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I·CONnect

Blog of the International Journal of Constitutional Law

Special Undergraduate Series–The Misplaced Objections Against the Transgender Persons (Protection of Rights) Bill, 2019 (India)


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


–Anmol Jain, B.A., LL.B. Student (Hons.), National Law University, Jodhpur, India

Last month, the Lower House of the Indian Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019 to ‘provide for protection of rights of transgender persons and their welfare.’ This comes after a series of efforts by the legislature in the form of multiple lapsed bills and the long journey that the judiciary has traveled to establish the rights of transgender and inter-sex people. However, the Bill has faced multi-pronged criticism from civil society. In this post, I seek to counter such misplaced criticisms–a post that coincides with the first anniversary of the Indian Supreme Court’s historic decision decriminalizing same-sex relationships.

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Published on September 15, 2019
Author:          Filed under: Developments
 

Call for Papers–European Journal of International Law–Inequalities in International Law: The EJIL Symposium 2021


International law in the UN Charter, the Universal Declaration of Human Rights, and other foundational treaties and conventions of the multilateral system entails a premise (and promise) of equal rights, the right to self-determination, and the fundamental equality of human beings. However, during the last 10 years and in the wake of the 2008 financial crisis inequality has once again moved to the centre of attention of a number of disciplines, most noteworthy perhaps economics, as well as politics.

We issue this Call for Papers to invite submissions reflecting on the ways that international law – its practice and scholarship – relates to inequality. We chose the plural – inequalities – as we do not intend, from the outset, to narrow the Symposium’s scope to particular forms or actualizations of inequality. Inequalities span access to, or enjoyment of, public resources, and/or state duties to ensure equalities of opportunity regardless of gender, religion, nationality, birth, political or other ideological convictions, status, among others. While the discussion on inequality and international law has been historically concerned with North/South disparities and the quest for equal distribution among states, recent decades have seen a rise in inequality within countries in affluent and weaker economies. Other characteristics of inequality today include the extreme concentration of income at the top and the shrinkage of the middle class in advanced economies. Inequalities persist also in the external relationships of states with other actors (state and non-state) in the international system – as enduring legacies of colonialism in economic development and in post-conflict peacebuilding; as ongoing asymmetries in the efforts to achieve accountability and international justice for victims of internationally wrongful acts; as well as through contested modes of governance over the world’s environment, global commons, and natural resources.  

The interplay between international law and inequality and the special trends related to inequality today invite further research and reflection. Developments such as the rising inequality within countries, the possible decline in inter-country inequality alongside economic growth in emerging market and developing economies challenge our existing legal framing and approaches to the problem of inequality and call for further analysis of the relationship between these trends and international legal principles, doctrines and institutions.

Thus, we invite contributions that conceptualize and problematize the notion of inequality and that examine its doctrinal significance and its usefulness and appropriateness as an analytical concept or as a common concern in international law. We further call for papers that address questions regarding empirical, quantitative and qualitative assessments of inequality within and across societies and states and that assess international law and institutions as cause as well as remedy to inequality. We welcome doctrinal, historiographical, genealogical and sociological engagements with past and present regimes, initiatives, institutions, and instruments and their relationship with inequality as well as biographical engagements with scholars and practitioners who in their work paid particular attention to the question of inequality in international law.

Finally, we welcome engagements with our responsibility as international lawyers. How do we practise international law ethically in light of persisting material inequality, racism and sexism in the world, in our societies, governments and workplaces. What visions or utopias might guide and invigorate our practices? To what extent can we identify persistent inequalities that also suffuse the ‘invisible college’ of international lawyers, and what can be done within international law from both academic inquiry and norms of professional practice?

The call is not restricted to a particular subfield of international law. We would be happy to receive proposals from all fields of international law, including the following themes:

Human Rights: Papers may interrogate the capacity of (social and economic) rights to remedy inequality, or engage with the thesis that (particular conceptions of) human rights detract from social justice concerns.

International Economic Law: Papers may address the question whether international economic law should and how it might allow for global redistribution or contribute to a transformation of political economy that reduces material inequality instead of enhancing it. Further clarification is needed how international economic law (together with transnational and national law) furthers the accumulation of wealth and capital as well as the concentration of corporate power. Contributions may assess calls for a new NIEO or a new Bretton Woods and evaluate them in light of historical experience and in the context of present geopolitical developments. Contributions may also confront the changing face of international economic law – particularly its deepening intersections with human rights law, international environmental law, climate law, among others – and assess how the international economic system engages, perpetuates, or redresses both latent and patent inequalities faced by individuals, groups, peoples, small nations such as low-lying island states, among others.

Sustainable Development Goals: 10 years to go until, by 2030, the SDGs shall be achieved, it may be a good time for an evaluation of their impact so far – not only as concerns the realization of targets, in particular of SDG 10 “Reduced Inequalities” – but also the effects of this governance framework on international law doctrine and the practice of governmental and non-governmental institutions. Can the polycentric approach to SDG governance truly address inequalities, when SDGs are articulated in the grey areas between hard law and soft law?

Migration Law: Given that extreme poverty and global inequality in living conditions are major reasons for global migration, does migration law adequately take account of these causes? Current government policies of exclusion and deterrence not only raise questions as to their conformity with international law, but call into doubt foundational normative justifications of global and national political order. Are instruments such as the Global Compact on Migration and the New York Declaration sufficient to eventually harden into multilateral or regional treaties recognizing shared norms in addressing both protections for migrants as well as the pressures on and opportunities open for receiving populations?

Climate Law: From its inception climate change law has had and still has to come to terms with various inequalities – including inequalities as concerns individual states’ contributions to climate change as well as inequalities as to how communities will be affected by climate change. How does climate law address these inequalities; how should it address them in order not only to effectively contain climate change, but to do so in an equitable manner?

After ‘After Hegemony’: The emergence of  Brazil, Russia, India, China, and South Africa (the BRICS) as a new hub of power in international relations, destabilizing processes in Europe, most evident in Brexit, and the decline of the US as the world’s hegemonic power have triggered new approaches to international law making in recent years.  These new approaches include a shift away from multilateralism toward bilateralism, regionalism and other forms of global governance. These processes are related to inequality in their cause and effects: Can we tie the growing unrest over inequality among different political groups worldwide to the turn away from existing international legal institutions? How are these ideological sensibilities and new forms of mobilization related to new modalities of international regulation? How will these new modalities influence global inequality in the future? 

We are issuing here a Call for Papers. International lawyers from practice and academia as well as scholars from related disciplines are invited to send an abstract of 500 words. Abstracts should not only set out the prospective papers for inclusion in the symposium; they should also concisely formulate the questions addressed as well as the method and materials employed in the proposed research. We will accept proposals for research papers of 10-12K words as well as shorter Think Pieces of 5-7K words.

The deadline for the abstracts is 1 November 2019. Draft papers of those abstracts selected by a committee composed of members of the Editorial Boards of EJIL will be expected by 29 May 2020. We are considering a workshop in June 2020, at a location to be determined, to discuss the drafts. Funding towards the travel expenses of some participants may be available. Final drafts will be expected by 2 November 2020.  Abstracts, accompanied by a recent CV in pdf format, are to be sent to EJIL’s Managing Editor at anny.bremner {at} eui(.)eu by 1 November 2019.

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Published on September 14, 2019
Author:          Filed under: Developments
 

Showcase–New Directions in Administrative Law Theory: The Prerogative, The Third Source, and Administrative Law Theory

[Editor’s Note: This is the fourth entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]


–Max Harris, University of Oxford

Administrative lawyers and administrative law theorists ignore the prerogative and the third source at their peril. Wherever the exact boundaries of administrative law theory are drawn, the prerogative and third source are in principle open to judicial review, and so an understanding of the prerogative and the third source is tangentially relevant to understanding judicial review, which is unquestionably part of administrative law.

More importantly, though, ignoring the relationship between administrative law and the prerogative and third source may result in important doctrinal and theoretical questions remaining unanswered. For example, in ordinary ‘illegality’ cases, the focus is on whether actions of the executive are unlawful because they go beyond powers granted to the executive by statute. But courts have repeatedly failed to consider whether the prerogative and third source might provide alternative bases for authorisation of executive action where a statute does not authorise executive action. It is not implausible to think that had courts and scholars paid greater attention to the relationship between administrative law and the prerogative and third source, there may well have been more consideration of this question.

There is, therefore, a need for administrative lawyers and administrative law theorists to have a sound understanding of the prerogative and the third source.

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Published on September 13, 2019
Author:          Filed under: Analysis
 

Showcase–New Directions in Administrative Law Theory: Maitland’s Challenge


[Editor’s Note: This is the third entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]


–Jacob Weinrib, Queen’s Faculty of Law

In the final years of the nineteenth century, FW Maitland looked to “the real practical working of English public law”[1] and observed a transformation: “The new wants of a new age have been met in a new manner.”[2]  The transformation consisted in the legislative delegation of an ever-increasing array of powers to an ever-increasing array of agencies.   In this new age, Maitland insisted that any adequate theory of public law would have to offer a way of thinking about the kinds of functions that administrative agencies should perform.   Because he had no such theory to offer, he apologized to his students for his “very poor lecture” on administrative law, and admonished them not to overlook the increasing significance of administrative agencies and their functions even “though we can do little more than barely state their existence.”[3]

If we are to move beyond the mere description of the functions that administrative agencies perform, we must come to grips with a series of fundamental questions raised by the transformation that Maitland observed.  What is the connection between public law, with its concern for the relationship between sovereign and subject, and the various functions that administrative agencies perform?  Are these functions to be regarded simply as the residue of past legislative decisions?  Or do these functions respond to some underlying (set of) moral problem(s) that public law presents?  In short, what is the moral significance of administrative functions?  These questions form Maitland’s challenge.  This challenge is made all the more pressing by, on the one hand, the proliferation of administrative functions that has occurred since Maitland’s day and, on the other, persistent calls to roll back the administrative state.         

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Published on September 12, 2019
Author:          Filed under: Analysis
 

Showcase–New Directions in Administrative Law Theory: Systematically Studying Review of Reason-Giving


[Editor’s Note: This is the second entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]


–Joanna Bell, University of Cambridge

In a thought-provoking blogpost published earlier this year, Richard Kirkham & Elizabeth O’Loughlin made a case for greater systematic study of administrative law issues. Academic commentary on administrative law, the authors argued, often focuses on the subject’s normative dimensions. For Kirkham & O’Loughlin, however, normative research is too often ‘based on highly selective, senior court centred and sometimes inaccurate accounts of real practice.’ The solution, for the authors, lies in ‘greater take-up of deep systematic studies into discrete areas of judicial decision-making.’ There is, in other words, a need for more in-depth analysis of how administrative law issues are dealt with by the courts in particular contexts. The aim is to build up understanding of the day-to-day realities of administrative law adjudication so that commentary more broadly can be better informed. 

This short blog post has two aims. The first is to discuss an example which helps to bolster Kirkham & O’Loughlin’s argument for systematic study of administrative law issues. The second is to offer some reflections on the difficulties of undertaking research of this kind.

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Published on September 11, 2019
Author:          Filed under: Analysis
 

Showcase–New Directions in Administrative Law Theory: Administrative Law and Democracy


[Editor’s Note: This is the first entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]


–Hasan Dindjer, University of Oxford

Decisions by public authorities are often thought to possess a democratic imprimatur which properly insulates them from certain kinds of interference by courts. Executive and administrative agencies are frequently thought of, along with the legislature, as an elected or political branch of government. Courts justify deference to them on the grounds that they ‘bear democratic responsibility for […] decisions’[1]  or that ‘in a democracy a person charged with making [certain] assessments […] should be politically responsible for them.’[2]

In the paper on which this piece is based, I ask what kind of democratic imprimatur administrative decision-makers in fact possess, and what implications this might have for courts.

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Published on September 10, 2019
Author:          Filed under: Analysis
 

What’s New in Public Law

Davide Bacis, PhD Student in Constitutional Law, University of Pavia (Italy)

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 High Court of the UK ruled that the use of facial recognition technologies by public authorities does not amount to a violation of the right to privacy.
  2. The Supreme Court of the Philippines dismissed a petition aimed at the legalization of same-sex marriages.
  3. The Armenian Constitutional Court found a violation of the right to personal freedom in the arrest of former President Kocharyan.
  4. The High Court of the UK rejected the claim that Parliament’s suspension was an abuse of power.

In the News

  1. The Court of Session in Edinburgh has declined to rule on the legitimacy of the suspension of the UK Parliament.
  2. The Supreme Court of North Carolina ruled that partisan gerrymandering violates the free election clause of the State Constitution.
  3. The new Italian Government, headed by Prof. Giuseppe Conte, has been sworn in by the President of the Republic.
  4. The California state legislature approved new vaccine legislation reducing the space for medical exemptions that now awaits the Governor’s signature.
  5. Paolo Gentiloni, former President of Council of the Italian government, has been officially nominated to the EU Commission.
  6. The UK Parliament passed a bill to stop a no-deal Brexit. However, unless the Parliament makes progress on a withdrawal agreement, the UK will leave the EU by default on October 31.
  7. The Government of Australia is looking to modify legislation on data sharing and data protection, removing the fundamental element of consent.

New Scholarship

  1. Richard Albert, Antonia Baraggia and Cristina Fasone (eds.), Constitutional Reform of National Legislatures. Bicameralism under Pressure (2019) (offering a comparative, historical and empirical analysis on the role and the efficiency of second chambers and the challenges bicameralism is currently facing)
  2. Kermit Roosevelt and Heath Khan, McCulloch v. Marbury, 34 Constitutional Commentary (2019) (dealing with the origin of judicial review within the US system and comparing two of the earliest decisions of the US Supreme Court on the matter)
  3. Jeanne M. Woods and Sarah Lambert, The Collapse of Democracy: The Flint Water Crisis from a Human Rights Perspective, 20 Loyola Journal of Public Interest Law (2019) (retracing the history of violations that were at the core of the water crisis and thus caused serious violations of human rights)
  4. Jayanth K. Krishnan, Bhopal in the Federal Courts: How Indian Victims Failed to Get Justice in the United States, Rutgers University Law Review (forthcoming 2020) (retracing the judicial history of the victims of the gas leak happened in Bhopal back in the 1980s and offering a critical overview of the relevant case law in the US federal courts).
  5. Ding Qi, The Power of the Supreme People’s Court. Reconceptualizing Judicial Power in Contemporary China (2019) (exploring recent developments within the case law of the highest court of China)
  6. Kevin Fandl, Presidential Power to Protect Dreamers: Abusive or Proper?, 36 Yale Law & Policy Review (2019) (arguing that the attempts of the administration to end the DACA program amounts to a flawed vision of the traditional relationship between the executive and the legislative branches)
  7. Stephen Gardbaum, Uncharismatic Revolutionary Constitutionalism, forthcoming in Richard Albert ed., Revolutionary Constitutionalism: Law, Legitimacy, Power (2020) (identifying the spontaneous or leaderless constitutionalist revolution as a distinct type and typically facing a different legitimacy problem compared with the more heralded one engineered by charismatic leadership)

Call for Papers and Announcements

  1. The Stanford Law School welcomes submissions for the “Borders: Laws of Physical and Conceptual Space” symposium, to be held at Stanford Law School on March 6-7, 2020. Abstracts of no more than 300 words and a one-paragraph bio must be submitted by September 30, 2019.
  2. The Max Planck Institute for Comparative Public Law and International Law welcomes submissions for the workshop on “Contested Norms of International Peace and Security Law”, to be held in Heidelberg on May 7-8, 2020. Abstracts no longer than 500 words must be submitted by November 24, 2019.
  3. The European University Institute welcomes submissions for the workshop on “Sociological Perspectives on International Economic Law and Human Rights Law”, to be held in Florence on May 8-9, 2020. Abstracts of maximum 300 words alongside a CV must be submitted by October 15, 2019.
  4. The Cambridge International Law Journal is inviting submissions for its ninth volume. Articles submitted by September 30, 2019, will be considered for the first issue of the ninth volume.
  5. The Nordic Journal of European Law is welcoming submissions relating to the topic of the rule of law for its 2019(2) issue. Papers must be submitted by September 27, 2019.
  6. The Review of Constitutional Studies/Revue d’études constitutionelles is now accepting submissions for its 24(2) and 25(1) issues. Papers must be submitted by November 1, 2019.

Elsewhere Online

  1. Alexandra Sinclair and Joe Tomlinson, Eliminating Effective Scrutiny: Prorogation, No Deal Brexit, and Statutory Instruments, UK Constitutional Law Blog
  2. Jacob Rowbottom, Political Purposes and the Prorogation of Parliament, UK Constitutional Law Blog
  3. Marc Schack, Did the US Stay “Well Below the Threshold of War” With its June Cyberattack on Iran?, EJIL: Talk!
  4. Joelle Grogan, The Next Few Day Will Reveal where the Heart of Power Lies in the British Constitution, Verfassungsblog
  5. Meg Russell, Alan Renwick and Robert Hazell, This prorogation is improper: the government should reverse it, The Constitution Unit
  6. Sàndor Lénárd, Modern technologies facilitate the genesis of the “surveillance state” – conversation with Professor Davide Gray, precedens.mandiner
  7. M. Detmold, The Proper Denial of Royal Assent, UK Constitutional Law Blog
  8. Pierre de Vos, On Freedom of Religion and the Right to Question Religious Beliefs and Practices, Constitutionally Speaking
  9. Maximilian Steinbeis, A Matter of Confidence, Verfassungsblog
  10. Laurent Pech, Dimitry Kochenov, Barbara Grabowska-Moroz, Joelle Grogan, The Commission’s Rule of Law Blueprint for Action: A Missed Opportunity to Fully Confront Legal Hooliganism, Verfassungsblog
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Published on September 9, 2019
Author:          Filed under: Developments
 

Showcase–New Directions in Administrative Law Theory


[Editor’s Note: In this “Showcase,” we feature a series of posts introducing new ideas in theoretical approaches to administrative law. These ideas emerged from papers presented in a workshop at the University of Oxford organized by Thomas Adams, Hasan Dindjer and Adam Perry. This Showcase will feature eight sets of new ideas. In this post, the workshop organizers introduce the Showcase and its contributors. We thank the organizers for bringing these new ideas to our readers here at I-CONnect.]


Thomas Adams, University of Oxford, Hasan Dindjer, University of Oxford, and Adam Perry, University of Oxford

Administrative law theory traditionally takes a back seat to constitutional law theory. In the past several years, administrative law theory has become a more active area, with new scholars taking the subject in new directions. The best of this recent work is rigorous, analytical, interdisciplinary, and deeply engaged with legal doctrine.

We think this development is exciting, and so we gathered together a group of early-career scholars together in Oxford in July 2019 to present and discuss works in progress in the theory of administrative law. The authors were:

Joanna Bell (Cambridge)
Hasan Dindjer (Oxford)
Jacob Weinrib (Queen’s)
Max Harris (Oxford)
Adam Perry (Oxford)
Sarah Nason (Prifysgol Bangor University)
Farrah Ahmed (University of Melbourne)
Jason Allen (Humboldt Universitat zu Berlin)

The papers covered a variety of topics: the questionable democratic credentials of administrative officials, the potential of automated content analysis, the surprising ubiquity of reason-giving, the sources of executive power, the virtues of arbitrary power, the unity of the grounds of review, and the very nature and morality of administrative law. The posts in the rest of this series summarise the authors’ contributions.

Suggested Citation: Thomas Adams, Hasan Dindjer and Adam Perry, Showcase: New Directions in Administrative Law Theory, Int’l J. Const. L. Blog, Sept. 8, 2019, at http://www.iconnectblog.com/2019/09/showcase-new-directions-in-administrative-law-theory

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Published on September 8, 2019
Author:          Filed under: Analysis
 

Announcement–New Book: “Constitutional Amendments: Making, Breaking, and Changing Constitutions” (OUP 2019)


Richard Albert, William Stamps Farish Professor in Law and Professor of Government, The University of Texas at Austin

Last month, Oxford University Press (OUP) published my book on “Constitutional Amendments: Making, Breaking, and Changing Constitutions.” It is available from OUP here at a 30% discount with this promotion code: ALAUTHC4.

Here is a short description of the book:

Constitutional Amendments: Making, Breaking, and Changing Constitutions is both a roadmap for navigating the intellectual universe of constitutional amendments and a blueprint for building and improving the rules of constitutional change. Drawing from dozens of constitutions in every region of the world, this book blends theory with practice to answer two all-important questions: what is an amendment and how should constitutional designers structure the procedures of constitutional change? The first matters now more than ever. Reformers are exploiting the rules of constitutional amendment, testing the limits of legal constraint, undermining the norms of democratic government, and flouting the constitution as written to create entirely new constitutions that masquerade as ordinary amendments. The second question is central to the performance and endurance of constitutions. Constitutional designers today have virtually no resources to guide them in constructing the rules of amendment, and scholars do not have a clear portrait of the significance of amendment rules in the project of constitutionalism. This book shows that no part of a constitution is more important than the procedures we use change it. Amendment rules open a window into the soul of a constitution, exposing its deepest vulnerabilities and revealing its greatest strengths. The codification of amendment rules often at the end of the text proves that last is not always least.

And here are early reviews from Bruce Ackerman (Yale), Tom Ginsburg (Chicago), Ran Hirschl (Toronto), Vicki Jackson (Harvard) and Mark Tushnet (Harvard):

“This book provides essential insights into the current crisis of liberal democracy. Richard Albert not only explores how rising autocrats throughout the world have manipulated amendment rules to destroy the fundamental freedoms their constitutions aim to protect. He also advances insightful reforms that would make it far harder for liberal democracies to self-destruct in the future.”—Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University

“Provisions on amendment are arguably the most important rules in any constitution, for they condition the operation of all the others. Richard Albert tackles the topic with considerable creativity and insight, and his framework is sure to become the touchstone reference on the topic for decades to come. Magnificent.”—Tom Ginsburg, Leo Spitz Professor of International Law and Professor of Political Science, University of Chicago

“A masterly comparative account of constitutional amendments in theory and practice. At the same time a status quaestionis and an agenda-setter for new investigation, Richard Albert’s Constitutional Amendments is destined to become a common reference in any serious discussion of constitutional design and constitutional change more generally.”—Ran Hirschl, Professor of Political Science and Law, University of Toronto; Co-President 2015-2018, International Society of Public Law

“This erudite book is provocative and thought-provoking, reflecting the author’s broad and deep knowledge about constitutions’ amending provisions and practices around the world. It is a work not to be missed by those interested in new scholarly thinking about how constitutions change over time.”—Vicki Jackson, Thurgood Marshall Professor of Constitutional Law, Harvard University

“In this conceptually and geographically wide-ranging work, Richard Albert demonstrates why the topic of constitutional amendment has become central in the contemporary study of comparative constitutional law. This exceptionally important book should give scholars in the field ideas that they must incorporate into their work, whatever their specific concerns are.”—Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard University

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Published on September 7, 2019
Author:          Filed under: Developments
 

Deadline: September 15–Call for Papers–Symposium on “When is a Constitutional Amendment Illegitimate?”–National University of Singapore–March 19-20, 2020


The National University of Singapore Faculty of Law
Centre for Asian Legal Studies


in collaboration with the

The University of Texas at Austin

invite submissions for

Symposium on “When is a Constitutional Amendment Illegitimate?”

The National University of Singapore (NUS)
Faculty of Law
March 19-20, 2020

Convened by

Jaclyn Neo (NUS)
Kevin Tan (NUS)
Richard Albert (Texas)

Submissions are invited from early-career scholars—including post-doctoral fellows, graduate students, and faculty whose full time appointment was no longer than five years ago—for a symposium on “When is a Constitutional Amendment Illegitimate?,” a foundational question at the center of the study of constitutional change.

Convened by Jaclyn Neo (NUS), Kevin Tan (NUS), and Richard Albert (Texas), this symposium will be held on the historic campus of The National University of Singapore Faculty of Law on March 19-20, 2020. It is the intention of the conveners to publish a selection of papers in a peer-reviewed edited volume with an academic press.

Subject-Matter of the Symposium

There has recently been an explosion of scholarship interrogating whether constitutional amendments can be unconstitutional. This is not just an academic inquiry—courts all over the world in Africa, Asia, Europe, and the Americas have engaged with and, at times, applied the doctrine of unconstitutional constitutional amendment to check political actors seeking substantially to change the constitution. This area of inquiry raises critical questions about the relationship between legality and legitimacy. Indeed, a central pillar of the unconstitutional constitutional amendment doctrine is that a procedurally valid amendment is nonetheless illegitimate. Constitutionality, in these cases, therefore becomes tied to ideas about legitimacy.

However, legitimacy is a complex and multidimensional concept. Fallon, for instance, points to three forms of legitimacy: legal, sociological, and moral. Legitimacy has also been conceptualized as rightfulness, appropriateness, and more. While legality is only one criterion for legitimacy, it is by no means the only one. For this reason, one may even envisage an illegal constitutional amendment as legitimate. The Ackermanian theory of constitutional moments suggests the possibility of constitutional amendment through formally illegal procedures that are legitimated by overwhelming expressions of popular approval. Along the same lines, the Fifth French Republic has lived its own encounter with illegality—the 1962 referendum on direct presidential election using Article 11 instead of Article 89 to amend the Constitution—in the face of which the Constitutional Council declined to exercise jurisdiction to evaluate the claim that the amendment had been illegal.

In addition, one may conceptualize certain amendments as legitimate by one criterion and illegitimate by another. Besides the possible dissonance among the legal, sociological, and moral dimensions of legitimacy, it is also possible that legitimacy depends on which theory or vision of the constitution to which one is committed. Accordingly, the question of legitimacy of constitutional amendments is one that bears closer examination.

This Symposium invites submissions that go beyond current inquiries focused on the judicial doctrine of unconstitutional constitutional amendment to explore other questions and controversies that the practice of constitutional amendment raises for the concept of legitimacy. Many questions present themselves for inquiry. For instance, where reformers have turned to formally illegal procedures to amend the constitution, how have they been able to validate these amendments as legitimate, or not? How have competing conceptions of legitimacy of constitutional amendments been resolved or otherwise? What do we mean by legitimacy and how is it measured—and by whom—in your jurisdiction(s) under study.

Comparative studies are welcome, as are single-jurisdiction studies. Preference will be given to submissions that do not take a court-centric approach, that deprioritize the well-known American and French cases, and that shed new and needed light on this subject.

Structure of the Symposium

This symposium will feature a small number of papers. Each paper will be the focus on an intensive workshop involving all symposium participants. The purpose of this structure of the program is to devote significant time to each submission in order to prepare it for submission for peer-review and ultimately for publication. All symposium participants will have read all submissions prior to the program in order to facilitate a robust and constructive discussion on each submission.

Eligibility

Submissions are invited from various disciplines (including history, law, political science, sociology). Submissions are welcomed on any subject related to the subject-matter of the program identified above. Submissions may take comparative, doctrinal, empirical, historical, philosophical, sociological, theoretical or other perspectives.

Submission Instructions

Interested scholars should submit a title and abstract no longer than 500 words by September 15, 2019 via this link. The abstract will form the basis of the pre-conference draft (no longer than 10,000 words (all notes included)) to be submitted by 4pm, New York time, on March 1, 2020 in both Word and PDF formats.

Notification

Successful applicants will be notified no later than October 31, 2019.

Costs

There is no cost to participate in this symposium. Group meals will be generously provided by organizers. Limited funding may be available for successful participants.

Questions

Please direct inquiries in connection with this Symposium to:

Jaclyn L. Neo (NUS): jaclyn.neo@nus.edu.sg

Kevin YL Tan (NUS): lawtylk@nus.edu.sg

Richard Albert (Texas): richard.albert@law.utexas.edu

About the Convenors

Richard Albert is the William Stamps Farish Professor in Law and Professor of Government at the University of Texas at Austin. Author of Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019), his scholarship on constitutional change has been translated into Chinese, French, Hungarian, Portuguese, Russian, and Spanish. He has held visiting faculty appointments at Yale University, the University of Toronto, the Externado University of Colombia, and the Interdisciplinary Center Herzliya. He holds law and political science degrees from Yale, Oxford, and Harvard and is a former law clerk to the Chief Justice of Canada, where he was born and raised.

Jaclyn L. Neo is an Associate Professor of Law at the National University of Singapore (NUS). She is a graduate of NUS Faculty of Law, and Yale Law School. She is the sole editor of Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2017) and co-editor of Pluralist Constitutions in Southeast Asia (Hart, 2019), and Regulating Religion in Asia: Norms, Modes, and  Challenges (CUP 2019). Jaclyn has also served as a guest editor for the Singapore Academy of Law Journal, the Journal of Law, Religion, and State, the Journal of International and Comparative Law, and the Journal of Comparative Law. Her work has been cited by the Singapore courts and the Supreme Court of India. Jaclyn has held visiting faculty appointments at the Cluster of Excellence ‘The Formation of Normative Orders’ at Frankfurt University, University of Münster, University of Trento, Melbourne Law School, and will be appointed to the Princeton faculty for the fall semester of 2019.  

Kevin YL Tan specializes in Constitutional and Administrative Law, International Law and International Human Rights. He graduated with an LLB (Hons) from the Faculty of Law at the National University of Singapore and holds an LLM and JSD from the Yale Law School. He currently holds Adjunct Professorships at the Faculty of Law, National University of Singapore (NUS) as well as at the S Rajaratnam School of International Studies, Nanyang Technological University (NTU) where he teaches constitutional law, international law and international human rights. He has published widely in his areas of specialization and has written and edited over 40 books on the law, history and politics of Singapore. From 1998-2000, he was Chief Editor of the Singapore Journal of International and Comparative Law and from 2000-2003 was the journal’s Adjunct Editor. He has also served previously as Editor-in-Chief of the Asian Yearbook of International Law (2010–2017) and is currently Executive Editor of the Asian Journal of Comparative Law (since 2016) and Editorial Board member of the Korean Journal of International and Comparative Law (since 2013). Kevin also serves on the Board of Governors of the Human Rights Resource Centre (HRRC).

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Published on September 6, 2019
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