The paper attempts to show how constitutional intent and the reflexive character of constitutional identity are intertwined. The first section explains the notion of constituent power as the ultimate source of a legal order. The second section explores the triple singularity of constituent power. First, it has a reflexive identity which means that “it relates...
Tag: <span>WEDNESDAY JUNE 27 2018 10:45 AM – 12:15 PM</span>
Constitutional Values as Legitimation Formulas: a systems theoretical critique
Constitutional values are too unstable and conflictual to provide for normative foundations of constitutional organisations. Values actually may become sources of legitimacy deficits and even illegitimacies themselves. National and post-national constitutions, therefore, require further institution-building and constitution-making to transform values into autonomous structures and semantics such as constitutional rights and supranational or transnational constituent polities....
Constructing the Global Constitutional Canon: Authority and Criticism in Comparative Constitutional Law
With the surge of right-wing populism in many parts of Europe and the United States, the prospects of democratic constitutionalism appear once again at risk today. Yet, in spite or perhaps because of it, comparative constitutional law is doing well. With our success, new challenges and questions have arisen. As a discipline, we must debate...
Corporations are people too? – on the status of non-human legal persons in public law
This paper asks whether non-human persons, especially corporations, can be the subject of human rights, whether they can possess such rights.The paper attempts to offer a general, conceptual analysis of this question, irrespective of the particular legal system. A danger exists, that corporate resources, which individuals seldom have, will mean that the most prevalent use...
Courts and the Populist Moment
In the post-1989 wave of new democracies, courts served as important stopgaps as the complex institutional arrangements of modern democratic governance sought to take hold. Over the past few years, insurgent populist groups have used the structures of democratic election to unwind the liberal underpinnings of post-1989 democracies. While courts remain a critical arena for...
Courts as Democracy Builders in Asia
What is the relationship between the strength of a country’s democracy and the ability of its courts to address deficiencies in the electoral process? Drawing a distinction between democracies that can be characterised as ‘dominant-party’ (for example Singapore, Malaysia, and Hong Kong), ‘dynamic’ (for example India, South Korea, and Taiwan), and ‘fragile’ (for example Thailand,...
Courts without Cases: The Law and Politics of Advisory Opinions “Actors, Advice and Law“
For the last 150 years, Canadian courts of general jurisdiction have exercised a special function. At the request of the executive, they issue advisory opinions in the absence of a live “case or controversy“. Borrowed from the 1833 Judicial Committee Act, but absent from the U.K. domestic context as well other Anglo-American systems, advisory opinions...
Data and fundamental rights
This presentation provides an overview of the relationship between data and fundamental rights at the current point in time, and directions as to where and how this relationship might continue. At the basis of this relationship are the fundamental rights to privacy and free expression; however with the digital society being more pervasive, other fundamental...
Depoliticising Contentious Politics by Law: A critical evaluation of legal politics in Post-colonial Hong Kong
This paper evaluates the different tactics of hybrid regime to cope with contentious politics by legal means. The author suggests that hybrid regimes can repress political opposition by legal instruments without creating political instability. By using a method of triangulation between history, media and case law, the author traces the institutional setting of post-colonial Hong...
Deterrence or Deference? The Constitutional Court under the Rise of Populism in Serbia
Since the populist administration took power in 2012, emerging constitutional democracy in Serbia has been gradually changed for Schmitt‘s identity and plebiscitary conception of democracy. A shift towards ‘the political guardian of the constitution‘ was justified by the claim that the consent of the majority was the crucial ground of legitimation in politics, while the...