Although the Chinese constitution includes the notion of socialist rule of law, it is generally assumed that this is not a justiciable principle that courts can apply in practice. The meaning of the principle is determined in authoritative documents of the Chinese Communist Party. Based on newly available court decisions, the paper explores in what...
Tag: <span>TUESDAY JUNE 26 2018 9:00 AM – 10:30 AM</span>
The Art and Science of Constitutional Legislation
Much of the existing Canadian literature on deference focuses on courts. What remains underexplored is how the Parliamentary process and executive policy design and constitutional review might inform the Court‘s deference analysis. Drawing on the field of Gesetzgebungstheorie, or legisprudence, this paper considers whether deference analysis should be influenced by parliamentary work, including travaux préparatoires,...
Taiwan, Hong Kong, and the Ambivalent Relationship between Law and Democracy
Hong Kong and Taiwan score high on “rule or law“ but diverge on democracy. The “one country, two systems“ arrangement for Hong Kong, promising gradual progress toward democracy, and the happenstance of post-colonial Hong Kong‘s inherited legality and non-democracy contrast with Taiwan‘s concurrent democratization and rising rule of law. The contrasting cases offer potential lessons...
Taiwan‘s Indigenous People and the Challenge of Taiwanese Constitutionalism
In Taiwan, the advancement of indigenous values has been affected by the development of a national consciousness based on Confucian and liberal values. This process overlays deep political fissures between those individuals who equate Taiwanese identity with Chinese identity and those who assert a separate Taiwanese cultural and political identity. The Taiwanese identity combines Confucianism,...
State Constitutional Pluralism
The complexity of engagement among multiple legal systems is now an increasingly studied subject. However, despite a broad range of legal pluralism scholarship examining the presence and engagement of state/non-state as well as state/state legal systems, much constitutional law scholarship tends towards a monist perspective in examining state constitutions. While constitutional pluralism has emerged as...
State of Exception and Literature
In this panel, I seek to demonstrate a new dimension to understand literature and its connection to law. In the title of my paper, I refer to “state of exception’,“ an expression that lately has been overused. In my hunch, we may make out from a different perspective. To put it in more blunt terms:...
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 Impact of Indigenous Groups on New Zealand and American Constitutionalism and Law
Embedded within the New Zealand and the American legal systems are a series of rules concerning the peoples who inhabited the area prior to colonisation. These rules involve the establishment of European sovereignty, the ongoing status and use of indigenous lands, indigenous political institutions, the interpretation of treaties, and fiduciary obligations. The development of these...
The invisible separation of powers
When examining the proper functioning of the principle of the separation of powers not only the institutional design of state institutions and their formal powers shall be taken into consideration. Legal institutions with primary functions not related to the system of the separation of powers can also affect the sphere of action of state powers,...
The identity of Public Law in view of the Constitutionalisation, Deconstitutionalisation and Europeanisation of German Administrative Law
While constitutionalisation constitutes a common phenomenon of European administrative legal orders, German administrative law may be regarded as probably the most constitutionalised administrative law system, culminating in Fritz Werner‘s understanding of ‘Verwaltungsrecht als konkretisiertes Verfassungsrecht‘ (‘administrative law as concretised constitutional law‘). Against this background, the article in a first step not only elaborates on the...