Innovative developments in EU participatory democracy have recently led to a number of significant CJEU judgments that directly address the challenges it poses to the Community Method, particularly in the European Citizens‘ Initiative case law. Having analysed these judgments, this paper explores the Court‘s interpretation of participatory democracy in light of other key EU principles...
Past, Future, and Present: The New Temporality of Decision-Making Software
Administrative decisions are increasingly co-produced by public officials and specialized software. Draws on “the past,“ as represented by government databases, this software assembles data points to generate decisions about an individual‘s access to public benefits. While such decisions are, in theory, reviewed by a human before taking effect, the technical processes by which they are...
Pluralising the Rule of Law
Armed opposition groups like the Taliban in Afghanistan and the FARC in Colombia often establish their own ‘courts‘ in territory they control. Can such rebel courts be seen as embodiments of the rule of law, or does the rule or law‘s association with state sovereignty preclude this? Drawing on fieldwork on the judicial practice of...
Poland v EU. Understanding what‘s happened, rediscovering European “first principles“ and thinking counter – strategies
The history might have stopped for Polish Constitutional Court in 2015-2016. After 30 years of building an impressive resume as one of the most influential and successful European constitutional courts and living proof of “the rule of law in action“, the Court has fallen under the relentless attack of the rightwing populist government and succumbed...
Originalism and Constitutional Amendment
This paper identifies a problem that constitutional amendment uniquely poses for originalist theories of constitutional interpretation, namely: how to reconcile changes to a constitution’s text that enact a new set of understandings (‘amenders’ understanding’) against the understandings of the constitution’s framers (‘original understanding’). This problem presents a significant challenge for originalism that has largely been...
Non-Citizens‘ Rights and Judicial Review for Inclusive Democracy
Citizenship still defines boundaries of political membership and democratic participation in most states. On the other hand, many constitutions acknowledge certain, if not all, basic rights for non-citizens and enable them to challenge law or government actions when those rights are violated. Democratic theories do not require excluding those persons subject to law based on...
Nonjudicial Constitutional Interpretation: The Netherlands
This chapter focuses on the manner in which non-judicial actors engage in constitutional guardianship, using the Netherlands as a case study. Article 120 of the Dutch Constitution explicitly prohibits courts from examining the constitutionality of Acts of Parliament. Instead, other institutions ensure that constitutional rules and values are duly taken into account, especially when new...
New Dynamics in Judiciary-Executive Friction: Evidence from National Media Coverage in Bangladesh and Turkey
Instances of friction between the judiciary and the executive have become fairly common in modern politics. Although episodes of disagreement between the two branches are well documented in established democracies, little is known about informal judiciary-executive exchanges in competitive authoritarian contexts. In this paper, we examine recent episodes of judiciary-executive friction in Turkey and Bangladesh,...
New Forms of Normative Relationing in a Pluralist Legal Order: Interface Interactions in the Area of Corporate Social Responsibility
International law is confronted with an unprecedented density of normative frameworks of differing degrees of normativity (hard law, soft law) – across governance levels (international, regional, national, transnational) and around a multiplicity of topics (environment, trade, human rights). This paper addresses the overarching question of how different bodies of norms relate to each other by...
New Instruments of Judicial Activism and Their Impact on Public Policies
The present paper analyzes the impacts of judicial activism on public policies. First, it studies constitutionalism under the prism of social rights; then, the different doctrinal currents regarding the role played by the Judiciary Branch aroun social rights. Here concept of judicial activism is scrutinized and after, concrete cases before the Federal Supreme Court of...