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The Future of ICON-S (I·CON Volume 16, Issue 3: Editorial)

The future of ICON-S: Looking toward 2021 and beyond; Authors of I.CONCustomer Care; In this Issue

We invited Lorenzo Casini and Rosalind Dixon, Co-Presidents of ICON-S and members of the I.CON Editorial Board, to write a Guest Editorial

The future of ICON-S: Looking toward 2021 and beyond

The International Society of Public Law (ICON-S), launched in 2014 under the auspices of the Florentine Renaissance, is still a newborn and fragile entity. Yet, its state as a learned society appears to be strong and its developments are increasingly promising: ICON-S has just hosted its 5th annual global conference in Hong Kong, bringing together almost 800 scholars from over 70 different countries, with more than 170 parallel panels focusing on the most challenging contemporary problems related to democracy, security, and identity in public law.[1] This amazing result follows four highly successful annual conferences in Florence, New York, Berlin and Copenhagen.[2]  As occurred at these previous events and in accordance with the ICON-S mission, the gathering in Hong Kong was multi-disciplinary, inter-generational (over 60 per cent of our members are scholars under the age of 40), and it reflected the Society’s commitment to gender parity.

We therefore feel honored to begin our mandate as co-Presidents after such outstanding outcomes, the engine for which is to be found in the ideas and work of many people.[3] Together with the Society’s governing bodies, we will do our best to keep alive this extraordinary momentum and to enhance the wonderful legacy of our last annual Conference. And we will try to do this by targeting three main objectives, all of which stem from the very concept at the origin of ICON-S, i.e., its trans-boundary and cross-cutting—geographically and intellectually—ambition to establish connections and foster dialogue beyond individual scholars and disciplines, including among constitutional administrative, criminal and international law, and among public lawyers, historians, political scientists, sociologists and economists, to name but a few.[4]

First, we aim to pursue the mission of the Society through strengthening its points of unanimously recognized value. Five years ago, ICON-S was established as a new forum and a new opportunity for scholarly discussion, comparison, and evaluation.[5] ICON-S exists because of people who believe that legal scholarship is not bound to a wholly nationalistic or single disciplinary approach: over 3000 scholars have joined the network of the Society and this number is constantly growing. We thus aim to continue to promote this kind of scholarship and growth in the Society.

We also hope to carry on the Society’s commitment to inter-generational conversation and parity, by looking at how to strengthen and enhance ways of forging new connections between senior and younger scholars, and between “old” and “new” attendees of ICON-S; as well as expanding the Society’s commitment to gender parity.  Hong Kong saw the Society’s first ever women’s breakfast, to support the Society’s mandate of parity in the presidency and Council elections; and we will continue this, as well as looking for ways to promote parity in panels and plenaries and other areas of the Society’s activities.

Another hallmark of the ICON-S meetings to date has been their substance. We and the Society’s governing bodies truly believe that this is relatively rare among global conferences, and depends largely on ICON-S’s unique mix of large plenaries, mid-size thematic panels, and hundreds of smaller parallel sessions involving works in progress—largely organized by a set of scholars with pre-existing interests and connections, and with a bottom-up approach. Parallel panels of this kind reflect the mix of individual and collective effort, or top-down and bottom-up organizational efforts, which are a core strength of the Society and its conferences; and we plan to make them an even more central part of our annual meetings. Furthermore, the Society has always sought to engage with a wide variety of public lawyers, i.e., academics, practitioners, judges, civil servants.  Indeed, ICON-S, like I.CON, aims to be perceived as a “safe” harbor for public lawyers of all kinds, and we hope to continue this tradition in coming years.

Second, we wish to continue to nurture the geographic expansion of ICON-S, especially in the Global South, and we aim to develop this through both the annual conferences and the creation of ICON-S field chapters. The location of the Society’s last conference in Asia—organized in conjunction with the celebration of the 50th anniversary of the University of Hong Kong —marked an important moment of growth for the Society—not only geographically, but also intellectually—as it sought to engage more deeply with scholars and challenges in those parts of the world other than the American or European countries.[6]

Based on this successful experience, the Society will consider further proposals to host its annual conference in the Global South. We and the ICON-S governing bodies are aware that for many current members of the Society this involves additional costs and barriers to attendance at the global meeting, and for this reason we believe there should be some balance across gatherings between locations that are “close” versus “far” from the academic homes of most members. But we, as public lawyers, are like explorers. We need to cross borders, since we are eager to learn, to exchange ideas, to overcome our limits, to discover our mistakes and to amend them. And it is essential to enable the Society to grow geographically and in an inclusive way—that can reach scholars and issues in all parts of the globe, including Asia, Africa and Latin America, as well as Europe, North America and Oceania. For this reason our 2019 conference will take place in Santiago (Chile), on July 1-3.

The other key way in which we hope to support the Society’s expansion is by encouraging the creation of new regional and national chapters of ICON-S.[7] National chapters have recently been established in Israel, Mexico and Italy; regional chapters have been created in Central and Eastern Europe and in the British Isles; and other chapters are in the process of being set up in Chile, Colombia, Germany, Portugal and Singapore.  These chapters have also held vibrant events and meetings, which have complemented and enriched the work of the Society globally, and we anticipate that much of the growth of ICON-S in coming years is likely to come from this kind of bottom-up activity.  It helps expand the Society, without requiring a new era of global “mega-conferences,” and it also ensures that our growth is maximally inclusive. Lastly, expansion of the Society through regional and national chapters will also be pursued through more intense relationships between ICON-S and other international and domestic academic and learned global societies operating in the fields of public law.

Third, we plan to strengthen another defining feature of ICON-S, that is its close connection to our eponymous journal, I.CON—and to its scholarly and research agenda.[8] In particular, we, and the Society’s governing bodies, see the benefits ensuing from the shift that I.CON has realized from a journal of constitutional law to a journal of public law more generally, including all dimensions of public law. By the usual quantitative parameters, I.CON is doing better than ever, and this is also due to the success of ICON-S. The rate of submissions is extraordinary, running between 5-10 articles per week. The rate of downloads from the I.CON Archive has risen over the last three years from 50,000 per year to an astonishing 350,000 in 2017. The I.CON Editors remain steady in their commitment to be subject-matter inclusive. You will also have seen the dialogue between law and the social sciences and between positivism and theory. And finally, the commitment to publishing young scholars is another sign of the symbiosis between I.CON and the Society.

We thus aim to deepen the existing fruitful connection between ICON-S and I.CON with research, by finding new ways to support the capacity of Society members to embark on rigorous large—and small—work of the kind we see in our Journal. The last issue of I.CON was devoted wholly to public law developments in Asia, and there could have been no better preparation for the annual conference. This connection between ICON-S, I.CON and potentially I.CONnect, our blog, may potentially be strengthened or “codified” as a routine part of the preparation for ICON-S’s global conference—so that I.CON and/or I.CONnect are able to provide those attending the conference with deeper knowledge of the local public law context.  There may also be value to including a greater focus on such local issues, and debates, as part of the formal program in the annual conference.

ICON-S gains enormous strength also from its linkages with I.CONnect; this latter is second to none in quality and reach among public law blogs worldwide. This again presents opportunities for fruitful collaboration:  public law, and public law values, are under serious threat in many parts of the world; illiberal and authoritarian forms of populism are on the rise; and constitutional democratic institutions are under threat. A key question for ICON-S is also how it should respond to these developments, while staying true to its core values and of course welcoming contributions from a broad ideological spectrum. Such dilemma will no doubt occupy the ICON-S governing bodies, and its membership, for many months and years to come.  But we also envisage that part of the answer to this question is likely to lie in new forms of collaboration between ICON-S and I.CONnect—i.e., in harnessing the success of I.CONnect as a platform for connecting members seeking to gain global support and attention from every part of the world.

In conclusion, ICON-S is strong because of its growing, inter-generational and diverse membership; yet it can be strengthened by even greater bottom-up efforts to increase the membership, and we hope to find new ways of cementing and enhancing interactions in the Society between senior and junior scholars. ICON-S is also strong because of its global ambition and dimension, with members and institutions covering more than half of the overall number of recognized states; yet, the Global South has not enough voice within the Society and we aim to increase the degree of involvement of scholars coming from that area. Lastly, ICON-S draws enormous strength from its relationship with I.CON and I.CONnect, but can potentially do more to support the Journal and its scholarly agenda through new research and expert networks; and grow—entering new and otherwise rocky terrains of engaging with current political challenges and controversies—by further deepening these relationships.

We look forward to working with the Society’s governing bodies, its officers, I.CON, I.CONnect and with all of you, as we attempt to make real these new possibilities. As long as ICON-S remains trans-boundary, multi-disciplinary, inter-generational, gender-balanced, open and inclusive, we are confident that its future will reflect its encouraging past and its promising present.

Lorenzo Casini and Rosalind Dixon

Authors of I.CONCustomer Care

Try as hard as we may, it often takes months to get a publishing decision from I.CON. The bottleneck is, in most cases, the peer review process of which you have read our laments on more than one occasion. We should say straight away that peer reviewing is a fundamental and immensely valuable part of journal publishing. It not only helps us in our publication decisions but our authors receive constructive comments, which enable them to improve their articles and for which they are, without exception, grateful. We, in turn, are incredibly grateful to our colleagues in the public law community who regularly or irregularly take on the somewhat thankless task of peer reviewing (though perhaps seeing a significantly improved piece in print does provide a measure of thanks).

As important and valuable as peer reviewing is, the process is often as unpredictable as the weather in spring. It might take weeks before we manage to assemble the peer reviewers (we get many refusals; and potential peer reviewers do not always reply instantly to our request) and then, as you know from your own experience, good intentions come up against the realities of academic life, one constant of which is always to be late in submitting something promised. Have you not sometimes thought that the flows of our professional life resemble managing a perennial overdraft in the bank?

As you will know, the first step in considering a manuscript is a careful screening by the “in-house” editorial team—which comprises the Editors-in-Chief and our Associate Editors—who decide whether or not the submission should be sent to peer review. Our general policy is “when in doubt—send to peer review.” We would much rather have false positives than false negatives. But there can be many reasons apart from quality that may underlie a decision not to send out to peer review. I.CON is a general interest public law journal which seeks a balance between positive law and legal theory, between jurisprudence and political and social science, and gives representation to the various branches of public law: international, constitutional, administrative (including GAL). We build our issues with the aim of appealing to a wide readership. Each article we publish means the rejection of another article that could be of similar intrinsic quality. For example, we may not wish to publish in one year five articles on, say, proportionality or the legitimacy of judicial review, even if each of the five would be of publishable quality.

With this double process of screening and subsequent peer review in mind, we have revised our procedure in one small but critical sense which, we hope, will be welcomed by our authors. Henceforth we undertake to inform our authors within no more than six weeks of the date of submission, barring complications, about the screening decision. If we decline to publish, the author will then be able to submit his or her article elsewhere in a timely fashion. If a positive screening decision is taken, the author will know that his or her submission is in the peer review process. We assure you that we do our best to expedite the process but sometimes speed is the enemy of quality, and thus we exhort a measure of patience.

Once the peer review process is completed and a final publication decision is taken, we take great care in “placing” articles so as to make them part of an interesting issue and to maximize their visibility. We are always ready to send authors an official letter certifying that their article has been accepted for publication on the basis of peer review if they should need one (for tenure review, promotion, etc.).

The overall process from submission to publication can take a while. We believe the wait is worthwhile. We try to publish only those articles which in our judgment will have a long shelf life and to date the numbers appear to bolster this belief. Publication in I.CON makes it likely that your article will be noted, downloaded, read, and cited for many years to come.

In this Issue

Marta Cartabia opens our third issue of the year, and inaugurates our new Keynote Address section with her reflections on the current European constitutional crisis.

Our Articles section begins with Connor Ewing’s discussion of the development of the jurisprudence of “equal dignity”—articulated in Obergefell v. Hodges—as well as its role and significance within the American Supreme Court’s fundamental rights jurisprudence. Sergio Dellavalle follows by exploring and attempting to resolve the tensions between the right to refuge and the right to preserve the identity of the political community, on the basis of a post-dichotomous conceptual framework. Michael Ilg then proposes a method of “expressive elasticity” as a means to balance individual protection with expressive liberty in deciding whether and how to regulate offensive expressions or hate speech. The next article is authored by Lael Weis, who argues that a rights-focused approach to environmental constitutional rights is misguided, and proposes a “contrajudicative model” instead. Finally, Robert Alexy develops an internal critique of Aharon Barak’s theory of proportionality, focused on the relation between the latter and constitutional rights.

Our Symposium section features a collection of papers on constitutional silence. After the introduction, authored by Richard Albert and David Kenny, Oran Doyle recounts how most constitutions do not make explicit claims as to the extent of the territory of the state, and develops a new theory of the general relationship between laws and the geographic limits of their application. Next, Laurence Claus focuses on enumerated powers, exploring the significance of the American Constitution writers’ silence regarding the principles for deciding whether national governing actions fall inside or outside the enumerated subjects of national power. Martin Loughlin follows with an examination of the roles performed by silences, gaps, and abeyances in constitutional texts and an assessment of recent attempts to fill those silences. The next contribution, authored by Mohammad Fadel, argues that by refusing to accept a place for constitutional silence, the Egyptian Supreme Constitutional Court’s decisions during Egypt’s 2011-2013 crisis enshrined a kind of ‘constitutional despotism’ which exacerbates constitutional conflict. Aileen McHarg then explores the role of constitutional silence in navigating the Brexit vote and its aftermath. Finally, Gábor Halmai closes this symposium, elaborating on the doctrine of the invisible constitution in Hungary and its role in constitutional backsliding.

Our issue ends with our I.CON: Debate! section, featuring a discussion between Andrew Koppelman and Gila Stopler on how religious liberty should be understood as a human right.

JHHW and GdeB

[1] https://www.icon-society.org/2018-conference/.

[2] https://www.icon-society.org/previous-conferences/.

[3] Together with the Society’s governing bodies, the hosting institutions of our annual Conferences and their fantastic conference organizing teams, we must acknowledge Sabino Cassese, Gráinne de Búrca, Ran Hirschl, Michel Rosenfeld, and Joseph H.H. Weiler, who brought ICON-S to life, and we must thank Arie Rosen and Claudia Golden for their support. We also welcome the newly appointed officers of the Society: Richard Albert (Secretary general), Sergio Verdugo (Deputy Secretary general), and Fred Felix Zaumseil (Chief of Communication and Social Media).

[4] https://www.icon-society.org/mission/.

[5] See S. Cassese, “An International Society of Public Law”, ICON-S Working Paper – Conference Proceedings Series 1, no. 1/2015, which are the opening remarks given at the inaugural meeting of ICON-S, in Florence (June 24, 2014).

[6] The 2018 Conference also helped forge new connections between HK-based scholars and those based in mainland China (https://50.law.hku.hk/icon-s2018/).

[7] https://www.icon-society.org/national-regional-chapters/.

[8] See G. De Búrca and R. Hirschl, Editorial: ICON-S – State of the Society, 16(2) Int. J. Const. Law, 312 (2018).

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Published on November 14, 2018
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