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Blog of the International Journal of Constitutional Law

How Information Warfare Challenges Liberal Democracies

Jill Goldenziel, Marine Corps University-Command and Staff College; Fox Leadership International Affiliated Scholar, University of Pennsylvania. Professor Goldenziel’s views do not represent those of her University or any other arm of the U.S. Government.

[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 2019, see here.]

Freedom of speech and expression and the right to privacy are two constitutional rights that democracies hold most dear. These freedoms are entrenched in the constitutions of most democracies around the world.  Freedom of speech is especially prized in the United States, which has some of the least restrictive laws on freedom of speech in the world. The right to privacy is also especially important in democracies.  In Europe, the right to privacy has been a hot-button legal issue in the context of the Internet, and a related “right to be forgotten” has been developing. While the right to privacy is not explicitly enumerated in the U.S. Constitution, it has developed in interpretation of many Constitutional amendments, including the Fourth, Fifth, Ninth, and First. U.S. citizens are fiercely protective of their right to privacy against government interference of their freedom of speech.  The Privacy Act of 1974, enacted while Americans recoiled from Watergate and the Soviet government’s efforts to surveil Soviet citizens, places significant restrictions on the U.S. Government’s ability to collect data related to the First Amendment activities of U.S. persons.

As detailed in my new article, “The New Fighting Words: How U.S. Law Hampers the Fight Against Information Warfare,” (with Manal Cheema), enemy states are now weaponizing these prized freedoms against democracies. Russia’s information warfare campaigns against Estonia, the Ukraine, and the U.S., for example, have been well publicized. According to the U.S. Department of Justice, foreign-influenced operations like Russia’s include covert actions intended to “sow division in our society, undermine confidence in democratic institutions, and otherwise affect political sentiment and public discourse to achieve strategic geopolitical objectives.”[1] Well before the 2016 U.S. Presidential election, Russia was using online sources disguised as news outlets to produce and distribute fake news, targeting key voter groups. Russia’s sophisticated information warfare campaign against the integrity of the U.S. electoral process continues as it seeks to influence the 2020 presidential election.

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Published on April 24, 2019
Author:          Filed under: Analysis
 

Five Questions with Judge Lech Garlicki

Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin

In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about her research.

This edition of “Five Questions” features a short video interview with Lech Garlicki, former judge on the Constitutional Court of Poland (1993-2001) and on the European Court of Human Rights (2002-12), and currently a Visiting Professor of Law at the Washington University in St. Louis.

Asked to identify his favorite English-language publication among his entire body of work thus far, Garlicki chose “Constitutional Courts Versus Supreme Courts,” available for download here.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com.

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Published on April 23, 2019
Author:          Filed under: Reviews
 

What’s New in Public Law

Chiara Graziani, Ph.D. Candidate and Research Fellow in Constitutional Law, University of Genoa (Italy)

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. The European Court of Justice heard a case against the discriminatory labelling of Israeli products.
  2. The European Court of Human Rights found that Ukraine violated the fair trial principle, due to domestic courts’ approach to evidence in a criminal case.
  3. The Supreme Court of India issued an interim order for political parties to disclose details on funding raised through electoral bonds.
  4. The International Criminal Court rejected the request to investigate alleged crimes against humanity and war crimes in Afghanistan.
  5. The Supreme Court of Jamaica ruled that the National Identification and Registration Act is unconstitutional because it violated the right to privacy.
  6. The Supreme Court of Myanmar heard the appeal of two journalists who have been jailed for violating a colonial-era official secret law.
  7. The Constitutional Court of South Korea ruled that national legislation banning abortion is unconstitutional.
  8. The German Federal Constitutional Court held that statutory exclusion from voting rights of persons placed under full guardianship and of offenders confined in a psychiatric hospital must not apply in the upcoming European elections.

In the News

  1. Lawmakers in the US introduced a bill to the House of Representatives that would treat India as a NATO ally for the purposes of the Arms Export Control Act.
  2. The US Court of Appeals for the 9th Circuit blocked a lower court judgment that stopped the Trump administration from forcing asylum seekers to wait in Mexico while their cases move through US courts.
  3. Advocate General Tanchev delivered his opinion to the European Court of Justice in which he argued that the Polish government had violated its obligation to guarantee the independence of the Supreme Court.
  4. Several Jewish organizations called on the US Congress to pass a bill ending President Trump’s travel ban.
  5. A Sudanese General stepped down as transitional leader after President al-Bashir’s ouster.
  6. The Parliamentary Assembly of the Council of Europe urged action against money laundering.
  7. The UK Counter-Terrorism and Border Security Act 2019 came into force, two months after Royal Assent.
  8. A UK judge ordered Ukip to disclose details on how it used £300,000 of political data services in the run-up to the 2016 Brexit vote and the 2015 General Election.
  9. Justice Gascon will retire from the Supreme Court of Canda.
  10. The Parliament of Egypt approved constitutional amendments that will lengthen President Abdul Abdul Fattah al-Sisi his current term of office to six years, allow him to stand one more time, and grant increased powers.
  11. An Israeli Court upheld the deportation of Human Rights Watch’s local director.

New Scholarship

  1. Tom G. Daly and Brian C. Jones, Parties versus Democracy: Addressing Today’s Political Party Threats to Democratic Rule, International Journal of Constitutional Law (forthcoming 2019) (arguing that contemporary political-party threats frustrate the possibility of remedial action afforded by existing public law and policy mechanisms)
  2. Tom G. Daly, Populism, Public Law and Democratic Decay in Brazil: Understanding the Rise of Jair Bolsonaro (2019) (analyses the diffuse decay of Brazil’s democratic system up to the holding of the 2018presidential elections and the rise of Jair Bolsonaro)
  3. Sofia Galani, Terrorist Hostage-taking and Human Rights: Protecting Victims of Terrorism under the European Convention on Human Rights, 19(1) Human Rights Law Review (2019) (examining the positive and procedural obligations of states towards victims as outlined by the European Court of Human Rights in its Tagayeva v. Russia decision and assessing how this case might shape future responses to terrorist attacks)
  4. Ester Herlin-Karnell, The Constitutional Structure of Europe’s Area of ‘Freedom, Security and Justice’ and the Right to Justification (forthcoming 2019) (examining EU security regulation and its constitutional implications, in light of issues such as the refugee and migration crisis and the terrorist threat)
  5. Anna-Bettina Kaiser, Niels Petersen, Johannes Saurer (eds.), The U.S. Supreme Court and Contemporary Constitutional Law (2019) (analysing the jurisprudence of the US Supreme Court in the Obama era)
  6. Jannemieke Ouwerkerk, Judit Altena, Jacob Öberg and Samuli Miettinen (eds.), The Future of EU Criminal Justice Policy and Practice (2019) (exploring challenges of EU criminal law from a multidisciplinary perspective)
  7. Mathias Reimann, Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (2019) (providing an overview of the current state of comparative legal scholarship, analyzing its methodology, and setting an agenda for future research)
  8. Arianna Vedaschi, The Dark Side of Counter-Terrorism: Arcana Imperii and Salus Rei Publicae, 66(4) American Journal of Comparative Law (2019) (examining the use of state secrecy by advanced democracies in counter-terrorism operations and arguing a judicial review of secrecy claims)
  9. Stuart Wallace, The Application of the European Convention on Human Rights to Military Operations (2019) (exploring the challenges arising from the application of the European Convention on Human Rights to military operations and providing guidance on how to interpret the Convention in such cases)
  10. Susan Willis McFadden, German Citizenship Law and the Turkish Diaspora, 20(1) German Law Journal (2019) (exploring the historical foundation of Turkish migration to Germany and the evolution of legislation dealing with the matter)
  11. Adrienne Yong, The Rise and Decline of Fundamental Rights in EU Citizenship (2019) (arguing that the relationship between EU fundamental rights and EU citizenship has weakened in recent years due to increasing Euroscepticism and dissatisfaction with the EU project)

Call for Papers and Announcements

  1. The Minerva Center for Human Rights at the Hebrew University of Jerusalem and Tel-Aviv University invites applications for a Postdoctoral Fellowship in Transitional Justice. The deadline to submit applications is April 28, 2019.
  2. The European Law Institute calls for submissions for the 2019 ELI Young Lawyers Award. Papers must be submitted by April 30, 2019.
  3. The European Yearbook of Constitutional Law invites submissions for its 2020 issue on “The City in Constitutional Law.” The deadline to submit proposals is April 30, 2019.
  4. The Centre for Human Rights of the University of Pretoria issued a call for abstracts for the “International Conference on the protection of forced migrants in Africa.” The deadline for submission of abstracts is April 30, 2019.
  5. Di Tella Law School (Buenos Aires) invites submissions for a conference “Dialogues on International Law.” The deadline for submission of abstracts is May 1, 2019.
  6. The International Nuremberg Principles Academy organizes a conference on “Synergies between International Criminal Law and UN Agenda 2030,” to be held in Nuremberg on May 3-4, 2019.
  7. The Italian law Journal DPCE online seeks five student executive editors. The deadline for applications is May 15, 2019.
  8. The British Institute for International and Comparative Law organizes its Annual Harry Weinrebe Memorial Lecture on the theme “Do Human Rights Need Rescuing?” The lecture will take place in London,  on May 22, 2019.
  9. The Koç University UNESCO Chair on Gender Equality and Sustainable Development organizes a summer academy on “Women’s Empowerment for Sustainable Development.” Applications for scholarships are to be sent by May 31, 2019. Regular applications are open until July 14, 2019.
  10. The Faculty of Law of the University of Hamburg invites submissions for the 3rd Hamburg Young Scholars’ Workshop in International Law. Abstracts and CVs are to be sent by May 31, 2019.
  11. The South Asian University of New Dheli calls for abstracts for the Conference on “South Asia in the Era of International Courts and Tribunals.” Interested scholars can send their abstracts and CVs by June 30, 2019.
  12. The Melbourne Journal of International Law invites submissions for its volume 20(2). Submissions must be sent by July 1, 2019.
  13. The Institute for Comparative Federalism of Eurac Research in Italy offers interested scholars an opportunity for a short-term research stay. The deadline for applications is July 1, 2019.
  14. The Société de législation comparée organizes a comparative law essays competition. Submissions must be sent no later than October 15, 2019.

Elsewhere Online

  1. David Beamish, Reducing the Size of the House of Lords: Two Steps Forward, Two Steps Back, The Constitution Unit
  2. Iryna Bogdanova, The WTO Panel Ruling on the National Security Exception: Has the Panel ‘Cut’ the Baby in Half?, EJIL: Talk!
  3. Patryk I. Labuda, A Neo-Colonial Court for Weak States? Not Quite. Making Sense of the International Criminal Court’s Afghanistan Decision, EJIL: Talk!
  4. Piotr Bogdanowicz, Three Steps Ahead, One Step Aside: The AG’s Opinion in the Commission v. Poland Case, Verfassungsblog
  5. Martin Kwan, When Does a Person Have an Intellectual Disability? The Insights of the US Supreme Court, OxHRH Blog
  6. Herb Lin, Principles of AI Governance and Ethics Should Apply to All Technologies, Lawfare
  7. Menelaos Markakis, A Trojan Horse in the EU? The Curious Case of EU27+1, UK Constitutional Law Association Blog
  8. Progressive Lawyers Group, Hong Kong Rule of Law Report 2018, Hong Kong Free Press
  9. Wojciech Sadurski, So, It’s the End of Liberal Democracy? Think Again, Euronews
  10. Raphael Schäpher, Practice as Method. Germany Rehabilitation in and through International Law, The Völkerrechtsblog
  11. Francesca Strumia, Unemployment, Residence Rights, Social Benefits at Three Crossroads in the Tarola Ruling, EU Law Analysis
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Published on April 22, 2019
Author:          Filed under: Developments
 

Inherent Limits on the Override Power after the Israeli Election

Rivka Weill, Harry Radzyner Law School, IDC

Within the first twenty-four hours after the Israeli election, the future political partners of PM Netanyahu raised the demand to enact a general override clause as part of the Basic Laws. They believe that this override clause will empower them to govern without the intervention of the High Court of Justice. The Ultra-Orthodox parties hope to use the override to enact a statute that will exempt Ultra-Orthodox men from the mandatory army service. PM Netanyahu believes that the override may immunize him from criminal prosecution while in power. The enactment of a general override power will authorize the Israeli legislature (Knesset) to enact a statute stating explicitly that it is valid despite its infringement of constitutional rights and values. With such a declaration, the legislature will take public responsibility for its actions and at the same time immunize the statute from invalidation by the courts. A somewhat similar override clause exists in the Canadian Charter. No less than the authority to have the “last word” on the protection of constitutional rights and values is at stake. Will it be accorded to the Israeli courts or to the legislature? The political discussion is conducted as though all the issues are open to bargaining, from the very authority to override to the design of the override clause.

Granting the Israeli legislature a general override power is consistent with the constitutional history of the State of Israel prior to the constitutional revolution. During the founding era (1948-1992), the Knesset consistently overrode section 4 of Basic Law: The Knesset, which guarantees equal elections, and requires 61 Members of Knesset (MKs) to amend it. When the Court invalidated a law for violating section 4 of the Basic Law, the Knesset often re-enacted the law by a majority of 61 MKs, declaring that “to remove any doubt” the law is retroactively effective from the date of its original enactment. The Knesset paid “lip service” to judicial review power during this period, and the Court, including Justice Barak, approved the legitimacy of this practice.[1]

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Published on April 18, 2019
Author:          Filed under: Analysis
 

Indonesia’s Pesta Demokrasi in the Face of Regressing Constitutional Democracy

Dian A H Shah, National University Singapore Faculty of 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 2019, see here.]

On April 17, Indonesians will head to the polls for the first time since the 20th anniversary of the 1998 Reformasi movement that led to the end of Suharto’s authoritarian rule. The significance of the upcoming elections, however, goes beyond this. It could well be the most important ‘democracy fest’ (pesta demokrasi) that the country has ever witnessed – one that is set against the backdrop of regressing democratic and constitutional values.

For the first time in Indonesian history, the president, vice-president, and members of the legislature (Dewan Perwakilan Rakyat, DPR) will be elected on the same day. Previously, in 2004, 2009, and 2014, legislative elections preceded presidential elections.[1]  This sequence is significant because even though the president and vice-president are directly elected, the results of the legislative elections have been important in helping candidates to gauge and cobble together their support base for the presidential elections. This arises from the strict presidential nomination requirement in Indonesia’s elections law, which stipulates that to be eligible, presidential candidates must be nominated by political parties or a coalition of parties with at least 20 per cent of seats in the legislature or with at least 25 per cent of total valid votes from the legislative elections.

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Published on April 17, 2019
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What’s New in Public Law

Simon Drugda, PhD Candidate at the University of Copenhagen

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. The UK Supreme Court held that citizens of Zambia could sue a mining company in the UK.
  2. The Constitutional Court of Moldova upheld an amnesty law that granted release from prison to mothers of children under the age of eight, but not an equal right to fathers.
  3. The Constitutional Court of South Korea found an anti-abortion law that made it a crime punishable by up to two years in prison unconstitutional. The Parliament has until the end of 2020 to revise the law.
  4. The Supreme Court of the Philippines halted the cutting and balling of trees in expansion plans of a popular mall in Baguio City until it complies with environmental requirements.
  5. The European Court of Human Rights delivered its first advisory, holding that states need not register the birth certificate of a child born through gestational surrogacy abroad to establish the legal parenthood of the intended mother, as adoption may be a means of recognizing that relationship.
  6. The European Court of Human Rights requested a reply from Russia to two cases initiated by the relatives of people who were killed in the downing of the Malaysia Airlines flight MH-17. They allege that Russia was directly or indirectly responsible.

In the News

  1. The UK considers new online safety laws. Companies will have a “duty of care” to take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services.
  2. The European Union expressed its support for the International Criminal Court after the US revoked the entry visa of ICC’s chief prosecutor Fatou Bensouda over a probe into US soldiers’ actions in Afghanistan.
  3. The National Assembly of Cuba met in extraordinary session to enact the New Constitution, ratified a referendum in February.
  4. Sudanese President Hassan al-Bashir has been removed from office.
  5. The Vatican announced that the draft apostolic constitution governing the workings of the Roman Curia will be set for consultation to bishops’ conferences around the world.
  6. A Hong Kong court found nine members of the 2014 pro-democracy “Umbrella Movement” guilty of charges including conspiracy and inciting a public nuisance. The Court did not immediately announce sentences for the charges.

New Scholarship

  1. Brian Christopher Jones, Our Forgotten Constitutional Guardians: Preserving Respect for the Law, Statute Law Review (2019) (exploring the role of bill drafters within the Office of Parliamentary Counsel and senior clerks within the House of Commons in protecting the UK constitution)
  2. Heller Porsdam, The Transforming Power of Cultural Rights: A Promising Law and Humanities Approach (2019) (arguing that cultural rights offer a useful international arena and discourse in which to explain and negotiate cultural meanings when controversies arise)
  3. Jed Odermatt, The International Court of Justice and the Court of Justice of the European Union: Between Fragmentation and Universality of International Law, in Achilles Skordas (ed), Research Handbook on the International Court of Justice (2019 forthcoming) (discussing how the Court of Justice of the European Union has used judgments of the International Court of Justice in its legal reasoning)
  4. Andrew Coan, Rationing the Constitution:  How Judicial Capacity Shapes Supreme Court Decision-Making (2019) (explaining how judicial caseload shapes the course of American constitutional law and the role of the Court in American society)
  5. Carissima Mathen, Courts Without Cases The Law and Politics of Advisory Opinions (2019) (examining the role of the Supreme Court of Canada in issuing advisory opinions)

Call for Papers and Announcements

  1. The Democratic Decay Resource (DEM-DEC), which has been renamed Democratic Decay & Renewal (DEM-DEC), released its ninth Global Research Update on democratic decay (April 2019 – available here), containing new research worldwide from March and early April 2019; items suggested by DEM-DEC users; a rapidly expanding list of forthcoming research; and a list of new resources added to the Links section. A post introducing the Update was published on the IACL-AIDC Blog on Thursday 11 April, and will shortly be published on Verfassungsblog.
  2. The University of Maastricht invites applications for an Assistant Professorship in European and/or Comparative Administrative Law. The Faculty invites applicants who have an interest specifically in either of these two research themes: 1) Digital legal studies: building technology for law and 2) Law in a globalizing society: regulation and protection.
  3. The Italian Chapter of the ICON-S invites submission for its conference on “New Technologies and the Future of Public Law,” to be held in Florence, on November 22-23. The deadline for submissions is July 10, 2019.
  4. The University of Copenhagen invites applications for two teaching position in Advanced EU Constitutional Law and European Data Protection Law. The deadline for applications is September 1, 2019.
  5. The Católica Law Review invites submissions for the 2020 January thematic issue on “(Re)Inventing the State in the 21st Century.” The deadline for submissions is September 30.
  6. The UCL Journal of Law and Jurisprudence invites submission for its Autumn 2019 issue. The extended deadline for paper submissions is April 26.

Elsewhere Online

  1. Lénárd Sándor, ‘Constitutional education is key in addressing the constitutional challenges of our time’ – conversation with Professor Jeffrey Rosen, President of the National Constitution Center, precedens.mandiner
  2. David R. Cameron, 48 hours before no-deal Brexit, European Council gives UK an extension to Oct. 31, Yale MacMillan Center
  3. Zachary Elkins, How powerful is the US president? A look at other constitutions explains why American executives are so ineffectual, Vox
  4. Rick Pildes, What is Judicial Courage?, Balkinization
  5. Anna Olijnyk, Joint sittings, common fund orders and comity, AUSPUBLAW
  6. Pierre de Vos, Why there is no legal duty on ANC candidates to withdraw from election lists if instructed to do so, Constitutionally Speaking
  7. David Howarth, Westminster versus Whitehall: Two Incompatible Views of the Constitution, UK Constitutional Law Association
  8. David Vitale, Leaving the EU: A Matter of “Trust”?, UK Constitutional Law Association
  9. Renáta Uitz, What Does the Spring Bring for the Rule of Law in Europe?, Verfassungsblog
  10. Sandipto Dasgupta, The Indian Constitution did not stem from a revolution but envisioned one. So why didn’t it happen?, Scroll+
  11. Gautam Bhatia, The Supreme Court’s Judgment on the Maintainability of the Rafale Review: Some Salient Features, Indian Constitutional Law and Philosophy
  12. Chrystie Swiney, Undemocratic Civil Society Laws are Appearing in Democracies, OpenGlobalRights
  13. Karen Yeung, Machine Decision-making in the criminal justice system: The FATAL4JUSTICE? Project, OxHRH
  14. Sarah Steele, Christopher Markou and Tyler Shores, Technology may be making us unhealthy and miserable – governments must act now, The Conversation
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Published on April 15, 2019
Author:          Filed under: Developments
 

Hong Kong’s Quasi-Constitutionalities: Part 1

–P. Y. Lo, LLB (Lond.), Ph D (HKU), Barrister-at-law, Gilt Chambers, Hong Kong.

Richard Albert and Joel Colón-Rios’ edited volume on Quasi-Constitutionality and Constitutional Statutes (Routledge 2019) considers a variety of means by which a statute can become or be treated as “entrenched”, “constitutionally significant” or otherwise having a “constitutional status”. This can be because, as Rivka Weill considers in Chapter 3 of the volume, such a statute was enacted to prescribe judicially enforced standards (usually fundamental human rights standards) that would require a Parliamentary response; or as Lael Weis considers in Chapter 9, such a statute was required to be enacted by reason of a provision in the country’s Constitution.

Hong Kong, a Special Administrative Region of the People’s Republic of China, has a bit of both, under its constitutional instrument, the Basic Law.

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Published on April 13, 2019
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Bolsonaro’s Unconstitutional Support for the Brazilian Civil-Military Dictatorship of 1964-1985

Emilio Peluso Neder Meyer, Federal University of Minas Gerais and National Council for Scientific and Technological Development;Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

Jair Bolsonaro was recently elected in an election tainted, particularly, by his long-held defense of the Brazilian dictatorship of 1964-1985. Once he took office, despite the large number of former military officers in his cabinet, some argued that he would inevitably be tamed by reality and would act as a statesman.  However, in addition to his many mistakes in political coordination and nominations for high positions, Bolsonaro seems unwilling to abandon the ideological discourse of his campaign, even while his government proves to be very erratic.  As if we were back in the 1960s, the strategy is to stress polarization between the left-wing (or communists, as he prefers) and right-wing in all areas, from education to international relations. As he said in his U.S. visit, “We have to deconstruct, undo many things before we can even start.”

In recent weeks, however, such polarization reached new highs. March 31, 2019 marked 55 years since the coup d’état of 1964 that inaugurated the Brazilian civil-military dictatorship. According to Bolsonaro, the date of the coup d’etat should be celebrated. Presidential spokesman General Otávio Barros said that Bolsonaro does not consider 1964 a coup and ordered the Ministry of Defense to make the “due commemorations.” On a TV show, Bolsonaro delivered an interview where he criticized the role of Brazilian Truth Commission and argued that “only a few problems” happened during the dictatorship, that the military are the true guarantors of democracy, and that the decrees of that era were better than democratically-approved legislation. The presidential order and further declarations sparked negative reactions from civil society groups, but also of the Federal Prosecutors’ Office, which sent recommendations in 19 states to military officials declaring the unconstitutionality and illegality of any celebration. Still, invitations to authorities were sent alluding to the commemoration of the 55 year anniversary of the “democratic revolution” of 1964. Also, a video in which an actor says the military saved Brazil was shared by the president’s office on March 31,  2019. Brazilian courts refused to stop the government propaganda and the presidency defended the argument denying the coup per an United Nations expert on truth and memory.

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Published on April 12, 2019
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Conference Report: « Le droit global existe-t-il ? » — University of Louvain

Alicia Pastor y Camarasa, PhD Candidate, Centre de recherche sur l’Etat et la Constitution (CRECO), University of Louvain (Belgium)

Reviving the tradition of medieval disputatio, Professors Sophie Weerts and Céline Romainville convened a debate at the University of Louvain around globalization and public law under the title, Does Global Law Exist?, with Professors Maxime Saint-Hilaire (University of Sherbrooke) and Benoît Frydman (Free University of Brussels). What follows is a summary of the key issues that emerged from intensive debate, where two radically different perspectives were proposed on how to defend the Rule of Law [l’Etat de droit][1] from the threats emerging from globalization. The debate revolved around questions regarding the nature of global law, the state, the role for lawyers, and the fairness of global law. It can be seen in full – here.

Benoît Frydman embraced a pragmatist approach, arguing that any norm with legal consequences is thus a legal norm. He referred to all these non-formal legal norms as “U.L.O.s” or “Unidentified Legal Objects”. These norms go beyond state law and include what is traditionally gathered under soft law; such as, guidelines, recommendations, labels, and indicators produced by both public and private actors. He argued that legal scholars and actors (i.e. judges and lawyers) should think of these norms as law, as this is the only pathway through which these norms – currently emerging in the global realm – can be controlled and submitted to the Rule of Law. Frydman ultimately advocated for the legal community to dive into these different normative orders.

Maxime Saint Hilaire chose an opposite strategy. As a fierce critic of legal pluralism and ‘panjuridism’ (which pushes us to see law everywhere), he argued that, in order to protect the Rule of Law, it is essential to stick to the rule of recognition, which allows legal rules to be distinguished from other normative orders. In contrast to Frydman, he proposed that legal inquiry should be devoted to formal sources of law – that is, rules recognized by the state – and that this is a necessary condition for the survival of the Rule of Law as a principle grounded in political values. It follows that he defended the role of lawyers as actors fighting for a more formal, rather than substantive, form of justice.

As public lawyers facing the challenges and the effects of globalization on public law, the questions raised by these two different strategies invite us all to take a step back and engage in self-reflection. How should we define our project of inquiry as public lawyers? Should we engage with actors beyond judges and the legislature? Where should we draw the line? Should we limit our role as defenders of formal modes of justice, or should we consider the law to be a tool of emancipation and protection for those who have traditionally been marginalized and invisibilized by public law given their gender, race, sexual orientation, ability, geographical location (ie the Global South)? Should we engage in a pragmatic way with the effects of globalization, or should we refine the conceptual tools we already have at our disposal, such as the rule of recognition, to preserve the Rule of Law and the political values underpinning it?

Related Publications

Benoit Frydman with Jean-Yves Chérot, La science du droit dans la globalisation, Bruxelles, Bruylant, 2012.

with L. Hennebel, G. Lewkowicz, “Coregulation and the Rule of Law”, avec in E. Brousseau, M. Marzouki., C. Meadel, (dir.), Governance, Regulation and Powers on the Internet, Cambridge University Press, 2012.

“L’évolution des normes de scientificité en droit”, in Hélène Desbrousses , Normes de scientificité et objet des sciences sociales, Paris, L’Harmattan, 1997, pp. 91-109

Maxime Saint Hilaire, “Standards constitutionnels mondiaux : épistémologie et méthodologie”, in Mathieu Disant, Gregory Lewkowicz et Pauline Türk (dir.), Les standards constitutionnels mondiaux, Bruxelles, Bruylant, 2017, p. 11-75.

“Global Standards of Constitutional Law: What Knowledge? Which Method?”, in Asma Ghachemet Henri Pallard (dir.), Une Cour constitutionnelle internationale au service du droit démocratique et du droit constitutionnel, actes du colloque de Rabat des 16-17 juin 2015, Beyrouth, Konrad Ademauer Stiftung, 2016, p. 23-28.

“The Study of Legal Plurality outside “Legal Pluralism”: The Future of the Discipline?”, in Shauna Van Praagh et Helge Dedek (Eds), Stateless Law: Evolving Boundaries of a Discipline, Farnham (UK), Ashgate Pub, 2015, p. 115-132.


[1] See M. Loughlin, “Chapter 11. Rechtsstaat, Rule of Law, l’Etat de droit”, Foundations of Public Law (Oxford University Press, 2010).

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Published on April 12, 2019
Author:          Filed under: Developments