Two processes run side by side: On the one hand, the vanishing of the formal constitutional amendment process, illustrating the diminishing power of the Indian Parliament as an agent as well as a guardian of constitutional change. On the other side, the rise of the Indian Supreme Court, first, as a powerful veto-player, then as...
The waiver of human rights as a new constitutional paradigm
Based on jurisprudence from the Supreme Court of Canada and the ECHR, this paper aims to demonstrate that the waiver of human rights is no longer exceptional, but rather a new constitutional paradigm. The rise of the waiver paradigm could be explained by the current struggle for recognition of pluralism, the constitutional principle of autonomy...
The Theory of the Dual State Revisited : Dual Constitutionalism in Thailand, Turkey and Pakistan
In Ernst Fraenkel‘s account, the Dual State is characterized by two relatively autonomous spheres: the normative and the prerogative one (or what some have called the “deep state“). In the prerogative State, the State acts with discretion and its actions are not subject to judicial review. Most constitutions are characterized by coexisting liberal and authoritarian...
The significance of ‘consensus‘
Why if at all should a perceived (emerging) regional consensus on human rights affect states‘ margin of appreciation? The European Court of Human Rights‘ practice in this regard may respond to a shared regional ‘identity‘ and reduce the fear of supranational interference – but it also runs the risk of failing to uphold human rights.