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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.

When the journal was first launched in 2003, its founding editors, Norman Dorsen and Michel Rosenfeld described it as having been designed “to fill a need created by the recent trend towards globalization of constitutional norms and by the ever-increasing use of comparative analysis in constitutional adjudication and scholarship.”[1]  National constitutional systems, they explained, could no longer live in isolation from other constitutional systems.  Instead, the growing practical interdependence of states and the increasing tendency of new or reformed constitutional systems to look towards foreign models made the discipline of comparative constitutional law more important than ever, and called for a journal in which the burgeoning scholarship in the field could be published.  The new journal would cover “traditional constitutional issues as well as new ones” and “international and transnational issues as well as national ones from a comparative perspective”. The journal would welcome multiple disciplinary perspectives, from philosophers, economists and social and political scientists as well as judges and law scholars.   The idea of the new journal, in other words, was to recognize the globalization of constitutional law and to welcome a plurality of approaches and methods in studying constitutional trends and interconnections across the globe.

When founding editor Norman Dorsen stepped down in 2010 and was replaced by Joseph Weiler, the new editor revisited and expanded the aims and approach of the journal.   Building further on the founding idea of I.CON to include the international within the field of comparative constitutional law as a domain for inquiry, Weiler noted that not only had comparative constitutional law expanded beyond the confines of the original meaning of that category, but that also the classic concepts and categories of international law were no longer capable of capturing the legal and political phenomena taking place in the international arena.[2]   The categories of international law and constitutional law alike were changing fundamentally and also affecting and redefining each other in interesting ways.  A similar transformation was taking place within and between the categories of constitutional law and administrative law.  Given these developments, I.CON would henceforth be a journal of comparative and international public law, open also to disciplines other than law and encouraging engagement with the social sciences.

Following this reorientation, two important and related developments took place in 2013, further shaping the identity and aims of the journal just over a decade after its foundation.  The International Society for Public Law – named ICON.S to underscore its relationship with the journal – was created, and a companion blog to the journal named I.CONnect was launched to facilitate the publication and dissemination of more rapid commentary on notable recent developments.  With all of these changes, the journal presented itself as something more than a leading journal of comparative constitutional law. It now covered “all branches of public law, such as administrative law, ‘global constitutional law’, and GAL – Global Administrative Law.”[3]  It announced an interest in attracting political scientists both as writers and readers, and in continuing its emphasis on theory as well as on practice.   Joseph Weiler’s introduction to the companion ICON.S society pointed out that while the subjects of “administrative law” “constitutional law” and “international law” may still be taught separately, their boundaries in practice had become porous, just as the boundaries between the national and the transnational had become porous in the field of public law.  Pursuing the idea of the broadening of the field of comparative constitutionalism and exploiting these porous boundaries between disciplines, Ran Hirschl, in a guest editorial later that year argued that the journal – and indeed the field as a whole – should move “from comparative constitutional law to comparative constitutional studies,” beyond a primary focus on constitutional jurisprudence and adjudication to political institutions and to embrace additional political and social science methodologies.[4]

These are exciting and invigorating moves, recognizing and embracing the changing nature of these evolving and intersecting fields, and signaling the further development of I.CON at the cutting edge of international and transnational public law and constitutional inquiry.

How then has the journal fared since the course adjustment in 2013?   A review of the last 14 issues of the journal since 2013 suggests that while the meat of the journal continues to be the traditional and important fare of comparative constitutional law, including regional as well as country-studies and theory pieces exploring comparative constitutional concepts, some contributions have also appeared in the newer fields embraced by the more expansive post-2013 approach.   In particular, a number of symposia have been published on boundary-crossing or category-defying topics such as public authority in global governance, multipolar administrative law, the boundaries of public law, and global administrative law after 10 years.  There have also been book discussions on issues such as constitutional pluralism and the “globalization paradox,” and debates on international constitutionalism and the state.  However, apart from these organized symposia, forums and debates, there is less evidence of growth in individual submissions on the wider fields and issues identified by the reorientation.  We see a handful of individual articles on less conventional themes, but on the whole it is in the organized or solicited symposia and forums that the changing nature of the field can be observed.  Perhaps the most notable absence is of contributions from the evolving field of international law, or from scholars who may have previously defined themselves as public international law scholars.

Should this be a matter of concern for the journal?   On the whole, I think not.  But it does suggest that many comparative constitutional law scholars continue to write within the traditional boundaries and on the more traditional subjects defined by that category, and that many political science and international law scholars writing on interesting and novel questions of transnational public law and governance do not perceive their research to fit under the I.CON umbrella.  If this is true, there is further work to do in developing and spreading a better understanding of the nature and identity of I.CON and in seeking to attract submissions from international law scholars, as well as encouraging comparative constitutional scholars to expand the boundaries of their research.  But the bottom line is that this journal is at the forefront of efforts to encourage, promote and disseminate scholarship that is truly at the cutting edge of the various fields that comprise any comprehensive notion of international constitutional law for the twenty-first century.

In this Issue

The contents of this issue of the journal nicely reflect the range of questions and the many different kinds of scholarship that I.CON is aiming to promote and to showcase.

A keynote address by Martin Scheinen, professor of public international law and human rights law, surveys some of the challenges currently facing the European Union’s troubled yet resilient transnational political system.  He chooses in particular the challenges of reconciling surveillance and freedom, the need to prioritize questions of migration and asylum, the need to rethink energy policies to address the overarching issue of climate change, and more generally what he describes as the need to adopt a strategy for global justice.

The symposium on “The Challenge of Formal Amendment” includes an introduction by Joel Colon-Rios and a thought-provoking set of contributions by Vicki Jackson, Rosalind Dixon, David Landau, Mark Tushnet, Richard Albert, Tom Ginsburg and James Melton.  The collection addresses a classic constitutional theme in comparative perspective using many of the tools and drawing on several of the approaches that I.CON seeks to encourage.  Some of the articles examine the law and practice of amendment within particular constitutional systems and processes, including the United States, while others examine more general or theoretical dimensions of the topic such as the issues of constituent power, entrenchment, unamendability, unconstitutional amendments, and democratic legitimacy, while drawing on a wide range of different constitutional examples. Other papers use empirical analysis to reveal the crucial role of “amendment culture” in explaining resort (or not) to constitutional amendment, or propose the use of “transnational constitutional law” in the context of considering specific constitutional amendments in particular settings.  Together the symposium papers comprise a rich collection that blends doctrinal analysis with constitutional theory, political reflection, empirical insight and comparative knowledge.

Finally, our Critical Review of Governance section contains an interesting account by Katrin Merhof of the establishment, against the backdrop of considerable political and social turbulence, of the Columbian Constitutional Court in 1991 and an overview of its contribution since then; as well as a critical evaluation by Eoin Carolan of the creation and operation of Ireland’s recently established Constitutional Convention.

[1] Norman Dorsen and Michel Rosenfeld, Note to Readers 1 I.CON 1 (2003).

[2]  Editorial, 8 Int’l J. Const. L. 1 (2010).

[3]  Available at: http://www.iconnectblog.com/i%C2%B7connect-letter-from-the-editor-in-chief-of-i%C2%B7con/

[4]  Editorial, 11 Int’l J. Const. L. 1 (2013).

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Published on November 20, 2015
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