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

Five Questions with Kim Lane Scheppele

Richard Albert, Boston College Law School

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

This edition of “Five Questions” features Kim Lane Scheppele, the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton University. Her full bio follows below:

Professor Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton. From 2005-2015, she was Director of the Program in Law and Public Affairs at Princeton, after 10 years on the faculty of the University of Pennsylvania Law School.  Scheppele’s work focuses on the intersection of constitutional and international law, particularly in constitutional systems under stress.  After 1989, Scheppele studied the emergence of constitutional law in Hungary and Russia, living in both places for extended periods. After 9/11, she researched the effects of the international “war on terror” on constitutional protections around the world.  Since 2010, she has been documenting the rise of autocratic legalism in first Hungary and then Poland within the European Union.  Her many publications in law reviews, in social science journals and in many languages cover these topics and others.  She is a commentator in the popular press, discussing comparative constitutional law, the state of Europe, and the rise of populism.  Scheppele is an elected member of the American Academy of Arts and Sciences and the International Academy of Comparative Law.  In 2014, she received the Law and Society Association’s Kalven Prize for influential scholarship.  She held tenure in the political science department at the University of Michigan, was the founding director of the gender program at Central European University Budapest and has taught in the law schools at Michigan, Yale, Harvard, Erasmus/Rotterdam, and Humboldt/Berlin.  From 2017-2019, she will serve as the elected President of the Law and Society Association.

1. Tell us about something you are working on right now.

I’m working on two interconnected book projects.  One, called Counter-Constitutions, is rather improbably about phenomenology and Hungary.  The book argues that constitutions are imperiled when their key principles fail to be taken for granted and it shows how justificatory failures open the way for constitutional collapse.  Phenomenology is relevant to this inquiry because it has the most sophisticated account of how a “social stock of knowledge” is collectively produced so that it comes to feel real, and how precarious that reality becomes when it loses its social support.  Hungary is the perfect case study to illustrate how a phenomenological theory of constitutionalism works, because it has had two major constitutional revolutions in 25 years.  The book is written so you can read the theory without the cases or the cases without the theory in case readers aren’t interested in both.

The other book project, Autocratic Legalism, examines the rise of a new breed of autocrat who comes to power in a liberal constitutional democracy by winning an election fair and square and then who deconstructs the constitutional system that allowed his rise to power.  The book focuses on backsliding constitutional democracies and shows how the new autocrats deploy phalanxes of lawyers rather than phalanxes of soldiers to disarm constitutionalism.  I trace particular tools and their uses across autocratic regimes of very different ideological stripes.

And then I’m trying to fix problems in the EU by proposing ways for the European Commission to deal with backsliding states through systemic infringement actions and by suggesting some unconventional solutions to Brexit.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

I’ve always thought I should have a routine, but I don’t.  I write in binges when there are deadlines, as do most of us, I suppose.  But I also stop and start, stop and start, make no progress at all for a while, and then write a huge flurry of words all at once.  When I know what I want to say, I write fast.  When I am still figuring things out, it’s hard to know where to start.  So I percolate ideas for quite a while during which it’s hard to get much writing done, and then I typically binge-write my way to the finish line.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

Perhaps it is a sacrilege to say so, but I am an obsessive consumer of news even more than an obsessive consumer of scholarship.  I read at least a dozen news sites in multiple languages each day trying to get a sense for current events.  I also read smart journalism, academic listservs, primary sources (new cases, white papers, expert reports, legal analyses), that deal with real-time events.  I’m also an obsessive reader of blogs – law blogs, news blogs, academic blogs.  I rarely start with “the scholarly literature” and look for gaps to be filled because, by the time that a literature develops, the events in the world that triggered that literature have long since ceased to be current.  I love the thrill of engagement with ongoing events, probably not surprising given that I started my career as a journalist.  As a result, I tend to write and teach about things that no one is working on (yet).  By the time that “the literature” catches up to what I’m doing, I’m usually onto something else.  I read those literatures appreciatively, of course, because they often approach these questions more systematically and with benefit of a longer time for reflection.  But I like working in relatively empty fields before others figure out how interesting they are.

That said, I do have a long list of authors whose work I read as soon as I see it, but I stop reading authors who write too much or who start to repeat themselves.  I am always scanning the academic horizon for new authors with a perspective I haven’t encountered before.  And I read a lot of history, as well as academic scholarship from other decades and centuries.

4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?

My PhD is in sociology and I was very influenced by my teachers and their writings: Robert Merton, Herbert Gans and Guillermina Jasso (my undergraduate advisors) and Arthur Stinchcombe, Edward Shils and James Coleman (my dissertation committee).  I learned to argue about law with Richard Posner (who also served on my dissertation committee) but my theoretical approach to law was most shaped by Brian Simpson, whose course in jurisprudence combined philosophy with history and anthropology and whose writings continue to be an inspiration.  As for particular texts that I first encountered while a student and that continue to be touchstones for my scholarship apart from those of my direct teachers, I would list Karl Llewellyn’s Bramble Bush and Clifford Geertz’s essay “Local Knowledge.”  Oh yes, and Ludwig Wittgenstein’s Philosophical Investigations and Alfred Schütz’s Phenomenology of the Social World.  Somehow many of my key inspirational texts were written in the 1930s, a period that also informs my current scholarship on constitutional collapse.

5. What are some of the big questions ripe for inquiry in your area of research interest?

We still don’t understand well enough how law becomes real.  By that, I mean that we don’t understand how law goes from words on paper to practices in the world.  Similarly, we don’t understand how practices in the world reinforce or undermine structures of legality.  There is a disciplinary dividing line between lawyers’ law (doctrine) and social scientists’ understandings of society which tends to focus on action and almost never include study of the legal concepts and categories through which people learn to perceive the world.  I think we need to blur that line and study questions like: How do constitutions emerge and collapse?  How do legal ideas emerge from non-expert concepts?  How does law “constitute” institutions, offices, norms and the people who inhabit them?  How is “the political” differentiated from “the legal” in particular times and places?  If we see law as a field of knowledge and social action as based on the concepts and categories through which people understand the world, law and social sciences can inspire each other more.

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Published on August 17, 2017
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Japan Supreme Court Limits Police GPS Surveillance, Citing Constitution Article 35

–Lawrence Repeta, Member, Japan Civil Liberties Union and former Professor, Meiji University

On March 15 of this year, the Supreme Court of Japan issued a rare decision that limits the authority of the police to conduct surveillance operations. The case involved the placement of GPS tracking devices on the vehicles of surveillance targets. According to the published Supreme Court opinion,[1] for a six and a half month period that commenced in May 2013 police investigators placed GPS tracking devices on no fewer than 19 vehicles used by the target of the investigation, accomplices, and acquaintances.

The appellant was found guilty by both the district court and intermediate appellate court prior to his Supreme Court appeal, but the decisions of those two courts were distinguished by their rulings on the issue of GPS surveillance. According to the District Court, police must obtain a judicial warrant to authorize their use of GPS tracking.[2] The District Court excluded the GPS data from consideration, but nonetheless convicted the defendant on other evidence. The High Court disagreed, stating that at the time of the investigation, Japan’s courts had not established clear precedents requiring warrants and therefore the police action did not rise to a level of illegality sufficient to require the GPS evidence to be excluded from consideration.

The unanimous ruling by all 15 justices upheld the guilty verdict, but unequivocally overturned the High Court regarding the legality of GPS surveillance.

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Published on August 16, 2017
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Developments in German Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 report on German constitutional law, which appears in the larger 44-country 2016 Global Review of Constitutional Law. The entire 2016 Global Review is now available in a smaller file size for downloading and emailing: https://ssrn.com/abstract=3014378.


Christoph Möllers, Professor of Public Law and Legal Philosophy at Humboldt-Universität zu Berlin and Permanent Fellow at the Institute for Advanced Study, and Thomas Wischmeyer, Senior Research Fellow at the Institute for Staatswissenschaft and Legal Philosophy at Albert-Ludwigs-Universität Freiburg and Emile Noël Fellow at NYU School of Law

I. Introduction

In 2016, constitutionalism still reigned supreme in Germany. Indicators for the importance of the Federal Constitutional Court (FCC) within Germany’s political system are the media coverage of the Court’s public hearings and the political salience of the issues debated in Karlsruhe. In the reported year, the Second Senate of the FCC discussed the fate of the National Democratic Party of Germany (NPD) for three full days in early March – one of the longest oral arguments in the history of the Court – with a large number of influential politicians present at the hearing.[1] Two weeks later, the Court again dominated the news cycle, when the administration had to defend its decision to unwind Germany’s nuclear energy industry after the Fukushima catastrophe before the First Senate. And in February and September, an international audience was observing the proceedings in cases involving the European Central Bank’s notorious OMT program and the EU-Canada Free Trade Agreement (CETA).

As elsewhere, however, after almost a decade of protracted crises, German institutions begin to show signs of stress and exhaustion. Populism is at the gates and 2017 – a big election year in Germany – will tell us, whether the centrist consensus, which has shaped post-war politics in Germany for almost seven decades now, will hold. In view of these developments, it is an open question whether the constitutional moments staged in Karlsruhe will continue to be a moment of societal “integration” – or whether the juridical taming of politics that has earned the Court its high reputation in the past will become associated with the fuzzy notion of “elitism” that populist movements all over the globe pretend to attack so violently.

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Published on August 15, 2017
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What’s New in Public Law

Vicente F. Benítez R., Constitutional Law Professor, Universidad de La Sabana (Colombia) and JSD student at NYU

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 Supreme Court of South Korea ordered the government to register an LGBT foundation as a charity, in light of the right to freedom of assembly.
  2. The Supreme Court of Sri Lanka rejected several sections of a proposed bill that would have transformed the country’s tax system on constitutional grounds.   
  3. The Supreme Court of India requested a response of the National Investigating Agency and the Kerala High Court, to hear a case pertaining the annulment of a marriage between a Muslim man and a Hindu woman.  
  4. The Supreme Court of India upheld a centralized all-India mechanism aimed at improving the selection process of judges for the lower judiciary.
  5. The Supreme Court of Israel struck down a tax imposed on owners of several housing units, given that it was not properly approved by the Knesset.
  6. The Supreme Court of Kenya dismissed a challenge against the nomination of James Onyango K’Oyoo as an MP candidate for the Muhoroni constituency.
  7.  The Venezuelan Supreme Tribunal sentenced an opposition Mayor to 15 months in prison.
  8.  The Supreme Court of Australia ruled that certain fake guns must be considered replicas (i.e. not toys) regardless of the categorization given by the product’s package.
  9.  The Supreme Court of Canada issued two landmark decisions defining the scope of the right of indigenous communities to be consulted prior to implementation of projects that may affect their interests.
  10. The Supreme Court of Costa Rica (Constitutional Chamber) concluded that the prohibition on certain types of rice sales is constitutional.   
  11. The Supreme Court of Ireland declared that the cessation of pension payments to prisoners is unconstitutional, given that it breached the principle of separation of powers and amounted to an additional punishment against the appellant.  

In the News

  1. The Catalonian Parliament passed a fast-track procedure to enact laws required to advance the independence referendum to be held on October 1, 2017.  
  2. The controversial Venezuelan constituent assembly fired the Attorney General, who has been a prominent critic of President Maduro’s plan for enacting a new constitution.
  3. The Libyan constituent assembly approved Chapter 5 of the draft Constitution, which institutes a new Constitutional Court.
  4. Two prominent German newspapers filed a claim before the European Court of Human rights, due to the incarceration of one their correspondents in Turkey.
  5. Egypt’s ousted President Mohamed Morsi claimed that the trial that ordinary courts are conducting against him is not valid given that, according to the Constitution, Presidents must be tried by a special court.
  6. The President of the Latin American and Caribbean Parliament expressed her concerns on the U.S. environmental policy shift, and also stated that the world is eager to hear the American alternatives to its withdrawal from the Paris Accord.
  7. President of Philippines Rodrigo Duterte announced his plan to create a 24-member commission to draft a new constitution.     
  8. Religious leaders signed an appeal sent to the Parliament of Georgia claiming that the proposed constitution threatens religious minorities.  
  9. The Japanese Liberal Democratic Party along with PM Shinzo Abe decided to change the original timetable for constitutional change.
  10. Mauritanian electorate voted in a referendum to abolish the Senate and to change the national flag.
  11. The President of the UK’s Supreme Court Lord Neuberger asked the Parliament to clarify how courts should interpret the European Court of Justice rulings after “Brexit.”
  12. A French Senator nominated to the Constitutional Council withdrew his nomination amidst allegations of misbehaviour during his tenure as Minister of Justice.
  13. After defeating his rival by a relatively narrow margin, President Uhuru Kenyatta has been reelected for a new term in Kenya.
  14. South African President Jacob Zuma survived in a no-confidence vote by the opposition.
  15. Chicago filed a suit against U.S. President Trump’s decision of cutting federal funding to so-called “sanctuary cities.”
  16. Liberian President Ellen Johnson Sirleaf weighed in on the controversy between the House of Representatives and the Supreme Court.
  17. Iranian President Hassan Rouhani appointed two female vice-presidents after calls for increasing women’s participation in his cabinet.

New Scholarship

  1. Geert Corstens, Understanding the Rule of Law (2017) (providing an accessible and practical understanding of the Rule of Law, in light of landmark judgments issued by courts around the world)
  2. András L. Pap, Democratic Decline in Hungary. Law and Society in an Illiberal Democracy (2017) (describing the rise and transformation of the Hungarian constitutional system to an illiberal political regime)
  3. Pasquale Pasquino, How do Constitutional Courts decide? Precedente (2017) (comparing the “mode of production” of judicial decisions issued by the Constitutional Tribunals of Germany, France and Italy, as well as by the U.S. Supreme Court) (in Spanish)
  4. Liliana Sánchez-Mejía, Victims’ Rights in Flux: Criminal Justice Reform in Colombia (2017) (examining how the implementation of an adversarial criminal justice system in Colombia impacted victims’ rights)
  5. Sergio Verdugo, Birth and decay of the Chilean Constitutional Tribunal (1970–1973): The irony of a wrong electoral prediction, 15 International Journal of Constitutional Law (2017) (examining the Chilean 1970-1973 Constitutional Tribunal and its subsequent waning, to show how this case can contribute to the global discussion on the creation and sustainment of constitutional courts)
  6. Uzi Vogelman, Nadiv Mordechay, Yaniv Roznai & Tehilla Schwartz, Developments in Israeli Constitutional Law, in Richard Albert, David Landau, Pietro Faraguna & Simon Drugda (eds), I-CONnect-Clough Center: 2016 Global Review of Constitutional Law (2017) (examining eleven landmark decisions of the Israeli High Court of Justice in 2016 in some sensitive issues such as minorities, emergency laws, belligerent occupation and recurring armed conflicts, unique rules of citizenship, and the relation between religion and state)  
  7. Jeremy Waldron, One Another’s Equals. The Basis of Human Equality (2017) (offering a philosophical account of the development of the principle of human equality in western societies)

Calls for Papers and Announcements

  1. Professors Adam Chilton (University of Chicago Law School) and Mila Versteeg (University of Virginia School of Law) invite constitutional law experts to answer a survey on “Small-c Constitutions,” and more specifically about the nature and sources of constitutional law in several countries around the world.
  2. The TARN Young Researchers Platform is organizing a workshop on Current and Future Challenges of EU Agencification on 20 November, 2017. The deadline for submission of abstracts is September 30, 2017.
  3. The T.M.C. Asser Instituut invites submissions to its conference on “Human Dignity and Human Security in Times of Terrorism: International (Human Rights) Law Challenges and Opportunities,” that will take place in December 2017. The deadline for submissions is September 23, 2017.
  4. The National Law School of India Review is accepting contributions for its forthcoming issue – Volume 30(1). The submission deadline is November 1, 2017.
  5. The North-American section of the Société de législation comparée invites presentations to its bilingual conference “Law’s Porosities,” to be held at the American University Washington College of Law, on October 26, 2017. The deadline for submission of abstracts is August 31, 2017.
  6. The American Society of Comparative Law convenes its annual meeting, which will focus on “Comparative Law, Faith and Religion: The Role of Faith in Law.” The meeting will take place on October 26-28, 2017.
  7. Universidad de La Sabana Law and Political Sciences School in Colombia invites submissions to its conference on “Constitution, Human Rights and Legal Philosophy,” which will be held on September 27-29, 2017. The deadline for submission of abstracts is August 31, 2017.

Elsewhere Online

  1. Iain Brassington, Charlie Gard: An Ethical Analysis of a Legal non-Problem, EJIL: Talk!
  2. A J Brown, A new federal integrity system in the making? The case for a Commonwealth anti-corruption agency, AUSPUBLAW
  3. Pierre de Vos, Early Election Won’t Happen – Although it is provided for in the Constitution, Constitutionally Speaking
  4. Edward Foley, Symposium: Wechsler, history and gerrymandering, SCOTUSblog
  5. James Fowkes, Analysis: Latest Developments in the South African Court’s Most Expansive Socio-Economic Rights Doctrine — The Need for Meaningful Engagement about Meaningful Engagement, Blog of the IACL, AIDC
  6. Omar Ha-Redeye, Understanding Indigenous Rights for the Next 150 Years, CanLII Connects
  7. Catherine Haguenau-Moizard, The French Antiterrorist Bill: A Permanent State of Emergency, Verfassungsblog
  8. Sanjeev Menon, The GST Amendment: Non-entrenchment Of Article 246A Under The Provisio To Article 368(2), Live Law
  9. Elissa Miller, Libya’s draft constitution and the stalled political process, The Arab Weekly
  10. Magnus Onyibe, Nigeria’s Constitution Amendment: Failure Of Imagination And Need For Political Courage, Leadership
  11. William Partlett, What’s wrong with Venezuela’s Constituent Assembly? Blog of the IACL, AIDC
  12. Anna Reuss & Kristof Titeca, Removing the presidential age limit in Uganda: the power of cash and coercion, openDemocracy
  13. Carlos Arturo Villagrán-Sandoval, Interrogating “Constitutionalism of the South” and New Pathways for Research: The Case for a Central America in the Global Debate, Völkerrechtsblog
  14. Ryan Vogel, Would war with North Korea be legal? The Salt Lake Tribune
  15. Mark Elliot, A “blatant power grab”? The Scottish Government on the EU (Withdrawal) Bill, Public Law for Everyone
  16. Duncan Okubasu Munabi, The Kenyan Election: An Insight into the Effectiveness of Constitutional Guarantees, OxHRH
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Published on August 14, 2017
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Developments in Italian Constitutional Law: The Year 2016 in Review

[Editor’s Note: Today we publish the 2016 Report on Italian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available in a smaller file size for downloading and emailing: https://ssrn.com/abstract=3014378.]

–Pietro Faraguna (LUISS University of Rome), Michele Massa (Catholic University of the Sacred Heart, Milano), Diletta Tega (University of Bologna), coordinated by Marta Cartabia (vice-President of the Italian Constitutional Court)

I. Introduction

The Constitution of Italy entered into force on January 1, 1948, following its adoption by a popularly elected Constituent assembly, which led Italy out of a difficult transition from the fascist regime to a full-fledged democracy. The Constitution is based on a series of fundamental principles that are common heritage of liberal states: separation of powers, checks and balances, due process of law, universal suffrage, and fundamental freedoms (of expression, of association, of assembly…). Among the most significant departure from the previous regime – which was characterized by a flexible, liberal constitution (Statuto Albertino) –  was the incorporation of social rights into the new Constitution, and the safeguarding of the Constitution through its rigidity. Consequently, constitutional provisions have a higher rank than ordinary legislation and this higher rank is safeguarded through judicial review of legislation. The establishment of the Italian Constitutional Court (ICC) was one of the most impacting institutional novelty by the Constitution. It represented one of the earliest examples of the post-war European model of constitutional adjudication.[1] However, its implementation was far from an obstacle-free route.[2] The clearest sign of the distrust of political actors towards this institutional novelty was the delayed implementation of the ICC, which was only able to pronounce its first judgement in 1956. In 2016, the Court celebrated the 60th anniversary of its first judgement. It is undisputed that the Court has become one of the most influential and stable authorities in the Italian constitutional architecture. Although, there has been many changes in 60 years, one permanent character of the Court’s activity has been its “relational character”[3]: the ICC has always maintained an open and relational approach to other constitutional actors, both domestically and in the supranational and international dimension. This trend was also present during 2016 and emerges from the case law reported here.

This report firstly provides a brief introduction to the Italian Constitutional system, with a particular emphasis on the system of constitutional justice (section II). Secondly, the report contains a narrative exposition of two particularly important controversies from 2016 (section III). In these decisions, the ICC actively engaged as the supranational dimension of constitutional law, showing at the same time a high level of compliance to the principle of openness towards supranational and international law, and a firm stance in upholding the complex substantive and institutional balance of the Italian Constitution. In section IV, the report provides an overview of landmark judgements adopted by the ICC in 2016. The last section draws some conclusions.

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Published on August 13, 2017
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Constitutional Fidelity and the Polish Constitution

–Tomasz Tadeusz Koncewicz, University of Gdańsk, 2017-18 LAPA Fellow, Princeton University, currently Visiting Professor, Radzyner Law School, IDC Herzliya

Tread softly because you tread on my dreams
–W.B. Yeats, The Cloths of Heaven

Recent weeks have seen the biggest mass protests in Poland since 1989. In major Polish cities thousands were out in the streets and made their voices heard. People were protesting against the relentless capture of their public institutions, most notably the courts.

The brutal assault on the Supreme Court and the judiciary sparked the popular revolt, forcing President Duda to veto the draft laws on the Supreme Court and the National Council of the Judiciary (on the legislative scheme to bring the judiciary to heel, see here). This public defiance was not spurned by the opposition parties that suffer from their own credibility issues.

What should we make of this popular mobilization after two years of relentless capture and accompanying passivity of the citizenry? These protests were apolitical and political at the same time, creating a synergy not seen in Poland (or even in this part of Europe) for years. Something constitutionally momentous may be happening: a constitutional moment in the defense of the Constitution and the integrity of the legal system.  As such,  it forces constitutionalists in Poland to move beyond mere textual exegesis and to focus more on the constitutional context. The former has always been the dominating feature of constitutional analysis, yet it is an inadequate tool to explain what has happened in Poland over the last weeks. It is the latter–context–that will will help us start connecting the dots to understand the forces behind the protests.

The context is defined here as constitutional fidelity to the values underlying the constitutional document. My argument here is that constitutional fidelity provides the conceptual framework for thinking of the rule of law and separation of powers, appreciating it, and in the end defending it, at times of constitutional capture and paranoia.

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Published on August 11, 2017
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Five Questions with Vlad Perju

Richard Albert, Boston College Law School

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

This edition of “Five Questions” features Vlad Perju, Director of the Clough Center for the Study of Constitutional Democracy and Professor of Law at Boston College Law School. His full bio follows below:

Vlad Perju is the Director of the Clough Center for the Study of Constitutional Democracy at Boston College and Professor of Law at Boston College Law School. His primary research and teaching interests include the law of the European Union, comparative constitutional law and theory, international and comparative law and jurisprudence.

Before joining the Boston College faculty in 2007, Perju was awarded a doctorate from Harvard Law School under the supervision of Professor Frank Michelman with a dissertation entitled “The Province of Cosmopolitan Jurisprudence: Constitutional Foundations”. He earned two law degrees from the University of Bucharest and the University of Paris 1 Panthéon-Sorbonne, an LLM degree summa cum laude from the European Academy of Legal Theory in Brussels, Belgium and graduated from the LL.M. program at Harvard (degree waived).  While at Harvard, he served as a Byse Fellow, a Safra Fellow at the Edmond J. Safra Foundation Center for Ethics and a Research Fellow in Amartya Sen’s Project on Justice, Welfare and Economics.

Perju was a Visiting Associate Professor at Harvard Law School in the Fall Term 2011 and a Visiting Professor of the Theory of the State at the European Academy of Legal Theory in Brussels, Belgium.

Perju was awarded the 2009 Ius Commune Prize for his article entitled “Reason and Authority in the European Court of Justice” (49 Virginia Journal of International Law 307). His paper “Cosmopolitanism and Constitutional Self-Government” was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum. In the Fall 2009, Professor Perju was a research fellow at NYU Law School. He has been an affiliate of the Minda de Gunzburg Center for European Studies at Harvard University since the Spring 2010.

In 2008 Professor Perju was appointed by the President of Romania to a seven-member Commission on Constitution Reform. He remains actively involved in the process of constitutional reform both in Romania as well as in the European Union. Some of his commentary can be found here (in English) and here (in Romanian).

At Boston College, he teaches courses in the Law of the European Union, American and Comparative Constitutional Law, The Past and Future of the State, as well as advanced seminars on European Integration and Modern Legal Theory.

1. Tell us about something you are working on right now.

Two projects. The first develops a doctrine of transnational structural norms in constitutional law. The context for this project is the erosion of constitutional democracy and my question is how the judiciary could use this new doctrine to protect the integrity of structural features such as judicial independence through reliance on their transjurisdictional dimension. The second project revisits the traditional understanding of supremacy of EU law. Existing accounts conceptualize supremacy as necessarily bidirectional, in the sense that the reception of EU supremacy within national jurisdictions is not external but constitutive of the claim to supremacy itself. I have serious doubts about the soundness of this approach, both normatively and descriptively. This paper is the third installment in my larger attempt to revisit some of the fundamentals of European constitutionalism. Another work, which I completed this summer, argues that human rights were present at the genesis of the European legal order, and thus did not enter European constitutionalism from municipal law, as the influential and self-serving account of the German Constitutional Court would have us believe. The other paper challenges Habermas’s influential theory of dual sovereignty in the EU as too deferential to nation-states and insufficiently attuned to the constitutional project of European unification.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

I write when I’m ready to write. Unless, of course, life has other plans. And, having small children, life frequently does have other plans. When that happens, I write whenever I find time.  I should add that it was helpful for my writing once I realized how my various projects fit together.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

As the director of the Clough Center, which is an interdisciplinary center at Boston College, I have to be alert to new scholarship across fields. This means that my reading list is somewhat eclectic, more so than one would typically expect even from a comparative con law scholar. I can tell you that right now, for example, I’m reading recent work on the Russian revolution for a program we’re putting together this Fall, as well as Andrea Sangiovanni’s Humanity without Dignity, Daniel Ziblatt’s recent book on conservative parties and the origins of democracy.

4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?

It’s hard to mention just one. Kant’s Perpetual Peace is a great example of putting what at the time was a bold vision of cosmopolitanism to the discipline of reason. Roberto Unger’s 1976 lectures in social theory at Harvard have also been formative, as has engagement with John Rawls’s Theory of Justice and Political Liberalism–each for different reasons. Finally, I had the good fortune to be Frank Michelman’s doctoral student, and learned from him and his scholarship the indispensable lesson of intellectual integrity in scholarly work.

5. What are some of the big questions ripe for inquiry in your area of research interest?

In European legal thought, we need to challenge the consensus around constitutional pluralism. In comparative constitutional law, we need to draw more on the venerable traditions of comparative private law as sources of insight, especially–but not exclusively–on methodological matters. Finally, in constitutional law more generally, especially in the United States, we need to offer institutional proposals and to defend the theoretical foundations of cosmopolitan alternatives to constitutional nationalism.

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Published on August 10, 2017
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Virtual Bookshelf–Siren Songs or Legal Authority?: A Brief Review of “Constitutional Preambles,” by Wim Voermans, Maarten Stremler and Paul Cliteur

Richard Albert, Boston College Law School

Samoa recently amended its constitution to declare itself a Christian state. For some, this was a curious move given that Samoa’s preamble already proclaims Christianity as the national religion. Why, then, was the amendment necessary? A recent article explains:

Samoa already had a reference to Christianity in the preamble to its Constitution, which declared that the Samoan government should conduct itself “within the limits prescribed by God’s commandments,” and that Samoan society is “based on Christian principles.”  … However, a preamble to a constitution is generally seen as a broad symbolic national statement, one of historical or cultural significance, rather than a legislative tool. What Samoa has done is shift references to Christianity into the body of the constitution, giving the text far more potential to be used in legal processes.

Samoa’s Christianity amendment draws our attention to the purpose and authority of constitutional preambles. Are they simply lofty words–a siren song of constitutions–without real world effect, or do they have a meaningful impact on the legal and political orders of any given jurisdiction?

In their new book on Constitutional Preambles: A Comparative Analysis (Edward Elgar Publishing Ltd 2017), Wim Voermans, Maarten Stremler and Paul Cliteur invite constitutional scholars to think more deeply about preambles. They examine roughly 200 preambles from around the world in an effort to enhance our traditional understanding of preambles. In their own words:

Preambles deal with beliefs and try to instill them in heads and hearts of the people. Not only do they deal with the commonly held beliefs, but also, and especially so, with the individually held ones. As siren songs, preambles try to connect the imagined ideals and beliefs of the constitutional world with the individual’s world. (p 151)

However preambles may also serve functions that extend beyond these declarations of principles devoid of legal power. For instance, the authors explain that although in the United States the preamble “cannot be considered as an independent source of law … . In France, by contrast, the Constitutional Council has declared the preamble to be an integral part of the constitution and has used it directly to review the constitutionality of legislation.” (p 4)

The authors show also that preambles are sites where designers have formally entrenched fundamental principles, others serve a distinctly expressive function related to values or identity, and still others may serve an educational function as a “bridges in time” connecting the present to the historical context from which the constitution emerged.

As new states establish constitutions and existing ones reform their own, this new book reminds us that “all preambles indicate, in one way or another, the source of authority of the constitution.” (p 153)

In their new book, Voermans, Stremler and Cliteur shine a light onto an often overlooked aspect of constitutional study and lay a strong foundation for further research into the forms and functions of constitutional preambles.

 

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Published on August 9, 2017
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Book Review: Cornelia Weiss on Helen Irving’s “Constitutions and Gender”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Cornelia Weiss reviews Helen Irving’s Constitutions and Gender (Edward Elgar 2017)]

–Cornelia Weiss, Colonel, U.S. Air Force Reserve Judge Advocate Corps*

As incredible as it seems, it was not until 1971 that the U.S. Supreme Court ever declared a statute that discriminated against women as unconstitutional.  That was Reed v. Reed, 404 US 71.  A co-author on the brief for the Appellant is the now U.S. Supreme Court Justice Ruth Bader Ginsburg.  In her brief, she included two West German Constitutional Court decisions from 1959 and 1963 in which the German Court invalidated similar gender classifications.  As she explained about her strategic choice to include these two West German constitutional law case in a brief to the U.S. Supreme Court: “I did not expect our Supreme Court to mention the German decisions, but thought that they might have a positive psychological effect.  Informed of the West German Constitutional Court’s reasoning, the U.S. justices might consider: ‘How far behind can we be.’”[1]

The 553 page Constitutions and Gender, Research Handbooks in Comparative Constitutional Law series, edited by Helen Irving of Sydney Law School, is a tool that can be used by scholars and practitioners to employ Justice Ginsburg’s approach.  Constitutions and Gender is the first handbook devoted specifically to gender and constitutions.  Based on the premise that constitutions are “gendered” (to include having a disparate or differential impact upon women and men, be it through the writing, interpretation, application, and/or internalization of constitutions), the handbook articulates original thinking that will serve as a platform for future transformative scholarship as well as constitutional law practices.  This book tackles tough questions, to include that of “culture” and “freedom of speech” – do they trump, are they subordinate, or can they be harmonized?  The analysis employed throughout Constitutions and Gender suggests that we must ask and challenge, for example, “who gets to state what culture is.”  The comparative law analysis indicates that effective approaches to grappling with the challenges of changing technology (that includes the lightening fast spread of gender hate speech) are still to be developed.

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Published on August 9, 2017
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“Quasi Constitutional” Status as *Not* Implying a Form Requirement

Maxime St-HilaireFaculté de droit, Université de Sherbrooke

In his post on this blog, Adam Perry writes that the British cases on what are known in the UK as constitutional statutes (and in Canada as quasiconstitutional statutes) “have been very controversial in constitutional circles”, whereas, by contrast, the Canadian cases caused barely a ripple. I would like here to take up the invitation, and to throw a tiny pebble into the lake.

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Published on August 8, 2017
Author:          Filed under: Analysis