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I·CONnect

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

Populist Constitutions – A Contradiction in Terms?

Jan-Werner Müller, Princeton University

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here. Professor Müller’s post is adapted from his book What is Populism? (Philadelphia: University of Pennsylvania Press, 2016) and from “Populism and Constitutionalism,” forthcoming in the Oxford Handbook of Populism.]

The meaning of “populism” is deeply contested.  It is striking, though, that many observers appear to agree on one point: whatever else it is, populism is inherently hostile to the mechanisms and, ultimately, the values commonly associated with constitutionalism: constraints on the will of the majority, checks and balances, protections for minorities, and even fundamental rights as such.  Populists are supposedly impatient with procedures; they are even said to be against “institutions” as such, preferring a direct, unmediated relationship between the personal leader and the people.  Connected with this supposed anti-institutionalism is the charge that populists dislike representation and opt instead for direct democracy (as exemplified by referenda).  Hence also the impression–widespread both among political philosophers and social scientists–that populism, despite some serious flaws, might under some circumstances serve as a “corrective” to a liberal democracy the has become too remote from the people.

This hope is misplaced.  But one can see how it arose, when one considers how the debate about constitutionalism and populism suffers from several unfortunate characteristics. First, the discussion often becomes conflated with the controversy about the merits of majoritarianism (and, conversely, judicial review). Second, there is no clear or even discernible distinction between popular constitutionalism on the one hand, and populist constitutionalism, on the other. And third and most importantly, “populism” frequently serves as a vague placeholder for “civic participation” or “social mobilization” (and, conversely, for weakening the power of judges and other elites).[1]  Quite apart from the vagueness of the notions used (or perhaps because of this vagueness), there’s the fact that debates about populism and constitutionalism–especially in the U.S.–quickly turn emotional, with accusations of elitism and “demophobia” flying about, and theorists accused of having bad “attitudes toward the political energy of ordinary people” or, alternatively, of promoting “ochlocracy.”[2]

However, populists are not generally “against institutions,” and they are not destined to self-destruct once in power, as a widespread view among liberals naively assumes.  They only oppose those institutions that, in their view, fail to produce the morally (as opposed to empirically) correct political outcomes.  Populists in power are fine with institutions–which is to say: their institutions.

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Published on April 23, 2017
Author:          Filed under: Analysis
 

Introduction: Constitutional Courts and Populism

Michaela Hailbronner, University of Münster, Germany, and David Landau, Florida State University College of Law

This mini-symposium is a joint project between the editors of the Verfassungsblog and the editors of I-Connect. We have brought together a number of prominent scholars, working on different issues, approaches, and regions of the world, and invite contributions by others, to tackle a pressing issue: the importance of populism for comparative constitutional law. Scholars of certain countries and regions, such as Latin America, have long been attuned to this issue. But recent events have made it a central concern for countries long thought relatively immune to its challenges, both in North America and Europe. The challenge of populism is thus ripe for Global South-Global North dialogue, perhaps indeed with the rich experiences of the Global South serving as a major source of ideas for the north.

This brief introduction highlights several of the major themes examined by the posts in the symposium: the nature of the challenge posed by populism to constitutionalism, the extent to which constitutional design gives us answers to this threat, and the ability of judges in particular to act as a counterweight to populist pressures. We take these issues in turn, giving a brief overview of the contributions themselves in the course of that.

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Published on April 22, 2017
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Call for Papers–“What can Central and Eastern Europe Learn from the Development of Canada’s Constitutional System?”–Budapest, Hungary–28 June 2017

Call for Papers

International Symposium on 
What can Central and Eastern Europe Learn from the Development of Canada’s Constitutional System?

On the Occasion of the 150th Anniversary of Confederation

Eötvös Loránd University (ELTE), Faculty of Law
Egyetem tér 1-3.
Budapest, Hungary

28 June 2017

Convened by
Pál Sonnevend
Nóra Chronowski
Eszter Bodnár
Zoltán Pozsár-Szentmiklósy

This Symposium will convene a group of scholars to reflect on the history and evolution of the Constitution of Canada, on its written and unwritten dimensions and on its influence abroad taken on a wide perspective.

Submissions are invited from scholars of all levels – from senior scholars to doctoral students (especially from the Central and Eastern European region) – on one or more of the following subjects. We invite participants to take any methodological approach they wish, including comparative, doctrinal, empirical, historical and/or theoretical perspectives.

  1. The History and Evolution of the Constitution of Canada
  2. The Influence Abroad of the Constitution of Canada on Constitutional Practice
  3. The Influence Abroad of the Constitution of Canada on Constitutional Culture

The Symposium will be highlighted by keynote addresses of Jeremy Webber, Professor and Dean of Law at the University of Victoria and Richard Albert, Professor at Boston College Law School.

How to Participate

Interested scholars are asked to submit an abstract no longer than 500 words by 10 May 2017 to canadabudapest2017@gmail.com. A Symposium Selection Committee will choose abstracts and notify all scholars no later than 15 May 2017. Full drafts of papers will be due by email to canadabudapest2017@gmail.com no later than 14 June 2017. Papers should be no longer than 10,000 words (footnotes included).

A selection of papers presented at the Symposium will be published in the ELTE Law Journal, subject to successful blind peer-review.

Costs

There is no cost to participate in the Symposium. Participants are responsible for securing their own funding for travel, lodging and other incidental expenses. The Eötvös Loránd University (ELTE) will sponsor lunch and dinner on the day of the Symposium.

Questions

Please direct inquiries in connection with this Symposium to János Mécs or Veronika Kéri, project assistants at canadabudapest2017@gmail.com.

Sponsors

We thank the Embassy of Canada, Budapest, Hungary for supporting this Symposium.

About the Keynote Speakers

Jeremy Webber

Jeremy Webber is Dean of Law at the University of Victoria (2013 to present). He was appointed a Fellow of the Trudeau Foundation in 2009 and a Fellow of Royal Society of Canada in 2016. From 2002 to 2014 he held the Canada Research Chair in Law and Society at the University of Victoria. Prior to joining UVic, he was Dean of Law at the University of Sydney, Australia (1998-2002) and Professor of Law (and Associate Dean, Graduate Studies and Research) at McGill University (1987-1998).

Professor Webber has written widely in the areas of constitutional law, Indigenous rights, federalism, cultural diversity, and constitutional theory, in Canada and in relation to other countries (especially Australia). His work has been published in six languages in fourteen countries. He is the author of Reimagining Canada: Language, Culture, Community and the Canadian Constitution (1994) and The Constitution of Canada: A Contextual Analysis (2015). He is co-editor of:  Let Right Be Done:  Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (2007; with Hamar Foster and Heather Raven); Between Consenting Peoples:  Political Community and the Meaning of Consent (2010; with Colin Macleod), Storied Communities: Narratives of Contact and Arrival in Constituting Political Community (2011, with Hester Lessard and Rebecca Johnson), and Recognition versus Self-Determination: Dilemmas of Emancipatory Politics (2014, with Avigail Eisenberg, Glen Coulthard, and Andrée Boisselle).

Richard Albert

Richard Albert writes about constitutional amendment from comparative, doctrinal, historical and theoretical perspectives. He is currently completing a monograph on constitutional amendment to be published by Oxford University Press. He is also co-editor of “The Foundations and Traditions of Constitutional Amendment (Oxford: Hart 2017), “Canada in the World: Comparative Perspectives on the Canadian Constitution” (Cambridge University Press 2017) and “The Oxford Handbook of Caribbean Constitutions” (Oxford University Press 2018). Since 2014, he is Book Reviews Editor for the American Journal of Comparative Law, which awarded him the Hessel Yntema Prize for “the most outstanding article” on comparative law by a scholar under 40. A former law clerk to the Chief Justice of Canada and a founding co-editor of I-CONnect, he is a graduate of Yale, Harvard and Oxford. Richard Albert is currently a full professor at Boston College Law School, and he has been appointed to the visiting faculty at Yale University, Externado University of Colombia, the University of Toronto, and the Interdisciplinary Center (Herzliya) in Israel.

About the Conveners

Pál Sonnevend 

Pál Sonnevend is Vice-Dean for International Affairs at the ELTE Faculty of Law. He is an Associate Professor of European and International Law and the head of the International Law Department. He also has a remarkable experience in constitutional law, administrative law, energy law and international arbitration. He has been teaching EU law and international law since 1998. Previously, he advised two consecutive presidents of Hungary, His Excellency Mr. Ferenc Mádl and His Excellency Mr. László Sólyom, in constitutional matters.

Nóra Chronowski

Nóra Chronowski is an associate professor at Eötvös Loránd University Faculty of Law, chair-holder of Constitutional Law Department and visiting researcher at Hungarian Academy of Sciences Centre of Social Sciences Institute for Legal Studies in Budapest. She is the author of several books and over 190 articles, editor in chief of “Közjogi Szemle”, a Hungarian public law periodical. She participated in six international research cooperations supported by ERC and European Commission and was Jean Monnet Chair-holder from 2007 to 2010 at University of Pécs Faculty of Law. Her research interests are comparative, EU and Hungarian constitutional law, human rights protection, minority rights.

Eszter Bodnár

Eszter Bodnár has been an assistant professor at the Faculty of Law of University Eötvös Loránd (ELTE) in Budapest, Hungary since 2013. She teaches comparative constitutional law, Hungarian constitutional law, and international human rights at the Department for Constitutional Law. She is a legal adviser at the Association of European Election Officials and member of Advisory Board of Head of Supreme Court in Constitutional Matters. She is also a faculty member in the Master of Electoral Policy and Administration program of Scoula Sant’Anna, Pisa. She graduated as a lawyer and worked at the Department of Constitutional Law in the Hungarian Ministry of Justice, and in the Hungarian National Election Office. She obtained her PhD degree in constitutional law in 2013.

Zoltán Pozsár-Szentmiklósy

Zoltán Pozsár-Szentmiklósy is an assistant professor of constitutional law at the Eötvös Loránd University (ELTE), Budapest. Besides, he has been the Rector’s commissioner-general for student affairs at the same institution, since 2013. He served as the director of the ELTE Bibó István College of Advanced Studies between 2008-2012 and as an elected member of the National Election Commission of Hungary between 2010-2013. Previously he worked as a legal officer of the Hungarian Helsinki Committee, an NGO working for the protection of fundamental rights and the enforcement of the rule of law. He obtained his PhD degree in constitutional law in 2014. His research interests are comparative constitutional law, the principle of proportionality and direct democracy.

About the Host Academic Institution

The Eötvös Loránd University (ELTE) is Hungary’s oldest, largest and most prestigious university. Tuition at the Faculty of Law of ELTE University began in 1667 so this year we celebrate our 350th anniversary. The Faculty of Law maintains wide-ranging international relations primarily with universities in Europe and is proud to be involved in educational and research projects with similar institutions abroad. In recent years, we have placed special emphasis on consolidating ties with universities in neighboring countries to promote intensive regional co-operation in legal education. Find more information on: http://www.ajk.elte.hu/en.

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Published on April 21, 2017
Author:          Filed under: Developments
 

Mandatory Voting as a Tool to Combat the “New Populism”

András László Pap, Research Chair, Hungarian Academy of Sciences Centre for Social Sciences Institute for Legal Studies; SASPRO-Marie-Curie Fellow, Slovak Academy of Sciences Institute for Sociology; Recurrent Visiting (Adjunct) Professor, Central European University; Professor, National University of Public Service, Budapest, and Anna Śledzińska-Simon, Assistant Professor, University of Wrocław

 

The Hungarian and Polish experience of constitutional capture by a parliamentary majority that disregards any limitations of power and ruthlessly subordinates all once-independent sectors of public life, including the judiciary, media, academia, and civil society, clearly demonstrates that once in power, populist governments and their leaders are virtually unstoppable. While disestablishing the rule of law, they still claim to have democratic legitimacy of the popular will.

This comment is prompted by a search for a successful strategy to combat the “New Populism” and makes the following arguments. The “New Populism” and illiberal democracies flourish in domestic cold wars that demonize political opponents while populist leaders rely on “disenchantment” and large-scale disillusionment in most political parties by the majority of voters, who do not take part in the elections. In this context we ask whether mandatory voting, a model currently used and enforced in several states, could be a potential silver bullet to dethrone autocratic populists.

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Published on April 19, 2017
Author:          Filed under: Analysis
 

What’s New in Public Law

–Sandeep Suresh, LL.M in Comparative Constitutional Law (Central European University, Budapest)

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 Indian Supreme Court held that citizens have the right to access the Internet, and search engines must not encroach upon that right but must censor prenatal sex determination advertisements on the Internet according to the law.
  2. The Federal Constitutional Court of Germany ruled that restrictions on gambling halls imposed by laws of three Laender are constitutional.
  3. The Constitutional Court of Hungary annulled local regulations in Asotthalom village that banned muezzins operating in public areas, banned burkas and chadors, and also “propaganda activities that present marriage in other ways than the bond between a man and a woman.”
  4. The Federal Constitutional Court of Germany rejected an appeal against the Germany’s data retention law.
  5. The Constitutional Court of South Africa decides whether a non-confidence motion against President Jacob Zuma may be initiated through secret ballot.

In the News

  1. Turkish people approved constitutional amendments in a referendum that will grant the President sweeping new powers.
  2. The Hungarian National Assembly passed a law on higher education that constrains the operation of non-EU universities in the country. And while it is not specifically named, it has been widely noted that the legislation seems to target one institution in particular: The Central European University (CEU).
  3. Justice Neil Gorsuch was sworn in as a judge of the US Supreme Court.
  4. The Indian Supreme Court Collegium, the body responsible for recommending names for judicial appointments, recommended 51 candidates for appointments to 10 High Courts at once.
  5. The Parliament of Egypt passed an amendment to the country’s emergency law to allow detention without warrants and for indefinite periods.
  6. Nigeria is to deal with diverging versions of the Constitution in circulation.
  7. Saldi Isra has been appointed to the Indonesian Constitutional Court. [Submitted by Rosa Ristawati.]

New Scholarship

  1. Richard Albert, Constitutional Amendment and Dismemberment, 43 Yale Journal of International Law (forthcoming 2018) (introducing and theorizing the phenomenon, concept, doctrine and theory of constitutional dismemberment, a type of constitutional change situated between an amendment and a new constitution)
  2. Karen J. Alter, National Perspectives on International Constitutional Review: Diverging Optics, in Erin Delaney and Rosalind Dixon (eds.), Comparative Judicial Review (forthcoming 2018) (discussing two diverging lenses which national judges use to approach international law and rulings of international courts)
  3. Moshe Cohen-Eliya and Iddo Porat, The Administrative Origins of Constitutional Rights and Global Constitutionalism, in Mark Tushnet and Vicki Jackson (eds.), Proportionality: New Frontiers, New Challenges (forthcoming 2017) (explaining the difference in the development of constitutional and administrative law in the US and Europe, and the influence of that difference on the conception of constitutional law and rights)
  4. Mark Elliott, The Supreme Court’s Judgment in Miller: In Search of Constitutional Principle, Cambridge Law Journal (2017) (critically examining the UK Supreme Court’s judgment in (Miller) v Secretary of State and exposing certain drawbacks of the majority judgment)
  5. Asim Jusic, Mobilizing Around Religious Symbols: The European Court’s Margin of Appreciation between Consent, Mobilizations and Status, University of Pennsylvania Journal of International Law (forthcoming 2017) (critically scrutinising the European Court of Human Rights’s use of the doctrine of margin of appreciation in cases involving controversial religious symbols)
  6. Rebecca E. Lipman, Protecting Privacy with Fourth Amendment Use Restrictions, George Mason Law Review (forthcoming 2017) (offering a new, two-track approach based on doctrines of the fourth amendment to restrict certain uses of lawfully collected material by the Police authorities)
  7. Anne Peters, Constitutionalisation (2017) (showing the various aspects of constitutionalisation of international law and international organisations)

Calls for Papers and Announcements

  1. The European Law Institute invites original unpublished papers for the “1st ELI European Young Lawyers Award.” The award winner will be eligible to present his or her paper at the ELI Annual Conference. Interested authors must submit their papers by April 30, 2017 to award@europeanlawinstitute.eu.
  2. The Spring 2017 Issue of the ‘European Journal of Legal Studies’ has been released. The topics discussed in this issue include the Council of Europe Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence, the European Court of Justice’s interpretation of the fundamental right to conduct business, the cross-border portability of online content services in the EU, and empirical legal studies.
  3. The Harvard Journal on Racial and Ethnic Justice invites submissions for a volume of “Race in Education.” Interested authors must send their papers to hjrejsubmissions@gmail.com. Submissions are accepted on a rolling basis.
  4. The Manchester Centre for Political Theory at the University of Manchester invites papers for presentation at the Workshop on “Change of Law in a Democratic State: Normative Foundations and Factual Processes,” to be held on September 11-13, 2017. Interested participants must submit abstracts of their papers before June 1, 2017 to michal.dru@gmail.com.
  5. The CyberLaw Program at the Hebrew University and the Cyber, Law, and Policy Center at the Haifa University invites paper proposals for the Conference on “Cyber Challenges to International Human Rights.” The conference will held in Jerusalem and Haifa on December 11-12, 2017. Interested scholars must submit their proposals to hcsrcl@gmail.com by May 1, 2017.

Elsewhere Online

  1. Giancarlo Anello, The Holy Word does not come strictly in Italian – Another Islamophobic Law stopped in Northern Italy, Verfassungsblog
  2. Gautam Bhatia, What is the Role of a Judge in a Polyvocal Court?, Indian Constitutional Law and Philosophy
  3. Colin PA Jones, Japanese people v. the United States et al, Japan Times
  4. KM Hayne, The ‘Great Repeal Bill’, UK Constitutional Law Blog
  5. Alok P Kumar, No Democracy Without the Courts, Firstpost
  6. Tarik Olcay, Turkey’s Presidentialist Shift: An Anticonstitutional Amendment?, Blog of the IACL, AIDC
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Published on April 17, 2017
Author:          Filed under: Developments
 

What’s at Stake in the Turkish Constitutional Amendment Proposal

–Ilayda Gunes, The University of Chicago Law School

In the wake of the failed coup attempt of July 15, 2016, Turkey has been struggling to heal its wounds under a state of emergency. Apart from the loss of hundreds of lives and more than 2,000 injured in clashes during the abortive coup, the country has also been facing a string of terrorist attacks from the Islamic State (ISIS) and the Kurdistan Workers’ Party (PKK). This was followed by a decrease in consumer and business confidence, which led to a steep depreciation in the Turkish lira against other currencies.

In the midst of this unprecedented blend of national crises, on January 21, 2017, the Turkish parliament passed a constitutional amendment bill with 18 articles that would, among other measures, augment the powers of the president and convert the country from a parliamentary political system into a presidential one. The bill was proposed by the ruling Justice and Development Party (AKP) and supported by the minor opposition Nationalist Movement Party (MHP).[1] To enter into force, the amendments must be approved by public referendum that will be held on April 16, 2017.

The presidentialism debate in Turkey is not new. The idea of transforming the current parliamentary system — in which the president’s powers are largely ceremonial — into a system that unifies the head of government (prime minister) with the head of state (president) has been on the agenda since the 1980s. Yet it has only recently become a viable option and begun to bear fruit.

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Published on April 14, 2017
Author:          Filed under: Developments
 

Venezuela’s Recent Constitutional Crisis: Lessons to be Learned From a Failed Judicial Coup D’etat (I-CONnect Column)

Javier Couso, Universidad Diego Portales

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

I. It has long been long known by observers of Venezuela’s political process that, soon after President Chávez got into power (in 1999), the executive branch started to co-opt the judiciary, up to the point that it is now considered to be under total government control. This situation proved to be extremely useful for the Bolivarian regime, since it allowed it to exclude popular opposition candidates from important electoral races, attack independent media, and imprison dissidents under dubious charges, all with the excuse that it was only following judicial orders.

In this era of authoritarian use of legal forms in many countries, the recourse to the courts to consolidate political power in the hands of the executive branch has become a common pattern among autocrats. Given this, as Kim Lane Scheppele has pointed out, comparative constitutional scholars should work harder to understand the many ways in which the judicial branch can be controlled by illiberal leaders who want to put the courts at the service of the expansion and consolidation of their power.

II. A few weeks ago Venezuela’s highest court, the Supreme Court of Justice, issued a series of decisions which suggest that (even under a semi-authoritarian regime) the judiciary has to show some restraint and respect for judicial forms in order to preserve at least the appearance of impartiality needed to work at the service of autocrats.

Faced with the unwillingness of the opposition-controlled National Assembly to accept some of its previous decisions, the Supreme Court of Justice of Venezuela issued a ruling in which it stated that “in order to preserve the country’s rule of law” it felt forced to transfer to itself (“or to the entity that the Court decides”) all the powers enjoyed by Parliament, while –in a second ruling, issued the next day— it stripped the members of the National Assembly of their immunity.

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Published on April 12, 2017
Author:          Filed under: Developments
 

Chaos, Kings, and Thailand’s 20th Constitution

Khemthong Tonsakulrungruang, Chulalongkorn University

After three years, three commissions, and millions of Baht spent, Thailand’s 20th Constitution finally came into effect. On the 6th day of April 2017, King Vajiralongkorn signed the Constitution in presence of the royal family members, courtiers, the cabinet, members of the National Legislative Assembly (NLA), judges, diplomats, and other bureaucrats at the Ananta Samakhom Throne Hall. The drafters claim the charter shall bring the country perpetual prosperity and peace while opponents warn of its upcoming failure. Given controversies surrounding the document, this post sets out to trace its drafting history, discuss the meaning of the signing ceremony, and speculate the future of Thai politics.

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Published on April 11, 2017
Author:          Filed under: Developments
 

What’s New in Public Law

–Simon Drugda, Nagoya University Graduate School of Law (Japan)

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 Constitutional Court of Spain temporarily suspended the part of Catalonia’s 2017 budget which would be used to fund an independence referendum.
  2. The Constitutional Court of South Africa has dismissed an appeal by the Department of Environmental Affairs to keep a national moratorium on the domestic trade of rhinoceros horn, effectively overturning the ban.
  3. The Indonesian Constitutional Court ruled that the Home Affairs Ministry can no longer revoke local regulations issued by provincial, city or district administration unilaterally.
  4. The European Court of Justice upheld a visa ban on an Iranian student seeking to study security topics at a university in Germany.
  5. The Slovak National Council revoked the so-called Mečiar’s amnesties. The Constitutional Court now has 60 days to review the revocation, under the new amendment to the Constitution.

In the News

  1. The king of Thailand signed the new Constitution into law, which opens a way for long-delayed elections.
  2. The Parliament of Kenya passed a bill empowering MPs to remove the Attorney General from office. Anyone can petition the Parliament, which will then form a select committee to investigate the claims in the petition.
  3. The Benin National Assembly narrowly rejected a set of constitutional amendments that would have limited the president to one term.
  4. The President of Chile put forward a bill to rewrite the country’s 1980s Constitution, a relic of the dictatorship era.
  5. The Supreme Court of Russia began hearings on a request to outlaw the Jehovah’s Witnesses religious group.
  6. The Cabinet of German Chancellor Angela Merkel approved draft legislation that would require social networks to remove hate speech.

New Scholarship

  1. Amrei Müller and Hege Elisabeth Kjos (eds.), Judicial Dialogue and Human Rights (2017) (offering a comprehensive analysis of the extent, method, purpose and effects of domestic and international courts’ judicial dialogue on human rights)
  2. Graham Butler, A Question of Jurisdiction: Art. 267 TFEU Preliminary References of a CFSP Nature (2017) 1 European Papers (analyzing the possibility for judicial control of EU foreign policy and EU external relations, when questions are sent to the Court of Justice of the European Union from national courts in EU Member States)
  3. Christoph B. Graber, Bottom-Up Constitutionalism: The Case of Net Neutrality (2017) 7 Transnational Legal Theory (arguing that net neutrality is about to emerge as a new fundamental value and right, through bottom-up constitutionalization)
  4. Eloise Gratton and Jules Polonetsky, Droit À L’Oubli: Canadian Perspective on the Global ‘Right to Be Forgotten’ Debate (2017) Colorado Technology Law Journal (exploring whether importing a right to be forgotten for the jurisprudence of European Courts would be constitutional in Canada)
  5. Bui Ngoc Son, Contextualizing the Global Constitution-Making Process: The Case of Vietnam (2016) 64 Am J Comp Law (discussing the global features of 21st century constitution-making and the case of Vietnam)
  6. Laura Kalman, The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court (2017) (arguing that the divisive contemporary US Supreme Court confirmation process is rooted in the late 1960s and early 1970s, and not in the Bork nomination as is often assumed)
  7. Gregory P. Magarian, Managed Speech: The Roberts Court’s First Amendment (2017) (exploring and critiquing how the current U.S. Supreme Court, under the leadership of Chief Justice John Roberts, has reshaped First Amendment law)
  8. Anthony J. Bellia Jr. and Bradford R. Clark, The Law of Nations and the United States Constitution (2017) (providing a framework for evaluating the status of international law in U.S. courts and the relationship of the law of nations with the Constitution)
  9. Frank Fagan and Saul Levmore (eds.), The Timing of Lawmaking (2017) (examining the diverse interactions between law and time, and provides important perspectives on how law’s architecture can be understood through time)
  10. András Jakab, Arthur Dyevre and Giulio Itzcovich (eds.), Comparative Constitutional Reasoning (2017) (presenting a comprehensive and systematic analysis of constitutional reasoning on a global scale with attention to subtleties in form, style or language)
  11. Iljoong Kim, Hojun Lee and Ilya Somin (eds.), Eminent Domain: A Comparative Perspective (2017) (using a common framework to analyze the law and economics of eminent domain around the world)
  12. Leora Batnitzky and Hanoch Dagan (eds), Institutionalizing Rights and Religion: Competing Supremacies (2017) (examining how the institutional design of both religions and political regimes influences the relationship between religious practice and activity and human rights)
  13. Tamar Hostovsky Brandes, Law, Citizenship and Social Solidarity: Israel’s ‘Loyalty-Citizenship’ Laws As a Test Case (forthcoming 2017) (examining the loyalty discourse in Israel and the Loyalty-Citizenship Laws)
  14. Niels Petersen, Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa (2017) (empirical analyzing the use of the proportionality test in three constitutional courts, and arguing that although the test does give judges a considerable amount of discretion, his analytical openness does not necessarily lead to judicial activism)
  15.  Ioanna Tourkochoriti, Review of John Bell and Marie-Luce Paris (eds), Rights-Based Constitutional Review – Constitutional Courts in a Changing Landscape (Edward Elgar, Cheltenham 2016), The Irish Jurist (2017) (book review of Bell and Paris’ “Rights-Based Constitutional Review – Constitutional Courts in a Changing Landscape”)

Call for Papers and Announcements

  1. The American Society of Comparative Law and American University College of Law invite panel proposals for the upcoming Annual Meeting of the American Society of Comparative Law that will be held between Thursday, October 26, and Saturday, October 28, 2017, at American University Washington College of Law on “Comparative law, Faith and Religion: The Role of Faith in Law.” Panel proposals should be submitted via e-mail to Tra Pham at tpham@wcl.american.edu no later than June 1, 2017, and copied to Máximo Langer at langer@law.ucla.edu.
  2. The University of Trento organizes a workshop: The Debate on the Uniform Civil Code in India: New Perspectives on Constitutional Secularism in India and Personal Laws Regimes in Asia? The workshop will take place on April 27-28, 2017.
  3. The Comparative Constitutional Law and Administrative Law Quarterly (CALQ) invites submissions for its 3 Volume in the year 2017. The deadline for submissions is May 10, 2017.
  4. Cornell Law School and the Society for Empirical Legal Studies (SELS) invite submissions to the 12th Annual Conference on Empirical Legal Studies (CELS) on October 13-14, 2017, in Ithaca, New York. The submission deadline is June 23, 2017.
  5. The Public Land & Resources Law Review invites submissions for panelist presentations at its 37th Public Land Law Conference on “Bridging Divides: Energy, Environment, and Empowerment in a New Era,” to be held at the Alexander Blewett III School of Law at the University of Montana. The abstract deadline is May 1, 2017.
  6. The Illinois Law Review intends to select a Symposium for publication in the 2017-2018 Volume of the journal. If you are organizing a conference or have an idea that could function as a Symposium, please submit a proposal in electronic form to the Law Review no later than April 29, 2017 by emailing Sam Zuidema at szuidem2@illinois.edu.
  7. The University of Geneva in collaboration with the Berkman Center for Internet & Society at Harvard University, the CRIDES Center for Economic Law and Society at the Catholic University of Louvain (UCL), the Digital Asia Hub, the Geneva Internet Platform, the Institute for Technology and Society of Rioand the Renmin University of China organize the Geneva Internet L@w Research Colloquium. Submissions are due by April 30, 2017.
  8. The VU Amsterdam Summer School offers a course on Laws in Antiquity: Law and Legal Systems from Mesopotamia, Egypt, Rome and Byzantium.

Elsewhere Online

  1. Farrah Ahmed, The Autonomy Rationale for Religious Freedom, UK Constitutional Law Blog
  2. Martha Minow, Bread and Circuses 2.0, The New Rambler
  3. David Pozen, The Abortion Closet, Concurring Opinions
  4. Tonja Jacobi and Dylan Schweers, Legal scholarship highlight: Justice, interrupted – Gender, ideology and seniority at the Supreme Court, SCOTUSblog
  5. Cortelyou Kenney and Amy Kapczynski, The Supreme Court Avoids a Broad Ruling on Free Speech in Expressions Hair Design, CRITical Thinking
  6. Removal of President Zuma: What counts is who controls the ANC NEC » Constitutionally Speaking, Constitutionally Speaking
  7. Vrinda Bhandari, Courts and contempt powers in India: The case of Jolly LLB-2, OxHRH
  8. Yee-Fui Ng, A Ban on Foreign Political Donations: Definitions, Scope and Constitutional Validity, AUSPUBLAW
  9. Lea Raible and Leah Trueblood, The Swiss System of Referendums and the Impossibility of Direct Democracy, UK Constitutional Law Blog
  10. Devika Hovell, The ‘Mistrial’ of Kumar Lama: Problematizing Universal Jurisdiction, EJIL:Talk!
  11. Peter Spiro, Germany and the Erdogan Referendum: The Case for External Voting and Dual Citizenship, Verfassungsblog
  12. Carna Pistan, 2017 Constitutional Reform in Kazakhstan: increasing democracy without political pluralism?, ConstitutionNet
  13. Michael Keating, Between a rock and a hard place, Blog of the Centre on Constitutional Change
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Published on April 10, 2017
Author:          Filed under: Reviews
 

Five Questions with Donald Horowitz

Richard Albert, Boston College Law School

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

This edition of “Five Questions with … ” features Donald Horowitz, the James B. Duke Professor of Law and Political Science Emeritus at Duke University and a Senior Fellow in the International Forum for Democratic Studies at the National Endowment for Democracy. His full bio follows below:

Donald L. Horowitz is the James B. Duke Professor of Law and Political Science Emeritus at Duke University.  He holds law degrees from Syracuse and Harvard and a Ph.D. in political science from Harvard. Professor Horowitz  is the author of seven books: The Courts and Social Policy (1977), which won the Louis Brownlow Award of the National Academy of Public Administration; The Jurocracy (1977), a book about government lawyers; Coup Theories and Officers’ Motives: Sri Lanka in Comparative Perspective (1980); Ethnic Groups in Conflict (1985, 2000); A Democratic South Africa? Constitutional Engineering in a Divided Society (1991), which won the Ralph Bunche Prize of the American Political Science Association; The Deadly Ethnic Riot (2001); and Constitutional Change and Democracy in Indonesia, published in 2013 by Cambridge University Press and issued in a Bahasa Indonesia translation in 2014.

Professor Horowitz has been a Visiting Professor at the University of Chicago Law School and at the Central European University and a Visiting Fellow at Wolfson College, Cambridge, at the Law Faculty of the University of Canterbury in New Zealand, at Universiti Kebangsaan in Malaysia, in the Academic Icon program at the University of Malaya, and in the Distinguished Visitor program at the National University of Singapore and at Nanyang Technological University in Singapore. In 2017, he will be a visitor at Nuffield College, Oxford.   In 2001, he served as Centennial Professor at the London School of Economics, and in 2001-02, he was a Carnegie Scholar. In 2009, he was presented with the Distinguished Scholar Award of the Ethnicity, Nationalism, and Migration Section of the International Studies Association.

Professor Horowitz is currently writing a book about constitutional process and design, particularly for divided societies, a subject on which he has advised in a number of countries. In 2010-11, he was a Fellow of the Woodrow Wilson Center, working on this project. In 2011-12, he was a Jennings Randolph Senior Fellow at the U.S. Institute of Peace, and in 2013, he was a Siemens Prize Fellow of the American Academy in Berlin. Since 2013, he has been a Senior Fellow of the International Forum for Democratic Studies of the National Endowment for Democracy, where he delivered the Lipset Lecture in 2013.  He also gave the Corry Lecture at Queens University in Ontario in the same year; the BIARI conference keynote at Brown in 2015; and the Castle Lectures on Ethics, Politics, and Economics at Yale in 2016.

Elected to the American Academy of Arts and Sciences in 1993, Professor Horowitz served as President of the American Society for Political and Legal Philosophy from 2007 to 2010. In 2011, he was awarded an honorary doctoral degree by the Vrije Universiteit Brussel, the Flemish-speaking Free University of Brussels.

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

A big book on constitutional process and design for severely divided societies, with much of the focus on why there are so few innovations to reduce conflict.  Some of these are described in a Journal of democracy article published in 2014, and more were elaborated in my Castle Lectures at Yale last September.

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

Sporadically, depending on how complete my research is for the chapter or section I am writing. If it’s complete, I try to write every weekday. If not, I first fill in what I need to know; no matter how complete the preparation is, there’s always a new question that pops up that has to be explored.

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

Tom Ginsburg, Jon Elster, and Christina Murray (when she writes something based on her extraordinary experience).

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?

Several: the Hart-Fuller exchange; Llewellyn’s Common Law Tradition; Bickel, The Passive Virtues; Fuller’s Anatomy of the Law (a brilliant book that deserves a much wider reading than it has ever received); Berle, Power without Property.

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

In addition to those I mentioned in #1, rule of law institutional issues for the enforcement of rights promised in constitutions.

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Published on April 7, 2017
Author:          Filed under: Reviews