Blog of the International Journal of Constitutional Law and

What’s New in Comparative Public Law

Mohamed Abdelaal, Alexandria University (Egypt)

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative 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 comparative public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Comparative Public Law,” please email

Announcement from I-CONnect

I-CONnect welcomes submissions from senior and junior scholars, including graduate students, on any subject of comparative public law ranging from 750 to 1000 words, though contributors may make longer or shorter submissions. Submissions will be acknowledged within one day, and often within minutes. Submissions or inquiries about potential submissions may be sent by email to

Developments in Constitutional Courts

  1. Turkey’s Constitutional Court halts legislation exempting companies from environmental obligations.
  2. Hungary’s Constitutional Court rejects E-PM appeal for referendum on Paks Nuclear Plant Expansion.
  3. US federal appeals court denies Utah’s request to halt same-sex marriage licenses.
  4. Colorado Supreme Court orders Denver to stop issuing gay marriage licenses.
  5. Oklahoma same-sex marriages ruled constitutional for second time.

In the News

  1. Indonesia remains vigilant as Constitutional Court may decide results of election.
  2. Turkish opposition appeals to Constitutional Court regarding intelligence activity.
  3. Indonesia Constitutional Court may pick new president.
  4. Singapore’s Government retains authority to amend the Constitution without a vote.
  5. Utah asks Supreme Court to stay ruling on recognizing same-sex marriage.
  6. US federal judge strikes down California death penalty.

New Scholarship

  1. David S. Law, Judicial Comparativism and Judicial Diplomacy, University of Pennsylvania L Rev (forthcoming) (explores how the Japanese Supreme Court, the Korean Constitutional Court, and the Taiwanese Constitutional Court engaged in the concept comparativism, and to what extent the outcome highlights the crucial role of institutional and resource constraints in shaping judicial behavior but also poses an unexpected challenge to traditional conceptions of the role and function of constitutional courts; and arguing also that engaging in comparativism reveals the hidden phenomenon of judicial diplomacy)
  2. Michael J. Perry, David C. Baum Memorial Lecture: Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States, University of Illinois L Rev (forthcoming 2014) (arguing that the exclusion policy  — excluding same-sex couples from civil marriage — violates the right to moral and religious freedom)
  3. Melissa F. Wasserman, Deference Asymmetries: Distortions in the Evolution of Regulatory Law, 93 Texas L Rev (forthcoming 2015) (explaining how deference asymmetries could potentially function as a one-way ratchet and that it is not isolated to a few areas of regulation but instead a surprising number of agencies that regulate fields ranging from the environment, to patent law, to disability benefits face asymmetric deference with respect to their decision making.)
  4. Nancy Leong & Aaron Belzer, Enforcing Rights, 62 UCLA L Rev (2015) (arguing that constitutional litigants should not be treated differently from others by by exposing the pervasive yet underexamined phenomenon of courts limiting constitutional litigants to a single remedial avenue as well as demonstrating that this judicial practice of limiting remedial avenues in constitutional settings lacks justification)
  5. Erin F. Delaney, Judiciary Rising: Constitutional Change in the United Kingdom, 108(2) Northwestern University L Rev (forthcoming 2014) (assessing the cumulative force of the many recent constitutional changes, and illuminates the role of human rights and devolution in the growing influence of the U.K. Supreme Court citing the U.S. literature on federalism and judicial power)

New Scholarship in Ius Publicum Network Review


  1. José Esteve Pardo, La extensión del derecho público. Una reacción necesaria.
  2. Daniel Gordon &  Gabriella M. Racca, Integrity Challenges in the EU and U.S. Procurement Systems
  3. Jorge García-Andrade Gómez, La adopción de la estabilidad presupuestaria en la Constitución española
  4. Fabio Saitta, Towards a due process of eminent domain


  1. Hilde Caroli Casavola, Public procurement and globalization [Public Contracts (Italy)]
  2. Melania D’Angelosante, State Failures and the “Inclusive Subsidiarity” of the Market in Healthcare at the Time of the Economic Recession [Public Law and Economics (Competition and Regulation) and Public Utilities (Italy)]
  3. Maria Grazia Della Scala, State-Owned Enterprises: “Companies – Enterprises” and Public Entities Organized as Companies. A Review of Applicable Rules [Public Law and Economics (Competition and Regulation) and Public Utilities (Italy)]
  4. Maxime Boul, Droit public de la économie et sevices publics – Apport – 2012 [Public Law and Economics (Competition and Regulation) and Public Utilities (France)]
  5. M. Bertrand Sergues, Droit administratif et droit constitutionnel Apports de la période 2012 juin 2013 [European Law, Comparative Law, Constitutional Law and International Law - Human Rights (France)]
  6. Salomé Gottot, Droit administratif et droit de la Union Europeenne Apport de l’annee 2012 [European Law, Comparative Law, Constitutional Law and International Law - Human Rights (France)]

Call for Papers

  1. The Amity Society for International Law (ASIL), Amity Law School Delhi invite papers from students, experts, lawyers, academicians from India and abroad for the annual International Conference on Public International Law & Inauguration of  ILSA Chapter to be held on October 11-12, 2014 at Amity Law School Delhi, Delhi, India.
  2. The Lisbon Centre for Research in Public Law has issued a call for papers for its “Lisbon International Workshop on Global Administrative Law”, schedules to take place on November 28th at the University of Lisbon School of Law. (Abstracts should be submitted by August 1st, 2014).
  3. The Batumi International Conference on Law and Politics (BICLP 2014) invites submissions for its annual conference to be held in Batumi, Georgia on August 23-24, 2014.
  4. The Editorial Board of Comparative Constitutional Law & Administrative Law Quarterly (CALQ) invites submissions for Vol. 2 No. 1 from legal academicians, professionals and students.
  5. The International Journal of Law and Legal Jurisprudence Studies (IJLLJ) welcomes submissions for Volume 1 Issue 4.

Elsewhere on Blogs

  1. Greg Weiner, Defining Impeachment Up, Liberty Law Blog
  2. Steven D. Schwinn, Second Circuit Says Required Urine Test Substantially Burdens Religious Freedom, Constitutional Law Prof Blog
  3. Laura Meckler, Obama to Bar Contractors from Discriminating Against Gay Workers, WSJ Law Blog
  4. Rick Hasen, Could southern black voters save the Senate for Democrats?, Election Law Blog
  5. Sheila Smith, Reinterpreting Japan’s Constitution, ConstitutionNet
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Published on July 21, 2014
Author:          Filed under: Developments

Direct Democracy and Constitutional Change: Institutional Learning from State Laboratories in the USA

Jurgen Goossens, Ph.D. Candidate Ghent University, LL.M. Yale Law School

Although the federal constitutional amendment procedure in Article V of the U.S. Constitution has not been altered since its adoption 226 years ago, constitutional tradition in the 50 states has substantially evolved. For instance, popular referenda were unknown in 1787, but are now ubiquitous in state constitutionalism. Over time, a strong tradition of direct democracy and majoritarian voting rules has emerged in almost all states. Nevertheless, scholars have often neglected the rich source of state experiments with amendment procedures in the U.S. and usually only refer to Switzerland as the prime example of direct democracy and (constitutional) referenda.

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Published on July 18, 2014
Author:          Filed under: Analysis

The Italian Senate Under Reform: From Disguised Unicameralism to a True Regional Second Chamber?

Antonia Baraggia, University of Milan

After the recent attempts to reform the Irish and the Canadian Senates, the Italian second chamber is also undergoing a process of profound transformation.

The issue of reforming the Italian second chamber is not a recent development. The Italian Senate has been the subject of debate since the Constitutional Assembly gathered to design the Italian Constitution, which came into force in 1948. The solution adopted by the Founding Fathers was controversial insofar as it departed from the conventional model of bicameralism since it was more of a “disguised” unicameralism than a true bicameralism.

Italian bicameralism is generally known as “perfect bicameralism”, since the second chamber (the Senate) has exactly the same powers and functions of the first chamber (Chamber of Deputies), both in the legislative process and in the relationship with the government (e.g. the vote of confidence). Moreover, the Italian Senate represents the same electorate of the first chamber. Even though originally it had been conceived of as the chamber representative of the regions, as in all federal/regional states, it has not in reality assumed these functions, but has rather represented the whole citizenry (despite the fact that the electoral system of the Senate differs from that one of the first chamber).

In light of this kind of undifferentiated bicameralism, what Bentham affirmed regarding second chambers  is certainly true for the Italian case: if a second chamber offers nothing different from the first, then it is redundant and every cost incurred in its establishment and maintenance is wasted.

Facing the emergence of the limits of a perfect bicameralism, there have been several attempts to reform the Italian Senate, most notably in 1997 with the D’Alema Committe, in 2005 with the Center-Right Reform, and in 2007 with the Violante Project. All of these efforts were intended to transform the Second chamber into a “federal” one, representative of the regional character of the country, but until now none of these efforts have succeeded.

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Published on July 16, 2014
Author:          Filed under: Analysis

What’s New in Comparative Public Law

Rohan Alva, Jindal Global Law School

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative 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 comparative public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Comparative Public Law,” please email

Developments in Constitutional Courts

  1. The Supreme Court of India ruled that ‘fatwas’ issued by ‘Shariat Courts’ are legally unenforceable, especially when they are issued against individuals who have not asked for such an intervention, and when the declarations may result in the infraction of rights. The Supreme Court, however, declined to order the closure of ‘Shariat Courts’ in India.
  2. The European Court of Justice reversed Germany’s decision to deny a visa to an applicant, who wished to join her husband residing in Germany, on grounds of the applicant’s inability to exhibit knowledge of the German language. In the process of impugning the German legislation of 2007 which authorized such visa denials, the Court affirmed that rejections of requests for visas must be case specific and the absence of a knowledge of the language alone should not be grounds for rejection.
  3. The Hungarian Constitutional Court declined to entertain a petition, filed by a member of the political opposition, which questioned the ‘Paks Russian loan deal’ not being subjected to a referendum.
  4. A District Court judge in Colorado, U.S.A., invalidated a state ban on same-sex marriage, considering the definition of marriage in purely heterosexual terms as insufficiently connected to any ‘government interest’.
  5. The Constitutional Court of Turkey has suspended the implementation of a legislation which saved certain corporations from submitting an ‘environmental impact assessment report’ in respect of certain contentious ‘gigantic projects’.

New Scholarship

  1. Derek O’ Brien, The Constitutional Systems of the Commonwealth Caribbean: A Contextual Analysis (Hart Publishing, 2014) (investigating the positive role that the architecture of the constitutions in the different Caribbean nations has had in fostering an environment of political peace in the aftermath of colonialism, and evaluating the pace and scope of “constitutional reform” in the Caribbean)
  2. Laurence Tribe and Joshua Matz, Uncertain Justice: The  Roberts Court and the Constitution (Henry Holt and Co., 2014) (surveying a host of decisions delivered by the U.S. Supreme Court under the leadership of Chief Justice John Roberts, and evaluating the transformative impact of these decisions on American society)
  3. Jiunn-rong Yeh and Wen-Chen Chang (editors), Asian Courts in Context (Cambridge University Press, 2014, forthcoming) (collecting essays in which the different authors assess the performance of the judiciary in over a dozen Asian nations; trace the points of contrast between Asian and non-Asian courts; and, review the factors, unique to each nation, which have had an influence upon the path that each nation’s judiciary has embarked upon)
  4. Gretchen Helmke and Julio Rios-Figueroa (editors), Courts in Latin America (Cambridge University Press, 2014) (a compilation of essays in which the authors measure the performance of Latin American constitutional courts, and critically analyse the points of divergence between the manner in which the different courts have discharged their judicial functions)
  5. Lucy A. Williams, The Right to Housing in South Africa: An Evolving Jurisprudence, 45 Columbia Human Rights Law Review 816 (2014) (seeking to provide a holistic account of the onward developments that have taken place in South Africa with regard to housing rights, and closely analysing the “three aspects” which have governed recent judicial decisions)
  6. Richard Albert, Constructive Unamendability in Canada and the United States, 67 Supreme Court Law Review (forthcoming 2014) (classifying the many forms of unamendability, developing the concept of constructive unamendability, and illustrating that the Senate in both Canada and the United is constructively unamendable).

In the News

  1. I-CONnect and IUS Publicum Network Review have entered into a partnership to deepen the study of comparative public law and to enhance its online coverage. The IUS Publicum Network Review is a network of the national leading public and administrative law journals in Europe, whose aim is to track and interpret the evolution of public law in each country involved, pointing out its influences on the construction of an administrative and public European law and its connections with other legal cultures.
  2. Elections have recently been conducted in Indonesia in order to choose the nation’s next president. Reports suggest that the presidential candidate Joko Widodo might have garnered a lead, even as other reports suggest that the finality of the result of the elections might be delayed if challenged in the Indonesian Constitutional Court.
  3. The Lok Sabha of the Indian Parliament has passed the Andhra Pradesh Reorganisation (Amendment) Bill, which would effect a transfer of certain districts from the newly created state of Telangana to Andhra Pradesh. Opponents of the Bill have raised a question of constitutional propriety as to whether a state’s border can be changed, by Parliament, without following the consultation process outlined in Article 3 of the Indian Constitution.
  4. Abdullah Abdullah and Ashraf Ghani, the Afghan presidential candidates, have mutually consented to an authentication exercise to be undertaken of the nearly eight million votes that were polled. The election fell into controversy over allegations of ‘electoral fraud’ having been practiced.
  5. The English Prime Minister, David Cameron, has announced that his government has received multi-partisan support to introduce ‘emergency legislation’ aimed at easing the ability of law protection agencies ‘to access phone and internet records’.
  6. Dominica’s Parliament passed a formal constitutional amendment in order to place the Caribbean Court of Justice at the apex, for the purposes of appeals which emerge from Dominca. As a consequence of the amendment, the Judicial Committee of the Privy Council will cease to serve as the last court for appeals from Dominica.

Elsewhere on the Web

  1. Padraig Reidy, Has Ireland reintroduced criminal libel? Index on Censorship
  2. Joan Vennochi, Supreme Court’s Firsts Amendment hypocrisy, The Boston Globe
  3. Andrew Wheelhouse, The Zulu Case: Threats to Squatters’ Rights in South Africa, Oxford Human Rights Hub
  4. Apoorva Mandhani, While LGBT community celebrates the 5th anniversary of the historic Delhi HC judgment, the road ahead still remains unclear, Live Law
  5. Nicholas Watt, Former archbishop lends his support to campaign to legalise right to die, The Guardian

Call for Papers/Conferences

  1. Submissions are invited for the second issue of the Journal on Environment Law, Policy and Development. Authors must submit their papers to the journal by the 31st of October, 2014. The second issue is scheduled to be released in January, 2015.
  2. The Faculty of Law at the University of Ghana is hosting a conference on ‘Traditions, Borrowings, Innovations, & Impositions: Law in the Post-Colony and in Empire’ to be held from the 2nd to the 4th of July, 2015. Abstracts are to be submitted by the 1st of December, 2014.
  3. A call for papers has been issued by the Law Department of London School of Economics and Political Science for a conference on ‘De-juridification: Appearance and disappearance of law at a time of crisis’ which will be held on the 25th and 26th of October, 2014. Abstracts of papers are due by the 1st of August, 2014.
  4. Papers are called for by the Research in Social Movements, Conflicts and Change for its 38th Volume. Authors are to submit their manuscripts by the 7th of September, 2014.
  5. The New York Law School is organizing a conference on ‘Twenty Years of South African Constitutionalism’ from the 13th to the 16th of November, 2014. Abstracts along with a CV are should be sent in by the 15th of July, 2014.
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Published on July 14, 2014
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A Comment on the European Court of Human Right’s Judgment in S.A.S. v. France

Antonios KouroutakisOxford University

[Editor's Note: This is the second of two scholarly perspectives published on I-CONnect this week this week on S.A.S. v. France. The first was published here on Wednesday, July 9.]

How to balance individual rights with the state intervention to accommodate the interests of the society as whole is an inherently difficult question. This issue increasingly dominated the French agenda as the relatively recent phenomenon of wearing the scarf and hijab in France was seen as incompatible with the secular character of the French Republic.

In 2004 French Republic passed a law banning all conspicuous religious symbols in French public primary and secondary schools[1] which in practice targeted Muslims. In 2010 another law was passed banning the wearing in public of clothing designed to conceal one’s face which mainly affected Muslim women who wish to wear the full-face veil.[2]

The issues are of particular importance in the context of the state interest to reconcile expressions of personal faith with secular law and constitutional norms. The compatibility of the Law prohibiting the wearing of burqa and niqab in public places with the freedom of religion[3] and the right to privacy[4] was challenged before the European Court of Human Rights (the Court). A priori, any limitation to the right to privacy and the freedom to manifest one’s religion shall be based on a variety of grounds prescribed in the text of the Convention.[5]

On July 1st 2014, the Court with a groundbreaking decision set a new balance between the individual right (right to privacy and freedom of religion) and the rights and freedoms of others.

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Published on July 11, 2014
Author:          Filed under: Developments

The Burka Ban before the European Court of Human Rights: A Comment on S.A.S. v. France

Ioanna Tourkochoriti, Fellow, The Walker Institute for Area Studies and The Rule of Law Collaborative, University of South Carolina

[Editor's Note: This is the first of two scholarly perspectives that I-CONnect will publish this week on S.A.S. v. France. The second will be published on Friday, July 11.]

In S.A.S. v. France[1], the European Court of Human Rights examined whether the French Law of October 11th 2010 banning the full covering of the face (the law widely known as aiming to ban the wearing of the burka) is compatible with the European Convention of Human Rights (ECHR).

Although the Court recognizes many essential aspects of the right to freedom of religion in European Societies (which are becoming all the more multicultural), the ruling is disappointing as it concedes too much to the “margin of appreciation” of the state to define “the minimum requirements of the life in society” in a way that overlooks the need to protect individual liberties and the principle of equal respect, which must be afforded to every participant in such a society.

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Published on July 9, 2014
Author:          Filed under: Developments

ICON·S Inaugural Conference–Videos

Richard Albert, Boston College Law School

By all accounts, the inaugural conference of the newly established International Society of Public Law (ICON·S) was a resounding success. Held in Florence on June 26-28, the conference welcomed hundreds of scholars for three plenary sessions and sixty parallel panels structured around the theme of “Rethinking the Boundaries of Public Law and Public Space.”

Videos of the three plenary sessions are now available.

The first plenary session is available here (begins at 58:30). It is preceded by an introduction to the International Society of Public Law by Sabino Cassese, an introduction to the ICON-S Inaugural Conference by Joseph H.H. Weiler, and a keynote address by Jeremy Waldron. The subject of the plenary session itself is “Nominal Democracy? Prospects for Democratic Global  Governance.” The plenary paper is delivered by Robert O. Keohane, with Gráinne de Búrca and Seyla Benhabib as discussants. Michel Rosenfeld chairs the session.

The second plenary session on “The International in Constitutional Adjudication and the Constitutional in International Adjudication” is available here (begins at 14:50). The plenary paper is delivered by Joseph H.H. Weiler, with Ran Hirschl and Miguel Maduro as discussants. Helene Ruiz Fabri chairs the session.

The third plenary session on “The Constitutional Disestablishment of Gender: Gender Constitutionalism in the New Millennium” is available here (begins at 9:42). The plenary paper is delivered by Ruth Rubio Marin, with Mattias Kumm and Marta Cartabia as discussants. Sabino Cassesse chairs the session.

We look forward to your participation in the next ICON·S Conference!

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Published on July 8, 2014
Author:          Filed under: Developments

What’s New in Comparative Public Law

Patrick Yingling, Reed Smith LLP

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative 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 comparative public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Comparative Public Law,” please email

Developments in Constitutional Courts

1. The European Court of Human Rights ruled that France’s law banning women from wearing face-covering veils in public is not discriminatory.

2. Germany’s Constitutional Court ruled that the country’s president did not breach the constitution when he described a far-right party as “nutcases.”

3. The Supreme Court of Canada ruled that native peoples of British Columbia have the right to “use and control” lands where they have lived, hunted, and fished—and where governments and developers want to build pipelines and grant licenses to clear-cut forests.

4. The New York Court of Appeals ruled that a criminal cyberbullying statute enacted by the Albany County Legislature violates the First Amendment.

5. The U.S. Court of Appeals for the Fourth Circuit ruled that the U.S. District Court for the Eastern District of Virginia erred in concluding that it lacked jurisdiction over a case of alleged torture in the Abu Ghraib prison because the alleged abuses occurred in Iraq.

New Scholarship

1. Wojciech Sadurski, Searching for Illicit Motives: Constitutional Theory of Freedom of Speech, Equal Protection, and Separation of State and Religion, Sydney Law School Research Paper (applying the idea of unconstitutional motivations as a test of constitutionality to three areas of constitutional law: freedom of speech, equal protection, and separation of state and religion)

2. Roberto Scarciglia, Dynamic Reflections on Constitutional Justice, Beijing Law Review (2014) (reflecting critically on historical models of constitutional review in light of legal traditions, positive law within legal systems, and comparative methodologies)

3. David Landau, A Dynamic Theory of Judicial Role, Boston College Law Review (forthcoming 2014) (critically examining the democracy-improving model of judicial review in the “Global South”)

4. Richard Albert, Constitutional Amendment by Constitutional Desuetude, American Journal of Comparative Law (forthcoming 2014) (illustrating and theorizing the phenomenon of amendment by constitutional desuetude—the informal repeal of a constitutional provision as a result of a new constitutional convention)

5. Richard Albert, The Structure of Constitutional Amendment Rules, Wake Forest Law Review (forthcoming 2014) (illustrating that formal amendment rules are conceptually structured in three tiers–foundations, frameworks and specifications–and demonstrating how they may be deployed to manage federalism, express values and pursue democratic outcomes)

In the News

1. Akil Mochtar, the former chief justice of the Indonesia Constitutional Court, was jailed after being found guilty of selling election disputes to the highest bidder.

2. Pakistan’s parliament passed a new anti-terrorism bill that detractors are claiming grants excessive power to police.

3. The European Union called on Afghanistan to conduct a more extensive investigation into vote-rigging in their presidential election.

4. The two main factions in the Central African Republic’s conflict have taken a tentative step towards ending violence that has killed thousands and forced more than a million people to flee their homes.

5. The German government summoned U.S. Ambassador John B. Emerson after the arrest of a man who is claimed to be a U.S. spy working surveillance throughout the country.

Elsewhere Online

1. Lissa Griffin, Comparative Constitutionality of Warrantless Cell Phone Searches, Comparative Law Prof Blog

2. Haider Ala Hamoudi, Sistani and the Jihad, Jurist – Forum

3. Neal K. Katyal, The Supreme Court’s Powerful New Consensus, N.Y. Times

4. Vikas Bajaj, Scrubbing the Past, One Link at a Time, N.Y. Times Taking Note Blog

5. Lindsey A. Zahn, The New Chinese Trademark Law In Effect: The Wine Version, On Reserve – A Wine Law Blog

Calls for Papers / Conferences

1. The Editorial Board of the BioLaw Journal has issued a call for papers on “the Italian law 40/2004 ten years later.”

2. The Juris Diversitas Annual Conference will take place on July 17-19, 2014 at the Faculty of Law and Political Science, Aix-Marseille University, Aix-en-Provence, France.

3. Organizers invite submissions for the Sixth ASE International Conference on Privacy, Security, Risk and Trust to be held in Cambridge, Massachusetts on December 13-16, 2014.

4. Organizers invite proposals for papers and panels for a conference on “Traditions, Borrowings, Innovations & Impositions: Law in the Post-Colony and in Empire” to be held at the Faculty of Law, University of Ghana, Accra, July 2-4, 2015.

5. The University of Illinois College of Law, the University of Bologna School of Law, the Johns Hopkins SAIS Bologna Center, and the Center for Constitutional Studies and Democratic Development are accepting summaries of proposed papers for a conference on “Constitutional History: Comparative Perspectives” to be held in Bologna, Italy on October 6-7, 2014.

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Published on July 7, 2014
Author:          Filed under: Developments

The True Face of Disgust–A Comment on Japanese Constitutional Politics

–Kenji Ishikawa, Professor, University of Tokyo Faculty of Law

Amongst the representative postwar works of Takami Jun – a writer little commented upon today – one finds the novel A Feeling of Disgust.[1]

Its first-person narrator, speaking to readers in an informal, colloquial register, is a working-class anti-intellectual at odds with the claustrophobic mood of 1930s Japan. Though opposed to the self-righteousness of the Japanese military, the narrator also harbors a gut-level feeling of rejection toward the central current of anti-government thought up to that point – Marxism – associated as it was with the intellectual class emanating from Japan’s imperial universities. In consequence, the narrator becomes an anarchist, devoting himself to terrorist activities in an attempt to consume his own life.

The Mukden Incident of 1931, however, changes everything. The discourse of the era, taking the event as a “crisis,” at once begins to undermine both the narrator and Japanese society. This aspect is key.

It was fundamentally promised then that “crisis” and “emergency” were temporary states of exception, and that after overcoming them, things would return back to what they had once been. The suspension of the fetters of constitutionalism, the consolidation of separated powers, the restriction of people’s rights – even if, for the purpose of “national defense,” all these measures were implemented, their temporal duration would be limited. And yet, with Japan’s entrance into war against a vast China – a war that necessitated long-term commitment – a contradictory state of affairs arose: international crisis became normalized.

The guarantee of rights and the control of power are constituent elements of constitutionalism. This “normalized international crisis” permanently deprived Japanese society of constitutionalism. A system of total national mobilization was established on the grounds of “national defense,” and the lives of every individual were absorbed into the state. Power, its brakes ceasing their function, careened recklessly forward. The narrator of Takami’s novel had sought to overthrow state authority. By the time he notices it, however, he is on the front lines of battle in China, decapitating the heads of pitiful Chinese civilians. At the peak of this corporeal ecstasy, he falls into insanity.

At each major juncture on the road to this conclusion, the narrator experiences a gut-level “feeling of disgust.” Defeat in the war offered a release from this “feeling of disgust” for Takami Jun, within the affective dimensions of his own daily life. Therein is intimated that it was Japan’s postwar constitution that had contributed most of all toward cordoning off this “feeling of disgust.” Intimated, too, is a perverse sense of the fact that freedom was at long last achieved through defeat.

*                                              *                                              *

That “constitution” is about to be changed – again, on the pretense of “crisis,” and at a distance far removed from the reach of the “people.”

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Published on July 5, 2014
Author:          Filed under: Analysis

Why Hong Kong’s Lawyers Marched

–Alyssa S. King and Alvin Y. H. Cheung

On June 27, 2014, up to 1,800 of Hong Kong’s legal professionals, including barristers, who litigate in the courts, and solicitors, who handle all lay client-facing work, marched in silence across the city’s center – for the third time since China resumed sovereignty in 1997[i] – in opposition to a recent white paper published by the State Council (“the White Paper”).[ii]

The White Paper was a significant departure in form, if not in substance. Published in seven languages by the State Council Information Office, it was aimed as much at foreign governments as it was at the Hong Kong public – a striking departure for Beijing, which typically inveighs against foreign interference. Its contents came as little surprise to a domestic audience, but might disturb those who think of Hong Kong as a relatively free city, albeit one that has never decided its own fate.[iii]

Consistent with previous statements endorsing “mutual understanding and support” between branches of government,[iv] the White Paper referred to judges as “administrators” of Hong Kong, of whom “loving the country” was a “basic political requirement.”[v]

The paper drew an immediate response from the Hong Kong Bar Association, which represents the city’s barristers, including paragraph four, printed in bold, capital letters:


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Published on July 2, 2014
Author:          Filed under: Developments