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I·CON Volume 17, Issue 1: Editorial

We invited Michaela Hailbronner, I•CON’s Book Review Editor, to contribute a Guest Editorial.

Es kommen härtere Tage–Rough days are coming[1]

In the summer of 2015, Isabel Feichtner, my predecessor as Book Review Editor at I•CON, wrote a powerful editorial for the European Journal of International Law.[2] Isabel was protesting the utter lack of solidarity with member states like Greece shown during the handling of the European financial crisis. She called for resistance, arguing that we should use law and legal analysis in a critical manner to understand and challenge this kind of injustice. I agree, then and now. Since 2015, however, things have happened, mostly not good. More than ever it is important to understand what is going on, to work out responses, and to connect to broader public debates, as Rosalind Dixon argued in our last editorial.[3] Many of us are already engaged in this enterprise. But I believe we also have to think harder and more carefully not just about what we criticize but about how we do it—and whether and when we do it, with an eye to the broader picture. We need to address issues of strategy, framing, and honesty. This is an awkward argument to make for anyone below 40 such as myself (and in thinking about it I have contrived to feel, simultaneously, both old and not old enough). But I believe it needs to be made.

Start with strategy. Although much of the contemporary literature focuses on questions of institutional design rather than strategy, we all know the arguments about judges and strategic behavior. In real life, applying the law “without fear, favor or prejudice” is easier said than done. Smear campaigns against particular judges have become part of the Hungarian government’s arsenal in recent times and the Turkish government has not shied away from arresting and jailing judges. In the face of this, backbone matters. But, the argument has long gone, so does strategy. Judges in difficult situations may need to think consciously about which battles to fight, and how to fight them—with the implication that they might not fight every battle they plausibly could, or as loudly as they might if they were not also thinking of the bigger picture. If they are to resist assaults on human rights or democracy, their public standing and the support of civil society actors will be crucial, and they may need to be conscious of this, too. The duty to be scrupulous in appearances matters all the more when the institution is subject to attack. This general imperative to mind the institution can certainly be in tension with the duty to act in particular cases, or with the impulse to do so, but it is not an imperative easily dismissed, come the crunch. And dealing with it, too, takes backbone.

We are familiar with this when it comes to judges—but what about ourselves as academics? Are we immune from these duties?

The German Constitutional Court Justice Susanne Baer recently pointed out how careless talk about “judicial activism” and similar phrases are increasingly being picked up by political organizations gathering ammunition for efforts to curtail and weaken courts.[4] In the USA, scholars are currently debating packing the Supreme Court and stripping it (and potentially other courts) of its jurisdiction on certain issues. We hear from a leading scholar that human rights lawyers and activists apparently ought to feel “some shame in succeeding only amid the ruins of materially egalitarian aspiration at every scale.”[5] Meanwhile in Europe, the European Union is increasingly criticized as “authoritarian.”[6] And these are not the statements of a Trump, an Orban or an Erdogan, or their supporters. They are critiques and reactions to the current crises from scholars, mostly on the left. In our last issue, Grainne de Burca took issue with Samuel Moyn’s recent monograph Human Rights—Not Enough, which has been enthusiastically received in many quarters. As she argues in her book review, “One-sided critiques that downplay the achievements of the human rights movement while blaming it for many of the problems stemming from the triumph of neoliberalism in recent decades do little more than provide ammunition to strengthen the chorus of conservative and other voices denigrating the human rights project and the work of human rights actors who have fought to promote social justice of all kinds, economic and well as political.”[7] I believe that she is right.

The counterargument is of course that criticism, perhaps even in exaggerated form designed to shock, is exactly what we need to wake us up from our all too complacent slumber. What we need is not more of the same but radical change and innovation. The rise of populist right-wing movements, goes the argument, is all the proof we need that the left has compromised too much, abandoning the cause of inequality and betraying the working class and the poor.

We can, of course, debate this analysis. But this is not the point. Rather, when we think about necessary change, we also need to consider what it is we want to preserve. To some, this may smack of a lack of ambition, or defeatism. I disagree. We cannot and do not need to free change of risk, but we do need to think about what our safeguards are. No less an advocate for change than CLS scholar Roberto Unger recognized this explicitly in False Necessity.[8] While we seek to open up spaces for radical experimentation, Unger argued, we also need a set of so-called immunity rights.[9] By this he meant absolute rights that “protect the individual against oppression by concentrations of public or private power, against exclusion from the important collective decisions that influence his life, and against the extremes of economic and cultural deprivation”, giving her “the justified confidence of not being fundamentally endangered by the expanded conflicts of an empowered democracy.”[10] We also have an obligation to think about what our safety nets are and how we can ensure they hold even as we, or some of us, may pursue radical reform. We surely have any amount of dirty bath water to throw out, but something needs to catch the babies—and, perhaps even more to the point, someone also needs to think about the water supply.

We will disagree about what our safety nets are, of course. In debating that question, we will have to weigh priorities. Return to the discussion on the US Supreme Court. US advocates of court-packing or jurisdiction-stripping should keep in mind that such actions will further weaken one important avenue to challenge future authoritarian assaults by the executive. While Trump may seem to be the worst that could happen, even the most cursory look at the rest of the world shows that he is not. Conversely, we also want judicial institutions for the longer term of more ordinary times, a goal that might be outweighed but should not be lost entirely in the charge at the threats of the moment. We should not seek preservation at any cost, but neither should we lightly inflict damage that isn’t worth the price.

And again, this is an argument with broader consequences for how we operate as lawyers and legal academics. If legal discourse appears highly ideological and polarized, this weakens the force of legal arguments, and all those who make them. Unsurprisingly, the way in which law and legal institutions are understood, perceived, and valued within society and within the legal profession matters for its authority. Where any consensus about key legal concepts is lacking because legal and academic disputes are polarized—or when that is the appearance that is allowed to build up—impartiality will become impossible, because it will be impossible to be seen to be impartial. For even when one interpretation may be more legally right than another, it will be perceived as ideological and one-sided. In contrast, where key legal concepts are strongly entrenched within a legal system, and potentially backed by international law and institutions, judges and administrators will have a stronger case to bolster their own authority in the public’s eye and potentially to resist changes in an illiberal or authoritarian direction. In this regard, many legal systems today are much better off than they were at the beginning of the twentieth century. Yet, even entrenched understandings can be undermined, in particular by reflex polarization fueling a destabilization of legal concepts and categories.

What can we do about this? We will continue to disagree, and this is a good thing: pluralist discourse and criticism matters and are a vital part of keeping institutions strong and legitimate. My point is not about disagreement, nor is it about the old pretense that law is not subject to political or moral disagreement. It is a call to think long and hard about framing and audiences: about how we speak, including in light of who is listening.

Legal academics would do well to heed some of the broader lessons on science communication. Empirical studies have long demonstrated how ideological affiliations shape how we perceive and evaluate information including scientific facts (so-called identity protective cognition.)[11] We also know that we engage in motivated reasoning, i.e. we reason in ways that affirm our identity and status within an “affinity group” whose members share certain beliefs and values. This poses problems for scientists seeking to communicate findings on ideologically laden issues to the outside world. Climate change is the classic example. In response, researchers have recommended changing the social meaning of certain contested facts by disconnecting them from their association with certain world views or groups.[12]

In the context of constitutional law or political theory, this can be more difficult than where scientific facts are concerned. Questions of legal interpretation often involve making choices between different values associated with particular world views. But that doesn’t mean we should dismiss the insights on communication in the sciences as belonging to another discipline. Back in 2010, in response to the Supreme Court’s “neutrality crisis,” Dan Kahan recommended two strategies: “expressive overdetermination” and transparency in admitting complexity and doubts (“judicial aporia”). Expressive overdetermination implies a communication strategy that acknowledges important points and values on both sides.[13] Transparency is essentially about honesty. Though Dan Kahan’s recommendations were formulated for the US context, much suggests that legal academics should similarly heed his lessons, in particular where they address a broader public in blog posts, op-eds, or similar formats.

With these ideas in mind, I want to end with a few thoughts on the European Court of Justice (CJEU). In the last years and months, the CJEU has increasingly confronted legal developments in Eastern Europe, in particular the recent reforms of the Polish judiciary.[14] The issue came up first in Celmer, where the CJEU addressed the question whether Irish authorities could extradite a Polish citizen to Poland, on the basis of a European Arrest Warrant, given the increasing worries about judicial independence in Poland and the Commission’s initiation of the article 7(1) TEU (Treaty on European Union) mechanism.[15] In Celmer, the justices established a fairly high hurdle, requiring domestic courts to evaluate both if there are systemic threats to judicial independence in general and conduct an individual assessment of the particular case.[16]

The more recent cases have been brought by the Commission or concern references from Polish courts themselves. The CJEU’s first reaction suggests that the Court might start playing hardball, and perhaps successfully so. In an interim order issued on October 19, 2018, the Court required the Polish government to suspend the application of the Supreme Court justices’ retirement law with immediate effect.[17] The Polish government responded some weeks later by voiding the law.[18] While this is likely a strategic retreat to avoid interference from Strasbourg during the hot phase of the electoral campaign for the European parliament next year, it is still a win for Luxembourg and the Commission.[19] The battle is not over, however. The Polish government has asked its (captured) Constitutional Court to declare article 267 TFEU (Treaty on the Functioning of the European Union) unconstitutional “to the extent that it allows referring to the Court [of Justice] a preliminary question . . . in matters pertaining to the design, shape, and organisation of the judiciary.[20] Polish courts are also launching new references to the CJEU, attacking for example actions of Poland’s recently “reformed” judicial oversight institution, the National Council of the Judiciary.[21]

These cases demonstrate how hard it is to get things right as a matter of principle and strategy, and how important it is to consider audiences and questions of framing. The first question is of course: Does the CJEU get the law right? Even for those who are more interested in the implications of the Court’s ruling for Poland than in doctrine, this is not an irrelevant question. If the CJEU’s legal arguments for intervention turn out to be doctrinally unconvincing, it will be easier to reject the decision as partisan and political. As a matter of law, the new cases largely stand and fall with the CJEU’s fairly new, expansive reading of TEU article 19 and Charter of Fundamental Rights of Fundamental Rights article 47 in Associação Sindical.[22] In Associação, the CJEU treated a functioning judiciary as necessary for the implementation of European law, thus turning a previously domestic matter into a European one. On top of this are the difficulties of defining terms such as judicial independence, which is understood and implemented very differently in different member states, with problematic examples ranging from Germany to the CJEU itself, since its justices depend on member state agreement if they seek to prolong their term at the Court.[23] It is in other words not hard to formulate a Polish critique that portrays the CJEU and the EU as unprincipled and hypocritical. Whether this will convince Polish citizens will have to be seen. The PiS has lost votes in recent municipal elections and as observers have pointed out, a majority of Polish citizens are staunchly pro-EU—hence the strategic retreat on the Supreme Court retirement issue. But what exactly this implies for the CJEU going forward is hard to say. The next elections to the European parliament are on the doorstep and may change the current balance of power, making it harder to take political steps against Hungary or Poland. Sound institutional and strategic choices can be complicated.

Part of that complexity is about how broadly or narrowly we frame the strategic question. From a wider European perspective at least, the million-dollar question for the CJEU in the Polish cases is not primarily, as David Kosar suggests, “whether more CJEU pressure hurts or helps PiS (and Duda).”[24] It is what it says about Europe and Europeans if we tolerate the undermining of the rule of law in our own midst. The stakes are high. Ultimately, Poland’s membership in the Union could be at risk. But if there is one lesson Europeans seem to be drawing from Brexit, it is perhaps that the break-up hurts but that we may nevertheless succeed in living happily ever after. Does this way of thinking indicate a betrayal of Eastern Europeans whose departure from the EU would likely result in stronger Russian ties? Eastern European scholars routinely decry the European lethargy, criticizing European institutions for doing too little.[25] However, if the Court takes a firm stance not just on the Supreme Court retirement issue but on all the other cases to come—and that door is now wide open—this necessarily comes with higher risks.

To keep winning, the Justices at the CJEU will have be both smart and honest. Their framing will matter. The new expansive reading of article 19 TEU will have to be justified, and the Court should not content itself with a few token references to Associação and pretend that this is what we did all along. The key doctrinal and political question for the CJEU is why it is competent to decide on domestic judicial reforms rather than leaving the issue to be dealt with by the EU’s political institutions in the manner prescribed, in particular, by article 7 TEU.[26] In Associação, the Justices focused mainly on the argument that domestic courts are key to the implementation of European law. This may well be right. But we also know that the new cases are not really about that. In its judgments, therefore, the Court should tell us more about how and why the domestic rule of law matters as a basis for mutual trust and cooperation among European states within the EU. It needs to explain why this is not a matter for political rather than judicial intervention, and this will not be easy. In doing so, the Court could, for example, point to one of the most widely used (and, often, least theorized) justifications for expansive judicial intervention anywhere in the world: the failure of the existing political mechanisms.[27] Part of that failure represents a design failure. Article 7 requires unanimity for any approval of sanctions and the framers of the article 7 mechanism did not envisage a situation of broader democratic erosion among several European member states blocking action for each other. Part of it concerns the failure of European actors and institutions to react in a more decisive manner to the political and legal changes within member states.[28] As political proceedings on the basis of article 7 progress, this argument might lose its force—but then that seems right. Judicial intervention, at this level, should be a last resort.

Reflecting the need to attribute value to both sides, the CJEU should also address reasonable concerns about the consequences of its intervention head-on. For example, a worry about slippery slopes is likely to play an important role in constitutional debates in Poland and elsewhere: if the CJEU sets standards for the organization of domestic judiciaries, what else will turn out to be subject to such “under-the-table federalization”[29]? To respond to such reasonable concerns, the CJEU might think of borrowing from the more recent jurisprudence of the European Court of Human Rights (ECtHR), which stresses the importance of domestic procedures[30] and debates or potentially the idea of a constitutional “minimum core”[31] in the academic literature. Whatever the exact framing, it will be key for the CJEU to make clear that there are limits to its competence and provide at least a rough sense of what those limits are, so that it, too, can show itself to be ruled by the law. The justices need to emphasize that member states retain considerable room to design their judicial institutions as they see fit, something compatible with responding to abuses in Poland. To be sure, this will not be an easy balancing act. But it is important that the Court gets these cases right, and doing so will matter for its own legitimacy as well as that of the European Union.

It is not going to solve all problems, of course. More things needs fixing. Reforming the fundamentally flawed and undemocratic institutional framework implemented in the wake of the last financial crisis that Isabel wrote about is but one of them.[32] Those broader tasks depend on more than judges, as we all know. For what is true of the CJEU in all this also holds for those of us not currently sitting in the judicial chairs in Luxembourg. Our positions are different, but our dilemmas are not. Academic freedom is and must be the freedom to criticize, to pursue moral causes and oppose injustice as we see it. The instruments adopted during the European financial crisis are an example of things that deserve such critique. But academic freedom is not merely the duty to criticize and let the world make of it what they will. Lawyers and academics, no less than judges, shape the institutions of law. They take part in lawfare, whether they want to or not. Catchy phrases and shocking critique, in particular where they appear in the titles of academic articles or in blogposts, may win admirers and gain attention, but they also may provide ammunition for goals quite different from their authors’. If those who attack institutions have weighed the costs, fair enough—but I worry that they do not always do so, or do not do so with a gravity to match the risks. We have our opinions, our fears, and our angers, and academics may say and do more about them than judges often can. But ultimately, we too bear responsibility and unlike judges under the burdens of caseload and decision-making, academics have the luxury of being able to think thrice and consider the stakes, with full awareness of the risks and costs of their interventions.

Michaela Hailbronner*

University of Münster

In this Issue

In issue 16:2 of 2018, the International Journal of Constitutional Law published its first Foreword article. The Foreword, authored by Doreen Lustig and J. H. H. Weiler, identified and surveyed three waves of judicial review. This issue opens with an Afterword section, which includes a number of comments on and responses to the 2018 Foreword. The Afterword features contributions by Mila Versteeg, Julio Ríos-Figueroa, Başak Çalı, and Wen-Chen Chang, and concludes with a rejoinder by Doreen Lustig and J.H.H. Weiler.

In our Articles section, Ronald Janse examines the criteria developed by the European Commission to identify the conditions that countries are required to meet to become members of the European Union, and argues that the Commission’s criteria during the pre-accession period, although imperfect, would be critical of the contemporary illiberal governments of Poland and Hungary. George Duke then argues that state sovereignty includes certain features capable of promoting the common good, and Adem Kassie Abebe follows with an article that examines the role that the African Court on Human and Peoples’ Rights has developed by invalidating laws and constitutional amendments, and then discusses the possible implications for domestic courts in Africa.

Our Critical Review of Governance section includes four contributions. First, Tom Ruys, Luca Ferro and Tim Haesebrouck examine the war powers of parliaments in the deployment of troops abroad, with a focus on the countries of the US coalition against the “Islamic State,” while also identifying a trend of parliamentary empowerment and discussing the role of international law. Assefa Fiseha then explains how political and economic changes in Ethiopia have contributed to pressure for a growing economic performance while the country remains politically unstable. Gloria Loo Jung Xi argues that Indonesia has a “dual constitutional” system with two separate and autonomous legislative spheres and illustrates her claim by focusing on the way institutional actors have engaged with energy policies that converge with ASEAN norms but diverge from Indonesian law. Finally, Hao Duy Phan analyses the impact of ASEAN treaties on Vietnam’s administrative procedures.

In our Critical Review of Jurisprudence section, Alain Zysset uses the European Court of Human Rights’ conception of democracy to criticize the Court’s approach to the right to vote.  

The I.CON: Debate! section features two exchanges. First, Björn Ahl and Yan Lin discuss whether an empowerment of the Chinese Supreme People’s Court has taken place, and analyse the nature of recent judicial developments. In the second I.CON: Debate!, Tom Hickey elaborates a “political constitutionalist” argument to justify judicial review by discussing a republican view based on Philip Pettit’s work and showing how that argument can respond to some concerns developed by political constitutionalists like Richard Bellamy. Richard Bellamy replies to Hickey’s argument, and then Hickey offers a rejoinder.

This issue also includes two review essays. First, Athanasios Psygkas reviews two edited volumes on Canadian constitutional law: The Oxford Handbook of the Canadian Constitution, edited by Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers; and Canada in the World: Comparative Perspectives on the Canadian Constitution, edited by Richard Albert and David R. Cameron, drawing attention to Canada’s global influence. Finally, Tarunabh Khaitan reviews Constitutional Democracy in Crisis?, edited by Mark Graber, Sanford Levinson, and Mark Tushnet, which focuses on the theme of executive aggrandizement.

JHHW and GdeB


[1] Ingeborg Bachmann, Die Gestundete Zeit. Gedichte [The Mortaged Time, translation of title by the author] 11 (2011) (1st publication of poem 1953).

[2] Isabel Feichtner, Nein!, 26(3) Eur. J. Int’l L. 581 (2015).

[3] Rosalind Dixon, Global Public Law Scholarship and Democracy), 16(4) Int’l J. Const. L. 1049 (2019).

[4] Susanne Baer, Talk at the Mainzer Akademie der Wissenschaften, Conference “Justiz Macht Politik,” Nov. 27, 2018.

[5] Samuel Moyn, Not Enough:  Human Rights in an Unequal World217 (2018).

[6] See, e.g., Mike Wilkinson, Prelude to a Lexit manifesto: decoding the new German ideology, LSE Blog, available at http://blogs.lse.ac.uk/brexit/2018/12/04/prelude-to-a-lexit-manifesto-decoding-the-new-german-ideology/. For a more worked-out version of that argument, see, e.g., Michael A. Wilkinson, Authoritarian Liberalism in the European Constitutional Imagination: Second Time as Farce?, 21 Euro. L.J. 313 (2015).

[7] Grainne de Burca, Book Review: Samuel Moyn. Not Enough:  Human Rights in an Unequal World,16(4) Int’l J. Const. L.1347(2019).

[8] Roberto Mangabeira Unger, False Necessity (2001, 1st ed. 1987).

[9] Id. at 524 ff.

[10] Id. at 524.

[11] Dan M. Kahan, Ideology, Motivated Reasoning, and Cognitive Reflection: An Experimental Study, 8 Judgment & Decision Making, 407 (2013).

[12] Id.

[13] Dan M. Kahan, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional: The Supreme Court 2010 Term: Foreword, 125(1) Harv. L. Rev. 1 (2011).

[14] For an overview of the Polish and Hungarian developments and EU responses, see Kriszta Kovács & Kim Lane Scheppele, The Fragility of an Independent Judiciary: Lessons from Hungary and Poland–And the European Union, 51(3) Communist & Post-Communist Stud. 189 (2018).

[15] TEU art. 7 provides a two-step mechanism, a preventive mechanism (TEU art. 7(1)) and a sanctions mechanism (TEU arts. 7(2), 7(3)). It ultimately allows for the suspension of certain rights under the treaties including voting rights in the Council, though the latter requires a unanimous decision by the Council. With regard to Poland, the Commission invited the Council to determine that there is a clear risk of a serious breach by Poland of the rule of law (Decision of Dec. 20, 2017, available at http://europa.eu/rapid/press-release_IP-17-5367_en.htm).

[16] ECJ, Case C‑216/18 PPU—Celmer, drawing on the two-pronged test developed in Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198).

[17] Order of Oct. 19, 2018, C‑619/18 R.

[18] Joanna Plucinska, Supreme Court Law Changes “Tip of the Iceberg,” Polish Top Court Head Says, Reuters (Nov. 23, 2018), available at https://www.reuters.com/article/us-eu-poland-gersdorf/supreme-court-law-changes-tip-of-the-iceberg-polish-top-court-head-says-idUSKCN1NS1J0.

[19] Maximilian Steinbeis, Law Rules, Verfassungsblog (Nov. 24, 2018), https://verfassungsblog.de/law-rules/.

[20] Kacper Majewski, Will Poland, With Its Own Constitution Ablaze, Now Set Fire To EU Law?, Verfassungsblog (Oct. 14, 2018), https://verfassungsblog.de/will-poland-with-its-own-constitution-ablaze-now-set-fire-to-eu-law/.

[21] Supra note 16, which relies on http://orzeczenia.nsa.gov.pl/doc/E3FAD68B4C. See also http://monitorkonstytucyjny.eu/archiwa/6917. For an update on the recent cases and developments see Laurent Pech & Patryk Wachowiec, 1095 Days Later: From Bad to Worse Regarding the Rule of Law in Poland (Part II),Verfassungsblog (Jan. 17, 2019), https://verfassungsblog.de/1095-days-later-from-bad-to-worse-regarding-the-rule-of-law-in-poland-part-ii/.

[22] Associação Sindical dos Juízes Portugueses, Case C‑64/16 (Feb. 27, 2018).

[23] Joseph H. H. Weiler, Editorial: Those Who Live in Glass Houses, 28(3) Eur. J. Int’l L. 665 (2017). For a summary of the German case where problems arise mainly with regard to the appointment of judges at ordinary courts (a matter of state competence, handled differently in different states), see the 2017 Report for the German Bundestag by its research staff (wissenschaftlicher Dienst), https://www.bundestag.de/blob/526458/fd60a319fbbde8e8813708f0b199d9ce/wd-7-098-17-pdf-data.pdf, at 5.

[24] David Kosař, The CJEU Has Spoken Out, but the Show Must Go On, Verfassungsblog (Aug. 2, 2018), https://verfassungsblog.de/the-cjeu-has-spoken-out-but-the-show-must-go-on/

[25] See, e.g., Renáta Uitz, Part I: What Being Left Behind by the Rule of Law Feels Like, IACL-AIDC Blog (Oct. 29, 2018), https://blog-iacl-aidc.org/blog/2018/10/29/part-i-what-being-left-behind-by-the-rule-of-law-feels-like.

[26] Supra note 14.

[27] In European law, that kind of argument is familiar from the debates about the relationship of domestic courts (see, e.g., Armin von Bogdandy et al., Reverse Solange—Protecting the Essence of Fundamental Rights against EU Member States, 49 Common Mkt. L. Rev. 489 (2012)) and the European Court of Justice, and in a somewhat different twist from the CJEU’s Kadi decision (C-402/05 P und C-415/05 P). Outside  Europe, it plays a major role in justifying expansive judicial action in the context of US public law litigation (see, e.g., the arguments in Charles F. Sabel& William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117(4) Harv. L. Rev. 1015 (2004)) and in a somewhat different key in Colombia (see David Landau, Political Institutions and Judicial Role in Comparative Constitutional Law, 51(2) Harv. Int’l LJ 319 (2010)) or India.

[28] See supra note 13 as well as Laurent Pech & Kim Lane Scheppele, Illiberalism Within: Rule of Law Backsliding in the EU, 19 Cambridge Y.B. Eur. Legal Stud. 3 (2017); Dimitry Kochenov & Laurent Pech, Better Late than Never? On the European Commission’s Rule of Law Framework and Its First Activation,54(5) J. Common Mkt. Stud. 1062 (2016).

[29] I borrow the term from a comment by David Kosar.

[30] For a good discussion of that jurisprudence, see Thomas Kleinlein, Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control, 28(3) Eur. J. Int’l L. 871 (2017). This is not to say, however, that the CJEU should blindly follow the jurisprudence of the European Convention on Human Rights (ECHR) on judicial independence, see, e.g., the critique of the Baka case by David Kosař & Katarína Šipulová, The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law, 10(1) Hague J. Rule L. 83 (2018).

[31] David Landau & Rosalind Dixon, Constraining Constitutional Change, 50 Wake Forest L. Rev. 859 (2015), who understand this mainly as a barrier to constitutional change or replacement. (The roots of the “minimum core” concept lie, of course, in debates on socio-economic rights.)

[32] For a critical overview and assessment, see, e.g., Mark Dawson & Floris De Witte, Constitutional Balance in the EU after the Euro‐Crisis, 76(5) Mod. L. Rev. 817 (2013).

* I owe thanks to Grainne de Burca, Rosalind Dixon, James Fowkes, David Kosar, Katharina Mangold, Marcela Prieto, and Sergio Verdugo for comments and criticism and to Juliane Miller for last-minute editorial support.

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Published on May 14, 2019
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