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ICON’s Latest Issue: Table of Contents

Volume 19 Issue 3

Table of Contents

Letters to the Editors

The population and the individual, David McGrogan

Unequal impact, Stephen F. Ross

Editorial

I•CON: Foreword!

Karen J. Alter, From colonial to multilateral international law: A global capitalism and law investigation

This Foreword integrates international law, international relations, and global history scholarship to understand two global trends that are in tension with each other: (i) the shift from European colonial dominance to a law-based multilateralism, which enabled a more equal and inclusive international law, and (ii) global capitalism which, across time, has been a political and economic force that, left to its own devices, promotes exclusion and inequality. Alter builds an encompassing conception of global economic law to show the interplay of colonial law, private law, domestic law, and international law in enabling and constraining global capitalism across time. The investigation looks backwards so as to think forward. The larger goal of the endeavor is to imagine how an Asian law-based capitalism might continue past trends and recreate continuities despite a professed desire to be different. Just as capitalism once locked in colonial features despite the shift to multilateral international law, multilateralism and capitalism may be forces that sustain the very features of the Western Liberal International Order that China seeks to move beyond.

Articles

Michael D. Gilbert, Mauricio Guim, and Michael Weisbuch, Constitutional locks

Legal designers use different mechanisms to entrench constitutions. This article studies one mechanism that has received little attention: constitutional “locks,” or forced waiting periods for amendments. We begin by presenting a global survey, which reveals that locks appear in sixty-seven national constitutions. They vary in length from nine days to six years, and they vary in reach, with some countries “locking” their entire constitution and others locking only select parts. After presenting the survey, we consider rationales for locks. Scholars tend to lump locks with other tools of entrenchment, such as bicameralism and supermajority rule, but we argue that locks have distinct and interesting features. Specifically, we theorize that locks can cool passions better than other entrenchment mechanisms, promote principled deliberation by placing lawmakers behind a veil of ignorance, and protect minority groups by creating space for political bargaining. Legislators cannot work around locks, and because locks are simple and transparent, lawmakers cannot “break” them without drawing attention. For these reasons, we theorize that locks facilitate constitutional credibility and self-enforcement, perhaps better than other entrenchment mechanisms.

Soledad Bertelsen, A margin for the margin of appreciation: Deference in the Inter-American Court of Human Rights

Despite its extended criticism, is there any room for the margin of appreciation in the Inter-American Human Rights System? The article claims there is, if we ground the doctrine in the principle of subsidiarity. This principle gives a solid foundation to the margin of appreciation and shows that the doctrine does not respond to an exclusively European reality. It also helps to identify the factors that determine the width of the margin given to the states and how they interact with each other: the absence or presence of absolute rights, the quality of the domestic judiciary, and the need for a closer participation of the community and the expertise of the state. These conditions are analyzed in the light of the case law of the inter-American human rights system. The article explores the proper role of the margin of appreciation within human rights adjudication and its compatibility with the doctrine of conventionality control developed by the Inter-American Court of Human Rights.

Martijn van den Brink, The European Union’s demoicratic legislature

In important areas of EU law, the principal law-making institution is the Court of Justice of the European Union and not the EU legislature. This article criticizes the current allocation of power between both institutions and the different conceptions of political legitimacy that have been developed to justify it. The Court’s authority has been justified on the basis of output-oriented conceptions of political legitimacy that ground legitimacy in the kind of outcomes political institutions produce. This article argues that the different standards of output-legitimacy used are important but insufficient to legitimize EU institutions. Only input-oriented legitimacy can serve as a sufficiently strong form of legitimacy for the EU. More concretely, the article argues that the EU must be assessed by demoicratic standards of legitimacy. Unlike output-oriented theories of political legitimacy, which justify the transfer of authority from the EU legislature to the Court, a demoicratic conception of political legitimacy weighs in favor of legislative decision-making. This article explores whether it is possible to improve the political status of the EU legislature without Treaty amendment.

Rafael Macía Briedis, Constitutional self-negation in Venezuela: Problematizing constitutionalism’s internalization of the theory of constituent power

The article looks at the constitutional underpinnings of the political crisis that has unfolded in Venezuela (around the competing claims to the presidency by Juan Guaidó and Nicolás Maduro), in an effort to understand the structural elements that have enabled that crisis. The central argument of the article is that Venezuela presents an example of “self-negating constitutionalism.” A self-negating constitution is one that, by negating its own position as the exclusive, self-contained source of democratic authorization for a given polity, ultimately ceases to serve as the last instance for the adjudication of institutional conflicts, including conflicts about the proper locus of representation of the “sovereign” demos, thereby undermining the constitutional structure in its entirety and replacing the rule of law with extralegal power as the mechanism for the resolution of political disputes. As the paper will show, this is precisely what the Venezuelan Constitution has done by outsourcing the competency to “transform the state” to an institution supposedly authorized by the people’s “original constituent power.”

Symposium: Constitutional Experiments in Latin America

Joel I. Colón-Ríos, Constitutional experimentation

Johanna Frohlich, More flexibility in favor of constitutional stability? What breaking amendment rules in Ecuador can teach us

Latin America has provided a fertile ground for constitutional experimentation. The Ecuadorean Constitution of 2008 purported to change the entire liberal constitutional model and replace it with one in which indigenous concepts from the Andean region are central. At the same time, the constitutionalization of the legal order was not repudiated, and a reinforced procedure for constitutional amendments was still included. It seems, however, that even an extended rights catalogue and reinforced amendment procedures could fail to induce a real paradigm change if the commitment to protect the constitution as higher law is missing. The present article seeks to show that more flexible amendment rules might foster the rule of law and stability better than those that are unrealistic or bluntly ideological, especially where the value of constitution-as-higher-law is not authentically reflected in the governed society. In these cases, flexible amendment rules could help restore trust in law’s authority and constitutional institutions, and they could also assist in guiding political actions under the guise of law, instead of surrendering them to a mere political power struggle. Building on the experience of a series of constitutional substitutions from Ecuador’s three main constitutional phases, the article strives to enrich our understanding of issues related to amendment difficulty, institutional design, and constitutional culture.

Andrea Scoseria Katz, La Suiza de América: Direct democracy, anti-presidentialism, and constitutional entrenchment in Uruguay’s Constitution of 1918 FREE

In Latin America, the drafters of early nineteenth-century constitutions were skeptical of implementing republican forms of government. Uruguay was an exception. Under the Swiss-educated reformist José Batlle y Ordóñez (1904–7, 1911–15), the groundwork was laid for a new constitution that would bring about a secular democratic republic. Indeed, the 1918 Constitution replaced a conservative and centralist constitutional system with a plural executive and a regime of participatory democracy. This article advances a new interpretation of Batllista Uruguay’s distinctive institutions and argues that, despite the 1918 Constitution’s brief endurance, Uruguay’s distinctly republican form of democracy may be an effective mechanism for constitutional entrenchment where it helps to create popular support for the rule of law and institutional stability.

Vicente F. Benítez-R., “With a little help from the people”: Actio popularis and the politics of judicial review of constitutional amendments in Colombia 1955-90

This article examines the reasons behind the consolidation of the Supreme Court of Colombia’s authority during the second half of the twentieth century as the ultimate umpire of amendments’ constitutionality. After analyzing the case law of the Supreme Court between 1955 and 1990 and the political environment in which it rendered its decisions, the article claims that the Court managed to cement its power to review amendments thanks to the presence of a novel constitutional experiment, as well as to the existence of certain political conditions. With respect to the first factor, an actio popularis (by which any citizen had the right to petition the Court and challenge the constitutionality of legislation) granted the Supreme Court a constant flow of cases that allowed it to entertain and adjudicate on citizens’ petitions questioning the constitutionality of amendments. Regarding the latter factor, democracy and a political pluralism gave the Court some room to quietly consolidate its jurisdiction to review amendments and, eventually, quash some of them. The article concludes with a cautionary note on the success of actio popularis and the doctrine of unconstitutional constitutional amendments as deployed by the Supreme Court.

Mariana Velasco-Rivera, Constitutional rigidity: The Mexican experiment

The constitutional amendment mechanism of the Mexican Constitution of 1857 (reproduced in the Constitution of 1917) and Article V of the US Constitution are very similar in design. Both require a two-third majority of each of the houses of a bicameral Congress and ratification by the states (half of the state legislatures in Mexico and three-fourths in the United States). Both articles were the result of an experiment aiming at striking the right balance between rigidity and flexibility. Yet, while characterized by similar levels of formal rigidity, these experiments have had the exact opposite effect. While the US Constitution has been described as one of the world’s most rigid and has only been amended twenty-seven times, the Mexican Constitution of 1917 has gone through over 700 amendments. Why are the amendment rates so divergent? This article argues that Mexico’s amendment practice offers an opportunity to deepen our knowledge about how non-institutional factors condition the way amendment provisions work and, thus, to dispel the idea that amendment difficulty is institutionally determined. In particular, there are at least three lessons that may be drawn from the Mexican case: (i) constitutional scholarship needs to shift its attention to political parties and party systems; (ii) unwritten rules influencing the behavior of party members need further study; and (iii) we must carefully look at the agency of constitutional decision-makers, specifically regarding the choices they make among different means to advance their interests and agendas.

Sergio Verdugo, How can constitutional review experiments fail? Lessons from the Chilean 1925 Constitution

Constitutional designers establishing a new judicial review mechanism can fail to make that mechanism a relevant instrument for checking the power of incumbent legislators or presidents. Judges may refuse to exercise their newly established powers, politicians may refuse to obey their rulings, or the judiciary may be packed, among other possible reasons. The causes can be attributed to the existence of a dominant party system, the lack of political competition, problems of institutional design, or judicial culture. This article contributes to the understanding of this problem by exploring the failed constitutional mechanism that Chilean constitutional designers established in 1925. The 1925 Chilean Constitution established the power of judicial review of legislation for the first time in Chile’s history, but the Supreme Court generally avoided to be involved in political battles. Chile had a competitive political system with frequent and regular rotation in power. The literature claims that, under these conditions, we should expect judges to be more independent and empowered, but this is not what happened in the Chilean case. Scholars studying this period of Chilean constitutional history generally associate the passivity of the Supreme Court with a legalistic culture promoting an apolitical and formalistic judicial behavior. This article claims that the narrative of judicial apoliticism served to justify, and perhaps to persuade, the Supreme Court’s choice not to intervene in politics, but more attention needs to be given to the institutional weaknesses of the judiciary of that time and to the possible strategic judicial choice.

Karina Denari Gomes de Mattos, “We the prosecutors”: Challenges to social participation in Brazilian public law litigation

The Brazilian Ministério Público (MP) is an agency that aims to monitor the enforcement of criminal law, prosecuting wherever necessary, in addition to protecting relevant collective goods, such as those included in consumer and environmental regulations. These latter types of powers—established for the first time in the 1934 Constitution and consolidated in the 1988 Constitution—are uncommon from a comparative perspective. Although at first glance they could be seen to be useful for enforcing important principles and fundamental rights, I argue that the gradual empowerment of the MP could potentially have damaged civil society associations’ (CSAs) capacity for legal mobilization, since the areas of competence of this legal institution largely overlap with the niche in which civil society advocacy organizations operate. The experimentalist constitutional design combined with the gradual activist behavior from its members, have positioned the MP as perhaps one of the major institutional guardians of the public interest after Brazil’s re-democratization. I conclude by suggesting that the MP should develop strategies to enhance the representativeness and effectiveness of CSAs by engaging in a fruitful dialogue with them, including the monitoring of those cases once they leave the courtroom. In turn, CSAs also have strategic incentives to align with the MP, mainly to withstand current judicial skepticism about its institutional capacity for public law litigation.

ICON: Debate!

Maxime St.-Hilaire, Audit culture of human rights as “governmentality”?

The sway of audit culture over the field of international human rights law is clear to those familiar with human rights reports and indicators. In his 2019 I•CON Best Paper Prize-winning article, David McGrogan argues that the reason for that controlling influence is found in ineluctable characteristics of the international human rights system. As for its main consequence, he argues that Foucault’s idea of “governmentality” enables us to see that it is the “diametrically opposite effect” to the construction of a homo juridicus. In this short response, I will confine myself to a critical appraisal of the Foucauldian argument for the latter claim.

ICON: Debate!

Yun-chien Chang and Xin Dai, The limited usefulness of the proportionality principle

The proportionality principle is used in constitutional law and administrative law worldwide. We argue that this doctrinal method is theoretically flawed and often practically not useful. Our major arguments are that, first, the proportionality principle is an ill-suited tool for legislative and administrative decision-making, because it is, in essence, an incomplete form of cost-benefit analysis, as it systematically ignores certain costs and benefits. Welfare-maximizing measures, as a result, may fail to pass the test of proportionality analysis. Second, representative of legal scholars’ efforts to theorize proportionality, the German theorist Robert Alexy’s influential Paretian formulation of the proportionality principle makes it either toothless or fatal. Alexy’s weight formula is not useful in comparing multiple means. Third, the use of the proportionality principle for constitutional review by courts may create an undesirable ex ante effect and may fall prey to its inherent loss aversion which cannot be easily avoided through re-framing.

Anne Peters, A plea for proportionality: A reply to Yun-chien Chang and Xin Dai

After a survey of the proportionality principle and its discontents (irrationality, conceptual flaws, and bias), this article addresses the dual remedy proposed by proportionality critics, which consists in: (i) skipping the first to third prongs of the proportionality analysis (legitimate objective, suitability, and necessity) and (2) concentrating on balancing in the metric form of a cost-benefit analysis. I argue that discarding the three prongs, and thus abandoning the asymmetrical structure of the sequential proportionality analysis, would kill off the specific quality and function of rights which is to constitute a special protection that triggers the obligation to explain and justify interference. Although recent empirical studies have demonstrated that the proportionality test indeed does not deliver predictable legal outcomes, a simple cost-benefit analysis is worse. It would not secure more reliable outcomes either but only offers a sham-rationality. Assigning numbers to the goods and interests at stake cannot replace the work of a multidimensional assessment and argumentative explanation in natural language which is needed for making not only a sound, but also a transparent and thus contestable decision. What legal life needs is a culture of justification, not a culture of calculation.

Cristóbal Caviedes and Francisco J. Urbina, Cost-Benefit analysis in rights adjudication—An assessment in light of the proportionality debate: A reply to Yun-chien Chang and Xin Dai

In this article, we analyze Yu-chien Chang and Yin Dai’s proposal for replacing the proportionality test with cost-benefit analysis in their article “The Limited Usefulness of the Proportionality Principle.” We assess this proposal by considering the objections generally raised against the proportionality test. We claim that such objections also apply to cost-benefit analysis, thus raising concerns about its adequacy for rights adjudication.

Review Essay

Alvin Y.H. Cheung,  Unpalatable realities, no choices. Review of Cora Chan and Fiona de Londras (eds), China’s National Security: Endangering Hong Kong’s Rule of Law?;  Albert H.Y. Chen, The Changing Legal Orders in Hong Kong and Mainland China

Book Reviews

Rachael Walsh, Review of Hélène Landemore, Open Democracy: Reinventing Popular Rule for the Twenty-First Century

Edward Willis, Review of Brian Christopher Jones, Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness

Katarzyna Krzyżanowska, Review of Ágúst Þór Árnason and Catherine Dupré (eds), Icelandic Constitutional Reform. People, Processes, Politics

Donald Bello Hutt, Review of Joel Colón-Ríos, Constituent Power and the Law

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Published on October 26, 2021
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