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Public Law in Crisis? (I·CON Volume 15, Issue 3: Editorial)

We invited Sabino Cassese, member of the I.CON Board of Editors, to write a Guest Editorial.

 Public law in crisis?

  1. Developments in the last century

Public law has greatly changed in the last century. It has lost several elements: the guidance from Roman law (Section 1.1); the compass of sovereignty (Section 1.2); its exclusively nationalistic approach (Section 1.3); its internal boundaries and its own specificity (Section 1.4); its position as authoritarian law (Section 1.5); unity (Section 1.6); stability (Section 1.7); (8) its own method (Section 1.8); and its own “official” history (Section 1.9). However, it has gained much else, due to its liberation from the many limitations previously encumbering it.

Let me examine each of these developments in turn.

1.1. Roman law

Carl Schmitt wrote that the rebirth of Roman law was the forerunner of modern public law[1]. Indeed, Roman law provided public law with a “grammar” and an organizing force. The “founding fathers” of public law scholarship, Paul Laband, Otto Mayer and Rudolf von Gneist in Germany, Maurice Hauriou and Léon Duguit in France, Vittorio Emanuele Orlando and Oreste Ranelletti in Italy, all began their scholarly careers as scholars of Roman law, specializing in and even teaching Roman law.

The British legal theorist John Austin, known for his analytical approach to jurisprudence and his theory of legal positivism, in his 1863 Lectures on Jurisprudence,  noted that “turning from the study of the English, to the study of Roman law, you escape from the empire of chaos and darkness, to a world which seems, by comparison, the region of order and light.”[2]

In one of his “Conversations,” Goethe noted that Roman law is like a duck: it sometimes vanishes underwater, but always to resurface. Today, the duck appears to have decisively disappeared.[3] Anglo-Saxon law is now the point of reference. The study of Roman law is slowly taking its proper and more limited role: is becoming one of the means to understand the reasons for the success of the Roman Empire. Therefore, the study of Roman law is slowly taking an historical approach and leaving the world of the “living law.”

1.2. Sovereignty

In 1882, Georg Jellinek wrote that “everything of public law can be explained through and by sovereignty.”[4] According to the tradition, with the 1648 Peace of Westphalia, supreme authority was conferred upon nation-states, that become sovereign. This history is now discarded and defined a myth, because states had the attributes of sovereignty long before the Westphalia Peace.

Today, however, sovereignty no longer exists, at least not in the same terms. Sovereignty is circumscribed, shared, pooled, and therefore its nature has changed.

In 1994, Sir Robert Jennings, one of the great English scholars of international law, noted that one needed simply walk through Amsterdam’s Schiphol airport to understand just how many people are travelling to foreign countries only with their passports, without need for a visa.[5] The International Air Transport Association (IATA) estimates that in 2016, almost 1.5 billion passengers have traveled internationally; many of these will not require a visa, and many others not even a passport[6].

Contemporary states delegate many of their powers to global regulatory regimes and accept to submit their once sovereign powers to supra-national standards. State sovereignty is replaced by a network of intermingling regulatory bodies. Nation-states reach areas that were once foreign to their influence (can fight global terrorism, try to keep under control global warming, interfere with other nation-states, acting under the auspices of the United Nations), but accept the obligation to cooperate, therefore becoming less “sovereign.”

As a consequence, “sovereignty” is, rather, a “bundle of powers,” a limited set of functional and conditional powers, and not an all-encompassing, ultimate power. Some consider that sovereignty is only “organized hypocrisy.”[7]

1.3. Nationalism

Traditionally, public law was national, because it was bound to individual states. There was German public law, French public law, Italian public law, Dutch public law, and so on. There was no room for public law outside those necessarily national branches of the law.

Today, separate national legal orders no longer exist. The nationalism of public law is vanishing. As has been observed with regard to German law, “public law is to be reconceived as public law tout court, fed from international, supranational and domestic sources and institutions.”[8] Now, European public law—a non-national legal system—invades and imposes itself upon national legal orders, and even takes, as its own guiding principles, those deriving from shared constitutional traditions. Therefore, the latter are now part of a blend, no longer isolated from one another. Moreover, European law considers them not as a set of national normative prescriptions, but as the set of norms and their history (which explains the reference to “traditions”).

This “supranationalization” does not concern only those sectors for which competence has been transferred to the European Union; indeed, due to the principle of communicating vessels, the principles developed in areas directly influenced by European law have also an impact on the surrounding areas.

The link between public law and the European legal order has two effects. On one hand, it fosters legal transplants from one system to the other.[9] On the other, it weakens the exclusive link with the state,[10] revealing the true nature of public law: not the law of the state, but the law of society.

1.4. Identity

Traditionally, public law has been separated from private law and subdivided into constitutional, administrative and international laws. The public law–private law divide goes a long way back, to Roman law, while the subdivision in constitutional, administrative, and international has established itself in the nineteenth century. Among the few countries where the study and teaching of public law is unitary is Germany.

Today, the walls between these branches of law are collapsing. Private law breaks into public law. The process of constitutionalization of administrative law is already at an advanced stage, while constitutional law is becoming increasingly “administrativized”: administrative law is conceived as constitutional law put into action (Verwaltungsrecht als konkretisiertes Verfassungsrecht[11]). There is full continuity between constitutions and administrations. Property, contract, civil liability, and the other great concepts of private law play a role no less important in public law.

Public law is becoming un-differentiated, losing its identity and becoming increasingly mixed.[12] How could public companies be studied without the instruments provided by civil law? Corruption, without criminal law? Justice, without any knowledge of procedural law? Administrative globalization, without the tools provided by international law?

This new structure endows public law with multiple functions, in light of the diversity of its component parts. Public law becomes internally pluralistic, possibly even shedding some constituent elements: an example is environmental law, which is becoming a wholly autonomous branch of law.

1.5. Authority

Previously, the principles of authority and “supra-ordination” were central to public law. Public bodies were endowed of a superioritas, that was the essence of the state, the “hard core” of government powers. And public law was conceived of as the study of the public authority–liberty of private citizens dialectic.

Today, the state and other public powers operate by guiding, directing, providing incentives and enticing. Nudging, which implies providing a stimulus, has acquired particular importance. It is only when these new means are not successful that public powers resort to authority. The latter thus becomes residual, enduring in a state of latency.

The authoritarian aspect of public law is becoming progressively attenuated, as a result of the development of the European law and of judicial review.

The European Union is influencing the blurring of the line between authority and liberty in many ways, mainly the prohibition of State aids.

Judicial review reduces the distance between authority and the citizens first by means of administrative justice, entrusted to semi-judicial bodies (which are becoming ever more independent) in continental legal systems, and to courts in Anglo-Saxon legal systems; next, by constitutional justice; finally, by supranational justice, which is gaining control over public law.

1.6. Unity

According to the Italian scholar Santi Romano, constitutional law was the “trunk” from which the various “branches” of public law derived.

Today, constitutional law and administrative law have been broken down. In the former, rights and liberties experience the pull of and unite with supranational bills of rights, while the rest of constitutional law remains in national hands. Constitutional courts cannot adjudicate cases in which rights are involved without taking into consideration not only national constitutions, but also international treaties like the International Covenant on Civil and Political Rights or the European Convention on Human Rights.

In administrative law, some branches are breaking off. As mentioned above, an example is environmental law; this is based on the principle of precaution, which cannot be applied to the rest of administrative law. The proof of this separation lies in the fact that the very teaching of environmental law is conducted separately and, in some cases (such as in the United States), has gained equal importance to administrative law.

1.7. Stability

In the past, the constitution and the administration were the realm of stability. Change was the rule in commercial law, called to adapt to the economy, not in public law.

This is no longer the case. Also public law must adjust to a changing world. As at 2013, the German Constitution has been amended fifty-nine times in its sixty-four years of life. Italy’s 1990 law on administrative procedure has been modified almost every year since its enactment. The European Union is defined by the Treaty on the European Union as an “ever-closer Union,” and thus in a state of flux.

Stability was once complemented by dogmatism, which accepts the idea that basic legal concepts are immutable; today, movement must be met by new methodologies, that are able to understand the law of state dynamics.

Legal turbulence has become a defining feature of public law and poses significant practical problems for its interpreters and implementers, as well as for its scholars.

Law and practice, “law in books” and “law in action,” both play an important role and scholars must study the law governing the State and the public administration, and the law produced by state and administrative organs.

1.8. Method

Public law has adopted a conceptualistic, dogmatic and systematic method. This is true of both continental Europe and Anglo-Saxon countries (see, for example, the approach adopted by Albert Venn Dicey when reconstructing English public law). This method has prevailed for over one century, until recently.

But a systematic and dogmatic method fails to do justice to the continuously changing world of public law and to the pluralism that has developed therein. New problems require new state interventions, that, in turn, change legal structures and processes; these, in turn, require new concepts and methods of enquiry. New approaches, including sociological, historical, and economic, have shown themselves to be very productive.[13]

1.9. History

Finally, public law has constructed its own history and genealogy. Karl Friedrich Wilhelm Gerber, Paul Laband, and Otto Mayer in Germany; Maurice Hauriou and Léon Duguit in France; and Vittorio Emanuele Orlando and Santi Romano in Italy not only have established the foundations of public law, but have also build an intellectual history for the discipline.

Discovering new worlds and new methods prompts a revision of the past. Thus, old figures come to the fore, such as Luigi Rava in Italy, who studied not only administrative law but also administrative sciences (public administration), and was one of the founding fathers of the Italian “welfare state”; in terms of importance, he should be placed next to, and perhaps even higher than, Orlando. Therefore, history must be rewritten.

National traditions that have influenced legal institutions and concepts in circulation, and that have sometimes turned into common traditions, must also be rediscovered. An example is the English “self-government”: admired by German scholars, it was taken as a model of self-administration, and imported into the Russian socialism in the early years after the October Revolution as an example of socialization of public power. It also drew the attention of the Austrian Chancellor Karl Renner—who considered introducing in Austria a general administrative model based upon the Soviet system—and of Hans Kelsen in 1920.[14]

Akin to “transglottal languages,”[15] common traditions feature traits that are common to several countries, but that are yet to be recognized due to the influence of nationalism and statism upon public law. Their (delayed) acknowledgment also calls for a rewriting of the history of public law.

All these changes may be considered to be negative, but are actually exerting an enormous liberating force upon public law, indeed enriching it. This is because Roman law was an artificial constraint, consisting essentially of civil law, and thus ill-suited to public law. State sovereignty underestimated the non-state centers of power, and thus pluralism. Legal nationalism led to isolation and incapacity to communicate. Internal confinements led to compartmentalization and a loss of unity, to the detriment of equality. The reference to authority preserved the absolutistic origins of public law as the law of the ruler. The ambition to achieve the internal unity of public law was artificial. The notion of stability accentuated the conservative nature of public law. The legal-systematic method maintained the “purity” and isolation of public law. The reference to a single cultural tradition served as a selecting mechanism, thus preventing the coexistence of different languages.

In conclusion, public law has indeed been deprived, on one hand, of a part of itself and its history; but, on the other, has gained (or at least has been enabled to access) new territories, methods and schools. All this has produced oscillation and uncertainties. Therefore, new crises are to be expected.

  1. Looking to the future

What do I see in the future of public law? To answer this question, one has to start re-conceptualizing the state, as the state has played, is playing and will play a central role in public law.

In the last half century, the state has advanced, retreated, and advanced again. As a result of these developments, the state has become more malleable, better able to adjust, adapt, and change according to the new challenges and contexts.

These adjustments have produced several outcomes. The first is the un-differentiation of society and state. Over the past few centuries, the state established itself through a process of differentiation from the various social interests and the public interest. The separation of the political and the social led the State to become an entity separate from society. Today, the dividing line is blurring, and the State is a marketplace or arena of competing economic and social forces.

The second is internal fragmentation. Originally, the state was more or less united around a center, which was able to keep the periphery under strict control and thereby ensure the unity of the legal system. Today, the growth in the dimensions and powers of territorial and functional bodies has resulted in the development of multiple legal systems within the state. Therefore, the center is obliged to replace rule with negotiation.

Third, as parliaments became more representative through universal suffrage, the power of civil society grew. The state and its body of servants have been compelled to replace command and control with leadership, hegemony and negotiation.

Fourth, joint decision-making became central: when both a national and a supranational or global administration intervene in the decision-making procedures, there are arrangements that allow for both levels of government, the national and the supranational or global, to make their voices heard. From the first perspective, the most interesting institutions are the European Union committees[16] First established to keep the Commission under the control of the Council and domestic administrations, they subsequently became a means for the Commission to broaden the scope of its jurisdiction, obtain information from domestic administrations, consult and receive support from national constituencies, and hold national administrations’ actions under review. Moreover, the committees unite national bureaucracies and provide a “forum” for discussion and exchanging ideas. They are a means for the formation of a common understanding among domestic administrations. As a consequence, committees play three important roles: bottom-up, to represent the views of domestic administrations in the Union; top-down, to transmit European policies to national administrations; and a horizontal one, to open and facilitate dialogue among national administrations. Committees, however, are not the only kind of mixed—national and European—organizations. There are many more such entities, which exist at a metaphorical halfway point between Brussels and national capital cities to ensure a balance among national and supranational governments.

Fifth interdependence of state and non-state actors has become a prevailing feature of public law. Non-governmental organizations (NGOs) are established in order to interact with global regulatory regimes. National governments become more transparent and must hear national, supranational and global pressure groups. The global disputes are multi-polar and involve both private parties and states.

Finally, like Ulysses, the state has committed itself through international treaties, thus renouncing full sovereignty and agreeing to share power with other states and global institutions.

2.1. Globalization and the ensuing state—global space interactions produced two paradoxes

The first paradox is clear in the role played by globalization in the constitution and development of states. The United Nations Organization supports states as members of the international community. The traditional relationship between states and the international community is reversed: previously, states created the international community; now, it is the international community that supports states. States establish global organizations, which in turn legitimate states.

This reversal is amplified when global or supra-national institutions impose on national governments, or promote among them, certain basic models of democracy or rule of law, as in the case of the United Nations Democracy Fund (UNDEF), which finances civil society organizations for the promotion of democracy, or the Organization for Security and Cooperation in Europe (OSCE), of which the Office for Democratic Institutions and Human Rights (ODIHR) is active in the fields, inter alia, of democratic development, election observation, and non-discrimination.

The second paradox is the following: while global institutions are entirely new organizations, they mimic national governments. For example, they allocate rule-making, executive and dispute settlement functions to separate bodies. This does not mean that the separation of powers principle is replicated in the global space, as the different environment leads to changes that, in turn, result in different organizational arrangements in the two areas. Here, once again, the “myth of the state” and the conceptual reduction of all public powers to the State affects the development of globalization.

These remarks have many implications. First, one must take an evolutionary approach to social institutions.[17]. Lawyers and political scientists are good at analyzing and dissecting dead bodies. But states are subject to “a continuous adaptive process,” and are “moving in different directions.”[18] One has to learn to analyze and study these living institutions and move towards understanding the rules governing their change.

Second, while seeking to ameliorate the poor state of empirical measures on the quality of states,[19] one must also try to conceptualize the complex web of integrated global and national polities. States are a constituent part of globalization. They expand in the global space and, at the same time, are limited by global institutions. National governments split, as noticed by the French international law scholar Georges Scelle, in his theory of the dédoublement fonctionnel: they establish global institutions and become their servants or implementers. Between States and global institutions, and among states, new kinds of relations are established, which one could call of horizontal accountability;[20] national governments monitor their counterparts, since their actions are interrelated.

Third, deterritorialization and reterritorialization of the state, globalization and resurgence of the state, denationalization and renationalization require both the discovery of new concepts and the rescue of old traditions. The first task has to start from the recognition of universal principles,[21] from human rights to the right to a hearing and transparency, that are globally recognized, but become diverse when percolate in different national settings. The second implies an invitation to turn back the clock, to the rediscovery of traditions that became obsolete as a result of the predominance of the nationalistic approach.[22]

Sabino Cassese*

On My Way Out—Advice to Young Scholars V: Writing References

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some dos and don’ts on different topics to younger scholars in the early phases of theirs. This is the fifth instalment and regards that staple of academic life: writing references.

If you are at the beginning of your career as a teacher it is likely that until now you have mostly been the recipient of references rather than the writer of such. Let us separate the writing of references for entry-level candidates seeking an initial teaching appointment or for colleagues in the process of tenure or promotion from references for students seeking admission to graduate programs, which is likely to be the bulk of your reference writing. I do write references from time to time—though, as you will see, I am quite circumspect in accepting to do so. But since I have, throughout my career in the United States, been involved almost without interruption in the direction of graduate programs at three major universities (Michigan, Harvard and NYU) I must have read—no exaggeration here—thousands of reference letters for potential masters’, doctoral and postdoctoral candidates. And though you are likely to think that the following is hyperbole, I will state here too, with no exaggeration, that a very large number of these references were worthless or close to worthless.

The following is a generalization, meaning that there are plenty of exceptions, but academic (and public life) culture is hugely impactful in determining the quality of a reference. In many Continental European countries and in many Asian countries—some more, some less, there are also North–South variations—it appears that who writes the reference seems to be more important than the content of such. Applicants will go to great lengths to receive a reference not from the Assistant, or Privatdozent or Maître de Conference etc. with whom there may have actually been a much closer intellectual and academic relationship but from a ‘famous’ professor or judge on the Supreme or Constitutional Court and not infrequently even ministers and the like. It must be a spill over from a more general culture of the labor market. Since the who is more important than the what, the content of these references is predictably short and vacuously laudatory. The ‘big name’ might have scant knowledge of the candidate and in a more or less subtle manner the burden of the reference is ‘You should admit X because I (the big name) think you should.’ Often you can tell that the candidate himself or herself had a hand in drafting the reference. One telltale sign is similar phraseology in the reference and the personal statement of the candidate. This scandalizes me less than you might imagine, since it is so often the case that the structure of legal education in many of these countries, with large classes and frontal teaching, means that the professor has, at best, a superficial knowledge of the applicant. What can he or she write? This is typically true of Central and South America too.

The UK, Ireland and the so-called Old Commonwealth (Australia, New Zealand, South Africa, etc.) are, as a rule, a shining exception. There is a well-established tradition of detailed and honest references that are typically based on meaningful knowledge of the applicant (again, a result of the structure of legal education) which are very helpful and to which I will return below in suggesting how you might think of the task of writing a reference.

The United States (and Canada, sigh) follow the English in oftentimes writing detailed references but the most common sin is that just as often these read as advocacy—as if the exclusive purpose of the reference is to get the refereed person admitted. Take a few dozen of these and in no time one could compose a dedicated Referee Thesaurus composed of 30 different ways of stating that Moses or Sarah are wonderful without repeating any superlative. At the same time, North Americans are accustomed to discussing an applicant on the phone and these conversations are usually more frank and helpful.

Probably the most common, transcultural misconception about references is that, indeed, their exclusive purpose is to get ‘your candidate’ admitted. This is simply not so. A balance needs to be struck between helping the candidate in his or her application purpose and an academic fiduciary duty owed to the admitting institutions in their selection procedures. If all your references end up looking the same (as is so often the case, see supra) you are failing to strike the right balance. Obviously it would be wrong to accept the task of writing a reference knowing that what you are willing and planning to write would positively harm the applicant. But there is a midway that is both fair and helpful.

The key is to go light on the ‘one of the best students I have ever had’ phraseology, which also runs the risk of provoking mirth in the admission office when a professor uses the same phraseology again and again and which is a datum that in  most cases will emerge from the objective, empirical data in the application (grades, ranking, etc.). Instead, it is far more beneficial to provide information and insight that would not be transparent from the formal file. It requires time. You should certainly read the application carefully—there might be things about your education system that are worth explaining in the reference. There may be a paper you supervised that will reveal strengths (and weaknesses) worth discussing. The reference very often plays a role in decision-making when the objective data in the application makes it difficult to choose among what appear to be equally qualified applicants. The result should not be determined by the referee whose superlative thesaurus is richer, but by providing the selector with information that individualizes the applicant and enables the selector to know the person better. In this way, the selector does not simply decide ‘who is better’ but can select the candidate who is more suitable for the program in question.

I oftentimes open my reference by explaining that I would not be giving a reference if I did not think that the applicant would be suitable for the program to which he or she is applying, but then I state explicitly that the rest of the reference will speak in substantive terms rather than evaluative ones. I also add that, given that so many references traffic in superlatives, my self-imposed diet should not be construed as killing with faint praise. As I mentioned above, I have learnt this from the best in UK practice.

Here are some Dos and Don’ts.

  • If you agree to write a reference never forget and always respect the deadline—to do otherwise is a capital offence.
  • Speak to the applicant. If you do not think you can write a substantive reference, or a favourable one, be transparent about it. Explain that for a reference to be meaningful real knowledge is more important that status. If you think that you would only be able to write a perfunctory reference you should say so. Countless times I have told former students seeking a reference: What can I say? That you took my class and got an A- ? Students tend to come to you if they got a good grade. I have a practice of many years that you may find helpful. Towards the end of the class I tell students that if they are thinking of doing graduate work at some point and think they might wish to have a reference from me, they should let me have a cv and photo on the last day of class so that I can make notes about them (on the cv itself) when their presence and contribution in class are still fresh in my mind. These get filed away for future reference, excuse the pun.
  • If you belong to a system where there is little opportunity to get to know your students, I would mention that on the reference. If in your system you have Assistants who get to know the students better than you do, write a joint reference with them explaining such. It will be appreciated and others might learn from you.
  • No, you should not ask or allow the applicant to write his or her reference. But I think it is acceptable, and I frequently do this, to ask them to alert you to anything on their vita that they believe is of significance in the context of the specific program. You will often do a better a job in contextualizing such for the benefit of the selectors.
  • If the application is for a research degree it is not so important that you praise the research project—the selectors will form their own view of that. It is much more helpful if you can provide information on the aptitude of the applicant to engage in such research.

There is a kind of ‘bottom line’ to all of this. To be effective (in helping the applicant) and useful (to the admitting institutions) references are a serious business that require some time, dedication and commitment—not unlike grading exams. Like all things one gets better at it, but it should never just become rote, sloppy or careless. In the panoply of academic citizenship duties this is one that is least welcome and most sacred.

Writing references for persons seeking entry-level appointment, tenure or promotion is a somewhat different kettle of fish. The stakes are much higher both for the candidate and for the appointing or promoting faculty. Thankfully, these requests are not quite as frequent; but this is balanced out by the need for a greater effort at reading and writing.

In many systems there is still the practice that the candidate nominates two to three referees to whom the Selection Committee then turns for a reference. There is nothing wrong with this unless they are the only referees to whom the Committee will turn. Even more so than with student applicants it is unlikely that a referee nominated by the candidate will not be on the whole laudatory. So the American custom of turning to a bunch of referees not nominated by the candidate is salutary. Such referees are asked, or should be asked, if they have any conflict of interest of the friend-foe type. I have only rarely seen this emerge as a problem and usually, in the evaluative dimension of the report, such references are more frank and illuminating.

The advantage of having a nominated referee is usually a consequence of the holy trinity of appointment criteria: scholarship, teaching and academic citizenship. Someone who knows the candidate may better be able to comment on teaching and citizenship. Also, a referee, even if nominated, deeply in the field may, if not lazy, be able to explain the importance of the work, relate it to that which is done by other scholars and the like—with the caveat mentioned above. Being nominated by the candidate has a chilling effect on total candour.

The amount of work involved is typically quite large—especially in tenure reviews. One needs to read a significant sample of the writing (and even more difficult, reread it if one knows it already) and then write a meaningful report, assuming that not everyone on the Selection Committee or the faculty that will eventually make the decision is familiar with the field.

When approached and under time pressure I will tell the Selection Committee that I am only able to write a ‘conclusory report’—almost like grading an exam or a person. I think these ‘testimonials’ are for the most part worthless to any self-respecting selection committee but they are not uncommon. Here, too, the culture of who writes is more important than what is written sadly often applies.

To a much greater degree than writing references for students applying to graduate programs the reputation and credibility of the referee are at stake here. If you take average work and praise it as ‘paradigm shifting’ (one of the most odious clichés of the genre) the discrepancy will be noted, the candidate will not be helped, and your own reputation and credibility will take a hit. This incentive for ‘self-preservation’ apart from the substantiality of the file explains why for the most part references for appointment, tenure and promotion have more heft and are more helpful. More time is given, an honorarium is sometimes offered (which makes doing a superficial thing a little bit more difficult) and a more substantial analysis is expected.

All in all, when focusing on scholarship, selection committees are mostly interested in explaining the work, the quality of mind behind it, its contribution and where it fits in the field rather than reading a series of superlatives.

It is very, very hard to refuse your name when asked by a colleague or former doctoral or post-doctoral student applying for a job or tenure or promotion. It has been a while since I have made this kind of request, but I think it is good practice when doing so to put in a sentence such as ‘I know how busy you must be and will understand if you are unable, etc…’  It may also be the case that more than one candidate for the same appointment may approach you—it is totally understandable if you indicate that you are already committed.

I cannot end this reflection without a cri de coeur as regards peer review for articles. My view, which I have often expressed, is that in an era of extensive self-publication the role of peer-reviewed journals is no less and maybe even more important. I expect selfless service, especially from those who have published in I.CON and/or EJIL and have thus, themselves profited from peer review.


In this Issue

We begin this issue with an In Memoriam appreciation of the life of our distinguished founder, Norman Dorsen, who passed away on July 1, 2017, at the age of 86.  This issue of I.CON is dedicated to his memory.


 This issue inaugurates a new occasional series: I-CONic Interviews.  We are delighted to introduce this series with Ruth Rubio Marin’s wide-ranging interview of U.S. Supreme Court Associate Justice Ruth Bader Ginsburg, which took place at the European University Institute last year.

Our Articles section begins with Toni Marzal’s examination and critique of the legal reasoning of the European Court of Justice in free movement cases.  Neil Duxbury then explores the history and nature of judicial disapproval as a distinctive mode of review in constitutional cases.  Anne Peters’ contribution investigates the tools and mechanisms that have emerged to promote the “procedural constitutionalization” of international law and the coordination of its many subfields.  Finally, Ben Schonthal gives a comprehensive account of the phenomenon of Buddhist constitutionalism in South and Southeast Asia.

            Greg Taylor opens our Critical Review of Governance section with his analysis of the jurisprudence of the Bundesverfassungsgericht on the constitutionality of election thresholds.  The Critical Review of Jurisprudence section showcases three selections from the I.CONnect-Clough Center “2016 Global Review of Constitutional Law,” with “Year in Review” entries for Taiwan, Italy, and Belgium.

Our I.CON Debate! section features two exchanges.  The first includes two responses—by Marco Dani, and by Sabine Mair and Elias Deutscher, respectively—to Professor Komárek’s 2014 I.CON article “National constitutional courts in the European constitutional democracy,” as well as Jan Komárek’s rejoinder.  The second is a comment by Sujit Choudhry on the 2015 I.CON article “Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Amendment” by Rosalind Dixon and David Landau, together with their rejoinder.

JHHW and GdeB

[1] Carl Schmitt, La condizione della scienza giuridica europea, 47 (Antonio Pellicani trans., 1996) (1943).

[2] John Austin, 1 Lectures on Jurisprudence at xciv (1863).

[3] Sabino Cassese, L’anatra di Goethe, 39, index, 1, (2011).

[4] Georg Jellinek, Die Lehre von den Staatenverbindungen (86) (new ed., introd. Walter Pauly, Goldbach, 1996) (1882) .

[5] Antonio Cassese, Five Masters of International Law, 168 (2011).

[6] Id.

[7] Stephen D. Krasner, Sovereignty: Organized Hypocrisy (1999).

[8] Armin von Bogdandy, Common Principles for a Plurality of Orders: A Study on Public Authority in the European Legal Area, 12(4) Int’l J. Const. L. 980, 982 (2014).

[9] Michele Graziadei, Comparative Law as the Study of Transplants and Receptions, in The Oxford Handbook of Comparative Law 442, (Mathias Reimann & Reinhard Zimmermann eds., 2006).

[10] Sabino Cassese, From the Nation State to the Global Polity, in Reconfiguring European States in crisis 78 (Desmond King & Patrick Le Galès eds. 2017).

[11] Fritz Werner, Verwaltungsrecht als konkretisiertes Verfassungsrecht, Deutsches Verwaltungsblatt 527, 527–533 (1959). For commentary on this text, see Ferdinand Wollenschläger, Verfassung im Allgemeinen Verwaltungsrecht. Bedeutungsverlust durch Europäisierung und Emanzipation?, in Verfassung als Ordnungskonzept, “Veröffentlichungen der Vereinigung der Deutschen Staatsrechtlehrer 187 (2016).

[12] Sabino Cassese, Cultura e politica del diritto amministrativo (1971); Sabino Cassese, Diritto amministrativo: una conversazione con Luisa Torchia (2014).

[13] William Bishop, A Theory of Administrative Law, 19 Journal of Legal Studies 489, (1990)X, and Giulio Napolitano, La logica del diritto amministrativo (2014).

[14] Thomas Olechowski, Biographical Researches on Hans Kelsen in the Years 1881–1920, Kelsen Working Paper, June 29, 2015.

[15] Tullio  De Mauro, In Europa son già 103. Troppe lingue per una democrazia? (2014).

[16] Committee Governance in the European Union (Thomas Christiansen & Emil Kirchner eds., 2010); Mario Savino, I comitati dell’Unione. La collegialità amministrativa negli ordinamenti compositi (2005); Fabio Gencarelli, Il Trattato di Lisbona e la nuova comitologia, 1, in Diritto comunitario e degli scambi internazionali, 1 (2012); Thomas Christiansen & Mathias Dobbels, Delegated Power and Inter-institutional Relations in the EU after Lisbon: A Normative Assessment, 36(6) W. Eur. Pol. 1159, (2013).

[17] Orion Lewis & Sven Steinmo, How Institutions Evolve: Evolutionary Theory and Institutional Change, Paper presented at the American Political Science Association in Seattle, Sept. 1–14, 2011.

[18] Sven Steinmo, The Evolution of Modern States 206, 210 (2010)

[19] Francis Fukuyama, What is Governance?, 26(3) Governance 347 (2013); World Bank, The State in a Changing world. Selected World Development Indicators (1997).

[20] For this concept as applied within national governments, see Guillermo O’Donnell, Horizontal Accountability in New democracies, in The Self-Restraining State. Power and Accountability in New Democracies 38, esp. 38 et seq. (Andreas Schedler, Larry Diamond, & Marc F. Plattner eds., 1999).

[21] On constitutional elements beyond the state, see Axel Tschentscher & Heike Krieger, Verfassung im Völkerrecht: Konstitutionelle Elemente jenseits des Staates?, in Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, 407 (2016).

[22] See James Gordley, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (2006).

* Professor at the School of Government, Luiss University, Rome. Email: This paper was first presented at the Oslo Workshop on the Theory, Methods and Functions of Public Law, Sept. 14, 2016.

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Published on November 10, 2017
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