Tom Daly will provide a considered response to all 4 panellists’ critiques, focusing on the key themes, insights and challenges posed by each panellist. Panellists will be encouraged to engage in frank discussion of the demerits and merits, omissions and oversights in the author’s argument in The Alchemists book, as well as the unanswered questions...
Secession and the Prevalence of Militant Constitutionalism Worldwide
The prevalent approach suggests that constitutions are silent about secession and may even implicitly allow it. But an examination of world constitutions reveals that the overwhelming majority of countries vigorously protect territorial integrity. This article explains how democracies have been able to conceal their fight against secessionists, by creating a large gap between “the law...
Substantive Inequality and Discrimination as the Irrational Distribution of a Benefit: A Rehabilitation
This paper attempts to give new life to a conception of the rights to equality and non-discrimination —often misleadingly called ‘formal‘ and currently less fashionable— built around irrationality in the distribution of a benefit. To be clear, this is both a conception of ‘substantive inequality‘ and discrimination. First, the paper outlines the philosophical picture of...
Strengthening the Brazilian “juristocracy“ in self-interest: the engagement of justices since National Constituent Assembly to the Super Supreme Court thirty years later
The paper analyzes the factors that allowed the expansion of the Brazilian Supreme Court since 1988 compared to other branches of government, but also in a concentration of decision-making powers vis-à-vis other judges and courts. Institutional explanations prevail, which credit the strengthening of STF to the Brazilian Constitution. But, in this process, what is the...
Strengthening the Role of the Minister of Justice in the New Statutes Concerning Courts in Poland
In 2017, three laws concerning the status of the judiciary in Poland were passed: a new law on the Supreme Court and laws amending acts on the National Council of the Judiciary and on the organisation of common courts. However, a number of their provisions evidently violate the constitution and have been highly criticised by...
Squaring the Circle? Bringing Deliberation and Participation Together in Processes of Constitution-Making
This chapter looks at recent participatory exercises in constitutional reform and aims to help further define and tailor standards for deliberative democratic good practice in constitution-making. Among the models of popular participation which the authors discuss are constitutional referendums such as Scotland‘s independence referendum; citizens‘ assemblies such as those set up in British Columbia, the...
THE (PREDICTABLY) IRRATIONAL SACRIFICE OF FREEDOM FOR SECURITY – A BEHAVIORAL PERSPECTIVE
Liberal democracies are increasingly exposed to external and internal “threats“. The reaction tends to be to limit freedom in pursuit of security. Liberal democracies risk to sacrifice the very pillars that define them – democracy, individual liberties, social tolerance – to purportedly safeguard themselves. How come? The paper argues that common biases, wrong probability calculations,...
The Institutional Competence of the NPCSC and Other Reviewers: the Possibility and Predicament of Constitutional Review in China
In the end of 2017 when the first report on the review of legal document was submitted and published by the NPCSC, constitutional review quickly drew much attention from public law scholars. Whether and how the NPCSC and other standing committees at local levels can possibly take the significant function of constitutional review can be...
The Constitution as an Obstacle
The binary distinction between “Normativism“ and “Anti-Normativism“ may fall short of serving as a stable foundation upon which the character of constitutional law is to be assessed. While an appealing heuristic , it often oversimplifies rather complex discussions underlying the question as to the specific properties of rules and ruleness, of power and authority on...