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I·CONnect

Blog of the International Journal of Constitutional Law

Call for Papers–ICON-S German Chapter–Inaugural Conference: Law and Order–Recht und Ordnung–Humboldt-Universität zu Berlin, 28-29 March 2019

Law enables order. It regulates how we live together as a society and sets out a framework within which political and other conflicts are managed. But stability is not the only goal of these efforts. In democratic states, law must always provide space for opposition and contestation. In liberal states, it has to leave room for individual freedom. The order it establishes is therefore always and necessarily fragmentary and unstable. The ambivalence of the term Rechtsstaat in the German tradition, with its oscillation between order and liberty, is an illustration of this.

Contemporary global and German political developments speak to this unstable relationship of law to order in multiple ways. In the much-debated case of Sami A. or the Bavarian resistance to a ruling of the European Court of Justice progressives worry about the Rechtsstaat in the context of resistance to judicial decisions by state actors – a recurring theme, too, for observers of the European Court of Human Rights. In turn, conservative politicians have characterized protest and civil disobedience in the context of deportations of asylum seekers as a threat to the Rechtsstaat. If this criticism of protest against (legal) state action conceives of law and order as inseparable, law may also be understood by some to inhibit order as in the case of racial profiling, increasingly an issue of concern in Germany, too.

For the inaugural conference of the newly founded German Chapter of ICON-S, we invite contributions on the broader relationship of law and order as well as on what is commonly understood as “law and order“, i. e., questions of policing and security. The aim of the conference is to establish the German Chapter of ICON-S as a forum to bring together a wide range of perspectives on public law, including approaches both within law and from other disciplines. Submissions in English or German are welcome and there will be panels in both languages at the conference. We invite both senior scholars as well as younger researchers, including excellent doctoral researchers, to submit an abstract of 500-1000 words by Jan. 20 to iconsdeutschland@gmail.com. Selected presenters will be notified by Feb. 15. The selection will be based on 1. the quality of the abstract, 2. fit with the theme and other papers, 3. the effort to represent a range of different perspectives and voices.

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Published on January 3, 2019
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The Vices of Leaving This Undecided

Renáta Uitz, Central European University

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

The European Court of Human Rights (ECtHR) closed 2018 with a much awaited judgment on the applicability of sharia in Europe. The case arose from an inheritance dispute in Greece: the applicant and her late husband were both Muslims, living in Thrace, and us such, falling under a historic minority protection regime that dates back to the dismantling of the Ottoman Empire.[1] Under this regime the Greek state and Greek courts recognized sharia as the law applicable to certain affairs of Greece’s Muslim citizens. In Molla Sali,[2] the Grand Chamber of the ECtHR unanimously found a violation, agreeing with the applicant that Greek courts should have allowed her to inherit under the Greek Civil Code, in accordance with the will and wishes of her deceased husband.

The symbolic impact of the Grand Chamber is significant: the Court confirmed the findings of several regional and international human rights bodies, pointing out the shortcomings of Greece’s practices regarding the treatment of the Muslim minority in Thrace. The practical impact of the judgment is seemingly moderate, as Greece decided to amend its national law about the jurisdiction of courts (and muftis) applying sharia law in January 2018, shortly after the hearing in the Molla Sali case before the Grand Chamber.

The judgment is worthy of attention because of all the issues the Grand Chamber carefully chose not to decide.

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Published on January 3, 2019
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The Challenges of Transformative Constitutionalism – A Reply to Jorge González Jácome

–Carlos BernalJustice, Colombian Constitutional Court[1]

I

In “The Promise and Peril of “Transformative Constitutionalism,” Jorge González Jácome comments on my earlier post here at I-CONnect on “The Paradox of the Transformative Role of the Colombian Constitutional Court.” González makes seven claims about my post:

  1. (a) That I “advanced an argument against the transformative role of constitutional tribunals”; and (b) that I argue that “transformative constitutionalism should be abandoned because it has not been able to fully achieve the goals set by the constitution.”
  2. That I hold that (a) “there are some constitutional goals set beforehand that the Court should seek to fulfill within the framework of its institutional constraints”; and (b) that “judges should not take part” in the process of “adopting constitutional goals.”
  3. That I imply that “we should think of constitutional adjudication differently […] leaving courts as a secondary character within the framework of constitutionalism”.
  4. That I endorse “self-restraint” of Constitutional Courts as a solution for the challenges of transformative constitutionalism.
  5. That I claim that “aggressive adjudication of social and economic rights must be abandoned.”
  6. That I hold that rights and courts are captured by strategic litigation.
  7. That I “argue that more activism of the Court implies less congressional action.”

These claims are a misrepresentation of my views of the challenges that transformative constitutionalism undeniably faces. I do actually not make any case against transformative constitutionalism. Instead, I point to some side effects of its implementation. Minimizing those side effects will strengthen transformative constitutionalism and make it more effective. In what follows I will address all the claims González makes. I will show that his overall argument is flawed because of the falsehood of its premises.

II

1

In my post I did not advance the argument “against the transformative role of constitutional tribunals”, namely, that “transformative constitutionalism should be abandoned because it has not been able to fully achieve the goals set by the constitution.” Instead, I highlighted some challenges that transformative constitutionalism undeniably faces by means of stating a paradox. Transformative constitutionalism is the unfinished project of realizing constitutional rights (in particular, of realizing economic and social rights), the rule of law, and deliberative democracy. Constitutional courts are central institutions for carrying out the project of transformative constitutionalism. However, that institutional fact gives rise to a paradox. As I wrote in my post, “if the Court declines the task of continuing the transformations, the constitutional objectives concerning the realization of constitutional rights, the rule of law, and deliberative democracy will never be achieved in full. However, [due to some side effects] if the Court carries on with the changes, its decisions might not generate the desired transformative effects.”

Stating this paradox does not imply that constitutional courts should relinquish their institutional responsibility to keep carrying out the project of transformative constitutionalism. Indeed, as I contended in a recent lecture in Belo Horizonte (Brazil), at least in the Global South constitutional courts have a non-renounceable transformative constitutional duty. This duty is incompatible with solving the paradox by accepting the first horn. Denying the side effects cannot produce a plausible solution either. Only implementing innovative ways to deal with the side effects can we hope to resolve the paradox. As I stated in the last paragraph of my post: “The most pressing challenge of the Constitutional Court is finding out a way to minimize those side effects.”

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Published on January 1, 2019
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We Should Learn from Historians: Seeing the Future in Brazil’s Political Landscape

Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

The election of Jair Bolsonaro as Brazil’s next President has sparked a fruitful debate over the expansion of an illiberal mindset across the globe, now reaching the biggest economy in Latin America and world’s fourth largest democracy. For some, Brazil seems doomed to join the club of countries such as Hungary, Poland, Turkey or Philippines, where an authoritarian turn has clearly undermined some of their democratic credentials. These more recent cases, to a greater or lesser extent, are characterized by the strategic use of constitutionals tools to undermine democracy, a phenomenon that has been dubbed “abusive constitutionalism,”[1] “stealth authoritarianism,”[2] “autocratic legalism,”[3] and the like by prominent scholars. By the same token, in the last years, also motivated by the rise of such an illiberal mindset in mature democracies, a series of books have been published on the subject,[4] and the number of posts on academic blogs on the topic has reached new highs. This phenomenon has also fostered a rich network of scholars working on the subject. For instance, this year Tom Gerald Daly launched the fantastic “Democratic Decay Resource,” which is aimed at “[assisting] researchers and policymakers focused on the deterioration of democratic rule worldwide – and to help them work together.” It is a new paradigm of comparative constitutional studies, and Brazil’s would fill the ranks of another relevant case scholars should be closely looking into.

There are certainly symptoms of “democratic decay” in various parts of the world, and Brazil is clearly one case exemplifying this trend, but, as a constitutional phenomenon that appears to be taking place as a wave, researchers should bear in mind the serious methodological concerns when comparing countries whose backgrounds are distinct. Also, the type and power of the illiberal movements in the different countries differ quite strongly one from the other. However, besides the methodological issues comparativists tend to bear in mind, a critical concern that should play a greater role in such analyses comes from historiographic studies. After all, a common symptom in comparative — and also domestic — constitutional and political studies is that they are often knocked down by the very pace of changes. One of the main difficulties for us constitutional scholars and political scientists nowadays is that we are often beaten by the speed and intensity of the events that are passing by in front of us. Who among us has not written a paper which, at the time it is published, already seems outdated?

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Published on December 31, 2018
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What’s New in Public Law

–Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

(1) The US Supreme Court denied a request by the Trump administration to enforce new asylum rules.

(2) The Palestinian Constitutional Court to dissolve Legislative Council.

(3) The Turkish Constitutional Court ruled that the headscarf ban violates student’s right of education and freedom of religion.

(4) The French Conseil d’Etat ordered the review of Afghan interpreter’s asylum request.

In the News

(1) The UK announces January vote on Brexit agreement.

(2) Poland reinstates Supreme Court judges who were forced into early retirement.

(3) Cuban lawmakers unanimously approved a new constitutional draft.

(4) In Russia, the parliament is considering amending the constitution.

(5) In Sudan, violent protests erupted in response to the country’s economic crisis.

(6) Former Pakistan prime minister has been sentenced to 7 years in prison for corruption.

(7) Nepalese government proposes constitutional amendments.

New Scholarship

(1) Mark Fathi Massoud, How an Islamic State Rejected Islamic Law, 66 The American Journal of Comparative Law (2018) (answering the question of why Muslim political elites first rejected Islamic law, rather than enacted it, as the basis of the legal system).

(2) Christopher R. Green, Justice Gorsuch and Moral Reality, Alabama Law Review (forthcoming) (considering what Justice Gorsuch’s first year-and-a-half on the Court tell us about his understanding of the relationship between interpretation and moral considerations).

(3) Mikayla Novak, Constitutional Catallaxy and Indigenous Rights: The Australian Case (2018) (analyzing certain theoretical presumptions surrounding the development and maintenance of a political constitution).

(4) Joseph D’Agostino, Against Imperialism in Legal Concepts, 7 UNH L Rev 67 (2018) (arguing for translating non-essentialist concepts into essentialist ones while still using the former’s theory forms).

(5) John Mark Keyes, Rethinking Judicial Review of Delegated Legislation (2018) (arguing that the standard of review analysis should be applied to the review of all forms of delegated legislation and that, which the standard of reasonableness is usually appropriate, there are situations justifying correctness).

(6) Ryan Doerfler, Can a Statute Have More Than One Meaning?, 94 NYU L Rev (2019) (discussing the odds of the variation of the statutory language means from case to case).

(7) Adam Mossoff, Statutes, Common-Law Rights, and the Mistaken Classification of Patents as Public Rights, Iowa L Rev (Forthcoming) (surveying these well-known sources of property rights in both statutes and judicial decisions, revealing that conflating “common law” with private property rights is more legal myth than historical fact.)

(8) Coel Kirkby, Law Evolves: The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961, American Journal of Legal History (2018, Forthcoming) (examining how Anglo-American legal thinkers used primitive law to develop their concepts of modern law in the century from Austin to Hart as well as the development of legal anthropology as a distinct discipline combining the scientific method of participant observation with the legal method of the case study).

(9) Yahli Shereshevsky, Back in The Game: International Humanitarian Law-Making by States, Berkeley Journal of International Law (Forthcoming) (providing an analysis to the recent tendency of states to use unilateral, non-binding, lawmaking initiatives in the context of international humanitarian law).

Calls for Papers and Announcements

(1) Elon Law Review invites submissions for a symposium exploring how our High Court is affected by the circumstances of contemporary America. The symposium will be held on September 27, 2019, at Elon University School of Law in Greensboro, North Carolina.

(2) The NUSRL Journal for Constitutional Law & Governance welcomes submissions for its new volume.

(3) A call for proposals has been issued for the seventh biennial conference on Applied Legal Storytelling to be hosted by the University of Colorado School of Law, University of Denver Sturm College of Law, and University of Wyoming School of Law, and coordinated by the Rocky Mountain Legal Writing Scholarship Group in Boulder, Colorado, July 9–11 2019.

(4) The Government Law College, Kozhikode is organizing a three day International Seminar on International Legal Norms on Terrorism & Counter Terrorism: Promises, Experiences and Challenges from 27th to 29th January, 2019, at the college premises in Kozhikode, Kerala, India.

(5) NLIU Law Review in collaboration with India Foundation is conducting the NLIU – India Foundation Constitutional Law Symposium on March 16-17, 2019.

Elsewhere Online

(1) Discriminating against migrants isn’t just unconstitutional, it’s also bad politics, The Times of India

(2) Beyond the backstop: understanding Unionist sentiment in the Brexit debate, Centre on Constitutional Change

(3) Aileen McHarg, The Scottish Continuity Bill Reference, Centre on Constitutional Change

(4) Daoud Kuttab, What is the motive behind dissolving Palestinian legislature?, The Jordan Times

(5) Letter: Why is it so hard to amend Caribbean constitutions?

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Published on December 31, 2018
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The Promise and Peril of “Transformative Constitutionalism” – A Reply to Justice Carlos Bernal

Jorge González Jácome,[1] Universidad de los Andes

In a recent piece published in this blog, a justice of the Colombian Constitutional Court, Carlos Bernal, advanced an argument against the transformative role of constitutional tribunals, particularly the Colombian Constitutional Court. In Justice Bernal’s view, when Courts adopt creative and strong mechanisms to make other branches of government fulfill their obligations, they create a “paradox”: courts’ decisions cannot achieve the transformations that they envision, and, at the same time, they must continue intervening because withdrawal would entail a denial of advancing constitutional goals. The paradox is created by judicial activism and Justice Bernal implies, by the end of the piece, that we should think of constitutional adjudication differently, perhaps through a reshaping of constitutionalism in order to revive the paradigm of deliberative democracy, thus leaving courts as a secondary character within the framework of constitutionalism. As he concludes, “transformative constitutionalism [led by courts might be] an oxymoron disguising an illusion”.[2]

Justice Bernal’s piece is a state-of-the-art discussion about the role of courts in contemporary democracies. His provocative piece invites a transparent debate about what we should require from courts in a democracy. Although I agree that asking about the actual transformative effects of constitutional adjudication is very relevant, I ultimately disagree with Justice Bernal’s reasons for questioning what he calls “transformative constitutionalism.” I believe that parts of his arguments are embedded in an unduly narrow conception of what constitutional adjudication is and should be, others derive problematic implications from scholarly work about the effects of social and economic rights adjudication, and his overall argument hints toward a discomfort with the role of courts as a site for democratic debate, which I do not share. I address these three issues in turn.

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Published on December 27, 2018
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Special Undergraduate Series–Using International Law in Indian Constitutional Adjudication

Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution

–Shubhangi Agarwalla, B.A., LL.B. Student (Hons.), National Law University, Delhi

Since the late 1970s, the Supreme Court has, on the basis of Article 51 of the Constitution of India, started articulating a sense of obligation towards applying international law in its decisions. The high visibility of the cases in which the Court has called upon international law has brought a lot of attention to this practice.

Historically, the doctrines of monism and dualism have been used to understand the relationship between the international and the domestic order. According to monist approaches, international law ought to be automatically incorporated into the domestic legal order, without the requirement of any additional act of adoption or transformation by the state. On incorporation, international law is slotted into the hierarchy of legal sources applicable within the domestic legal order. Dualists however believe that international and domestic laws operate in distinct spheres and so the only mechanism for the transformation of international law into domestic law is through the medium of regular domestic law-making processes. As doctrines, monism and dualism are formalistic constructs that fail to reflect the numerous ways in which global legal interactions take place, especially in light of the increasing overlap of the international and domestic legal orders. However, they are given importance by various state authorities. India, for example, allocates powers in relation to international law along the dualist paradigm. The relevant part of Article 51 exhorts the state, and not the courts, “to foster respect for international law and treaty obligations in the dealing of organized people with one another.”  The Constitution Assembly debates barely shed any light on the intent, scope, or content of the provision. In fact, while introducing the draft article for discussion, Dr. Ambedkar, the Chairperson of the Drafting Committee, stated that, “[t]he propositions contained in this new article are so simple that it seems to be super-arrogation to try to explain them to the House by any lengthy speech.”

Interestingly, an argument can be made that the purpose of Art. 51 was never meant to be enforced by the judiciary to invoke international norms.

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Published on December 26, 2018
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What’s New in Public Law

–Angélique Devaux, Cheuvreux Notaires, Paris, France, Diplômée notaire, LL.M. Indiana University Robert H. McKinney School of Law

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of Moldova ruled that there is no competition between the President and the Parliament in Defense Policy.
  2. Sri Lanka’s Supreme Court ruled that President Maithripala Sirisena’s order to dissolve Parliament and hold new elections was unconstitutional.
  3. The Supreme Court of the United States refused to allow Trump administration to immediately enforce its new policy of denying asylum of migrants who illegally cross the Mexican borders
  4. A federal judge in Texas ruled Obamacare unconstitutional.
  5. Ontario Court ruled law of Bangladesh applies to Rana Plaza Collapse Claim.
  6. Turkey’s Constitutional Court ruled university headscarf ban violated student’s right to education

In the News

  1. Indiana’s Attorney General filed a brief asking the United States Supreme Court to uphold the constitutionality of Indiana abortion law of 2016.
  2. Missouri is moving to legalize medical marijuana.
  3. The Cuban Assembly approved draft of new constitution.
  4. President Donald Trump signed criminal justice reform into law.
  5. Georgia’s new constitution, originally adopted in 2017, has now come into force.

New Scholarship

  1. Nikolaos A. Davrados, Louisiana My Home Sweet Home : Decodifying Domicile, 64 Loy. L. Rev. 287 (2018) (exploring the notion and functions of domicile of natural persons in Louisiana and in a comparative perspective)
  2. Ole W. Pedersen, Environmental Law and Constitutional and Public Law, Jorge Vinuales and Emma Lees (eds), Oxford Handbook on Comparative Environmental Law (OUP 2019) (examining the relationship between environmental law and public law)
  3. Joel K. Goldstein, Teaching The Transformative Fourteenth Amendment, 62 Saint Louis University Law Journal (2018) (Explaining the Fourteenth Amendment)
  4. Rivka Weill, The Strategic Commonlaw Court of Aharon Barak and Its Aftermath : On Judicially-led Constitutional Revolutions and Democratic Backsliding, Journal of Law & Ethics of Human Rights (2019) (explaining the tactics and strategy used by Barak to revolutionize Israeli constitutional law)
  5. Emmett Macfarlane, Policy Change, Courts, and the Canadian Constitution (University of Toronto Press 2018) (aiming to further our understanding of judicial policy impact and the role of the courts in shaping policy change)
  6. Michael Hein, Entrenchment Clauses in the History of Modern Constitutionalism, 86 Legal History Review (examining the origins, differentiation, and migration of constitutional entrenchment clauses from the beginning of modern constitutionalism until today)
  7. Sharon Yadin, Regulatory Shaming, 49 Environmental Law (forthcoming 2019) (exploring shaming by administrative agencies from a normative perspective and suggesting that shaming can be a legitimate, efficient, and democratic regulatory approach, and general considerations for utilizing shaming tactics)

Calls for Papers and Announcements

  1. The American Society of Comparative Law – Younger Comparativists Committee calls for papers for its 8th Global Conference to be held in Montreal, Canada on May 10-11, 2019.
  2. The Commonwealth Law Conference will host a conference in Livingstone, Zambia from April 8th to 12th, 2019. The theme of this 21st Commonwealth Law Conference is “The Rule of Law in Retreat? Challenges for the Modern Commonwealth.”
  3. The Central European University in collaboration with the International IDEA, Friedrich Ebert Stifung and the African Network of Constitutional Lawyers call for applications for its summer programme on Consitution-Building in Africa.
  4. The Bonavero Institute of Human Rights calls for papers for a workshop for early career-researchers on the topic of Political Parties, Partisanship, and the Constitution, with the generous support of the Programme for the Foundations of Law and Constitutional Government to be held on March 14-15, 2019 in Oxford, United Kingdom.
  5. The University of Verona calls for papers for a conference on “Islands and Remoteness in Geography, Law, and Fiction” to be held in Verona, Italy of November 22-23, 2019.
  6. The Department of Constitutional Law and Political Sciences, Faculty of Law and Political Sciences, Széchenyi István University calls for application for its Winter Seminar 2019 on European Values vs Central European Realities.
  7. The International Academy of Comparative Law calls for papers for a conference to be held in Paris, France in 2019.
  8. The European Jounal of International Law calls for papers for its 30th Anniversary Symposium.
  9. OxonCourts, an interdisciplinary group of early career researchers at the University of Oxford, organises its first annual “Judicial Studies Graduate Colloquium,” to be held at Wolfson College, on March 1, 2019. The deadline for submission of abstracts is January 11, 2018. Doctoral students from all disciplines, who research courts are invited to apply.
  10. IE University has an opening for a position in Comparative Public Law.

Elsewhere Online

  1. Stephen Wermiel, SCOTUS for Law Students : President George H. W. Bush’s Supreme Court legacy, SCOTUSblog
  2. Lyle Denniston, All sides agree that Obamacare is Safe – For Now, Constitution Daily
  3. Oliver Garner, Ruvi Ziegler, Mark Lazarowicz, Dora Kostakopoulou, Mini Symposium : EU Citizenship in the shadow of Brexit : Introduction, Part I, Part II, Part III and Part IV, European Law Blog
  4. Claire R. Thomas, Distracting from the Actual Crisis : The Proposed Asylum Ban, Verfassungblog on Constitutional Matters
  5. David A. Andelman, Commentary : Congo election shows flaws in Trump’s Africa Strategy, Reuters
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Published on December 24, 2018
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Book Review: Alexander Hudson on “The UK Constitution After Miller: Brexit and Beyond”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Alexander Hudson reviews Mark Elliott, Jack Williams & Alison L Young (eds.), The UK Constitution After Miller: Brexit and Beyond (Hart 2018).]


–Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity, Fellow Group “Comparative Constitutionalism”

In a very timely volume, Mark Elliot, Jack Williams, and Alison L. Young have assembled eleven essays that consider the impact of the United Kingdom Supreme Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union[1] on the Brexit process, the United Kingdom (UK) constitution, the manner of constitutional adjudication in the UK, and indeed the impact upon the Supreme Court itself. The authors of the various chapters include both scholars and practitioners, and provide a wide range of views on the various merits and demerits of the litigation and of the judgment delivered by the Supreme Court. Two of the authors were directly involved in the litigation. The combination of first-hand views and scholarly analysis by some of the UK’s leading law professors makes this volume an authoritative resource on the Miller judgment and its broader importance for the UK constitution.

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Published on December 21, 2018
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Rare, or Under-Cooked? The Appeal Ruling in the Urgenda Climate Change Case

James Fowkes, University of Münster Faculty of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

Back in May, I wrote here about climate change litigation. I drew attention to, among others, the appeal hearing in the Dutch Urgenda case.[1] By now, we have the judgment.[2]

The headline is that the Dutch government’s appeal was rejected. And some standard journalistic copy applies. This is a praiseworthy effort by a civil society organization to deal with a pressing problem. The judgment makes a number of findings that will be of use to other litigants elsewhere, especially in the context of EU emissions mechanisms and the European Convention on Human Rights. And it took judicial courage, and an admirable sense of global citizenship, for the Hague Appeal Court to uphold the lower court’s decision.

But that said – and that part should be said – the finer print of this judgment also merits critical comment. Though it may seem an odd thing to say about a bold decision in a ground-breaking litigation, the judgment reflects quite a conservative view of the judicial role – and as such, may not have done enough to underpin the boldness of its order.

Let me hasten to explain.

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Published on December 19, 2018
Author:          Filed under: Developments