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ICON Volume 18, Issue 4: Editorial

We invited Ruth Rubio-Marín, Professor of Constitutional Law at the University of Seville, Spain, to write a Guest Editorial. Following the Editorial, an earlier interview by Ruth Rubio-Marín with Justice Ruth Ginsburg which first appeared in vol. 15:3 of the journal is reprinted.

Constitutional law and women’s citizenship: A retrospective—In memoriam Ruth Bader Ginsburg

As we find ourselves mourning the untimely passing away of one of the greatest legal icons of our times, U.S. Supreme Court Justice Ruth Bader Ginsburg, described by many as the Thurgood Marshall for women, this may be the time to look back and reflect on how our discipline, constitutional law, throughout its existence has served the one central goal that seems most to have motivated the life-long career of this extraordinary judge: the achievement of women’s equal citizenship stature.

The world in which Ruth Bader Ginsburg was born in 1933 was clearly one that fell short of this goal in fundamental ways. Justice Ginsburg was born from a mother, Cecilia Bader, known to be intellectually ambitious, who graduated from high school at fifteen, but could not attend college, as the limited resources of the family went to her brother´s education. She herself was accepted at Harvard Law School, in 1956, only six years after the school started admitting women (she was one of nine out of a total of 552 students). In spite of graduating top of her class at Columbia, where she completed her law degree, she entered a job market where sex-based discrimination was perfectly legal. Both she and Justice Sandra Day O’Connor, the first female Justice at the Supreme Court and the only one to precede her, shared the experience of being denied opportunities, such as clerkships and positions at law firms, just because they were women. In her own words, theirs was a world in which “the law books were riddled with gender-based differentials … and the overall picture was that of separate spheres: the paid work sphere for men, the home and childcare sphere for women. If the woman worked, she was just a pin money earner.”[1]

This was in fact the worldview that constitutionalism was built upon. Indeed, since their very inception, the constitutional systems in both Europe and North America embodied what, from a concern for women´s citizenship, we could call an exclusionary form of constitutionalism, which simply denied women rights equal to those it granted to men. This followed from the understanding that domesticity and motherhood defined women´s essential and unique contribution to society, creating household-based, more than personhood-based, democracies. Often, as in the U.S., the Constitution itself was silent about women´s expected roles, which were simply assumed rather than spelled out. But the male justices interpreting it did not maintain this same silence, such as when they rejected the challenges of women asking for the right to practice law[2] or the right to vote,[3] or in challenging their limited working hours.[4] In other jurisdictions, constitutions were conversely quite explicit about the confines of women´s citizenship, as in the Irish 1937 Constitution, proclaiming that “the State recognizes that with her life within the home, a woman gives to the State a support without which the common good cannot be achieved … and shall therefore endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labor to the neglect of their duties in the home.”[5] In fact, the legacy of the separate spheres remained so strong that neither the recognition of women´s right to suffrage at the turn of the century, which was in some countries constitutionally enshrined, nor the incorporation of the first sex equality clauses into constitutional texts in Europe´s interwar constitutionalism, and their reaffirmation in post-World War II, entailed the automatic and full abolition of women´s subordinate constitutional status. For as long as the family realm continued to be treated as a separate realm with its own internal logic and the Aristotelian maxim of treating “like cases as like….,” allowing for “reasonable”—not only strictly biological but also “functional differences”—to justify sex-based differential treatment in the law, equal constitutional status would not be achieved.

Yet, many of the women active since the revolutionary times had wanted circumstances to be different from the very start. In 1791, in her Declaration on the Rights of Women and the Female Citizen, Olympe de Gouges declared women “to be born free and equal to man in rights,” and that national sovereignty was nothing but the addition of men´s and women´s sovereignty.[6] It would take almost two centuries for these ideas to start making their way into the mainstream. Only in the 1960s and 1970s, under the influence of second-wave feminism, did the constitutionally enshrined household-state model come under serious attack with the process of granting women equal rights to those of men becoming a matter of serious constitutional contestation, a process that continues to this day in many parts of the world. In the U.S., Ruth Bader Ginsburg, among others, including Dorothy Kenyon and Pauli Murray, was among the pioneers triggering this crucial legal transformation and bringing about inclusive constitutionalism for women for the first time. In Bader Ginsburg’s case, the struggle took the form of convincing the Supreme Court that the 14th Amendment´s guarantee of equal protection applied not only to racial discrimination but to sex discrimination as well.

In her capacity as a litigator and director of the Women´s Rights Project of the American Civil Liberties Union between 1973 and 1978, Ginsburg presented six cases to the Court, winning five and ultimately succeeding with others in convincing the Court to read the Constitution as prohibiting sex-based discrimination. This was a hugely transformative milestone at a time when sex-based distinctions in the law were widespread. Out of all of these cases, her declared favorite was the one leading to the Weinberger v. Wiesenfeld decision of 1975.[7] This case struck down a Social Security provision under which childcare benefits were denied to Stephen Wiesenfeld, when, after his wife´s death in labor, he decided to work part time to take care of their child until full-time school age, only to find out that the law reserved those benefits to women. The case resonated well with Ginsburg´s own life as household caretaking roles between her and her husband had been fluid. Martin Ginsburg, Marty, and Ruth Bader had fallen in love as undergraduates at Cornell, married as soon as she graduated and they entered Harvard Law School already with their first baby in tow. She had certainly led the household and more when, during his third year of law school, her husband was diagnosed with cancer and it fell to her to attend her own classes, help him type up the notes his peer students took for him in his, all the while taking care of their little one. So too when, as a young lawyer, Ruth’s husband was determined to become a partner in a New York law firm within five years, and this meant that she took on primary responsibility for the child and the household. But when the women’s movement came alive in the late 1960s and Ruth co-founded the ACLU women’s rights project, they shifted roles. Later on, the pattern would repeat itself when, in 1980, President Jimmy Carter appointed her to the United States Court of Appeals for the District of Columbia Circuit, and Marty followed her to Washington DC and changed jobs to become a professor of tax law at Georgetown University Law Center. 

The Wiesenfeld case was also strategically powerful because it did not just focus on any domain but instead drew attention to the work of social reproduction at a time when it was still assumed to define a woman´s destiny. Also, it presented a male-only court with direct evidence of how sex-based stereotypes (such as those assuming that wives were secondary breadwinners whose incomes were unimportant to the family) could damage men as well as women.[8] Yet, while crucial in combating laws based on stereotyped notions of male and female abilities and needs, nothing in this gender-neutral approach to the law could change the reality that the Martin Ginsburgs and the Stephen Wiesenfelds of their time were, statistically speaking, rare species. For many women of their time (and ours still!), the reality is that a gender-neutral legal system that does not hold back women with legally constructed artificial barriers is not enough for them to express their God-given talents because societal and cultural norms remain largely unchanged and women continue to bear the brunt of caretaking. There are limits to this form of gender anti-stereotyping equality that Ginsburg helped to build, seen by some as an assimilationist model forcing women to adapt to a male standard instead of asserting their specific needs when framing equality claims. When pressed on this issue in an interview with me in 2016, Justice Ginsburg replied with words of pragmatism, not principle: she did what she could in a time in which formal discrimination against women was the norm and in a context, that of the United States, where fierce individualism was the standard currency and social legislation did not have deep historical roots.[9] In such a world, gender neutrality and formal equality held the best promise for both men and women, but especially, for the latter.

She was not unaware that better was possible. After law school, Ms. Ginsburg undertook a legal study in Sweden where she had ample opportunity to admire a society in which, with the assistance of a proactive welfare state, women were not choosing between careers and family. Yet, the Justice was right in pointing to the fact that, in building its sex-discrimination constitutional doctrine, Europe started from a different constitutional tradition, a tradition that would invite a different understanding of what inclusive constitutionalism for women should entail. It gave birth to a sort of maternalist accommodationism that, under the logic of substantive, de facto or real equality, has been better able to accommodate measures to proactively allow women to combine paid employment and motherhood, such as paid maternity leaves, although sometimes at the high price of entrenching rather than subverting existing gender stereotypes.[10] The later consolidation of constitutional democracy in Europe, the explicit recognition of women´s constitutional equality in the wave of constitutionalism since World War II, but also the incorporation of substantive equality provisions, facilitated the adoption of an anti-subordination logic in continental Europe as the dominant interpretive grid for the sex equality provisions. In the post-war years, these substantive equality clauses were first designed with a class axis in mind. However, starting from the 1980s, and especially from the 1990s, and under the influence of the Convention on the Elimination of all Forms of Discrimination against Women, they began to include explicit mention of the goal of women’s equal opportunities, sometimes also explicitly validating the adoption of affirmative action or special measures to reach this result, as for instance section 15.2 of the 1982 Canadian Charter of Rights, one of the pioneers in this respect.

To a large extent, the gradual incorporation of a substantive equality vision was the result of women starting to join constitution-making and reform processes in more than token numbers,[11] in a move that signaled the turn of women´s constitutionalism to another form (let us call it participatory) constitutionalism, in which constitutions are grasped both as containers for women´s expressed aspirations and as facilitators of women´s participation. Thus, in Canada[12] but also in Austria[13] and Greece[14], to name just a few examples, the adoption of substantive gender equality provisions was due to women´s large-scale mobilization. However, South Africa´s 1996 Constitution has been generally recognized as providing the first example of a full constitution-making experience in which women´s interests were asserted throughout, including in a very ambitious framing of the equality provision (Section 9).[15]

This increase in women´s participation in constitution-making has seen women present in official constitution-making bodies (including constitutional assemblies and drafting bodies), but also active in intense mobilization in civil society. Their forms of engagement have been manifold, ranging from leading educational campaigns addressed at society at large and at women in particular; running or getting involved in official or unofficial consultation processes; forming broad coalitions to draft “a woman´s constitution” or a shared agenda, as well as signing petitions, lobbying or looking for coalitions with members of the constituent assembly.[16] Women´s participation in official bodies has been boosted by the worldwide spread of legislative gender quotas, leading to an increase in women´s representation in national parliaments. In some countries, this process has in turn been facilitated by new constitutional provisions that came to be inserted in constitutions drafted, especially in Latin America and Sub-Saharan Africa during the third democratization wave, be they in the form of directive principles addressed at public powers or in the form of seats reserved for women. Europe witnessed a wave of constitutional amendments in order to render this new vision of parity compatible with consolidated notions of democracy and representation.[17]

Our Justice was not unaffected by this participatory turn in gender equality. In fact, it was President Carter´s very purposeful attempt to bring women to a predominantly male court system in the late 1970s and early 1980s that led her, with ten others, to join the federal appellate court. She would later be appointed to the Supreme Court by Bill Clinton in 1993, joining the trend of including at least one woman, and often only one  in the 1980s and 1990s.[18] In her case, she was the second, for O´Conner had preceded her in joining the Court in 1981. The 1990s also witnessed the first constitutional provisions to reference the need for courts to reflect gender and racial diversity.[19] This trend made Justice Ginsburg happy: she declared her time as a sole female Justice when Justice O´Conner retired, and before Justices Kagan and Sotomayor joined her, as her loneliest time at the Court; when asked how many women justices would be enough, she is known to have answered repeatedly: “when there are nine of us!” She justified this answer by indicating the fact that the unquestioned norm had been nine men for the longest time.

For Justice Ginsburg, having women on the bench was a matter of the Court´s public perception and thus social legitimacy. It was also related to the difference that a woman´s perception of facts can make in some matters: she recalls having to explain to her male colleagues on the bench how the experience for a thirteen-year-old young woman of being strip-searched in school was not equivalent to that of a young man of a similar age being exposed when changing clothes in sports locker rooms.[20] It affected the ways in which institutions are run, something she exemplified by pointing to a time when women´s restrooms at the Court had a later opening time than men´s.[21]

That it also had to do with the importance of role models is something to which the “Notorious RBG phenomenon” is a testimony. As Linda Greenhouse recently recalled in the New York Times: “the name and Justice Ginsburg´s image—her expression serene yet severe, a frilly lace collar adorning her black judicial robe, her eyes framed by oversize glasses and a gold crown perched at a rakish angle on her head—became an internet sensation.”[22]   And what else could explain, wondered Dahlia Litwick, writing in The Atlantic in early 2019, this phenomenon boosted by Hollywood´s fascination with this octogenarian justice if not for the fact that “women [are] starved for models of female influence, authenticity, dignity and voice.”[23] Several female supreme court Justices have, like her, endorsed gender parity for their respective courts, including Chief Justice Beverley McLachlin of the Supreme Court of Canada and Lady Brenda Hale, former president of the Supreme Court of the United Kingdom.[24] This has been achieved only in a handful of countries so far, including in several courts in Eastern Europe and, as of 2020, in Germany.

During her time at the Court, RBG served a certain vision of the US Constitution and of the principles of justice it contains affecting a wide range of topics. Gender equality was of course one of the, and in her greatest gender judgment, United States v. Virginia[25], striking down Virginia Military Institute´s all-male admissions policy, she embraced a complex understanding of anti-stereotyping, oriented by anti-subordination, so that it in fact allows a recognition of difference while it does not entrench old sex roles, especially when it serves to compensate women for the disadvantages they suffer.[26] Known too are her contributions to the protection of democracy[27] and the environment.[28] Her appearance, as she wore lace collars to adorn her black judicial robe, defied the “uniform black robe” as a symbol of the gender-blind approach to the law, the law that has for the longest time been primarily male-made. But her capacity to act as an engine for transformation was of course limited by the nature of the cases reaching the Court; by the circumstance of a largely male and increasingly conservative set of colleagues on the bench; by the wording of a nineteenth-century text and the body of precedent set by male-dominated benches decade after decade since the Court came into existence. Yet, RBG was not alone in the world, and, unlike many of her colleagues, she believed in the value of looking abroad for inspiration.[29]

Worldwide, over the last decades, women in various capacities—as activists, litigants, judges and constitution-makers—and increasingly, feminist men and sexual minorities too, are bringing about what we could call a gender transformative constitutionalism that expects constitutional law to act as an engine of transformation for the gender order that constitutional law historically helped enshrine. In so doing, feminist and queer engagements with constitutional law have articulated the need to go beyond the gendered private/public divide that helped depoliticize the forms of disadvantage, abuse and exploitation that women and gender non-conforming men have traditionally experienced. Starting in the 1990s, and especially in the twenty-first century, we are witnessing the flourishing of provisions in constitutions and constitutional case law making reference to a ban of gender-based violence, whether public or private in origin; the gradual replacement of heterosexual marriage as the constitutionally privileged form of family formation, and the legitimation of same-sex marriage and unions; the gradual incorporation of sexual and reproductive autonomy into the list of constitutional rights defining what are considered essential expressions of human autonomy; the growing affirmation of the right to gender identity; the overcoming of the limits of European-style maternalist accommodationism for the sake of a renewed understanding of the importance of care-centered fatherhood and even the problematization of the traditionally accepted division of care roles and domestic labor within the family and the foregrounding of a notion of familial co-responsibility as constitutionally relevant.

All of these developments point to the full democratization of the family as one of the unfinished tasks in constitutional systems based on the notions of individual freedom and equality and the importance of granting women and sexual and gender minorities equal citizenship stature. However, Ruth Bader Ginsburg´s death and her replacement at the Court is a source of serious concern for those who fear that, in the years to come, the evolution in the U.S., as well as elsewhere, will revert to re-mystifying the traditional family and the forms of injustice it engendered. Perhaps this fear is not fully unjustified or paranoid. Populist and radical conservative and religious forces around the world are certainly moving in that direction and are consciously targeting constitutional law as a field of action with results already tangible in rights restrictions affecting women, gay and trans people.[30] In times like these, many of us find ourselves desiring, just like our Justice did when citing Martin Luther King in one of her powerful dissents, that he was right in that “the arc of the moral universe is long but bends toward justice,” and that the evolution of women´s citizenship from exclusionary through inclusive, participatory and then transformative gender constitutionalism is an example of the arc of our moral universe bending in the right direction.

Ruth Rubio-Marín

Professor of Constitutional Law

University of Seville, Spain

Letters to the Editors – A Note from EJIL and I•CON

EJIL covers principally public international law (though given the porous boundaries between the domestic and the international its ‘tentacles’ often reach deep into municipal jurisdiction). I•CON covers the broad realm of public law, with its ‘tentacles’ reaching from domestic public law to the transnational, in perhaps the opposite direction. Despite this different subject matter focus, they share in many ways an understanding of the multiple roles of a learned journal.

One such shared understanding, which will be apparent to anyone who reads one (or both) journals, is our belief that the life of an article, as far as the journal is concerned, does not end at the moment of publication. We hope, as do the authors, that it will have an impact on the literature, as reflected in, say, citation and scholarly engagement.

We do our best, as attested in the numerous ‘Debates’ that are published in both journals as well as in our blogs, EJIL: Talk! and ICONnect, to foster discussion, deliberation and critique of the articles we publish, to make them part of a scholarly conversation.

However, not everyone who wishes to respond wants or needs to write a full article or blogpost. To cater for a wider range of debates, we are launching a new rubric in both journals: Letters to the Editors.

Here are a few non-exhaustive examples where we think our authors and readers may find a Letter to the Editors useful and interesting:

Book Reviews

We would like to see our book reviews and review essays as part of a debate between the reviewer and the author. But that debate need not end with the review – in fact, the review may be the beginning of such debate. If an author feels that her or his book was not fairly reviewed or that important points were missed, we invite her or him to go ‘on the record’ and point that out, as is the custom in ‘intellectual magazines’ such as the London Review or the New York Review etc. Letters may come from other readers as well, not only from the author.

Examples:

Dear Editors,

I was, of course, pleased to see my book, The Sex Life of Bees and International Law reviewed in your last issue. But on reading the review by Professor Knowall I had the impression that it was some other book under review…..

Dear Editors,

Claudia Miller’s review praises International Law and Linguistics as a groundbreaking work. It seems to me that the review (as much as the book) ignores the rich Spanish-language literature on linguistics and the law, especially XYZ.

Comments on Articles

It happens oftentimes, does it not, that you may be reading an article, a good article, but one point grabs your attention as contestable or debatable? Such might not justify a full ‘Reply’ or ‘Debate’ but could be of interest to readers and enhance scholarly discourse. Why not a Letter to the Editor?

Example:

Dear Editors,

In her otherwise excellent article ‘On the Disproportionality of Proportionality’ Jane Doe makes one argument which I think may be contested. She claims that the semiotics of subjectivity are objectively subjective. But is it not the case that in fact they are subjectively objective?

 Editorials and General Direction of the Journal

Practically every decision taken by the Editors involves an implicit or explicit policy choice. (We do not refer here to individual decisions on specific articles, of course.) Are we choosing interesting topics for symposia? Is the balance among, say, different subject matters or between doctrine and theory satisfactory?  Are there patterns or choices in the output of the journal that readers find objectionable or problematic?  Or that they would simply like to draw to our attention and to the attention of our readership?

Example:

Dear Editors,

Thank you for publishing your yearly Vital Statistics. I noticed the paucity of submissions and eventual publication of articles from Francophone countries. Is this not a matter of concern for the Editors?

***

Now, of course, lots of issues can be addressed by direct communication with the editorial team, but many such issues are of a general public interest. The Letters will therefore be published on the journal blogs, which are quick and have thousands of readers, as well as in the printed journal, which will make them part of the journal’s official record.

Letters will typically relate to items published in the journal, be restrained and respectful in tone (though they may be cutting and critical in content) and limited to a maximum of 450 words (sometimes shorter letters have greater impact).

It is also customary that readers respond to letters and we would welcome such engagement. The intention is that the correspondence will appear in real time on the Blogs and then the integrated exchange will appear in final form in print in the Journal.

As is customary, the Editors reserve the right to accept, shorten (with notification and consent of the author) or reject letters.

JHHW and GdeB

10 Good Reads

This has been an unusual year (and that must be the euphemism of the year). I have not been to my office since February and have had no access to the pile of new books and the even greater pile of older books waiting to be read. There is, however, also a silver lining (there always is, isn’t there?), at least in this case for those without COVID-exacerbated care responsibilities, and with the privilege of adequate time and resources. Though most of my law books and books about the law are kept in my library-within-the Library at NYU Law School, some migrate home with my noble intentions of reading them there but are then forgotten, forlorn, on the shelves. This unusual year has offered redemption to a great many of them. 

I want to remind my readers that the criterion for selection is not “good books” but “good reads” where the pleasure factor predominates. There are many excellent law books that one does not associate with the almost sensuous “pleasure” associated with reading, say, a good novel—the tactile feel of the pages, the aroma of books, both new and old, the snuggly feeling of being curled up on the sofa with a novel or poetry book, and the supreme pleasure of forgetting about the office and note taking and law …

 One “innovation” in this year’s list is a recommendation of a children’s book, though of the genre that adults will enjoy no less, or perhaps even more, than their children.

Olga Tokarczuk, The Books of Jacob (Księgi Jakubowe albo Wielka podróż przez siedem granic, pięć języków i trzy duże religie, nie licząc tych małych) [The Books of Jacob, or a Great Journey Through Seven Borders, Five Languages and Three Major Religions, Not Counting the Small Ones] (Wydawnictwo Literackie, 2014)

When writing about The Books of Jacob, one risks resorting to all possible cliches and superlatives. But what does one do when words fail you? It is no less an authorial achievement and reader experience, than, say, Joyce’s Ulysses—and it risks the same fate: a book that everyone knows and far fewer have actually read. So think, perhaps, Proust’s À la recherche du temps perdu, or Anna Karenina, or, a safer bet, One Hundred Years of Solitude. These comparisons are not directed at the specific content or scope of The Books of Jacob but at the indelible impression with which the reader (of 900 pages or so) is left and its destiny to take its place among the timeless classics of world literature.

The Jacob of the title is Jacob Frank, heretic, kabbalistic Jewish Pole of the 18th century, a follower and successor of Shabtai Tzvi—the self-proclaimed Messiah who converted to Islam. Frank preferred Catholicism when he, in turn, converted. I suggest that you read the Wikipedia entry on Jacob Frank as background, though it is not really essential and, in any event, keep an open mind.

In some ways the book bears a resemblance to Hilary Mantel’s Thomas Cromwell trilogy, which was one of my Good Read recommendations a year or two ago—though frankly, excuse the poor pun, Tokarczuk’s novel operates at an altogether more profound, capacious, and at times mystic, level. The mystic element should not put you off—it is organic and essential to the narrative. (This is not meant, in any way, to belittle Mantel’s remarkable novel.) Both novels are a mixture of history fictionalized and fiction historicized, in that order. Tokarczuk’s historical research and essential fidelity is, like just about everything in the book, awe inspiring, the result, she told me, of eight years’ work. It shows.

Both books were published to critical acclaim. Mantel won (twice!) the Booker prize (Tokarczuk won it for her previous novel, translated into English as Flights) and the few stray critical voices of both books, were/are driven by a similar normative sensibility. In the case of Mantel, brimstone and fire were meted out on her negative treatment of St. Thomas More, justified or otherwise. In the case of Tokarczuk, that kind of criticism was directed at the opposite—her failure to demonize Frank, who in more ways than one was a terrible human being (of course, in his own eyes he was not truly human but some later version of the Word Incarnate). One should dismiss this criticism with a tinge of compassion for the critics. Tokarczuk presents Frank, huge warts and all, and there are episodes where one is simply consumed with revulsion, but she leaves it to the reader to make whatever normative judgment she or he wishes of this complex hero/anti-hero. She also treats Judaism, Catholicism and Islam with similar forthrightness, warts, huge warts, and all. It is refreshing in an era in which the issue of religion(s) is dealt with either with barely concealed contempt or romanticized kid gloves. The same is true as regards gender, sexuality, homosexuality and other such “touchy” issues. They are treated with similar sensitivity, integrity and naturalness. Be that as it may, for the most part the book was published to huge and justified critical acclaim and most reviewers faced my dilemma of finding appropriate words to express one’s appreciation and admiration.

Now you may be thinking: Mantel’s novel covered Henry VIII and his coterie of wives, and the likes of Thomas More, Thomas Cromwell and others, in the context of an epoch-defining period in European history, the evolution of the Anglican Church and the politics of the 16th century, the results of which are still felt today. Jacob Frank, by contrast, is a minor footnote even in Jewish history. My children went to the finest Jewish schools in Boston and New York. I am sure that not a single one of their graduating classmates has ever heard of, or has an inkling who Jacob Frank is—a figure of interest to professional historians of Kabbalah and Jewish mysticism. Why, then, you may be thinking, should I make the effort of reading about such a figure?

You would be mistaken. You can come to the book with no prior knowledge, not even the Wikipedia capsule, nor with even the slightest interest in Jewish mysticism and its history. You will discover in this book a Europe you never knew; you will gain an altogether new understanding of “multiculturalism”; you will be captivated by the simple genius of the myriad narration techniques used by Tokarczuk. And if you understand the complex tale of the relationship between Jewish Poles (I use this term advisedly, rather than the more common Polish Jews) and Christian Poles as a proxy for what we often glibly refer to as the issue of “The Other” you will come out enormously enriched both cognitively and emotionally. And, perhaps, above all, the insight into the human condition is simply second to none.

So far, to the best of my knowledge, the book is available in its original Polish, French, German, Dutch and Hebrew (the language in which I read it—a faultless translation in the sense that the book gives the feel that it was written in Hebrew). If you do not read any of these languages—pre-order the book and enjoy the anticipation.

A good read, wonderous.

Harry Mulisch, The Discovery of Heaven (transl. Paul Vincent. Penguin, 1997)

This book, a gift from a close friend, lay hidden on my shelves since 2003 and was redeemed by Covid. Better late than never was never truer than in this case. Is it a “masterpiece”? It is not. Far from it. Is it a terribly intelligent, challenging, surprising and engrossing book—oh yes it is. The ultimate Good Read—both a page turner and yet serious literature. To wit, though written in 1992 it is still in print, and rightly so. Though written in 1992 it is set, in an evolving time span commencing with World War I, through World War II, a large part in the ‘68s in Europe and then taking us to “the present”. The time play of the novel, past and future is one of the key elements of the novel.  Any attempt to describe the plot risks terrible spoilers but I will give you a little taster:

Max had a strange feeling. Suddenly all four of them, or in fact all five of them, were together. But who were they? Onno simply thought he was in the company of his friend, his mother-in-law, and the mother of his child. But at the same time he was in the company of the mistress of his friend, who himself was perhaps the father of the child that his wife was expecting and who could therefore no longer be rightfully called his friend, and nor could his wife be called his wife. Sophia knew a little more than Onno, but not everything, as Max himself did.

This might give the feel of a Barbara Cartland novel. Anything but. The protagonists are deeply characterized, intriguing and even profound. And there is a supranatural metanarrative (again I’m avoiding spoilers) that requires suspension of one’s disbelief (or belief), bordering, perhaps, on the silly but giving the whole both a gravitas and a lightness at one and the same time. I think that for the author the metanarrative mattered most. I found plot and characterization the real achievement.

Beware! this is a novel for the intellectual and the cultured—music, art, literature and philosophy play a role, often light and ironic.

Here’s an example of that:

She was a professional musician; she knew that making music was not about expressing emotions but about evoking them: and that could only succeed when it was done professionally—that is dispassionately, like a surgeon operating, regardless of theatrical grimaces conductors and soloists often pulled when they knew they were being watched. At home or in rehearsal, they never pulled those faces nor did orchestral musicians, because those were the faces of listeners.

Mulisch wrote this before the advent of Youtube where an irritating distraction has become a veritable debasing pathology. (Check this if you are not convinced: https://www.youtube.com/watch?v=8RahYPd-i8k.)

You may, too, regard this riveting novel as one of the finest exercises in exploring the paradox of determinism and free will. I warned you: a novel for the intellectually inclined.

A movie has been made of this book, which is to be avoided. It competes with the rendition of Tom Wolfe’s The Bonfire of the Vanities for the title of worst adaptation of novel to the screen. 

A good read that will delight many.

Olivier Corten, Le discours du droit international—Pour un positivisme critique (Pedone, 2009)

When James Kugel, whose lectures at Harvard on the Bible attract a student audience of 1000, published his How to Read the Bible: A Guide to Scripture Then and Now everyone waited to see how an observant person who, with whatever level of sophistication, accepts the normativity of the law revealed, as a historical fact, by the Almighty to Moses on and at Sinai, was to reconcile such with the scientific, critical and Critical reading of scripture which upended that very historicity. It is a marvelous, erudite book, which displays a breathtaking command of critical, historical, archaeological and comparative culture scholarship, written in a manner that explains the popularity of his course on which the book is based. And yet his professed aim of reconciling the two and resolving the existential dilemma of a compartmentalized life which all thinking persons of faith face was a heroic failure. (Christians struggle with a similar dilemma in navigating between the Historical Jesus and the Christ of Faith.)

Olivier Corten’s equally marvelous book—personal, passionate, erudite and profound—attempts a similar enterprise: reconciling a critical and Critical approach to international law, which undermines traditional positivist approaches and their underlying claim for normative legitimacy, with a “faith” in just that. The word discours in the title might lead you to expect that tired, sneering, “unmasking” “narrative” of the “I’ll tell you how it really is with the narcissistic indulgencies of post-modernism”. You are in for a very pleasant surprise. With an impressive command of the critical, sociological apparatus, and written with a personal and engaging style (which does not jar in this case), he heroically attempts to bridge the compartmentalized existence of the public international lawyer—most evident when we leave the (critical) classroom and enter the (positivist) courtroom. I will let the reader decide if he is more successful than Kugel, but the journey which he takes you along (as well as the terrific Introduction by Emmanuelle (Manu) Jouannet) offer a very good and enriching read.

Janusz Korczak, Bankructwo Małego Dżeka (Krajowa Agencja Wydawnicza RSW “Prasa- Książka-Ruch”, 1979)

Korczak’s books with titles such as The Child’s Right to Respect; Loving Every Child—Wisdom for Parents; How to Love a Child are still current in the field of education and have been translated into numerous languages. His life ended when, together with the children in the educationally pathbreaking Warsaw orphanage he founded, he was transported to Auschwitz to be murdered by the Germans. It was a life noble in the deepest sense of the word and, appropriately and thoughtfully, both life and work are still celebrated in Poland and elsewhere with numerous biographies, plays, opera, TV and film adaptations, including a biographical movie by Andrzej Wajda. He did not just preach; he practised what he preached.

His most widely read and translated children’s books are King Matt the First (and associated titles) and Kaytek the Wizard, both still in print in numerous languages. I have a bulging Janusz Korczak shelf in my library. During Covid I reread Little Jack, for the first time in 60 years and in the original. Written for children it is just about at the level of my budding Polish. (Both Korczak and Szymborska are the proof that you do not need complex language to touch the deepest strata of the human experience.) I am convinced that this is his children’s book masterpiece. King Matt and Kaytek let loose a fantasy—charming, engaging (a bit too “programmatic” for my taste), though provoking and wildly entertaining to both children and adults.

But Little Jack is the Cinema Verité of children’s actual life. A hugely insightful look into the feelings of the young in their relationships at school, with classmates and teachers, and at home with parents and siblings. It is far less “political” than King Matt and far more realistic than Kaytek. One measure of its success and insight is the fact that even though it is set in America (of all places) in the 1920s (the book was first published in 1924) the emotional world it describes is timeless.

This recommendation might be relevant mostly to my Polish readers, all of whom will know of Korczak, most of whom will have read, have had read to them, or have read to their own children King Matt and Kaytek, but might not have read Little Jack since astonishingly it has been out of print for many years. (It is available in PDF online and there is even a full-length audio pod on YouTube.) 

For others, I was able to find a 1972 translation into German (under the title Jack Handelt fuer alle- Friedenspreistraeger), later published as part of his collected works in 2000 as Der Bankrott der Kleiner Jack (Guetesloher Verlaghaus), and a 2015 (!) version in French, Le faillite du petit Jack (Edition Fabert). There is a Hebrew edition, which was published in the 1950s and which is now a collector’s item but which as a child was my very favorite book alongside Erich Kaestner’s The Flying Classroom. But I could find no translation into English, Spanish or Italian.  Maybe some reader can help me here?

As a children’s book that adults will enjoy, it is splendid.

Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (Cambridge University Press, 2015)

This is a collection of six articles by Kelsen and Schmitt, which are directly or indirectly in “conversation” with each other, on the subject of judicial review. It includes a fine introduction by the translator/editor, the Turkish scholar Lars Vinx. It, too, was one of those books that migrated home three or four years ago to be read at leisure, and ended up in the graveyard of good intentions until redeemed by Covid. It caught my eye because of the Weiss saga (yawn). Those whose profession is legal theory can now have their turn at yawning. But if you are like me, having read some of the principal writings of both but not much more, this book will be interesting and satisfying. The genre of articles forces the authors to be concise. (In their general oeuvre Kelsen is far more verbose than Schmitt, yet in my view he is at his best when forced to be concise. If you haven’t waded through his Pure Theory, Kelsen reduces it to one short article in the very first issue of the Israel Law Review; not too bad either). The polemical nature of the articles collected in this book adds to the Good Read dimension.

I always have trouble when using Schmitt; the person behind the scholarship was revolting beyond measure in his pre-War, during-War, and post-War incarnations—what I feel must be somewhat akin to a doctor who in order to save a life must rely on the results of the Nazi human experiments. Creepy. His failure, like his competitor in the Revulsion Stakes, Martin Heidegger, to express any remorse for his writings and deeds places him beyond redemption. That his anti-liberalism makes him a darling to some of the Rive Gauche crowd and fellow travelers is painful to behold.

But it would be churlish to deny his insightful, at times profound, and always interesting normative and analytical contribution. The dialogical nature of the essays presented in this collection is clarifying so that one gets more out of each than had they been read in isolation. So the General Editor of the Series in which the book appeared, David Dyzenhous, and the incomparable CUP legal editor, Finola O’Sullivan, as well as Lars Vinx should be congratulated and thanked.

Good and useful read.

Witold Gombrowicz, Bacacay (transl. Bill Johnston. Archipelago, 2006)

I am a very late comer to Gombrowicz—through a casual remark by Tokarczuk in an interview to FAZ, saying that in her view he merited a Nobel. He did not—his writing is too self-referential, bordering on narcissism. But a great writer, nonetheless, he is. I read everything translated into English in one gulp. His most celebrated book, Ferdydurke, defeated me and I gave up midway. I am told that his innovative use of language makes the translation from Polish to English impossible. I wonder. Be that as it may, the other books and plays, notably, but not only Transatlantyk, are wonderful, ironic, bordering on the satiric, exquisite examples of modernity at its best. If you want a cutting, at times moving, inadvertently tender, study of “otherness” you will not find better.

Bacacay (after the name of a street in Argentina where he found himself “exiled”) is a collection of short stories—of his early career as a writer. When I consider his age when he wrote many of these, his natural talent, notably his sensibility and sensitiveness to the most delicate of emotions, usually dark, is no less than astonishing. There is a Chekhov-like quality to them in that there is never catharsis, but his style is all his own.

If you are a literary type, I think you “owe yourself” to read some Gombrowicz. A very special kind of read. 

William Phelan, Great Judgments of the European Court of Justice:  Rethinking the Landmark Decisions of the Foundational Period (Cambridge University Press, 2019)

“Give me a break” was my thought when this book landed on my desk. Costa, Van Gend, Simmenthal et.al. “Been there, done that!!”  But if you are like me, you know the cases, you know what you are going to say about them when you teach them, and you parrot it out like an actor in the 127th performance of Death of a Salesman, deus ex machina, whilst thinking of last night’s delightful dinner. When have you last actually gone and reread them or, if you refresh yourself before class, when have you last “rethought” them?

It is precisely that familiarity, coupled with Phelan’s clear and clarifying style of writing, which makes this a good read. I gulped it down on one grey Covid Sunday (blessedly it weighs in at a mere 240 pages) and found myself learning something new and/or thinking somewhat differently on each of these cases about which I had imagined I could not learn anything new. I also found myself disagreeing with several points along the way, but there is a pleasure in that too.

This book, alongside Maduro and Azoulai’s The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty could serve as a very interesting basis for a graduate student seminar.

Robert Massie, Dreadnought—Britain, Germany and the Coming of the Great War (Ballantine Books, 1992)

This book is what is sometimes referred to as Popular History—a terrible misnomer. It falls in the genre of books by very serious historians who write, from time to time, for the general public rather than for their professional colleagues. I wish more lawyers would do the same. The Grand Maître is Simon Schama of course. But I would mention, for example, also Anthony Bevor with his book Stalingrad (here I am sneaking in another very, very good read), and quite a few others. The recent centenary of the Great War (also the subject, in my eyes, of a memorable symposium in EJIL) has ignited interest in the subject. I find the analyses of the “causes” of the War more thought-provoking (and relevant) than the detailed descriptions in historical works on the War itself in histories (e.g. Martin Gilbert), novels (e.g. the incomparable All Quiet on the Western Front by Erich Maria Remarque) or cinema (e.g. the painfully ironic musical Oh, What a Lovely War or more recently 1917 or They Shall Not Grow Old).

The locus classicus by common accord is Barbara Tuchman’s The Guns of August (still a good read) but Christopher Clark’s Sleepwalkers puts all previous attempts in the shade. Not just a good read, but a must read. Still, I think for the “pleasure factor” I liked Massie (another Covid-reclaimed orphan) most. You might think: Why would I be interested in the construction of battle ships? Be ready for a surprise. You will find yourself engrossed. (The only legal scholar I know who has a lifelong fascination for all things naval, appropriate perhaps for a native of that landlocked country, Austria, is Bruno Simma.) It is old-style historical scholarship—it is all about the principal actors, Kings and Queens, Kaisers, Prime Ministers, Foreign Secretaries, and of course Admirals. But the biographical sketches of the above are simply superb—personal, detailed and endlessly fascinating. And given the direct and indirect family connections (the Kaiser was, as you will know, the grandson of Queen Victoria) among many of the protagonists and the personal relations among all of them, the story has a human drama dimension that adds further to this page turner. Don’t turn your nose up—this is serious history.

Perhaps the author overstates somewhat the naval dimension (who am I to judge?) but since it was something I had never considered before it serves as a useful correction. Internal British politics and parliamentary shenanigans are also told with verve (the cost of each of these Dreadnoughts was such that it was a matter of huge internal debate whether, say, to build three or four, with the social opportunity cost much on people’s minds).

If you have never read any of the standard accounts of the lead up to World War I, the last couple of chapters can serve as an excellent standalone primer. Silver lining to the isolation of Covid if ever there were one.

Andoni Luis Aduriz y Daniel Innertarity,  Cocinar, Comer, Convivir—Recetas para pensar con los cinco sentidos (Ediciones Destino, 2012)

Though published in 2012, this reads like a “made for Covid” book, when suddenly so many discovered that there is more to cooking than cooking; or put differently, that once—as with so many things in life, including the life of law—one sets aside the purely functional rationale of things and actions, deeper meanings emerge. It should not have surprised me coming as it does from the author of the remarkable Ética de la hospitalidad. Daniel Innertarity is a thinker (essential reading for anyone reflecting on European democracy), who likes cooking. And his co-author, Andoni Luis Aduriz, is a (prize-winning) cook, who likes thinking. (Maybe I should add that being a successful cook in San Sebastián, arguably where the most discerning palates live, is in and of itself a sign of great distinction.) Reflections on all manner of food and culture are interspersed with recipes, both challenging and less so, catering to all tastes. Some sample titles of the essays might be Autoderminacion Culinaria or Comer como Analfabetos. A sample of the recipes? Puerros asados a la parrilla con un cous-cous vegetal (simple, delectable). The way to read this book is as an hors d’oeuvres (pick one or two recipes) before you sit down to eat—they will inspire; and as a dessert (pick one essay—do not overeat!) after a meal—it will complement a good meal or compensate for a bad one.

Josef Hen, Nowolipie Street (Transl. Krystyna Boron. Dl Books Llc, 2012)

I usually recoil from the genre of memoirs. When written by the rich and famous, they tend to be self-serving and self-celebrating. And, by contrast, when written by others, they tend to be self-serving and self-celebrating (and why should I be interested in your memoir, anyway?). There are, of course, exceptions, and this is one.

Apparently a well-known and well-respected author and playwright in his native Poland, Hen is barely known in the English-speaking world. I have read none of his fiction and this book came my way accidently. After a few pages, I found it compelling. For through the genre of a personal memoir, it is an evocative, bringing to life, of Warsaw in those magic twenty years or so between the wars. When I say “magic” I do not mean that it was all light without shadows. There were plenty of those too. But there was vitality, cultural and political richness and contestation, and a spirit of, yes, freedom in those tumultuous years. For me this was the modern Golden Age of Warsaw, which in some ways even surpasses the current age of freedom and prosperity. There was, then, considerable political turmoil and contestation but, it seems, nothing like the current polarization and bitterness. And on slowly reading the snatches of memories of a child and adolescent and young man growing up in the Warsaw of yonder, I realized that seeing that world through those sensitive, somewhat naïve eyes (Hen, despite the horrors to follow, manages well to transport us to his youthful innocence) is probably the most authentic and convincing way to recapture the fragrance of the 1920s. It contrasts sharply with the equally sensitive, anything but naïve, gaze of Gombrowicz in Bacacay.

Nostalgic Read.

PS. You do not need my poetry recommendation this year. We have a new Nobel poetess!

Previous Good Reads

(2014)

Moshe Halbertal, Maimonides: Life and Thought, Princeton: Princeton University Press, 2013; Robert Howse, Leo Strauss, Man of Peace, Cambridge: Cambridge University Press, 2014; Norman Davies and Roger Moorhouse, Microcosm. A Portrait of a Central European City, London: Pimlico; New Ed edition, 2003; Gregor Thum, Uprooted: How Breslau became Wroclaw during the Century of Expulsions, Princeton: Princeton University Press, 201; Klemen Jaklic, Constitutional Pluralism in the EU, Oxford: Oxford University Press, 2014; Nick Barber, The Constitutional State, Oxford: Oxford University Press, 2012; Wistawa Szymborska: Here, Boston: Mariner Books, 2012; Poems New and Collected, Boston: Mariner Books, 2000 (or any other collection of her poems); Michael S. Pardo and Dennis Patterson, Mind, Brains, and Law: The Conceptual Foundations of Law and Neuroscience. New York: Oxford University Press, 2013; Maria Aristodemou, Law & Literature: Journeys from Her to Eternity, Oxford: Oxford University Press, 2000; Thomas D. Seeley, Honeybee Democracy, Princeton: Princeton University Press, 2010; Jürgen Tautz, The Buzz about the Bees. Biology of a Superorganism, Heidelberg et al.: Springer Verlag 2008

(2015)

Michaela Hailbronner, Traditions and Transformations: The Rise of German Constitutionalism(Oxford University Press, 2015); Vittoria Barsotti, Paolo Carozza, Marta Cartabia and Andrea Simoncini,  Italian Constitutional Justice in Global Context (Oxford University Press, 2015); Sabino Cassese, Dentro La Corte. Diario di un giudice costituzionale (Il Mulino, 2015); Moshe Hirsch, Invitation to the Sociology of International Law (Oxford University Press, 2015); Jürgen Kurtz, The WTO and International Investment Law: Converging Systems  (Cambridge University Press, 2016); Dorte Sindbjerg Martinsen, An Ever More Powerful Court? The Political Constraints of Legal Integration in the European Union (Oxford University Press, 2015); W.G. Sebald, On the Natural History of Destruction (Modern Library, 1999); Pio Baroja, El Arbol de la Ciencia (first published 1911); Patti Smith, M Train (Alfred A. Knopf, 2015); Miguel de Unamuno, San Manuel Bueno, mártir (first published 1930)

(2016)

Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity (Knopf, 2016); Mario Vargas Llosa, Travesuras de la niña mala (Alfaguara, 2006); Patrick Pasture, Imagining European Unity Since 1000 AD (Palgrave Macmillan, 2015); Ricardo de Ángel Yágüez, ¿Es Bello el Derecho? (Civitas, 2016); Olivier Dupéré, Constitution et droit international (Institut Universitaire Varenne, 2016) ; David Bellos, Georges Perec: A Life in Words: A Biography (D.R. Godine, 1993); Monica Garcia-Salmones Rovira, The Project of Positivism in International Law (Oxford University Press, 2014); Julio Ramón Ribeyro, La palabra del mudo (Seix Barral, 2010); Marise Cremona, David Kleimann, Joris Larik, Rena Lee, Pascal Vennesson, ASEAN’s External Agreements: Law, Practice and the Quest for Collective Action (Cambridge University Press, 2015); Mary Oliver, Felicity: Poems (Penguin Press, 2015)

(2017)

Robert Caro, The Years of Lyndon Johnson, 4 Volumes (Alfred A. Knopf, 1982-2012); Ludovic Hennebel, Hélène Tigroudja, Traité de droit international des Droits de l’homme (Editions Pedone, 2016) ; Lauri Mälksoo, Russian Approaches to International Law (Oxford University Press, 2015); Aldo Schiavone, Ponzio Pilato: Un enigma tra storia e memoria (Einaudi, 2016); Pontius Pilate: Deciphering a Memory (transl. Jeremy Carden, Liveright, 2017); Eduardo García de Enterría, Fervor de Borges (Editorial Trotta, 1999); Guy Fiti Sinclair, To Reform the World—International Organizations and the Making of Modern States (Oxford University Press, 2017); Matthew Saul, Andreas Follesdal, Geir Ulfstein, (Eds.) The International Human Rights Judiciary and National Parliaments (Cambridge University Press, 2017); Bernard E. Harcourt, Exposed—Desire and Disobedience in the Digital Age (Harvard University Press, 2015); María Elvira Roca Barea, Imperiofobia y Leyenda Negra—Roma, Rusia, Estados Unidos y el Imperio español (Siruela, 2016); Claudio Rodríguez, Alianza y Condena (Ediciones de la Revista de Occidente, 1965); Alliance and Condemnation (transl. Philip W. Silver, Swan Isle Press, 2014)

(2018)

Marcel Reich-Ranicki, The Author of Himself: The Life of Marcel Reich-Ranicki (Princeton University Press, 2001); Louis Dumont, German Ideology:  Essays on Individualism: Modern Ideology in Anthropological Perspective (University of Chicago Press, 1986). German Ideology: From France to Germany and Back (University of Chicago Press, 1994); Yishai Beer, Military Professionalism and Humanitarian Law: The Struggle to Reduce the Hazards of War (Oxford University Press, 2018); Hilary Mantel, Wolf Hall (Fourth Estate, 2009); Bring up the Bodies (Fourth Estate, 2012); Dennis Marks, Wandering Jew: The Search for Joseph Roth  (Notting Hill Editions, 2016); E. B. White, Here is New York  (The Little Bookroom, 1999; Harper, 1949 (1st ed.)); Charles Leben (ed.) Droit international des investissements et de l’arbitrage transnational.  (Editions A. Pedone, 2015); Benjamin D. Sommer, Revelation and Authority: Sinai in Jewish Scripture and Tradition (Yale University Press, 2015) ; Miguel Beltrán de Felipe y Daniel Sarmiento Ramírez-Esudero, Un Tribunal para la Constitución (Registradores de España, 2017); It Stays With You—Documentary Movie, produced and directed by Cahal McLaughlin and Siobhan Mills, 2017, available at https://vimeo.com/222497700

(2019)

Anthony Julius, Trials of the Diaspora—A History of Anti-Semitism in England (Oxford University Press, 2010); Julio Baquero Cruz, What’s Left of the Law of Integration? Decay and Resistance in European Union Law (Oxford University Press, 2018); Julio Baquero Cruz, El árbol Azul (Cuadernos de Langre, 2018); Francisco J. Urbina, A Critique of Proportionality and Balancing (Cambridge University Press, 2017); Ilenia Ruggiu, Culture and the Judiciary, The Anthropologist Judge (Routledge, 2018); Karen J. Alter and Laurence R. Helfer, Transplanting International Courts—The Law and Politics of the Andean Tribunal of Justice (Oxford University Press, 2017); Javier Marias, Corazon Tan Blanco (A Heart So White ) (Editorial Anagrama, 1992; transl. by Margaret Jull Costa, Harvill Press, 1995); Magda Szabó, The Door (transl. by Len Rix, Harvill Press, 2005); Richard Ford, The Sportswriter  (followed by Independence Day, The Lay of the Land, Let Me Be Frank with You) (Vintage, 1995); Kalypso Nicolaidis, Exodus, Reckoning, Sacrifice: Three Meanings of Brexit (Unbound, 2019); Hanoch Levin, The Labor of Life: Selected Plays(Stanford University Press, 2003)

JHHW

In this issue

Following the Guest Editorial, which opens this issue of I•CON, an earlier interview between Justice Ruth Bader Ginsburg and Ruth Rubio-Marín, which first appeared in vol. 15:3 of the journal, is republished.

The Articles section of the issue begins with an article by Samuel Issacharoff, who examines two forms of “corruption” that populist leaders try to advance: the first focusing on attempts to undermine the electoral system and the second on attempts to extend the scope of clientelism into outright corruption. Gabrielle Appleby and Anna Olijnyk engage with the way the executive branch develops policies in constitutionally regulated areas that infringe a constitutional duty. They argue that areas of constitutional “uncertainty” give the executive wide space, highlighting the role of the government lawyer, and they then elaborate a case study on the experience of Australia. Alan Greene discusses how the idea of the constituent power could be assimilated to parliamentary sovereignty, and he draws on this insight to offer a critical approach to constitutional law in the UK. Finally, Andrea Katz focuses on emergency powers in Colombia. She argues that while presidents historically have used those powers to govern almost unilaterally, and that this situation has typically been tolerated by legislators and often rubber-stamped by courts, the situation has changed since 1992 thanks to an active court that has been able to achieve significant successes.

Our Critical Review of Governance section includes a contribution by Danwood Chirwa, who examines the horizontal effect of human rights obligations in Uganda. Our Critical Review of Jurisprudence section then features an article by Sofia Charvel and Fernanda Cobo Armijo, which critically analyses the judicialization of the right to health in Mexico.

The next section includes a symposium entitled “Peace Processes and Constitution-making: Comparative Perspectives on Conflict Resolution and Constitutionalism,” with an introduction by Melissa Crouch and seven articles. Mark Tushnet and Beatriz Botero Arcila identify the roles that courts play during peace processes. David Landau focuses on the recent judicialization of the Colombian peace process. Jeremy Webber discusses the potential of federalism to help accommodate divided political communities. Melissa Crouch elaborates on the idea of a “constitutional touchstone” and the way it can help to advance reforms in the context of peace processes, using the experience of Myanmar as a case study. Tarik Olcay and Asli Ozcelik examine unconstitutionality challenges against constitutional amendments implementing peace agreements and seek to identify the modalities and limitations of the possible legal strategies. Finally, Moeen Cheema and Farooq Yousaf analyze the process of integration of the Pashtun tribal areas located in Pakistan.

Our I•CON Debate! section features an article by Stephen Gardbaum, who offers a “comparative political process” theory that aims to expand the famous argument advanced by John Hart Ely in Democracy and Distrust to several non-American jurisdictions. Michaela Hailbronner, Roberto Gargarella, Tom Gerald Daly, Aileen Kavanagh, Rosalind Dixon, and Richard Pildes, offer replies to Gardbaum’s argument. The section closes with a rejoinder by Stephen Gardbaum.

In the Book Review section, in addition to our usual book reviews, David Abraham, Yasemin Soysal and Ashley Mantha-Hollands and Liav Orgad engage with Dimitry Kochenov’s recent provocative monograph on citizenship. In Kochenov’s view, citizenship establishes a sort of international caste system that cannot ultimately be morally justified. But are there not perhaps other sides to citizenship that Kochenov ignores? Our authors engage with this question and others; we leave the last word to Kochenov himself.

JHHW and GdeB


[1] See Ruth Rubio-Marín, “Notorious RBG”: A Conversation with United States Supreme Court Justice Ruth Bader Ginsburg, 15 International Journal of Constitutional Law (Int.L J. Const. Law) 608 (2017); see also in this issue.

[2] Bradwell v. Illinois, 83 U.S. 130 (1873).

[3] Minor v. Happersett, 88 U.S. 162 (1874).

[4] Muller v. Oregon, 208 U.S. 412 (1908).

[5] Articles 41.2.1 and 42.2.2.

[6] Describing the various ways in which women supported the revolution in North America, see, for instance, Cokie Roberts, Founding Mothers: The Women Who Raised Our Nation(2004).On women in the French Revolution, see Shirley Elson Roessler, Out of the Shadows: Women and Politics in the French Revolution (1996).

[7] Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).

[8] Other famous cases of the time in which she took part include Reed v. Reed, 404 U.S. 71 (1971) (a case striking down an Idaho law that gave men preference over women to be chosen to administer estates on the basis of men’s greater familiarity with the world of business); Frontiero v. Richardson, 411 U.S. 677 (1973) (a case successfully challenging a military regulation that denied husbands of women in the military some of the benefits to which wives of male soldiers were entitled, including housing and medical insurance); Craig v. Boren, 429 U.S. 190 (1976) (a case that Ms. Ginsburg worked on but did not personally argue, where the Supreme Court attached heightened scrutiny to official distinctions based on sex for the first time).

[9] See Rubio-Marín, supra note 1, at 607-608. For the live interview of February 4, 2016, see https://www.youtube.com/watch?v=qRqe43iwhbw.

[10] See Ruth Rubio-Marín, The (Dis)establishment of Gender: Care and Gender Roles in the Family as a Constitutional Matter, 13 Int’l J. of Const. L. (2015), 1. Note that already in the interwar period, women in Europe used their newly gained voting rights to ensure that constitutions would contain sex equality provisions, but also, tellingly, to include the protection of motherhood and the family, with the 1919 Weimar Constitution as a paradigmatic example of this. See Julie C. Suk, Feminist Constitutionalism and the Entrenchment of Motherhood, in Special Issue: Law and the Imagining of Difference, (Austin Sarat ed., 2018).

[11] Of course, throughout constitutional history, women have often tried to seize the windows of opportunity that constitution-making moments presented to them. In the nineteenth century, for instance, we find abolitionist women as well as those active in the temperance and suffragist movements sometimes targeting constitutional moments to push for their demands. Interwar constitutionalism offers some fascinating examples of key women involved in official constitution making processes and bodies. Yet, before the 1990s, women´s representation in constitution-making bodies rarely, if ever, rose beyond 5 to 10 percent, with numbers after the 1990s approaching the 20 percent threshold. The ongoing constitution-making process in Chile may provide the world with the first ever experience of complete parity in the constitutional assembly. See Ruth Rubio-Marín, Women and Participatory Constitutionalism, 18 Int.l J. Const. L. 233 (2020) and Silvia Suteu, Women and Participatory Constitution-making, in Constitutions and Gender 28 (Helen Irving ed., 2017).

[12] Beverley Baines, Using the Canadian Charter of Rights and Freedoms to Constitute Women, in Gender of Constitutional Jurisprudence 67 (Beverley Baines and Ruth Rubio-Marín eds, 2005).

[13] Karin Liebhart, Gleichberechtigte Partizipation oder strukturelle Ausgrenzung? Genderpolitische Aspekte der Demokratiequalität Österreichs, in Demokratiequalität in Österreich: Zustand und Entwicklungsperspektiven 124 (David F. J. Campbell and Christian Schaller eds, 2013).

[14] Dia Anagnostou, Gender Constitutional Reform and Feminist Mobilization in Greece and the EU: From Formal to Substantive Equality?,  28(2) Canadian Journal of Law and Society 133 (2013).

[15] Catherine Albertyn, Women and the Transition to Democracy in South Africa, in Gender and the New South African Legal Order, 47, 52 (Christina Murray ed.  1994).

[16] See, Women as Constitution Makers: Case Studies from the New Democratic Era(Helen Irving and Ruth Rubio-Marin eds, 2019).

[17] See Ruth Rubio-Marín, Women’s Political Citizenship in New European Constitutionalism: Between Constitutional Amendment and Progressive Interpretation, in Constitutions and Gender, supra note 11, at 323-356.

[18] See Beverley Baines, Women Judges on Constitutional Courts: Why Not Nine Women?, in Constitutions and Gender, supra note 11, at 299.

[19] Chapter 8, section 174 (2) of the 1996 South African Constitution reads: “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.”

[20] See Rubio-Marín, supra note 1, at 612-13.

[21] Id.

[22] See Linda Greenhouse, Ruth Bader Ginsburg, Supreme Court´s Feminist Icon, Is Dead at 87, The New York Times (Sept 18, 2020), available at https://www.nytimes.com/2020/09/18/us/ruth-bader-ginsburg-dead.html.

[23] See Dahlia Litwick, The Irony of Modern Feminists´ Obsession with Ruth Bader Ginsburg, The Atlantic (January/February, 2019) available at https://www.theatlantic.com/magazine/archive/2019/01/ruth-bader-ginsburg-feminist-hero/576403/.

[24] See Baines, supra note 18, at 291.

[25]  518 U.S. 515 (1996).

[26] See Reva B. Siegel, The Pregnant Citizen, from Suffrage to the Present, 108 The Georgetown Law Journal204 (2020). 

[27] See Justice Ginsburg’s dissents in Shelby County v. Holder, 570 U.S. 529 (2013) and in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

[28] See Massachusetts v. EPA, 549 U.S. 497 (2007) and Friends of the Earth v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000).

[29] Ruth Bader Ginsburg, Looking Beyond our Borders: The Value of a Comparative Perspective in Constitutional Adjudication, 22(2) Yale Law Policy Review 329 (2004).

[30] In Central and Eastern Europe, eight countries have constitutionally entrenched bans on same sex marriage since 2006, including Latvia, Serbia, Montenegro, Hungary, Croatia, Slovakia, Armenia and Georgia. In July, 2018, the Bulgarian Constitutional Court declared the Istanbul Convention (the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence) unconstitutional on the basis that the social understanding of the concept of “gender” that the Convention endorses is not compatible with the role of women as mothers and birth givers (София, 27 юли 2018 г.(обн., ДВ, бр. 65 от 07.08.2018 г.)).In October, 2020, the Polish Constitutional Court caused thousands of Polish protestors to take to the streets to express their rejection of its decision that struck down a legal provisions allowing abortion when “prenatal examinations orother medical data indicate a high probability of serious and irreversible disability of the foetus or an incurable life-threatening illness” as contrary to the dignity and right to life of the human being.

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Published on May 5, 2021
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