Blog of the International Journal of Constitutional Law

Crisis and Opportunity: Responding to the Brexit Vote (I·CON 14, Issue 3: Editorial)

The vote by a majority of the British people on June 23 to leave the European Union has precipitated a series of gradually unfolding consequences throughout the United Kingdom, within Europe, and across the world. Comparisons have been drawn to the fall of the Berlin Wall, in terms of the magnitude and geopolitical significance of the event. A flood of commentaries, analyses and predictions has followed from the first hours after the result was announced and continues to the present day.  The full implications remain as yet unclear.

If there is one pervasive feature of the outcome of the vote, both in the immediate aftermath and now with more distance from the event, it is the deep uncertainty that it has created. The reactions of markets, political leaders, communities and individuals have reflected this pervasive uncertainty about what the vote means and what it will ultimately bring about. Markets have fluctuated wildly, leaders have resigned, businesses have withdrawn or frozen investments, large numbers of people have applied for alternative passports, sought new jobs or changed educational plans. Even those celebrating the vote seem to have little idea of what the future may hold. At the time of writing, there is little clarity about the way forward as regards the UK’s negotiation of the terms of exit. Yet even as the immediate and subsequent steps gradually become clearer, profound and longer-term uncertainty remains about what the implications will be for the UK and its component parts, for the European Union and its member states, and for the international order more generally.

It is not the aim of this Editorial to add to the multitude of powerful voices that have lamented the outcome of the vote. Nevertheless I share many of their reflections, in particular as regards its socially divisive effects and the blow it has dealt to the ideal of a united and peaceful continent.  But the aim of this comment is to reflect on what it would take to turn the Brexit crisis into an opportunity to reform, strengthen and democratize the process of European integration and ultimately of transnational cooperation. The very fact that the vote has generated such pervasive uncertainty means that no set of outcomes, positive or negative, can be taken for granted.  Disaster is not inevitable, any more than the outcome of the referendum itself was inevitable. It is certainly possible that the vote will lead to a period of prolonged economic and political hardship for Britain, to the gradual disintegration of the European Union, and to greater international discord and conflict.  But another scenario could see reform and renewal of the European project as the eventual result of the Brexit referendum.  What is likely to make the difference between these alternative scenarios is the individual and collective actions of many people – including, importantly, for the readers of this journal, academic scholars – in the UK, across Europe and elsewhere, who have a stake in the future of the European Union.

While there is uncertainty about the future and the likely consequences of the Brexit vote, there is less uncertainty about the factors that led people to vote for the UK to leave the European Union. While some of those voting to leave – in particular older Britons – may have hoped to achieve elusive goals such as a return to an earlier way of life, or to regain national economic sovereignty, others had more concrete and focused concerns about the way in which the European Union is run and about many of its specific actions and policies.  Strongly held views about the remoteness of EU institutions and European political leadership from the concerns of national populations, and about the weakening of domestic democratic institutions played their part across the political spectrum in the vote to leave. Concerns about the vastly uneven distribution of the gains and losses of economic integration, including those resulting from the freedom of movement guaranteed under EU law, were central to the outcome of the referendum.  Both within Britain but also across many other member states, the handling of the Euro-crisis and in particular the imposition by the EU, in conjunction with the IMF, of punitively austere economic conditions on Greece and other indebted countries, gave rise to a wave of protest from many of those who were previously favorable towards the EU and EU membership.

It may appear both naïve and clichéd to suggest that the aftermath of this destabilizing vote could present a moment of opportunity and renewal for the European Union. But there is unquestionably a sense that the context of political upheaval brought about by the Brexit vote offers an occasion for reform of the EU that could be seized, given sufficient political will and public demand.  Demonstrations of support for the European Union and the process of European integration have typically come from the people of aspiring member states, most recently the Ukraine. The march by thousands of people in London in July in protest against the referendum vote and in support of EU membership was an event unprecedented in the EU’s history.  The prospect of losing EU membership clearly crystallized for many what they considered worthwhile and valuable about European integration, and mobilized them to demonstrate in support of those beliefs.  Since the Brexit debate began in earnest in the UK earlier this year, the public arguments made in defense of the EU and the kind of transnational cooperation it represents were more passionate than any heard in over four decades of EU membership. Continued public mobilization of this kind will be essential if the Brexit vote is to represent an opportunity for reform rather than an irreversible catastrophe.

The turbulence brought about by the vote has generated anxiety and uncertainty about likely future economic, social and political consequences, but has also created a chance that could be seized.  Many of those who voted to remain as well as those who voted to leave were concerned about economic inequality and the failure of the European Union to bring about a more equitable distribution of the benefits of economic integration. Voters on both sides also objected to the remoteness and lack of responsiveness of the EU institutions to public and popular concerns. The upheaval ushered in by the Brexit vote has created an opening not just in the UK, as it seeks to renegotiate the terms of its relationship with the EU, but also across EU member states to press for the kind of change and reform that so many are seeking.

Academics, including lawyers, have a specialized and, in certain ways, a narrow role. Yet as teachers, scholars, practitioners and actors operating across a range of fora, we have privileged opportunities to advance arguments, propose political and legal alternatives and to influence public debate about the aims of European and transnational cooperation. We can expose injustices and inequalities, and challenge the apparent inexorability or dominance of particular legal and political visions of European integration. We can use our intellectual role to contribute, individually as well as collectively, as part of a broader social and political mobilization to ensure that the Brexit vote does not sound the death knell of European and transnational integration, or of deep UK engagement with the EU, but acts instead as a catalyst for long-overdue political and economic reform. We can seek to translate the messages we believe the vote represents into argument, demand and action to insist upon the kind of European Union we believe the people of the United Kingdom and all EU member states would want to support.

Britain is at a crossroads, but the European Union is at a crossroads too.  Now is no longer the time to simply lament what has happened, but instead to focus on identifying constructive and innovative responses to long-simmering problems of European and transnational integration which have been thrown into sharp relief by the Brexit vote.

Gráinne de Búrca

On my way out – Advice to young scholars III: Edited books

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some dos and don’ts on different topics to younger scholars in the early phases of theirs. This is the third installment and it is one in which, even more than my earlier installments, I look back ruefully and in St Augustine fashion offer a “don’t do what I did…” set of suggestions.

A more appropriate title would have been Unedited Books and the crux of my advice is – proceed with caution, avoid if at all possible.

The routine is well known and well-practiced. You receive an invitation to present a paper at some conference. You accept (see below). You may adapt something you have already written or something that you are working on which is in some way connected. It is often not exactly what the conveners had asked for or had in mind, but perhaps close enough so as not to have to reject the invitation. The conveners are often accomplices in this little approximation. They are committed to the conference; it is often part of some grant they have received. Almost always you are pressed for time – after all it is not as if these invitations arrive when we are sitting back, twiddling your thumbs and looking for things to do. In general they are disruptive of your flow of work. So the result is not as good as it might have been. Sounds familiar?

You attend the conference. It shows. The papers presented are of very variable quality and relevance. There is the usual conference overload so that the habitual 10-15 minute “commentator” input may be interesting but of limited value to your paper. The general (“unfortunately we only have xx minutes for questions”) discussion is even less so – how many actually read the papers (which not infrequently arrive two days before the conference)? Still sounds familiar?

At the end of the conference the conveners remind participants of the publication plans. More often than not they already have an agreement, even a contract, with the publishers. Typically one is given a deadline for the final version of the paper. How much work is done on the draft presented at the conference? It varies, of course, but in general not much. Crossing T’s and dotting I’s. One is already busy preparing the next paper for the next conference. Now we arrive at the crux of the problem. How often does one receive detailed editorial comments from the “Editors” on one’s final submission? The sad answer is – rarely. And even when one does they are all too often of a tentative and even perfunctory nature. How often have you, as editor – hand on your heart – sent out such? The fiction is that the conference, with the commentators and discussion, would have served that editorial function. It is a fiction.

The publisher is meant to act as a quality brake. Even those who have a referee system usually end up with an overall quality assessment, but not with serious editorial input to the individual papers. Occasionally a paper or two are nixed, but that too is more an exception than a rule. There is copyediting of variable (very variable) quality. This is true even for many of the most illustrious publishers in the Anglo-American world and certainly true for the European continental publishers who rely entirely on the book Editors.

The Editors will typically write an Introduction that, more often than not, is a reworking of the Mission Statement of the conference, with the addition of a road map giving a synoptic capsule of the contributions. The classical Introduction, which uses the papers in the book for the purposes of writing a serious Introduction, pulling threads together and producing a major contribution that enhances the overall added value of the contribution, is a rarity. Still sounds familiar?

The book is then published with an enticing title and on occasion wonderful art work. More often there is “programmatic artwork:” flags, a globe, whatever. The publishers assess the captive market and act accordingly. The print runs are small, the price typically exorbitant and in any event unattractive for individual purchase. It is common that the conveners have budgeted a subsidy to the publishers.  An expensive cemetery – rightly so. If you are lucky, the book may be reviewed. And if you are even luckier, the review will be more than, well, a rehashed version of the “Introduction” and road map.

Am I exaggerating? Yes, I am. Am I that far from the truth? No, I do not think so. And sure, there are exceptions – sure, the book you edited, the book to which you contributed. But these are exceptions.

To judge from the I.CON and EJIL mailbags, far more ‘edited books’ are published in our field than single or double-authored monographs. It’s a bit of a mystery, since so many of them are hardly ever read, certainly not cover to cover. Do a reality check with your own reading habits over, say, the last year. I am reasonably confident that you have bought hardly any, and read, if any, not many more. Even if I were to allow reading just a handful of papers rather than the whole edited book, I am sure the results would not be appreciably different.

In preparing this installment of my Advice to Young Scholars I recently conducted a little wholly unscientific survey. In relation to the six edited books I surveyed even some of the contributors to the book had not read all the contributions of their fellow authors. And I harbor the suspicion that in some cases, especially with those heavy tomes such as Festschriften, where everybody since the author’s Bar Mitzvah has been invited to contribute (and the honoree supposedly does not know of this wonderful surprise being prepared by his or her faithful assistants), not only do the authors not read the other contributions, even the editors, and I suspect the honoree him or herself, don’t get much beyond the table of contents.

I can understand the publishers – their business plan calls for loads of these tomes that each produce a modest profit, and which all adds up at the end of the year.

But what about us? Why do we continue to engage in this scholarly farce, which is all the more mysterious since as far as prestige or kudos is concerned, rarely does one enjoy much of either of these, not by being the “Editor” of a book nor for publishing therein.

I can think of many explanations, some of which are not mutually exclusive and which I present in no particular order.

So why do people contribute?

  • You get a trip to somewhere – hopefully beautiful, sometimes exotic – where your paper will be presented as part of a workshop/conference. Sometimes these conferences are even interesting. One learns.
  • There may be some interesting people to meet.
  • There is not always a workshop or conference involved. Sometimes you do it because a good colleague or friend has asked you, pleaded with you and you do it as a favor. Other times it is someone “important” who does the asking and you are “honored” at having been asked.
  • Sometimes you look at the other contributors (or would-be contributors) and think “if they are there, how can I not be there?) or some variant on this theme. In these cases it is even less likely you will read with attention the other contributions – the book typically arrives a year or more after the deadline for submission – your agenda has moved on.
  • Oftentimes it is just so easy to say yes because you already have a readymade paper that you have already posted on SSRN and that will just require some cosmetic retouching – so the whole thing becomes a boondoggle.
  • Alternatively, it is easy to say yes because the deadline is a very long time ahead. If the deadline were, say, two months from the time of request you would probably say no, but lo and behold, even in the first instance, you actually get to the writing not more than two months before the deadline.
  • Occasionally it is a serious project with serious people, which actually interests you – and maybe the book and your piece will draw attention, be read, discussed and add to the conversation.

What about the Editors of such books? Why do they go down this road, the results of which are so often of so little gravity at all?

Oftentimes the edited book is the result of a workshop, conference or some such event, which is part of some funded “research project” – yet another instance of the corrupting effect that money has wrought on the academic vocation. All too often these “research projects” are nothing much more than a good, or not so good, idea or theme that is more or less worth exploring, and on which a bunch of scholars are invited to contribute a paper which are then presented at the conference for the results of which, see above.

Indeed, the “barriers to entry” of such publishing ventures are usually quite low. Once the theme is set, the planning consists of trying to think of the persons who will be invited and ensure their participation. The mission statement is often cursory and generic – most times a contribution to a subtheme within the general framework. The result is a potpourri of pieces of different lengths and quality and only tenuous connectivity.

So what is my advice for young scholars in the face of this rather demoralizing phenomenon?

Invitations to participate are often tempting: the company your piece will be in; the prestige of the Editors, the flattery of being invited, the general excitement (for what it is) of travelling to a conference or workshop somewhere with the attendant accoutrements (the dinner, etc). There are several costs, the most important being the opportunity cost. It will distract you from your own sovereignly set research agenda. You pay here a double price: pieces written for these events and the ensuing books are often hurried and recycled and hence unsatisfying, adding little to the field (and to your reputation). The saving grace is that they are, as mentioned above, hardly ever read. But then, why bother? More painfully, since research, thinking and writing time as well as mental energy are our most precious and scarce resource, it is not only the forgettable paper you prepare that suffers, but the more important piece of work you are working on.

I know how difficult it can be to say No. I also know how easy it is to rationalize this oftentimes irrational behavior. The obvious solution is Aristotelian or Maimonidean – exercise good measure; ration yourself; be rigorous about it.

When it comes to editing a book, the best advice is to avoid the dubious honor and work. Still, I want to offer some advice as regards successful edited books, which should and often do get read. If you are to edit a book try and follow good practice in this respect.

  • Aim for a focused overall theme and a tight and ordered table of contents. This will make the resulting book not only interesting but also indispensable in its systematic coverage of the theme.
  • Invest in the invitation. Not simply the overall mission and the subject you wish the author to contribute, but provide an individualized description of what you expect the author to cover. There can be some overall reflection pieces but this must be part of your plan.
  • “Big names” are far more difficult to control, far less likely to pay attention to your requests and suggestions and far more difficult to nix if their contribution is not up to scratch. Keep this in mind.
  • Workshops are better than conferences if you have an edited book in mind. But make sure it is a veritable Workshop – with real time to ‘workshop’ the contributions, with commentary on content and form. Make sure that commentators do not use the occasion simply to present their ideas, but take their task with the seriousness of a good journal referee. Insist that they provide the author with a detailed written comment on their paper.
  • Manage the expectations of your contributors, starting with the letter of invitation. Describe the planned editorial process and prepare them to expect detailed commentary and to be ready to respond to such – just as they would when submitting a piece to a journal.
  • It is bad form to edit a book and not to include within it your own contribution. But consider the Introduction as your principal intellectual contribution, in some ways, the raison d’etre, the justification for the entire project. It should not be just, or above all, a summary of the contributions but the proof that the whole is greater than the sum of the parts. Unlike your contributors, you are the one who has the opportunity to deal with the whole, to benefit intellectually from the range of individual contributions. A good introduction should be able to stand – with somewhat different framing – as a major contribution in its own right.

All this sounds like hard work. It is. It is rarely done, but that is your opportunity. If you do it, do it right.



In this Issue

This issue offers a particularly rich menu of scholarship, which amply illustrates the eclecticism that characterizes I.CON. We begin with a Keynote by Ruth Rubio Marín , which was presented at the 2016 State of the Union conference in Florence on “Women in Europe and in the World.” Rubio Marín argues that the economic crisis in Europe could be seen as an opportunity for a “new humanism” that puts the person at the core of the political project. In our Article section, Joshua Braver discusses Supreme Court battles in Venezuela by focusing on Hannah Arendt’s concept of the people as politically constructed through the “unconventional adaptation” of pre-existing institutions. In the next article, Robert Leckey provides a thought-provoking critique of the scholarly view that discretion in remedying legislative infringement of rights can be dialogic, gentle and cooperative.

The issue continues with a stimulating Symposium on the Constituent Power of Unbound Constitutionalism, organized by Stefan Oeter and Antje Wiener. It features contributions by Markus Patberg, Nele Noesselt, Nico Krisch, Hauke Brunkhorst and Mattias Kumm, each of whom discusses from different perspectives the issue of legitimacy in the global legal order.

Our I.CON: Debate! section in this issue revolves around an article by Sandra Fredman on substantive equality. Fredman argues that the right to substantive equality should not be collapsed into a single formula. Instead, she proposes an analytical framework, a four-dimensional approach, which argues that the right to equality should be responsive to those who are disadvantaged, demeaned, excluded, or ignored. In a challenging Reply, Catharine MacKinnon critiques this framework, arguing that the single principle of substantive equality is that of social hierarchy. Fredman responds in a Rejoinder.

In our Critical Review of Governance section, Erin Delaney analyses the debate over judicial appointments in the United Kingdom in order to shed light on the position of the modern judiciary within the British constitutional system.


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