Measuring the human rights performances on the international rule of law scale on the part of only insufficiently democratised states – like Islamic Republic of Iran and Egypt – requires specific indications. These indicators help to classify the factual human rights practices of governments and judges of Supreme Constitutional Courts and analogue institutions, such as,...
What Value for Consensus? Human Rights, Normative Force, and Universality
The ECtHR sometimes relies on a notion of European consensus. Reasons why consensus is seen as important include values of identity, and democratic decision making. The question is to what extent relying on consensus is justified. I propose to understand the debate on the universality of international human rights as a relevantly similar concern about...
United We Fall: Taking back control in an interdependent world
The paper traces illiberal nationalist challenges to a liberal international order to a (neo)liberal legalism that subjects us to the imperium of managerialist states, international law/institutions and asymmetrical markets that wield privileged, discretionary and unilateral power over still nationally-configured political communities. In subjecting us to the forces of law and reason, they trample over particularistic...
Unreasonableness and the Shifting Language of Judicial Review
Unreasonableness is one of the three primary grounds of challenge in judicial review. In New Zealand, unreasonableness is now acquiring new purpose as a conclusory rather than primary ground of review. The finding that a decision is unreasonable is legal language to say that it is materially flawed and reviewable. It is by nature an...
Unamendability and Exclusion: Eternity Clauses as a Tool for Majoritarian Constitutional Projects
The scholarship on unamendability generally understands eternity clauses as in essence tied to liberal constitutionalism. Such provisions are typically seen, and to a large extent defended, as tools to entrench commitments to democracy, the rule of law and fundamental rights. Challenging this underlying assumption, this paper claims that even in otherwise liberal constitution-making contexts, eternity...
Towards an Analytical Framework of Constitutionalism in East Asia
Recent years have witnessed the reemergence of discussions on Confucian constitutionalism, communitarian constitutionalism, or Asian values. Despite the differences of these concepts, all reject Western liberal constitutionalism, emphasizing that Asian countries should prioritize social and economic rights over civil and political rights. Nevertheless, this dichotomy in fact does not hold in Taiwan and many other...
Three Approaches to Political Protest: A Hong Kong, Taiwan and Mainland China Comparison
Different types of regimes face distinct political challenges, perceive and define political protest differently and develop unique measures to manage their political crises. This paper first identifies three distinct approaches to political protest: a security-based approach, a rule-based approach, and a rights-based approach, and then uses Hong Kong, Taiwan and Mainland China as case studies...
Towards a Judicial Analysis Focused on the Effects of the Adverse Treatment: What Implications for Anti-Discrimination Law?
The courts have originally approached discrimination through its purest and cleanest manifestation, as an intentional act, intended to adversely treat a person or a group, resentfully considered because of the assignment of a protected characteristic. While the perception of discrimination by judges has considerably evolved in a few decades, new forms of discrimination are frequently...
The Trojan Horse of Abe’s Constitutional Amendment Proposal
This paper argues that the new and very modest formal amendment to Article 9 pushed by PM Abe, designed to avoid controversy and debate, could serve to effectively lock in the “reinterpretation“ as a de facto informal amendment to the constitution. From this perspective, the apparent reversal in the scope of Abe‘s amendment ambitions, and...
The Separation of Powers from an Evolutionary Perspective: Reconciling Power and Freedom
Arguably no idea has been more central to democratic government than the separation of powers. In essence, we can distinguish two models of separation of powers: the “classic“ model emerged in reaction to the centralization of powers typical of absolutist states as an effort to protect individual liberties and. the “social“ model which reflects the...