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Constitutional Preambles

A Comparative Analysis

Wim Voermans, Maarten Stremler and Paul Cliteur

While their use and significance have increased in recent decades, constitutional preambles have received only scant attention in academic literature. This presents a uniquely quantitative and qualitative analysis of all the preambles currently in force around the world and addresses fascinating questions concerning their occurrence, content, style, function and legal status. Studying preambles not only helps us understand the phenomenon itself, but also teaches us more about constitutions and the constitutional systems in which they are situated.
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Preambles: a stocktaking

A Comparative Analysis

Wim Voermans, Maarten Stremler and Paul Cliteur

This chapter begins with a short history of preambles in general, and discusses their use (dating back to Plato at least). After thus having placed constitutional preambles in their historical context, it contrasts them with other types of preambles: preambles to ordinary legislation, to international treaties and to EU directives and regulations. Next, it delineates the notion of a constitutional preamble more precisely and describes the sample of constitutional preambles used for the analysis, including some of its basic statistical characteristics, for example the percentage of constitutions that do have a preamble and the average length of preambles.

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The content of preambles

A Comparative Analysis

Wim Voermans, Maarten Stremler and Paul Cliteur

This chapter takes a close look at the content of constitutional preambles. Given their great variety, it is not possible to classify preambles strictly. Nevertheless, groups of preambles share certain substantive features, like a reference to God or religion. This chapter charts a number of these features, calling them ‘elements’. The chapter distinguishes three categories of elements: elements that relate to the general structure of the constitutional system set out in the main part of the constitutional document, elements that relate to fundamental rights, in the broad sense of the word, and elements that relate to national characteristics. For each element, the chapter describes its frequency, analyses possible trends and discusses salient characteristics.

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The language of preambles

A Comparative Analysis

Wim Voermans, Maarten Stremler and Paul Cliteur

This chapter addresses the question who are the authors of the preamble and who its addressees. It also analyses the different styles of preambles, that is, the particular language in which they are formulated, distinguishing between legal language, solemn language and plain language. These different styles are illustrated with examples.

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The functions of preambles

A Comparative Analysis

Wim Voermans, Maarten Stremler and Paul Cliteur

This chapter discusses the different functions constitutional preambles possibly perform. It begins with an overview of their legal functions, but the focus is on their non-legal functions. The chapter differentiates between an expressive, evocative, identifying and educational function and also discusses the role of preambles as a ‘bridge in time’ – between the past, the present and the future. Based on examples, the chapter also discusses whether and how preambles can be amended and cases where preambles have been the subject of political conflict.

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Wim Voermans, Maarten Stremler and Paul Cliteur

This chapter discusses the legal status and value of the constitutional preambles of the United States and France, considering them as two prototypes. Among scholars, there is common agreement that the preamble to the American constitution cannot be regarded as an independent source of law, whereas in France, by contrast, the preamble is used directly to review the constitutionality of legislation. This chapter also discusses the academic debate about the US preamble and proposals to amend the French preamble.

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Preambles from other states

A Comparative Analysis

Wim Voermans, Maarten Stremler and Paul Cliteur

This chapter provides an in-depth legal analysis of a number of constitutional preambles other than the American and French ones. The selected preambles have played a role in court cases or have otherwise triggered debate. They include the preambles of Bosnia and Herzegovina and India (that have been dealt with extensively by the highest courts), Ireland (where the preamble has a very religious content), Germany and Poland (where the preambles have played a role in defining the relationship with the European Union), Canada (where the highest court has acknowledged unwritten principles implied by the preamble) and South Africa (where the preamble is a response to Apartheid).

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Wim Voermans, Maarten Stremler and Paul Cliteur

This chapter wraps up the findings of the previous chapters. If anything preambles are professions of faith. While they express the aspirations of a political community, they also reinforce the beliefs of the individual members of a polity. This fact makes preambles elusive for academic study. Nevertheless, the chapter argues, preambles deserve academic attention and attention from constitutional scholarship in particular. They can teach us a lot about constitutions. Like preambles constitutions do not stop at the law: they are powerful vehicles for the legitimacy of political systems in ways that surpass the law.

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Jan H. Crijns, Ivo Giesen and Wim Voermans

This chapter addresses the possible contributions and limitations of empirical research for legal research in the domains of private law, criminal law and constitutional and administrative law. The authors do this to gain a better insight in the nature of legal research and – based on that – to try to inspire legal scholars to embrace and possibly engage in empirical research themselves, to enrich their work. After a general introduction, some of the peculiarities of legal research are dealt with, offering a possible explanation for the seemingly slow reception of empirical scholarship within legal research. Next, the possibilities and the pros and cons of empirical research methods for the three legal domains covered are dealt with. The chapter takes a special look at the empirical research methods that are dealt with elsewhere in this volume and discusses the possibilities and limitations of these methods for legal research in the three legal domains covered.