My paper is concerned with the challenge of canon construction in European constitutionalism. This challenge stems from the unique, dynamic character of European constitutionalism, marked by the continuing presence of competing claims to ultimate legal authority. Accordingly, the paper suggests that our discussion should focus on constructing a canon which would help manage the conflicts...
Tag: <span>WEDNESDAY JUNE 27 2018 10:45 AM – 12:15 PM</span>
A Coup Against Constitutional Democracy: The Case of Hungary
The paper argues that this current Hungarian constitutional system was made possible by FIDESZ‘ anti-pluralist nationalist populism, and commitment to an ‘illiberal state‘. To achieve this aim the populist government misuses the country‘s lack of constitutional culture, and violates the values of constitutional democracy in the name of its own understanding of ‘national constitutional identity‘.
A Dialogic Approach to the Place of Judges in Democracy
El siguiente trabajo se propone contrastar ciertas visiones que sostienen que los jueces deben mantener una posición aislada frente a la sociedad y las restantes ramas de gobierno, con una propuesta dialógica según la cual la interacción deliberativa es deseable, en la medida que contribuye a dotar de imparcialidad las decisiones públicas. A fin de...
Accommodating Compound Peoples – Wedding Votes and Bargains
In states composed of different ethnic, religious or linguistic groups, unfettered majoritarian democracy can threaten diversity or stability or both. Minority groups risk ending up as permanent losers and have few options than to assimilate or to alienate from the state. The first option endangers the group‘s identity; the second can lead to separatism and...
Active Virtues: Case Attraction in Constitutional Courts
Research shows that “successful“ constitutional courts control their own agendas. Specifically, they avoid controversial cases to protect their legitimacy. We show that the power to avoid controversial cases has a logical counterpart: the power to attract uncontroversial cases. By attracting such cases, and resolving them to the satisfaction of powerful actors and the broader society,...
Alternatives to the Invalidation of Constitutional Amendments
It has become increasingly common for courts in constitutional democracies to invalidate constitutional amendments. Indeed it appears to be the case that the unconstitutional constitutional amendment doctrine has become a global trend in the domestic constitutional law of states. Courts anchor their use of the doctrine of unconstitutional constitutional amendment in what they regard as...
An Agent-Based Model of Judicial Strategy
Comparative scholarship in constitutional law and political science suggests that the power of courts to exercise judicial review depends partly on the judges’ strategic behaviour; judges can build this power only if they are mindful of how other actors are likely to react to their decisions. Arguably, compliance is the most immediate measure of judicial power. An assertive court is not much good to anyone...
Brexit, Migration and Politics of Fear
On face value, the EU referendum concerned whether the UK chose to remain within or chose to leave the EU. Despite the choice to leave the EU, a major political fault line emerged between the ‘remainers‘ and the ‘leavers‘ that continues to dominate political life in the UK. The campaigns conducted by the two camps...
Brexit: Paradoxes of Community and Sovereignty
This paper will consider the process and substance of Brexit against the backdrop of federalism, broadly conceived in terms of power division and sharing between different levels of government. It will consider the strains placed on the Community project by Brexit, and the strains that have also been placed on conceptions of UK sovereignty by...
Brexit‘s Effect on State Architecture: Subsidiarity, Devolution, Federalism and Independence
In an earlier article, some years before the Brexit Referendum, I examined the current ‘architecture‘ of the British state, in particular the way in which governmental power was distributed among the nations of the United Kingdom. The theme of this chapter was to show how the continuing (and, as James Bryce argued, inevitable) tension between...