This panel investigates the role that institutional failure performs in comparative constitutional law. It interrogates the concept’s meaning, the ways in which it manifests in practice, and its consequences for particular claims in constitutional theory. The papers examine, in particular, (a) the role of regional human rights bodies in addressing institutional failure at the national...
Against Interpretation as an Alternative to Invalidation
This paper’s object is to sound a note of caution against the rise of remedial interpretation (ie a court rewriting a statute to render it compatible with a constitutional norm) as an alternative to statutory invalidation as a remedy for violations of constitutional norms in Anglo-American countries (eg s 3 of the UK Human Rights...
Regional Human Rights Courts and Institutional Failure
This paper investigates the role of the regional human rights system in Europe and Latin-America in combating institutional failure, as opposed to addressing individual instances of human rights violations. I define institutional failure as a violation of a constitutional duty, typically a human right, of large scope ie that 1. affects large numbers of people,...
Separation of Powers under Siege: What Went Wrong in Central Europe?
The concept of separation of powers is notoriously vague and contested. Usually, we realize what separation of powers (SOP) is only once we have lost it, as evidenced by recent efforts by ruling parties in Hungary & Poland. We argue that to understand recent challenges to the SOP in Central Europe (CE) we need to...
The core case for weak form judicial review
This paper contributes to debates over the democratic desirability of judicial review, by stating a quasi-general case for the desirability of judicial review that is “weak“–or broad but non-final–rather than “strong“-form in nature. Judicial review of this kind, the paper argues, can help counter blockages in the legislative process–such as legislative “blind spots“ and “burdens...