I•CON
Volume 21 Issue 4
Table of Contents
Editorial: In this issue; In this issue—Reviews; 10 good reads 2023
Editorial Reflection
Aileen Kavanagh, The ubiquity of unwritten constitutionalism
Articles
Jeffrey Steven Gordon, Comparative judicial federalism
Julen Etxabe, A dialogical model of human rights adjudication
Neli Frost, The global “political voice deficit matrix”
I•CON: Debate!
Alma Begicevic and Jennifer Balint, Constricted rights and imagined identities: Peace and accountability processes and constitution-making in Bosnia and Herzegovina
Alma Begicevic and Jennifer Balint, Constricting rights, imagining identities: The impact on real lives: A rejoinder to Maja Sahadžić
Critical Review of Jurisprudence: LGBTQI+ Focus
Akshat Agarwal, LGBT+ rights claims for marriage equality and the possibilities of transforming Indian family law
Derek O’Brien, The Judicial Committee of the Privy Council, constitutional interpretation and the right to same-sex marriage
Afterword: Sergio Verdugo and His Critics
Lior Barshack, Constituent power: From Schmitt to Kantorowicz—Afterword to the Foreword by Sergio Verdugo
Ana Micaela Alterio, Is it time to abandon the theory of Democracy? The problem with the people: Afterword to the Foreword by Sergio Verdugo
Nicholas Aroney, Erin F. Delaney, and Stephen Tierney, Federal exceptionalism and constituent power: Afterword to the Foreword by Sergio Verdugo
Christine Bell, Constitutionalizing conflict: Beyond constituent power—Afterword to the Foreword by Sergio Verdugo
Emilios Christodoulidis, The undiminished constituent: Afterword to the Foreword by Sergio Verdugo
Graziella Romeo, Too soon to know: Exploring the conditions of existence of the constituent power— Afterword to the Foreword by Sergio Verdugo
Sergio Verdugo, Is it time to abandon the theory of constituent power? A rejoinder
Book Reviews
Karel Řepa, Review ofDavid Kosař & Ladislav Vyhnánek. The Constitution of Czechia: A Contextual Analysis
Michaela Hailbronner, Review ofMartin Loughlin. Against Constitutionalism
Alexis Blouët, Review ofBaudouin Dupret,Positive Law from the Muslim World: Jurisprudence, History, Practices
Alan Rozenshtein, Review ofMartha Minow, Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech
Oran Doyle, Review of David S. Law (ed.). Constitutionalism in Context
Leonardo Fiorespino, Review of Mark Tushnet & Bojan Bugarič, Power to the People: Constitutionalism in the Age of Populism
Jessica Genauer, Review ofTofigh Maboudi. The “Fall” of the Arab Spring: Democracy’s Challenges and Efforts to Reconstitute the Middle East
ABSTRACTS
Jeffrey Steven Gordon, Comparative judicial federalism
How does judicial federalism affect an apex court’s articulation of constitutional rights? Despite the growth of scholarship on comparative judicial review, federalism, and rights, comparative judicial federalism is underexplored. Building on an emerging literature, this article tentatively suggests that the authoritative declaration of constitutional rights may vary with a country’s particular species of judicial federalism. It first develops a qualitative framework for comparative judicial federalism, that is, the relationship between local (state) and central (federal) courts. The framework is structured around judicial federalism’s three dimensions: institutional, jurisdictional, and jurisprudential. After justifying these three dimensions, the article deploys them to compare Australia and the United States. It posits that in one context—federal free-speech limits on the common law—Australia’s purportedly modest implied freedom of political communication could resemble the powerful Free Speech Clause of the First Amendment. The relative degree of integration of central and local courts may affect the scope of the federal free-expression norm as articulated by the apex court.
Julen Etxabe, A dialogical model of human rights adjudication
This article presents the contours of a “dialogical model” of adjudication arising from the practice of the European Court of Human Rights that is profoundly transforming inherited notions of rights, legal reasoning, legal authority, and the rule of law more generally. The dialogical model is characterized by a form of reasoning that is not self-reliant or autonomous, but internally constituted by the interaction of multiple voices, normative perspectives, and institutional standpoints. What is defined as dialogical, however, is not the inclusion of this or that discrete voice, but the entire process of adjudication, including: how issues are framed; the need to consider cases as a whole; their embeddedness in large swathes of normative magma; the self-reflexive assessment of the Court’s position and trajectory; the relational understanding of the Court’s authority; and the fact that each and every decision constitutes a notion of democracy that is plural, many-voiced, and inherently in tension. Beyond a mere polyphony of voices, therefore, this is an entirely new paradigm to conceive the Court’s task, which differs markedly from the two main paradigms of understanding human rights adjudication, namely, the rights-based model and proportionality analysis. After describing the shortcomings of the latter two paradigms fully to account for the Court’s practice, the article presents the features of the dialogical model. Ultimately, this is a judgment about the collective self-definition of democratic societies, which necessitates a reassessment of the countermajoritarian difficulty to account for the democracy-constituting role of the Court.
Neli Frost, The global “political voice deficit matrix”
The present article illuminates something important yet undertheorized about the relationship between democracy, technology, and globalization. That is, that digital technologies are crucial for certain types of cross-boundary interactions between individuals or communities, and that these interactions are crucial for democratizing relations of power and authority established in and by regimes of global governance. The article does so by linking together two related conversations that have yet to take sufficient account of each other: Those taking place between law and technology scholars on the democratizing potential of digital technologies, and those taking place amongst international lawyers on the relationship between democracy and globalization. The article undertakes this alchemy by putting forward the theoretical construct of the “political voice.” This construct offers a normative theory that outlines the democratic functions of vertical communications between individuals and public decision-makers within and across-boundaries, but also, crucially, explains how these are dependent on robust horizontal, transnational exchanges between individuals or communities. This construct thus offers a lens through which to evaluate the extent to which digital technologies live up to their democratizing potential, and allows for a normative conceptualization of the possible consequences of their failure to do so as a problem of global governance.
Alma Begicevic and Jennifer Balint, Constricted rights and imagined identities: Peace and accountability processes and constitution-making in Bosnia and Herzegovina
This article takes an interdisciplinary law-in-context approach to examine the nature of constitutionalism in Bosnia and Herzegovina. We argue that while the new constitution was necessary for implementing the postwar democratic transition and rebuilding processes, its fixed ethno-religious collective political identities achieved between 1992 and 1995 by forceful means have further reinforced ethno-territorial divisions in a multicultural society. As a consequence,the individual and state accountability for mass atrocities and genocide before the ad hoc International Criminal Tribunal for Former Yugoslavia and the International Court of Justice have become secondary to the postwar power-sharing arrangement, thus perpetuating inter-ethnic tensions. The dominant focus on a social order that reasserts citizenship and constitutional rights based on ethnic identities has created an enduring deadlock for the Bosnian transition. This article reimagines a citizen-based constitution generated by political participation for those in and outside of Bosnia and Herzegovina that safeguards the principles of non-discrimination and equal civil, political, socio-economic, and cultural rights, and encourages citizens’ education and democratic participation to shape the future of democracy.
Maja Sahadžić, Why rights should not be considered (entirely) constricted and why identities are not exactly imagined: A reply to Alma Begicevic and Jennifer Balint
In their recent article “Constricted Rights and Imagined Identities: Peace and Accountability Processes and Constitution-Making in Bosnia and Herzegovina,” Alma Begičević and Jennifer Balint argue that underlying reasons for the seemingly sudden establishment of the complex constitutional arrangements in Bosnia and Herzegovina are associated with the abrupt adoption of the Dayton Peace Agreement and its Annex IV (the Constitution of Bosnia and Herzegovina) that introduced the ethnoterritorial setup and the lack of accountability of the neighboring countries for the atrocities committed during the Bosnian War. As a consequence, the country cannot effectively (re)construct a nation state and, instead, suffers from a lack of homogeneity. Moreover, post-conflict institutional and procedural arrangements appear to be comparatively uncharted territory. This article scrutinizes and counters these claims with the thesis that territorial accommodation of differences is a rather frequent approach in fragmenting systems with competing identities. To substantiate the thesis, the article draws on the concepts of cohesion and stability linked to adaptiveness and coordination. It then analyzes the role of the power ratio during the Bosnian War and the internal building blocks that contributed to the ethnoterritorial setup. Finally, the article focuses on the concept of equality in complex systems linked to mutual respect, solidarity, and trust to analyze the necessity for plural equality in Bosnia and Herzegovina.
Akshat Agarwal, LGBT+ rights claims for marriage equality and the possibilities of transforming Indian family law
The Indian Supreme Court decriminalized homosexuality in 2018 and recognized the equal constitutional citizenship of LGBT+ Indians. Since then, several petitions seeking marriage equality have been filed before Indian courts. In parallel, critics have argued that traditional approaches to LGBT+ equality ignore problematic family law institutions, and have stressed the need to think beyond legal inclusion to recognize diverse families. These arguments are not unique to India. Claiming LGBT+ rights within existing family law institutions has divided LGBT+ activists the world over. The commonly advanced argument is that assimilation into existing patriarchal social institutions disregards radical transformational possibilities. However, experiences in jurisdictions like the United States, challenge this premise and show how family law can potentially be transformed through LGBT+ rights claims. While we still await an authoritative judicial pronouncement on marriage equality in India, this article argues that legally recognizing marriage equality may positively impact existing family laws by generating arguments for expanding recognition of diverse families. It shows that achieving marriage equality through the recognition of LGBT+ relational rights, comprising LGBT+ family equality and the right to legal recognition of LGBT+ relationships, has the potential for progressively expanding Indian parenthood laws. The article specifically demonstrates how this is possible in guardianship, assisted reproduction, and adoption laws and may benefit diverse different-sex families, single parents, and persons in non-marital relationships.
Derek O’Brien, The Judicial Committee of the Privy Council, constitutional interpretation and the right to same-sex marriage
The recent judgments of the Judicial Committee of the Privy Council (JCPC) in Day and Another v. Government of the Cayman Islands, and Attorney General for Bermuda v. Ferguson and Others, upholding the constitutionality of laws limiting marriage to opposite sex couples in Bermuda and the Cayman Islands, respectively, have disrupted a consensus that had been emerging amongst constitutional courts in the common law world that such laws were unconstitutional. This article critiques the JCPC’s justifications for distancing itself from this consensus and instead aligning itself with the much-criticized jurisprudence of the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (UNHRC) on the issue of same-sex marriage. It will be argued 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 the ban on same-sex marriage on the gay and lesbian communities in each jurisdiction. It will further be argued that the JCPC relied too heavily on the jurisprudence of the ECtHR and UNHRC at the expense of foundational principles such as liberty and equality. The article also considers the consequences of these decisions for the other countries over which the JCPC continues to exercise jurisdiction and which prohibit same-sex marriage, as well as for the other countries whose courts continue to be influenced by the jurisprudence of the JCPC even though it is no longer their final appellate court.
Lior Barshack, Constituent power: From Schmitt to Kantorowicz—Afterword to the Foreword by Sergio Verdugo
In his Foreword, Sergio Verdugo presents Schmitt’s account of constituent power as the conventional understanding of this concept. At the same time, he shows that Schmitt’s views are contested and hardly accepted as a matter of convention. Verdugo’s critiques of constituent power are leveled mainly against Schmitt’s (“conventional”) understanding of the concept. If Schmitt’s account is relaxed, various criticisms of constituent power seem overstated. We have good reasons to abandon Schmitt’s conception of constituent power as unlimited and permanently active. Several flaws of Schmitt’s model of constituent power have to do with its failure to account for the contribution of constituent power to world-building. A restless and omnipotent constituent power cannot contribute much to the construction of a public world. Schmitt’s unruly constituent power entraps society in a state of permanent worldlessnes (Arendt) or communitas (Turner). In order to allow for the reproduction of the public world, constituent power has to be limited and discontinuous. A theory of the constitution that is based on Kantorowicz’s analysis of the corporate body politic sheds light on the social construction of public space and public time.
Ana Micaela Alterio, Is it time to abandon the theory of Democracy? The problem with the people: Afterword to the Foreword by Sergio Verdugo
Sergio Verdugo’s provocative Foreword challenges us to think about whether the concepts we inherited from classical constitutionalism are still useful for understanding our current reality. Verdugo refutes any attempt to defend what he calls “the conventional approach to constituent power.” The objective of this article is to contradict Verdugo’s assertions which, the Foreword claims, are based on an incorrect notion of the people as a unified body, or as a social consensus. The article argues, instead, for the plausibility of defending the popular notion of constituent power by anchoring it in a historical and dynamic concept of democratic legitimacy. It concludes that, although legitimizing deviations from the established channels for political transformation entails risks, we must assume them for the sake of the emancipatory potential of constituent power.
Nicholas Aroney, Erin F. Delaney, and Stephen Tierney, Federal exceptionalism and constituent power: Afterword to the Foreword by Sergio Verdugo
Sergio Verdugo makes a powerful and cogent attack on constituent power. Nevertheless, we ask whether he has rushed to judgment in concluding the theory has outlived its usefulness, as he fails to take into consideration the complexities federation might introduce. In this Afterword, we present an argument for why the federal form might encourage or require a reconceptualization or reevaluation of constituent power, and we advocate a fuller exploration of “federal exceptionalism” before scholars pass judgment on the concept.
Christine Bell, Constitutionalizing conflict: Beyond constituent power—Afterword to the Foreword by Sergio Verdugo
This Afterword affirms Verdugo’s thesis that the concept of “constituent power” is not helpful to evaluating the legality or legitimacy of constitutional replacement moves, drawing on experience of how constitutional revisions are fashioned to attempt to end violent intrastate conflict. In its place I sketch an alternative approach to evaluating legality and legitimacy of constitutional revisions. This approach involves determining whether and how the constitutional move seeks to replace the underlying political settlement or not, and whether it does so in a way that makes the settlement more democratic and pluralist, or less so—recognizing that commitments to democracy and pluralism also require to be reconciled.
Emilios Christodoulidis, The undiminished constituent: Afterword to the Foreword by Sergio Verdugo
This Afterword is a response to Sergio Verdugo’s Foreword. It provides a defense of the notion of constituent power as a necessary element of the constitutional imaginary and ineradicable dimension of any credible account of democratic constitutionalism. It takes issue with what Verdugo identifies as the ‘conventional’ approach to constituent power, and argues that the collapse of constituent power into constituted power comes, philosophically and politically, at a significant cost. It concludes with a discussion of the recent irruption of constituent power in the constitutional situation in Chile.
Graziella Romeo, Too soon to know: Exploring the conditions of existence of the constituent power— Afterword to the Foreword by Sergio Verdugo
This Afterwordtakes up the challenge presented by Sergio Verdugo’s Foreword and explores how Costantino Mortati formulated the concept of material constitution to address the questions raised by both Verdugo and proponents of constituent power theory. This Afterword contends that the material constitution tackles the problem of the socio-political foundations of the constitutional regime without falling into some of the conceptual pitfalls that Verdugo identifies in constituent power theory. However, the materialist approach does carry a risk of manipulation, which can only be resolved by clarifying the nature of the constituent activity involved in founding a constitution. This innovative perspective refines what we can expect from a theory of constituent power. To develop the argument, this Afterword elucidates the concept of the material constitution, examines its relationship with constituent power theory, and discusses the limitations of the materialist approach.
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