Blog of the International Journal of Constitutional Law

The Contingent Role of the Basic Structure Doctrine for Constitutionalism in Africa

Berihun Adugna Gebeye, Humboldt Postdoctoral Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

Kenyan courts’ use of the basic structure doctrine to strike down President Uhuru Kenyatta’s the Constitution of Kenya Amendment Bill 2020 as unconstitutional has attracted many reactions both in Kenya and abroad. We have seen extremely rich arguments about the basic structure doctrine in Kenya both in the High Court and the Court of Appeal where the doctrine is found to be applicable. We will see similar interesting arguments at the Supreme Court for one last time as this court decides on President Kenyatta’s constitutional amendment proposal once and for all. But in this post, I will examine the contingent role of the basic structure doctrine for constitutionalism and democracy in Africa more generally.

The basic structure doctrine, in its classic formulation, provides that regardless of the existence or absence of an express limitation, there is an implied and substantive limitation to a constitutional amendment, the objective of which is to protect the “basic structure” or the “core element” of a constitution.[1] Thus, some aspects of a constitution are unamendable and that these aspects could be changed only through a mechanism outside of the constitution.[2] At the risk of over simplification, the theoretical origin of the doctrine is associated with some conceptions of constituent power, its legal and/or practical relevance is associated with the protection of the democratic constitutional state, and its effect is related to maintaining the core constitutional dispensation in a polity. And its major operating assumptions lie in its commitment to the classic statist constitutionalism, its consideration of the constitution as a legitimate and a true reflection of the will of the people, and its consideration of the state and the people as sovereign actors both as a matter of theory and empirical reality.

A judicial doctrine that could maintain these constitutional and democratic circumstances and sustain these assumptions is indeed worth defending and exporting. While the German professor Dietrich Conrad was instrumental in bringing in the basic structure doctrine to the attention of Indian lawyers, the acceptance and further development of the doctrine there may have to do with the way in which self-government and democracy were constituted at the dawn of British colonialism as Madhav Khosla shows in India’s Founding Moment, how ordinary people see and attribute meaning to the Constitution and argue with it asRohit De demonstrates in A People’s Constitution, and the popular or institutional belief in the transformative capacity of the Constitution as Gautam Bhatia writes in the Transformative Constitution. All these contextual factors show that, in addition to the contestations around the nature and structure of constituent power that form the substantial part of the basic structure doctrine literature, the material conditions in which the constituent power exists and operates, and the nature of the polity under consideration are key determinants whether we should apply the basic structure doctrine or not. And if we decide to apply it, to what extent and how. Here lies the contingent role of the basic structure doctrine in the African context.

First, every constitution may have a basic structure, but all basic structures may not be worth defending or preserving. There may be a basic structure that should be changed in as much as there may be a basic structure that should be safeguarded. And this has nothing to do with the doctrine as such, but with its theoretical assumptions and widely held objectives. As Yaniv Roznai, one of the leading scholars on the subject, observed the doctrine is mainly applicable to democratic constitutions, which in practice regulate and limit power, protect rights, and effectuate the rule of law, not to sham constitutions.[3] But whether a certain constitution is sham or not is predominantly an empirical question.[4] For example, whether a constitution is a genuine expression of the will of the people or rather an expression of the will of the elites, or even the will of some of the elites? Whether it practically regulates the behavior of institutions, leaders, and citizens or it is a legitimation tool for maintaining the interests of the few, not the many? These are empirical questions whose answers are largely to be found outside of the constitution.

Before applying the basic structure doctrine, then, we must conclude that the constitution under consideration is not sham: a determination relatively easy for legal scholars but extremely difficult, if not impossible, for judges who derive their position and authority from said constitutions they promise to uphold and enforce. Consider, for example, the 1995 Constitution of Ethiopia and the 1999 Constitution of Nigeria where a particular elite – former rebel armed groups in the case of the former and the military in the case of the latter – imposed a constitution over the people, but at the same time disregard constitutional rules at will, violate rights, and undermine the rule of law.[5] In these circumstances, the application of the basic structure doctrine would prevent constitutional and democratic development and simply maintain the elite’s grip on power over the people. As Rosalind Dixon and David Landau show in their new book, Abusive Constitutional Borrowing, the basic structure doctrine could become part of the toolkit of abusive constitutionalism that subverts the democratic transition and consolidation in many parts of Africa.  

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Published on October 28, 2021
Author:          Filed under: Analysis

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


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.


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
Author:          Filed under: Editorials

What’s New in Public Law

Bárbara da Rosa Lazarotto, Master Student at the University of Minho – Portugal; Researcher at the International Legal Research Group on Human Rights and Technology of the European Law Students Association – ELSA.

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

Developments in Constitutional Courts

1. The US Supreme Court declined to block a vaccine requirement imposed on Maine health care workers.

2. The European Court of Human Rights condemned a Turkish law that bans insults against President Recep Tayyip Erdoğan. The Court issued this opinion in a case of a man who was convicted of publishing two caricatures of the Turkish President on Facebook.

3. The French Constitutional Court rejected to review a French law that transposed the Convention Implementing the Schengen Agreement and Directive 2001/51. The Court ruled that it is not competent to conduct such a review.

In the News

1. The head of the European Council Ursula von der Leyen said that the recent ruling by Poland’s Supreme Court is a direct challenge to the unity of the bloc.

2. The Portuguese Parliament elected on October 1st four new judges for the Constitutional Court of Portugal that will substitute four justices whose mandates ended in June.

3. The US Justice Department formally asked the Supreme Court to block the controversial Texas law that banned abortions after six weeks of pregnancy.

4. A coalition of NGO’s and indigenous organizations challenged a presidential act at the Constitutional Court of Ecuador, which aims to double petrol production in the country, arguing that this act violates international rights of indigenous people to previous consultation and other collective rights.

5. The President of Ecuador declared a state of emergency for 60 days in the whole country due to extreme violence enacted by drug dealers.

6. The United Kingdom justice secretary Dominic Raab stated that the UK plans to create a mechanism to “correct” judgments issued by the European Court of Human Rights.

7. A report released by the Brazilian Senate Committee has recommended that President Jair Bolsonaro be indicted on ten charges, including crimes against humanity.

8. The Senate of Brazil approved a constitutional amendment that codifies the fundamental right to the protection of personal data.

New Scholarship

1. Raphaël Girard, Accountability, Populism and Expertise: The UK Government’s Response to Covid-19, Public Law 4 (2021) (questioning the perceived or assumed dichotomy between populism and expertise in a case study of the UK government’s response to the Covid-19 pandemic).

2. The Revista Derecho del Estado issued its special number in tribute to Roberto Gargarella, discussing the “XXII Jornadas de Derecho Constitucional” it is on open access.

3. Ronald M. Levin, The Evolving APA and the Originalist Challenge, 97 Chicago-Kent Law Review 1 (2021) (examining the manifold ways courts have creatively interpreted the APA’s provisions on rulemaking, adjudication, and judicial review).

4. Dan Yosipovitch, Adopting a Legislative Approach for Data in the Fourth Amendment: Defining Personal Data as An “Effect” (2021) (addressing the need to recognize a property-based right in personal data and to limit the amount of personal information that can be lawfully collected about individuals online).

Calls for Papers and Announcements

1. The Asser Institute invites abstracts to the topic “Law and ethics of artificial intelligence in the public sector: From principles to practice and policy” for an interdisciplinary conference that will take place on 10-11 March 2022 at the Asser Institute in The Hague.

2. The University of Externado of Colombia announces its XXII Journey of Constitutional Law, which will take place on 21-22 of October in Bogotá. Applications can be made here.

3. The Instituto Iberoamericano de Derecho Constitucional opens call for papers for the Revista de Derecho Constitutional n. º 3. Deadline for submissions is 20 November 2021.

4. The 10th Edition of Privacy Camp is open for panels. It will be about ways to advance human rights in the digital society. The deadline for proposal submissions is 7 November 2021.

5. The Rajiv Gandhi National University of Law (RGNUL) invites papers for Volume 1 & 2, 2021 of RGNUL Law Review. The deadline for submissions is 30 November 2021.

6. The Journal of Islamic Law at Harvard Law School accepts papers on racial justice and equality. The deadline for submissions is 1 November 2021.

Elsewhere Online

1. Lidia Dutkiewicz, From the DSA to Media Data Space: the possible solutions for the access to platforms’ data to tackle disinformation, European Law Blog

2. Joel Reardon, Emily Laidlaw and Greg Hagen, COVID-19 and Cellphone Surveillance, Double Aspect

3. Dinesha Samarantne, Comparative Constitutional Law, Colonialism and Empire (Part I), IACL-AIDC Blog

4. Marcus, Klamert, Rationalizing Supremacy, Verfassungsblog

5. Alex Walker, The draft Online Safety Bill: abandoning democracy to disinformation, The Constitution Unit Blog

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Published on October 25, 2021
Author:          Filed under: Developments

Global Fellowship Applications for New York University School of Law | Now Available for the 2022-23 Academic Year

New York University School of Law is currently accepting applications for the following fellowships:

Emile Noël Fellowship Program

Deadline: January 15, 2022

The principal objective of the Emile Noël Fellowship program is scholarship and the advancement of research on the themes prioritized by the Jean Monnet Center for International and Regional Economic Law & Justice, which include the following overarching areas: European Integration, general issues of International (principally WTO), and Regional Economic Law and Justice and Comparative Constitutional Law. The expectation is that the residency of our Fellows at NYU School of Law will result in at least one paper that will be of sufficient quality to be published as a Jean Monnet Working Paper. During the period of residence, we encourage our Fellows to participate fully in the life of the Law School and of NYU in general, not to mention the endless possibilities that New York City has to offer. The Fellows will be expected to play an active role in the activities of the Center, particularly the Global/Emile Noël Fellows Forum, which is the vehicle through which work is presented and discussed, and encapsulates the idea of the Program – the University as a community of scholars. The Forum takes place on a regular basis throughout the fall and spring semesters.

The Jean Monnet Center at NYU School of Law currently offers fellowship opportunities for scholars in the following categories:

1.  Global & Senior Global Emile Noël Research Fellows

Global Emile Noël Research Fellows are post-doctoral or tenured academics with a demonstrable background of legal scholarship.  More senior academics (for example, faculty members tenured for ten years or more) at the discretion of the selection committee may be designated as Senior Global Emile Noël Research Fellows.

2. Global Emile Noël Fellows from Practice and Government

Global Emile Noël Fellowships are also open to government officials, judges, officials from international organizations and lawyers in private practice who wish to take a semester or academic year away from their posts to engage in serious scholarship.

3. Post-Doctoral Global Emile Noël Fellows

Post-Doctoral Global Emile Noël Fellows are post-doctoral scholars who have attained their doctoral degrees within the past four years and who have not yet secured a tenure-track academic appointment at an institution.  Post-Doctoral Global Emile Noël Fellows meeting these eligibility requirements may be considered for a limited number of merit-based post-doctoral stipends, ranging from US$30,000 to US$45,000 for the academic year (or from US$15,000 to US$22,500 per academic semester), subject to applicable tax(es). 

For an overview of Program eligibility and other guidelines and to apply, please visit the Emile Noël Fellowship Program Overview page.

Global Fellows Program

Deadline: January 15, 2022                   

The Global Fellows Program offers an opportunity for academics, practitioners, government officials and post-doctoral scholars from around the world to spend a semester or academic year in residence at NYU School of Law.  The principal objective of the Global Fellows Program is the production of scholarship through the advancement of research. We have a notable history of hosting distinguished scholars, judges, lawyers and government officials who wish to spend time advancing their scholarship and engaging in the intellectual life of the Law School.  Fellows are welcome to participate in academic activities such as fora, lectures, colloquia, seminars and conferences. They are also invited to various social events, including some organized specifically for Global Fellows and others aimed at the broader community.

Through the Global/Emile Noël Fellows Forums, Global Fellows share their research with colleagues, students and faculty and receive comment and feedback.  In this way, they contribute to the intellectual life of the Law School and provide an opportunity for the community to learn about current law research from a global perspective and in a wide range of topics.  The primary goal of the Global Fellows Program is the enhancement of research and it is expected that participation in the Program will result in a substantial publishable piece of scholarship.

In recent years, we have introduced a specialized post-doctoral programming component designed especially for our Post-Doctoral Global Fellows (fellows who have attained their doctoral degrees within the past four years and who have not yet secured a tenure-track academic appointment at an institution), in partnership with the JSD program, to provide opportunities for the exploration of methodological questions in legal research and for participating in workshops where works-in-progress may be presented. 

The Global Fellows Program currently offers fellowship opportunities for scholars in the following categories:

1.  Global and Senior Global Research Fellows

Global Research Fellows are tenured or tenure-track academics with a demonstrable background of strong legal scholarship.  More senior academics (for example, faculty members tenured for ten years or more) may be designated as Senior Global Research Fellows at the discretion of the selection committee. 

2. Global and Senior Global Fellows from Practice & Government

Global Fellows from Practice & Government are government officials, judges, officials from international organizations and lawyers in private practice who wish to take a semester or academic year away from their posts to engage in serious scholarship.  More experienced officials and practitioners may be designated as Senior Global Fellows from Practice & Government at the discretion of the selection committee. 

3. Post-Doctoral Global Fellows

Post-Doctoral Global Fellows are post-doctoral scholars who have attained their doctoral degrees within the past four years and who have not yet secured a tenure-track academic appointment at an institution.  Post-Doctoral Global Fellows meeting these eligibility requirements may be considered for a limited number of merit-based post-doctoral stipends, ranging from US$30,000 to US$45,000 for the academic year (or from US$15,000 to US$22,500 per academic semester), subject to applicable tax(es). 

For an overview of Program eligibility and other guidelines and to apply, please visit the Global Fellows Program Overview page.

Visiting Doctoral Researcher Program

Deadline: February 15, 2022

Visiting Doctoral Researchers are doctoral candidates enrolled in a doctoral degree program at another institution abroad who wish to benefit from spending one year of their research at NYU School of Law. They will be fully integrated into the JSD program as far as is relevant. The JSD program invites approximately five to six Visiting Doctoral Researchers each academic year to contribute to the Visiting Doctoral Researcher position.

The Visiting Doctoral Researchers are actively integrated into the Law School community through various academic and social programs, including an invitation to participate in the JSD Colloquium where they may present their research.

For an overview of Program eligibility and other guidelines and to apply, please visit the Visiting Doctoral Researcher Program Overview page.

All applications and materials must arrive by the respective deadline dates. 

Questions about the Global Fellows Program should be directed to:

Questions about the Emile Noël Fellowships should be directed to:

Questions about the Visiting Doctoral Researcher Program should be directed to:

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Published on October 21, 2021
Author:          Filed under: Developments

Call for Proposals | ICON•S Committee on New Directions in Scholarship

The International Society of Public Law (ICON·S) has established a Committee on “New Directions in Scholarship”. Its main objective is to facilitate the dissemination of works that have advanced the knowledge of Public Law and to launch inclusive initiatives in public law research.

Following the success of ICON·S Live, the Committee will organize events featuring recently published books. The Committee invites book proposals to be considered for a series of book discussion panels.

We welcome books from scholars of all ranks around the world, on any topic in Public Law widely conceived. 

We are especially committed to advance diversity and inclusiveness. We particularly welcome book proposal from early-career scholars and from underrepresented groups in academia.


To propose books for the committee to feature in its events, please email:

Proposals should include the book title, author’s name, and a short (3-5 sentences) explanation of the book’s contribution to the field. Self-nominations are welcome, as are proposals for edited volumes.

We will consider books published in 2020 or later, that are published in English or Spanish.

Proposals will be considered on a rolling basis, but preference will be given to those submitted by 10 November 2021.

Committee on New Directions in Scholarship

Rehan Abeyratne (co-chair)

Maja Sahadzic (co-chair)

Antonia Baraggia

Berihun Gebeye

Aday Jiménez

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Published on October 20, 2021
Author:          Filed under: Developments

What’s New in Public Law

Eman Muhammad Rashwan, Ph.D. Candidate in the European Doctorate in Law & Economics (EDLE), Hamburg University, Germany; Assistant Lecturer of Public Law, Cairo University, Egypt.

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

Developments in Constitutional Courts

  1. The U.S. Supreme Court denied review to Boardman v. Inslee, a challenge to a Washington state law that shields the personal information of in-home care providers from public disclosure but allows the state to provide that data to the union that represents the providers.
  2. The U.S. Supreme Court declined review in Ortiz-Diaz v. United States, a challenge to Congress’ authority to criminalize cockfighting in Puerto Rico.
  3. The President of the European Court of Human Rights (ECtHR) appointed Ledi Bianku, an Albanian judge who has served at the ECtHR, to the Constitutional Court of Bosnia and Herzegovina due to disagreement between the appointing actors in the jurisdiction
  4. U.S. Supreme Court Justice Sonia Sotomayor stated that changes to the structure of the supreme court’s oral arguments have been made, in part, due research finding that female justices were more prone to being interrupted by male justices and attorneys.

In the News

  1. Main political parties in Spain agree on renewing Constitutional Court judges.
  2. A controversial ruling by Poland’s Constitutional Court on the relationship between Polish and EU law was published in the Official Gazette on Tuesday, meaning it is now legally binding. The court had ruled that elements of EU law violate the Polish Constitution, thereby giving national law precedence over EU law.
  3. The UN special envoy for the war-ravaged nation told the Security Council on Tuesday that talks on drafting a constitution for Syria will reconvene on October 18, 2021, in Geneva.
  4. The Egyptian Initiative for Personal Rights addressed an official letter to the President to request the Constitutional Court to interpret the legal clauses regulating the periods of pre-trial detention.
  5. On Monday, Tunisia’s President Qais Saied unveiled a new government with its Prime Minister Naglaa Bouden, the first female PM in the modern Arab World. Saied gave no hint, though, when he would relinquish his near-total control after seizing most powers in July this year.
  6. For the first time in its history, the Egyptian State Council appoints 98 female judges among its members in different judicial levels upon earlier instructions of the President.

New Scholarship

  1. Richard Albert, David Landau, Pietro Faraguna, and Šimon Drugda, I·CONnect-Clough Center 2020 Global Review of Constitutional Law (2021) (assembling detailed but relatively brief reports on constitutional developments and cases in 63 jurisdictions during the past calendar year authored by scholars, judges, and constitutional experts)
  2. Richard Schragger, The City in the Future of Federalism, in Cities in Federal Constitutional Theory (Forthcoming 2022) (First, considering the mismatch between cities’ increasing economic, political, and sociological importance and their relative lack of status in constitutional theory. Second, discussing the use and definition of the term “city.” And third, considering the various ways institutional designers might go about empowering the city)
  3. Eman M. Rashwan, The Price of Transitional Justice: A Cost‐Benefit Analysis of its Mechanisms in Post‐Revolution Phase, University of Bologna Law Review, Vol. 6, No. 1 (2021) (providing a cost-benefit analysis of the United Nations’ five mechanisms for nations to recover from conflict, applying these guidelines to democratic transitions after revolutions over autocratic regimes. The study suggests that TJ policies that take into account proportionality, a combination of different mechanisms, customization of the mechanisms upon the relevant case, and adopting these policies in the formality of basic or organic laws may be expected to have the most effective outcomes achieving the goals of TJ with the least legal complications)
  4. David S. Schwarz, The Committee of Style and the Federalist Constitution, Buffalo Law Review Vol. 70 (Forthcoming, 2022) (arguing that the Style doctrine is historically unfounded and obscuring the Constitution’s original meaning. Ultimately, the Style doctrine is an artifact of post-ratification developments tending to disregard elements of the more nationalistic constitutional vision of the Federalist Framers)
  5. Tonja Jacobi, Zoe Robinson, and Patrick Leslie, Comparative Exceptionalism? Strategy and Ideology in the High Court of Australia, The American Journal of Comparative Law (forthcoming 2021) (providing a rare comprehensive empirical assessment of oral argument outside the United States. Drawing on a novel dataset over 26 years (1995–2019), comprising nearly 1 million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, the authors compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable Western liberal democracy with a long tradition of judicial independence)
  6. Aymen Briki, Saied Grab of Power Between Popular Sovereignty and Constitutional Legitimacy: A Déjà-vu Tunisian Legitimization Dilemma, Journal of Middle Eastern Politics & Policy (2021) (Explaining the power struggle in Tunisia in the light of the latest constitutional crisis of July 25. The author first argues that the alliance between the Tunisian and French constitutionalism traps the Tunisian transition in the black hole of the French constitutional history, which threatens the country’s future. Second, he presents an analysis of the legitimization dilemma in the Tunisian constitutional history, pioneering the concept of Lāhu-Lāhu Legitimacy. He concludes with policy recommendations to overcome the current deadlock)

Calls for Papers and Announcements

  1. Centre for Constitutional Studies at the University of Alberta, Faculty of Law is holding an online webinar under the title “Language Rights’ Real Most Valuable Player – section 23 & Minority-Language Education” guesting Stéphanie Chouinard (Associate Professor, Queen’s U and Royal Military College) on October 19, 2021. Registration is open here.
  2. Thomas Perroud, Jean-Bernard Auby, and Paul Lignieres launched “Chemins Publics,” a blog that aims to provide elements of “decoding” and legal translation of political, economic, and social events with a significant effect on public action. It focuses on public law, be it national, European, global, or compared. The subjects it covers are organized around nine themes: Climate change/health crisis, Commons, Competition and public good, Governance & Democracy, The private (as a vector of the common good), European construction, Digital, Public ethics, Cities. Instructions for submissions are provided here.
  3. The ConstituGent and the Human Rights Centre (Ghent University) are pleased to announce an expert seminar on “intensity of review in public law” to be held on April 29, 2022, in Ghent. The deadline to submit abstracts is November 30, 2021.
  4. The Ludwig Boltzmann Institute of Fundamental and Human Rights, Vienna, Austria, announces a full-time researcher/project manager vacancy (m/f/d) in the Programme Line “Human Dignity and Public Security.” The deadline for applications is November 7, 2021. All interested persons are requested to send their CV and a motivation letter to:
  5. The Faculty of Law of the National University of Singapore (NUS Law) invites applications for Post-Doctoral Fellowship positions commencing in the academic year 2022-2023.
  6. The Faculty of Law at the University of Helsinki invites applications for the position of Professor/Associate Professor/Assistant Professor of international law. The closing date for applications is November 7, 2021.
  7. The International Studies Association (ISA) Innovative Pedagogy Planning Committee invites submission for its 2022 conference, which will be held in conjunction with the Annual Convention on March 29, 2022, in Nashville, TN, the U.S.

Elsewhere Online

  1. Tom Fieldhouse, Reforming elections: assessing the government’s proposals, The Constitution Unit Blog
  2. Ignatius Yordan Nugraha, ‘It’s just a prank, bro!’ ZB v. France and a dark humour that turned sour, Strasbourg Observers
  3. Eman Muhammad Rashwan, Religious Identity in the Constitution of Egypt: A Deliberate Ambiguity?, IACL-AIDC Blog
  4. Brian Bird, Rethinking Peace, Order, and Good Government in the Canadian Constitution, Double Aspect
  5. Ashwanee Budoo-Scholtz, Is Covid-19 bringing out the inequalities in the delivery of health services in Mauritius?, AfricLaw
  6. Maame A.S. Mensa-Bonsu, Forging Forward Introspectively as Ghana’s Constitution Turns Thirty, IACL-AIDC Blog
  7. Shaakirrah Sanders, Justices probe both sides in clash between confrontation clause and evidentiary rules, SCOTUSblog
  8. Jochen von Bernstorff, Afghanistan and Great Power Interventionism as Self-Defense, Verfassungsblog
  9. Jess Bravin, Supreme Court Quizzes Government Ban on ‘Black Site’ Testimony, The Wall Street Journal
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Published on October 18, 2021
Author:          Filed under: Developments

Symposium | Part IV | After the decision of the captured Polish Constitutional Tribunal: jurists trying to have and eat their cake

[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This is the fifth entry of the symposium, which was kindly organized by Antonia Baraggia and Giada Ragone. Their introduction is available here].

Maciej Krogel, European University Institute

The decision of the captured Polish Constitutional Tribunal (the CT) of 7 October 2021 concerning the interpretation of the EU Treaty law abounds in instant reactions by experts in the field, many of whom speak of the actual or incoming ‘legal Polexit.’ Instead of analysing in detail the circumstances, content and possible outcome of the case, this contribution aims at a self-reflective critique of the academic invoking, or in fact evoking, of the ‘exit option’. In this regard, I shall criticize scholarly reading of the recent decision as an element of the ‘legal Polexit’, as well as scholarly reinforcements of the idea of Polexit in the public discourse.

I argue that a threefold academic ambivalence accompanies not only the recent decision, but also more broadly the Polish ‘rule of law backsliding’ and the potential Polexit. First, we can identify contradiction and indecision at the level of the scholarly interpretation of constitutional law. Second, ambivalence also concerns our vision of legal expertise and its impact. The third and most general level of ambivalence comprises the responsibility of jurists for the survival of the European Union in the context of its actual aims. I will discuss these three levels after a brief summary of the decision’s sentence (while the decision’s written motives remain unpublished to date), which has so far sparked a lot of misinterpretations.

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Published on October 17, 2021
Author:          Filed under: Analysis

Symposium | Part III | Let’s take a deep breath: on the EU (and academic) reaction to the Polish Constitutional Tribunal’s ruling

[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This is the fourth entry of the symposium, which was kindly organized by Antonia Baraggia and Giada Ragone. Their introduction is available here].

Matteo Bonelli, Maastricht University

Breath in, breath out. Yes, the judgment of the (unlawfully composed) Polish Constitutional Tribunal is a serious challenge to the European Union’s legal system and to the principle of primacy of EU law. No, Poland has not activated the process of withdrawal from the EU under Article 50 TEU. Yes, EU institutions will need to take robust action in response to the ruling. No, this will not be the end of the EU as we know it, nor of Poland’s membership in the EU project. Let’s take another deep breath and briefly reflect on these main points in the next paragraphs.

On why this is serious

Of course, the judgment of the Tribunal is not the first instance in which a constitutional or supreme court rejects the version of EU law primacy affirmed by the CJEU: many other courts in Europe have also qualified the impact and application of the principle of primacy in their domestic constitutional orders, and the Polish Constitutional Tribunal itself, well before becoming a ‘captured court’ in the hands of the political actors, had already established (significant) limits to primacy in its 2005 ruling on EU accession. And of course, the Tribunal was not either the first court to explicitly reject the authority of the Court of Justice and disobey a ruling of the latter: the Czech Constitutional Court in Landtova, the Danish Supreme Court in Ajos, and most famously and most recently, the German Bundesverfassungsgericht in the PSPP/Weiss case have done so in the past.

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Published on October 17, 2021
Author:          Filed under: Analysis

Symposium | Part II | From Constitutional Pluralism to Constitutional Solipsism

[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This is the third entry of the symposium, which was kindly organized by Antonia Baraggia and Giada Ragone. Their introduction is available here].

Julian Scholtes, Newcastle University

On Thursday, 7 October 2021, the Polish Constitutional Tribunal, which is politically captured by the governing parties and can no longer be considered independent, issued a judgment holding certain interpretations of core articles of the Treaty on European Union to violate the Polish constitution. At the core of the judgment lies an assertion of the supremacy of the Polish constitution and the declaration of the CJEU’s recent rule of law jurisprudence as in violation of that constitution.

In this blogpost, I will argue that this judgment clearly turns its back on the ‘constitutional pluralism’ the Polish government claims to be engaged in. Rather than constitutional pluralism, this judgment is an expression of constitutional solipsism. It abuses constitutional pluralism and its conceptual arsenal as a means of disengaging from, rather than engaging with, the EU constitutional order. I will then consider the implications of the judgment for constitutional pluralism and address its critiques, which have rekindled in the light of the judgment. While the judgment shows that the past idealisations of constitutional pluralism no longer hold, the disordered reality that constitutional pluralism tries to make sense of is likely to persist and will continue to have to be dealt with.

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Published on October 16, 2021
Author:          Filed under: Analysis

Symposium | Part I | How to unfriend the EU in Poland

[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This is the second entry of the symposium, which was kindly organized by Antonia Baraggia and Giada Ragone. Their introduction is available here].

Agnieszka Bień-Kacała, Nicolaus Copernicus University, Toruń (Poland)

More than thirty years ago, in 1989, when Poles decided to start the democratic transition, a nationwide wish emerged to make friends with Western European countries. The wish was based not only on economic grounds, but also on a longing for being part of a community of values such as democracy, the rule of law and protection of human rights. The wish first materialized itself in 1991 as membership of the Council of Europe. Then, in 1994, Poland sent a request to the EU to become a friend of countries sharing the same values. On the basis of the 1997 Constitution, with a democratic state ruled by law clause and human rights protection, Poland showed honest intentions. The request was accepted in 2004.

Since then, the friendship had flourished. The Constitutional Tribunal (CT, Tribunal), up until 2021, decided on the EU and domestic law related cases just a couple of times. Still, in each of them, it established and upheld that friendship. The EU ‘friendly interpretation’ was recognized by the CT in 2005 in the case of the accession Treaty (K 18/04) and applied the same year in the case of EAW (P 1/05). Poland chose to amend its Constitution when the outcome of the EU friendly interpretation led to the conclusion that the EAW as a legal institution was not conformed with the Polish Constitution. Another example of friendliness is connected with the EU citizenship. Again in 2005, norms of the Constitution on active electoral rights were enriched by allocation of the rights to the EU citizens based on the EU law (K 15/04). As a result of the CT decision, that applied the EU friendly interpretation, amendments to the Constitution were not necessary. In 2010, applying the constitutional pacta sunt servanda rule and noticing the particular procedure of the Lisbon Treaty ratification in a referendum, the CT recognized the unique position of the Treaty, based on the highest standard of presumption of conformity with the Constitution (K 32/09). According to the CT, those questioning the Treaty’s conformity with the Constitution should justify a motion with close attention. As long as the motion is not justified, the CT decides that the Treaty conforms with the Constitution and it is thus safeguarded by the presumption. Finally, in 2011, the CT found its competence to check whether secondary EU law is in conformity with the Constitution within constitutional complaint procedure and established the rules for dealing with the non-conformity situation to safeguard? the Constitution and the EU law (SK 45/09). Almost everybody thought that the EU-Polish friendship would never be threatened.

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Published on October 16, 2021
Author:          Filed under: Analysis