The democratic constitution should be the embodiment of the sovereignty of the nation. In such a constitution the nation autonomously establishes the tenets and rules of its functioning. The concept of the nation forming the basis of the constitution affects its shape and determines its interpretation. Having analysed the canonical works considering philosophy and theory...
The One Belt and One Road (OBOR) Initiative: Reconceptualisation of State Capitalism vis-à-vis Remapping of Global Governance
Globalisation has led to asymmetric engagement and opportunities. While the new power is seeking to integrate institution building into the global policy architecture, the resulting inequity under the existing institutions trigger increased nationalist pushback. With its ample surplus financial capacity, China has been building up its soft power through the “One Belt and One Road“...
The material constitution in the longue durée: reflections on the Chilean constitutional dilemma
What conditions must be met for giving normative weight to historical assertions about the material constitution? This paper looks at this question using as its starting point the case of Chile, where President Michelle Bachelet sought in her second administration (2014-2018) to frame the persistent constitutional debate about how to amend or replace the text...
The Material Constitution of the Euro and Emergency Measures
An accepted narrative on the Euro crisis postulates that it offered the chance to transform the EU material constitution via emergency powers. This paper tries to advocate the opposite: emergency actions were required in order to address and contain the negative and destabilizing effects generated by the contradictions afflicting the governance of the Euro. In...
The Moral Market: Compelled Speech and Government Funding
What are the legal, moral and political obligations that attend the relationship between government and private actors accepting public money while exercising their right to freedom of religion in a liberal democracy? Using a Canadian case study in which the federal government requires all fund recipients for a grant program to sign an attestation that...
The Multiple Layers of Romaphobia: Intersectional vs. Constructivist Readings of Discrimination
‘Reasonable anti-Gypsyism‘ in the EU rests in practices and measures designed to conceal discriminatory intent. Political discourse portrays the Roma as a threat to public security and welfare, and ultimately to EU integration. Anti-Gypsyism can be conceptualized as intersectional discrimination against Roma subgroups based on a combination of grounds, such as race or ethnicity, nationality,...
The lack of political will to institute post-TRC prosecutions in South Africa: A threat to democracy and challenge for public law?
In the late 1980s and early 1990s, South Africa started a journey towards a negotiated settlement of its political crisis, and it was against the historical background of the crimes committed by both sides of the struggle in the apartheid-era that the National Party and the African National Congress reached an agreement on how to...
The role of Sharia in women‘s rights in Iran: promotion and restriction
The idea that a dual system exists in Muslim countries, one de jure legal system and one based on sharia, has generated a plethora of debates on the mutual relations between these two systems. This relationship is made more complex due to the fact that in some Muslim countries –as in Iran – sharia is...
The risk of neo-formalism in empirical constitutional studies
This paper argues that there is a risk of neo-formalism in certain types of empirical research on constitutionalism and judicial review. The risk is driven by the dependence of empirical legal research on quantifiable variables, such as the text of constitutions. The paper outlines the risk through discussion of several examples of neo-formalist empirical research,...
The real case for judicial review
Most justifications for judicial review are instrumental, seeking to ground it in the better protection of rights, democracy or to bring about justice. While these aims are laudable, they are also unverifiable. What is needed, then, is a non-instrumentalist argument to support judicial review. That argument is that judicial review facilitates the hearing of (justified...