Recent scholarship has exhibited great faith in the ability of constitutional courts to protect democracy in fragile regimes, while of late a more skeptical position has emerged to challenge this near-orthodoxy. In this paper, I take a more equivocal and contextual approach to the issue, by considering some of the costs and benefits of a...
What role for pluralism in inter-court relationships? – An explanatory framework
It has been observed in recent years that the relationship between domestic and international courts typically does not follow hierarchical patterns. Therefore, some legal scholars have coined the term ‘pluralism‘ to describe relationships between domestic and international courts in which neither Court accepts the absolute supremacy of another court, but still seeks to establish a...
Undocumented migrants as (non)Others of Europe
This paper engages with legal and political discourses aiming to respond to the increasing presence of undocumented migrants in the European Union. It outlines a thought experiment inspired by the realisation that the contemporary perception and treatment of undocumented migrants as the Other of Europe coincides with the elements shared by most proposals for definition...
Unconstitutional constitutional amendments: can a strong judicial review avoid abusive constitutionalism?
The Brazilian Constitution is perhaps one of the few Constitutions in the World that brings in its role of immutable clauses a larger and more restrictive nucleus of the Power of reform. If on the one hand this limitation may be seem as undemocratic, it can be justified in order to avoid an abuse in...
Transforming EU Equality Law: On Disruptive Narratives and False Dichotomies
The adoption of the Race Equality Directive (2000/43/EC), the Framework Directive (2000/78/EC) and the Gender Directive on goods and services (2004/113/EC) radically transformed the landscape of EU non-discrimination law. From a means to advance market integration, non-discrimination law is said to have evolved towards a genuine fundamental right of equality. Yet, the CJEU‘s efforts to...
Transnational Legal Technologies Regulating Infrastructures-as-Regulation
Infrastructures of and for globalization are not governed by a comprehensive legal framework. Global commitments to the liberalization of trade in goods and services in bilateral, regional, and megaregional free trade agreements and the WTO regulate economic flows, but only to a very limited extent do they regulate the underlying facilitating physical, informational, and digital...
Three Good Reasons Why Universal Human Rights Are Not The Same Everywhere
Human rights claim to be universal, yet different human and constitutional rights instruments contain different lists and even when the same rights are recognized in the abstract they are often interpreted differently across jurisdictions. I will argue that this variance of human rights practice across regimes and jurisdictions does not undermine the idea of the...
Towards a Constitutional Doctrine of Alternative Dispute Resolution
In recent years, a discourse on ethno-religious minorities emerged, attesting that certain communities are involved in processes of dispute resolution. According to the alarming arguments from judicial and law enforcement institutions they pose a threat to the fundamental principles of public law. This paper will challenge this discourse on two levels: empirical and normative. First,...
The Temporal Dimension of the State
In the paper I will seek to identify and consider some distinct qualities of the state’s temporal dimension. The main focus will be on the state being a temporally infinite object. I will investigate in particular how, if at all, permanence is intended or effected by the persons whose actions collectively constitute or maintain the...