences among media be taken into account in constitutional discourses, and how?
- The ‘personalization’, if not ‘presidentialisation’, of politics, which democracies have been experimenting in the last decades together with the decline of political parties and parliaments, is frequently believed to be caused, at least partially, by media. Do you agree with this view, and if so, which consequences do you think are likely to be brought about on the meaning of parliamentary representation and of the separation-of-powers principle?
- Even the functioning of the judiciary is frequently believed to be influenced by media. In particular, the impact on judicial decisions of mediatically driven perceptions of the people is believed to endanger the rule of law. If so, how could constitutionalism cope with such a difficulty?
- Media are believed to play a crucial role in the dissemination of perceptions, ways of life and opinions at the global scale, irrespective of the fact that constitutional democracies have developed at the national scale. Does this amount to a further challenge (or opportunity) for constitutionalism?
Yasuo Hasebe is Professor of Constitutional Law at the University of Tokyo; and vice-president of the International Association of Constitutional Law.
His publications include ‘Il Sistema Radiotelevisivo’, Prometeo, Anno 13, Numero 49 (1995); ‘The August Revolution Thesis and the Making of the Constitution of Japan’, Rechtstheorie, Beiheft 17 (1997); ‘Constitutional Borrowing and Political Theory’, International Journal of Constitutional Law, Vol. 1, No. 2 (2003); ‘The Rule of Law and Its Predicament’, Ratio Juris, Vol. 17, No. 4 (2004); ‘The Reception of the Rechtsstaat Concept in Japan’, National Taiwan University Law Review, Vol. 4, No. 1 (2009); and ‘On the Dispensability of the Concept of Constituent Power’, Indian Journal of Constitutional Law’, Vol. 3, No. 1 (2009).
Cesare Pinelli is Professor of Public Law in the Faculty of Law of the University of Rome “Sapienza”.
Member of the EC of the IACL since January 2004. Former member of the EC of the Italian Association of Constitutional Lawyers (2001-2003). Aggregate member of the Association of Constitutional Law of Argentina. Expert of the “Commission for Democracy through Law” – Council of Europe. Law clerk before the Italian Constitutional Court from 1987 to 1990. Member of various Commissions of National Departments (1989-2007) and of the National Authority for the regulation of strikes in public services (2000-2002).
Author of seven books in Italian and various essays in English, French, Spanish, Portuguese and German, among which:
Profils de droit constitutionnel et communautaire des privatisations des services publics en Italie et en France, in Annuaire International de Justice Constitutionnelle, 1993; Judicial Protection of Human Rights in Europe and the Limits of a Judge-Made System, in Il diritto dell’Unione europea, 1997; Political Accountability and Global Markets, in European Review of Public Law, 1997; Le principe de subsidiarité et les sources du droit communautaire, in La méthodologie de l’étude des sources du droit, Aix-enProvence, 2001; Secret du vote et apprentissage de la démocratie. Les débats et la pratique italienne entre 1848 et 1912, in Revue française de droit constitutionnel, 2001; Los Presidentes de las Asembleas, in Anuario de derecho constitutional y parlamentario, 2000-2001; Conditionality and Enlargement in Light of EU Constitutional Developments, in European Law Journal, 2004; Federal features of the EU Constitutional Treaty Draft, in A.Griffith (ed.), Handbook of Federal Countries, 2005, Montreal, 2005; Os interpretes da Constituiçao e as funçoes da Teoria Constitucional, in Revista brasileira de direito constitutional, 2005; The 1948 Italian Constitution and the 2006 Referendum in European Constitutional Law Review, 2006;
In Search of Coherence in EU Foreign Policy, in The International Spectator, 2007; (with M.Dogliani), Grundlagen und Grundzuge staatlichen Verfassungsrechts : Italien, in Handbuch Ius Publicum Europaeum, I, Muller Verlag, Heidelberg, 2007; Conditionality, in Max Planck Institute of Public International Law, 2009