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

Of the Politics of Resentment and European Disintegration: Are the European Peoples Ready to Keep Paddling Together? Part I

Tomasz Tadeusz Koncewicz, Professor of Law and Director of the Department of European and Comparative Law at the University of Gdańsk, Poland*

The Politics of Resentment. What is in a Name?

It is trite to say that today “resentment” sweeps across Europe. Yet beyond this sweeping statement, the concept itself, its consequences and modus operandi, are far from clear. We continue to lack conceptual framework to deal with it. We tend to adopt an intuitive understanding of the term and equate it with the politics of protest, contestation and revolt against mainstream politics. In this traditional sense resentment is often analyzed together with populism and the two are even used interchangeably.

Just like populism, resentment is not only anti-elitist, but also anti-pluralist.[1] Populism appeals to resentment to exclude others from “the people” and claim that only “We” represent the real “We the People.” My argument is that for resentment to obtain, it must be qualified and be more than just a critique of the elites and the status quo.

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Published on February 26, 2017
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Catalan Political Representatives Stand Criminal Trials

Antoni Abat i Ninet, Chair of Comparative Constitutional Law, University of Copenhagen – Denmark

The former President of Catalonia (sub-state entity) in Spain, Artur Mas, faces a criminal trial in Barcelona for organising a symbolic popular consultation on independence on 9 November 2014. The non-binding consultation was opposed by the Spanish government that challenged the Catalan Government’s decree calling for a consultation vote on independence in Spain’s Constitutional Court. The highest tribunal decided two articles of the decree were unconstitutional. The first one related to the regulation of calling the referendum and the second one, because according to the Court, the popular participatory consultation was indeed a referendum and therefore the Catalan Government could not go beyond its competencies. The decision was made unanimously by the 12 members of the Court, which is controlled by a conservative majority of members appointed by the currently-ruling People’s Party–a Court that has been particularly hostile on distinctive identity claims. (Abat Ninet – Gardner, Int J Const Law (2016) 14 (2): 378-410).

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Published on February 25, 2017
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Five Questions with Sujit Choudhry

Richard Albert, Boston College Law School

“Five Questions with … ” is a brand new feature at I-CONnect. We will periodically invite a public law scholar to answer five questions about his or her research.

This edition features Sujit Choudhry, currently a member of the executive committee of the International Society of Public Law. His full bio follows below:

Sujit Choudhry, the I. Michael Heyman Professor of Law at the University of California, Berkeley – School of Law, is an internationally recognized authority on comparative constitutional law and politics, who combines a wide-ranging research agenda with in-depth field experience as an advisor to constitution building processes, including in Egypt, Jordan, Libya, Nepal, South Africa, Sri Lanka, Tunisia and Ukraine. He has lectured or spoken in over two dozen countries.

Professor Choudhry is the Founding Director of the Center for Constitutional Transitions, which generates and mobilizes knowledge in support of constitution building by assembling and leading international networks of experts to complete thematic research projects that offer evidence-based policy options to practitioners. It partners with a global network of multilateral organizations, think tanks, NGOs, and universities.

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

I am completing three large thematic, collaborative research projects in partnership with International IDEA: “Territorial Cleavages in Constitutional Transitions”, “Security Sector Reform and Constitutional Transitions in Emerging Democracies”, and “Security Sector Oversight: Protecting Democratic Consolidation from Authoritarian Backsliding and Partisan Abuse”.

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

I write when our kids let me do so, which means during normal business hours, and rarely in the evenings or on the weekends anymore.

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

I read in comparative politics as well as comparative constitutional law, because much of my work tries to bridge the two fields. Steve Levitsky, Lucan Way, and Andreas Wimmer are on my must read list these days.

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?

Ely’s Democracy and Distrust for its integration of political theory and constitutional doctrine; Alexander Bickel’s The Least Dangerous Branch for its account of strategic judicial decisional avoidance that knits together a range of disparate doctrines; Hart’s Concept of Law for its account of the internal point of view; Dworkin’s “Hard Cases” for its description of the phenomenology of common law adjudication (although I associate myself with Fred Schauer’s criticisms of Dworkin).

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

Constitutional design, process and interpretation in the context of constitutional transitions of various kinds. Some projects I have in the pipeline under this general theme include what we can learn from the breakdown of liberal democracy in Europe in the 1930’s for contemporary debates about democratic deconsolidation and what constitutional design can do (if anything); how to hybridize elite and popular constitution-making in post-authoritarian and post-conflict constitutional transitions; proportionality analysis by constitutional courts in post-authoritarian democracies; how to blend integrationist and accommodationist approaches to constitutional design in ethnically divided societies; the tradeoff between transitional justice and negotiated transitions to democratic rule.

BONUS Question

6. Do you have any advice to share with younger scholars in public law, say a doctoral candidate or a junior faculty member?

This is comparative constitutional law’s moment. We may be facing the greatest global challenge to liberal democratic constitutionalism since WWII. For those of us who live and work in the United States, but study the world, the myth of American exceptionalism has been punctured, and comparative experience has never been more important to mainstream legal and political analysis. The best scholarship will combine analytical rigor with political salience. Rise to the challenge.

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Published on February 24, 2017
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An Explicit Constitutional Change by Means of an Ordinary Statute? On a Bill Concerning the Reform of the National Council of the Judiciary in Poland

–Piotr Mikuli, Professor and head of Chair of Comparative Constitutional Law, Jagiellonian University

Towards the end of January 2017, the Polish Ministry of Justice introduced a bill reforming the current legal status of the National Council of the Judiciary. If passed as proposed, the bill would seriously undermine the independence of the judiciary in Poland.

The bill is a sequential step on the road to reshaping the legal order in Poland in a direction in which the standard meaning of the most essential constitutional concepts can be questioned.[1] All measures taken by the ruling Law and Justice Party (PiS) are presented under the guise of ‘necessary reforms’ or ‘greater transparency’ and are justified with reference to the lofty catch phrases of democracy and the notion of ‘the sovereign’, who, in the parliamentary elections, awarded the winning majority the right to unrestrained operation. Chief Justice of the Supreme Court Małgorzata Gersdorf, just after releasing the bill, dramatically declared that ‘the époque in which we relied on the principle that the democratic state is ruled by law, as expressed in Art. 2 of the Constitution, has ended’.[2]

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Published on February 23, 2017
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Comparative Law in the Age of Trump (I-CONnect Column)

Aslı Bâli, UCLA School of Law

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

2016 was marked by a series of high-profile examples of democratic reversals or backsliding, from the Philippines to Poland, from Turkey to Thailand. There is now talk of an “authoritarian wave” where until recently analysts spoke in terms of waves of democracy. Even more surprising, or disorienting, has been the genuine concern expressed about possible threats to democracy in the United States. Understanding the mechanisms by which democracy gives way to illiberal governance and electoral authoritarianism is perhaps the most pressing question that scholars of comparative law and comparative politics must address.

The thinning of the line between democratic and authoritarian practices—particularly as authoritarian tendencies arise under democratic auspices—has been analyzed in scholarship focused largely on non-Western cases. As a scholar working on Turkey, I viewed the election campaign in the United States during the summer and fall of 2016 with concern. In discussing developments in the campaign with colleagues, however, I struggled to persuade them that there was much to learn about American politics from the study of Turkey. After the election and especially since the Trump administration has taken office, I feel less like a Cassandra.

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Published on February 22, 2017
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Article Review: Ioanna Tourkochoriti on Jeremie Gilbert and David Keane’s “Equality versus fraternity? Rethinking France and its Minorities”

[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Ioanna Tourkochoriti reviews Jeremie Gilbert and David Keane’s “Equality versus fraternity? Rethinking France and its Minorities,” which appears in the current issue of I•CON. The full article is available for free here.]

Ioanna Tourkochoriti, National University of Ireland Galway

Jeremie Gilbert and David Keane have written a very interesting article on the delicate relationship between the universalist legal culture dominant in France and the impact that this conception has upon minorities. The authors analyze a number of legal rules that are constitutive of the French republican model. Further, they make a very interesting contribution to the relevant literature by arguing that: “France needs a new interpretative approach and that activating fraternity as a constitutional principle offers the legal means by which this could be realized.”

The authors analyze a number of French policies adopted in the name of the constitutional principle of equality, which show that the French Model has led to practices of social exclusion. These policies are motivated by a conception of the role of the government as not allowed to advantage a minority group. For instance, the collection of statistical data on the basis of ethnicity or religion is prohibited[1] and the French legal framework on non-discrimination has been calibrated, the authors argue, to avoid referring to the rights of minorities. According to the French Conseil Constitutionel, the implementation of the European Charter for Regional or Minority Languages would be contrary to the French Constitution as it would challenge the principles of indivisibility of the Republic and of equality of all citizens.[2] The authors discuss the decision of the same Council on affirmative action in access to public higher education.[3] Special measures of recruiting students are accepted in reference to socio-economic criteria defined on a geographical basis for deprived suburban areas provided that there is no reference to “minorities.” In other words, affirmative action is accepted in France provided that it is defined in reference to socio-economic criteria and not on grounds of origin, race or religion.[4] As the authors note, United Nations treaty bodies have called for France to reconsider these policies and to adopt some form of minority rights-based approach.

The authors also discuss the historical development of the republican model of integration. Their narrative focuses on the rejection of cultural identities and of communitarianism as a whole in reference to race, religion or other collective grounds. The principle of equality dictates that the state consider citizens as individuals and not as members of groups. Special measures founded on ethnicity, race or other grounds would lead to a weakening of the “living together” philosophy as understood in France.[5]

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Published on February 21, 2017
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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 Spanish Constitutional Court ruled unconstitutional the Catalan “independence route map,” including the resolution to hold a referendum on independence which had been suspended since last December.
  2. The President of the European Court of Human Rights appointed a new judge of the Constitutional Court of Bosnia and Herzegovina, Prof Giovani Grasso from Italy.
  3. The Constitutional Court of Moldova held that imposing mandatory payment for school books on pupils of elementary and secondary schools is unconstitutional, since the books constitute an essential element of the study process.
  4. The Supreme Constitutional Court of Egypt struck down provisions of the civil servants law that granted Muslims paid leave to go on pilgrimage to Mecca while denying Christians the same right.
  5. The UK Supreme Court seeks to improve diversity on the bench.

In the News

  1. The Upper House in Pakistan unanimously adopted a resolution seeking to enhance role and powers of the Senate to protect the rights of federal units.
  2. Ecuador heads to the polls to elect a new President, National Assembly, and vote in a referendum that seeks to bar public officials from hiding wealth in offshore tax havens. If it is successfully passed, politicians and public servants will have a year to repatriate their money from abroad.
  3. The EU Parliament approved the Comprehensive Economic and Trade Agreement (CETA) between Canada and the EU.
  4. The Romanian Parliament agreed on Monday to hold a referendum regarding anti-corruption measures after public protests.
  5. The Parliament of Finland voted 120-48 to pass a law allowing same-sex marriage.

New Scholarship

  1. Catarina Santos Botelho, 40 Anos De Direitos Sociais – Uma Reflexão Sobre O Papel Dos Direitos Fundamentais Sociais No Século XXI (40 Years of Fundamental Social Rights – A Reflection on the Role of Fundamental Social Rights in the 21st Century) Julgar 29 (2016) (examining the role of social rights in the twenty-first century constitutionalism)
  2. David J. Gerber, A Global Adaptive System for Supporting Human Rights? (2017) (proposing a view of institutions for the protection of human rights as components of a global adaptive system)
  3. Aslı Ü. Bâli and Hanna Lerner (eds.), Constitution Writing, Religion and Democracy (2017) (exploring the challenge of crafting a democratic constitution under conditions of deep disagreement over a state’s religious or secular identity)
  4. Scott Newton, The Constitutional Systems of the Independent Central Asian States: A Contextual Analysis (2017) (undertaking a comparative analysis of the Kyrgyz Republic and Republics of Kazakhstan, Turkmenistan, Uzbekistan and Tajikistan in their cultural, historical, economic, and socio-political context)
  5. Adam Perry, Mercy and Caprice under the Indian Constitution, Indian Law Review (forthcoming 2017) (critically examining case law of the Supreme Court of India on powers of the executive to pardon offenders)
  6. Eoin Carolan, Leaving Behind the Commonwealth Model of Rights Review: Ireland as an Example of Collaborative Constitutionalism (2016) (developing a model of collaborative constitutionalism as an alternative to conventional models of constitutional review)
  7. Mazen Masri, The Dynamics of Exclusionary Constitutionalism Israel as a Jewish and Democratic State (2017) (examining the constitutional implications of Israel’s definition as a ‘Jewish and democratic’ state informed by a socio-legal approach) [The introduction chapter of the book is available for download at https://www.academia.edu/31429497/The_Dynamics_of_Exclusionary_Constitutionalism_Israel_as_a_Jewish_and_Democratic_State-_Introduction_chapter.]

Calls for Papers and Announcements

  1. The Laureate Program in Constitutional Law at the University of Melbourne, funded by the Australian Research Council (ARC), and led by Prof Adrienne Stone invites application for the visiting fellowships in a comparative constitutional law mentoring scheme. Laureate Visiting Fellowships offer outstanding female doctoral and early career researchers to participate in an intensive mentoring program. Applications close on 12 March 2017.
  2. The Institute for International and Comparative Law in Africa (ICLA) at the University of Pretoria invites interested scholars to apply for the position of African country reporters for Oxford’s Constitutions of the Countries of the World (CCW).
  3. The Palestine Yearbook of International Law invites submissions of scholarly articles to its XX Volume. The deadline for abstracts is March 15, 2017.
  4. Utrecht Journal of International and European Law invites submission to its 85th edition in the summer of 2017 on ‘General Issues’ within international and European law. The submission deadline is April 18, 2017.
  5. The Cambridge Doctoral Workshop in Legal Theory invites submissions for its third edition, to be held on June 5, 2017. The deadline for abstracts is March 24, 2017.
  6. The Cegla Center for Interdisciplinary Research of the Law at Tel Aviv University organizes an international conference on ‘Judicial Review – Law and Politics.’ The conference will mark the publication of Prof Daniel Friedmann’s book: ‘The Puse and the Sword – The Trials of Israel’s Legal Revolution.’

Elsewhere on the Internet

  1. Tobias Lock and Tom Gerald Daly, Brexit and the British Bill of Rights: Capturing Constitutional Complexity, UK Constitutional Law Association
  2. Donnchadh O’Conaill, Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy, Human Rights in Ireland
  3. Rebecca Cook, South Africa: Genetic-link requirement for surrogacy is constitutional, reporohealthlaw
  4. Olivier De Schutter and Paul Dermine, Social Rights in the New Economic Architecture of the European Union, Oxford Human Rights Hub
  5. Elena Simina Tănăsescu, Criminal policy or criminal politics?, Blog of the IACL, AIDC
  6. Mark Elliot, Distinguishing Anisminic? Ouster clauses, parliamentary sovereignty and the Privacy International case, Public Law for Everyone
  7. Pierre de Vos, No, the Con Court cannot remove the President from office, Constitutionally Speaking
  8. Bianca Selejan Gutan, Living Democracy in Romania: From Protest to Referendum?, Verfassungsblog
  9. Marcin Matczak, A Polish Marbury v. Madison?, Verfassungsblog
  10. Heather Roberts, Ceremony matters: The lasting significance of the swearing-in ceremony of Chief Justice Susan Kiefel, AUSPUBLAW
  11. Neil Siegel, Reciprocal Legitimation in Response to President Trump, Balkinization
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Published on February 20, 2017
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Announcing the Inaugural Issue of the Africa Journal of Comparative Constitutional Law

–Dr. Tom Kabau, Co-Editor in Chief, Africa Journal of Comparative Constitutional Law; Senior Lecturer in Law, School of Law, Jomo Kenyatta University of Agriculture and Technology

The inaugural issue of the Africa Journal of Comparative Constitutional Law (AJCCL) (volume 1, 2016) is now out. The AJCCL is published by JUTA Law of South Africa and is hosted by the Kenya School of Law in Nairobi. Supported by a distinguished International Advisory Board, the AJCCL provides expert analysis of and commentary on constitutional issues relevant to Africa and the developing world. The contents of the inaugural issue include:

  1. J Oloka-Onyango and Christopher Mbazira, ‘Befriending the judiciary: Behind and beyond the 2016 Supreme Court amicus curiae rulings in Uganda’;
  2. Tom Kabau, ‘Constitutional dilemmas in the recovery of corruptly acquired assets in Kenya: Strengthening judicial assault on corruption’;
  3. Niharika Bahl, ‘Accommodation and altercation: The challenge of legal pluralism in India and South Africa’;
  4. Fredrick Sekindi, ‘Another perpetuation of incumbency through the supreme law: The conceptualisation of the presidency under the 1995 Constitution of Uganda’;
  5. Aydin Atilgan, ‘Global constitutionalism in the context of the Third World: Remarks in pursuit of a new paradigm’.

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Published on February 19, 2017
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On the Looming Split in the Polish Constitutional Order: Harris v Dönges in Central Europe?

Mikołaj Barczentewicz, University College, University of Oxford

As has been widely reported (see, e.g., here), the Polish Constitutional Tribunal is now headed and effectively controlled by the judges appointed in a controversial manner by the Law and Justice (Prawo i Sprawiedliwość, PiS) party. This means that PiS is in a position to view the Tribunal as captive. Accordingly, all state organs controlled by PiS are likely to respect and follow the Tribunal’s new decisions, which was not necessarily the case before (see, e.g. here and here). However, not all public bodies are controlled by PiS. The judiciary and many local governments have a good deal of independence. It looks like we will see exactly how much independence they have in practice, because some of their representatives vowed to ignore judgments of the ‘new’ Constitutional Tribunal.[1] Will this mean a split in the Polish legal system? In this short note, I argue that even though it may mean a ‘partial’ split, it will still be the case that in an important sense there is one Polish legal system.

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Published on February 18, 2017
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Five Questions with Sabino Cassese

Richard Albert, Boston College Law School

“Five Questions with … ” is a brand new feature at I-CONnect. We will periodically invite a public law scholar to answer five questions about his or her research.

This edition features Sabino Cassese, currently Honorary President of the International Society of Public Law (ICON-S). His full bio follows below:

A university professor since 1961 (with two pauses, first in 1993-1994 when he was a member of the government, and then from 2005 to 2014 when he was a Justice on the Italian Constitutional Court), Professor Sabino Cassese has recently edited the “Research Handbook on Global Administrative Law” (Elgar 2016). He is the editor-in-chief of the “Rivista trimestrale di diritto pubblico” and of the “Giornale di diritto amministrativo.” Professor Cassese is a member of many editorial boards of foreign periodicals and has been awarded eight honorary doctorates from foreign and Italian universities. He has taught administrative and public law, constitutional law, State and the economy, global administrative law, comparative administrative law and has also published extensively on these subjects. Professor Cassese is presently teaching global law and governance at the School of Government at the LUISS Guido Carli University in Rome. His most recent book, just published, is on “Democracy and its Limits” (Milano, Mondadori, 2017).

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

I am currently working on the global dimension of democracy. My main questions are: Is there a universal concept of democracy? Is democracy a universal and shared value? And is there a universal right to democratic governance, a right that is necessarily a global right? Is there, or can there be, democracy at the global level? Is global democracy similar to national democracy? Does globalization hollow out national democracy? Or, on the contrary, may global bodies enhance national democracies? If the State is the place where democracy has developed, what will happen to democracy if the State becomes less important and many decisions are being taken by supranational or global actors? Will national democracy evaporate? Or will it be replaced by a cosmopolitan democracy?

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

“Nulla dies sine linea” (Not a day without a line), said Greek painter Apelles, according to the Roman philosopher Pliny. I follow his advice. Never does a day pass (including holidays and weekends) without reading or writing. My apartment, public libraries, university offices, planes, trains, airports, are good places to work, read, take notes, prepare drafts, and re-read texts.

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

I never miss reading new articles or books written by Yves Meny, Armin von Bogdandy, Pasquale Pasquino (he should collect in one or two volumes all his papers, most of them unknown to the large public), Paul Craig, Joseph Weiler, Bernard Manin, and Raoul van Caenegem.

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?

I continue to go back to the works of French historian Fernand Braudel, of the German public law professor Carl Schmitt, of the British constitutional law teacher Albert Venn Dicey, and of the German novelist Thomas Mann. Their major contributions capture the spirit of their and of our time, and are a source of inspiration.

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

I think that some of the major issues of our time are: What is the future of democracy? Where do we go from here? How to fight authoritarian populism? And can horizontal accountability balance the deficiencies of national democracies?

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Published on February 17, 2017
Author:          Filed under: Reviews