Blog of the International Journal of Constitutional Law and

A Constitutional Crisis in a Land Without a Constitution: Presidential Terms and Iraqi Kurdistan

–Matthew Schweitzer, University of Chicago

Iraq’s Kurds have long struggled to control their destiny. Since the 2003 US-led invasion, the Kurdistan Regional Government (KRG) has enjoyed stability, security, and prosperity — in 2014 the region boasted the world’s second-fastest growing economy. This unprecedented economic boom helped create conditions for a more pluralistic and free society than that which developed in Arab Iraq. From their capital in Erbil, Kurdish leaders have proven powerful US allies since Saddam’s ouster, and continue to play a critical role in the fight against the Islamic State (IS). For many American and Kurdish analysts, the KRG is the “other Iraq.”

However, the Kurdish miracle is threatened today by a serious leadership crisis that is undermining the region’s unity and legitimacy. On August 20, 2015 President Masoud Barzani’s term of office supposedly ended. In fact, the Kurdish Parliament had already extended it two years earlier in the face of fierce dissent from opposition parties and civil society. Although this period has ended, Barzani refuses to step down. His Kurdistan Democratic Party (KDP) demands a second extension until 2017, when presidential elections are next due. Carnegie’s Kawa Hassan thus describes the dispute as Kurdistan’s “most severe and…decisive crisis” since the end of the Kurdish civil war in 1998.

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Published on November 27, 2015
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A New Revolution? The Recent Governmental Crisis in Romania

Bianca Selejan-Gutan, “Lucian Blaga” University of Sibiu, Romania

As of November 2015, Romania faces its most important social, political and constitutional crisis in the last quarter-century. If the 1989 Revolution signified a break with a totalitarian communist regime, the widespread street protests of 2015, which led to the fall of the Government, gave a new message: global dissatisfaction towards the whole political class and institutions marked by serious inefficiency and corruption.

Street protests were started by an extremely unfortunate event, which took place on October 30th, 2015 – a fire in a Bucharest nightclub (“Colectiv”) caused by the gross negligence of both authorities and private owners. The accident – which caused the death of 50 persons and the serious injury of over 100 – was perceived as the result of corruption and contempt of the authorities towards public safety and fundamental rights, which were almost immediately labeled as the major plagues of Romanian society and the state. The slow reaction of the authorities (with the notable exception of the emergency and medical services) generated strong protests in the social media, followed by impressive street demonstrations in Bucharest and in the country’s major cities. The people’s fury touched the local authorities of the Bucharest district where the club was located, but also the Government, Parliament and even the Orthodox Church, whose reaction was considered insufficiently compassionate towards the victims and their families. On October 4, after three days of street protests (over 35,000 participants just in the capital city of Bucharest), the Prime Minister, Victor Ponta, and his Government resigned, as well as the mayor of the Bucharest 4th District. The latter was immediately accused of corruption and arrested after a few days.

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Published on November 25, 2015
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What’s New in Comparative Public Law

–Margaret Lan Xiao, SJD Candidate, Case Western Reserve University

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 Canada confirmed that Alberta is not constitutionally required to enact its laws in both English and French.
  2. The Azerbaijani Central Election Commission decided to submit the documents on the results of the Azerbaijani parliamentary election, held November 1, 2015, to the Constitutional Court.
  3. Hungary’s Constitutional Court scrapped parts of a law offering compensation for clients of failed brokerage Quaestor.
  4. Romania’s Constitutional Court unanimously ruled that the country’s postal voting law is constitutional.
  5. Kosovo police detonated a hand grenade was found in the courtyard of the Constitutional Court.
  6. Thailand Constitutional Court judge Charan Phakdithanakun voiced support for the idea to separate Constitutional Court from a chapter pertaining to independent organizations.
  7. The Supreme Court of Canada upheld the constitutionality of the military justice system.

In the News

  1. Tunisia’s House of the People’s Reprsentatives began to discuss the draft law on the creation of the Constitutional Court.
  2. A majority of parliamentarians in Tanzania approved Majaliwa Kassim Majaliwa as the new prime minister to lead the government’s business in the lawmaking body.
  3. Members of the State Duma and Federation Council in Russia approved a joint statement calling for stricter criminal liability for terrorism and any actions that support terrorism.
  4. Greece approved a reform bill to secure further bailout funds from its international lenders but Prime Minister Alexis Tsipras’ parliamentary majority shrank to just three seats after two dissenting lawmakers were expelled.
  5. Lawmakers of all four Russian parliamentary parties have jointly drafted the bill would give more powers to the Constitutional Court, allowing Russia to legally ignore the decisions of foreign justice bodies.
  6. Myanmar pro-democracy leader Aung San Suu Kyi attended Parliament’s closing meeting and met with the parliament speaker.
  7. The French Parliament extended emergency powers put into effect following terrorist attacks in Paris.

New Scholarship

  1. Joseph Magnet, Constitution Making in Eritrea: Why It’s Necessary to Go Back to the Future, Ottawa Faculty of Law Working Paper No. 2015-32 (arguing that the 1997 Eritrea Constitution creates a highly centralized Stalinist structure that experience teaches does not work in deeply diverse democracies and that Eritrea requires a power sharing constitution, created through a proper negotiated process)
  2. Jerg Gutmann and Stefan Voigt, The Rule of Law: Measurement and Deep Roots (proposing a new de facto indicator for the rule of law and using this indicator to shed new light on the relationship between the rule of law and the political system of a country; arguing that Presidential governments tend to score significantly lower on the rule of law indicator than parliamentary ones and that many presidential democracies are even outperformed by dictatorships)
  3. Maximo Langer, Strength, Weakness or Both? On the Endurance of the Adversarial-Inquisitorial Systems in Comparative Criminal Procedure, Research Handbook on Comparative Criminal Procedure, Jacqueline Ross & Stephen Thaman eds., Edward Elgar Publishing, 2016, Forthcoming (arguing that contemporary comparative criminal procedure is an heir of the classical adversarial-inquisitorial and common law-civil law tradition that have been at the center of this field for a very long time)
  4. Liam Thornton, Socio-Economic Rights and Ireland, UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 14/2015 (arguing that while the International Covenant on Economic, Social and Cultural Rights focuses exclusively on socio-economic rights, within other UN rights treaties’ on racial discrimination, rights of women, rights of children and rights of persons with disabilities, civil and political rights, along with economic, social and cultural rights are dealt with side by side)
  5. M. W. Dowdle and M. A. Wilkinson, On the Limits of Constitutional Liberalism: In Search of a Constitutional Reflexivity, Michael W. Dowdle and Michael A. Wilkinson, eds., Constitutionalism Beyond Liberalism, Cambridge University Press, 2016 (arguing that the structural-liberal vision is but one of a number of ways of conceptualizing constitutionalism; it is essentially the product of a particular time and place, and reflects the particular concerns and experiences of that time and place)
  6. Lex Gill, Dennis Redeker and Urs Gasser, Towards Digital Constitutionalism? Mapping Attempts to Craft an Internet Bill of Rights, Berkman Center Research Publication No. 2015-15 (proposing a unified term to describe the efforts on the initiatives of the “Internet Bill of Rights,” by using the umbrella of “digital constitutionalism” and conduct an analysis of thirty initiatives spanning from 1999 to 2015)
  7. John Finnis, Prisoners’ Voting and Judges’ Powers, Oxford Legal Studies Research Paper No. 58/2015 (reviewing decisions of courts in Australia, Canada, and South Africa, and in Strasbourg under the European Convention on Human Rights, with some reference to judicial decisions in the United Kingdom and arguing that the decisions manifest a deeply flawed conception of constitutional governance and law)

Call for Papers

  1. Paris Legal Publishers has issued a call for papers for the Journal of Trafficking and Human Exploitation (JHTE).
  2. The University of Illinois College of Law has issued a call for papers for the next annual Comparative Law Work-in-Progress Workshop to be held on April 15 and 16, 2016 in Urbana-Champaign.
  3. The University of Miami School of Law has issued a call for proposed papers for the We Robot 2016 conference on law and policy relating to Robotics to be held on April 1-2, 2016.
  4. The University of Washington School of Law‘s Center for Advanced Study and Research on IP (CASRIP) has issued a call for papers for the 13th Annual Works-in-Progress IP Colloquium (WIPIP) to be held on Feb. 19-20, 2016.
  5. The Searle Center on Law, Regulation, and Economic Growth (Northwestern Univ. Pritzker School of Law) has issued a call for papers for the Seventh Annual Conference on Internet Commerce and Innovation to be held on June 9-10, 2016.

Elsewhere on Blogs

  1. Jacob Gershman, Daily Fantasy Sports: Games of Luck or Skill?, The Wall Street Journal
  2. Eugene Volokh, Professional-client speech and the First Amendment, The Washington Post
  3. Adam Liptak, Obama Administration Asks Supreme Court to Save Immigration Plan, The New York Times
  4. Jonathan H. Adler, The metadata collection program is constitutional (at least according to Judge Kavanaugh), The Washington Post
  5. Vicky Vanhoutte, Kris Merckx, Laurent De Clercq, Hannes Speeckaert, Pieter Cannoot, and Juan Benjumea Moreno, Recent developments in Scotland’s and Catalonia’s struggle for independence, BelConLawBlog
  6. General the Lord Dannatt, Parliament must vote to let Britain help crush Isil, The Telegraph
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Published on November 23, 2015
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I·CON 13, Issue 3: Editorial

Gráinne de Búrca, NYU School of Law

There is nothing quite like becoming co-editor of a journal to prompt reflections on the journal’s identity, its evolution over the dozen years since its founding, and where it might be heading in the future.  But what I hadn’t expected was that it would also bring into relief my own scholarly identity.

For the first fifteen years as an academic most of my research and writing was in the field of European Union law.  In that context the question of how European Union law should be categorized as a legal subject or discipline was often posed, although rarely answered with any certainty.  But once I moved from the European Union to work in the United States, a jurisdiction in which EU law is neither a familiar category nor a subject widely studied in law schools, that question became a more pressing and practical one.  Should I describe myself as a comparative constitutional lawyer? As an international lawyer?  For some, EU law should be understood as a form of quasi-federal constitutional law, for others (now fewer in number) it is a sui generis and very specialized form of international law.  Perhaps it is best described as transnational constitutional law.  But unlike the law of many more settled constitutional systems, EU law is a highly dynamic, specific and changing kind of constitutional law for a constantly growing and complex polity.

In addition to this focus on European Union law, I also developed a broader scholarly interest in questions of transnational and international governance, working on issues which often lie at the intersection of international law and international relations scholarship, and at the intersection of domestic and transnational regulation.  None of this is any easier to locate in terms of any of the straightforward traditional categories of constitutional law, comparative law or international law.

The fact that many of my research interests lie at the intersection of different disciplines and the fact that it is difficult to describe them in terms of the classical legal categories makes I.CON a very attractive and interesting enterprise to me.  And indeed, a look back at the evolution of I.CON’s profile as a journal since its founding indicates clearly how it has tracked many of the ongoing changes in an exciting and expanding field which lies at the intersection between many traditional categories.

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Published on November 20, 2015
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I·CON’s Current Issue (Table of Contents)


 Volume 13 Issue 3

 Table of Contents


I·CON Keynote

Martin Scheinin, The state of our Union: Confronting the future

Symposium: The challenge of formal amendment

Joel Colón-Ríos, Introduction: The forms and limits of constitutional amendments

Vicki C. Jackson, The (Myth of Un-) amendability of the US Constitution and the democratic component of constitutionalism

Rosalind Dixon and David Landau, Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment

Mark Tushnet, Peasants with pitchforks, and toilers with Twitter: Constitutional revolutions and the constituent power

Richard Albert, Amending constitutional amendment rules

Tom Ginsburg and James Melton, Does the constitutional amendment rule matter at all?: Amendment cultures and the challenges of measuring amendment difficulty

Critical Review of Governance

Katrin Merhof, Building a bridge between reality and the constitution: The establishment and development of the Colombian Constitutional Court

Eoin Carolan, Ireland’s Constitutional Convention: Behind the hype about citizen-led constitutional change

Review Essay

William A. Edmundson, Do Animals need citizenship? Review of  Sue Donaldson & Will Kymlicka. Zoopolis: A Political Theory of Animal Rights (2011); Sue Donaldson & Will Kymlicka. “A Defense of Animal Citizens and Sovereigns”, 1 Law, Ethics & Philosophy 143 (2013); Sue Donaldson & Will Kymlicka. “Unruly Beasts: Animal Citizens and the Threat of Tyranny.” 47 Canadian Journal of Political Science 23 (2014); Will Kymlicka & Sue Donaldson. “Animals and the Frontiers of Citizenship.” 34 Oxford Journal of Legal Studies 201 (2014)

Book Reviews

Ran Hirschl. Comparative Matters. The Renaissance of Comparative Constitutional Law (Markus Kotzur)

Moshe Cohen-Eliya & Iddo Porat. Proportionality and Constitutional Culture (David Schneiderman)

Christine Desan. Making Money. Coin, Currency, and the Coming of Capitalism (Leopold Specht)

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Published on November 19, 2015
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Article Review: Reijer Passchier on Vicki Jackson’s “The (myth of un)amendability of the US Constitution and the democratic component of constitutionalism”

[Editor’s Note: In this special installment of I•CONnect’s Article Review Series, Reijer Passchier reviews Vicki Jackson‘s article on The (myth of un)amendability of the US Constitution and the democratic component of constitutionalism, which appears in the current issue of I•CON. The full article is available for free here.]

Review by Reijer Passchier

Reijer Passchier, PhD Candidate at Leiden University Law School

In recent decades, a significant number of American political and constitutional actors have come to believe that it is no longer practically possible to use the US Constitution’s Article V amendment procedure as an instrument of constitutional change. Requiring the consent of two-thirds of both Houses of Congress and three-fourths of the states’ legislatures, Article V would be impermeable in modern times. Some have celebrated this extreme formal rigidity, as textual ‘veneration’ would promote such things as stability, coherency and the rule of law. Others have found it hard to see how popular consent can be invoked on behalf of a de facto unamendable constitution, adopted by a generation long since dead.

In a fascinating article recently published in ICON (‘The (myth of un)amendability of the US Constitution and the democratic component of constitutionalism’), Vicki Jackson, Professor of constitutional law at Harvard Law School, re-examines these empirical and normative claims about the US constitutional amendment process.

In this Review, I situate the significance of Professor Jackson’s article and offer a few comments in response.

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Published on November 17, 2015
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The (un)Certain Path Towards the Legalization of Marijuana in Mexico

–Mariana Velasco Rivera, LL.M. ’15 and J.S.D. Candidate, Yale Law School

On Wednesday, November 4, the First Chamber of the Mexican Supreme Court issued what has been described as an irreversible step towards the legalization of the recreational use of marijuana.

In an individual constitutional complaint (Juicio de Amparo), the First Chamber found in favor of four individuals from whom a license to grow and consume marijuana was denied by the Federal Commission for the Protection against Sanitary Risk (Cofepris). In the 4 to 1 decision, the First Chamber held that the legal framework on substance abuse on which the denial of the license was based was unconstitutional for disproportionately limiting the claimants’ right to autonomy.

The immediate legal effect of the decision is that the claimants will get the license previously denied and will now be able to grow marijuana for their own use. Even though one of the Court’s chambers issued the ruling, Mexico’s precedential system for individual constitutional complaints requires five rulings, all with the same outcome, to become binding on lower courts.

This was the first time in over 50 years that an official state body seriously questioned the prohibition paradigm. Undoubtedly, this decision has had an important political effect. For example, after three years of dodging the topic, right after the Court’s decision went public, the legal advisor of President Peña Nieto hosted a press conference to emphasize the decision’s limits and, most importantly, to stress that the decision did not in fact legalize the use of marijuana. This is significant in that it was the first official statement from the President’s Office on the issue. What is more, last week, the President himself declared that he personally opposes the legalization of marijuana but that he is open to a wide debate on the issue. The public at large has taken up his invitation.

But whether the Supreme Court decision represents an irreversible step towards the legalization of the use of marijuana is a different and much more complex question.

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Published on November 16, 2015
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What’s New in Comparative Public Law

Angelique Devaux, French Licensed Attorney (Notaire)

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. Kosovo’s Constitutional Court suspended an agreement to normalize relations with Serbia.
  2. The European Court of Human Rights rejected a free speech claim from French comedian Dieudonné.
  3. The Constitutional Court of Georgia ruled unconstitutional a provision barring former Soviet officials from public institutions.
  4. Slovenia’s Constitutional Court annulled a decision by a High Court to initiate bankruptcy proceedings against a phone operator.
  5. The Supreme Court of Uganda ordered the Constitutional Court to hear mental health cases.
  6. The Dutch Supreme Court referred a landmark case against the file-sharing website Pirate Bay to the European Court of Justice.

In the News

  1. The South African President appointed new Constitutional Court judge.
  2. In Thailand, the National Reform Steering Assembly proposed for a provisional chapter to be included in the new Constitution, providing for a transitional period before a return to democracy.
  3. Catalonia vows to press ahead with plans to break away from Spain, despite a decision by the Constitutional Court to suspend the secession process.
  4. Russia’s Constitutional Court is set to review the foreign expulsion rules.

New Scholarship

  1. Matthias Lehmann Bonn, Recognition as a Substitute for Conflict of Laws?, In ‘General Principles of European Private International Law’, Stefan Leible (ed), Kluwer Law International (forthcoming) (analyzing arguments for and against an EU version of the Full Faith and Credit Clause in the US Constitution)
  2. Andrew Novak, Comparative Executive Clemency, The Constitutional Pardon Power and the Prerogative of Mercy in Global Perspective, Routledge 2015 (comparing constitutional clemency and the pardon power in the common law world)
  3. Paul Blokker, EU Democratic Oversight and Domestic Deviation from the Rule of Law: Sociological Reflections, Closa and D. Kochenov (eds), Reinforcing the Rule of Law Oversight in the European Union, Cambridge University Press (forthcoming) (discussing the sociology of constitutional democracy and the rule of law in the EU and its Member States)
  4. Helen Meeman, Nicola Rees, Israel Doron, Towards Human Rights in Residential Care for Older Persons, International Perspectives, Routledge (forthcoming 2016) (exploring the possibility of establishing new conventions for the rights of older persons)
  5. Anna Su, Judging Religious Sincerity?, Oxford Journal of Law and Religion (forthcoming) (examining the approach of three courts–the U.S Supreme Court, the Supreme Court of Canada and the European Court of Human Rights–to judging the sincerity of religious believers in accommodation claims)
  6. Scott Stephenson, When Constitutional Conventions Fail, (2015) 35(2) Dublin University Law Journal (forthcoming) (arguing that constitutional conventions can present constitutional actors and the public with an opportunity to discuss neglected constitutional issues or to reframe them where the debate becomes stagnant)
  7. Lex Gill, and Dennis Redeker, and Urs Gasser, Towards Digital Constitutionalism? Mapping Attempts to Craft an Internet Bill of Rights, Berkman Center Research Publication No. 2015-15 (developing a framework of “digital constitutionalism” on an analysis of thirty initiatives spanning from 1999 to 2015, seeking to advance rights of Internet governance)

Calls for Papers

  1. International Organization and Harvard University issued a call for submission of paper proposals for a workshop on ‘Assessment Power in World Politics’ to be held on May 6-7, 2016.
  2. The European Commission and the Council of the Notariats of the European Union will hold a joint conference on ‘Cross-border successions in the EU’ in Brussels, Belgium on November 19, 2015.
  3. The Faculty of Law, Economics and Finance of the University of Luxembourg will hold a conference entitled “Frontex: Legal Questions and Current Controversies” on November 27, 2015 at the University of Luxembourg.
  4. The Cambridge Journal of International and Comparative Law (CJICL) issued a call for submissions to its volume 5, issue 2. The deadline for submissions is December 12, 2015.
  5. University of California at Los Angeles, the University of Illinois College of Law, Princeton University, and the American Society of Comparative Law issued a call for papers for the ‘Annual Comparative Law Work-in-Progress Workshop’ to be held on April 15-16, 2016, at the University of Illinois College of Law in Urbana-Champaign.
  6. The University of Bonn invites submissions for its conference to be held on April 6-7, 2017.
  7. The Minerva Center for the Rule of Law under extreme conditions in collaboration with Boston College Law School, under the auspices of Israeli Association of Public Law (IAPL), invite submissions for a symposium on ‘Constitutionalism under Extreme Conditions’ to be held in University of Haifa, in Israel, on July 18, 2016.
  8. The Gilbert + Tobin Centre of Public Law with the support of the Australian Association of Constitutional Law will hold a conference on developments in the High Court and other Australian courts in 2015 and beyond. The early-bird rate for general registrations is available till December 18, 2015.

Elsewhere on Blogs

  1. Lebogang Maxelegu, Eritrean Independence: Form over substance, AfricLaw
  2. Kevin Wiggins, European Court of Justice Declares Safe Harbor for Transferring Personal Data from Europe Invalid, JDSupra
  3. Warren Binford, Does American Need A Children’s Bill of Rights? Jurist
  4. Ruthann Robson, Supreme Court Grants Certiorari in Texas HB2 Abortion Case, Constitutional Law Prof Blog
  5. Andrew Fagan, Analysis: Aung San Suu Kyi victory will test commitment to human right in Myanmar, Blog of the IACL, AIDC
  6. Thomas Adams, The Politics of ‘Judicial Power’, UK Constitutional Law Association
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Published on November 16, 2015
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A New Judge for the Colombian Constitutional Court: The Tensions of Transition

Jorge González Jácome, Pontificia Universidad Javeriana (Bogotá)

One of the most heavily publicized processes of nomination and appointment to fill a vacancy on the Colombian Constitutional Court ended last week with the Senate’s selection of Alejandro Linares. He outvoted the other two candidates, Catalina Botero and Magdalena Correa, and became the ninth judge of the Court. According to the Constitution, the Colombian President had to create a list of three candidates from which the Senate had the power to choose the new justice.[1] President Juan Manuel Santos held a relatively open process, listening to members of the legal academia and profession before proposing his list to the Senate. Linares, the only male candidate in the list, easily won the Senate vote. The other two candidates, Botero and Correa, were both constitutional law professors who had past experience as clerks on the Constitutional Court. Botero had also been a Reporter for Freedom of Expression at the Inter-American Commission of Human Rights. Correa is the head of the Constitutional Law department at one of Bogotá’s most prestigious law schools — Universidad Externado de Colombia.[2]

Linares, in contrast, came mainly from private practice; he also served as a public official but his foremost experience was in finance law, especially as the head of the mergers and acquisitions area of one of Bogotá’s most prestigious private law firms.[3] The constitutionalists Botero and Correa lost in a landslide. Linares gained the support of the political parties of the governing coalition, the National Unity of President Santos. The two female constitutional scholars lost after an interesting hearing in the Senate where they stressed their experience on constitutional issues. Linares also spoke before the Senate and made a peculiar statement: he argued in favor of bringing back “private law pragmatism” to constitutional matters.[4]

This election raises many important issues in constitutional law and politics. The role of gender is difficult to ignore, but I would like to focus on another aspect that highlights the ideologies permeating the current constitutional debate in Colombian society about transition and peace agreements. Of course, one of the huge topics in this area has to do with the mechanism to ratify agreements on transitional justice between the government and the rebels. In reviewing these issues the Court definitely will have to strike a delicate balance between international human rights and the resolution of a five-decade-long conflict.[5] Read the rest of this entry…

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Published on November 13, 2015
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Call for Papers–Symposium on Founding Moments in Constitutionalism

Symposium on Founding Moments in Constitutionalism

Yale Law School

April 15-16, 2016

This Symposium is convened by Richard Albert (Boston College/Yale Law School) and Menaka Guruswamy (Yale Law School).

About the Symposium

Founding moments are landmark events that break ties with the ancien regime and lay the foundation for the establishment of modern states. Founding moments shape national law, influence surrounding countries, establish future power structures and legitimize certain political institutions within the country.

But what exactly is a founding moment? When do we know the “founding” process is over and when do we know it is ongoing? Is it possible to have a founding moment without a new constitution? It is not always easy to identify and define founding moments. The establishment of a new constitutional identity is almost never encompassed in one event—and may span decades in the form of anti-colonial movements, revolutions, civil wars, legitimation crises, power struggles and consolidation processes.

Founding moments sometimes endow certain elements in society—such as revolutionary parties or political leaders—with political legitimacy. A key line of inquiry therefore concerns the relationship between founding moments and “founding figures,” and the extent to which the future of a nation should be guided by the intentions of those who orchestrated these founding moments.

Founding moments moreover are not always a single moment. How does a revolution relate to and influence the promulgation of the constitution? How does the promulgation of the constitution trigger crises in the consolidation process? Is there some danger to the revolutionary fervor being entrenched in words, symbolism and structures in a country’s written constitution?

We might also consider the phenomenon of unfinished foundings, which occur when revolutionary groups overthrow a dictator but not the entire “old guard.” To what extent is an event a founding moment if it is a partial or an unfinished revolution? How do such unfinished foundations influence the identity of the country?

Alexander Herzen described revolutions and national foundings as “pregnant widows”:

The death of contemporary forms of social organization should gladden rather than oppress the soul. But what’s frightening is that the departing world leaves not an heir but a pregnant widow. Between the death of one and the birth of the other much time will go by, a long night of chaos and desolation will have to pass.

Some though not all founding moments occur at tumultuous times in a country’s history. They are bloody revolutions, fierce anti-colonial struggles and decades-long political upheavals. Countries undergoing founding moments—“pregnant widows” in Herzens words—should not be studied only as historical events but also as modern realities that influence and indeed often drive our understanding of law. From Egypt, Libya, Iraq to Nepal, countries around the world are undergoing the birth pangs of founding, constitution and reconstitution—they are waging civil wars, mounting revolutions and writing constitutions.

This conference on founding moments in constitutionalism is an opportunity to address this phenomenon and how it relates to our understanding of law.


Submissions are invited from scholars of all ranks, including doctoral students.


The Convenors intend to publish the papers in an edited book or in a special issue of a law journal. An invitation to participate in this Symposium will be issued to a participant on the following conditions: (1) the participant agrees to submit an original, unpublished paper ranging between 8,000 and 11,000 words consistent with the submission guidelines issued by the Symposium Convenors; (2) the participant agrees to submit a pre-Symposium draft March 30, 2016; and (3) the participant agrees to submit a full post-Symposium final draft by September 1, 2016.

Submission Instructions

Interested scholars should email biographical information and an abstract of no more than 500 words by Monday, December 21, 2015 to Nishchal Basnyat ( on the understanding that the abstract will form the basis of the pre-Symposium working draft of a minimum of 3000 words to be submitted by Monday, March 30, 2016. Scholars should identify their submission with the following subject line: “Yale Law School—Abstract Submission—Founding Moments.”


Successful applicants will be notified no later than January 15, 2016.


There are no costs to participate in this Symposium. Successful applicants are responsible for securing their own funding for travel.  Arrangements will be made for a special rate at a local hotel.


Please direct inquiries in connection with this Symposium to:

Richard Albert
Associate Professor, Boston College Law School
Visiting Associate Professor, Yale Law School

Menaka Guruswamy
Yale Law School

About the Convenors

Richard Albert is an Associate Professor at Boston College Law School and, in 2015-16, a Visiting Associate Professor of Law and Canadian Bicentennial Visiting Associate Professor of Political Science at Yale University. A specialist in comparative public law with a focus on formal and informal constitutional amendment, he has since December 2014 been Book Reviews Editor for the American Journal of Comparative Law, which awarded him the Hessel Yntema Prize in 2010 for “the most outstanding article” on comparative law by a scholar under the age of 40. He is also a member of the Governing Council of the International Society of Public Law, an elected member of the International Academy of Comparative Law, an elected member of the Executive Committee of the American Society of Comparative Law, and a founding co-editor of I-CONnect, the new scholarly blog of the International Journal of Constitutional Law. Prior to joining the faculty of Boston College Law School, Albert served as a law clerk to the Chief Justice of Canada and earned degrees from Yale, Harvard and Oxford.

Menaka Guruswamy

Dr. Menaka Guruswamy is a Visiting Lecturer in Law at Yale Law School. She also practices law at the Supreme Court of India where she has litigated a number of significant constitutional rights cases. Her cases include those that successfully  sought reform of public administration and the bureaucracy in the country (TSR Subramanium and Ors v Union of India and Ors), defending federal legislation that mandates that all private schools admit disadvantaged children (the Right to Education Act),  and litigating against Salwa Judum—state sponsored vigilante groups in Chhattisgarh. She has also challenged the constitutionality of the colonial-era sodomy law in India.

Dr. Guruswamy studied law as a Rhodes Scholar at Oxford University, a Gammon Fellow at Harvard Law School, and at the National Law School of India. Her doctorate from Oxford University is on constitution-making in India, Pakistan, and Nepal. She has been visiting faculty at Columbia Law School and New York University School of Law.  Dr. Guruswamy has been a consultant to the United Nations Development Program (UNDP) and the United Nations Development Fund for Women (UNIFEM) in New York, UNICEF in South Sudan and the Government of India. She has also supported the constitution-making process in Nepal.  Her most recent publication is a chapter on ‘Crafting Constitutional Values: An Essay on the Supreme Court of India’, (in An Inquiry into the Existence of Global Values, Hart Publishing/Bloomberg: (2015).

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Published on November 13, 2015
Author:          Filed under: Call for Papers