—J.H.H. Weiler, University Professor, European Union Jean Monnet Chair, New York University Law School; Co-Editor-in-Chief, International Journal of Constitutional Law
Editorial: The Case for a Kinder, Gentler Brexit
[Editor’s Note: The editorial was previously posted and can be found here.]
10 Good Reads
[Editor’s Note: J.H.H Weiler’s book recommendations were previously posted and can be found here.]
In this issue
This issue of I.CON does equal service to the “international” and “constitutional” elements of our mission, and begins—appropriately enough—with a set of contributions on the frontier between public international law and domestic constitutionalism. Oddný Arnardóttir leads the way, penetrating the case law of the European Court of Human Rights to find the limits of that institution’s “procedural turn” and to examine the role of presumption and deference in its adjudicative practice. Next, Alon Harel and Eyal Benvenisti advance a new thesis regarding the relationship between international law and domestic constitutional law, focusing on the distinctive contribution made by competition, tension, and conflict as guarantors of individual liberty. Gregory Messenger’s article takes us to the World Trade Organization and proposes an aims-based solution to trade’s version of a ubiquitous legal problem: the definition and application of the public-private distinction. Finally, Mario Mendez sets out the case for ex ante and ex post domestic constitutional systems for the review of treaties, bridging the gap between international obligations and domestic values.
Three more contributors round out our Articles section. Robert Schertzer takes a close look at the role of adjudication in diverse federations, and specifically at the capacity of federal adjudicators to facilitate negotiation and engagement among competing perspectives. George Papuashvili traces the lines of the “silent revolution” in Eastern and Central European constitution-making that followed World War I, and the ascendancy of liberal democratic ordering over monarchic absolutism that it inaugurated. Stephen Gardbaum’s article also explores a revolutionary theme, drawing out the distinctive characteristics of “revolutionary constitutionalism,” and illustrating its paradoxes and tensions—as well as the nature and limits of its impact on political outcomes—by reference to recent developments in Egypt and Tunisia.
Our I.CON Debate! section features a spirited exchange between Maria Cahill and Gareth Davies. Subsidiarity is the theme and social ontology the battleground, as Cahill’s call for increased forbearance by EU institutions, in recognition of the distinctive nature of the Member States, clashes with Davies’ insistence that the EU’s own ontological claims are stronger and more complex than Cahill’s account allows.
We close, as always, with our Critical Review of Governance section. Ayelet Berman has the last word in this issue with a transatlantic examination of the role of foreign actors in rulemaking processes in the United States and European Union, offering an account which emphasizes the role of enlightened self-interest in the design and operation of these processes, and which finds in the OECD Best Practices a path to international diffusion of such practices. And so our issue ends where it began—with the complex relationship between domestic legal orders and the international, multijurisdictional environment in which they operate—leaving us with a handful of new answers, and a great many more questions. Onward.