Blog of the International Journal of Constitutional Law

ICON Volume 21, Issue 4: Editorial

Editorial: In this issue; In this issue—Reviews; 10 good reads 2023

In this issue

In an Editorial Reflection, Aileen Kavanagh considers the importance of unwritten norms to written constitutions—and to the study of comparative constitutional law. According to Kavanagh, closer attention to these norms will deepen our understanding of fundamental constitutional commitments, broaden our understanding of constitutionalism “beyond the courts” (including the work of politicians as well as public administrators, non-governmental organizations, and actors in civil society), and help to bring to light the importance of relationships in constitutional law—including the possibility that government can be imagined as a matter of collaboration, rather than conflict, among public institutions.

The Articles section includes three contributions. In the first, Jeffrey Gordon considers the possibility that an apex court’s elaboration of federal constitutional rights might depend on the relationship of differently situated courts in a judicial hierarchy: a question of “judicial federalism.” Gordon proposes a framework to facilitate the comparative assessment of this possibility, and then explores its potential with attention to the protection of free speech in Australia and the United States.

In the next article, Julen Etxabe proposes a novel “dialogical model” of human rights adjudication to explain the practices of the European Court of Human Rights—a model that involves the interaction of multiple voices, normative perspectives, and institutional standpoints—and distinguishes this approach from two alternatives: the “rights as trumps” model that focuses on the substance of rights, and the model of proportionality that focuses on the justifications given for the limitation of rights. Etxabe contends that neither of these models best explains the Court’s practices and its distinctive role in “constituting” democracy.

In the third article, Neli Frost considers the democratizing potential of digital technologies in relation to regimes of global governance. Bridging two areas of scholarship—law and technology on the one hand and international law and globalization on the other—Frost proposes a normative theory of “political voice,” a theory to outline the democratic functions of vertical communications between individuals and public decision-makers, within the context of horizontal, transnational exchanges between individuals or communities.

In this issue’s I•CON: Debate!, Alma Begicevic and Jennifer Balint (as co-authors) and Maja Sahadzic write about constitutionalism in Bosnia and Herzegovina. Begicevic and Balint offer a law-in-context reading of the country’s post-conflict Constitution to argue that, while it was necessary to facilitate a transition to democracy, it has ultimately reinforced a problematic ethno-territorial division that perpetuates inter-ethnic tensions. The authors set out to reimagine a “citizen-based” constitution to safeguard the principles of equality in a multicultural society. In response, Sahadzic emphasizes that complex states like Bosnia and Herzegovina are not uncommon and denies that a new constitution is required to address Begicevic and Balint’s concerns; Sahadzic advocates for structural solutions instead. Begicevic and Balint respond with a Rejoinder.

The Critical Review of Jurisprudence section features two contributions with an LGBTQI+ focus. Akshat Agarwal considers the significance of recent rulings of the Indian Supreme Court on LGBT+ equality, noting that, since the Court decriminalized homosexuality and recognized the equal constitutional citizenship of LGBT+ Indians, several petitions seeking marriage equality have been filed. Agarwal situates these developments in contemporary debates over whether traditional approaches to LGBT+ equality ignore problematic family law institutions, and argues that legally recognizing marriage equality may positively impact existing family laws by generating arguments for expanding recognition of diverse families.

Derek O’Brien considers recent judgments of the Judicial Committee of the Privy Council (JCPC) upholding the constitutionality of laws limiting marriage to opposite sex couples in Bermuda and the Cayman Islands. O’Brien argues that the JCPC’s decisions were based on a narrowly textual interpretation of the respective constitutions and failed to take account of the impact of bans on same sex marriage, and that the JCPC relied too heavily on the jurisprudence of the European Court of Human Rights and the United Nations Human Rights Committee at the expense of foundational principles such as liberty and equality. O’Brien considers the consequences of these decisions for the other countries over which the JCPC continues to exercise jurisdiction and influence.

Finally, this issue features six Afterword articles in response to Sergio Verdugo’s Foreword (“Is it time to abandon the theory of constituent power?”), published in I•CON 21:1. Verdugo argued that the conventional theory of constituent power, when invoked as a justification for replacing a constitution, idealizes the “founding” moment of constitutionalism and poses a problem of whether constitution-making can operate under reasonably favorable electoral and democratic conditions—because ideal conditions are improbable when constitutional change is carried out in response to a crisis and, even if such conditions can be met, using an idea of constitutional change as radical as the constituent power theory is not warranted from a normative perspective.

Lior Barshack argues that Verdugo presents Carl Schmitt’s account of constituent power as the conventional understanding, but if Schmitt’s account is relaxed, various criticisms of the theory seem overstated; moreover, Ernst E. Kantorowicz’s ideas provide a more promising basis for imagining the political community. Ana Micaela Alterio defends the popular notion of constituent power from the standpoint of procedural legitimacy, insofar as this notion makes it possible to identify, and justify, the political, contextual, and historical components of law. Nicholas Aroney, Erin F. Delaney, and Stephen Tierney draw attention to the complexities that federation introduce into this debate—arguing that attention to the federal form invites the reconceptualization or reevaluation of constituent power, under the heading of “federal exceptionalism.” Christine Bell agrees with Verdugo that the concept of constituent power is not helpful to evaluating the legality or legitimacy of peace and transition processes in particular—and proposes an alternative approach that emphasizes whether the underlying political settlement is proposed to be reformed in a way that is more democratic and pluralist, or less so. Emilios Christodoulidis provides a defense of the theory of constituent power as a necessary element of the “constitutional imaginary” and illustrates this claim by reference to the recent example of Chile. Graziella Romeo takes up Verdugo’s critique of the idea of constituent power and considers the resources of Costantino Mortati’s concept of the “material constitution” to address it. Last but not least, Sergio Verdugo replies to his critics—and outlines some of the questions that remain to be addressed by critics and defenders of constituent power theory.


In this issue—Reviews

This issue includes seven book reviews, which discuss a variety of topics in various jurisdictions, including free speech and media regulation, populism, Muslim law and the Arab Spring, and constitutional development in Czechia. In a review of The Constitution of Czechia: A Contextual Analysis, Karel Řepa analyzes the Constitution of Czechia, a jurisdiction that merits more scholarly attention. Michaela Hailbronner reviews Against Constitutionalism and argues that, inter alia, “portraying German postwar constitutionalism as a brainchild of the ordo-liberal school is misleading.” In a review of Positive Law from the Muslim World, Alexis Blouët points out some minor shortcomings of this book whilst recognizing its great contribution to our understanding of the Muslim world and law. Alan Rozenshtein reviews Saving the News, exploring the potential tensions in Martha Minow’s account of the First Amendment. In a review of Constitutionalism in Context, Oran Doyle analyzes the pros and cons of the social-scientific approach to understanding constitutionalism. Leonardo Fiorespino reviews Power to the People: Constitutionalism in the Age of Populism, and argues that the definition of populism in this book seems to dissolve the unity and intelligibility of the concept. Finally, Jessica Genauer reviews The “Fall” of the Arab Spring, encouraging the author to further investigate the specific tools and instruments used by civil society organizations to bridge societal divisions.


10 Good Reads 2023

[Professor Weiler’s annual list of 10 good reads was previously published by ICONnect here.]


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