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I·CONnect

Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

May the Rule of Law be Retroactive? Berlusconi’s Case Before the European Court of Human Rights

Franco Peirone, Jean Monnet Center, NYU School of Law

On November 22, 2017, the Grand Chamber of the European Court of Human Rights (ECtHR) will have to decide on a curious petition: the former Prime Minister of Italy, Silvio Berlusconi, claims to have suffered an injustice by a retroactive application of Italian anti-corruption legislation. Indeed, on November 27, 2013, Berlusconi lost his seat in the Italian Parliament as a consequence of being convicted of tax fraud and sentenced to four years on August 1, 2013. This occurred because the combined anti-corruption legal framework (Law 190 of November 2, 2012 and Legislative Decree 235 of December 31, 2012) provides for loss of public office for those who have been sentenced to prison for a period longer than two years for crimes whose provision of incarceration is at least four years.

Berlusconi alleged that the loss of his parliamentary seat was in substance a criminal sanction and thus, according to Article 7(1) of the European Convention on Human Rights (ECHR), should have been subject to the principle of non-retroactivity. The Italian administrative tribunal of Council of State (in Decision 5222 of October 29, 2013) and Constitutional Court (in Decision 118 of June 5, 2013), instead considered it to be an administrative law measure that could properly be applied to events occurring in the past, such as the criminal acts committed by Berlusconi, which predated the adoption of the law.

The question now pending before the ECtHR is in effect to what extent and in which fields may the law rule the past. In principle, the rule of law ideal itself seems to clash with the possibility that the law can govern retroactively. The normative concept of the rule of law has been interpreted, inter alia, as a tool of orientation for human behavior; from this perspective, how could the law rule past events without offending the very basic principle of dignity that an individual’s behavior should be judged according to the legal framework operating at the time? The idea that someone could be punished for a rule that came into existence only after he had acted often repulses us. The traditional criminal law prohibition of retroactivity – nullum crimen, nulla poena sine praevia lege poenali – refers of course to this general idea.

Nonetheless, the rule of law would fail in its goal of governing human behavior if it were prevented from ruling on events that have already taken place. In truth, any legal adjudication necessarily operates on past events, and the prohibition of retroactivity only aims to set aside certain types of legal entitlements from the general and a-temporal projection of the ruling of the law. This other constitutive feature of the rule of law is expressed by the principle tempus regit actum, according to which a judgment should be formulated having due regard to the law currently in force when the judgment itself is taken. And when this is applied to acts committed under a past legal framework, the law is said to that extent to rule retrospectively.

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Published on November 17, 2017
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Can International Organisations Help to Stem Democratic Decay? (I-CONnect Column)

Tom Gerald Daly, Fellow, Melbourne Law School; Associate Director, Edinburgh Centre for Constitutional Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

What role can international organisations play in addressing state-level democratic decay? (i.e., the incremental degradation of the structures and substance of liberal constitutional democracy).[1] This question is at the forefront of my mind as I write, having travelled from the continent-wide African Judicial Dialogue in Tanzania[2] last week – convened by the African Court on Human and Peoples’ Rights under the aegis of the African Union – to attend a three-day seminar in Florence on the role of regional and international organisations in protecting liberal democracy in Europe, Latin America and Africa against a rising tide of illiberalism.[3]  Convened by Prof. Carlos Closa at the European University Institute, the seminar brings together high-level policy actors, leading scholars, and practitioners across the three regions, providing a much-needed opportunity to examine this issue in depth.

Intervention by international organisations to protect domestic democratic orders is widely accepted, at least on paper. Such mechanisms are found in (but are not limited to) the EU, Council of Europe, Organization of American States (OAS),[4] MERCOSUR, ECOWAS, the Commonwealth and La Francophonie.[5] However, serious challenges beset their use. Look to Poland last weekend, as Independence Day celebrations brought an outpouring of far-right extremists on the streets, carrying the fascist falanga symbol and chanting chilling slogans: “Pure Poland, white Poland!” and “Pray for Islamic Holocaust”.[6] As I and others have repeatedly observed,[7] that anti-democratic ebullience has been helped by the foot-dragging and dogged insistence on ‘dialogue’ by the EU’s executive arm, the European Commission, despite an increasingly sharp authoritarian turn by the governing PiS party since entering government in late 2015.

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Published on November 16, 2017
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The Njemanze ECOWAS Court Ruling and “Universal” Jurisdiction: Implications for the “Grand African Human Rights System”

–Sègnonna Horace Adjolohoun, Visiting Professor of International Human Rights and Comparative Constitutional Law, Central European University; Extraordinary Lecturer of International Human Rights Law, Centre for Human Rights, University of Pretoria; Principal Legal Officer, African Court on Human and Peoples’ Rights.

Njemanze revives the ECOWAS Court’s jurisdiction paradigm

On 12 October 2017, the Court of Justice of the Economic Community of West African States (ECOWAS Court) delivered a judgment in the matter of Dorothy Njemanze and 3 others v The Federal Republic of Nigeria concerned with abduction and sexual assault on women by police and the military.

Having found that such acts amount to a violation of the Applicant’s human rights, the ECOWAS Court awarded each of the three Applicants damages in the sum of Six Million Naira ($16,500). Even though it was acclaimed among human rights activists and surely does not come as a surprise to those who are familiar with the regional Court,[1] I believe the Njemanze ruling should be interrogated. It is indeed the first judgment ever of any regional adjudicatory body based on the Maputo Protocol on Women’s Rights in Africa. In my view, the judgment revives the debate on whether and how the ECOWAS Court assumed quasi ‘universal’ human rights material jurisdiction and what the related implications are for the African human rights system.

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Published on November 16, 2017
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Developments in Spanish Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Spanish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


–Encarnacion Roca, Judge and Vice-President of the Constitutional Court; Camino Vidal, University of Burgos-Advocate of the Constitutional Court; Argelia Queralt, University of Barcelona; Enrique Guillén, University of Granada; Leonardo Álvarez, University of Oviedo

I. Introduction

The Spanish legal year 2016 was affected by two notable political and institutional issues: a caretaker government that lasted ten months on the one hand; on the other, a growing disagreement between the Government of Catalonia (the Generalitat) and the State Government.

From January 2016 to the end of October 2016, a caretaker government governed Spain. It was presided over by Mariano Rajoy. The simple explanation for this new phenomenon in modern Spanish democracy is the failure of various parliamentary groups to reach agreements among themselves. Neither of the two groups who had traditionally been in the majority in Spain, the PP (Partido Popular – Popular Party) or the PSOE (Partido Socialista Obrero Español – Spanish Socialist Workers Party) commanded sufficient support to form a government. A more detailed explanation and the cause of this situation is that the makeup of Parliament has experienced a significant change with the arrival of two new political forces, Podemos (We Can) and Ciudadanos (Citizens). This fragmentation of the Parliament has led to the formalization in the Constitutional Court of practically unprecedented disputes between constitutional bodies.

The other significant narrative thread in Spanish political and constitutional life in 2016 was doubtless the so-called “Catalan question.” The tension between the central Government and the Generalitat was compounded by the latter’s announcement, backed by the absolute pro-independence majority in the Catalan Parliament, of a referendum on independence. This announcement implied that the referendum should preferably be held with the prior agreement of the State; otherwise, the threat was to hold a unilateral independence referendum before the end of 2017 (no doubt we will be able to read about the outcome in next year’s report, as whatever the outcome, there will be work for the Court as a result). The intensification of political activities by Catalan institutions towards independence on the one hand, and on the other, the refusal of the Government to enter into a dialogue about the possibility of a referendum, made the Constitutional Court a protagonist in a dispute which, despite being predominantly political, needed resolution in the legal arena. Further details will follow in this report.

On similar lines, the Constitutional Court examined the constitutionality of the Organic Law regulating its own functioning, which was amended in 2015 with the aim of fostering the effectiveness of its rulings. As will be seen below, and despite the questions this reform raised in the Venice Commission, the Constitutional Court validated the legitimacy of the new regulations.  Read the rest of this entry…

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The Chilean Presidential Election and the Constituent Process

–Alberto Coddou Mc Manus, Observatory of the Chilean Constituent Process

Next Sunday, November 19, Chile will celebrate one of the most important presidential elections since the return to democracy in 1990s. According to different opinion polls, Sebastian Piñera, a right-wing millionaire, will most likely receive the highest number of votes in the first round, and face either the traditional centre-left coalition (now called Nueva Mayoría), or a new left movement called Frente Amplio, in a December 17 runoff for the presidency. For several observers, the main issue at debate is whether the Chilean citizens want to continue with the transformative agenda promoted by the current government of Michelle Bachelet. In the founding manifesto of the Nueva Mayoría, political commitments included a structural education reform, a more just and progressive scheme for taxation, and a new constitution. Last year, the government decided to launch a multi-stage constituent process, including a widespread consultation stage with informal political public spheres, which ended in a document – the Citizens’ Bases for a New Constitution – that should serve as the basis for a new project of the Constitution. Apparently, the President will present a final draft before the National Congress between the first and second rounds, that is, between November 19 and December 17. Although this process has been celebrated by several regional and international organizations, such as the OECD, it has not generated a massive opinion mobilization or debate among citizens. Despite complying with international standards of transparency, participation and inclusion, a lack of political and official support has resulted in only a weak follow-up to the constitutional momentum that was initially prompted by Bachelet’s government. One of the world’s most concentrated media, a dramatic decrease in political participation, and the electoral pressures that derive from the need to prevent the right-wing coalition from returning to power have been crucial factors in the lack of political support to the constitutional agenda from the socialist President.

An alternative reading for this decaying constitutional agenda comes from the “liberal establishment.” According to Carlos Peña, one of the leading public intellectuals, and Harald Beyer, current director of Centro de Estudios Públicos, the main right-wing/liberal think-tank in Chile, Chileans do not want any structural reform to the economic and political arrangements that are embedded in the Constitution of Pinochet. For them, these arrangements have provided the framework for a transition to democracy that has been celebrated as a model for the rest of Latin America. Based on different reports and opinion polls, they have described the transformation of Chilean society and the process of capitalist modernization as creating spaces of autonomy and individual life projects that are currently being decoupled from collective dimensions of meaning. Within this thesis, they understand the dramatically low political turnout as an epiphenomenon of increasingly large spaces of autonomy present in Chilean society Moreover, they argue that the lack of interest in constitutional affairs can be explained by the same phenomenon, while advanced patterns of consumption are a sign of the modernization of Chile, something which should not generate any significant alarm or concern. Overall, for these commentators, the political system should concentrate on the immediate and material interests of Chileans, which seem more concerned with individual well-being rather on ambitious projects of constitutional imagination.

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Published on November 14, 2017
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Developments in Singaporean Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Singaporean constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


–Jaclyn L. Neo,*Jack Tsen-Ta Lee,Makoto Hong,^ and Ho Jiayun#

I.     Introduction

Constitutional law in Singapore in 2016 was dominated by two major themes—the appropriate division of powers within government and how best to legally ensure minority representation in government. One persistent framework used to explain and justify judicial caution is the green light versus red light approaches to judicial review.[1] While initially used by Harlow and Rawlings to conceptualize administrative law, this framework has been extended to constitutional cases in Singapore.[2] Indeed, one way to understand the judiciary’s approach to constitutional law is to see it through the lens of the “green-light” approach whereby the judiciary is not seen as the first line of defense in ensuring good governance. The public should “seek good government through the political process and public avenues rather than redress bad government through the courts”.[3] This contrasts with the “red-light” view of public law—“where the courts exist in a combative relationship with the Executive, functioning as a check on the latter’s administrative powers”.[4]

II.     The Constitution and the Courts

A.     The Constitution and Singapore’s Political System

A former British colony and later a former member state of the Federation of Malaysia, Singapore became an independent, sovereign republic on 9 August 1965, with a political system based on the Westminster parliamentary system encapsulated within a written constitution containing a bill of rights. Many changes have been made to Singapore’s parliamentary system since independence. These “tailor-making” exercises entailed amending the Constitution to introduce two new types of parliamentarians – the Non-Constituency Members of Parliament  (opposition candidates with the highest percentage of votes in their respective constituencies but who did not win the plurality); and Nominated Members of Parliament (non-partisan parliamentarians selected from certain fields of interest such as culture, industry, community service, and the labour movement).[5] In addition, the Group Representation Constituencies (“GRCs”) were introduced in 1984 to ensure a minimum level of minority representation in Parliament.[6] In contrast to what are now called Single Member Constituencies, where voters return one candidate to Parliament, in a GRC, voters cast ballots for teams of candidates. At least one member of each team must be from a minority community. Lastly, the office of the President was transformed in 1991 from a purely ceremonial head of state to an elected one with some (but still limited) discretionary powers. These discretionary powers include powers to veto attempts by the Government to deplete the nation’s past financial reserves; and to veto unsuitable appointments or dismissals of key public officers (e.g., judges, the Attorney-General, the Chief of Defence Force, and the Commissioner of Police).[7] Constitutional amendments taking effect in 2017 have, among other things, made the qualifications for presidential candidates more stringent and introduced the concept of “reserved elections”, which are elections reserved at first instance for candidates from designated minority communities[8] – another move to secure diversity in institutions of governance (see further discussion below).

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Published on November 14, 2017
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What’s New in Public Law

Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. Germany’s Federal Constitutional Court has ruled that a third gender option must be allowed in the registry of births.
  2. Liberia’s Supreme Court suspended the presidential run-off vote pending an investigation allegations of vote fraud.
  3. Iraq’s Supreme Federal Court ruled Kurdish secession attempt unconstitutional.
  4. The Egyptian Constitutional Court determined the jurisdiction of military courts in cases of illegal protesting.
  5. In Indonesia, the Constitutional Court held that indigenous faiths must be acknowledged by the State.

In the News

  1. In Kenya, the opposition urges a constitutional amendment to curb presidential powers.
  2. The EU Commission declares that Poland’s judicial reforms pose a systemic threat to the rule of law.
  3. In the Bahamas, the House of Assembly passes a constitutional amendment establishing the country’s first Independent Office of the Director of Public Prosecutions.
  4. In Australia, according to the Prime Minister, all MPs and Senators will have to declare their citizenship status.
  5. Syria announced its intention to ratify the Paris Climate Accord.

New Scholarships

  1. Bjorn Dressel, Raul Sanchez.Urribarri, and Alexander Stroh, The Informal Dimension of Judicial Politics: A Relational Perspective, 13 Annual Rev. of L. & Soc. Sci. 413 (2017) (proposing a relational approach to studying judicial politics in non-western societies).
  2. Ryan Abbott, Artificial Intelligence, Big Data and Intellectual Property: Protecting Computer-Generated Works in the United Kingdom, Research Handbook on Intellectual Property and Digital Technologies (Tanya Aplin, ed., Edward Elgar Publishing Ltd, Forthcoming) (providing an up-to-date review of UK, EU and international law regarding intellectual property and computer-generated works).
  3. Anna Su, Varieties of Burden in Religious Accommodations (2017) (arguing that it is imperative to acknowledge different kinds of burden of proof in religious accommodation claims)
  4. Stephen Gardbaum and Richard H. Pildes, Populism and Democratic Institutional Design: Methods of Selecting Candidates for Chief Executive in the United States and Other Democracies (2017) (providing an historical and comparative analysis of the different ways in which the United States and other major democracies select candidates for president or prime minister, and of how this important institutional design issue can enable or constrain populism).
  5. Michael B. Rappaport, Is Proportionality Analysis Consistent with Originalism?, 31 Diritto Pubblico Comparato Ed Europeo (2017) (arguing that originalism is not necessarily inconsistent with proportionality analysis).
  6. Marta Simoncini and Gert Straetmans (eds), Sixty Years Later. Rethinking Competing Paradigms for EU Law in Times of Crisis, 9 Perspective on Federalism (2017) (examining the concept of federalism from a comparative perspective).
  7. Laura Pelucchini, L’eredità della primavera araba, ovvero il lungo inverno delle donne tunisine, 2 Rivista Di Diritti Comparati (2017) (discusing the political and constitutional challenges facing Tunisia after the 2011 Revolution).
  8. Deirdre Curtin, Brexit and the EU Area of Freedom, Security and Justice: Bespoke Bits and Pieces (2017) (exploring the existing opt-outs, specifically in the field of the AFSJ to elaborate possible paths of flexible integration for the future of the UK as a third country after Brexit)
  9. Gábor Halmai, Second-Grade Constitutionalism? The Cases of Hungary and Poland, 1 CSF-SSSUP Working Paper (2017) (discussing recent deviations from the shared values of rule of law and democracy—the ‘basic structure’ of Europe—in some of the new Member States in East-Central Europe, especially in Hungary and Poland)

Call for Papers

  1. The Younger Comparativists Committee of the American Society of Comparative Law (YCC) invites submissions for the Phanor J. Eder LL.B./J.D. Prize in Comparative Law, in connection with its Seventh Annual Conference, to be held on April, 20.21 2018, at Case Western University in Cleveland, Ohio.  The Phanor J. Eder Prize is named in honor of the first president of the American Society of Comparative Law.
  2. The Inner Temple announces the launch of its fourth triennial book prize which celebrates and rewards outstanding contributions to the understanding of law.
  3. The Melbourne Law School invites applications from qualified scholars for a PhD scholarship as part of the Laureate Program in Comparative Constitutional Law.
  4. The Indiana University Global Gateway Network has issued a call for papers for its 3rd Global Meeting Conference. The Conference theme is “Slavery Past, Present & Future.”
  5. The African Network of Constitutional Lawyers (ANCL) in collaboration with the Department of Law at the University of Botswana and partners is organizing the next ANCL Biennial Conference in Gaborone, Botswana, October 11.14, 2018.
  6. The University of Detroit Mercy Law Review announces its annual academic symposium to be held on March 23, 2018 at University of Detroit Mercy School of Law.  It is titled: The Return of Sanctuary Cities: The Muslim Ban, Hurricane Maria, and Everything in Between.
  7. The Parul Institute of Law welcomes submissions for Seminar on Constitutional Challenges in the Era of Globalization to be held on Nov. 25 in Vadodara, Gujarat, India.
  8. The Istituto Di Diritto, Politica E Sviluppo welcomes submissions for a seminar under the theme of “Explaining the CJEU’s Authority towards National Courts: A Dynamic Approach.”

Elsewhere on Blogs

  1. Ricardo Arredondo, Attack Against the Argentine Embassy in Chile: A Violation of International Law, Jurist
  2. David M. Crane, Gassing International Law, Jurist
  3. Daniel Sarmiento, On Cockroaches and the Rule of Law, Verfassungsblog
  4. Marci A. Hamilton, The Russian Meddling in the 2016 Election: The Internet Meets the Democratic System, Verdict
  5. Igor De Lazari, Antonio G. Sepulveda and David S. Kemp, The Changing Scope of the Freedom of Expression in the United States and Brazil, Verdict
  6. Michael B. Mukasey, Don’t Rebuild the Surveillance ‘Wall’, The Wall Street Journal
  7. Katie King, How Netflix is breeding a new generation of miscarriage of justice lawyers, Legal Cheek
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Published on November 13, 2017
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Developments in Polish Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Polish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


–Professor Tomasz Tadeusz Koncewicz, Director of the Department of European and Comparative Law, University of Gdańsk; Professor Marek Zubik, Director of the Department of Constitutional Law, University of Warsaw, Judge of the Polish Constitutional Tribunal; Dr Magdalena Konopacka, Department of European and Comparative Law, University of Gdańsk; Karol Staśkiewicz, (L.L.M.), Researcher, Department of Constitutional Law, University of Warsaw

I. Introduction

In 2015-2016, the Polish constitutional scene was reshaped beyond recognition. The Polish Constitutional Tribunal (hereinafter referred to as “Tribunal”) was emasculated to the point that constitutional review was rendered meaningless and reduced to mere rubber—stamping of the majority. In normal times, review of the constitutional jurisprudence would comprise “ordinary” constitutional controversies that made their way onto the Tribunal’s docket. Yet, given the unprecedented attack from the ruling majority on the Tribunal’s stature and functions and the constraints of space, the authors had to make a difficult choice of skipping the “business as usual” case law[1] and instead focusing entirely on the “existential jurisprudence” of the Tribunal. The “existential jurisprudence” aims at safeguarding the essence of judicial review in Poland and saving the Tribunal from complete emasculation. When the institution’s very survival is on the line, everything else must be pushed to the background.

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Developments in French Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on French constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


Corinne Luquiens, Member of the Conseil constitutionnel, Nefeli Lefkopoulou, Ph.D. Candidate at Sciences Po Law School, Eirini Tsoumani, Ph.D. Candidate at Sciences Po Law School, & Guillaume Tusseau, Professor of Public Law at Sciences Po Law School, Member of the Institut universitaire de France

I. Introduction

2016 was an important year for the French Conseil constitutionnel. From an organic viewpoint, one third of its members were renewed. From a substantive viewpoint, the new bench had to face the consequences of the continuing application of the state of emergency that has been in force since November 2015. In the 113 rulings it handed down, the Conseil made use of all the jurisdictional techniques it has developed over the years in order to control the activities of a Parliament that was, despite a socialist majority in the National Assembly, highly divided.

II. The Constitution and the Court

The drafters of the 1958 Constitution meant to introduce crucial changes regarding the way the Constitution was made binding on public authorities. According to Michel Debré, “The creation of the Conseil constitutionnel manifests the will to subordinate the law, that is to say the will of Parliament, to the superior rule laid down by the Constitution. It is neither in the spirit of the parliamentary system, nor in the French tradition, to give judges, that is to say to give every litigant, the right to question the value of the law. The project has therefore devised a special institution that can only be set in motion by four authorities: the President of the Republic, the Prime Minister and the Presidents of the Houses of Parliament. To this Conseil other assignments were given, including the review of Parliament’s standing orders, and the litigation related to contested elections, in order to avoid the scandal of partisan invalidations. The Constitution thus created a weapon against the deviation of the parliamentary system.”[1]

The Conseil consists of the former Presidents of the Republic and nine appointed members, serving non-renewable terms of nine years. One-third of them are appointed every three years. Three, among whom is the President of the Conseil, are appointed by the President of the Republic, three by the President of the National Assembly, and three by the President of the Senate. The Parliament’s commissions are allowed to veto a nomination with a supermajority of three-fifths. In March 2016, three new members were appointed to the Conseil, among whom its President, Laurent Fabius, is the former Minister of Foreign Affairs.

The Conseil’s most significant function in the French statute-centred (légicentriste) context is that of reviewing the constitutionality of legislation. The standard of constitutional review is not limited to the constitutional text strictly understood. Since the 70-39 DC and the (more famous) 71-44 DC rulings, it has grown into a wider “constitutionality block” consisting of the Preamble to the Constitution, the Declaration of the Rights of Man and of the Citizen (1789), the Preamble to the Constitution of 1946, the Charter for the Environment, and several unwritten “fundamental principles acknowledged in the laws of the Republic,” principles, and objectives having constitutional value (eg the fight against tax evasion, the protection of the public order, and the pluralism of ideas, thoughts, and opinions). As a consequence, both civil and political “first generation” rights and social “second generation” rights have been constitutionalised.

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Public Law in Crisis? (I·CON Volume 15, Issue 3: Editorial)

We invited Sabino Cassese, member of the I.CON Board of Editors, to write a Guest Editorial.

 Public law in crisis?

  1. Developments in the last century

Public law has greatly changed in the last century. It has lost several elements: the guidance from Roman law (Section 1.1); the compass of sovereignty (Section 1.2); its exclusively nationalistic approach (Section 1.3); its internal boundaries and its own specificity (Section 1.4); its position as authoritarian law (Section 1.5); unity (Section 1.6); stability (Section 1.7); (8) its own method (Section 1.8); and its own “official” history (Section 1.9). However, it has gained much else, due to its liberation from the many limitations previously encumbering it.

Let me examine each of these developments in turn.

1.1. Roman law

Carl Schmitt wrote that the rebirth of Roman law was the forerunner of modern public law[1]. Indeed, Roman law provided public law with a “grammar” and an organizing force. The “founding fathers” of public law scholarship, Paul Laband, Otto Mayer and Rudolf von Gneist in Germany, Maurice Hauriou and Léon Duguit in France, Vittorio Emanuele Orlando and Oreste Ranelletti in Italy, all began their scholarly careers as scholars of Roman law, specializing in and even teaching Roman law.

The British legal theorist John Austin, known for his analytical approach to jurisprudence and his theory of legal positivism, in his 1863 Lectures on Jurisprudence,  noted that “turning from the study of the English, to the study of Roman law, you escape from the empire of chaos and darkness, to a world which seems, by comparison, the region of order and light.”[2]

In one of his “Conversations,” Goethe noted that Roman law is like a duck: it sometimes vanishes underwater, but always to resurface. Today, the duck appears to have decisively disappeared.[3] Anglo-Saxon law is now the point of reference. The study of Roman law is slowly taking its proper and more limited role: is becoming one of the means to understand the reasons for the success of the Roman Empire. Therefore, the study of Roman law is slowly taking an historical approach and leaving the world of the “living law.”

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Published on November 10, 2017
Author:          Filed under: Editorials