This chapter surveys the right to life as a constitutional right in Japan, South Korea, Taiwan, Hong Kong, the Philippines, Indonesia, Malaysia, and Singapore. I begin with a recount of the history of the right to life. I argue that the right to life before WWII is typically formulated in the “due process model“, such...
Tag: <span>WEDNESDAY JUNE 27 2018 9:00 AM – 10:30 AM</span>
The real case for judicial review
Most justifications for judicial review are instrumental, seeking to ground it in the better protection of rights, democracy or to bring about justice. While these aims are laudable, they are also unverifiable. What is needed, then, is a non-instrumentalist argument to support judicial review. That argument is that judicial review facilitates the hearing of (justified...
The republican core of the case for judicial review
In this paper, I argue that Philip Pettit‘s republican conception of democracy offers the basis of a compelling normative justification for the institution of judicial review that is distinctive from the mainstream legal constitutionalist justifications and (contra Richard Bellamy), that accounts for the main objections of political constitutionalists. The paper seeks to connect this general...
The procedural side of migration in the EU. Building up democratic (and economic) resiliency through administrative flexibility
In dealing with migration a new constitutional and administrative flexibility is needed. Even administrative procedures are re-invented, as to become humane, effective, adaptive, resilient environments. They are therefore tailored on a case-by-case basis (one size doesn‘t fit all), capable of being shortened or rather enlarged and extended beyond their traditional boundaries (i.e. according to a...
Unamendability for Constitutionality
Constitutional unamendability has recently found justifications that show reverence to constituent power. Such justifications ascribe natural unamendability to the fundamental principles based on democratic founding. These accounts overlook the point of having a constitution and the values that make up constitutionality. In grounding unamendability, they wrongly take constituent power instead of constitutionality as their point...
Unreasonableness and the Shifting Language of Judicial Review
Unreasonableness is one of the three primary grounds of challenge in judicial review. In New Zealand, unreasonableness is now acquiring new purpose as a conclusory rather than primary ground of review. The finding that a decision is unreasonable is legal language to say that it is materially flawed and reviewable. It is by nature an...
Transplanting Identity Language – The Migration of “Constitutional Identity“ in European Constitutional Law
The migration of constitutional ideas is characteristic for the legal integration within the European Union. EU law and domestic law are closely intertwined, enabling permeability between the participating legal orders. This allows for constitutional ideas to migrate between these orders. A prominent examples is the jurisprudence of the domestic constitutional courts establishing limits to the...
Unamendability and Exclusion: Eternity Clauses as a Tool for Majoritarian Constitutional Projects
The scholarship on unamendability generally understands eternity clauses as in essence tied to liberal constitutionalism. Such provisions are typically seen, and to a large extent defended, as tools to entrench commitments to democracy, the rule of law and fundamental rights. Challenging this underlying assumption, this paper claims that even in otherwise liberal constitution-making contexts, eternity...
Transnational Legal Technologies Regulating Infrastructures-as-Regulation
Infrastructures of and for globalization are not governed by a comprehensive legal framework. Global commitments to the liberalization of trade in goods and services in bilateral, regional, and megaregional free trade agreements and the WTO regulate economic flows, but only to a very limited extent do they regulate the underlying facilitating physical, informational, and digital...
This is Very Urgent Indeed‘: How the 2015 ‘Refugee Crisis‘ Justified Departing From Established Processes of Law-making
During the 2015 ‘refugee crisis‘ Sweden adopted one of the strictest asylum policies in the EU through temporary legislation. A feeling of urgency marked the drafting process. Key elements of the law-making process were disregarded: e.g. rapidly drafted proposals with no analysis of the consequences and the proportionality of the measures suggested, extremely short deadlines...