Blog of the International Journal of Constitutional Law

I·CON 10 Issue 3: Editorial

Announcing ICONnect and a major change in the masthead

When I took over I.CON some three years ago, one of the changes I announced in its orientation would be to expand the intellectual and academic reach of I.CON to include all spheres of public law—given the blurring of lines between the Constitutional, the Administrative, and the Global. This expansion has been reflected quite prominently in the content of several issues in the last three years. We are now taking further substantive and institutional steps as a manifestation of this commitment. Substantively, we have decided to lauch a new blog for I.CON, which will be dedicated to questions of administrative and constitutional law at the national and transnational levels. The blog, ICONnect, is expected to be online in late 2012. It will integrate into a new I.CON website the wonderfully successful comparative constitutional law blog run by Tom Ginsburg, expanding the coverage of the existing blog to the broad range of public law issues. Institutionally, we have invited Professor Sabino Cassese to join the I.CON Board of Editors. He needs no introduction, though a quick Google search is likely to overwhelm you. He personifies this “blurring of lines.” Although the “Doyen” of administrative legal studies in Italy and beyond, he is also one of the intellectual leaders of the conceptualization of Global Administrative Law and serves currently as a Judge on the Constitutional Court of Italy. He is an icon of what in my view I.CON is about.

As a new Member of the Board, I invited him to contribute a Signature Piece, which will immediately follow this Editorial.

In this Issue

It is a rich issue, indeed, which can claim not one but two manifestos on the future of public law. Armin von Bogdandy offers a fresh insight into how national traditions of legal scholarship—with particular emphasis on Germany—are evolving in the light of European integration. The implications of his argument are far-reaching, and I·CON will continue to engage with them in future issues. Julian Arato follows with a piece analyzing the validity of the United Nations Security Council’s actions via a two-tiered approach—what he terms the “juridical” and “political” perspectives. In so doing, Arato sheds light on broader questions of, in his words, “the relevance of constitutional theory beyond the state.”

Three articles addressing different aspects of proportionality provide a welcome addition to recent debates on the subject. Xenophon Contiades and Fotiadou Alkmene probe the relationship between social rights and proportionality, asserting that the latter fosters the creation of the content of social rights itself. Matthias Klatt and Moritz Meister expand on a discussion which unfolded in the pages of I·CON.1 Here, the authors reflect on five core challenges to proportionality prior to launching into an analysis of the European Court of Human Rights’ decision in Otto-Preminger-Institut v. Austria. Their arguments weigh in favor of proportionality, with Klatt and Meister concluding that it is both effective in and vital to rights reasoning. Further expanding on this topic via a robust defense of proportionality, Kai Möller surveys recent critiques of the practice—ranging from criticisms of balancing to concerns over the place of moral considerations—before concluding that each fails to substantively undermine proportionality itself. Picking up the theme of social rights adjudication from earlier in the issue, Anashri Pillay elaborates on the concept of meaningful engagement as articulated in two recent decisions handed down by the South African Constitutional Court. The author holds that meaningful engagement offers a promising avenue for the adjudication of social and economic rights without undermining the legitimacy of legislative bodies, thereby avoiding claims of judicial overreach. While noting the potential effectiveness of this approach, Pillay also leaves readers with a clear sense of its present limitations.

We then publish the ten contributions which comprise our second—and final—10×10 series in honor of Norman Dorsen, with reflections from Seyla Benhabib, Philip Bobbitt, Stephen Breyer, Samuel Issacharoff, Catharine MacKinnon, Richard Pildes, Michel Rosenfeld, Martin Shapiro, Jeremy Waldron, and Norman Dorsen himself. The works selected are eclectic and include significantly more historical and philosophical than legal texts. Legal works took up less than 20 percent of the list. We trust that readers will find the pieces contained in these pages stimulating and rewarding in equal measure.

Our I·CON: Debate! series continues with an illuminating exchange between Hans Agné and Mark Tushnet revolving around the role of foreign nations in the establishment of legitimate democratic states. The issue closes with an article by Giussepe Martinico, appearing under our Critical Review of Jurisprudence rubric, which explores the question of dual preliminarity through a review of cases drawn from national and supranational case law. Martinico seeks to better understand situations where national judges must simultaneously address their national courts and the Court of Justice of the European Union—his observations merit careful consideration and provide a fitting conclusion to this diverse issue.


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