A fair case can be made that the vast majority of research in public law takes an institutional approach and that most public law scholars are institutionalists. With the exception of judicial biography, research in public law is almost always about whether some legal or institution matters. We study the influence of different ways of...
Invoking Fundamental Rights to Hold Companies Accountable: The Indian Experience
This paper will explore the extent to which fundamental rights (FRs) provisions in Part III of the Indian Constitution could be directly invoked against companies to hold them accountable for human rights abuses. I will examine two issues related to this question: the extent of horizontal application of FRs, and the relevance of corporate law...
Invoking the Nation in Partitioned Lands: Postcolonial Constitutions and Exclusion in Ireland and the Indian Subcontinent
The paper explores the relationship between constitutional representations of the nation and institutional design following the partitions of Ireland and the Indian subcontinent. The constitution-making processes and outcomes in Ireland 1937, India 1950 and Pakistan 1956, together with the Northern Ireland Act 1998, reveal the constitutional centrality of claims to nationhood that extend beyond state...
Is the Separation of Powers Applicable to Parliamentary Systems?
The paper examines the separation of powers in presidential and parliamentary systems. Some writers have argued that the separation of powers is not a feature of parliamentary systems. The paper examines the reasons for this scepticism, why it is groundless, and the ways in which the separation of powers structures the United Kingdom’s constitutional order.
Jewish Past, Mnemonic Constitutionalism and Politics of Citizenship
This paper utilises three case studies to focus on various modes of the Jewish past in constructing citizenship regimes. The first part will explore how secondary EU law has been appropriating Holocaust and other episodes of Jewish history in shaping the narrative of EU citizenship, fundamental rights, anti-discrimination and the rule of law. The second...
Judges and the Judging of Mixed-Race Racial Identity Discrimination Claims
A growing number of commentators view discrimination against multiracial (racially-mixed) people as a distinctive challenge to racial equality. This perspective is based on the belief that multiracial-identified persons experience racial discrimination in a manner that judges steeped in historic black-white notions of racism cannot comprehend. I dispute that premise and deconstruct its Personal Identity Equality...
Judges as Administrators (Defining Institutional Judicial Accountability)
Contemporary discussions on judicial independence and judicial accountability focus on liability of judges for decision-making, and disciplinary mechanisms ensuring the integrity of the judicial process. However, they overlook the fact that specific judges perform administrative duties distinct from their judicial functions, which were transferred from the executive to the judiciary in an effort to promote...
Kelsen‘s Material Constitution and the Limits of Amendment Review
This paper will defend Kelsen‘s claim that formal constitutionality is reducible to material constitutionality. It will do so by discussing the question whether it is possible for a written constitution to limit judicial review of constitutional amendments to purely procedural review. There are several cases where such limitations broke down in practice. It will be...
Judicial Control over the Use of Closed Material Procedures
This paper identifies the key challenges posed by the innate secrecy of closed material procedures (CMPs), highlighting the concomitant importance of judicial control over their use. Judicial independence is of fundamental importance in any democracy of which judicial decision-making powers are an essential element, even in the national security context. In the UK, the Justice...
Judicial guarantees in the process of Brazilian impeachment: the opinion of the Federal Supreme Court
Brazil, in the last 30 years, has already gone through the impeachment of two presidents (Collor in 1992 and Dilma in 2015). Before and during the impeachment process of President Dilma, the discussion on judicial guarantees and respect for due process were referred to the Federal Supreme Court at ADPF 347, which sought to analyze...