International Journal of Constitutional Law - recent issues

Preface: The role of constitutional scholarship in comparative perspective: An exchange among Armin von Bogdandy, Robert Post, Mattias Kumm, and Alexander Somek

Rosenfeld, M. — 2009-06-29

The past and promise of doctrinal constructivism: A strategy for responding to the challenges facing constitutional scholarship in Europe

von Bogdandy, A. — 2009-06-29

Doctrine, although challenged from its very beginnings as scientifically unsound, politically conservative, or socially irresponsible, forms the heart of constitutional scholarship in Europe. This article presents the development of legal doctrine in the twentieth century among the various national systems; it focuses not only on the elements in common but also on the particularities and idiosyncrasies of the individual systems. The aim is to suggest a strategy for responding to three contemporary challenges to the national scholarly cultures: the project of a European research area; the rapid development of a European legal area now faced with an ever-greater number of issues of constitutional importance; and the low regard accorded to doctrine by leading U.S. institutions. In light of these challenges, the article proposes a more fully evolved version of the traditional understanding of doctrine, presented here under the rubric "doctrinal constructivism." It is proposed that this become the focus of a yet-to-be-created discipline of European constitutional scholarship, which will define both its role and identity. Constitutional scholarship in the European legal area, thus, should reposition itself, focused on but not limited to doctrinal constructivism.

On the past and future of European constitutional scholarship

Kumm, M. — 2009-06-29

This comment takes issue with three claims made by Armin von Bogdandy about the role of "doctrinal constructivism" as it relates to the European public law tradition. First, the rise of constitutional law as a subdiscipline of law is not plausibly explained by the adoption of a conceptually focused positivist method. Its successful institutionalization within the law faculties has depended, first and foremost, on the establishment of a relatively stable constitutional settlement. The nature of that settlement, rather than the virtues intrinsic to any particular methodology, is the most influential factor in determining what kind of methodology becomes dominant. Second, it is probably misleading to characterize mainstream contemporary European legal scholarship as doctrinal constructivism. If the varieties of legal scholarship that count as mainstream in Europe today have a common core, it consists of a rejection of the reductivism that has classified law and legal scholarship as either formal/conceptual, moral, or empirical/factual. European legal scholarship seeks, for the most part, to integrate the formal, empirical, and moral dimensions of the law into a distinctively legal point of view. In that sense, it has always been—even in Germany—far more open to interdisciplinary and theoretical work than von Bogdandy's account suggests. Third, while he correctly describes an interesting and deep difference between contemporary European and American cultures of legal scholarship and teaching—a difference that is apparent to anyone who has experienced both—von Bogdandy has overlooked the salutary effect of American elite law school culture on European scholarship. It has encouraged European scholars to overcome the residual habits of a conceptually focused positivist complacency and more widely reembrace the study of law as a theoretically ambitious, internally multidisciplinary exercise.

Constitutional scholarship in the United States

Post, R. C. — 2009-06-29

The status and character of constitutional scholarship depends upon the nature of constitutional law. In the United States, the content of constitutional law is typically negotiated within a dialogue between the Supreme Court and the American people. Constitutional scholarship accordingly seeks to mediate this dialogue by clarifying the systematic and jurisprudential implications of potential constitutional developments. In Europe, constitutional law is more independent of political dialogue; hence constitutional scholarship is relatively more autonomous. Whereas European constitutional scholars imagine their project as the development of an apolitical and internally coherent structure of constitutional norms, American constitutional scholars tend to develop theory in the context of its practical implications for case-by-case adjudication.

The indelible science of law

Somek, A. — 2009-06-29

It is often remarked that, with the rise of the judicial resolution of constitutional questions, European constitutional systems have come to resemble a variation on the common law, as cases decided by constitutional tribunals appear to be imbued with an oracular quality with regard to constitutional meaning. Notwithstanding this widespread assimilation of a common law mindset, there is value in an older tradition of legal science that persists in some circles—primarily in Continental Europe—and forms the backbone of legal education and scholarship. Where the tradition persists, case law may be relevant, and authoritative, only if the ideas it produces can be ratified on the basis of a "scientific" structure of conceptual differentiation. This approach—which might be described as the pursuit of excellence in thinking—is not a mere intellectual conceit; rather, this essay argues, in a "postdemocratic" era, legal science may offer opportunities for empowerment of a public that finds itself disenfranchised by overconfident courts.

The rule of law beyond the state: Failures, promises, and theory

Palombella, G. — 2009-06-29

Resorting to the "rule of law" within the traditional environment of international law generates difficulties, especially when circumstances require us to square the circle by accommodating normative claims with state legal orders, fundamental rights, and democracy. Unsurprisingly, in recent cases brought before supranational courts, such as the European Court of Justice (Kadì and Al Baarakat, for example), or domestic courts, such as the United States Supreme Court (Hamdan, for example), the import and notion of the rule of law have been interpreted in ways that reveal the uncertainty surrounding the concept and the rather idiosyncratic or instrumental uses to which it is put. Through the analysis of such instances, this article proposes a restatement of the rule of law that better explains its use beyond state borders. Then, it shows how the relation between different orders, as a factual matter, does not obey some monist hierarchy and does not even reflect the logic of the "dualism" of self-contained systems. Given that the autonomy of legal orders is a vital contemporary reality, confrontation between them and with international law appears to be replacing the formal primacy of sources as well as blind or dogmatic closure by content-dependent constitutional assessments. In this connection, a road taken in the European environment shows that communicative pluralism can embark on a practice of giving reasons inherently capable of producing common standards, the rule of law, and thin lines of principle. All of these factors are ingredients that might finally evolve further into a rule of recognition for the international legal order.

Proportionality: An assault on human rights?

Tsakyrakis, S. — 2009-06-29

Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamental rights. The European Court of Human Rights routinely balances human rights against each other and against conflicting public interests; it has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights (ECHR). This paper examines the debate on balancing in the context of American constitutional law and the convention and discusses theories that claim some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes, and it suggests that courts should focus, instead, on the real moral issues underlying such disputes.

The crisis of the secular state--A reply to Professor Sajo

Zucca, L. — 2009-06-29

The failure of the European Constitution ignited two apparently independent debates, on the future of European states and on the place of Christian values in the European public sphere. In recent years, the latter question has become more and more burning; so much so that the future of European secular states is considered to depend to a great extent on its ability to cope with the alleged threat of religion. Responding to an essay by András Sajó, Preliminaries to a Concept of Constitutional Secularism, which appeared in I•CON in October of 2008, this paper distinguishes two competing theories of the place of religion in Europe and suggests that the best understanding of secularism does not exclude religious minorities from the public sphere. European states should develop a common secular position that articulates and promotes conditions of coexistence and communication.

The crisis that was not there: Notes on A reply

Sajo, A. — 2009-06-29

In this response to Lorenzo Zucca's critique (... A reply to Professor Sajó) of his 2008 article, Preliminaries to a Concept of Constitutional Secularism, Professor Sajó pronounces himself grateful for the opportunity to examine specific examples of the rationales being advanced in order to "create a space for special practices that do not conform to constitutional values." At the end of the day, he remains persuaded of the dangers of including religious phraseology and concepts in law that would give "too much aid and comfort" to already privileged religious organizations, in the name of free exercise of religion.

European Committee of Social Rights: The right to a healthy environment

Trilsch, M. — 2009-06-29

Luxembourg: Parliament abolishes royal confirmation of laws

Frieden, L. — 2009-06-29

Alexander Somek, Individualism. Oxford University Press, 2008

Menendez, A. J. — 2009-06-29

Books recently received in the I*CON editorial offices

2009-06-29

Common law declarations of unconstitutionality

Jenkins, D. — 2009-03-27

This article proposes that British courts have an inherent power to issue nonbinding, common law "declarations of unconstitutionality" when Parliament legislates against constitutional norms. Courts have already recognized higher-order principles as part of an emerging constitutional jurisprudence and will interpret statutes to be compatible with them absent Parliament's clear, contrary intent. When this interpretive process leads to a constitutional conflict (that is, where higher-order principles and statute are irreconcilable), courts then necessarily decide that Parliament has acted unconstitutionally. The logical next step is for a court simply to make a formal declaration to that effect. Thus, the common law declaration is available not only where Parliament violates common law rights but also the conventions and fundamental statutes that regulate democratic, decision-making processes. The courts’ current interpretive approach inexorably leads to this proposed remedy; this article rests on the premise that further theoretical inquiry into the nature of the British Constitution, parliamentary sovereignty, or the foundations of judicial review is, at this point, not only unnecessary but perhaps even unhelpful, to legal practitioners.

Constitutionalism with Chinese characteristics? Constitutional development and civil litigation in China

Kellogg, T. E. — 2009-03-27

For decades, the Chinese Constitution has been thought to lie outside judicial purview, as its basic rights provisions have been more or less ignored. For that reason, many outside observers have assumed that constitutional development in China is at a standstill. Nonetheless, in recent years, a number of Chinese lawyers, academics, and activists—pushing for a more active judicial role—have been challenging standard assumptions about the Chinese Constitution. Taking antidiscrimination litigation as a key example, this article describes the impetus inside China for constitutional development and delineates the state's response. While state actors often ignore constitutional claims publicly, they may still respond to the underlying substantive issues raised by would-be reformers. The author argues that, although such efforts have had limited impact on the formal constitutional structure, nevertheless, they have had a positive effect on the public's rights consciousness.

Constitutional exceptionalism and the common law

Poole, T. — 2009-03-27

This paper examines the notion of exceptionalism, currently pervasive within constitutional discourse. The term "exceptional" is used in this context to indicate a measure that deviates from normal constitutional standards and is, by virtue of that deviation, seen as inappropriate or regrettable. The paper avoids a direct focus on the debate about terrorism, concentrating instead on more conceptual matters—and particularly on the "fit" between this discourse and the "common law constitution." It turns first to John Locke and uses his theory of the prerogative as a means of highlighting the difficulty of determining what counts as "exceptional" in this, our "age of statutes." Turning next to the common law constitutionalists’ theory of emergency powers, articulated most skillfully by David Dyzenhaus, the essay argues that this theory rests on a mistaken understanding of the nature of common law. Finally, it addresses the issue of extraconstitutionality and common law more generally, taking as its focus the "extralegal measures model" of emergencies advocated by Oren Gross and Mark Tushnet.

Limits on the freedom to manifest one's religion in educational institutions in Uganda and the United Kingdom

Ssenyonjo, M. — 2009-03-27

This article analyzes the treatment of the freedom to manifest one's religion in educational institutions in Uganda and the United Kingdom in light of recent judicial decisions by these two states highest courts, the Supreme Court of Uganda and the House of Lords. It focuses on three questions: First, are schools and universities obliged to respect the right of students to show their religion on campus? If so, can the educational institutions question the sincerity or legitimacy of religious beliefs held by students? Second, what are the limits on the freedom to display one's religion on campus? Third, is the approach adopted by the courts in Uganda and the U.K. consistent with each state's international human rights obligations?

European Union: UN sanctions and EU fundamental rights

Payandeh, M., Sauer, H. — 2009-03-27

Fundamental rights and the fight against terrorism—UN sanctions regime—freezing of financial assets—relationship between EU and UN—implementation of Security Council resolutions in EU law—competence of ECJ to review legal acts of the Community—right to be heard—right to effective judicial review—right to respect for property

United States: Assessing Heller

Levinson, S. — 2009-03-27

Second Amendment to U.S. Constitution—gun control—right to bear arms—originalism

Judicial review in review: A four-part defense of legal constitutionalism A review essay on Political Constitutionalism

Walen, A. — 2009-03-27

Bills of Rights and Decolonization

Mendes, C. H. — 2009-03-27

Roundtable: An exchange with Jeremy Waldron

Dorsen, N., Rosenfeld, M. — 2009-01-12

Judges as moral reasoners

Waldron, J. — 2009-01-12

Debates about judicial authority-including debates about the desirability of judicial review of legislation—sometimes turn on the question of whether judges have superior skills when it comes to addressing what are, essentially, moral issues about rights. This paper considers the possibility that the answer may be "no," not because judges are inept morally, but because the institutional setting in which they act and the role that they adopt both require them to address questions about rights in a particular legalistic way—indeed, in a way that, sometimes, makes it harder rather than easier for essential moral questions to be identified and addressed. Of course, what we want is for moral issues to be addressed, not as one would make a personal moral decision, but in the name of the whole society. Perhaps the judicial mode of addressing them satisfies that description, but there are other ways of satisfying it too—including legislative approaches, which proceed by identifying all the issues and all the opinions that might be relevant to a decision, rather than artificially limiting them in the way that courts do.

Rights and moral reasoning: An unstated assumption--A comment on Jeremy Waldron's 'Judges as moral reasoners'

Sadurski, W. — 2009-01-12

Both defenders and critics of judicial review assume that a special moral capacity is needed for a correct articulation of constitutional rights, although they disagree about who is likely to possess this moral capacity to a greater degree. In this comment I challenge such an assumption. Reasoning that is oriented toward rights articulation is not "more moral" than non-rights-oriented authoritative public decision making. Rights-related reasoning cannot be shown to be "differently moral" in order to justify why some political actors—such as judges—may be better suited to performing this particular type of moral reasoning than others—such as legislators. The best argument for such a distinction hinges on the opportunity an actor may have to conduct "moral thought experiments," which is what judges, as part of their professional duties, normally do. But there is no justification for believing that such "experiments," triggered by specific, factual situations, should be privileged, as a method of moral reasoning, over abstract, principle-based reasoning. If anything, a good case can be made for deliberately abstracting from specific cases and focusing on the general, along the lines of a Rawlsian "reflective equilibrium."

Are legislatures good at morality? Or better at it than the courts?

Dyzenhaus, D. — 2009-01-12

This essay criticizes Jeremy Waldron's assumption that debate about judicial review of statutes requires us to suppose, when it comes to moral reasoning about the law, that either judges or legislatures are good at it and, based on that supposition, to choose which institution should be assigned the task. Waldron does not hold fast to his own assumption—his claim turns out to be that legislatures should have final authority in moral matters, since they are better at moral reasoning than judges. He thus abandons a central tenet of political positivism—namely, its hostility to judges having any role at all in moral reasoning about the law. Thus, Waldron is engaged, not in an argument against judges playing such a role but, rather, in a debate about how to best to design legal institutions, given that judges will, in fact, have an important role in that moral deliberation.

Reframing a debate among Americans: Contextualizing a moral philosophy of law

Beaud, O. — 2009-01-12

Weighing in on the American debate that may be described as "Waldron versus Dworkin," this essay challenges the assumption that law and morality are inevitably intertwined. Neither this perspective, nor Jeremy Waldron's vision of judges as "representatives" of society are universal, and, contrary to what is implied in Professor Waldron's essay in this issue, the role of the judge varies considerably depending on the judicial culture. In France, as in much of Europe, it may be argued that judges act, as institutional authorities, in the name of the state. Likewise, the role of the state in the legislative process demands acknowledgment. Waldron's attempt to weigh the respective merits of judicial and legislative decision-making must take into account the fact that, increasingly, legislatures do not make the law; rather, they ratify it, after the groundwork is laid in the offices of ministers and cabinet members.

Refining the question about judges' moral capacity

Waldron, J. — 2009-01-12

The question about whether judges are better than legislatures at identifying and addressing the moral issues associated with rights needs to be posed in a more refined way that takes account of the suggestions made by Professors Beaud, Dyzenhaus, and Sadurski. As Professor Sadurski points out, it is not clear that issues about rights differ in their moral salience from other decisions that need to be faced in politics. Professor Dyzenhaus insists, quite rightly, that the question be posed as a question about institutional competence and institutional procedures. In this response, however, I argue that that reformulation does not make the question go away; it just poses it in a more complex setting. Professor Beaud rightly emphasizes that the question is usually raised in this form only in common law systems. Here, however, I argue that the fact that moral reasoning is concealed beneath the esoteric structures of adjudication in civil law systems does not mean that my question has no application there. All it means is that, in order to answer it, we must persuade judges to be a little more candid about what they are doing.

Constitutional afterlife: The continuing impact of Thailand's postpolitical constitution

Ginsburg, T. — 2009-01-12

Thailand's constitution of 1997 introduced profound changes into the country's governance, creating a "postpolitical" democratic structure in which an intricate array of guardian institutions served to limit the role of elected politicians. Ultimately, the constitutional structure was undermined in a military coup against populist billionaire Thaksin Shinawatra, who had taken over many of the institutions designed to constrain political power. Nonetheless, the 1997 constitution appears to be having a significant afterlife, in that its institutional innovations have survived the enactment of a new Constitution and continue to constrain the political process. This article describes the Thai situation and speculates on the conditions for constitutional afterlife.

Principle and pragmatism on the Constitutional Court of South Africa

Roux, T. — 2009-01-12

Though lacking in public support, the Constitutional Court of South Africa (CCSA) today finds itself in a position of relative institutional security. At the same time, it has built up an enviable reputation among constitutional courts in new democracies for the technical quality of its jurisprudence or legitimacy in the legal sense. This essay attempts to explain how this situation has come about by developing a theoretical account of the relationship between legal legitimacy, public support, and institutional security, and then using this account to interpret the CCSA's record from 1995 to 2006. The defining feature of South African politics over this period has been its domination by a single political party. In this context, the theoretical account suggests, the CCSA should largely have been able to ignore its lack of public support in favor of managing its relationship with the political branches. In particular, one would expect the CCSA to have traded off gains in legal legitimacy, achieved by principled decision making, against considerations of the likely impact of its decisions on its institutional security. An examination of some of the CCSA's major decisions reveals that it, indeed, has acted strategically in this way, both in politically controversial cases, where it has used its flexible separation-of-powers doctrine to avoid direct confrontation with the political branches, and in more routine cases, where it has developed a number of context-sensitive review standards.

Germany: A slow death for subsidiarity?

Taylor, G. — 2009-01-12

Judicial Review, Socio-Economic Rights and the Human Rights Act * Weak Courts, Strong Courts: Judicial Review and Social Welfare Rights in Comparative Constitutional Law

Ewing, K. D. — 2009-01-12

The Migration of Constitutional Ideas.

Perju, V. F. — 2009-01-12

Constitutional Democracy: Creating and Maintaining a Just Political Order * Principles of Constitutional Design

Skach, C. — 2009-01-12