3.2 Forms of Constitutionalism

(a) Legal and Political Constitutionalism The modern debate is over who guards the limits: Point Legal constitutionalism Political constitutionalism Guardian of limits Courts — judicial review, rights adjudication Democratic politics — elections, parliament, publicity, party competition Core claim Rights and limits must be legalised — removed from ordinary politics, enforced by independent judges against majorities Limits are best kept political — the sovereign people and their representatives deliberate; judicial supremacy is counter-majoritarian Model institutions Bill of rights, strong judicial review (Germany, USA, India; Nepal's rights jurisdiction) Parliamentary sovereignty, deference doctrines (the classic British tradition before rights jurisprudence) Strength Hard protection for minorities and rights against transient majorities Democratic legitimacy, flexibility, accountability of the protectors themselves Point Legal constitutionalism Political constitutionalism Weakness "Government by judiciary" — unelected judges deciding value questions Majoritarian danger to minorities; limits melting under panic or populism The mature position (and the safe examination answer) is complementarity: political constitutionalism generates and legitimates the limits; legal constitutionalism enforces them when politics fails. Nepal's design is predominantly legal-constitutionalist (enforceable rights, robust review) resting on political-constitutionalist foundations (an elected constituent process, parliamentary responsibility) — and the balance shifts with each era's court-legislature relations. (b) Liberal Constitutionalism The classical model: individual freedom as the end, limited government as the means. Elements: rights to life, liberty, property, expression; equality before law; consent…