Contemporary Turkey is marked by two parallel states and legal systems. One is the constitutional state that is supposed to be western-oriented and democratic, based on the rule of law, and loyal to Turkey‘s commitments to various transnational organizations, such as the CoE and the EU. The other one is a “prerogative state“ that has...
The Art and Science of Constitutional Legislation
Much of the existing Canadian literature on deference focuses on courts. What remains underexplored is how the Parliamentary process and executive policy design and constitutional review might inform the Court‘s deference analysis. Drawing on the field of Gesetzgebungstheorie, or legisprudence, this paper considers whether deference analysis should be influenced by parliamentary work, including travaux préparatoires,...
Temporary Judicial Officers: Best Practice in Comparative Perspective
The appointment of Temporary Judicial Officers can arouse strong opinions. In Australia, Justice Kirby of the High Court has asserted that the ‘time has come … to draw a line and forbid the practice‘. At the same time, most jurisdictions recognise the need for such appointments to assist the courts in significant ways. In this...
‘Studying Judicial Disagreement Quantitatively: The Case of Judges on the UK Supreme Court
This paper reports on an ongoing study of why, how, and with what consequences judges of the UK Supreme Court (the Court) disagree. It rejects the commonly accepted starting point that judicial disagreement is ‘political’ in that it can be adequately captured along a classical liberal–conservative. Instead it argues that judicial disagreement is ‘doctrinal’. We...
State of emergency and rule of law in France
The state of emergency was decreed on November 14, 2015 in France to face the terrorist attacks of this bloody night. It was then extended for two years. Justified by the fight against terrorism, it survived and was used for other purposes. Therefore, one can wonder how the contemporary State structured by the rule of...
Somalia: building a federation in the absence of trust or constitutionalism
In orthodox federal theory success of a federal experiment is predicated on the presence of trust among the federal partners, and, where that fails on occasion, a central Supreme or Constitutional Court which can adjudicate disputes among the partners. Conversely, the absence of these two elements makes the chances of success very slim if not...
Temptations of Executive Power: Repromulgation of Ordinances in India
This paper tells the story of an iconic decision in India: DC Wadhwa v State of Bihar. The Indian Constitution authorizes the executive to enact temporary legislation provided certain conditions are met. Can the executive repeatedly promulgate the same ordinance? In Wadhwa the court said no: Repromulgation negates the system of separated powers, and renders...
The Impact of Indigenous Groups on New Zealand and American Constitutionalism and Law
Embedded within the New Zealand and the American legal systems are a series of rules concerning the peoples who inhabited the area prior to colonisation. These rules involve the establishment of European sovereignty, the ongoing status and use of indigenous lands, indigenous political institutions, the interpretation of treaties, and fiduciary obligations. The development of these...
The identity of Public Law in view of the Constitutionalisation, Deconstitutionalisation and Europeanisation of Spanish Administrative Law
The relation between administrative law and the Constitution is a traditional topic in Spanish public law. The paper explores three perspectives. First, the interaction among administrative law and the Constitution shall be studied. The latter has many effects on the former, but the process also operates the other way around. This is partially fostered by...
The Gender of Islamophobia: Intersectional Discrimination and the ‘Islamic Headscarves’ Jurisprudence
Rising Islamophobia in public discourses on national identity, immigration and terrorism has made religious discrimination a pressing issue, often crystallising around the headscarf question. Women wearing Islamic veils regularly confront sexist and racist stereotypes, entangled with culturo-religious animosity. This form of intersectional discrimination has however not been challenged by courts. The US landmark case Abercrombie...