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Title: | Constitutional identity, expressivism, and constitutional change through judicial interpretation: The Indonesian LGBT case as a case study | Authors: | NUGRAHA, Yordan | Issue Date: | 2022 | Publisher: | OXFORD UNIV PRESS | Source: | International journal of constitutional law (Print), (Art N° moac045) | Status: | Early view | Abstract: | Constitutional change can be produced through judicial interpretation when a particular dictum becomes informally entrenched and creates a new constitutional meaning without the need for a formal amendment. However, scholarship has not yet scrutinized the form of legal reasoning that may be used to push for such a change. The purpose of this article is to analyze the role of expressivism in justifying constitutional change through judicial interpretation. For this purpose, I have developed the expressivist framework into what I call “operationalized expressivism,” which refers to constitutional courts interpreting references to constitutional identity in the constitution such as to create a juridical effect. I then use the dissenting opinion in the Indonesian LGBT case as a case study of how operationalized expressivism can initiate a constitutional change. I have selected this particular opinion because of its potential to radically transform the constitutional landscape of Indonesia, as the dissenting judges have declared the Indonesian Constitution as a “Godly” Constitution that requires all laws to be consistent with religious values. | Document URI: | http://hdl.handle.net/1942/37853 | ISSN: | 1474-2640 | e-ISSN: | 1474-2659 | DOI: | 10.1093/icon/moac045 | ISI #: | 000837012800001 | Category: | A1 | Type: | Journal Contribution | Validations: | ecoom 2023 |
Appears in Collections: | Research publications |
Files in This Item:
File | Description | Size | Format | |
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Final Version - Constitutional Change and Operationalized Expressivism.pdf Until 2024-08-08 | Peer-reviewed author version | 353.97 kB | Adobe PDF | View/Open Request a copy |
moac045 (1).pdf Restricted Access | Published version | 456.31 kB | Adobe PDF | View/Open Request a copy |
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