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I·CONnect

Blog of the International Journal of Constitutional Law

Self-Determination without Democracy: The Curious Case of the Horn of 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.]

What course the postcolonial state and its people should take to achieve liberation and self-determination, in the full sense of these terms, has been one of the big questions that has confronted Africans since the dawn of colonialism. While this question seems to be answered in much of Africa, it is still an outstanding issue in the Horn of Africa. There were two major ways of constituting self-determination after independence. One was by the complete redrawing of the colonial borders—either going back to precolonial times or forming a new political geography based on African terms and African values. The justification for this was that the colonial state – illegitimate and alien at its core by its very nature, form, and substance – is impossible to democratize without completely dismantling it.[1] The second was by adopting a theory of government within the existing borders, which not only would redeem the illegitimate origin and logic of the state but also could enable it to serve the needs and interests of its people. This was the most widely accepted route to full liberation throughout the continent not the least due to pragmatic, ideational, and international realities.

Accordingly, the territorial borders, peoples, and sovereignties of the colonial states were reaffirmed, while the theory of government has been contested. But the Horn of Africa has taken a slightly different route in constituting self-determination. Here, the contestation is not limited to the (liberal) theory of government, but also has extended to territorial borders, peoples, and sovereignties. It is not only the theory of government, but the state as such has been contested more than any other region on the continent. 

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Published on July 28, 2021
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Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality | Part 4 | Tension and Legality: Response to Commentators

Margit Cohn, Hebrew University of Jerusalem Faculty of Law

While writing this book, and after it was published, I hoped that academics would be interested in my work, to an extent that they would not only read the book but, hopefully, both understand its main points, and be driven to comment on some of the points made. The panel held during the 2021 ICON-S Mundo Conference and its fruit, this series of blogs, shows, that my hopes were answered. I cannot thank the panel members enough for their important contributions at the conference and in this blog series. All I can do for now, beyond sending a message of appreciation, is to briefly address some of the points made. Criticism is just as important as praise; all comments made have enriched my understanding of the ways I, and my colleagues, current and future, can further develop the study of the executive branch. So, I first set aside the praise (difficult as this may be for a human being such as myself) and focus on the panelists’ comments and suggestions.

Professor Weill has presented a well-rounded and concise description of the book, as has Dr Conor Casey; both set an excellent base-point for further exploration.

Law and politics: all commentators in this blog series are aware of the intricacies of the continuous interaction between these two spheres. I fully agree: this was an interdisciplinary exercise, the only type of scholarship that, in my mind, best informs the study of law.

Fuzziness as a model of law instructing the executive branch: I am flattered by Professor Tushnet’s link between my work and Karl Llewellyn’s canons of statutory interpretation. I did not think of this link, and it was very fruitful to rethink my account in light of this classic contribution. I do believe that the types of fuzzy law discussed in the book offer a distinct vision of the nature of law. In other words, the thirteen forms of fuzziness analyzed in the book support a general argument for the indeterminacy of law; thus the book can offer an introduction to a general account of law and its machinations, at least in public law.  

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Published on July 27, 2021
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Decolonizing Comparative Constitutionalism


Richard Albert, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin


In “Comparative Law and Decolonizing Critique,” Professor Sherally Munshi suggests four paths for comparative law scholars to reorient their research toward decolonizing legal scholarship.

Munshi’s paper is a call to action for all of us engaged in comparative law, especially for scholars of comparative constitutionalism, given that constitutions have historically often been tools of colonization, suppression, and the violent subordination of indigenous self-government.

It is worth considering how Munshi’s suggestions might be deployed to make progress on decolonizing comparative constitutionalism.

***

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Published on July 26, 2021
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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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. On Monday, The U.S. Supreme Court rescinded COVID-related orders that relaxed specific procedural requirements during the pandemic in a sign that the Supreme Court is slowly returning to regular business.
  2. The Constitutional Court of Bosnia and Herzegovina ordered the Commission for Concessions of Bosnia and Herzegovina to resolve disputes between Bosnia and Herzegovina and the R.S. entity regarding the awarding of concessions for the construction of hydropower plants on the Drina River. The Party of Democratic Action (SDA) stated that the decision confirms that concessions fall under the competence of the state.
  3. The Ukrainian Supreme Court has canceled a decree of President Volodymyr Zelensky on the abolition of the appointment of Oleksandr Tupytsky as a judge of the Constitutional Court of Ukraine.
  4. Spain’s strict national lockdown during the first wave of the COVID-19 pandemic last year was ruled unconstitutional by Spain’s Constitutional Court on Wednesday.
  5. The Ukrainian language law has been ruled constitutional by the Constitutional Court of Ukraine on 14 July. The court reviewed the law after 51 lawmakers, most of whom belong to the 44-member pro-Russian faction Opposition Platform — For Life faction, alleged that the law discriminates against ethnic minorities, including Russian speakers.

In the News

  1. The German Federal Court of Justice temporarily establishes an auxiliary panel for so-called “diesel cases” due to the persistently high number of incoming legal disputes about claims for damages from unlawful acts, which are the subject of an inadmissible defeat device in a motor vehicle with a diesel engine.
  2. The Presidential Commission on the U.S. Supreme Court reconvened on Tuesday to hear from a new set of experts on various ideas for Supreme Court reform. President Joe Biden appointed the 36-member commission to write a report on various court-reform options.
  3. The German Federal President has appointed presiding judge at the Regional Court Dr. Christian Voigt as a judge at the Federal Court of Justice.
  4. Poland’s Senate endorsed a human rights lawyer on Wednesday as the nation’s next ombudsman, ending months of political tug-of-war over the sensitive position.
  5. Nepal’s newly-appointed PM Sher Bahadur Deuba took the oath of office and secrecy on 13 July, a day after a five-member Constitutional Bench of the Supreme Court reinstated the dissolved House of Representatives for the second time in five months.

New Scholarship

  1. Peter Conti-Brown, Yair Listokin, and Nicholas R. Parrillo, Towards an Administrative Law of Central Banking, Yale Journal on Regulation, volume 38:1 (2021) (presenting the first effort to map the contours of what administrative law should mean for the Federal Reserve, with particular attention to the processes the Fed should follow in determining and announcing legal interpretations and major policy changes)
  2. E. Donald Elliott and Daniel C. Esty, The End Environmental Externalities Manifesto: A Rights-Based Foundation for Environmental Law, NYU Environmental Law Journal, volume 29.3 (Forthcoming 2021) (arguing that the goal for the next stage of U.S. environmental law should be to internalize environmental externalities to the maximum extent feasible. The authors argue that this goal rather than benefit-cost analysis or economic efficiency – should be the guiding principle for the environmental law of the future, based on the natural law and philosophical principle that members of a community have an ethical obligation not to harm one another)
  3. Anika Singh Lemar, Overparticipation: Designing Effective Land Use Public Processes, Fordham Law Review (Forthcoming, 2021) (critically examining how public participation operates in land use planning and approvals, and then proposing a new model, drawing lessons from other administrative processes, in an effort to balance public input, legal standards, and expertise)
  4. Adam Chilton, Justin Driver, Jonathan S. Masur, and Kyle Rozema, Assessing Affirmative Action’s Diversity Rationale, Columbia Law Review Vol. 122, No. 2 (Forthcoming, 2022) (Conduct an empirical study of student-run law reviews to assess the diversity rationale. The authors investigate whether the citations to articles that a given law review publishes change after adopting a diversity policy. They find that law reviews that adopt diversity policies see the median citations to their volumes increase by roughly 23 percent in the five years after adoption)
  5. David L. Sloss, Sovereignty and National Constitutions, University of St. Thomas Law Journal, Vol. 17, No. 2 (2021) (demonstrating that the sovereigntist model of constitutional law is descriptively inaccurate, arguing that the national constitutions of most countries in the world bear striking similarities to each other because those constitutions are products of transnational forces that shape the processes of drafting and interpreting constitution)
  6. Stephane Dion, “Democracy against Unilateral Secession” in “Across Boundaries: Essays in Honour of Robert A.Young”, McGill-Queen’s University Press (2021) (explaining why democratic states manifestly dislike secession; more precisely, why international law, which has been largely shaped by western democracies, does not recognize a positive right to secession outside of colonial context; and finally, why the vast majority of democratic states consider themselves indivisible and do not recognize unilateral secession)
  7. Juan C. Herrera and Marie-Christine, Policy brief: Control de convencionalidad en los parlamentos de los Estados parte del Sistema Interamericano de Derechos Humanos, Konrad Adenauer Stiftung (2021)
  8. Mark Fathi Massoud, Shari’a, Inshallah, Cambridge University Press (2021) (demonstrating how religion builds constitutionalism and the rule of law, based on extensive historical research and fieldwork in Somali areas of Africa)
  9. Law-making in illiberal regimes, a special issue of the Theory and Practice of Legislation journal (2021) (examining the inter-relationship between illiberal tendencies in government and the law-making process. Investigating whether illiberal states show evidence of a particular type of law-making process and whether certain types of the law-making process make it easier to have illiberal tendencies in government)

Calls for Papers and Announcements

  1. The Danish Refugee Council (DRC) is looking for an intern to support the advocacy efforts towards Brussels-based decision-makers. The closing date for applications is Sunday, 15 August 2021.
  2. Ghent University, the Human Rights Center, Programme for Studies on Human Rights in Context invites applications for a workshop ‘CAPTURED BY THE PAST: MONUMENTS. CONFLICTS. LAW’ to be held on 21 January 2022. The abstracts should be sent by 25 September 2021. The workshop is a part of the MSC-IF research project ‘To Destroy or to Preserve? Monuments, Law and Democracy in Europe’ (MELoDYE).
  3. The International Nuremberg Principles Academy (Nuremberg Academy) announces that the registration for the Nuremberg Forum 2021 is now open. The Nuremberg Forum is an annual international conference organized by the Nuremberg Academy. It brings together leading scholars, practitioners, policymakers, and civil society and provides a forum for dialogue and critical exchange on contemporary international criminal law matters.
  4. The Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE) at the Utrecht University School of Law is hiring a postdoctoral researcher in the field of shared rule-making and enforcement in Europe. To apply, please send your curriculum vitae, including a letter of motivation, here.
  5. University of Illinois College of Law invites applications for positions on the tenured/tenure-track faculty to begin in August 2022. The College welcomes applications from scholars in all subject areas of the law. The application deadline is 1 October 2021
  6. La Rivista NAD. Nuovi Autoritarismi e Democrazie: Diritto, Istituzioni, Società invites the submission of essays, case notes, reviews for its upcoming issue. The new issue will contain a special section on academic freedom from a comparative and multidisciplinary perspective. The contributions may concern the legal, political, historical, and cultural profiles of academic freedom in different systems, be they authoritarian, fragile, or consolidated democracy. More information is found here.

Elsewhere Online

  1. Monica Bergamo, Professor da UFMG lança livro sobre erosão constitucional no Brasil, Folha de S. Paulo
  2. Isabela Cruz, “A ultra-direita cooptou o debate sobre ativismo judicial”, Nexo
  3. Fernando Travesí, Repairing the Past: What the United States Can Learn from the Global Transitional Justice Movement, ICTJ
  4. Joseph Geng Akech, Reflecting on the South Sudan we want: 10 years on after independence, AfricLaw
  5. Orville Schell, Life of the Party: How Secure Is the CCP?, Foreign Affairs
  6. Eric Singerman, The Supreme Court Injects Partisan Politics Into Independent Agencies, npr
  7. Leonid Sirota, The U.K. Way, Double Aspect
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Published on July 26, 2021
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Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality | Part 3 | Thinking About Executive Power

Conor Casey, University of Liverpool School of Law

“There is nothing new under the sun” we are told in Ecclesiastes (1:9). This aphorism applies with particular force to public law scholarship, where we see the same conceptual and normative battles being waged in cyclical fashion by successive scholarly generations. Whether it’s over the pros and cons of judicial review, unitary executives, originalism, political/legal/popular constitutionalism – it is often hard to think of something truly new that can be said in many of these debates.

Professor Cohn’s new book, however, refutes this aphorism in spectacular fashion. Cohn’s book offers a compelling and novel comparative and theoretical study of the executive branch in contemporary constitutionalism. It is one of only a handful of works (the other one that comes to mind being Professor Harvey Mansfield’s Taming the Prince: the Ambivalence of Modern Executive Power (1989)and, way before that, canonical texts like Locke’s Two Treatises on Government and Montesquieu’ Spirit of the Laws) that moves beyond system-specific study of political executives and grapples with the conceptual nature of the executive branch in constitutional theory more broadly. It ought to be, and no doubt will become, required reading for students of constitutional theory and comparative constitutional law.

In this brief comment I will outline what I think the main contribution of the book is before sketching two issues I think emerge from the book that public lawyers should grapple with more than they currently do.

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Published on July 24, 2021
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Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality | Part 2 | To the Executive Branch and Beyond

Mark A. Graber, University of Maryland Carey School of Law

Professor Margit Cohn has written a book that is terrific on two dimensions.  The first concerns substance. Readers will be a lot smarter than they were before reading A Theory of Executive Branch.  Professor Cohnhas much to teach constitutional scholars in the United States, the United Kingdom, and across the globe.  The second concerns scholarly development.  A Theory of the Executive Branch promises to be what the great unfortunately late Robert Cover called a jurisgenerative work.  Professor Cohn’s understand of fuzzy law and the relationship between law and discretion should generate rich scholarship on the executive branch, on constitutional development, on constitutional governance and on the interaction between law and politics in constitutional systems.

The very title of Professor Cohn’s work is a major breakthrough in constitutional thinking.  A Theory of the Executive Branch offers a book length theory of the executive branch (readers will have to look elsewhere to determine who is buried in Grant’s Tomb).  Too many scholarly bookshelves are loaded down with A Theory of the Judicial Branch, Another Theory of the Judicial Branch, A Theory of the Judicial Branch Revisited, the second edition of The Theory of the Judicial Branch (the authors changed their mind about Oxford commas) and the like.  A fair case can be made that these theories of judicial branch, like justifications of abortion policy, reached the point of diminishing intellectual returns many years ago.  Fortunately, other governing institutions exist.  Professor Cohn has provided us with a way of thinking about one of those branches.  Even if one disagrees with her theoretical overlay (I do not), just having a theoretical overlay to begin the conversation is a far more vital advance on constitutional scholarship than My Theory of the Judicial Branch and Constitutional Interpretation, which is no doubt forthcoming from at least four university presses in the very near future.

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Published on July 24, 2021
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Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality | Part 1 | Politics as Law: Understanding How (Normatively and Descriptively) to Regulate the Executive Power

Mark Tushnet, Harvard Law School

I offer three comments on Professor Cohn’s terrific book, the first and second focused on the implications for law of her analysis, the third sketching a broader jurisprudential “take” on the material.

1. Justice Jackson’s categories. Early in the book, and reiterated later, Professor Cohn mentions Justice Jackson’s three categories of presidential power, and specifically the second. There “the President acts in absence of either a congressional grant or denial of authority, … [in] a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Professor Cohn doesn’t quote Jackson’s account of how disputes about the scope of presidential power are resolved in this twilight zone: “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.” 

I had expected Professor Cohn’s book to conclude with an explication of the constitutional implications of Jackson’s category-two formulation. In the absence of a discussion from Professor Cohn, I sketch such an explication here. 

Jackson’s formulation is ambiguous: is he simply describing, empirically, how things are likely to come out in twilight-zone controversies, or is he prescribing some sort of (non-abstract) legal rules (and if so, what is that rule)? I suggest that the ambiguity can be resolved by treating the descriptive account as prescribing a rule. 

What I mean is this: according to what I call the Madisonian account of separation of powers, the law of separation of powers consists entirely of the interaction among the branches – for Madison, exclusively the interaction between Congress and the president, today, interactions that occur when the courts (finding a justiciable controversy) intervene. To adapt a phrase J.A.G. Griffith used about the British constitution, in this domain the Constitution is what happens. 

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Published on July 23, 2021
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Introduction: Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality

Rivka Weill, Harry Radzyner Law School, IDC

Professor Margit Cohn’s A Theory of the Executive Branch: Tension and Legality, published by Oxford University Press, could not have been timelier. It arrives on the bookshelves as democratic backsliding and the spread of Covid-19 redefine the relationship between the rule of law and executive power. In this book – which is rich in drawing from different fields of knowledge: political science, philosophy, law, history, and public administration –  Cohn aims to offer a universal theory of the executive relevant to all Western democracies by drawing on two important, yet seemingly opposing traditions, the US and the UK. While these two countries seem to be polar-opposite in their choice of a governing system—the US adopting a supreme formal constitution with a presidential system, and the UK enjoying a flexible constitution with a parliamentary system—Cohn reveals that they share surprising commonalities in the ways executive power is exercised. Cohn finds this convergence to be “no less than astounding” and suggests that it “has never been recognized before.” (p. 162).[1]  

Cohn accurately defines the challenge of the executive in the modern era: the impossible tasks of complying with the law yet addressing exigencies and emergencies of modern life; being subservient to the law and yet, efficient. She finds that the executive achieves this mission by being concurrently subject to the law yet above the law. She offers a rich taxonomy of thirteen different ways in which “fuzziness in law” creates the appearance or formality of the executive’s subjection to the law but substantively allows a relatively free hand to the executive. Cohn’s taxonomy takes into account the identity of generators of fuzziness—the constitution, the legislature or the executive.

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Published on July 23, 2021
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Emergency Law in Spain: the Spanish Constitutional Court’s case law

Germán M. Teruel Lozano, Lecturer in Constitutional Law, University of Murcia

When the Constitution reached its twenty-fifth anniversary, back in 2003, Professor Cruz Villalón highlighted the period of “constitutional normality” that we had lived through. In recent years, that normality has been disturbed by some turbulences that have forced the activation of some exceptional mechanisms provided by the Constitution in order to restore democratic normality. This was the case in 2010 with the declaration of the first state of alarm, in order to face the wildcat strike by air traffic controllers; in 2017 with the insurgency in Catalonia and the application of art. 155 of the Spanish Constitution (SC) to exercise federal coercion; and in 2020-2021 with the declaration of successive states of alarm to face the covid-19 pandemic. In any case, I think the balance is positive: the Spanish Constitution has demonstrated its strength and its validity also in the exception, affirming its guarantees to preserve our freedom and prevent abuses of power.

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Published on July 22, 2021
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How we can detect illiberal constitutional courts and why we should be alarmed – Hungarian and Polish examples

Tímea Drinóczi, Visiting Professor, Federal University of Minas Gerais, Brazil; Professor at the University of Pécs.

In the last couple of years, formerly well-respected liberal constitutional courts have been transformed into illiberal constitutional courts. We should learn lessons from Poland and Hungary, especially in Europe.

Illiberal constitutional courts intentionally undermine the democratic minimum core but only indirectly – they attack the ethos of liberal democratic constitutionalism. They are already more interested in maintaining the illiberal order, in which they believe – mainly because they have already been packed. Illiberal constitutional courts could be detected, beyond their composition, if we also study the procedures, which tend to be abusively initiated or discretionally invented and reinvented, and the content of their decisions whose quality of reasoning starts to become low, and which shows a pattern of serving either one or two masters. We should not be misguided by their initial or occasional pretense of being the defender of fundamental rights or engaging in a meaningful dialogue with other courts. Instead, we should be alarmed by the first signs of changes, starting with their packing and use of abusive judicial review. Otherwise, the abusiveness of their constitutional review, from the perspective of the ethos of liberal constitutionalism, will become the norm and the standard of the illiberal regime, and we will be facing, most probably unpreventable, the dangers illiberal constitutional courts mean.

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Published on July 21, 2021
Author:          Filed under: Analysis