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Preview: International Journal of Constitutional Law - current issue

International Journal of Constitutional Law Current Issue





Published: Mon, 30 Oct 2017 00:00:00 GMT

Last Build Date: Mon, 30 Oct 2017 12:44:46 GMT

 



Kenya’s Constitution in a global context

2017-10-30

James Thuo Gathii. The Contested Empowerment of Kenya’s Judiciary, 2010–2015: A Historical Institutional Analysis. Sheria Publishing House, 2016, Pp. 195. US$39.99. ISBN: 9780692727065.



Book Review Symposium: It’s the Institutions, Stupid!

2017-10-30

WaldronJeremy. Political Political Theory. Essays on Institutions. Harvard University Press, 2016. Pp. 416. $35.00. ISBN 9780674743854.









Separation of powers and the role of political theory in contemporary democracies

2017-10-30

Jeremy Waldron’s book Political Political Theory, for the most part a collection of previously published essays, focuses on the structures that accommodate our politics (at 123), namely, political institutions. Political institutions form a most demanding subject of study: Understanding their democratic capacities and dysfunctions requires a normative-theoretical perspective as well as empirical observations, analysis of legal structures (most importantly, constitutional law) as well as insights into societal contexts and political cultures. Generally, one could say that the study of political institutions demands a combination of abstraction and concreteness that is a challenge to deliver as an individual researcher trained in a specific discipline’s methodology.



Reinforcing Rule of Law Oversight in the European Union

2017-10-30

ClosaCarlos & KochenovDimitry, eds. Reinforcing Rule of Law Oversight in the European Union. Cambridge University Press, 2016. Pp. 356. £69.99. ISBN: 9781107108882



The Law of Deliberative Democracy

2017-10-30

LevyRon and OrrGraeme. The Law of Deliberative Democracy. Routledge, 2017. Pp. 239. £110. ISBN: 9780415705004.



Linguistic Diversity and Social Justice. An Introduction to Applied Sociolinguistics

2017-10-30

PillerIngrid. Linguistic Diversity and Social Justice. An Introduction to Applied Sociolinguistics. Oxford University Press, 2016 (Paperback). Pp. 296. $29.95, ISBN: 9780199937264.



Editorial

2017-10-30

We invited Sabino Cassese, member of the I•CON Board of Editors, to contribute a Guest Editorial.**



In Memoriam: Norman Dorsen (1930–2017)

2017-10-30

Norman Dorsen passed away on July 1, 2017. I•CON was the brainchild of Norman. The Italians have a saying: “nove parlano, uno fa” (nine talk, one acts). Norman was one of those who both talked and acted. It is with a sense of privilege and duty that we continue as the current custodians of I•CON. Below is the official announcement issued by the Dean of NYU Law School, Professor Trevor Morrison.



“Notorious RBG”: A conversation with United States Supreme Court Justice Ruth Bader Ginsburg

2017-10-30

Abstract
On February 2, 2016, Prof. Ruth Rubio-Marín, Chair of Constitutional and Comparative Public Law at the European University Institute (EUI), interviewed the U.S. Supreme Court Associate Justice Ruth Bader Ginsburg. The interview took place in the framework of the European University Institute’s annual Ursula Hirschmann Lecture, a space dedicated to stimulate research and thinking which links ideas about Europe and the study of gender. Justice Ruth Bader Ginsburg engaged in a conversation that tackled her whole persona, without making rigid divides between the professional and the personal. Deep legal analysis, personal anecdotes, and invaluable advice for future researchers and lawyers intertwine in the interview, which sheds light on important dimensions of equality law.



From Hercules to Pareto: Of bathos, proportionality, and EU law

2017-10-30

Abstract
This article is a critique of the legal reasoning of the Court of Justice of the European Union (CJEU) in its free movement case law, which relies mainly on the principle of proportionality. The Court initially presents free movement cases as involving fundamental clashes between conflicting considerations of the highest order, most often between market freedoms and non-economic interests (including the preservation of the competences of member states, fundamental rights, national policies and EU-wide values), and thus frames its role as that of a balance—a truly Herculean task. However, the Court does not actually solve these cases by balancing. Instead, it (implicitly) resorts to an alternative, technocratic framework, through which it reduces the cases to technical issues of pure fact and, on the basis of Pareto efficiency, limits itself to weeding out objectively superfluous regulations. The reasoning of the Court is thus characterized by a certain form of bathos: it abruptly and radically shifts from a Herculean balancing of values framework to a seemingly innocuous and purely factual review of Pareto efficiency. It ambitiously, and yet awkwardly, combines an exalted appeal to values with the objectivity and irresistible innocuousness of efficiency review. It is nevertheless doubtful whether the Court’s argumentative structure is at all persuasive: value statements are reduced to declamatory devices of no operational importance, while the Court’s recourse to Pareto efficiency only serves to hide the (obviously) controversial implications of its free-movement case law.



Judicial disapproval as a constitutional technique

2017-10-30

Abstract
In this article, I consider judicial disapproval as a form of non-binding review of the constitutionality of legislation. Judicial disapproval is epitomized by the “declaration of incompatibility”—a concept that is commonly thought to have been pioneered in the United Kingdom in the 1990s. I show that the concept in fact has a considerably longer history. In the 1940s, the concept was envisaged and endorsed by Britain’s principal contributor to the drafting of the European Convention on Human Rights, David Maxwell Fyfe, and by Hersch Lauterpacht in his work on the incorporation of an international bill of rights into national legal systems. Variants on the concept were also examined and given some credence by American constitutional thinkers during the Revolutionary era and the early Republic. After considering the history of judicial disapproval as a constitutional technique, I offer some observations on the differences between judicial disapproval and Marbury-style judicial review. I conclude with a brief explanation as to why judicial disapproval is likely to persist as a form of rights review in the United Kingdom, whatever the fate of the Human Rights Act 1998.



The refinement of international law: From fragmentation to regime interaction and politicization

2017-10-30

Abstract
The new posture of international courts and tribunals is the “spirit of systemic harmonization,” to use the words of the European Court of Human Rights Grand Chamber in Al-Dulimi. Fifteen years after the “proliferation” speech given by former President of the International Court of Justice, Gilbert Guillaume, before the UN General Assembly and ten years after publication of the International Law Commission’s “fragmentation” report, it is time to bury the f-word. Along that line, this article concentrates on the positive contribution of the new techniques which courts, tribunals, and other actors have developed in order to coordinate the various subfields of international law. If these are accompanied by a proper politicization of international law and governance, they are apt to strengthen both the effectiveness and the legitimacy of international law. Ironically, the ongoing “harmonization” and “integration” within international law could also be conceptualized as a form of procedural constitutionalization.



Formations of Buddhist constitutionalism in South and Southeast Asia

2017-10-30

Abstract
From a subfield focused mainly on secular constitutions in Anglophone and/or European settings, the study of religion and constitutional law has gradually shifted its attention to religiously preferential constitutions in North Africa, the Middle East and parts of Asia. While this shift has produced a rich literature on Islam and constitutional law, it has almost entirely neglected Buddhism. This neglect presents a significant problem for scholars of comparative constitutional law because, as this article contends, some of the most important legal projects in South and Southeast Asia have been projects of Buddhist constitutionalism: attempts to use written constitutions and other basic laws to organize power in ways that protect and preserve Buddhist teachings and institutions, especially the institution of Buddhist monasticism, the saṅgha. By looking at the premodern roots of Buddhist constitutionalism and examining its distinctive formations in Sri Lanka and Thailand, this article explains how and why this particular form of religious constitutionalism has come to influence politics and law in contemporary South and Southeast Asia.



The constitutionality of election thresholds in Germany

2017-10-30

Abstract
Germany is often thought of as home to the hurdle or threshold requirement: parties that fail to obtain 5 percent of the votes in an election are excluded from sitting in Parliament. This idea has been widely copied throughout the world, although the five-percent threshold has not been implemented everywhere, and other variations on the theme exist. Recently, however, doubts have started to emerge in Germany itself about the hurdle. It remains constitutionally valid in federal and state elections, but the Federal Constitutional Court has recently held it invalid in European elections. Its decision deserves endorsement, although it had a range of justifications for holding the hurdle invalid—some remarkably insightful, some rather less praiseworthy.



“The clouds are gathering”: Developments in Taiwanese constitutional law The year 2016 in review

2017-10-30

Abstract
In this article, we provide an overview of constitutional law and politics resulting from the historic elections in January 2016 in the historical light of Taiwanese political and constitutional development. We take account of the new constitutional landscape opened up by the January elections, the constitutional politics of judicial appointment, the controversies surrounding transitional justice and same-sex marriage, and the case law of the Taiwan Constitutional Court (TCC). Taken together, we observe that constitutional law and politics in 2016 developed as if it were a multi-act constitutional play culminating in the drive towards the legalization of same-sex marriage, with President, legislators, judicial nominees, and activists playing the leading roles in the unfolding drama. Though the TCC appears to be the bland deuteragonist in the 2016 constitutional play, we suggest that as the issues surrounding various reforms are being translated into constitutional questions, the TCC may well take center stage in the next play. With the upcoming judicial fights in sight, the play of constitutional developments in 2016 may well be entitled “The Clouds Are Gathering.”



Developments in Italian constitutional law The year 2016 in review

2017-10-30

Abstract
This report firstly provides a brief introduction to the Italian constitutional system, with particular emphasis on the system of constitutional justice. Secondly, the report contains a narrative exposition of two particularly important controversies that occurred in 2016. In these decisions, the Italian Constitutional Court (ICC) actively engaged as the supranational dimension of constitutional law, showing at the same time a high level of compliance to the principle of openness towards supranational and international law, and a firm stance in upholding the complex substantive and institutional balance of the Italian Constitution. The report then provides an overview of landmark judgments adopted by the ICC in 2016. The last section draws some conclusions.



Developments in Belgian constitutional law The year 2016 in review

2017-10-30

Abstract
This contribution presents an overview of the Belgian Constitutional Court and its activities during 2016. Two constitutional controversies that were at the forefront of political discussions and attracted much media attention are discussed, namely the separation of powers and the refugee “crisis” as well as the Comprehensive Economic and Trade Agreement (CETA) between the European Union and Canada. Moreover, the article gives an overview of the main cases of the Belgian Constitutional Court of the past year that may be of interest to an international audience. These cases are divided into the following categories: the Belgian Constitution in Europe and the world, separation of powers, justice and order, ethical issues and hot topics.












Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment: A reply to Rosalind Dixon and David Landau

2017-10-30

As Rosalind Dixon and David Landau observe in their article, “Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment,”11 the breakdown of constitutional democracy is a central feature of contemporary politics. Yet it is important to remember that this phenomenon is as old as democracy itself. For comparative constitutional law, what is important is a shift in how the breakdown of democracy tends to occur. As I have argued elsewhere, historically, the paradigmatic example of democratic breakdown was a military coup d’état that seized power and overthrew a civilian government in blatant contravention of the existing constitutional order.22 This was later joined by the self-coup or autogolpe, whereby democratically elected presidents remained in power unconstitutionally and escaped the confines of term limits and/or electoral losses, for example, by declaring a state of emergency that suspended many of the constitution’s provisions, and then amending parts of or rewriting entirely the constitution by decree or convening an extra-constitutional constituent assembly.



Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment: A rejoinder to Sujit Choudhry

2017-10-30

In his Reply to our article, “Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment,”11 Sujit Choudhry usefully locates it in the context of a broader literature on “democratic hedging” by constitutional courts, or judicial review aimed at safeguarding the minimum requirements of competitive democracy. This literature, as Choudhry notes, includes important contributions by several authors, including Samuel Issacharoff and Choudhry himself.22 He also connects the specific legal phenomenon we focus on—i.e., abusive constitutional amendment—to a broader set of legal tools used by individual political leaders or dominant political elites to consolidate their hold on power. As Choudhry notes, these tools include, inter alia,