One of the crucial constitutional moments and historical turning points in modern China was the Provincial Constitutionalism Movement. This movement commenced in 1920 in Changsha, the capital of Hunan province in south-central China. Initiated by Mao Zedong and local intellectual and political elites spanning generations, it rapidly expanded to southern China and swept across the entire country in the early 1920s. This constitutional transformation triggered the first revolution of constitutional space-time in modern China: the previously monocentric state power structure evolved into a polycentric one, and the imperial-era local administrative framework was transformed into a republican provincial system. Consequently, for the first time in Chinese history, modern local systems were established within a constitutional framework, affirming the constitutional status of provinces, provincial systems, and provincial powers. In current studies, the Provincial Constitutionalism Movement has long been greatly underestimated due to the dominant Tocquevillian paradigm, which reduces any constitutional change to a binary framework of French-style centralization versus American-style decentralization. According to this framework, scholars interpret the Movement as Chinese federalism—a short-lived and failed attempt at decentralization within a predominantly centralized state. This binary paradigm is deeply rooted in a dualistic yet monocentric spatio-temporal view, which this book terms “constitutional monocentrism.” In contrast, this book proposes a “general theory of constitutional space-time,” aiming to explain constitutions and revolutions from a broader constitutional perspective of spatial configuration and temporal transition. From this perspective, the Provincial Constitutionalism Movement of the 1920s in China demonstrated a polycentric republican revolution based on leading provincial capitals. The Movement, in terms of constitutional time, was not merely a “new beginning” influenced by Western impacts. Rather, it emerged as an adapted product of the continuous accumulation and eventual convergence of various Chinese institutions from the imperial period to the republican era. Consequently, China did not ultimately establish a federal state. Unlike the revolutionary constitutional movements of the United States, India, and others characterized by mass mobilization, the Chinese constitutional path, exemplified by the Hunan Self-Government Movement—the first provincial constitutionalist movement beginning in 1920—was mainly distinguished by establishmentarian elite integration. This unique approach may be termed in this book as the path of Establishment Transformation. Since the constitutional reforms of the late Qing Dynasty, China’s constitutional trajectory has continuously repeated the path to Establishment Transformation, manifesting in various forms. Super capitals, such as Beijing and Changsha, functioned as strongholds of the insider establishment, under the decisive influence of the incumbent regime. The initial constitutional struggles centered on the dilemma of whether to dismantle or preserve existing local governments inherited from China’s feudal imperial era. Paradoxically, the ostensible “new beginning” heralded by provincial constitutionalism ultimately represented a reversion to the “old ending,” demonstrating the persistent influence of historical institutions on China’s constitutional development. The Provincial Constitutionalism Movement, in terms of constitutional space, was not a simple process of decentralization, but rather a (re-)centralization process centered around provincial capitals. This revealed the longstanding polycentric constitutional configuration of China, with potentially multiple and mutable political centers. This movement unveiled a constitutional feature of modern China that deviates from stereotypical perceptions of the centralized nature of the Chinese Constitution: Chinese provinces played a crucial role in national transformations, akin to American states, which markedly contrasts with the French model centered around Paris. Before the movement—as one might expect—during the period of the late Qing Dynasty and the early Republic, constitutions had always been drawn up in Beijing, the national capital. However, as the movement arose, the center of constitutional change shifted from Beijing to Changsha and other provincial capitals. New provincial constitutions established new regimes in a few super capitals—i.e., the provincial capitals that had served as both constitutional centers and ancient dynastic capitals where political power was concentrated time and again—and these constitutions were simultaneously deployed in the competition to seize power on a national scale. Scholarly analyses of provincial constitutionalist movements during the Republican period have consistently exhibited a significant oversight: an overemphasis on the “constitutional” aspect while underappreciating the “provincial” dimension, particularly the pivotal roles of provincial capitals and provincial systems. Within the constitutional space, the provincial capital functioned as the center of the province, while the provincial system represented the province’s evolution over constitutional time. The provincial system revolved around the provincial capital, and conversely, the provincial capital was predicated on the provincial system. Together, these dual elements constituted the fundamental components of the “province” within the Chinese constitutional space-time continuum. The interplay and evolution of provincial capitals and provincial systems reveal that beneath the constitutional crises and struggles was a fundamental transformation of a deep constitution, comprising the feudal configuration of constitutional space and the generational transition across constitutional time. This deep constitution, a legacy of the feudal imperial system from the late Qing Dynasty, had undergone only partial reform in modern China, with its core structure largely preserved and adapted. As a result, this deep constitution continued to shape constitutional transformations in modern China, giving rise to new constitutional crises with each attempt at constitutional change. The trajectory of the Provincial Constitutionalism Movement, marked by its ascent and decline, catalyzed a more intense resistance and critical examination of the vestiges of the feudal imperial system among Chinese intellectual and political elites, exemplified by Mao Zedong and his contemporaries. This heightened scrutiny propelled them towards embracing a revolutionary path aimed at dismantling the establishmentarian party and the entrenched deep constitution. In turn, this shift in approach led to the second constitutional space-time revolution in modern China.

Bankruptcy law is an ancient, peculiar feature of our legal landscape. Historically, it has existed from time to time as a collection of extraordinary remedies assembled to address three basic questions: (1) what is to be done with the person of an insolvent debtor, (2) what is to be done with the insolvent debtor’s property, and (3) what is to be done with the insolvent debtor’s liabilities? It is peculiar for several reasons. First, the need for a special collection of bankruptcy procedures is not so obvious. Non-bankruptcy law already provides vast mechanisms for collecting debts, distributing property, and sorting the rights of competing claimants against a common obligor. One might well ask: why have yet another mechanism for doing so simply because one of the parties in interest—the debtor—has become insolvent? For much of United States history, the nation had no formal bankruptcy law, and thus one potential answer to this question (albeit an incorrect one) is that there is no particular need for a distinct bankruptcy regime. Second, few areas of the law have been the subject of such rancorous experimentation. In both England and the United States, bankruptcy law evolved in fits and starts, sparking controversy at every turn. As Justice Cardozo aptly remarked in his dissent in Ashton v. Cameron County Water District, the history is one “of an expanding concept . . . that has had to fight its way. Almost every change has been hotly denounced in its beginnings as a usurpation of power.” Although the details of these controversies have evolved over time, bankruptcy law remains a hotly polarizing topic. Third, few areas of the law are so poorly understood and theorized, and the relevant deficiencies include (1) the absence of a satisfactory account of the need for a distinct body of bankruptcy remedies, and (2) the lack of an adequate theory explaining how bankruptcy law ought to respond to that need. The first deficiency is foundational, the second is ordinal, and they should be addressed in the order stated. From a normative perspective, if there is no particular reason for having a bankruptcy law, then there is no particular reason to consider how it should be arranged. Conversely, until the reasons for having a bankruptcy law are fully understood, discussions of its normative content are likely simply to “float . . . in the air.”

This thesis is born of the question: why do women suffer domestic violence disproportionately to any other group? Why does it continue, in the same form, with the same degree of pain, without rebate? And, if the same harm occurs over and over again, consistent through generations and uniform across borders, why then has the international community not yet developed effective means to address it? This thesis attempts to find a legal answer. This is prefaced, however, by the acknowledgement that the law is only one tool in an array of mechanisms, such as health, economics, and politics, which, if properly combined, could alleviate the pain and difficulties experienced by many victims of domestic violence. The area of law to which I look is international human rights law. My initial motivation for considering public international law arose from the repetition of similar forms of domestic violence around the globe. All over the world women suffer the same type of violence at the hands of their intimate partners and they endure the same feelings of helplessness and isolation when looking to the state for protection. If such violence is universal, it seems then, so too should be the solution. I propose in this thesis that international law, if properly fashioned, can be used effectively as part of this solution. In particular, I maintain that the authoritative enunciation of a norm against domestic violence in international law can improve the way states address domestic violence. I do not propose that individual abusers should be tried by international law. My focus instead is on the extent to which states fail consistently to alleviate domestic violence. This is important because many legal systems appreciate neither the exigency of extreme forms of domestic violence, nor the extent to which women as a group are disproportionately victims of this violence. The result of this lack of appreciation is an almost universal failure to police, prevent and punish domestic violence effectively.3 Due to the socialized normalcy of domestic violence, very few cases are reported or actually prosecuted. Where prosecutions do proceed, victims will often drop their complaints either because they have reconciled with, or because they fear recrimination from, their abuser. Given the disjuncture between the reality of domestic violence and the inefficacy of many legal systems to address it, a revision of the law vis-à-vis domestic violence is needed. Both national and international legal systems are in need of change. This thesis proposes that the international community should adopt a clear and authoritative articulation of a legal right against extreme and systemic forms of domestic violence and a corresponding duty of states to help remedy such violence. This proposition is made on the basis that international law currently does not contain an effective articulation of this right, and that adopting effective global standards in international law for addressing such violence would help improve state enforcement of this right. Under the current state of international law, it is difficult to convince states to prioritize its resources and infrastructures to protect abused women. Articulating clear and effective global standards in international law for addressing extreme forms of domestic violence would provide an important and practical benchmark against which domestic state legislation could be evaluated and re-shaped. Formulating such global standards could place pressure on states to take basic remedial steps against such violence, such as enacting legislation that allows for restraining orders to be made at the same time as a maintenance order, or creating accessible shelters, which will accommodate the divergent needs of women, including their children.

Articulating a contemporary narrative of constitutional change in Mexico has been my chief preoccupation over the last four years. The coexistence of a constitutional order based on a monistic democratic model in which normal politics are the exclusive track for constitutional-making and a strong symbolic power of the constitution, has resulted in a seemingly unassailable rampart against the more modern approaches of constitutionalism in which the People are increasingly claiming ownership of the constitution. Furthermore, enduring constitutional inheritances that are no longer suited to present practices, perspectives, expectations and demands muddle further meaningful constitutional change. Authoritarian inheritances coexist with pressing new demands for self-government. Over the last two decades, Mexico’s transition to democracy has been akin to a child learning to walk. A satisfactory democratic outcome has not been achieved, because the constitutive process of authoritative decision-making, a critical part of any transition, has not departed from the traditional Mexican decision-making process. This has been a process that supported an authoritarian regime in which a one-party elite monopolized the power of decision-making. At the center of the problem of transition in Mexico— and perhaps other similarly situated states— is (as we will see) the dichotomy between power and authority, as well as the identity of the effective participants in the constitutive process.

Doctrinal studies of law describe relationships between conditioning legal facts and con-sequences, distinguishing between substantive and procedural norms. The latter constitute decision mechanisms that maintain the legal system’s norms. These mechanisms generate binding decisions—ordered pairs of facts and consequences—that may obtain the status of res judicata and become part of the norm system in the extensive sense. Functional analyses of law undertake to study agent equilibrium behavior under given norms, perceived as incentive structures. Characteristically, norms that are maintained through adjudication (or arbitration) are not complete or unambiguous: In the ex ante sense, consequences are not uniquely implied by relevant conditioning facts. This indeterminacy has profound implications: first, in multi-member decision mechanisms norm structures are systematically transformed; second, these transformed norms or incentive structures guide agent (equilibrium) behavior. These observations challenge the approach that currently prevails in legal theory, namely of considering substantive norms as abstract entities independent of procedural mechanisms. They also suggest opportunities for widening the scope of functional or repercussion analyses of law. This dissertation develops an analytical framework that seeks to enable the study of norm transformation in multi-member judicial decision mechanisms. The framework’s relevance is demonstrated through numerous examples showing how equilibrium out-comes vary with mechanisms shaping the incentive structures. The framework is developed using formal representation of norms and by ex ante identification of judges (arbitrators) and norms. These representations combine functional relations with basic notions from probability theory that are simple enough to be operative in equilibrium analyses, and, at the same time, rich enough to embody detailed aspects of procedural law. The framework facilitates: (i) distinction between “meta-norms” (the doctrine of sources and judicial method) and “ordinary norms” (doctrine in the customary sense); (ii) depiction of (possible) indeterminacy at both levels; (iii) modeling of multi-member decision-making; and (iv) simultaneous consideration of epistemic uncertainty. The identification of norms and judges envisions judging as commitment, in contrast to a preference-based, rational choice account. The approach combines insights from logical aggregation, case-space, and evolutionary theories. Under meta-level uncertainty, judges may base decisions on different substantive norms. Under ordinary-level uncertainty, they may reach different conclusions under the same substantive norm. In correspondence with standard conceptions of legal decision-making, judges applying law vote directly on outcomes or on substantive norm elements, not abstractly over substantive norms. The commitment notion assumes judges vote independently (non-strategically) as uncertainty is resolved. Both majority and super-majority aggregation rules are studied (the latter require default state specifications). Implications of sequential decision-making (bifurcation) and separation of (collective) decisions on law and facts are also analyzed. The framework is applied to a detailed analysis of the model of precaution, which has a prevalent and unifying role in many areas of law. Equilibrium precautionary investment is derived under uncertain negligence standards, and under mixed norms (uncertainty between strict liability and negligence). Continuous comparative statics reflects the parametric representation of uncertainty on both the meta and ordinary level. Discrete comparative statics reflects decision mechanism size. A condensed analysis of final-offer arbitration demonstrates that the framework is applicable to strategic environments. The norm representation enables one to distinguish between primary norms ex-pressing obligations and power-conferring secondary norms, which express discretion or options. This distinction is reflected in suggested law-in-force notions, with discretion motivating a forward-looking, means-end approach (in fact, partly due to logical problems arising under aggregation). Examples used to illustrate the benefits from detailed attention to norms structures include entitlement-protection in exchange economies and legal commitment mechanisms in strategic environments. Under indeterminacy, norm structures and induced equilibria vary systematically with decision mechanisms. This sensitivity, exacerbated by epistemic uncertainty, accentuates the question of evaluative criteria as discussed in legal and political philosophy. In reference to observed authority structures, the majority outcome in large panels is suggested as a benchmark, making possible a study of the link between (finite, real-world) mechanism choice and Type I and II error generation. Some analytical results may be of independent interest. Judicial panels trans-form marginal dimensions of incentive structures. This is important when conditioning legal fact sets are choice or strategy spaces for optimizing agents (level transformations correspond to Condorcet-type theorems). Second-order stochastic dominance is used to describe panel size effects on a domain of substantive norms. First-order stochastic dominance is used to compare unitary and bifurcated trials. Due to analytical challenges, some results are based on asymptotic theory. The equilibrium analyses are supported by simulations.